Is Secularism Possible in a Majority-Muslim Country?: The

Transkript

09 WingVarol Publication
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Is Secularism Possible in a Majority-Muslim
Country?: The Turkish Example
ADRIEN KATHERINE WING† AND OZAN O. VAROL‡
SUMMARY
I.
INTRODUCTION .......................................................................................................2
II.
SECULARISM GENERALLY AND THE TURKISH VERSION ...................................5
A. Definition and Characteristics of Secularism................................................5
B. The Turkish Version of Secularism ...............................................................6
C. The Unique Context of the Republic of Turkey ...........................................7
III.
THE ROLE OF RELIGION IN THE OTTOMAN EMPIRE ..........................................9
IV.
THE CHANGE FROM A THEOCRATIC REGIME TO A SECULAR
GOVERNMENT .......................................................................................................11
A. The Formation of the Turkish Grand National Assembly and the
Adoption of the First Constitution ...............................................................12
B. The Initial Wave of Reform Laws ...............................................................13
C. The Clothing Reforms...................................................................................15
D. Reforms Continued .......................................................................................15
E. Women’s Rights .............................................................................................17
F. The Final Reform: A Secular Republic .......................................................18
V.
SECULARISM AND THE TURKISH CONSTITUTION ..............................................20
A. The 1961 Constitution ...................................................................................20
B. The Current Constitution..............................................................................21
1. The Safeguards of Secularism in the Turkish Constitution ...............22
† Bessie Dutton Murray Distinguished Professor of Law, University of Iowa College of Law. A.B.
Princeton 1978; M.A. UCLA 1979; J.D. Stanford 1982. Thank you to my co-author and research assistant
Ozan Varol and his family for arranging our trip to Istanbul and Ankara during July 2005. I would also
like to thank the various Turkish officials that we met during our trip to Turkey. We would like to thank
the following research assistants for their help with this Article: Cynthia Lockett, Shaun Naidu, Ruben
Pagan, Jonathan Stagg, and Andrea Suzuki.
‡ J.D. Candidate, University of Iowa College of Law 2007; B.A. Cornell University 2003. I am indebted
to my parents, Tacettin and Yurdanur, for their encouragement, love, and support, and for introducing me
to the importance of secularism in Turkey. Thanks also to Professor Nur Serter of Istanbul University for
meeting with us in Turkey to discuss this Article and for her staunch and fearless support of secularism in
Turkey. All of the Turkish translations in the Article are mine.
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2. Secularism and Political Parties ............................................................26
3. Freedom of Religion in the Turkish Constitution ..............................27
4. Anti-Secularist Provisions in the Turkish Constitution? ...................28
a. Department of Religious Affairs...................................................28
b. Mandatory Religious Education....................................................30
VI.
THE BAN AGAINST THE WEARING OF THE ISLAMIC HEADSCARF IN
EDUCATIONAL INSTITUTIONS .............................................................................31
A. Overview of the Islamic Headscarf Ban in Turkey ....................................31
B. The Early Legal History of the Islamic Headscarf Debate and the
First Legislation Lifting the Islamic Headscarf Ban ..................................36
C. The Second Legislation Lifting the Islamic Headscarf Ban ......................39
D. Headscarf Goes to Europe: Leyla Sahin v. Turkey ...................................41
1. Background .............................................................................................41
2. Analysis Under Article 9 of the Convention.......................................42
a. Interference......................................................................................43
b. “Prescribed by Law” .......................................................................43
c. “Legitimate Aim”............................................................................44
d. “Necessary in a Democratic Society” ...........................................44
3. Analysis Under Article 2 of Protocol No. 1 of the Convention........46
4. The Dissent’s and Ms. Sahin’s Arguments ..........................................47
5. Turkish Government’s Response to the Decision..............................48
VII.
THE FUTURE OF SECULARISM IN TURKEY .........................................................49
A. Background on the Justice and Development Party ..................................49
B. Are Fundamental Changes in the Secular Regime Possible? ....................50
C. Are Minor Changes in the Secular Regime Possible?................................51
D. Implications of a Turkish Membership in the European Union...............52
VIII. CONCLUSION .........................................................................................................53
I.
INTRODUCTION
In the post-9/11 world, the Middle East has gained special importance.
Unfortunately, given the limited availability of education about international issues
in the American education system and media, the nation in general is relatively
ignorant about Middle Eastern countries. Undoubtedly, ignorance leads to unjust
prejudice and discrimination. Some view all Muslims as terrorists and all countries
in the Middle East as fundamentalist regimes and supporters of terrorism.
During an interview discussing the role that Shari’a law will play in the new
government of Iraq, then-Secretary of State Colin Powell stated that there would be
an Islamic Republic in Iraq “as there are other Islamic Republics—Turkey and
Pakistan.”1 This statement of a high-level U.S. official labeling Turkey, a strictly
1. Interview by Maybritt Illner with Colin L. Powell, Sec’y of State, in Berlin, F.R.G. (Apr. 1, 2004),
available at http://usembassy.state.gov/germany/policy/powell_berlinmitte.html (last visited Mar. 3, 2006).
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secular and democratic country, an “Islamic Republic” exemplifies the lack of
knowledge in the Western world about Middle Eastern countries. In an attempt to
remedy this widespread ignorance, this Article provides a comparative look at
secularism in the legal system of one of the most unique countries in the Middle
East, the Republic of Turkey.
Muslims make up ninety-nine percent of Turkey’s population.2 Contrary to
popular Western belief that all majority-Muslim3 states are theocracies, Turkey is a
democratic and secular state. Among the fifty-two majority-Muslim states, the
constitutions of only two countries, Turkey and Senegal, prescribe secularism.4
Indeed, as this Article discusses in Part II, the Turkish version of secularism is
arguably the strictest version of secularism implemented by any nation.5
“Turkey’s ability to maintain a secular democratic state in a region of the world
with rising Islamic fundamentalism has allowed it to maintain very strong
connections to Europe and the United States.”6 In May 2005, during a Capitol Hill
Hearing on the state of U.S.-Turkish Relations, Representative Robert Wexler (DFL) stated: “There is no greater friend [in the Middle East] to the United States
than Turkey when it comes to defending the values of freedom . . . .”7 Europe values
the Republic of Turkey “not just for where it is but for what it is.”8 Turkey’s secular
order not only protects the democratic system of the Turkish Republic itself, but also
serves as a barrier between the rest of the Western world and the continuously
spreading threat of Islamic fundamentalism from the Middle East.
Turkey is also of special importance to the United States and Europe because
of its strategic geographic location from an economic and military perspective.
Turkey is situated “at the crossroads between eastern Europe, central Asia and the
Middle East.”9 Furthermore, Turkey is “the only NATO member state to border
Iran, Iraq, Syria, and two former Soviet states.”10 Consequently, “[o]nly Turkey lies
Subsequently, Secretary Powell corrected himself by stating that Turkey is a secular and democratic
Republic. Sedat Ergin, Türkiye Icin Ilimli Islam Teorisi Dogru Degil [Moderate Islam Theory Is Not Right
for Turkey], MILLIYET (Turkey), June 19, 2005, at 13.
2. Niyazi Oktem, Religion in Turkey, 2002 BYU L. REV. 371, 373.
3. The phrase “majority-Muslim” was used by the European Court of Human Rights in Leyla Sahin v.
Turkey (Sahin I), No. 44774/98, para. 99 (Eur. Ct. H.R. June 29, 2004), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number). This Article
uses the phrase “majority-Muslim” to refer to countries with a predominantly Muslim population. This
phrase refers only to the demographic makeup of the population and does not mean that the country is an
Islamic Republic.
4. Oktem, supra note 2, at 371.
5. See infra Part II.B.
6. Dinesh D. Banani, Note, Reforming History: Turkey’s Legal Regime and Its Potential Accession to
the European Union, 26 B.C. INT’L & COMP. L. REV. 113, 115 (2003).
7. The State of U.S.-Turkish Relations: Hearings Before the Europe and Emerging Threats Subcomm.
of the H. International Relations Comm., 109th Cong. (2005). Relations between long-time allies the
United States and Turkey were strained after Turkey’s refusal to open a northern front into Iraq during
the recent Iraq war. Christopher Caldwell, Bordering on What?, N.Y. TIMES, Sept. 25, 2005, § 6. Public
approval of the United States in Turkey has decreased dramatically, mainly due to the significant impact
the Iraqi war had on the Turkish stock market and economy. Id. Thus, “Turks are quick to insist that
public opinion is not anti-American, only anti-Bush. They recall the standing ovation Bill Clinton got
when he addressed the [Turkish] National Assembly in November 1999.” Id.
8. Caldwell, supra note 7.
9. Banani, supra note 6, at 114.
10. Id.
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either close to or at the center of most of the gravest threats to Europe’s peace and
well-being.”11 As a result, Turkey’s strict secular legal system, in a region filled with
fundamentalist regimes and Islamic terrorism, is an essential protector of one of the
United States’ and Europe’s greatest allies.
Additionally, Turkey, as a secular and democratic majority-Muslim state,
provides answers to many of the questions Americans ask as the United States is
striving to instill democracy into Middle Eastern nations like Iraq.12 Can a majorityMuslim state also be democratic?13 Can women stand on equal footing with men in
the legal system of a majority-Muslim state? Can democracy, even if forcefully
implemented, stand the test of time? As this Article demonstrates, the history and
the legal system of the Turkish Republic provide an affirmative answer to all of the
foregoing questions.
Even though Turkey has accomplished the difficult task of maintaining a
democracy in a majority-Muslim state, it is widely criticized in U.S. law review
articles for a number of reasons.14 Most of these criticisms are outside the scope of
this Article. Nonetheless, it is important, when reading or writing about Turkey, to
base one’s conclusions on justified and objective observations, and to take what has
been written with a grain of salt. In 1923, an American student wrote to Mustafa
Kemal Atatürk,15 the founder of the Republic of Turkey, and asked for an
autographed picture and reply.16 Atatürk wrote back and stated: “My advice to
intelligent and studious American children is not to believe as true anything they
hear about Turks, but to carefully base their views on scientific and substantive
11. Id.
12. But see infra text accompanying notes 157-158 (noting the differences between the democratic
movement in Turkey and Iraq).
