Kanun: Jurnal Ilmu Hukum

Vol. 26, No. 1, (April, 2024), pp. 125-142.

ASSESSING FREEDOM OF RELIGION PRACTICES:

A COMPARATIVE ANALYSIS OF HIJAB BANS IN FRANCE AND COMPULSORY
HIJAB IN IRAN AND ACEH, INDONESIA

Zalza Mayu Oktavian1, Saifuddin Batasyam2

1
Faculty of Law, Syiah Kuala University, Indonesia
2
Faculty of Law, Syiah Kuala University, Indonesia
🖂 corresponding email: [email protected]

Submitted: 12/09/2023;Accepted: 13/09/2023; Revision: 23/04/2024;

Approved: 28/04/2024

DOI: https://doi.org/10.24815/kanun.v26i1.34174

ABSTRACT

This article examines the freedom of religion practices in relation to hijab bans in France
under Law No. 2010-199, compulsory hijab in Iran as per the Islamic Penal Code of Iran
1991, and in Aceh province, Indonesia governed by Aceh Government Law (Qanun).
The article adopts a juridical-normative approach with a comparative analysis. The
findings indicate that the enforcement of compulsory hijab in Aceh, Indonesia aligns with
freedom of religion, making it a suitable model for such regulations. Conversely, the
French and Iranian governments have faced challenges in addressing discrimination
stemming from their respective regulations, thereby violating Article 18 of the Universal
Declaration of Human Rights (UDHR) 1948 and the International Covenant on Civil and
Political Rights (ICCPR) 1976, as well as Islamic principles and the Maqasid Shariah.
The study recommends that the governments of France and Iran reassess their policies
on hijab bans and compulsory hijab in accordance with international human rights
standards, Islamic values, and the principles of Maqasid Shariah.
Keyword: Hijab; Bans; Compulsory; Freedom of Religion; Discrimination; Indonesia.

INTRODUCTION

The classification into majority and minority religions in a country has represented
different ends of various group dimentions1. A dependable finding inside the exploratory and
field research work on intergroup discrimination is that individuals of minority groups separate
more than individuals of majority groups2.

1 Viviane Seyran, Hazel Atuel, and William D Crano, “Dimention of Majority and Minority Group,” Group

Processes & Intergroup Relations 11, no. 1 (2008): 21–37, https://doi.org/10.1177/1368430207084843.

2 Geoffrey J Leonardi, “Minority and Majority Discrimination: When and Why,” Journal of Experimental Social

Psychology 37, no. 6 (2001): 468–85, https://doi.org/10.006/jesp.2001.1475.

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Discrimination is the condition when someone is treated unequally or irrespectively by

another person3. The unfavorable treatment mainly perceived by minority religions, for
instance, confining people’s religious activities, and preventing the usage of religious identities
including forcing or forbidding the practice of hijab. Despite, it has been regulated in
International law specifically in Article 18 of the Universal Declaration of Human Rights 1948
(UDHR) which mentions “Everyone has the right to freedom of thought, conscience, and
religion; this right includes freedom to change his religion or belief, and freedom, either alone
or in community with others in public or private, to manifest his religion or belief in teaching,
practice, worship and observance”. Nevertheless, in reality, the discrimination against
religions continues to persist day by day.
Hijab is one of the dress code provisions in Islam. This provision originated from Quran
which states that every woman has to cover their body from head to toe and do not show their
shape or curves. Unfortunately, different concept, principle, or fundamental norm, that adopted
in some countries have led to different views and controversies regarding hijab. Despite the
fact that, wearing hijab is one of the religious rights that cannot be reduced or restricted (non-
derogable rights)4. As such, no state can reduce, limit, or even ignore the fulfillment of these
rights. Ultimately, the application of rules such as hijab bans and hijab compulsory by
governments in some countries leads to religious discrimination.
For example, the hijab ban policy in France through Law 2004-228 of March 15, 2004
was established as a form of the application of the 1905 laïcité principle (separation of religious
and political institutions of the state)5, or hijab compulsory that applied in Iran by Article 638
of the Islamic Penal Code of Iran 19916 as an result of running its country based on Islamic
law, and hijab compulsory in Aceh, Indonesia through Qanun No.11 of 2002 concerning the
Implementation of Islamic Sharia in the fields of Aqidah, Prayer, and Shi’ar Islam as a
consequences of the implementation of the special autonomy in Aceh that introduces Islamic
Sharia into its government system.
Those regulations then became a polemic in society since the emergence of
discrimination against religion caused by the strict enforcement of the regulation. For instance,
a student was banned from wearing a hijab in school, in France, and the strict enforcement of

3 Wibowo Wahyu, Pengantar Hukum Hak Asasi Manusia (Jakarta: Pusat Studi Hukum Militer, 2014).
4 Effendi Joenadi, Fitri Luthfianingsih, and Fifiit, Non Derogable Rights Dalam Peraturan Perundang-Undangan
Di Indonesia (Surabaya: Cv. Jakad Media Publishing, 2020).
5 Firuri Yudistira, “Analisis Kebijakan Sekuler Prancis Terhadap Kebebasan Beragama Berdasarkan European

Convention on Human Rights (ECHR) Pasal 9” (Universitas Pasundan, 2017).

