The right to wear hijab, versus the right to school uniform



The Guardian- Law

A constitutional lawyer, Mr. Sebastine Hon (SAN) blamed Osun state governor for the impasse. According to him, he (governor) started it all by merging the schools. Citing the constitution, he said: “Section 38 subsection 3 of the constitutions says that no religious community or denomination shall be prevented from providing religious instructions for pupils of that community or denomination in any place of education maintained wholly by that community or denomination”.

So if he had allowed the Christian schools to be maintained by the Christians and the Muslim schools to be maintained by Muslims, this issue would not have arisen. Each school would have to teach the students moral lessons which include mode of dressing. I think he can undo that, it is not late. It is statesmanly for him to do that than to allow the situation to degenerate further. Having said that, wearing of Hijab or Niqab by female muslims have been subject of judicial interpretations by various courts in United States of America, Canada and European Court of Human Rights.”

He explained that an aggregation of those decisions showed that a lot of considerations are taken into account. “For instance, the right of others to coexist with female Muslims without security threats. In July 1, 2014, a European Human Rights Court gave a decision where in France, Muslim women where banned from wearing Niqab and a Muslim woman challenged the decision in that court that it amounts to infringement on her European convention rights. The court held that the lady could not prove the breach of her freedom of association. She also could not prove discrimination. Therefore, the prayers were refused”, he stated.

He further added that wearing of hijab in public places is not unconstitutional but can be regulated when security concerns are raised. “So, we have to strike a balance. When it is for public safety and security, it can be banned. If it is not, it cannot be banned. In United States of America, a private organization refused to employ Muslim women because she is wearing hijab. She filed a suit. On the 1st October 2013, a 10 circuit of the court of appeal held that such action was unconstitutional. Then, the private organization appealed to the Supreme Court and in 2015, the US Supreme Court affirmed the decision of the court of appeal.

“In Canada, in the case of R against NS, a female Muslim was a victim of sexual assault. The question was whether she could wear a Niqab and enter into the witness box. Objection was taken against her entering into the witness box under that regalia. The supreme court of Canada also took a major course. It respected the importance of religious practices and said that the degree of the state interference with that practice in the court room should be measured.

It also considered the broader society harms such as disparaging hijab wearing women from participating in a justice system. It also considered the nature of the case and the liberty of the accused and the evidence of the Niqab wearing women. As a general rule, it concluded that no witness shall wear a Niqab to a witness box and therefore said that there should be a balance between the right to fair hearing and that the judges needs to see the face of the person to be able to determine her demeanor.

“So the judges should use their discretion properly at every given time. Wearing of hijab is protected. However, it can be restricted under certain circumstances under section 45 of the constitution. For instance, when it will create security risk. Secondly, it is not good to expose school children of that age into conflict based on religion. To this end, I will say that what is happening in Osun state does not enjoy my support and I believe that the governor has the power to stop it before it generates into more serious problem”, he declared.
Speaking further, Hon said: “The decision of the state high court is constitutional. If you look at section 38 (1) what is protected is freedom of thought, conscience and religion. So if a Muslim considers it unconscionable to expose herself – that is her religion. My problem is that the way it has been managed has exposed the situation to crisis level. If the state government does not come in to tackle the situation, the state house of assembly can make a law pursuant to section 45 of the constitution barring wearing of certain clothes to school at that age, especially when school authorities have stipulated a certain uniform for students. it will now be a law made in a democratic society for the peace and order of the society. As it is now, the situation is already tensed up, so they should act fast.”

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