13. See Talip Kucukcan, State, Islam, and Religious Liberty in Modern Turkey: Reconfiguration of
Religion in the Public Sphere, 2003 BYU L. REV. 475, 476.
14. See generally Chante Lasco, Virginity Testing in Turkey: A Violation of Women’s Rights, 9 HUM.
RTS. BRIEF 10, 10 (2002) (alleging that women are subject to virginity testing throughout their lives in
Turkey); Report of the Joseph R. Crowley Program/Lawyers Committee for Human Rights: Joint 1998
Mission to Turkey, Special Report: Justice on Trial: State Security Courts, Police Impunity, and the
Intimidation of Human Rights Defenders in Turkey, 22 FORDHAM INT’L L.J. 2129 (1999) (criticizing
Turkey’s human-rights record); Richard J. Wilson, Can U.S. Courts Learn From Failed Terrorist Trials by
Military Commission in Turkey and Peru?, 1 HUM. RTS. BRIEF 11, 11-12 (2003) (criticizing the trial of
Abdullah Ocalan, the leader of the terrorist organization, Kurdish Worker’s Party (PKK)); Dilek Kurban,
Note, Confronting Equality: The Need for Constitutional Protection of Minorities on Turkey’s Path to the
European Union, 35 COLUM. HUM. RTS. L. REV. 151 (2003) (discussing the lack of legislation and
constitutional safeguards for the protection of minorities in Turkey); Marcia L. Pearson, Comment, A
Blemish on the Modern Face of Turkey: The Historical Background and Social, Legal, and International
Implications of Virginity Testing in Turkey, 28 N.C. J. INT’L L. & COM. REG. 663 (2003); Steven Stavros
Skenderis, Note, The Ethnic Greeks of Turkey: The Present Situation of the Greek Minority and Turkey’s
Human Rights Obligations Under International Law, 16 ST. THOMAS L. REV. 551 (2004) (alleging humanrights abuses against the Greek minorities in Turkey); Irum Taqi, Note, Adjudicating Disappearance Cases
in Turkey: An Argument for Adopting the Inter-American Court of Human Rights’ Approach, 24
FORDHAM INT’L L.J. 940, 943 (2001) (discussing “the problem of disappearances in Turkey”); Meishya
Yang, Note, The Court System on Trial in Turkey, 26 LOY. L.A. INT’L & COMP. L. REV. 517 (2004).
15. The surname Atatürk was given to Mustafa Kemal by the Turkish Grand National Assembly after
it passed the Surname Law. It means “The Father of All Turks.” DAVID L. PHILLIPS, FOREIGN AFFAIRS,
TURKEY’S
DREAMS
OF
ACCESSION
(Sept.-Oct.
2004),
available
at
http://www.foreignaffairs.org/20040901faessay83508/david-l-phillips/turkey-s-dreams-of-accession.html.
16. Abigail Bowman, Address at the Youth Day Celebration at the Turkish Embassy in Wash., D.C.
(May 19, 2004), available at http://www.ataturksociety.org/asa/voa/abby.html.
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research.”17 Thus, our goal in this Article, following Atatürk’s words, is to provide
observations into the secular legal system of Turkey, basing all of our conclusions on,
not myths, but legal documents, facts, and interviews we conducted in Turkey.
This Article examines, in six major parts, the past, present, and future of
secularism in the Republic of Turkey. Part II of the Article provides an overview of
the principle of secularism generally, and in Turkey specifically, and describes how
Turkish secularism differs from the Western notion of secularism. Part III discusses
the role of religion in the Ottoman Empire, the predecessor to the modern day
Turkey, in order to provide a background for the legal developments that occurred
after the Empire’s collapse. Part IV outlines the reforms that Atatürk and his
supporters implemented following the downfall of the Ottoman Empire and
demonstrates how a fundamentalist empire became a strictly secular government in
less than twenty years. Part V provides a thorough examination of the various
provisions of the Turkish Constitution that relate to secularism.
Part VI
demonstrates the application of the principle of secularism in Turkey by discussing
the legal history of the ban against the wearing of the Islamic headscarf in Turkish
educational institutions. This Part also analyzes the November 10, 2005 decision of
the Grand Chamber of the European Court of Human Rights in Leyla Sahin v.
Turkey.18 Finally, Part VII speculates on the future of secularism in Turkey and
discusses whether it is possible to implement any fundamental changes in the regime.
II. SECULARISM GENERALLY AND THE TURKISH VERSION
First, this Part defines secularism and describes the characteristics of a secular
government. Second, it analyzes the Turkish version of secularism. Finally, it
examines, by focusing on Turkey’s unique context, the reasons behind the strict
version of secularism that Turkey has implemented.
A.
Definition and Characteristics of Secularism
The most common definition of secularism is the separation of religion and
state.19 Nonetheless, this narrow definition does not encompass many important
characteristics of a secular government. First, in secular regimes, sovereignty
belongs to the nation and not to a divine body.20 Since sovereignty belongs to a
divine power in theocratic regimes, like the former Ottoman Empire, going against
the government is equivalent to going against God.21 Second, religion is separate
from state in a secular government.22 Religion does not affect the government’s
affairs, meaning that laws and regulations are not based on religion.23 Third, a
17. Id.
18. Leyla Sahin v. Turkey (Sahin II), No. 44774/98 (Eur. Ct. H.R. Nov. 10, 2005), available at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number).
19. Yilmaz Aliefendioglu, Laiklik ve Laik Devlet [Secularism and Secularist Government], in LAIKLIK
VE DEMOKRASI [SECULARISM AND DEMOCRACY] 74 (Ibrahim O. Kaboglu ed., 2001).
20. Id. at 75-76.
21. Id. at 75.
22. Id. at 76.
23. Id.
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secular government is neutral towards all religions.24 As such, the regime cannot
have an official religion and does not protect one religion over another.25 Likewise,
all individuals, irrespective of their religion, are equal before the law.26
Fourth, a secular regime requires the education and the legal systems to be
secular.27 The legal system does not contain laws based on religion, and the
education system is based on logic and science, not religion or dogmas.28 Fifth, a
secular government requires freedom of religion and conscience.29 Thus, secularism
does not mean the absence of religion from society. Individuals are free to exercise
their religions and manifest their religious beliefs in both the private and the public
sphere.30 Finally, a secular regime is based on pluralism, which requires the
government’s respect for all religions and religious beliefs.31 It is important to note
that the foregoing characteristics describe a theoretically perfect secular
government, which, to our knowledge, does not exist.
B.
The Turkish Version of Secularism
The Turkish version of secularism implements most of the foregoing
characteristics of a secular government, while, due to Turkey’s unique context,32
restricts some of the freedoms that a perfectly secular government would normally
afford. The Turkish word for secularism (laik) and the concept of Turkish
secularism were adopted from the French principle of secularism (laïcité).33 France
and Turkey apply a version of secularism that is stricter than the version that most
Western nations, including the United States, have implemented.34
If one thinks of secularism as two adjacent but separate fenced-off areas, the
Western notion of secularism as a general matter allows neither the state nor religion
to violate the territory of the other. In contrast, in the Turkish version of secularism,
the state can access and regulate the fenced-off area of religion, whereas religion
does not have the same reciprocal right. One example of such an action on the part
of the state is the ban against the wearing of the Islamic headscarf in Turkish
educational institutions.35 The purpose of this system is to ensure that religion does
not completely dominate the state like it did less than ninety years ago.
Because of the differences between the Western and Turkish principles of
secularism, the role that religion plays in most Western governments may seem
appalling to those not accustomed to it. One of the authors of this Article, Ozan O.
24. Aliefendioglu, supra note 19, at 76.
25. Id.
26. Id. at 78.
27. Id. at 76.
28. Id. at 76, 81-82.
30. Id.
31. Id. at 78.
32. See infra Part II.C (discussing the unique historical, geographical, and demographical context of
Turkey).
34. See Bulent Tanor, Laiklik, Cumhuriyet ve Demokrasi [Secularism, Republic and Democracy], in
LAIKLIK VE DEMOKRASI [SECULARISM AND DEMOCRACY] 26-27 (Ibrahim O. Kaboglu ed., 2001).
35. See infra Part VI (discussing the ban against the wearing of the Islamic headscarf in Turkish
educational institutions).
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Varol, is a native of Turkey who lived in Turkey for seventeen years. Being
accustomed to the Turkish version of secularism, it was, at first, very bizarre for him
to hear the President of the United States say “God bless America” at the end of his
addresses to the nation; see “In God We Trust” on American currency; see
Congressmen and Supreme Court Justices take oaths while placing their hands on
the Bible; hear “one nation under God” in the Pledge of Allegiance; and see the
Justices of the Supreme Court attend the “Red Mass” annually before the first day
the Court is in session.36 As the rest of this Article illustrates, none of the foregoing
American traditions can be implemented under the Turkish version of secularism.
C.
The Unique Context of the Republic of Turkey
The strict version of secularism in Turkey is necessary due to its historical,
geographical, and demographical context.
First, and foremost, Turkey’s
fundamentalist history has necessitated the implementation of certain safeguards,
like secularism, to protect the democratic order of the Republic. In one of its
decisions regarding secularism, the Turkish Constitutional Court stated that
“secularism ha[s] acquired constitutional status by reason of the historical experience
of the country and the particularities of Islam compared to other religions;
secularism [is] an essential condition for democracy and act[s] as a guarantor of
freedom of religion and of equality before the law.”37 Less than ninety years ago
during the reign of the Ottoman Empire, the predecessor to the modern-day Turkey,
the country was home to arguably the most fundamentalist regime in the world.38
When the Republic of Turkey was formed, the founders implemented a number of
precautions, the most important of which is secularism, to prevent Islamic
fundamentalism from ever dominating the governmental system again.