6 Zabihollah Khodaeean, “Islamic Penal Code of Iran 1991” (1991).

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the hijab compulsory in Iran led to depriving someone’s life due to physical and verbal
harrasment. In each of these cases, the government must determine whether the religious act in
question is legally religious or categorized as discrimination against religious freedom and
whether the regulation have entrenched the freedom of religion.
Addressing the issue of religious discrimination arising from the implementation of the
hijab ban and hijab compulsory depends greatly on the actions of each countries government
and how they respond to the issue. Whether it is taking steps to improve the situation or even
making things worse to spark anarchic action in society. Therefore, it is necessary to know
which country is the most suitable and appropriate to implement a ban on hijab and hijab
compulsory among the three countries.
For this reason, when replying this address, it must be paid consideration to a number of
factors, including the compatibility of these regulations with the applicable laws, standards,
principles and concepts of the each country. its implementation should be linked to the
principles of religious freedom contained in several instruments, such as the Internasional
human rights (UDHR 1948 and ICCPR 1976) and human rights within the ideological
framework of Maqashid al-Shariah (hifdz ad-Din).
The principle of Hifdz ad-Din (protection of religious rights) in Maqashid al-Shariah
cannot be separated from this discussion as it is closely related to human rights from an Islamic
perspective to protect and ensure one’s welfare so that their rights are respected protected from
damage. In Internasional human rights lalw, some contents also fall within the principles of
Maqashid al-Shariah, such as respecting the equal rights of all people, including religious
rights7.

RESEARCH METHOD

The researcher using the juridical-normative research as the research method. The primary data
is legal material that constitutes laws and regulations rules on issues raised in this research. The
secondary data, which is a literature review obtained from books, journals, scholarly opinions,
literature, reading materials, mass media, and the internet that correlated to the subject matter
of this work. Tertiary data is legal material that provides a meaningful explanation of primary

7 Khodaeean.

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and secondary data such as a dictionary or encyclopedia. The comparative approach is

comparing the application of hijab bans in France and hijab compulsory in Iran and Aceh,
Indonesia with regards freedom of religion practices used in legal and regulatory content to
investigate existing issues. The data collected will be analyzed in a simpler form so that it can
be interpreted qualitatively to answer the problem identification and draw conclusions from
causal research and comparative data analysis. This work is expected to be competent to answer
the issues that arise related to the Comparison of The Application of Hijab Bans in France and
Hijab Compulsory in Iran and Aceh, Indonesia with Regards Freedom of Religion Practices.

RESEARCH OUTCOME AND DISCUSSION

1) Compatibility between the Application of Hijab Bans and Hijab Compulsory with the
Freedom of Religion Practices
Hijab is generic term that refers to clothing that Muslim women are permitted to wear.
There are several types of hijabs such as the jilbab which is a general shape for covering,
usually refers to a scarf that covers the hair and neck but not the face, the niqab which is a veil
that covers the head and face but not the eyes, and usually worn with a loose garment that
covering head to toe, the burqa is a veil that covers the entire body and face, with a mesh
window over the eyes for women to see through8. The term hijab also comes from the Arabic
word hajaba, which means “to cover up, to conceal, hide, a complex concept that includes
action and clothing”9. Meanwhile, according to Cambridge Dictionary, hijab is defined as the
headscarf that some Muslim women wear when they are in public10. Some scholars also
interpret the meaning of the hijab such as Ibn Hazm in his book al-Muhalla’ states, the hijab
mentioned in Arabic is a garment that covers the whole body, not just one part of the body.
Another opinion came from Ibn al-Atsir who argued that hijab is a cloak and robe worn by
women that cover all of her body11. From those understanding it can be concluded that hijab is
a Muslim dress to cover woman’s body from head to toes.

8 Della febiola Erwina, “Peran United Nations Human Rights Committee Dalam Larangan Penggunaan Niqab Dan

Burqa Bagi Perempuan Muslim Di Perancis Periode 2016-2018” (UIN, 2016).

9 Dian Maya Safitri, “What Went Wrong with the Veil? A Comparative Analysis of the Discourse of the Veil in

France, Iran and Indonesia,” Al-Jamiah 48, no. 1 (2010).

10 “HIJAB | English Meaning - Cambridge Dictionary,” in Cambridge Dictionary, n.d., HIJAB %7C English

meaning - Cambridge Dictionary.

11 Erwina, “Peran United Nations Human Rights Committee Dalam Larangan Penggunaan Niqab Dan Burqa Bagi

Perempuan Muslim Di Perancis Periode 2016-2018.”

