Wearing the hijab is a religious obligation in Islam, not merely a religious or political symbol, as often portrayed by those advocating for its ban. This commitment is not conditioned by any specific public place, as the nature of Islamic teaching does not recognize the separation or division of the life of Muslims who practice their faith. This is a fact on which Islamic scholars have agreed both in the past and present, and it has been confirmed by Muslim experts across all parts of the world.

Despite Western civilisation’s legal commitments to gender and religious equality, Europe still exhibits a low tolerance for Muslim dress practices. France has led in restricting it, banning the hijab in institutions and later prohibiting face coverings in public. The United Kingdom (UK) stands as a traditional European opponent to the French model of laicism. In the UK, wearing the hijab is allowed in public schools and the workplace. Meanwhile, some authoritarian Muslim-majority states impose conservative dress codes on women. Bosnia and Herzegovina, with its indigenous Muslim population, is trying to find its own path between secularism and religiosity, through legislative measures increasingly leaning toward a form of secularism.

Unveiling Gender Disparities in Bosnia and Herzegovina
Bosnia and Herzegovina is a secular state. Its legal framework, established under the Dayton Agreement, guarantees religious freedom and the separation of religion and state. However, religion plays a significant role in society and politics due to the country’s diverse religious landscape, which includes Islam, Orthodox Christianity, Catholicism, and others.

Historically, the hijab in Bosnia and Herzegovina has been a personal choice, generally accepted as part of Muslim women’s cultural and religious expression. However, during the Socialist Bosnia and Herzegovina rule (1945–1992), outward displays of religious symbols were restricted due to the state’s emphasis on secularism and socialism. The Women’s Antifascist Front launched a campaign in 1947 against the hijab, deeming it an obstacle to women’s emancipation. This culminated in a law enacted on 27 September 1950, prohibiting the wearing of the zar and feredža (traditional veils). After the 1990s, the practice of face-covering in Bosnia and Herzegovina resurfaced, prompting legal debates. Under the pretext of addressing the “Muslim question”, the practices in European states, and security concerns, the parliamentary caucus of the Alliance of Independent Social Democrats proposed the enactment of a law prohibiting the wearing of clothing that prevented identification. After the draft law was not adopted, the issue of the niqab was no longer addressed. The focus shifted to headscarves in public spaces in two contexts: within the Armed Forces of Bosnia and Herzegovina; and after the High Judicial and Prosecutorial Council of BiH’s decision banning religious symbols and the practice of faith during working hours in the judiciary.

Challenging Norms: One Woman’s Fight for Faith and Identity
Emela Mujanović’s struggle has been ongoing for more than ten years. After joining the Armed Forces of BiH in 2008, Mujanović attended military training in Greece as a non-commissioned officer later deciding to wear the hijab. She adapted it to blend seamlessly with her uniform, wearing an olive-coloured headscarf that was barely noticeable. Despite this, she was prevented from performing her duties, leading to lawsuits in 2012 and 2020, following an appeal filed with the Constitutional Court of Bosnia and Herzegovina after the case was conclusively resolved,

On 11 July 2024, Bosnia’s Constitutional Court ruled that prohibiting the displaying of religious symbols in the Armed Forces of BiH did not violate Mujanović’s right to religious expression. Citing the European Court of Human Rights precedent, it justified the ban as a necessary measure in a democratic society and dismissed claims of discrimination. However, Judge Mirsad Ćeman dissented, arguing that the ruling failed to demonstrate how a headscarf could infringe on the rights of others. He noted that the undercap, which is already part of the uniform, closely resembles a headscarf, making the ban unnecessary. Judge Ćeman stated, “Due to the wrong premise they started from, they ultimately made the decision they did”.

Judicial Policies and the Challenge of Religious Freedom
The HJPC’s controversial decision banning religious symbols relied on legal provisions, particularly the Article 13 of the Law on Courts in the Federation of Bosnia and Herzegovina, which states: “Judges and court officials are not permitted to display any religious, political, national, or other affiliation while performing their official duties. Symbols of religious, political, national, or other affiliation must not be displayed on court buildings or within court premises”.

The Conclusion authorises courts to assess and decide in each individual case whether it is necessary to limit the right to freedom of manifesting religion, concerning parties and third parties. This stance towards third parties has already been ruled discriminatory, in Hamidović v. Bosnia and Herzegovina. The Islamic Community recognised the ban as a strike against wearing the hijab and raised an objection, citing discrimination. The subsequent debate focused media attention on the status of Muslim women. The HJPC’s Conclusion was interpreted, both by the authority of political functions and the authority of academic titles and institutions where they are employed, as a violation of the right to religious expression, and discrimination against women who wear the hijab.