Similar restrictions appear in other nations around the world whose histories
have required the adoption of certain protections to safeguard their regimes. For
example, Germany has taken legal precautions that restrict certain rights and
freedoms to ensure that totalitarian Nazis will never rule the country again.39 Italy
36. See Elaine Spencer, Red Mass Highlights Importance of Supreme Court as New Term Begins, THE
CHRISTIAN POST, Oct. 3, 2005, available at http://www.christianpost.com/article/society/1894/section/
red.mass.highlights.importance.of.supreme.court.as.new.term.begins/1.htm (discussing the attendance of
President George W. Bush and five Supreme Court Justices at the “Red Mass” held at St. Matthews
Cathedral prior to the commencement of the Supreme Court’s new term). Rob Schenck, President of the
National Clergy Council, described the Red Mass in the following manner: “You had the heads of the
executive and judicial branches and representatives from the legislative branch fully participating in the
prayers, hymn singing and even in a clear profession of Christian faith . . . . There was no separation of
church and state today.” Id.
37. Leyla Sahin v. Turkey (Sahin I), No. 44774/98, para. 36 (Eur. Ct. H.R. June 29, 2004), available at
38. See infra Part III (discussing the role of religion in the Ottoman Empire).
39. See Turkan Saylan, Laiklik ve Demokrasi Kolokyumu [Colloquium on Secularism and
Democracy], in LAIKLIK VE DEMOKRASI [SECULARISM AND DEMOCRACY] 12 (Ibrahim O. Kaboglu ed.,
2001). For example, Austria, Belgium, Canada, the Czech Republic, France, Germany, Israel, Lithuania,
Poland, Romania, Slovakia, and Switzerland have restricted freedom of speech by criminalizing the denial
of the Holocaust. Jeff Jacoby, Op-Ed., Freedom of Hate Speech, BOSTON GLOBE, Mar. 1, 2006, at A11. In
fact, an Austrian court sentenced David Irving, a British author who denied that the Holocaust ever
occurred, to three years in prison. Id.
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has laws to prevent fascism from dominating their regime.40 Rwanda has provisions
in its Constitution to prevent genocide.41 The United States has affirmative-action
laws, which attempt to remedy the effects of past and present discrimination against
racial minorities.42 Likewise, the strict secular system of Turkey protects freedom
and democracy, both of which used to be myths under the rule of the Ottoman
Empire less than ninety years ago.
Geographically, Turkey is surrounded by some of the most fundamentalist
regimes in the world, like Saudi Arabia and the Islamic Republic of Iran. In
countries bordering Turkey, women are stoned to death for having sexual
intercourse out of wedlock, people’s hands are cut off for committing burglary, and
mass killings occur based on religion.43 One of the main reasons why Turkey has not
been a part of the inhumanity that dominates most of the Middle East is its strict
secular regime. Because secularism does not allow religion-based laws in the legal
system, criminal punishments based on Islam cannot be a part of Turkish law.
Demographically, ninety-nine percent of Turkey’s population is Muslim,44
making the country prone to the use of religion as a tool by political parties. Indeed,
so far in Turkey’s legal history, the Turkish Constitutional Court has dissolved four
political parties for violating the principles of secularism and/or advocating the
violent overthrow of the secular regime.45 For example, in 2003, the European Court
of Human Rights (ECHR), sitting in Grand Chamber, or en banc, unanimously (180) held that Turkey did not violate Article 11 on Freedom of Association of the
Convention for the Protection of Human Rights and Fundamental Freedoms (the
Convention) when the Turkish Constitutional Court dissolved the Islamist Welfare
Party (Refah Partisi).46
The ECHR outlined a great amount of evidence demonstrating the credible
and pending threat that the Welfare Party posed to the secular and democratic order
of the Republic. For example, while advocating a change in the Republic’s regime,
the leader of the Welfare Party, Necmettin Erbakan, stated: “[But] will the
transition be peaceful or violent; will it be achieved harmoniously or by
bloodshed?”47 Mr. Erbakan also advocated the implementation of a plurality of legal
systems based on an individual’s religion.48 Likewise, Hasan Huseyin Ceylan, a
member of the Welfare Party, stated: “If you want the solution, it’s sharia.”49 Sevki
Yilmaz, another member of the Welfare Party, had “issued a clear call to wage a
jihad [holy war] and had argued for the introduction of Islamic law.”50 Finally, in one
40. Saylan, supra note 39, at 12.
CONST.
arts.
13,
14
(2003),
available
at
41. See
RWANDA
http://www.oefre.unibe.ch/law/icl/rw00000_.html.
42. See generally Dan Froomkin, Affirmative Action Under Attack, WASHINGTONPOST.COM, Oct.
1998, http://www.washingtonpost.com/wp-srv/politics/special/affirm/affirm.htm (“Affirmative action is the
[United States’] most ambitious attempt to redress its long history of racial and sexual discrimination.”).
43. See Saylan, supra note 39, at 12.
45. Kucukcan, supra note 13, at 491-99.
46. See Refah Partisi (Welfare Party) and Others v. Turkey (Refah Partisi), No. 41340/98, paras. 13536 (Eur. Ct. H.R. Feb. 13, 2003), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
(search by Application Number).
47. Id. para. 31.
48. Id. para. 28.
49. Id. para. 34.
50. Id. para. 33.
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of his speeches in the Parliament, Ibrahim Halil Celik, another Welfare Party
member, declared: “I too would like blood to flow . . . . I will fight to the end to
introduce sharia.”51
The foregoing is only a small sample of the statements that Welfare Party
members made, calling for a replacement of the secular order with Shari’a. These
statements demonstrate that certain political parties in Turkey have used and will
continue to use religion in their agendas to deceive and gain the support of the
majority-Muslim population. Thus, the strict secular system of Turkey is a safeguard
that protects the democratic order of the Republic against political parties that want
to take advantage of sacred religious beliefs.
The reasons behind the strict secular system in Turkey are important to keep in
mind throughout this Article. Everything from the reforms that led to the
foundation of the Republic52 to the reasons behind the current ban on the wearing of
Islamic headscarves in all educational institutions53 should be viewed in connection
with the unique context of Turkey. Even though certain legal restrictions this
Article discusses may seem excessive from a Western point of view, they are, for the
most part, necessary safeguards to protect the secular and democratic order of the
Turkish Republic. Indeed, in light of the unique context of Turkey, the Grand
Chamber of the ECHR, in a 16-1 decision, approved the Turkish notion of
secularism and found it to be “consistent with the values underpinning” the
Convention.54
This Part provided a general overview of the principle of secularism and of the
Turkish version of secularism in the unique context of Turkey. The rest of the
Article traces the development of secularism throughout Turkey’s history. To that
effect, the next Part examines the role of religion in the Ottoman Empire, the
predecessor to the modern-day Republic of Turkey, in order to provide a
background for the secular reforms that followed the collapse of the Ottoman
Empire.
III. THE ROLE OF RELIGION IN THE OTTOMAN EMPIRE
The Ottoman Empire, the predecessor to the modern-day Republic of Turkey,
was a theocratic regime55 with Islam comprising a central part of the governmental
affairs. From the early days of the Empire, Islam was the Empire’s official state
religion.56 The Sultan of the Empire also served as the caliph, a position that has
“both temporal and spiritual authority”57 over all Muslims, including those that
resided in other nations. The caliph was to Muslims as the Pope is for Roman
Catholics, except that the orders of the caliph had the full force and effect of law.
51. Refah Partisi, No. 41340/98, para. 37.
52. See infra Part IV.
53. See infra Part VI.
54. See Leyla Sahin v. Turkey (Sahin II), No. 44774/98, paras. 113-14 (Eur. Ct. H.R. Nov. 10, 2005),
available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number).
56. M. Iskender Ozturanli, Birkac Soz [A Few Words], in ATATURK VE DIN [ATATURK AND
RELIGION] 9 (2004).
57. Kucukcan, supra note 13, at 477.
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The Empire’s primary purpose was jihad, which entailed endless battle with
other nations with the purpose of spreading Islam across the world.58 “Wars [in the
Ottoman Empire] started, ended, and started again in accordance with the orders of
the Qu’ran.”59 When the Empire lost a war, the defeat would be deemed a
punishment from Allah.60 In short, the functioning of the government was intricately
intertwined with religion.
The legal system of the Empire was based on Islamic Shari’a law and customary
law (örf).61 There were Shari’a courts in the Empire’s legal system, 62 with religious
experts as judges, who interpreted and applied Shari’a law.63 All new legislation the
government passed had to conform to Shari’a law.64 As such, Shari’a was like a
modern-day constitution, supreme to all of the laws in the Empire. In fact, the
Ottoman Empire had no constitution until 1876, almost six hundred years after its
formation.65 Even then, the Constitution of the Empire was not the supreme law of
the land, since it declared that sovereignty was given to the Emperor by God,66
reiterating that God’s word was supreme.
Women in the Ottoman Empire were, at best, second-class citizens under
religious law. For example, women had minimal inheritance rights; whereas, men
had the right to polygamy and the unilateral right to divorce their wives by simply
uttering “bos ol” (divorce).67 According to custom and religion, women had to stay
home, acting as caregivers and nurturers.68 Women were servants to their husbands,
staying in the background of all aspects of family life.69 Furthermore, the Empire
obligated its citizens to dress in accordance with their religion,70 which required all
women to wear veils. In sum, the Islamic regime deprived women of their basic
human rights in the Ottoman Empire.
The corruption of the religious institutions in the government was one of the
main causes of the collapse of the Ottoman Empire.71 The Ottomans prevented any
of the modern developments in Europe from penetrating their strict Shari’a system.72
For example, the newspaper press machine, one of the most important inventions of
contemporary civilization, was not allowed in the Empire for two hundred years.73 In
a critical period of the Ottoman Empire, Islamists in the government refused to
make alliances with foreign nations, interpreting such allegiances as being against
58. ILHAN ARSEL, SERIAT DEVLETI’NDEN LAIK CUMHURIYET’E [FROM SHARI’A TO A SECULAR
REPUBLIC] 721, 723 (5th ed. 2004).
59. Id.
60. See id.
61. See Aliefendioglu, supra note 19, at 9.
62. Ozturanli, supra note 56, at 10-11.
63. Susanna Dokupil, The Separation of Mosque and State: Islam and Democracy in Modern Turkey,
105 W. VA. L. REV. 53, 58 (2002).
64. Ozturanli, supra note 56, at 10.
65. ARSEL, supra note 58, at 699.
66. Id.
67. See Saylan, supra note 39, at 9.
68. See id.
69. See id.
70. See Leyla Sahin v. Turkey (Sahin I), No. 44774/98, para. 29 (Eur. Ct. H.R. June 29, 2004), available
at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number).