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The command to wear the hijab is mentioned in Surah al-Ahzab verse (59) and Surah
an-Nur verse (31) of the Qur’an12. It explains that, the hijab is stated as a mandatory
requirement of the Islamic faith. Therefore, for Muslim women, wearing a hijab is an obligation
to cover the whole body except for their palms and face in order to preserve their humility and
honour.
As part of religious symbols, everyone has the rights to use hijab. This right is one of the
manifestations of the fundamental rights, namely the right to freedom of religion (forum
internum) as well as manifestation of religious teachings in practice (forum externum).
Guarantees of religious freedom are widely affirmed in international human rights instruments
and standards, such as UDHR, ICCPR, or the 1959 European Convention on Human Rights
(ECHR). It is said that every state has the obligation to ensure protection through the law,
sanctions for violators, and prevention of violations (positive obligations), and the commitment
not to intervene the rights of individuals or organizations to practice their religion or beliefs
(negative obligations)13.
To find out whether the application of the hijab ban in France and the hijab compulsory
in Iran and Aceh are in fact consistent with the right to freedom of religion, first, it must be
consider from the factors of legal system, ideology, or fundamental norms in three countries.
Like the hijab that is not culturally appropriate, the laïcité principle is considered a threat to
the concept of the French Republic. However, the regulation regarding the ban on hijab is
fundamentally inconsistent to the ideology of laïcité itself which should be based on liberty,
equality, and fraternity. In this case, it can be interpreted as freedom of religion to practice the
teachings of one’s religion, equal treatment for all religious adherents, and peaceful coexistence
regardless of the beliefs of each citizen. On this basis, it can be said that the application of the
hijab ban in France is incompatible with the exercise of religious freedom.
The application of hijab bans was initially based on a 1989 issue of discrimination against
students wearing hijabs in schools14. Since the enactment of the law, this regulation have been
repeatedly challenged within The European Court of Human Rights (ECtHR). The ECtHR
hones a approach so-called “wide margin of appreciation” for states and therefore has regularly
announced that while an individual woman’s religious rights may have been offended, the state

12 See also Surah An-Nur verse 31 and Surah Al-Ahzab verse 59 verse of the Qur’an
13 KBB, “Pemajuan Dan Perlindungan Kebebasan Beragama Dan Berkeyakinan Di ASEAN,” Draft-Gabungan-
Guidebook-KBB-di-Asia-Tenggara.pdf (hrwg.or.id).
14 Nadza Indira, “Dinamika Pelarangan Niqab Dan Burqa Di Eropa Barat: Studi Kasus Perancis Dan Belgia,”

Jurnal Independence 5, no. 3 (2017): 144.

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nevertheless has the right to regulate its citizens in these ways 15. Different from the ECtHR,
The United Nation Human Rights Committee has taken a diverse approach16. As they did not
practices a policy of margin of appreciation, they tend to judge the individual more often than
the ECtHR. Unfortunately, they have significantly less enforcing power rather than the
ECtHR17. A look at the human rights struggles in France reveals that this regulation
contradicted the freedom of religion contained in the Declaration of Rights and Citizen of 1789
(La Déclaration des droits de l'Homme et du citoyen), which was later included in the French
Constitution18.
However, compared to the soft law which is the Declaration of Rights and Citizen of
1789 and the principles of laïcité, the decision of the ECtHR is certainly a legitimately
authoritative product that’s trusted by the people of France and the European. Indeed, in spite
of the fact that they are as it were standards executed by the government, and don’t have as
much impact as the ECtHR results, they must be taken under consideration. This disallowance
makes France grasp restrictive and coercive nationalism which dispenses with personal
freedom in general and freedom of choice in particular. Just in Algeria, in the name of liberating
women from religious oppression, the French coerced them. French oppression replaces the
so-called oppression for Muslims. Because personal interests come second to national
interests19.
Therefore, from a human rights point of view, banning hijab regulation forces Muslim
women to accept the general will and prevents them from expressing themselves in the clothing
of their choice. In expansion, the consequences of this ban are also felt by Muslim women in
their daily social lives, namely discrimination, stigma, racism, physical and verbal violence as
well as hate speech organized by French society because of the headscarf, burqa, or niqab they
wear20. Of course, this is a form of discrimination against religion.
On the other hand, as Iran and Aceh are countries that apply Islamic law, they are required
to follow Islamic law when running their governments, so it is legal for Iran and Aceh to apply
the compulsory hijab provisions. But, whether this regulation is in fact consistent with the right

15 June Edmunds, “The Limits of Post-National Citizenship: European Muslims, Human Rights and the Hijab,”
Ethnic and Racial Studies 35, no. 7 (2012): 1181–99.
16 Anastasia Vakulenko, Islamic Veiling in Legal Discourse (Oxon: Routledge, 2012).
17 A.M Almila and D Inglish, The Routledge International Handbook to Veils and Veiling, 1st ed. (Routledge,

2018).
18 R Cohen-Almagor, “Securite, Laicite: The French Ban on the Burqa and the Niqab,” French Politics 20, no. 2

(2022): 3–24, https://doi.org/10.1057/s41253-021-00164-8.

