The Right to Self-Determination
of Religious Communities
JOHAN D. VAN DER VYVER
Sunali Pillay was a teenage South African girl of Hindu extraction. She gained entry into the Durban Girls’ High School—one of the most prestigious state schools in South Africa—where she received an excellent education. When she reached a certain stage of maturity, a golden stud was inserted in her nose, which is a custom in the Hindu community indicating that a girl has become eligible for marriage. This brought her into conflict with the school authorities. The school’s code of conduct, signed by her parents as a condition for Sunali’s admission to Girls’ High, prohibited the wearing of any jewelry, except earrings and then only under meticulous conditions specified in the code of conduct. Sunali’s mother explained to the school authorities that her daughter did not wear the nose stud as a token of fashion, but in deference to an age-old tradition of the Hindu community. The school management refused to grant Sunali an exemption from its dress code. A complaint was thereupon filed by Mrs. Pillay in the equality court, based on discrimination. The equality court ruled in favor of the school,1 and the matter eventually came before the Constitutional Court of South Africa. The Constitutional Court decided that refusal by the school authorities to grant Sunali an exemption from the jewelry provision in the school’s code of conduct amounted to unreasonable discrimination and was therefore unlawful.2
Leyla Şahin was a Muslim student at Istanbul University in Turkey. She was excluded from classes because she wore a headscarf. A Turkish law banned the wearing of headscarves in all universities and official government buildings, basing the proscription on the fact that Turkey is a secular state. In 1998, Leyla filed a complaint under the European system for the protection of human rights and fundamental freedoms.3 The Grand Chamber of the European Court of Human Rights—the court of final instance in the European system of human rights protection—gave judgment in favor of Turkey. It decided that the headscarf ban is based on the constitutional principles of secularism and equality and consequently did not constitute a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms—nor did her suspension from the university for refusing to remove the headscarf amount to a violation of the Convention.4 Ms. Şahin subsequently left Turkey and is now living in Vienna.
The judgment of the South African Constitutional Court was based on the nondiscrimination provisions in the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000,5 and was more precisely based on the proscription of