Conclusion
Wearing the headscarf in public spaces is integral to the right to freedom of religion. This right is seriously threatened in several European countries, including Bosnia and Herzegovina. Although Bosnia and Herzegovina is a country with a majority Muslim population, it has not yet chosen its path. The silence of the public – aside from a few political points that representatives of certain parties have attempted to score – amounts to tacit approval of the current tendency to restrict the right to wear the headscarf. Expanding such a ban would significantly affect the daily lives of women. Negative values, judgments, or prejudices regarding the headscarf, as expressed by the High Judicial and Prosecutorial Council in its imposition of the de facto ban, form the justification for its conclusion. The correct policy would ensure that wearing the headscarf is a matter of personal choice, not a requirement imposed by families or religious communities, but it should not go further than that.

ABOUT THE AUTHOR:

Dr. Amila Svraka – Imamović, Doctor of Legal Sciences and Senior Teaching and Research Assistant , University of Sarajevo – Faculty of Law. Her interests are topics of legal history, Sharia law, freedom of religion or belief, with an emphasis on the right to wear the hijab. She is the author of an article that discusses the practice of wearing the hijab in France, the United Kingdom, Saudi Arabia, Iran, and Bosnia and Herzegovina: Freedom of Religion or Belief
FB: amila.svrakaimamovic.7

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To begin, let me state unequivocally that Muslim women should have the freedom to decide whether or not to wear the hijab. It should be entirely in their hands to make this decision. Any intellectual discussion of the veil’s use in educational facilities or other public spaces should be founded on and centered on this fundamental point.

Since the declaration of a “war on terror” two decades ago, Muslim women have been the victims of institutionalized Islamophobia in Europe and other parts of the world. Their freedom of expression and religion have been systematically hampered with and violated by European states and other parts of the world through discriminatory legislation and policies, as well as racist rhetoric.

Under the guise of ‘neutrality’ and ‘protection,’ these countries are slipping into pre-Renaissance religious intolerance by enacting discriminatory laws. Many Muslim women have faced gendered Islamophobia and discrimination as a result of these state-led actions. Headscarf bans have had a significant impact on Muslim women, both those who choose to wear them and those who do not.

In today’s world, Islamophobic attacks are on the verge of escalating. Muslims are accused of women’s oppression, terrorism, ignorance and hostility toward civilization. Many Muslim communities are being persecuted around the world. Some Muslims are caught in the middle of a battle in which they are subjected to military fire. Others are embroiled in a battle of ideas, conflicted by propaganda and insults. Oftentimes, psychological warfare is more damaging than military warfare, as its effects can linger for generations. And Muslim women who wear the hijab, which is the most visible representation of Islam, are caught in the middle of heated hate.

Instead of zeroing in on the issue of people’s prejudices against Muslims, the argument is predicated on the assumption that the hijab is the problem. Is it that important what people are wearing? If real progress is to be made, it must begin and end with the removal of bigotry, not with the removal of head coverings.

Can individual rights be protected while maintaining society’s secularist values without being overly restrictive of individual rights or being overly liberal in preserving a culture of foreign norms? Legislation and judicial review are used to negotiate the specific balancing points between the will of the majority and the freedom of the individual.

While secularism may prevent people from making laws based on religious scriptures, it cannot prevent fascists from oppressing religious minorities as “threats” to national identity. Currently, this is what we are seeing in India with the Hindutva Movement against Muslims, and it happens in France and Austria, and it is gradually spreading throughout Europe. The fight over the hijab isn’t just an Indian or European issue; it’s a global phenomenon with a long history. The challenge for these countries lies in shifting away from a state-controlled public sphere toward a pluralistic society that can accommodate people of diverse ethnicities and religious beliefs.

Moreover, liberal democracies are built on the principle of giving individuals the latitude and freedom to express themselves, including their religious convictions. That is, the individual is shielded from the state’s ability to dictate their choices.

Democracies are legitimate when their general will is shaped by free people. Individual liberty is threatened when the democratic will is undermined, so individual rights are protected to keep democracy from crumbling. This has been the consensus since at least the time of John Locke.

Individual rights would be violated if the hijab were to be prohibited. It is yet another method of controlling women, and taking it to the government level and legislating how women dress is a violation of human rights and undermines the entire foundation of democracy. Moreover, some see the hijab as a symbol of ethnic identity and self-affirmation in a society where Muslim communities constitute a significant number of those marginalized. It is not the right policy to try to outlaw religious symbols in educational facilities and other public spaces. This blanket ban is the embodiment of the very fundamentalist ideology that it seeks to combat.

Secularism should enshrine the idea that all religions are welcome as long as no one is discriminated against, religious or non-religious, and as long as everyone is treated equally in terms of rights and responsibilities in front of the law.

About the Author

Famidah Dirampaten is a candidate for the Master of Arts in Religious Studies with concentrations in Interfaith Peace Building and Nonprofit Leadership at the Unification Theological Seminary in New York. She is currently based in Doha, Qatar. Instagram@famidz

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