19 Petsy Jessy Ismoyo, “Islamofobia Di Prancis: Diskriminasi Perempuan Muslim Maghribi,” Jurnal Cakrawala,

2017, 217–44.
20 Jessy Ismoyo.

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to freedom of religion practice? In this case, it is necessary to consider whether all aspects of
human rights are taken under consideration in its application without leaving the provisions in
Islam.
The application of hijab compulsory in Iran is in fact carried out by force. Coercion in
this case refers to forcing non-Muslims to wear the hijab. This is blurred by the strict
application of Gasht-e Ershaad, a police ethic to regulate the use of Muslim clothing including
hijab. Coupled with the harsh physical or verbal restriction implemented by this organization,
it resulted in the death of one person during arrest for hijab abuse21. Rather than investigating
this unlawful death promptly, effectively, and thoroughly as required under international
human rights law, the government actively obfuscated the truth, and denied justice22.
Moreover, rather than upholding human rights, the government of Iran has refined and
reinforced its capacity and actions to quell dissent, including with the use of surveillance
technology23 specifically smart cameras to monitor female drivers who violate rules such as
traffic cameras and issue threats of punishment, vehicle confiscation or fines received via text
message notification24.
According to the International Fact-Finding Mision on Iran, Mahsa Amini Death was
unlawful and caused by physical violence for which the state responsibility25. Thus, it can be
said that the hijab compulsory provision in Iran is inconsistent with the freedom of religion
practice based on the Iranian Constitution which stipulates that a individual has the right to
unreservedly practice his religion and practice his religion and act according to their own rules
in things of personal affairs.
In this case, the death of Mahsa Amini was not part of the punishment for violating hijab
compulsory but doe to physical violence. From an Islamic perspective, according to Ustadz
Rahkman Zailani Kiki, violence is a forbidden act against Muslim or individuals of diverse
religion26. This is also under what is explained in the Quran, specifically Surah al A’raf verse
3327. He further explains that in Islam, if someone violates law such as violence, they may be
subject to punishment, which in Islamic criminal law is called corpral punishment (ta’zir) or

21 Eliza Mackintosh, “Iran Publishes Report Saying 49% of Iranians against Compulsory Veil,” CNN, 2022.
22 UNHR, “Iran: Institutional Discrimination against Women and Girls Enabled Human Rights Violation and
Crime against Humanity in the Context of Recent Protests, UN Fact-Finding Mission Says,” OHCHR, 2024.
23 UNHR.
24 Feranak Amidi, “Kami Akan Sita Mobil Anda: Ancaman Terbaru Pada Perempuan Iran Yang Melepas Jilbab,”

BBC News Indonesi, 2024.

25 UN, “Iran: Repression Continues Two Years after Nationwide Protests,” UN News, 2024.
26 Andrian Saputra, “Pandangan Islam Tentang Kekerasan Dan Penganiayaan,” Republika Online, 2024.
27 See Surah al-A’raf verse 33 on the Quran

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death penalty (qisash)28, for the perpetrator of murder. So, let’s assume that the Iranian
government is very strict with Islamic law. Why doesn’t Gasht-e Ershaad also apply to ta’zir
or qishash? Since many people lost their lives during the strict enforcement of hijab
compulsory.
Furthermore, the provision of hijab compulsory in Iran was contradicts with the Islamic
values as well as the principle of Maqashid al-Shariah. Where Islam teaches there is no
compulsion in terms of religion it is according to Surah Ali Imran verse 159 and Surah al-
Baqarah verse 256 of the Quran. In addition, in the understanding of Maqashid al-Shariah the
principle of religious protection implies that Islam guarantees the rights and freedoms of belief
and worship. Therefore, in terms of different faiths, Islam does not oblige an individual to
become a Muslim or vice versa. Furthermore, a Muslim has moreover has freedom to practice
his religion, including accepting the madhab or practicing the teachings of his religion. In this
regard, it can be concluded that the Iranian government should not force a non-Muslim to wear
a hijab as a form of following to the teachings of Islam. To ensure that its citizens comply with
Muslim dress, including hijab, the Iranian government should not violence or crackdowns that
lead to the death of others. This is clearly a human rights violation.
Unlike Iran, Aceh’s adoption of the hijab is compulsory under the Qanun Number 11 of
2002 Concerning the Implementation of Islamic Sharia in the Fields of Aqida, Prayer, and
Shi’ar Islam, and all Aceh Muslims are required to wear Muslim attire. In practice, the Aceh
government itself does not force other religions to follow this rule. Women who do not belong
to the Islam are not allowed to wear hijab, but they are expected to continue to dress modestly
to respect Aceh’s cultural values. Basri Effendi, a legal expert at Syiah Kuala University
(USK), moreover concurs. He clarified that in Qanun Aceh, there is no arrange for non-
Muslims to wear hijab. In any case, out of respect for local wisdom, non-Muslims are advised
not to wear uncovering clothing in Aceh. It may be assumed that the enactment of Islamic law
in Aceh applies only to those who practice Islam, unless the Aceh government forces non-
Muslims to follow the obligatory hijab or Islamic teachings29.
Is the recommendation to wear modest clothing to respect Acehnese cultural values for
non-Muslims a violation of human rights? And do the hijab compulsory provision contained in
Qanun violate the human rights of Muslim women? The answer is correct if you look at it from
a human rights perspective. This is based on the Internal Forum that a person’s freedom of