71. SADI BORAK, ATATURK VE DIN [ATATURK AND RELIGION] 28 (2004).
72. See id.
73. See id. at 29.
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11
Shari’a.74 Every reform or new invention that originated in Europe was labeled a
“Western intrusion” and was swiftly rejected.75 This fundamentalist approach to
Islam eventually led to the downfall of the Ottoman Empire, one of the longest-lived
empires in the world’s history.76
This Part provided an overview of the fundamentalist regime of the Ottoman
Empire. The next Part discusses the formation of the Republic of Turkey and the
reforms of its founder, Mustafa Kemal Atatürk, and his supporters. In light of the
strict theocratic foundations of the Ottoman Empire, one can better understand the
importance of Atatürk’s reforms, which transformed one of the most fundamentalist
governments in the world to a strictly secular and democratic regime.
IV. THE CHANGE FROM A THEOCRATIC REGIME TO A SECULAR
GOVERNMENT
“It is without a doubt that another example can’t be shown indicating greater successes
than the birth of the Turkish Republic . . . .” – John F. Kennedy (1963).77
World War I marked the virtual end of the Ottoman Empire and the beginning
of the Republic of Turkey. After the Empire lost the War alongside Germany, it
signed the Treaty of Sèvres in 1920 with the Allied Forces.78 Pursuant to the terms of
the Treaty, the Ottoman Empire lost most of its land to the Allies.79 Mustafa Kemal
Atatürk, who was a commander in the Ottoman Empire,80 found the Treaty of
Sèvres unacceptable.81 He gathered militia from all around the country and started a
nationalist movement against the Allies, as well as the Ottoman Empire, which had
accepted the terms of the Treaty.82 After almost three years of battle,83 Atatürk and
his militia defeated the Allied forces “carv[ing] out a modern republic from the ruins
of [the Ottoman Empire,] the sick man of Europe.”84
Nonetheless, winning back most of the landmass was not all that Atatürk did.
Perhaps of far more importance was the establishment of a secular government
through a series of reforms. Atatürk found the establishment of a secular regime to
74. See id.
75. See id.
76. The Ottoman Empire existed for six-hundred years. Sally MacDonald, The History from the
Mongols to Independence, SEATTLE TIMES, Jan. 26, 2003, at S4.
77. Baki Ilkin, Deputy Undersecretary of the Turkish Foreign Ministry, Remarks at the Atatürk
Society of America: Mustafa Kemal Atatürk: The Liberator, The Nation-Builder and The Statesman (May
18, 2003), available at http://www.ataturksociety.org/asa/voa/remarks_ilkin.html.
78. Dicle Kogacioglu, Progress, Unity, and Democracy: Dissolving Political Parties in Turkey, 38 LAW
& SOC’Y REV. 433, 444 n.31 (2004).
79. Id.
80. Mustafa Kemal Atatürk - His Life, http://www.ataturk.com/index.php?option=com_content
&task=view&id=13&Itemid=31 (last visited Mar. 4, 2006).
81. Kogacioglu, supra note 78, at 444 n.31.
82. See David A. Kanarek, Note, Turkey and the European Union: The Path to Accession, 9 COLUM.
J. EUR. L. 457, 460 (2003).
83. See Mustafa Kemal Atatürk - His Life, supra note 80.
84. See Dokupil, supra note 63, at 65.
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be critical in the development of the newly founded Republic of Turkey. He said:
“Look at our history. Those who hid their real beliefs under the disguise of religion
deceived our innocent nation with big words like Shari’a. You will see that what
destroyed this nation, what caused its collapse, was always the deception hidden
under the curtain of religion.”85 Accordingly, most of Atatürk’s reforms were aimed
at the separation of religion from state.
Even though Atatürk wanted to form a secular regime, he was not an enemy of
religion.86 He was an enemy of extremists and those who wanted to use religion as a
political tool.87 According to Ernest Jackh, a German thinker, Atatürk also did not
want to paint a Western face on Islam.88 Similarly, Andrew Mango, who authored a
biography on Atatürk, noted: “Atatürk’s aim was not imitation but participation in
a universal civilization . . . .”89 Indeed, it would have been ironic for Atatürk to instill
Western cultural values into a society that he had just rescued from Western
occupation.
Inevitably, the separation of state and religion required the implementation of
fundamental changes in a society that had been under the rule of Shari’a law for
hundreds of years. As the rest of this Part illustrates, everything from clothing to the
alphabet, from education to women’s rights, all of which had been intricately
intertwined with religion under the Ottoman Empire’s rule, had to be separated
from religion to establish a secular regime. In doing so, Atatürk and his supporters
aimed to return the Turkish nation to its roots when the society did not suffer under
a regime dominated by religion, and raise the nation to the level of contemporary
civilizations. By implementing a series of modernization reforms, Atatürk and his
supporters distanced the nation from the fundamentalist notions of Islam, which had
plagued the nation for centuries, and “recreated the Turkish nation, not as
Westerners, but as Turks.”90
A.
The Formation of the Turkish Grand National Assembly and the Adoption of
the First Constitution
The formation of the Turkish Grand National Assembly (TGNA) on April 23,
1920, was the first important step in changing the theocratic regime of the Ottoman
Empire to a democratic government91 where sovereignty belonged to the people.
The TGNA, which was formed when the country was still under the occupation of
the Allied forces,92 was based on the principle of equality of all citizens irrespective
of their religion,93 in strict contrast to the governmental system of the Ottoman
Empire. In fact, the first TGNA had one Jewish, one Roman Orthodox, and one
Armenian member.94
85.
86.
87.
88.
89.
90.
91.
92.
93.
94.
BORAK, supra note 71, at 63.
Id. at 27.
See id.
See id. at 177.
Ilkin, supra note 77.
See BORAK, supra note 71, at 177.
See Saylan, supra note 39, at 10.
ARSEL, supra note 58, at 702.
Id.
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13
The first step that the TGNA took in forming a democratic regime was the
adoption of the Constitution of the Republic of Turkey (Teskilat-i Esasiye Kanunu)
in 1921.95 The 1921 Constitution was the first to declare, repeating Atatürk’s words,
that “sovereignty is fully and unconditionally vest[ed] in the people.”96 This
statement represented a strong departure from the former theocratic regime,97 where
sovereignty was vested in Allah and delegated to the Sultan.98 With this declaration,
the Constitution established that the Republic of Turkey would be a democracy,
where the will of the people, as opposed to God’s word, would determine the laws
and regulations.
Even though the first Constitution established a democracy, a secular order was
not yet in the works. Article 2 of the Constitution stated that the official religion of
the Republic of Turkey would be Islam.99 Even though a secular government does
not have an official state religion,100 this provision was, at the time, a necessary evil.
In explaining why this provision kept its place in the Constitution even after the
Constitution was redrafted in 1924, Atatürk stated:
After the foundation of our Republic, when the Constitution was being
drafted, to prevent those who thought of a secular Republic as antireligious and those who wanted to use religion as a tool from taking
advantage of the situation, we had to allow this meaningless part of Article
2 to stay in the Constitution.101
Thus, Atatürk and his supporters had to make some compromises and avoid, at least
initially, overly sweeping reforms in order to establish a secular regime. As one
commentator stated: “We know that the idea of a secular Republic was Atatürk’s
best kept secret. When the time was right, he would make it a reality.”102
B.
The Initial Wave of Reform Laws
As one of the major steps towards secularization, Atatürk abolished the
nation’s quest for jihad, replacing it with his words: “Peace at home, peace in the
world.”103 Instead of focusing on endless wars to spread Islam across the world, the
new Republic of Turkey would strive towards social and economic development.104
Accordingly, this reform not only removed the religious concept of jihad from the
government system, but also paved the way for the nation’s development.
The next step in the secularization process was a law that the TGNA passed in
1922 separating the Sultanate position from that of the caliphate and abolishing the
96. Id.
97. Id.
98. See supra text accompanying note 66.
99. Ozturanli, supra note 56, at 16. The full text of the 1921 Constitution is available at
http://www.anayasa.gov.tr/eskisite/ANAYASALAR/ana21.htm.
100. See supra text accompanying notes 24-25.
101. Ozturanli, supra note 56, at 19.
102. Id. at 15.
104. Id.
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Sultanate position.105 This reform ensured that religious and executive authority,
which both belonged to the Sultan during the reign of the Ottoman Empire, would
no longer be in the hands of the same entity.106 Vahdettin, who was the Sultan of the
Empire at the time of this reform, swiftly fled to England following this
announcement from the TGNA.107 After the abolishment of the Sultanate, the
Republic of Turkey was officially formed on October 29, 1923.108
Following the official establishment of the Republic, the TGNA passed two
reform laws on March 3, 1924, which proved to be crucial in the establishment of a
secular order.109 The first, and perhaps one of the most important reforms in the
secularization process, was the abolishment of the caliphate position.110 Even though
the TGNA abolished the position of the Sultanate in 1922, the caliph, whom the
TGNA appointed following Vahdettin’s flee to England, still remained in power.111
Certain fundamentalists believed that no one, not even the TGNA, had the authority
to abolish the position of the caliphate, who had spiritual authority over threehundred million Muslims all around the world.112
Nevertheless, the risks of allowing the caliph to stay in power, even
symbolically, were too big to fathom. The caliph could have tried to exercise legal
authority, like it did during the Ottoman Empire, issuing Islamic laws inconsistent
with the legislation that the TGNA passed or even rallying fundamentalists in the
nation to overthrow the future secular government.113 Moreover, as the leader of all
Muslims, the caliph would have ensured that the rest of the world would view the
secular Republic of Turkey as an Islamic Republic and the leader of the Muslim
world.114 Thus, on March 3, 1924, to guarantee the total secularization of the
Republic, the TGNA abolished the position of the caliphate, which had been a part
of the nation for four hundred years.115
The TGNA passed another important law (Tevhid-i Tedrisat Kanunu) on
March 3, 1924, which closed religious schools (medrese) and brought all educational
institutions “under the strict control of the state.”116 Instead of the old religious
schools, which were notorious for promoting the fundamentalist notions of Islam,
the TGNA established a Faculty of Divinity117 to provide a secular religious
education. The law also made the education system coeducational and primary
education compulsory, allowing women to obtain education at least at the
elementary level.118
105.
