Hijab in Azerbaijani schools

by Subhan Talibli

1. Introduction

We know that in some secular states, barriers to the wearing of the hijab in some workplaces, official institutions, universities and schools provoke the protests of believers. In this article, we will touch upon the issue of wearing the hijab in schools in Azerbaijan. According to Article 1 of the Law of the Republic of Azerbaijan on Freedom of Religion or Belief (hereinafter - FoRB), parents or guardians may bring up their children in accordance with their religious beliefs and views. As well as this according to Article 48 of the Constitution of the Republic of Azerbaijan (hereinafter - CRA) ("Freedom of Conscience"), everyone has the right to freedom of conscience and to believe or not to believe in any religion, to worship any religion individually or in association with others, has the right to express and propagate his beliefs. It is considered that children wear the hijab to express their religious beliefs based on the religion in which they were brought up by their parents.

2. The situation regarding wearing of hijab in Azerbaijani schools

Problems with the wearing of the hijab in educational institutions, especially at schools in Azerbaijan, have begun to appear in recent years. It should be noted that a similar issue has been the subject of discussion for many groups (political, legal) in Europe for more than 30 years. Due to the lack of a general (common) position in this regard, in order to analyze the current problems (current situation), the resulting legislation (both local and international conventions (treaties) to which Azerbaijan is a party, etc.) correctly, international experience (mostly Europe) on the same topic should be studied and considered.

Among the problems related to the wearing of the hijab in Azerbaijani schools, the most memorable were the events of 2010-2012. As the new school year began in 2010, various media outlets reported that the Ministry of Education had imposed a ban on students wearing hijab at schools. Former Minister of Education Misir Mardanov "triggered" the issue on this eve. Thus, in a statement to the media, ex-minister Misir Mardanov said the following words, which will later lead to heated discussions, signature collection campaigns, and even protests in many parts of the country: “What does it mean for a sixteen-year-old girl to sit in class wearing hijab? Outside the classroom, anyone can wear whatever they want. But the class has its own rules. I do not see anything irrelevant about this. This is not a leaving Islam. Each of us accepts our God, and the Holy Quran is our holy book. We must follow other beliefs of the religion. It is not against Islam to follow the rules of high school” – he had mentioned.[1] In another speech, the ex-minister had stated: “There is such a phrase in the law on education. Students must come to school in the prescribed form. Girls should not go to school as covered. She can go home, walk on the street, participate in other events in any form she desires. We have decided that Azerbaijan is a secular state. Religion is separate from the state in Azerbaijan. We think that covering the hair of a school-age child, who is 16 is not compatible with secularism. And we forbade them to come to school wearing hijabs."[2]

At the state level (legislation) in Azerbaijan, no religion is officially preferred and there are various religious denominations in the country.[3] However, according to statistics, the most widespread religion in Azerbaijan is Islam (more than 95% of the population is Muslim)[4],[5],[6]. Given these facts, it was easy to imagine that the ex-minister's these words and the ban on the hijab in various places would provoke serious protests of the Muslim Majority, which covers most of the population. Thus, the ban on the hijab at that time resulted in protests in various regions of Azerbaijan. The "Islamic Party of Azerbaijan" and the "Welfare Civil Movement" also took part in the actions. The actions were held in the capital Baku, as well as in various cities, including Ganja, Masalli, Lankaran and others.[7],[8] The most crowded rally was held in front of the Ministry of Education on May 6, 2011, in Baku.[9] Another protest "Freedom for hijab" was held on October 5, 2012.[10]

 

As usual, all these protests were dispersed by the police, many participants were administratively contested, and some were even prosecuted under criminal law. Those convicted with different crimes, were considered as the prisoners of conscience by the different international organizations.[11],[12],[13]

Problems that lead to discussions about the hijab in Azerbaijani schools occasionally arise and are covered in the press. Thus, in 2015, the administration of school No. 104 located in Garachukhur settlement, Surakhani district, Baku, did not allow a student wearing a hijab to school.[14]

In the same year, a student studying at school-lyceum No. 49 in the Bayil settlement of Baku was also banned from entering the school because she wore a hijab. In 2018, the administration of school No. 85 in the Surakhani district of Baku issued instructions prohibiting the students wearing hijab from entering the school. One of the most resonant events took place in 2021. Thus, the administration of school No. 1 in the village of Novkhani in Baku forcibly removed the headscarves of students who came to school and threw their headscarves on the ground, telling them that they could enter the school only without hijabs and the parents of these students were told, "This place is not for you hijab wearers, you should all be deported to Iran."[15] Similar problems have appeared time after time in different regions of Azerbaijan.[16],[17]