28 Ibid
29 Roni, “Menelisik Anjuran Jilbab Non-Muslim Dalam Qanun Aceh,” Readers.id, 2024.

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religion and belief cannot be restricted without exception. Are Aceh residents subject to these
regulations? The answer is correct. However, will the people of Aceh, either Muslims, and non-
Muslims be required to wear hijab and modesty like the Iranian government? The answer is
no. This is based on the externum Forum, where religious freedom can be limited. Based on
paragraph 8 of General Comment Section 22 Article 18 (3) of the ICCPR states that such
restrictions are necessary to protect public security, order, health, or morals or the fundamental
rights and freedoms of others30.
In reality, Muslim women in Aceh province itself currently do not wear Muslim attire,
as stated in the advised to wear loose-fitting clothing as mentioned in Qanun. As time passed,
Muslim women’s clothing became more diverse and their culture began to change. Nowadays,
Muslim women favour to wear jeans instead of loose-fitting trousers, and, just like the hijab,
they prefer to wear a hijab that exposes their hair and wraps it around the neck rather than one
that covers the chest or as mentioned in Quran. Not all women in Aceh, but most.
As a result, The use of hijab by Muslim women in Aceh are diversed. In every day, we
can see several types of hijabs they wear such as hijab, niqab, or chador. While there is no
specific requirement to wear hijab like in Iran which prohibits the use of brightly coloured
outfits, but both Iran and Aceh are required to wear loose dress. If any woman who does not
wear hijab, then Wilayatul Hisbah will arrested, then recorded, deliberative, and fitted with a
hijab.
Director of Banda Aceh Legal Aid Institute (LBH), Shahrul, S.H., M.H. mentioned that
it is not acceptable to ask people to respect the application of Islamic law or local wisdom by
force, but simply respect each other and not interfere31. As previously discussed, forcing the
right to adhere to and profess a religion/belief is a prohibited action. This coercion is divided
into two, namely physical coercion, that uses threats of physical violence or punitive sanction
to adopt a religion or belief, and indirect coercion, that limits access to education, health, or
work carried out by the state. So, this coercion is differentiated from discrimination which aims
to eliminate or reduce everyone’s ability to enjoy and exercise their civil and political rights,
including religious rights32. In this case, John Lock, in his letters on toleration in 1689, states

30 Komisi Nasional Hak Asasi Manusia, “Komentar Umum Konvenan Internasional Hak Sipil Dan Politik

Konvenan Internasional Hak Ekonomi Dan Budaya,” Perpustakaan Nasional (Jakarta: Perpustakaan Nasional: Katalog
dalam Terbitan, 2009).
31 Roni, “Menelisik Anjuran Jilbab Non-Muslim Dalam Qanun Aceh.”
32 Erna Ratnaningsih, “Hak Atas Kebebasan Beragama Dan Berkeyakinan Dalam Konteks Hak Asasi Manusia,”

Binus, 2017.

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that tolerance is defined as equal treatment between religious groups, in the other words,
allowing religious group to carry out their worship33.
The application and enforcement of human rights in Indonesia appears to be different
rather than French. Where, the application of human rights is compatible to community ethics,
values, culture, history, reasoning, and the pertinent structure of the Unitary State of the
Republic of Indonesia. There are regulations issued by governments to ensure security, order,
public morals, or the fundamental rights and freedom of other people34.
Concurring to Asian political cultures such as Indonesia, they continuously prioritize the
interface of society as a entirety, not individual rights, so they maintain agreement 35. Hence,
the implementation of human rights is realized by maintaining balance and harmony between
individual freedom and social responsibility. In other words, religious rights in the context of
individual rights cannot be separated from religious rights in the contect of communal human
rights which aim to realize national and state life for the sake of creating general public order.
So, in its application, this rule does not cause discrimination against othe religions. This means
that, as part of the Indonesian nation, Aceh continues to be guided by Pancasila as the national
ideology and Bhineka tunggal Ika (different but still one) as the motto of Indonesia which
upholds the values of unity, tolerance, and freedom of religion regardless of religion. Based on
this, it can be concluded that in fact, the hijab compulsory rule in Aceh practically in accordance
with the right to Freedom of Religion and Islamic values.