106.
107.
108.
109.
110.
111.
112.
113.
114.
115.
116.
117.
118.
Aliefendioglu, supra note 19, at 86.
Id.
See id.
See id. at 87.
Id. at 709.
See Dokupil, supra note 63, at 68.
See id.
Kucukcan, supra note 13, at 488.
See Aliefendioglu, supra note 19, at 87.
See Saylan, supra note 39, at 10.
2006
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15
The Clothing Reforms
The TGNA also passed a number of reform laws aimed at abolishing the link
between religion and clothing119 in an effort to establish a secular and modern
regime. In 1925, the TGNA passed the law on “the Wearing of the Hat,” which
prohibited the wearing of the fez.120 Atatürk believed that the fez was “a symbol of
illiteracy and backwardness.”121 Instead of wearing the fez, the new Turkish nation
would wear the modern hat. The TGNA also prohibited certain religious officials,
irrespective of their religion, from wearing religious garments outside of religious
ceremonies with the 1934 Act on the Prohibition of the Wearing of Certain
Garments.122
In addition to regulating the clothing of men and religious officials, reform laws
also affected the clothing of Turkish women, which was of particular concern to
Atatürk. On this issue, Atatürk noted:
In some places I have seen women who put a piece of cloth or a towel or
something like it over their heads to hide their faces, and who turn their
backs or huddle themselves on the ground when a man passes by. What is
the meaning and sense of this behavior? Gentlemen, can the mothers and
daughters of a civilized nation adopt this strange manner, this barbarous
posture? It is a spectacle that makes the nation an object of ridicule. It
must be remedied at once.123
Thus, under Atatürk’s leadership, women, who were forced to wear the veil in the
Ottoman Empire pursuant to Shari’a law, gained the freedom to wear modern
clothing.124 With the help of the reform laws, Turkish women, who had lost their
identities, personalities, and freedoms under Shari’a law,125 were gaining a more
equal footing with men in the Turkish society.
D.
Reforms Continued
The reform laws continued with the abolishment of Shari’a courts, which
constituted an important secularization reform in the legal system.126 On February
17, 1926, the TGNA abolished Shari’a law replacing it with a civil code based on the
Swiss Civil Code.127 According to the new civil code, men and women were equal
119. See
Decision
No.
1989/12
(Turk.
Const.
Ct.
1989),
available
at
http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm.
120. Dokupil, supra note 63, at 70.
121. See BORAK, supra note 71, at 151.
CONST.
art.
174
(1982),
available
at
122. See
TURK.
http://www.byegm.gov.tr/mevzuat/anayasa/anayasa-ing.htm.; Dokupil, supra note 63, at 69.
123. June Starr, The Role of Turkish Secular Law in Changing the Lives of Rural Muslim Women, 23
LAW & SOC’Y REV. 497, 501-02 (1989) (quoting Atatürk).
125. Id.
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under law,128 had equal rights in “divorce, custody, and inheritance,” and polygamy
was forbidden.129 Finally, civil marriage before a government official, as opposed to
marriage conducted in a mosque before an imam, became the only type of marriage
recognized by law.130 Thus, the replacement of Shari’a with a modern civil code
constituted one of the most important steps in enhancing the social and economic
development of Turkish women.
Another important reform on the road to a secular order was “the changing of
the alphabet from Arabic to Latin script” in 1928.131 “The most difficult change in
any society is probably a language reform. Most nations never attempt it; those who
do, usually prefer a gradual approach.”132 Atatürk decided, for the reasons stated
below, that the Arabic alphabet should be replaced by the Latin alphabet. He
consulted several experts to get their opinion on how long the process would take.133
When most of the experts stated that it would take “at least five years,” Atatürk
replied: “We shall do it. Within five months.”134
Subsequently, the TGNA passed a law abolishing the Arabic script and
adopting the Latin alphabet.135 When the official alphabet was the hard-to-learn
Arabic script, the literacy rate was approximately ten percent among men136 and less
than five percent among women.137 The new Latin alphabet was easier to learn, as
exemplified by the dramatic increase in literacy rates following this reform.138
Moreover, the change to the Latin script constituted an important step “towards
breaking old religious traditions and weakening the link with the past.”139
The amendment of the Constitution in 1928 broke another religious tradition
that had been a part of the Constitution from its adoption. The TGNA removed the
part of Article 2 that stated that the official religion of the Republic was Islam.140
Moreover, the TGNA replaced the phrase “by God” with “on my honor” in the
oaths that the President and members of the Parliament take before assuming
office.141 With these amendments, the Constitution of Turkey became neutral with
respect to all religions.
The TGNA, under Atatürk’s leadership, also implemented several reforms to
help the nation better understand Islam and prevent those who aimed to use religion
as a political tool from deceiving innocent believers. For example, for the first time,
Qu’ran was translated to Turkish142 so that people could read it and understand what
it states, as opposed to blindly believing “religious experts” with hidden political
128.
129.
130.
131.
132.
133.
134.
135.
136.
137.
138.
reform).
139.
140.
141.
142.
Saylan, supra note 39, at 10.
Women’s Rights, http://www.ataturk.com/women.htm (last visited Aug. 3, 2005).
See Oktem, supra note 2, at 402.
Kucukcan, supra note 13, at 486-87.
The New Language, http://www.ataturk.com/content/view/1/9/38/ (last visited Oct. 3, 2006).
Id.
Id.
Kucukcan, supra note 13, at 486-87.
Saylan, supra note 39, at 10.
See Ilkin, supra note 77.
See id. (noting that the literacy rate more than doubled in the ten years following the alphabet
Kucukcan, supra note 13, at 487.
Id.
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17
agendas. The call to prayer, which imams make from the minarets of mosques five
times a day, was translated to and made in Turkish.143 These developments gave the
immense power of knowledge about Islam to the nation and marked an important
step in preventing fundamentalists from brainwashing innocent believers.
E.
Women’s Rights
The TGNA also passed several reform laws that focused on women’s rights in
an effort to create a secular and democratic Republic and rectify the damage that
Shari’a law had done to Turkish women. Atatürk believed that if “women do not
share in the social life in the nation, [the Turkish Republic] shall never attain . . . full
development.”144 Unless women were on an equal footing with men, the Turkish
Republic would “remain irremediably backward, incapable of treading on equal
terms with the civilizations of the West.”145 In one of his speeches, Atatürk stated:
A nation is made up of two genders, male and female. Is it possible for a
nation to attain the standards of contemporary civilization if one of these
genders advances while the other stays behind? Is it possible for half of
the nation to be chained to the ground, while the other half rose to the
skies? Undoubtedly, a nation’s development is dependent on the
advancements made by both genders.146
Thus, in 1930, under Atatürk’s leadership, the TGNA gave women “the right to
vote in municipal elections.”147 In 1933, the TGNA afforded women “the right to
vote in all elections,”148 long before women obtained the same right in other
countries like France, Italy, and Canada.149 In 1935, eighteen women were elected
members of the TGNA, along with 382 men.150 Hence, women, who were forced to
wear veils, remain in the background of all social life, and be second-class citizens
only a little more than ten years ago during the reign of the Ottoman Empire, were
able to win seats on the National Assembly.
Women’s-rights reforms led to the Turkish Republic giving “the world its first
female supreme court judge”151 and its first female fighter pilot.152 In 1993, the first
143. The TGNA changed the call to prayer back to Arabic in the 1950s. See Kucukcan, supra note 13,
at 491.
144. Starr, supra note 123, at 502.
145. Id.
146. Decision
No.
1989/12
(Turk.
Const.
Ct.
1989),
available
at
147. Starr, supra note 123, at 502.
148. Id.
149. Bowman, supra note 16.
150. Judy Ayyildiz, Atatürk Soc’y of Am., The Contribution of Turkish Women to the Modernization
of Turkey, http://www.ataturksociety.org/asa/voa/judy.html (last visited Oct. 3, 2006). Ironically, the
female-to-male ratio in the current Parliament of Turkey is less than what it was in 1935. See Metin
Camcigil,
Atatürk
Soc’y
of
Am.,
Equal
Rights
for
Women,
http://www.ataturksociety.org/asa/voa/women.html (stating that the ratio was 4.5% in 1935, compared to
4.4% in 2005).
151. Ayyildiz, supra note 150.
152. Bowman, supra note 16.
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female Prime Minister of Turkey, Tansu Ciller, took office.153 As of 2001, more than
thirty percent of the academicians in Turkish universities are women.154 At the time
of this writing, the Presidents of both the Turkish Constitutional Court and the
highest administrative court, Council of State, are female.155 These statistics
demonstrate that Atatürk’s efforts were not futile and helped Turkish women
greatly in achieving an equal status as men in society.
F.
The Final Reform: A Secular Republic
Atatürk’s long-lived dream of creating a secular republic finally became a
reality in 1937, one year before he passed away. That year, the word “secular” was
added to the Constitution as one of the fundamental characteristics of the Turkish
Republic.156 Through a series of systematic reforms and by making compromises
when necessary, Atatürk and his supporters succeeded in transforming arguably the
most fundamentalist regime in the world into a secular and democratic Republic.
There are three major reasons why Atatürk’s reforms were so successful and
readily accepted by most of the Turkish nation. First, the reforms came from within
the nation as opposed to an external force.157 Today, the United States is trying to do
in Iraq what Atatürk did in Turkey less than ninety years ago. Unfortunately, the
United States’ attempts are not likely to be as successful, because a nation is more
likely to reject reforms imposed on it by outside forces.
Second, Atatürk’s reforms occurred as part of a national uprising. After
Atatürk managed to defeat the Allies with militia that he gathered from around the
country, the Turkish nation believed in him and trusted him as a leader. Thus, when
he started implementing his reforms, the nation followed his lead, knowing that he
was striving for the advancement of the country.
