A Certain Lack of Empathy

The 29 June European Court of Human Rights (ECtHR) judgment in Leyla Sahin v Turkey Court was disappointing for Human Rights Watch, but much more disappointing for the thousands of women who face the choice of being denied higher education under Turkey's headscarf ban, or having to go through higher education dressed in a manner that offends their conscience. They may feel rather badly let down by the human rights machinery.

Most judgments of the ECtHR are enjoyable to read. You get a sense of genuine illumination as you follow the judges are wrestling courageously with the facts in order to uncover the facts and principles underlying the dispute between a citizen and the state. That is not true of this judgment, or the other decisions relating to the headscarf question such as Dahlab v Switzerland or Bulut v Turkey.

The contradictions of the verdict

It is not just that we are unhappy that the judgment did not go in the direction we hoped. Reading yesterday's judgment, one is struck by the judges' reluctance to really tease out the issues, their too ready willingness to accept the government's assertions, and the presence of some rather glaring internal contradictions.

In summary, the judgment states the following:

1. The headscarf ban protects the rights and freedoms of others by ensuring that students who wear the headscarf do not coerce women who do not, and thus protects the rights of women within a largely Muslim context and encourages pluralism.

2. The headscarf ban is necessary in order to protect the principle of secularism, that is, Turkey's ordre public, which guarantees democratic values, the inviolability of freedom of religion and the equality of citizens before the law.

3. There are comparable arrangements elsewhere within Europe, the jurisdiction of the court.

Each of these assertions begs questions that the judgment fails to explore or answer. Let us first look at the risk of coercion: this judgment cites Dahlab v Switzerland, in which the court held that a pre-school teacher wearing a headscarf might subject very young children to undue influence.

Even if one were to accept that to be true, the case is quite different for adults in a university setting who are in a position to make their own choices, and to apply for legal remedies if confronted with intimidation.

To Human Rights Watch's knowledge, coercion was not a problem at a time when the headscarf was unofficially tolerated in the universities – a local fact which the ECtHR should have considered before upholding a severe government restriction.

If the state holds that headscarf coercion is a dangerous hazard in universities, will it be seeking to extend the ban to protect the rights of women at large?

Is debarring a particular section of womankind from education the best way to protect women's rights, and does a measure that discriminates against women of particular religious beliefs really encourage pluralism?

Secularism as a protector of religious freedom?

Secondly, we can examine the judgment's unqualified acceptance of secularism as a "paramount consideration." The judgment adopts the Turkish Constitutional Court's definition of secularism as an arrangement that protects the individual from external pressure on matters of religion by upholding the principles of freedom of religion and equality before the law.

It is difficult to see how the court can rely so strongly on the principle of secularism, when the U.N. special rapporteur on the elimination of all forms of religious intolerance, in his 2001 report on Turkey, strongly questioned the Turkish Republic's view of itself as a secular state, stating that the Directorate of Religious Affairs wields "excessive powers of religious management such that religious practice appears to be regimented by the government and Islam is treated as if it were a 'State affair.'"

The judgment draws the conclusion that this abstract principle of secularism must take priority over the rights, future and welfare of an individual (one of thousands of other individuals in the same position) without examining whether recognizing the individual's right to dress as she chooses might protect women's rights and pluralism more effectively.

Turkey: More European than Europe?

Thirdly, the judgment looks at practices elsewhere in Europe, but fails to state the most obvious fact – that although it upholds the Turkish state's position that the headscarf ban is "necessary in a democratic society," no other Council of Europe country has an across-the-board ban on the headscarf in universities.

Some commentators have suggested that this approach is Islamophobic. We do not have to go so far as that to say that the Sahin decision badly failed women who wear the headscarf and are excluded from public life. It failed them because it does not explain clearly and convincingly why it was necessary for the protection of others' freedoms, and leaves this ban as arbitrary as it has always been.

It may not be much consolation to those women who feel let down by this judgment, but they should know that this is rather typical of the ECtHR's conservatism on article 9 of the convention which deals with freedom of religion. Article 9 judgments have generally been cautious and deferential to the government's position.

Little experience and knowledge of the court

In the case of Turkey, the court was presumably more tempted than ever to take this approach, since it was dealing with a context of which it had very little experience and knowledge, no instinctive feel.

A commentator on the court's performance on Article 9 has said: "History-and sadly, very recent history at that - shows that differences in religious belief are a potent source of conflict and bloodshed.

Thus, while most would agree with the Court's view … that in circumstances of religious tension governments should work to promote pluralism and "ensure tolerance between the rival factions" it may frequently be the case that allowing one person complete freedom to manifest his religion or belief would be to impinge – sometimes with dangerous consequences – on the rights of others.

It would therefore be understandable if, in dramatic cases, the Court were to allow a wide margin of appreciation to place restrictions of the freedom to manifest religion or belief.

However, it is in the more mundane cases – the teacher who wishes to wear the Islamic veil to school, the children whose Jehovah's Witness parents do not wish them to attend a militaristic parade – that the Court has demonstrated a certain lack of empathy for the believer, and has appeared only to pay lip-service to the commitment to religious freedom…" (The European Convention on Human Rights, Jacobs & White.)

A philosophy of despair

The court's judgment reflects the same fears expressed by those who support the headscarf ban: that recognizing the rights of devout Muslims threatens the rights of atheists. This zero-sum mathematics is a philosophy of despair.

But Turkish society is moving ahead of this, in the day-to-day tolerance of difference that you can see every day on the street, and in the solidarity shown in civil society organizations with organizations with a largely Muslim people membership standing up for non-Muslim rights (as Mazlum-Der has done), and organizations with a largely secular membership standing up for right to wear the headscarf (as the Turkish Human Rights Association has done).

I hope that Leyla Sahin's lawyers successfully appeal to the Grand Chamber, and that we all have a better opportunity then to communicate this reality of the situation in Turkey. It is surely something the contemporary world needs to hear about.

Jonathan Sugden

© Jonathan Sugden 2004

Jonathan Sugden works as a researcher for the Europe and Central Asia Division of Human Rights Watch.

This article was previously published in Zaman, 17 July 2004.

Human Rights Watch
European Court of Human Rights
Zaman – Turkish Daily