According to an Albanian Law Student,
During my first year at University, I have discovered that the most interesting cases are those in which opposing interests, rights, freedoms or desires collide with each-other, in order to bring about a conflict which must be resolved based on stable principles or other circumstances.
The last month, I have paid great attention to an important discussion in Kosovo, regarding the removal of the ban on the Islamic headscarf in schools. This case has been frequently dealt with by the European Court of Human Rights, where prohibitions of this nature are mainly put in place because of religious neutrality public institutions must display. As per today, Kosovo is one of the few countries with a Muslim majority, in which Islamic headscarves are legally banned in schools (by Administrative Act of the Ministry of Education). Such act, has provoked numerous protests not only by the Islamic Community Council, but by a large number of Muslim believers as well, since its invocation in 2010. Formal reasons for this decision include a compliance with the Constitution of 2008, which declares Kosovo a unilateral country. Nevertheless, I believe that this provision may have been put in place in order to present Kosovo as a “westward-looking country”, which seems like an artificial synonym to what some may call “European values”. In reality, freedom of religion, and liberty from arbitrary intrusion in one’s private life must prevail over any perception of a preferred political- or even cultural- direction.
In Turkey, such prohibition was in power until 2010 , when it was estimated that at least 60% of Turkish women cover their heads. Massive protests have also been provoked in Azerbaijan, where a ban of this sort (which has no clear legal support) is still in place. Tunisia is the latest country to ban full-face veils in all public institutions (including schools), after two suicide bombings rocked their capital in 2019.
Subjects like these are a prime example of how in certain cases, Law “makes a pact” with Politics. By this, I do not mean pacts which include solutions of everyday electoral conflicts, but rather a constructive political direction a country is taking through its measures. It is interesting how in the Albanian language, there isn’t a separate word to distinguish “politics” from “policies”. Can this be an indicator of how conflictual our everyday social life is? This must be thoroughly analyzed using etymological methods, though it is not what I will be writing about today.
European integration is one of Kosovo’s most important goals. Referring to ECHR precedents (which I will be specifically analyzing later), I consider this regulation as a false, maybe even meaningless result political pressure has on law. This is one of the few things I dislike about my field: legal systems are often doomed to experience a useless direction identity politics gives them formally. Ultimately, I believe a ban of this sort is a considerable problem to an important aspect of a free, democratic society: the right of education and the right of parents for their children to be educated according to their own philosophical and religious beliefs; more importantly, when it is also considered that Kosovo is a Muslim-majority country. In Tunisia, for example, the situation is even more oxymoronic: even though the official religion is Islam, a regulation of this sort is still in place.
Sociological jurisprudence is one of the most well-known legal philosophical fields of the 19th century. Its founder, Friedrich Carl von Savigny, argued that law is a natural response to historical, political and social processes of this sort in individual countries . “Foreign intrusions” to these processes should be considered as denaturalized contributors to our concept of law, and must be therefore avoided. That being said, I do not insist that local systems of law should be completely independent of international standards. Instead, I believe that a certain protection of national characteristics should take place against temporary political processes.
Luan Omari, a distinguished Albanian professor and lawyer, in his book “About yesterday’s and today’s Kosovo: (a legal-constitutional perspective)” (“Për Kosovën e djeshme dhe të sotme: (vështrim Juridik-Kushtetues)” , clearly sets out some of the main causes of the Albanian genocide in Kosovo: it seems, that Islam was almost always used to justify the horrendous actions that the Serbian (ex-Yugoslavian) state undertook in Kosovo, as a cause of the inability of Albanians to integrate in the European society. Even etymologically, Albanians in Kosovo have been regarded as “skiptari”, distinguishing them from Albanians in other regions, called “albanci”, as a means to emphasize their Islamic beliefs. Nevertheless, this argument cannot be considered as valid, bearing in mind the current phase of the international matters in regional and continental politics.
Now, we shall return to ECHR precedent: most of these cases have been submitted by Muslim individuals, where teachers or pupils have been expelled or constrained to abandon the institution, as a consequence of opposing legal regulations, regarding their Islamic headscarf. For example, in Leyla Śahin v. Turkey (application no 44774/98) judged by the Grand Chamber in 2005, a woman had to leave Turkey in order to pursue her studies in Austria. In its verdict, the Court concluded that there hadn’t been any constraint on the applicant’s freedom of conscience and religion. Moreover, it was argued that the effect on the other students had to be considered as well. Even though this case is about a university student, it still is proof of a strange, even “bizarre” tendency Strasbourg judges have.
Again in Turkey: In “Kőse and 93 others v. Turkey (26625/02)”, in 2006 a group of high school girls argued that a ban of this nature was a serious obstacle in their right of education and freedom of religion, both set in the European Convention of Human Rights. The Court was not of this opinion, making use of barely the same arguments used in Śahin. Moreover, in “Lautsi and others v. Italy (30814/06)” a parent believed that the presence of a crucifix in state schools’ walls was not in line with the principle of secularism and neutrality. Strangely, the Court concluded in disfavor of the parent.
Maybe, Europe is not very clear on this subject, as we have clearly seen the opposing tendencies the Court has had in similar cases. Secularism and neutrality cannot be a justification for these sorts of regulations, especially, in a Muslim majority country like Kosovo.
 Savigny, F. K. von. (2011). Of the vocation of our age for legislation and Jurisprudence. (A. Hayward, Trans.). Lawbook Exchange Ltd, page 19:
 Omari, L. (2016). Për Kosovën e djeshme dhe të sotme: (vështrim Juridik-Kushtetues). Botimet Dudaj.
Emanuel Xhindi is a 2nd year Law student in the University of Tirana, Albania.
Image Credits: Morocco World News
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