2) Religious Discrimination Arising from the Application of Hijab Bans and Hijab
Compulsory
As the expression “quum et bonum est lex legume” that means what is equitable and good
is the law of laws. It can be interpreted that all laws and regulations enacted by the government,
they must be fundamentally determined by fair legal certainly in order to reduce negative
impact in its implementation36. For example, the issue of religious discrimination arises from
the hijab ban and the hijab compulsory rules, which have a negative impact on minority
community in France and Iran. Application of rules that are contradictory with the right to

33 Archot Krishnaswami, “Study of Discrimination in the Matter of Religious Rights and Practices” (New York,
1960).
34 Prasetya mega Jaya, “Belardo. Universalism Vs. Cultural Relativism Dan Implementasinya Dalam Hak

Kebebasan Beragama Di Indonesia,” Pena Justitia 17, no. 1 (2017).

35 Haris Munandar, Pembangunan Politik, Situasi Global, Dan Hak Asasi Di Indonesia (Jakarta: Gramedia Pustaka

Utama, 1994).
36 Salahudin tunjung Serta, “Hak Masyarakat Dalam Pembentukan Peraturan Perundang-Undangan,” Jurnal

Legislasi Indonesia 17, no. 2 (2020): 154–66.

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freedom of religion such as verbal violence, and physical violence in the form of; arrests,
torture, and death fueled debate and anger among those who disagreed because it is violated
the freedom of religion. Therefore, a fair agreement on the part of the government is needed to
resolve the issue of religious discrimination arising from the application of hijab bans and hijab
compulsory. Like the idioms “Summum ius summa injuria, summa lex, summa crux” which
suggests strict laws can hurt, but equity makes a difference them.
The issue discrimination in France began in 1989 at the Gabriel Javes School in Creil,
when three students, named Leila, Fatima, and Samira, were expelled from class for wearing
hijab. The case was finally resolved after an agreement between the school and its parents
stipulated that the three students could wear hijab except during learning activities. The school
later ruled that students would not be allowed to wear flashy hijabs that could be seen as
intimidating, provocative, proselytizing or propaganda37. Subsequently, the problem of
discrimination against the Muslim minority in France was exacerbated by the Law 2004-228
of 15 March 2004 that banning the wearing of symbols and clothing in public places that denote
a particular religious affiliation and the Law No. 2010-1192 Concerning Burqa, and Niqab
Bans in Public Space. Based on the regulation it state that a woman can be fined €150 for
wearing a niqab or burqa in public, and fined €30,000 and a year in prison if someone forces a
woman to wear the burqa or niqab.
This rule has certainly provoked demonstrations by the Muslim community in France.
They said no one forced or suppressed the wearing of hijab, niqab, or burqa during the action.
In 2018, the independent United Nation Commission on Human Rights expert ruled that the
law violated the religious freedom of Muslim in France38. Thereafter, the alleged violation of
religious freedom in France in 2012 was reported to The United Nations Human Rights
Committee (UN HRCttee) a supervisory body set up by the ICCPR for examine and review the
case. Furthermore, the UN HRCttee found that France had violated the article of 18 of ICCPR39.
To resolve the case of religious discrimination, particularly against Muslims as a
religious minority, President Emmanuel Macron abolished the ban on hijabs in schools during
his election campaigns and not allowing anyone to claim that the government encourages
racism discrimination against Muslims, and stated that his government encourages racism

37 Dan Eshet, What Do We Do with a Difference? France and the Debate over Headscarves in School, Facing
History and Ourselves Foundation, Inc, 2008.
38 Alkhaledi Kurnialam, “Prancis Dilaporkan Ke PBB Atas Tuduhan Hina Islam,” islampos, 2021.
39 Erwina, “Peran United Nations Human Rights Committee Dalam Larangan Penggunaan Niqab Dan Burqa Bagi

Perempuan Muslim Di Perancis Periode 2016-2018.”