On July 4, 2011, on the initiative of Ilgar Ibrahimoglu, chairman of CPRBF (Center for the Protection of Religious Beliefs and Freedoms), a process was launched to collect 100,000 signatures to address an appeal to President Ilham Aliyev to solve the hijab problem at secondary schools. On July 27, Ilgar Ibrahimoglu said that 100,000 signatures had already been collected.[18],[19],[20]

 

[1] Misir Mardanov: "It is not normal for schoolgirls to wear hijab in class." https://lent.az/xeber/social/-50393 

[2] Misir Mardanov: "Hijab is banned"

https://web.archive.org/web/20140831173449/http://zeka.az/1208-misir-mjrdanov-hicab-qadadanddr-dedi.html

[3] Religion in Azerbaijan: Presidential Library of the Office of the President of the Republic of Azerbaijan. https://files.preslib.az/projects/remz/pdf/atr_din.pdf

[4] Tolerance. https://multiculturalism.preslib.az/az_a4.html

[5]Azerbaijan Population 2021 (Live). https://worldpopulationreview.com/countries/azerbaijan-population

[6] Azerbaijan Religious Demography: Affiliation. http://www.globalreligiousfutures.org/countries/azerbaijan#/?affiliations_religion_id=0&affiliations_year=2010&region_name=All%20Countries&restrictions_year=2016

[7] News about hijab problem. https://web.archive.org/web/20101228235152/http:/birlik.az/gundem/hicab-problemi-ile-bagli-xeberler.html

[8] Protest against the hijab ban in Masalli. https://www.bbc.com/azeri/news/story/2010/12/101215_hicab

[9] Another "hijab" rally in Baku. https://modern.az/az/news/13602

[10] Bloody "hijab rally" in front of the Ministry of Education. https://modern.az/az/news/29526

[11] Hijab prisoners had the last word. The verdict will be read. https://www.islamtimes.org/az/news/254493/hicab-m%C9%99hbuslar%C4%B1-son-s%C3%B6z-dedi-h%C3%B6km-oxunacaq

[12] Hijab prisoners will be sentenced today. https://www.islamtimes.org/az/news/256746/bu-g%C3%BCn-hicab-m%C9%99hbuslar%C4%B1na-h%C3%B6km-oxunacaq

[13] "Hijab prisoners" have been sentenced. https://musavat.com/news/son-xeber/Hicab-mehbuslari-haqqinda-hokm-cixarilib_152253.html

[14] Secondary school principal and security guard attacked journalists in Baku. https://interaztv.com/society/40825

[15] Statement from the principal who forcibly removed the student's hijab and threw it on the ground. https://tehsil.biz/news/az/5139/agirdin-hicabn-zorla-bandan-aaraq-yer-atan-direktordan-AIQLAMA

[16] Hijab ban in Barda school: "Come to school in uniform." https://azedu.az/az/news/19998-berde-mektebinde-hicab-qadagasi-mektebe-forma-ile-gelin-

[17] Students wearing hijabs were not allowed to take the exam in Jalilabad. http://deyerler.org/75865-hicab.html

[18] Is "100,000 signatures" a belated step? https://web.archive.org/web/20110823060530/http://www.haqyolu.com/author_articles/view/402

[19] "100 000 signatures" in Sumgayit. https://www.islamtimes.org/az/news/82980/100-min-imza-sumqay%C4%B1tda

[20] By the grace of God Almighty, 100,000 signatures were collected! Signature collection continues.  http://deyerler.org/95840-uca-allahdn-lgtfg-ilj-100-min-imza-toplandldd-dmzatoplama-davam-edir.html

3. Legislation on wearing hijab in Azerbaijani schools

As can be seen, the problem of hijab bans at school occurs at different times and in different places in Azerbaijan, and the above-mentioned events are an example of this. Such problems immediately become a topic of discussion in society. The most important point in this discussion is the position of the legislation on the current problem. To analyse this issue from the legislative point of view, it is necessary to pay attention to the regulations on the right to education and freedom of conscience.

