Recently, the Indonesian Supreme Court annulled the ban imposed by the government on mandatory wearing of Jilbab in state schools. Jilbab is a piece of Muslim apparel that covers the head, neck and chest and is worn by Muslim women according to the dictates of Sharia law. This ruling has been criticized by activists and human rights enthusiasts who see it as discriminatory and threatening to freedom. The aim of this article is to understand the historical reasons backing this ruling and how this ruling infringes women's rights.

The philosophy of Pancasila is the foundation of the Republic of Indonesia. The five principles of harmony and religious tolerance seek to accommodate diversity within Indonesia, a multicultural nation with followers of Islam, Hinduism, Christianity, Buddhism, etc. However, a video from Padang city in West Sumatra went viral which discredited this multicultural narrative when a Christian student attending a vocational school was repeatedly asked to wear a Muslim headscarf in class.

Fading Plurality

The historical timeline would help explain how the situation reached to above-mentioned stage. Before the Indonesian government issued a decree/SKB (taking note of the aforementioned event) to prohibit public schools from enforcing or prohibiting religious based dress codes, more than 20 of Indonesia's 34 provinces had mandated religious attire for female students and teachers in public schools. The prohibition was a momentary respite as the traditional orthodox Muslim population of the country started to oppose it and pressurized the government to undo it citing reasons such as, Jilbab is for the protection of women by Islam and a woman who wears it is pious. It was viewed as an attire carrying religious significance and showcasing cardinal Islamic values of chastity, modesty and deflecting any sexual attention. However, Jilbab is not central to the religion whose five pillars are faith, prayer, charity, fasting and pilgrimage to Mecca. The government issued ban stirred opposition and intolerance towards those women who refused to wear it as a matter of choice bestowed onto them by the government. The wave of religious intolerance swept across other Islamist states as well, as they promoted sexist values and sought to maintain honour of women by restricting their freedom.This protection of honour has resulted in thousands of women getting killed every year in these Islamist States. Republic of Indonesia, itself attaining a dismal rank of 85 out of 153 countries in 2020 Global Gender Gap Index and 101 out of 156 countries in 2021 Index, tells a lot about the rise in gender disparity in the country. Soon after the government imposed ban in state schools, Indonesian Supreme court in its recent ruling revoked it citing violation of laws that require education to be rooted in religion.

Gender Discrimination and Legal Implications

The Republic of Indonesia ratified the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) in 1984 which lays down in its Article 1 that ‘discrimination against women’ means any act done that, on the basis of sex, differentiates or restricts women, thus, disabling them from exercising human rights and freedoms fundamental to their social, political, cultural, economic, civil and other spheres of life. Forced veil wearing has since its inception become a discriminatory practice which snatches away a Muslim woman's agency and freedom to make a choice, a basic autonomy to choose what to wear. It has been used time and again to foster a feeling that it's a central tenet of the Sharia law and hence, women ought to follow it. Women have been pressurized to wear it at all cost in all social spaces, therefore, no educational, work or recreational space allows a woman to be seen without a veil.

A report on the phenomenon of ‘Jilbab bullying’ provides a detailed account of how teachers put psychological pressure on young girls, irrespective of their faiths, to wear Jilbab. This pressure is exacerbated by regular bullying and threats of expulsion from school. ‘Jilbab bullying’ is a form of ‘mental violence’ as per Article 19 of the Convention on the Rights of the Child and is thus required to be eradicated in its entirety. Instances of women being forced to wear a veil at workplace or being asked to wear it in order to get employment opportunities which have led them to suffer from anxiety, depression, and suicidal thoughts violate Article 11(f) of the CEDAW which requires State Parties to oblige to safe and healthy working conditions.

All rights are related and interdependent, hence, deprivation of one right adversely affects the others. Here, right to education of young girls and to rightful employment are affected when there is a deprivation of right to freedom of religion and of expression (protected by Article 18 and 19 of the Universal Declaration of Human Rights). The essential human freedom to choose what to wear is assaulted when women and girls are forced to wear a piece of fabric to seem modest in a patriarchal society.

Forced veil wearing is antithetical to a right to bodily autonomy and privacy. This right is central to one’s body and person and is therefore, protected by Article 17 of the International Covenant on Civil and Political Rights (ICCPR) which bars any other person from infringing it.Supreme Court ruling in support of mandatory Jilbab wearing resonates with the values of a fundamentalist society that embraces systemic oppression in the name of religion; as human rights activist Andreas Harsono puts it, “Indonesian state schools use a combination of psychological pressure, public humiliation, and sanctions to persuade girls to wear the hijab.”

There have even been incidents where in public schools, even minorities (of religion other than Islam) have been harassed to wear Jilbab. In a Muslim majority country, these young girls and women are subjected to intersectional discrimination. Several testimonies depict serious transgression of ICCPR and Indonesia being a state party to the ICCPR has an obligation to prohibit any advocacy of racial or religious hatred that constitutes incitement to discrimination under Paragraph 2 of Article 20. It must also guarantee everyone effective protection against discrimination on the grounds of sex under Article 26 and ensure the pursuance of a right to profess and practice their own culture and religion under Article 27.

The Supreme Court ruling against the government decree/SKB reinforces already prevalent gender stereotypes which are the preconceived notions about the roles played by men and women in Indonesia. Gender stereotypes prove to be harmful when they limit a person’s ability to make a choice. Thus, this ruling stands at crossroads with Article 5 of the CEDAW which demands measures to be taken to eliminate prejudices and gender stereotypes.

The Way Forward

Indonesia is a party to the core international human rights treaties, including the ICCPR, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the CEDAW. Supreme Court of Indonesia ruling in favor of a norm that breaches significant number of provisions of these treaties, authorizing acts of discrimination, can have a long lasting impact on women. Amidst this unsettling picture, the recourse that women have is to actively report cases of bullying and harassment to constitutional councils, to deliberate and discuss the matter of autonomy in order to realize the matter at hand is the one where the choice must rest with them, to engage with the local NGOs in order to raise awareness and to seek help through international laws which guarantee them the right to freely manifest one’s religious beliefs, the right to freedom of expression, the right to education without discrimination, and oppose any limitations on these rights that are not based on a legitimate aim and are applied in an arbitrary and discriminatory manner.

Title Image: Human Rights Watch

This article has been written by Vaishnavi Tiwari. Vaishnavi is a third year law student at ILNU, Ahmedabad.

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