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against Muslims, and stated that his country is not fighting Islam but against fraud, fanaticism,
violent extremism, and Islamic separatism40. However, contrary to what he said during the
election campaign, presiden Emmanuel Macron recently appeared ti agree with the decision of
the French Ministry of Education to ban the use of abaya in French schools. He emphasized
that based on the principle of secularsm that his country adheres to, any religious symbol have
no place in schools. Of course, this coused controversy and was opposed by some opposition
parliament, including Daniel Obono,who said that this was a form of new Islamophobia
campaign41.Definitely, with the inconsistent attitude of President Macron caused the
implementation of this policy was unsuccessful in adjusting the position of Muslims in French
society. Therefore, the solution to the problem implemented by the French government had no
positive effect and fell far short of the expectations of the Islamic community.
In the same position, the Iranian government’s application of the compulsory hijab
requirement has met with the protest from Iranians who felt the rule violated the right to
religious freedom, especially for Muslim women. The trigger for the Iranian protests was the
death of Mahsa Amini, who was arrested and killed by Gasht-e Ershad. Iranian community
took to the streets demanding justice for the incident and calling for an end to discrimination
against women, while Iranian women took off their hijabs and burned it.
Some organizations have criticized the government move to make hijab compulsory.
One of them is Women’s Society of the Islamic Revolution (WSIR), which has developed
culturally appropriate ways to build a society that ends the oppression of women. The WSIR
has published an open letter to warn the government about consequences of reducing Muslim
society to the hijab and putting too much emphasis on it. The WSIR also states that in an Islamic
society, both men and women ought to dress unassumingly and maintain a strategic distance
from temptation, and thus the dress code ought to address both genders and not just women42.
To resolve the discrimination issues, the Iranian government has promised to
investigate and handle cases in accordance with the law and to enforce the law as fairly as
possible. Unfortunately, security concerns prompted the Iranian government to limit and shut
down internet access throughout the city in an effort to quell the protests. Iran’s chief public
prosecutor, Mohammad Jafar Montazeri, said parliament and judicial authority will review the

40 Shintaloka pradita Sicca, “Macron: Perancis Lawan Ekstrimisme Islam, Bukan Agama Itu Sendiri,”

Kompas.com, 2020.
41 Haryo Jati, “Polemik Pelarangan Abaya Di Sekolah Prancis, Macron Klaim Penerapannya Tak Pandang Bulu,”

Kompas.tv, 2023.
42 Homa Hoodfar, The Women’s Movement in Iran: Women at the Crossroads of Secularization and Islamization

(Grabels: Women Living Under Muslim Laws, 1999).

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hijab compulsory requirement and the result will be announced soon. Meanwhile, Iranian
President Ebrahim Raisi also stressed that the Iranian constitution already mentions the
foundations of Islam. He also said there are ways to make the Constitutions more flexible43.
But so far, no other policy exists to address the issue of discrimination and ongoing protests in
Iranian s ociety that have killed 344 people and 15,820 others arrested44.
In contrast to both countries, the regulation of hijab compulsory in Aceh appears to be
well received by Aceh’s Muslim and non-Muslim population. This is proved by the lack of
negative reaction from Acehnese people since the introduction of Islamic Sharia in Aceh45.
This is certainly influenced by the national ideology called Pancasila, and its application in line
with the five principles of Islam, namely Maqashid Shariah. Both principles uphold the values
of the human rights, especially the right to religious freedom.

3) Human Rights: Between the Hijab Bans and Hijab Compulsory

The finest hijab compulsory law is the one that applies in Aceh rather than other Islamic
countries like Iran who’s enforced the application with the harsh physical and verbal restriction,
or Sudan who still applies a repressive and discriminating interpretation of Sharia to women
(the al-Basyir regime), making women’s rights in public life and work in Sudan enforced to be
restricted46. It is considered from the following aspects such as; first, reviewed from the
purpose of the enactment of Islamic sharia in Aceh. Historically, the implementation of Islamic
sharia in Aceh has been based on the ideas, ideals, and aspirations of the Acehnese people47
since the DI-TII (Darul Islam-Tentara Islam Indonesia) insurgency movement led by Tengku
Muhammad Daod Bereueh that aimed at the unity of the Indonesian people as a political
measure to prevent Aceh from seceding from Indonesia through the Law Number 11 of 2006
concerning the Government of Aceh which states that Aceh is a special region granted special
autonomy by the Indonesian government under the law to run its own government.
Second, reviewed from the implementation of the regulation of hijab compulsory in Aceh.
The application of Islamic sharia in Aceh is determined by the Quran, al-Hadith, and human
rights. The implementation of Islamic sharia itself is recognized by Indonesian government
based on the 1945 Constitutions that protected by Indonesia under International human rights

43 Ajat M Fajar, “Melunak, Iran Berencana Akan Ubah Aturan Soal Wajib Hijab,” Inilah.com, 2022.
44 Tim Cek Fakta, “Cek Fakta: Benarkah Iran Menghukum Mati 1500 Demonstran?,” Kompas.com, 2022.
45 Marzuki Abubakar, “Syariat Islam Di Aceh: Sebuah Model Kerukunan Dan Kebebasan Beragama,” Media

Syariah XIII, no. X (2011).

46 Adnan Amal and Taufik, Politik Syariat Islam Dari Indonesia Hingga Nigeria (Jakarta: Pustaka Alvabet, 2004).
47 Ali genu Berutu, “Penerapan Syariat Islam Aceh Dalam Lintas Sejarah,” Jurnal Hukum 13, no. 2 (2016): 184.