CRA has the highest legal force among all normative acts in our country. Article 42 of the CRA, entitled "Right to Education", states that every citizen has the right to education, and this right is provided by the state in the form of free compulsory general secondary education (education at school), ie the state is obliged to provide such education to citizens. Article 48 of the CRA, entitled "Freedom of Conscience", stated that everyone has the right to freedom of conscience and to determine his or her attitude to religion independently, to worship any religion individually or in association with others, or not to worship any religion, everyone has the right to express and propagate their beliefs.[1] It is clear from these articles that everyone has the right to choose the religion they want. According to Article 1 of the FoRB, parents or guardians may, by mutual consent, raise their children in accordance with their religious beliefs and views.[2]

Thus, it is clear from the above articles of the CRA and the relevant laws that the relevant education of the people is provided by the state and the people choose their religion. According to Article 25 of the CRA entitled "The Right to Equality", it is prohibited to restrict an individual's rights and freedoms on the basis of race, ethnicity, religion, language, sex, origin, belief, political or social affiliation. Also, Article 5.2 of the Law of the Republic of Azerbaijan “On Education”, based on the relevant articles of the CRA, declares that regardless of gender, race, language, religion, political beliefs, ethnicity, social status, origin, health conditions, the state guarantees every citizen to have the opportunity to get an education without any discrimination.[3]

Speaking about the legislation on the wearing of hijab in Azerbaijani schools it is necessary to pay special attention to the changes made to the FoRB in 2021. By this amendment, several additions have been made to the norm regulating the religious education of the children given by parents. According to the Amendment to Article 1 of the Law on FoRB, forcing children to worship a religion is prohibited and that their religious upbringing should not adversely affect their physical and mental health. It is clear that such a wording of the law is open for misuse by official authorities. How will this change in the law manifest itself in the future? For now, only time will show the answer to this question. Before the pandemic, the practice of letting hijab in the schools mostly depended from the directors of the school. Right now, the pandemic and online classes don’t let us to understand how the law will be implemented.   

At the moment, only by considering the assumptions, we can only guess what steps the state wants to take with this project. It can be assumed that the state intends to reduce the level of wearing headscarves in schools with these norms in most cases. That is, with the help of psychologists, in most cases, it will be possible to establish the fact that a child wears the hijab because his parents forced her to do so, or it has a negative impact on her physical and mental health. Thus, the government may intend to reduce the precedent for wearing the hijab in schools. But there will be some obstacles. First of all, the issue of proving this under this law must pass very difficult tests. That is, not only with the opinion of a psychologist will be decisive. Extensive research will be needed to conclude whether a child wears the hijab because she is forced to do so or because she really wants to. Another obstacle is that psychologist will not be able to come to this conclusion for everyone, and there will be some examples where a child will state that she wears hijab voluntarily. In this case, there will be no normative basis to actually prevent her from wearing the hijab. Based on this, we believe that only time will tell how this relevant modification to the FoRB will affect the issue of "hijab at schools" and what it actually contains (or what is behind it).

As can be seen, there are no explicit norms in Azerbaijani legislation regarding the ban on hijabs at schools. But what are the regulations on mandatory uniforms, and is it possible to think that their style excludes the hijab? However, when there is a hijab problem in various schools, the Ministry of Education staff refers to specific acts while commenting on these issues and states that the solution to the problem belongs directly to the schools themselves. The Resolution of the Cabinet of Ministers of the Republic of Azerbaijan on the approval of the "Model Charter of a secondary school" states that the uniform of students in secondary schools is determined by the charter of each school. Employees of the Ministry of Education have so far referred to the relevant act, noting that the solution to the problem does not belong to the ministry.[4] Research shows that if there were such regulations, there were no restrictions on them (related to the hijab). At the beginning of 2020, interesting modifications were made in the legislation in this field. Thus, the relevant norm of the above-mentioned act of the Cabinet of Ministers stated that the uniform of students in secondary schools is determined in accordance with Article 12.13 of the Law of the Republic of Azerbaijan "On General Education." (hereinafter OGE).[5] And Article 12.13 of the OGE states that uniforms for students of public general education institutions, the descriptions of which are determined by the Cabinet of Ministers are applied.[6] Thus, according to this change, the decision on uniforms at schools will be made by the Cabinet of Ministers, not by each school. The Cabinet of Ministers has not yet adopted an act on this, but the Ministry of Education began to study public opinion, which will determine the descriptions of students' uniforms in early 2020[7] and had already published relevant clothing samples[8]. It is true that the published examples cover standard clothing, and the main text of the decision has not yet been published. The public can only hope that the new decision will reflect specific norms (allowing or prohibiting) the hijab. But it is not concrete as well, ie the state can keep this issue open without touching on the new act.