Finally, the national struggle was also against the Sultan and the caliph, who
had sided with the Allies throughout the Turkish War of Independence.158 The
caliph even issued a fatwa stating that Atatürk should be killed.159 The Sultan called
the militia fighting the war against the Allies a “herd of gangsters.”160 Therefore,
when Atatürk decided to implement important reforms in the secularization process,
like abolishing the position of the Sultan and the caliph, most of the Turkish nation
was more than willing to support him.
Continuing efforts are needed to ensure that these reforms are permanent.161
Secularism in the modern-day Republic of Turkey, which is discussed in further
153. Int’l Women’s Democracy Ctr., Women in Politics: A Timeline, http://www.iwdc.org/resources/
timeline.htm (last visited Oct. 3, 2006).
155. Ersan Atar, Yuksek Mahkemeye Kadin Baskan [Female President for the High Court], SABAH,
July 26, 2005, available at http://arsiv.sabah.com.tr/2005/07/26/gnd104.html; Danistay Baskanligina Sumru
Cortoglu Secildi [Sumru Cortoglu Elected President of Council of State], MILLIYET.COM.TR, May 2, 2006,
http://www.milliyet.com.tr/2006/05/02/son/sontur36.asp.
157. Thanks to Professor Enrique Carrasco for pointing out this distinction.
159. See BORAK, supra note 71, at 100.
160. Id. at 83.
161. Id. at 7.
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19
detail in the next Part, is one of the most important protectors of Atatürk’s reforms.
In 1927, talking about his reforms, Atatürk stated:
Friends, our reforms are new. We shall see whether they will stand the
test of time, grow stronger, and become deeply rooted in our society. But,
mark my words, the minds of certain people who now wear the new hat,
shave their [long] beards, wear tuxes, and participate in public life, are still
covered with veils, turbans, and beards.162
This statement continues to hold true in the modern-day Republic of Turkey.
In order to ensure the permanence of Atatürk’s reforms, a provision was added
to the current Constitution of Turkey that gave certain reform laws special
constitutional status. Pursuant to Article 174 of the Turkish Constitution, “[n]o
provision of the Constitution shall be construed or interpreted as rendering
unconstitutional the Reform Laws indicated below, which aim to raise Turkish
society above the level of contemporary civilisation and to safeguard the secular
character of the Republic.” These reform laws include the Acts on the Unification
of the Educational System; “civil marriage according to which the marriage act shall
be concluded in the presence of the competent official, adopted with the Turkish
Civil Code”; the Adoption of International Numerals; the Adoption and Application
of the Turkish Alphabet; and the Prohibition of the Wearing of Certain Garments.163
Even though none of these reform laws can be interpreted as being unconstitutional,
there is no provision in the Constitution that would prevent their repeal through
legislation. Nonetheless, the special status the Constitution affords to the reform
laws demonstrates the important role they continue to play in Turkish society.
Atatürk and his supporters accomplished in less than twenty years what would
have normally taken “more than five to six hundred years.”164 British Prime Minister
David Lloyd George said the following about Atatürk: “The centuries rarely
produce a genius. It is our bad luck that the great genius of our era was granted to
the Turkish nation.”165 Likewise, in 1963, John F. Kennedy stated: “Atatürk’s name
reminds us the historical achievements of one of the greatest men of this century, his
inspirational leadership for the Turkish nation, his vision in understanding the
modern world, and his power and courage as a military leader.”166 Pictures and
statues of Atatürk can be seen all across Turkey, everywhere from classrooms to
offices, from government buildings to restaurants. His legacy still continues to affect
everyday life in the modern Republic of Turkey.
This Part outlined the reforms that the TGNA adopted in order to form a
secular and democratic Republic following the collapse of the Ottoman Empire.
The next Part examines the current state of secularism in the Turkish Constitution
and how the legal system has responded to Atatürk’s reforms.
162. Id. at 143.
163. TURK. CONST. art. 174 (1982), available at http://www.byegm.gov.tr/mevzuat/anayasa/anayasaing.htm. This is not a complete list of the reform laws that fall under the protection of Article 174. For a
full list, see id.
164. BORAK, supra note 71, at 165.
165. Ilkin, supra note 77.
166. Atatürk Soc’y of Am., http://www.ataturksociety.org (last visited Aug. 3, 2005).
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V. SECULARISM AND THE TURKISH CONSTITUTION
This Part provides an overview of the principle of secularism in the
Constitution of Turkey. Subpart A examines the amendments implemented in the
Constitution of 1961 with respect to secularism. Subpart B analyzes the principle of
secularism in the current Turkish Constitution.
A.
The 1961 Constitution
The 1924 Constitution of the Republic of Turkey was replaced by the 1961
Constitution167 following a takeover of the government by the Turkish Armed Forces
on May 27, 1960.168 The reason for this extreme measure was the Democrat Party’s,
which was the majority party in the TGNA, use of “religious activism to distract the
people from hard economic times” along with its use of “the army and police to
suppress opposition.”169 The military rule lasted until 1961, at which time democratic
elections resulted in the return to civilian government.170
There were several changes in the 1961 Constitution with respect to secularism
and freedom of religion. Article 12 of the new Constitution declared that everyone
is equal under the law regardless of his or her religion or sect.171 Article 19 provided
for the freedom of religion and conscience, while prohibiting the abuse of religion or
other things sacred.172 It further stated that any political party that violated the
principles in Article 19173 or tried to base, even partially, the legal, political, social, or
administrative system of the nation on religious laws would be permanently
dissolved.174 Article 57 required the programs and regulations of political parties to
conform to, among other things, the secularist characteristics of the government and
authorized the dissolution of political parties that failed to adhere to these
principles.175 Article 153 of the new Constitution gave certain reform laws special
constitutional status.176 The new Constitution also formed the Constitutional Court,
giving it the power to annul unconstitutional laws and regulations passed by the
TGNA.177 Finally, Article 154 placed the Department of Religious Affairs (Diyanet
Isleri Baskanligi) within the general administration of the government.178
169. Id.
170. Country Studies Program, Fed. Research Div., Library of Cong., Turkey – Political Parties,
http://www.mongabay.com/reference/country_studies/turkey/GOVERNMENT.html (last visited Mar. 4,
2006).
171. Aliefendioglu, supra note 19, at 88-89; see also TURK. CONST. art. 12 (1961), available at
http://www.anayasa.gov.tr/1961constitution-text.pdf.
172. Aliefendioglu, supra note 19, at 89; see also TURK. CONST. art. 19 (1961).
174. TURK. CONST. art. 19 (1961).
176. Aliefendioglu, supra note 19, at 89; see supra text accompanying note 163; see also TURK. CONST.
art. 153 (1961).
178. Aliefendioglu, supra note 19, at 89; see also TURK. CONST. art. 154 (1961). For further discussion
on the role of the Department of Religious Affairs in the Turkish government, see infra Part V.B.4.a.
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21
Consistent with the reasons behind the military takeover, the new Constitution
sought to prevent the use of religion as a political tool. Through institutions like the
Constitutional Court, as well as stiff penalties like permanent dissolution of political
parties, the drafters of the new Constitution wanted to protect firmly the secular
order of the Republic. At the same time, however, the Constitution guaranteed the
freedom of religion and conscience, as long as that freedom was not exercised to gain
political capital. In short, the overarching goal of the new Constitution was to
ensure that the secularist reforms of Atatürk maintained their status in the Turkish
government.
B.
The Current Constitution
The Constitution of Turkey was redrafted in 1982 after another military
takeover. This military coup, which occurred on September 12, 1980, resulted from
widespread terrorism and political violence179 due to the clash between the right-wing
nationalists and the liberal left. Between 1978 and 1979, an estimated number of
two-thousand people died as a result of the increasing violence in the nation.180 Thus,
most of the Turkish people, who had been suffering gravely from this violence and
the practices of corrupt politicians, welcomed the military takeover.181 Indeed,
ninety-two percent of the voters approved the 1982 Constitution drafted by the
military regime when it was submitted for referendum.182 Moreover, the Turkish
voters elected Kenan Evren, the commander who was among the leaders of the
coup, as Turkey’s next President.183
Undoubtedly, any military coup imposes severe damage on the democratic
process and is an extreme measure by most standards. A military takeover
forcefully substitutes the judgment of unelected military leaders for that of a
democratically elected legislature. It must be noted, however, that in this specific
context, the military succeeded in “effectively decreas[ing] the number of casualties
from terrorist activities.”184 Additionally, the military coup “had no affinity with the
bureaucratic-authoritarianism of the South American type. It was certainly a move
to clear up the mess made of it all by immoderate, self-seeking and short-sighted
politicians.”185 Nevertheless, it may not be appropriate to judge the propriety of a
military coup ex post. Notwithstanding how “short-sighted” or “self-seeking” these
politicians may be, they were elected to their seats by the Turkish people.186
The 1982 Constitution is still in force today, although the TGNA has amended
it significantly in 2001 to fulfill the requirements for membership in the European
180. See id.
181. See id. at 93 (“The [Turkish] public welcomed the promise of stability offered by martial law after
the rampant inflation, instability, and disorder.”).
182. TURK. CONST. provisional art. 1, available at http://www.tbmm.gov.tr/english/constitution.htm.
183. Kenan
Evren:
7.
Cumhurbaskani
[Kenan
Evren:
The
Seventh
President],
http://www.biyografi.net/kisiayrinti.asp?kisiid=111 (last visited Oct. 3, 2006).
184. See Dokupil, supra note 63, at 93-94.
185. Id. at 93 (quoting METIN HEPER, THE STATE TRADITION IN TURKEY 130 (1985)) (internal
quotations omitted).
186. In the words of Atatürk, sovereignty is “fully and unconditionally” vested in the Turkish
people—not in military leaders.
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Union.187 The rest of this subpart examines the various parts of the current
Constitution as they relate to secularism. This subpart also analyzes the provisions
in the Constitution that certain commentators have criticized as being anti-secular.
1.