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such as UDHR 1948 and ICCPR 197648. The hijab compulsory rule was regulated in Article
13 verse (1) of Qanun Number 11 of 2002 on Implementation of Islamic Laws in the Field of
Worship of Aqida. Practically, only Muslim women are obliged to wear the hijab, so the
enactment of the Islamic sharia has no impact on religious life in Aceh and all religious
communities in Aceh are allowed to practice their worship without coercion or discrimination.
The enforcement of hijab compulsory is fulfill by the Wilayatul Hisbah, monitoring,
commanding, preventing, and guiding body to raise public awareness of the enforcement of
Islamic law in Aceh. To all those who does not wear hijab and not in accordance with Islamic
manners and morals in Aceh will be arrested, then recorded, deliberative, and fitted with a
hijab. However, in its implementations Wilayatul Hisbah did not carried out his duties by force
or coercion. Attempts to establish order against violators are made in form of deliberation,
recording, and then giving a hijab to wear at that time. Therefore, this regulation is in
accordance with human rights values, especially the right to freedom of religion contained in
Article 29 verse (1) and (2) of 1945 Constitutions, Article 18 of UDHR 1948, Article 18 of
ICCPR 1976, Article 9 of ECHR 1953, and the Islamic values contained in the Quran Surah
al-Baqarah verse 256 and Surah Ali Imran verse 159 concerning there is no compulsion in
religion or the understanding of Maqashid Shariah which mainly discusses on human rights in
Islam precisely on Hifdzu ad-Din (protection of religion) which in its entirely explains about
Islam protects the rights and freedoms of belief and worship.
Third, reviewed from the responses of Acehnese people, now there has been no negative
impact or negative reaction from Acehnese people since the introduction of Islamic sharia in
Aceh. So in this case, the implementation of Islamic shariah or the application of hijab
compulsory in Aceh is well accepted by Aceh’s Muslim and non-Muslim population49.
Considering all aspects such as the purpose of the enactment, implementations, and society
response to the regulation, it is clear that Aceh is the most appropriate state to introduce hijab
compulsory rules.

CONCLUSION

The implementation of Hijab bans in France, as outlined in Law 2004-228 of 15 March

2004 concerning the separation of church and state, the wearing of religious symbols in public

48 Hamdani, “Penegakan Syariat Islam Di Aceh Dalam Perspektif HAM,” Jurnal Reusam 7, no. 2 (2019): 37.
49 Abubakar, “Syariat Islam Di Aceh: Sebuah Model Kerukunan Dan Kebebasan Beragama.”

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schools, and Law No. 2010-1192 concerning Burqa and Niqab bans in public spaces, has raised
concerns regarding the infringement of the right to freedom of religion. These bans do not align
with the principles of non-discrimination and equality as enshrined in Article 18 of the
Universal Declaration of Human Rights (1948), Article 18 of the International Covenant on
Civil and Political Rights (1976), and Article 9 of the European Convention on Human Rights
(1953). While these regulations are rooted in the concept of laïcité (liberty, equality, fraternity)
as the national ideology of France, the government's enforcement of the principle of separation
of church and state has been inconsistent. It is essential for such regulations to respect all
religions and provide equal protection to all citizens, irrespective of their religious beliefs.
However, these bans appear to disproportionately target Muslim women. The enforcement of
these regulations has led to discriminatory practices against Muslim women, including forced
removal of the hijab, verbal harassment, and societal demonstrations, highlighting the need for
a more inclusive and respectful approach towards religious diversity.
The enforcement of compulsory hijab in Iran, mandated by Article 638 of the Iranian
Islamic Penal Code of 1991, which dictates that non-Muslims must adhere to hijab, along
with the strict sanctions and enforcement measures by the Ghast-e Ershaad (morality police)
that include the death penalty, represents a clear violation of the rights to freedom of religion
and contravenes international human rights standards. This goes against the Islamic values
outlined in Surah al-Baqarah verse 256 and Surah Ali Imran verse 159 of the Quran, as well
as the principle of Hifdzu ad-Din (protection of religion). Islam, as a religion that promotes
tolerance and peaceful coexistence without coercion in the practice of its tenets, including the
wearing of hijab, is not reflected in the actions of the Iranian government, which has failed to
address the issue of discrimination effectively.
The most stringent hijab compulsory law is implemented in Aceh, Indonesia under
Qanun Number 11 of 2002 on the Implementation of Islamic Laws in the Field of Worship of
Aqida. In comparison to France and Iran, Aceh enforces compulsory hijab while still upholding
human rights, as well as respecting religious, ethnic, and cultural diversity within the region.
Unlike Iran, Aceh does not mandate non-Muslims to wear the hijab. The regulation in Aceh
involves recording violations through Wilayatul Hisbah and disseminating information on
Aceh's Islamic sharia regulations through dialogue and non-coercive means. This approach is
influenced by Pancasila, the ideology of Indonesia. The hijab compulsory regulation in Aceh
aligns with international human rights standards and Islamic principles, reflecting the
understanding of Maqashid al-Shariah

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