Here we should note that during last years in cases when the school directors prevented girls wearing hijab from entering the schools, some public activists run blaming campaign against those directors.

Relevant norms on the right to education and freedom of conscience in the CRA are in accordance with international agreements (conventions, pacts) to which Azerbaijan is a party. Thus, according to the Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to freedom of thought, conscience and religion; this right includes the freedom to change one's religion or belief, the freedom to worship one's religion or beliefs alone or in association with others, and the freedom to perform one's worship, teachings, religious or ceremonial rituals in public or in private. The right to education article of the relevant convention states that no person's right to education may be waived and while performing its duties in the field of education and training, the state respects the right of parents to education and training in accordance with their religious and philosophical views.[9] The International Covenant on Civil and Political Rights states that everyone has the right to freedom of thought, conscience and religion and he or she has the right to choose the religion or belief and has the right to practice his or her religion. It includes the freedom to believe, to worship, to perform religious and ceremonial rites and to teach, both alone and in association with others, States Parties to the present Covenant undertake to respect the freedom of parents and legal guardians to provide their children with religious and moral education according to their beliefs in legal circumstances.[10]

 

[1] The Constitution of the Republic of Azerbaijan. http://www.e-qanun.az/framework/897

[2] Law of the Republic of Azerbaijan on Freedom of Religion. http://www.e-qanun.az/framework/7649

[3] Law of the Republic of Azerbaijan on Education. http://www.e-qanun.az/framework/18343

[4] There is no hijab ban in Azerbaijani schools, but... https://musavat.com/news/azerbaycan-mekteblerinde-hicab-qadagasi-yoxdur-amma_484759.html

[5] Decision of the Cabinet of Ministers of the Republic of Azerbaijan on approval of the “Model Charter of a general education school”. http://www.e-qanun.az/framework/21148

[6] Law of the Republic of Azerbaijan on general education. http://www.e-qanun.az/framework/42543

[7] Public opinion on school uniform patterns is being studied. https://edu.gov.az/az/news-and-updates/17864

[8] Appendix to “Descriptions of uniforms of students of state general education institutions” 1. Samples of uniforms of students. https://edu.gov.az/upload/file/xeber/2020/01/geyim-formasi.pdf

[9] Convention for the Protection of Human Rights and Fundamental Freedoms. http://www.e-qanun.az/framework/1405

[10] International Covenant on Civil and Political Rights. https://www.migration.gov.az/content/pdf/5acb034968016_M%C3%BClki%20v%C9%99%20siyasi%20h%C3%BCquqlar%20haqq%C4%B1nda%20Pakt.pdf

4. Islamic dress in schools of European Countries - Current situation

Now let's have a look at the issue of schools and hijab in other countries, especially in Europe, of which Azerbaijan is a political and economic member as well. In most Western European countries, the ban on wearing the hijab in schools applies mainly to primary and secondary schools. As an interesting point, France can be mentioned. Thus, according to the law adopted in France on March 15, 2004, the use of religious clothing in all schools (primary, secondary, etc.) is prohibited.[1] However, this law does not apply to public universities. It should also be noted that the law added a new article (L 141-5-1) to the French Code of Conduct, which states that “students in state-owned primary and secondary schools are prohibited from using attributes and clothing that openly express their religious affiliation. This law applies not only to the hijabs in Islam, but also to the kippahs (traditional Jewish headdresses) and to the oversized crosses, and it is considered that these attributes clearly indicate the religious affiliation of its owner.[2]

There are no general rules in Belgium prohibiting the wearing (carrying) of religious symbols. In this country, French and Flemish communities have different rules, but even within the same community, there are no uniform rules. The solution to this issue is left for the schools. Thus, schools can regulate issues related to the wearing of religious symbols in accordance with internal regulations. In the absence of explicit norms prohibiting religious dress, children may wear it to schools, provided that human rights, other people's reputations, national security, public order and public safety, and internal rules are observed.[3]

In Austria, Germany, the Netherlands, Spain, Sweden, Switzerland, and the United Kingdom, education authorities generally allow students to wear the hijab.[4]

Austria does not have specific legislation governing the wearing of the hijab, but it is believed that the ban on wearing the hijab can only be justified if the wearing of the hijab poses a threat to the health or safety of students.