The Safeguards of Secularism in the Turkish Constitution
The Preamble of the Turkish Constitution starts by declaring that the
Constitution is “in line with . . . the reforms and principles introduced by the founder
of the Republic of Turkey, Atatürk.”188 As discussed in Part IV of this Article,
Atatürk’s reforms are centered on the principle of secularism.189 The Preamble
continues by emphasizing “[t]he understanding of the absolute supremacy of the will
of the nation and of the fact that sovereignty is vested fully and unconditionally in
the Turkish nation.”190 As such, repeating Atatürk’s famous words, the Constitution
reiterates that sovereignty belongs to the Turkish nation, not to God, like it did in
the Ottoman Empire. The Preamble dedicates itself to “[t]he principle of the
separation of powers . . . which accepts the supremacy of the Constitution and the
law.”191 Thus, the laws of the country, not God’s word, are supreme in the Turkish
Republic.
The Preamble makes a drastic statement by declaring that “no protection shall
be accorded to an activity contrary to . . . principles, reforms and modernism of
Atatürk and that, as required by the principle of secularism, there shall be no
interference whatsoever by sacred religious feelings in state affairs and politics.”192
Hence, according to the Preamble, no activity has constitutional protection if it
contradicts the principle of secularism or uses religion as a political tool. The
Preamble continues by stressing “the desire for and belief in ‘Peace at home, peace
in the world.’”193 Thus, quoting Atatürk, the Preamble stresses the importance of a
peaceful state of affairs with other nations, unlike in the Ottoman Empire where
jihad was the main purpose of the nation.
The Preamble concludes by emphasizing the need for “commanding respect . . .
and absolute loyalty to [the Constitution’s] letter and spirit,”194 reiterating that the
Constitution is the supreme law of the land. The notion of the “spirit” of the
Constitution mentioned in the Preamble was reiterated in several Turkish
Constitutional Court cases, where the Court declared that “secularism” was not only
within the “letter” of the Constitution but also within its “spirit” as one of the
driving principles behind the Republic’s existence.195 Finally, the Preamble has an
important place in the Constitution pursuant to Article 176, which declares that the
187. See generally Levent Gonenc, The 2001 Amendments to the 1982 Constitution of Turkey, 1
ANKARA L. REV. 89 (2004).
188. TURK. CONST. pmbl. (1982), available at http://www.byegm.gov.tr/mevzuat/anayasa/anayasaing.htm.
189. See supra Part IV.
190. TURK. CONST. pmbl.
191. Id.
192. Id.
193. Id.
194. TURK. CONST. pmbl.
195. See,
e.g.,
Decision
No.
2001/2
(Turk.
Const.
Ct.
2001),
available
at
http://www.anayasa.gov.tr/eskisite/kararlar/SPK/K2001/K2001-02.htm.
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23
“Preamble, which states the basic views and principles underlying the Constitution,
shall form an integral part of the Constitution.”196
Article 2, titled “Characteristics of the Republic,” declares that “[t]he Republic
of Turkey is a democratic, secular and social state governed by the rule of law . . .
and based on the fundamental tenets set forth in the Preamble.”197 Therefore,
secularism is one of the three major defining characteristics of the Turkish Republic.
Moreover, since secularism is one of the “fundamental tenets” in the Preamble,198 the
Republic is based on its principles. Nonetheless, the word “secularism” is subject to
different interpretations as exemplified by the different versions of secularism other
nations have implemented.199 As such, even though the Constitutional Court has
always interpreted “secularism” in Article 2 narrowly and consistent with the strict
understanding of secularism in Turkey, the Court may choose to interpret secularism
differently in the future.
Article 2 gained even more importance after the inclusion of Article 4 in the
Constitution, which lists the irrevocable provisions of the Constitution. Article 4
declares that “the provisions in Article 2 on the characteristics of the Republic . . .
shall not be amended, nor shall their amendment be proposed.”200 Added to the
Constitution following the military coup in 1980,201 Article 4 prohibits even proposing
an amendment to Article 2, which lists secularism as one of the “[c]haracteristics of
the Republic.”202 Ironically, the drafters of the Constitution did not include Article 4
itself as one of the non-amendable articles of the Constitution.203 Thus, it is
technically possible to amend Article 2, after repealing Article 4.
Article 6 reiterates the famous words of Atatürk by declaring that
“[s]overeignty is vested fully and unconditionally in the nation.”204 Article 6 also
states that “[t]he right to exercise sovereignty shall not be delegated to any
individual, group or class. No person or agency shall exercise any state authority
which does not emanate from the Constitution.”205 One of the purposes of this
provision is to prevent religious officials, like the caliph in the Ottoman Empire,
from exercising authority over the affairs of the state. Moreover, Article 6 implies
that all state authority under the law emanates from the Constitution and not from
God like it did in the Ottoman Empire.
Likewise, Article 7 states that “[l]egislative power is vested in the Turkish
Grand National Assembly on behalf of the Turkish Nation” and that this power
“cannot be delegated.”206 One of the purposes of this Article, similar to Article 6, is
to ensure that an entity like the caliph, whose words had the full force and effect of
law in the Ottoman Empire, does not exercise legislative power over the nation.
196. TURK. CONST. art. 176.
197. Id. art. 2.
198. See Id.. pmbl; see also supra text accompanying notes 188-196.
199. See supra Part II.
202. TURK. CONST. arts. 2, 4.
203. Edip Yuksel, Cannibal Democracies, Theocratic Secularism: The Turkish Version, 7 CARDOZO J.
INT’L & COMP. L. 423, 429 (1999).
205. Id.
206. Id. art. 7.
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This provision also reiterates that the will of the Turkish nation as articulated by the
representatives it elects, not the Qu’ran, determines how the country will be
governed.
Article 10 states that “[a]ll individuals are equal without any discrimination
before the law, irrespective of . . . religion and sect.”207 As this Article discussed in
Part II.A, a secular government does not have an official religion and does not favor
one religion over the other.208 Thus, discrimination based on religion is contrary to
the principle of secularism. Accordingly, Article 10 establishes this important
principle of secularism in the Turkish legal system.
Article 11, titled “Supremacy and Binding Force of the Constitution,” states:
“The provisions of the Constitution are fundamental legal rules binding upon
legislative, executive and judicial organs, and administrative authorities and other
institutions and individuals. Laws shall not be in conflict with the Constitution.”209
Thus, this Article makes the principles of secularism prevalent throughout the
Turkish Constitution binding on all branches of the government. Likewise, in
accordance with this Article, no legislation can contradict the numerous provisions
of the Constitution on secularism.
The Turkish Constitutional Court is vested with the authority to annul laws that
are in conflict with the Constitution210 and thus, it is an important protector of the
Republic’s secular regime. In fact, a commentator has labeled the Court as “rigidly
ultra-secular.”211 Pursuant to Article 146 of the Constitution, the Court is made up of
eleven Justices, appointed by the President of the Republic.212 Article 148 gives the
Court the authority to “examine the constitutionality, in respect of both form and
substance, of laws, decrees having the force of law, and the Rules of Procedure of
the Turkish Grand National Assembly.”213
Moreover, in accordance with Article 153, the “decisions of the Constitutional
Court are final” and “binding on the legislative, executive, and judicial organs, on
the administrative authorities, and on persons and corporate bodies.”214
Furthermore, all of the judges in Turkey, including the judges on the Constitutional
Court, are “independent in the discharge of their duties” and give their judgments
“in accordance with the Constitution.”215 Finally, “[l]egislative and executive organs
207. Id. art. 10.
208. See supra Part II.A.
210. Id. art. 148. Even though the Turkish Constitutional Court is similar in some respects to the
United States Supreme Court, the procedures for application to the Court are very different. Only “[t]he
President of the Republic, parliamentary groups of the party in power and of the main opposition party
and a minimum of one-fifth of the total number of members of the Turkish Grand National Assembly . . .
have the right to apply for annulment action to the Constitutional Court.” Id. art. 150. By allowing the
opposition party in the government to apply for annulment to the Court, the Constitution prevents the
majority party from passing unconstitutional laws and preventing judicial review by the Court. Private
parties do not have the right to appeal directly to the Constitutional Court, except that another court, if it is
“convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties” may refer a
case to the Constitutional Court. Id. art. 152.
211. Hilal Elver, Reluctant Partners: Turkey and the European Union, MIDDLE E. REP., Summer 2005,
at 27.
213. Id. art 148.
214. Id. art. 153.
215. See id. art. 138.
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25
and the administration . . . shall neither alter [court decisions] in any respect, nor
delay their execution.”216
Most importantly, as Part VI.B of this Article
demonstrates, the authority the Constitution affords to the Court is not simply on
paper, because the Court has proven its independence and the binding effects of its
judgments in practice.217 In short, the Constitutional Court, armed with the authority
provided by the Constitution, is a crucial safeguard of the principle of secularism.
Pursuant to Article 13 on the “Restriction of Fundamental Rights and
Freedoms,” any restrictions imposed by law cannot be “in conflict with the letter and
spirit of the Constitution and the requirements of . . . the secular Republic . . . .”218
The phrase “secular Republic” was added to this Article in 2001.219 The addition of
this phrase “signifies the importance of [secularism] in Turkish society . . . both at
mass and elite levels,” particularly in response to the latest Islamist movements all
over the Middle East, including in Turkey.220
Article 14 on the “Prohibition of Abuse of Fundamental Rights and Freedoms”
is another important safeguard of secularism in the Turkish society. It states: “None
of the rights and freedoms embodied in the Constitution shall be exercised with the
aim of . . . endangering the existence of the democratic and secular order of the
Turkish Republic . . . .”221 All of the rights and freedoms afforded by the
Constitution, from rights of individuals to those of the press and political parties, are
subject to this broad restriction pursuant to which even “endangering” the secular
order of the Republic is prohibited.222
Secularism also appears in the oath of office for TGNA members. Article 81
states the oath as follows:
I swear upon my honour and integrity, before the great Turkish Nation, to
safeguard the . . . absolute sovereignty of the Nation, to remain loyal to the
supremacy of law, to the democratic and secular Republic, and to
Atatürk’s principles and reforms; not to deviate from . . . loyalty to the
Constitution.223
Instead of members of the Parliament swearing on the Qu’ran or by Allah, they
swear on their “honour and integrity.” Likewise, instead of taking an oath “before
God,” they swear “before the great Turkish Nation.” Moreover, members vow to
abide by some of the most important principles of the government, including
secularism and Atatürk’s reforms. The President of the Republic has to take a
similar oath as well.224
216. Id.
217. See infra Part VI.B (discussing the decision of the Turkish Constitutional Court annulling a law
that allowed the wearing of Islamic headscarves in universities).
