This post was written by guest contributor Asifa Akbar.
In the last couple of weeks, reports have surfaced about Kosovo’s supposed ban on the wearing of the headscarf (hijab) by Muslim girls in its public schools. Such reports were reposted on social media and influential blogs; for example, already over 900 people have recommended an online Al Jazeera report entitled “Kosovo orders ban on headscarves in schools.”
The latest reports centre on the case of student Njomza Jashari, who was recently told she is not allowed to come to school wearing her headscarf. She may continue her studies by correspondence, but according to the above report, her school principal has allowed a compromise with respect to her writing exams while wearing the headscarf.
So what’s wrong with these reports? Well, for one, they generalize the most recent particular case in one school where authorities made a decision to uphold an administrative ban against wearing the headscarf in public schools in the particular Kosovo municipality of Ferizaj. The reality is that there is as yet no clear universal national legislation banning the wearing of the headscarf in public schools across all of Kosovo. So these reports are inaccurate. Administrative bans, such as the one adopted in Ferizaj and some other municipalities, are by no means universally or uniformly applied across the nation. The Ministry of Education has issued a set of guidelines to municipal education authorities with respect to school dress codes and uniforms, but there has been no explicit statement that headscarves are to be banned completely and to date, municipalities have taken varying approaches to the matter.
Newly-independent Kosovo is one of Europe’s few “Muslim-majority” countries, a fact the Al Jazeera reporter (in the above-linked report) chooses to highlight rather emphatically, perhaps in an attempt to make this story of the definitive-sounding ban sound more newsworthy. While the Al Jazeera report, is correct in calling it an “administrative ban,” the title of the report: “Kosovo orders ban on headscarves in schools” and the content that follows is inaccurate, or rather, narrowly-informed, and ultimately highly misleading.
There exists no unequivocal nation-wide legislation banning the wearing of headscarves in public schools in Kosovo, to date. Yet, the above report (at least) starts off with: “Kosovo is one of Europe’s majority Muslim countries, but now an administrative order has been issued banning the wearing of headscarves in schools.” And within this particular, over-dramatized broadcast, the interviews, both with Njomza’s mother as well as her principal refer, in some way, to the “illegality” of the headscarf in Kosovo.
The callous reporting of this issue is problematic for several reasons. It unwittingly creates a false impression of what the law is on what may or may not be worn in public schools in Kosovo, unfairly shaping public opinion on a vital public interest issue of persistent concern in Kosovo in recent years, to the extent that many people have come to believe that the headscarf is in fact illegal in state-run schools in Kosovo. Yet the issue is far from settled politically and legally, in Kosovo.
The Jashari case is not the first its kind in Kosovo, and will not likely be the last. And this is because there is no clear law banning headscarves in Kosovo public schools. It is also not the first instance of this kind of reporting on the issue in the Kosovo context. In 2010 and 2011, similar reporting (see: “Kosovo Says No to the Headscarf in Public Schools;” “Kosovo parliament confirms ban on religion in schools”) surfaced after Kosovo’s National Assembly voted against two proposed amendments to the country’s law on pre-university education, including an attempt to allow religious education in public schools, as well as an amendment that sought to “prohibit discrimination against Muslims in school” (see: “Kosovo Bans Islamic Headscarf and Religious Instruction in Public Schools” – which was viewed as a measure in favor of wearing of the headscarf in public schools).
At the time, these failed amendments were again taken by many, and portrayed in several media reports, as being conclusive of the issue of wearing of the hijab in Kosovo’s public schools. However, as those trained in law-making and public policy (which in many countries is never the majority of civil society) know, those failed proposed amendments did not represent a categorical nation-wide ban on students wearing headscarves in public schools. Through the national Law on Education in Municipalities and the Law on Pre-University Education in Kosovo, there is a chain of delegated authority by which dress codes in public schools are set:
- The Ministry of Education, Science and Technology (MEST) delegates certain authority to Municipalities across Kosovo to issue ‘sub-legal’ administrative instructions, or directives, to governing boards of local schools, regarding many aspects of the provision of pre-university public education, provided these are in compliance with the afore-mentioned and other applicable laws enacted by the National Assembly.
- The governing boards of local schools (comprised of parents, teachers and Municipality-nominated stakeholders) in turn may set rules including dress codes and other codes of conduct for pupils, but ultimately these rules must be approved of by the Municipalities, which, as stated above, must follow applicable and prescribed laws enacted by the National Assembly.
- Parents have a right to contest these administrative decisions of Municipalities with respect to the school board rules they approve of or not, and may appeal first to the mayor in the Municipality, and then to the MEST itself, which has the final say on these administrative matters.