An interesting incident involving the hijab and school took place in 1988 in the United Kingdom. At Altrincham High School, two sisters were allowed to wear the hijab on condition that the colour of the hijab had to match the colour of the school uniform (dark blue at the school) and had to be not fancy.[5]

In Spain, the hijab is often allowed in public schools. There is no direct provision in the law prohibiting the hijab, but schools have the right to adopt local acts regulating school uniforms.

In the Netherlands, Sweden and Finland, there is no norm prohibiting the wearing of the hijab, but the ban applies only to paranjis, as they cover the entire face of students and teachers do not see who they are communicating with. The Equality Commission ruled in 1997 that banning paranji during public school hours was not considered discrimination.

Consequently, it can be concluded that there is no common position on the wearing of hijab in schools in European countries, but the most common approach to solving this problem is that each school should define the issue by its own internal rules. At the same time, it should be noted that the rights of others, national security, public order and public safety must be taken into account.

 

[1] LOI n° 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics (1). https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000000417977?r=eVkA2Este6

[2] Code de l'éducation. https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006524456/#LEGIARTI000006524456

[3] Карташкин В.А. Универсализация прав человека и традиционные ценности человечества // Современное право. — 2012. — № 8.

[4] Абашидзе А.Х., Клишас А.А. Защита прав и свобод человека в соответствии с международно-правовыми стандартами в условиях новых реалий глобализирующегося мира // Вестник Российского университета дружбы народов. Серия «Юридические науки». — 2013. — № 2.

[5] The Hijaab: Twenty years later. https://www.asianimage.co.uk/columnists/5015953.the-hijaab-twenty-years-later/

5. The ECHR's position on the wearing hijab in schools

While speaking about School and hijab, the ECHR's position on the wearing of hijab in schools, the decision of the European Court of Human Rights in the case of "Leyla Sahin v. Turkey" (2005) should also be noted. It is true that the complainant was not allowed to enter the University campus for wearing hijab in this decision, but while analysing the decision, it can be concluded that the ECHR has studied the relevant topic in detail and its results can be applied to schools by analogy.

In this popular case, which has sparked heated debate in European academic, social and political circles, the ECHR had to determine whether the interference of the University on a student in Turkey with freedom of expression was in accordance with the Convention. The court finds that the Turkish state has the freedom to manoeuvre in relation to hijab and that the interference is clearly known to the applicant from the experience of the Constitutional Court. The court then examines the last and third condition, that is, whether this intervention of the Turkish state is necessary for Turkish society. Based on the experience of the Turkish Constitutional Court, the court declares the application of the university's dress code acceptable, given that Turkey's historical development and the importance of secularism in society, pluralism, respect for the rights of others, especially equality between men and women before the law are widely taught and applied (16 votes in favour, 1 against). In other words, under this decision, even a ban on such a headscarf at a university may be in accordance with the Convention.[1]

 

[1] Freedom of thought, conscience and religion. http://www.anl.az/down/meqale/xalqcebhesi/2014/mart/356262.htm

6. Conclusion

An analysis of the current situation suggests that there is no clear position on the issue of wearing the hijab in schools. This issue is regulated in different ways even in European countries with a large legal framework and tradition. Azerbaijani legislation does not explicitly impose a ban on the wearing of the hijab in schools, but events suggest that gaps (due to a lack of regulation) sometimes lead to widespread resonance problems. Sometimes the attitude of government officials through the issue, and sometimes the attitude of individuals at the leadership level in individual schools toward this issue causes local resonance and even large-scale protests. Almost every year, the relevant problem that arises in some schools in Azerbaijan is covered in the media. Although the state has taken steps to close the gaps and eliminate the confusion in the past period at the legislative level and to improve the regulations over school uniforms, the lack of determination has left the problem unsettled and frozen for some time.

We believe that the traditional problems related to this issue will continue as always. In order to solve the problem unequivocally, the state must regulate the existing public relations, expressing its will at the legislative level. It is true that the lack of regulatory methods is also due to objective reasons. The lack of regulatory methods for a long time suggests that the state itself is indecisive in this matter and wants to take a deliberate step that does not violate the rights of any party, the principle of secularism, and the right to freedom of conscience and education. But in any case, having a good or bad method of regulation is better than having no methods of regulation and uncertainty.