Thus the administrative directives issued by respective Municipalities across Kosovo do not apply nationally, but must respect the authority of Kosovo’s National Assembly as the ultimate body to set standards regarding the country’s laws on education. According to the national Law on Pre-University Education, pupils “shall be obliged to wear the school uniform,” but in reality this has produced mixed results as administrative decisions have varied across Kosovo’s Municipalities as to whether the headscarf infringes or not the uniform dress codes set by the respective local school boards. So without any clear national law explicitly banning the headscarf at all public schools, this issue remains unresolved and contestable, and cases like Jashari’s keep cropping up from time to time.
The Jashari case comes on the heels of some other high profile court cases. According to Article 38 of the Kosovo Constitution, any limitations to religious rights and freedoms in the public sphere must be “prescribed by law.” Yet no such law clearly exists specifically on the wearing of the headscarf in public schools in Kosovo.
To date, one major case related to the issue of the headscarf in public schools has been referred to the country’s Constitutional Court. In November 2009, student Arjeta Halimi won the right to wear the headscarf to school, when the District Court in Gjilan obligated her Municipality of Vitia’s Education Department to allow her to attend classes wearing her headscarf. That judgment, however, was never executed, so in 2011, Halimi took her case to Kosovo’s Constitutional Court. The Constitutional Court found that Halimi had not exhausted all effective legal remedies before referring the matter to the Constitutional Court, as she had not asked the Municipal Court in Vitia to execute the District Court’s judgment, so it deemed her case inadmissible. But while Halimi’s case dealt with the question of the constitutionality of non-execution of the District Court judgment (allowing her to wear the headscarf at her school) by her Municipality, and thus only with the consequential alleged violation of her Constitutionally-guaranteed rights to: equality before the law (Article 24), to religious freedom (Article 38), and to education (Article 47); it still did not deal directly with the question of the constitutionality of wearing of the headscarf in public schools.
Interestingly enough, upon making its determination of inadmissibility in the Halimi case, the Court nevertheless chose to make a related side pronouncement, briefly indicating how it would likely determine any future referral on the question of the constitutionality of the wearing of the headscarf in Kosovo’s public schools. It basically hinted that it would likely find the wearing of the headscarf in public schools in Kosovo to be unconstitutional; and largely on the basis of Article 8 of its Constitution, which defines Kosovo as a “secular” state. To bolster its argument, the Court alluded to precedents from the European Court of Human Rights jurisprudence (which it is bound by Article 53 of Kosovo’s Constitution to consider), in particular to the prominent case of Dogru v. France (2008) dealing with the wearing of the headscarf in public educational institutions in France. Through reference to this case, it argued implicitly that it is the “French secular model” of dealing with religious rights and freedoms in the public education system of a plural society that would be the appropriate one for Kosovo’s particular democratic identity.
But the Court’s side pronouncement is non-comprehensive and, arguably, hardly nuanced in terms of all the relevant case law it could have canvassed, or all factors relevant to the Kosovo context it could have considered. The issue of the kind of governing model of secularism that would be relevant and appropriate for Kosovo is also much too important to be decided in such a narrow treatment. It is hard to say how much relevance or weight this pronouncement would actually hold in future referrals to the Court on this issue. And even if the Court has hinted at how it might rule normatively on it, the question of the constitutionality of banning the headscarf nation-wide has still not been referred directly to the Court and is thus not yet decided in Kosovo.
In any event, in a healthy democracy the citizens of Kosovo would definitely want to have a more legitimate say in the matter. Yet even the wake of the determination and the Court’s views in the Halimi case, the media and public opinion, especially in Kosovo, seemed to be of the impression that the banning of the headscarf in public schools was settled law. This again underscores the need for more responsible and unbiased reporting.
The local and international media’s unofficial politicized role as shaper of public perceptions about this important human rights issue cannot be underestimated. What kind of message does premature and sensationalistic reporting (of the kind above) send to the uninitiated, or to young female Muslim students in Kosovo who may want to wear the headscarf to school and practice their faith in public? That they will face strict legal censures, aside from social discrimination, and that it’s futile and hopeless to fight for their religious rights and freedoms, as well as their right to an education, because the case is already closed on these complex intersecting rights issues?
At a time when ethnic tensions remain in the region, and alignment with the EU (not to mention the remote possibility of EU membership) and economic concerns still dominate public policy discourse in Kosovo, this issue of the place of the headscarf (and of religion in general) in Kosovo’s public schools, keeps surfacing. This is because it is a vital public interest issue that goes to the heart of Kosovo’s emerging national democratic identity. It is one that must be discussed openly in a peaceful and constructive manner. It is high time such discussion and debate take place in all segments of Kosovo society, and include the voices of those directly affected by it – namely young female students who want to be able to wear the headscarf as an expression of their religious beliefs and still pursue their right to a public education. The debate is far from over. The case far from closed. And this is really the story media outlets around the world must start to tell.
Copyright © Asifa Akbar 2013 All Rights Reserved. No part of this document may be reproduced without written consent from the author.