218. TURK. CONST. art. 13 (1982), available at http://www.byegm.gov.tr/mevzuat/anayasa/anayasaing.htm.
219. Gonenc, supra note 187, at 100.
220. Id.
222. Id.
223. Id. art. 81.
224. See id. art. 103.
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Secularism and Political Parties
The Turkish Constitution also has various provisions that regulate political
parties to ensure the conformity of their agendas with the principles of secularism.
Article 68 declares that “[t]he statutes and programmes, as well as the activities of
political parties shall not be in conflict with . . . the principles of the democratic and
secular republic . . . .”225 Article 69 authorizes the Turkish Constitutional Court to
dissolve a political party “after the filing of a suit by the office of the Chief Public
Prosecutor of the Republic” if “the statute and programme of the political party
violate” the foregoing provision of Article 68.226
Likewise, Article 84 authorizes the termination of the “membership of a deputy
whose statements and acts are cited in a final judgment by the Constitutional Court
as having caused the permanent dissolution of his party.”227 To date, the
Constitutional Court has dissolved four political parties for violating the secularist
principles of the Constitution.228 As a result of the foregoing constitutional
provisions and the history of political-party dissolutions, parties that advocate the
replacement of the secular order of the Turkish Republic are likely to face severe
penalties, including permanent dissolution.229
Turkey’s bid for membership in the European Union resulted in the TGNA
amending the Constitution in 2001 to narrow the criteria for dissolving a political
party.230 The 2001 amendments to the Constitution have also authorized the
Constitutional Court, instead of permanently dissolving a political party, to deprive
that party “of State aid wholly or in part with respect to intensity of the actions
brought before the court.”231 Additionally, the 2001 amendments require the
Constitutional Court to have a three-fifths majority to dissolve a political party,232 as
opposed to an absolute majority. Thus, the 2001 amendments have made it more
difficult to dissolve political parties and have attempted to remedy some of the harsh
consequences of a Constitutional Court finding that a political party is in violation of
the principles of secularism.
225. Id. art. 68.
227. Id. art. 84.
228. See Kucukcan, supra note 13, at 491-99. The dissolved political parties are the National Order
Party (Milli Nizam Partisi), National Salvation Party (Milli Selamet Partisi), Welfare Party (Refah Partisi),
and Virtue Party (Fazilet Partisi). Id.
229. Indeed, the members of the current party in power, Justice and Development Party (Adalet ve
Kalkinma Partisi), which is seen as a continuation of the now-dissolved Virtue Party (Fazilet Partisi), have
been very careful not to make any anti-secularist statements that could jeopardize the existence of the
party. See id. at 499-501.
230. Gonenc, supra note 187, at 104. The amended Article 69 narrows the dissolution criteria by
stating that a political party only violates the provisions of Article 68 if the:
actions [violating Article 68] are carried out intensively by the members of that party or the
situation is shared implicitly or explicitly by the grand congress, general chairmanship or the
central decision-making or administrative organs of that party or by the group’s general
meeting or group executive board at the Turkish Grand National Assembly or when these
activities are carried out in determination by the above-mentioned party organs directly.
Id.
231. TURK. CONST. art. 69; Gonenc, supra note 187, at 104.
232. TURK. CONST. art. 149; Gonenc, supra note 187, at 104.
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27
In addition to providing for the dissolution of political parties that advocate the
overthrow of the secular Turkish regime, the Constitution also expresses the strong
historical attitude against the use of religion as a political tool. Article 24 states:
No one shall be allowed to exploit or abuse religion or religious feelings,
or things held sacred by religion, in any manner whatsoever, for the
purpose of personal or political influence, or for even partially basing the
fundamental, social, economic, political, and legal order of the state on
religious tenets.233
Because sultans in the Ottoman Empire, as well as political parties in Turkey, have
frequently used religion to gain political capital,234 this provision is of special
importance in the historical context of the Turkish secular order.
3.
Freedom of Religion in the Turkish Constitution
While the foregoing provisions establish safeguards and restrictions to protect
the secular system of Turkey, the Constitution also includes important provisions to
ensure an individual’s right to freedom of religion. Article 24 states that “[e]veryone
has the right to freedom of conscience, religious belief and conviction.”235 Moreover,
“[a]cts of worship, religious services, and ceremonies shall be conducted freely,
provided that they do not violate the provisions of Article 14.”236 Pursuant to Article
14, the rights that Article 24 affords can be restricted if they endanger “the existence
of the . . . secular order ofthe Turkish Republic . . . .”237 Even though there are
certain laws that regulate the expression of religion in the public sphere in
accordance with Article 14,238 people can freely practice religion in the private
sphere, as well as in churches, mosques, and synagogues. Finally, the constitutional
provisions on freedom of religion “provide for a certain conformity with Article 18
of the Universal Declaration of Human Rights . . . .”239
Further protections of freedom of religion appear in other provisions of the
Turkish Constitution. Article 15 on the “Suspension of the Exercise of Fundamental
Rights and Freedoms,” declares that even “in times of war, mobilization, martial law,
or state of emergency . . . no one may be compelled to reveal his or her religion,
conscience . . . nor be accused on account of them.”240 Article 24 expresses a similar
notion by stating that “[n]o one shall be compelled to worship, or to participate in
religious ceremonies and rites, to reveal religious beliefs and convictions, or be
blamed or accused because of his religious beliefs and convictions.”241 Accordingly,
233. TURK. CONST. art. 24 (emphasis added).
234. See supra Part III and text accompanying notes 44-51. In one instance, the continuous use of
religion as a political tool partially led to a military coup. See supra text accompanying note 169.
236. Id.
237. TURK. CONST. arts. 14, 24.
238. One of these restrictions, the ban on the wearing of the Islamic headscarf in educational
institutions, is discussed infra Part VI.
240. TURK. CONST. art. 15 (1982).
241. Id. art. 24.
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in a system of secularism considered militant by some standards, an individual’s right
to not disclose his or her religion and not be accused for religious beliefs is protected
by the Constitution, even under extreme circumstances.
4.
Anti-Secularist Provisions in the Turkish Constitution?
Even though the constitutional provisions this Article has discussed so far lay
out a strict secularism system in the Turkish government, there are two provisions in
the Turkish Constitution that some commentators view as inconsistent with the
principle of secularism. The first subsection discusses the establishment of a
Department of Religious Affairs in the Constitution. The second subsection
analyzes whether the constitutional provision mandating religious education is
against the principles of secularism.
a.
Department of Religious Affairs
The first controversial provision is Article 136 of the Constitution, which
establishes a Department of Religious Affairs (Diyanet Isleri Baskanligi) “within the
general administration.”242 The employees of the Department are civil servants,243
and its funds are appropriated from the administration’s budget.244 The Department
is responsible for the “regulation of the religious life of all Muslims living within the
country.”245 Among other things, the Department of Religious Affairs “appoints
religious officials, including imams, pays the stipends of religious officials, and directs
the administration of more than 70,000 mosques.”246 According to Article 136 of the
Constitution, the Department of Religious Affairs has to exercise its duties “in
accordance with the principles of secularism, removed from all political views and
ideas . . . .”247
Since the common definition of secularism is the separation of state and
religion, a Department of Religious Affairs in the administration of the state may, at
first glance, seem anti-secular. Nevertheless, when the Department was first formed
in 1924, its purpose was to regulate religion in the country and ensure that religion
would not overstep its boundaries and enter the political sphere.248 Since the
Department had control over all religious officials and the administration of
mosques,249 it also ensured that religious officials and imams did not instill
fundamentalist ideas into the population. At least initially, the Department of
Religious Affairs acted, not as an anti-secular institution, but as an important
safeguard designed to protect the secular order of the Republic.
Even though the Department of Religious Affairs still exists today and
operates, in theory, pursuant to the principle of secularism, it has deteriorated
242.
243.
244.
245.
246.
247.
ing.htm.
248.
249.
Id. art. 136.
Kucukcan, supra note 13, at 506 n.168.
Oktem, supra note 2, at 387.
Id.
Id.
TURK. CONST. art. 136 (1982), available at http://www.byegm.gov.tr/mevzuat/anayasa/anayasaSee Tanor, supra note 34, at 75-76.
Oktem, supra note 2, at 387.
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29
significantly since its establishment.250 In certain instances, it has crossed the fine line
between the regulation of religion and the political use of religion, the latter being
extremely inconsistent with the principle of secularism.251 Unfortunately, the Turkish
government cannot afford to abolish this Department. The government still needs a
method to regulate religion in the country to ensure that fundamentalists, under the
disguise of religious officials or imams, do not brainwash innocent people and rally
them in support of fundamentalist terrorism and against the secular order of the
Republic. Thus, the Turkish government needs to take steps to improve the
condition of the Department of Religious Affairs and ensure that it does not deviate
from a secular administration.
Certain commentators also criticize the existence of a Department of Religious
Affairs because its jurisdiction extends only to Muslims, and not to non-Muslims.
Non-Muslims in Turkey are “regulated by a separate government agency, the Office
of Foundations (Vakiflar Genel Müdürlügü) (VGM).”252 The VGM is responsible for
overseeing the “operations of churches, monasteries, synagogues, religious hospitals,
schools, orphanages, and other similar organizations.”253
Nonetheless, the fact that there are two separate government agencies
regulating different religions in and of itself does not violate the equality provisions
of the Constitution—as long as the state does not discriminate against any religion.
Since the Turkish government is under a constant threat of Islamic fundamentalism,
it very well may have seen it appropriate to create a department solely in charge of
the regulation of Islam and delegate the responsibility for regulating other religions
to a separate agency. Concededly, Turkey has been accused of discriminatorily
treating its religious minorities. The truth and extent of these allegations, however,
are somewhat dubious.
It must not be forgotten that during World War II, Turkey provided a safe
haven for over 100,000 Jews fleeing Nazi Germany.254 Jews in Turkey, like other
religious minorities, enjoy the same rights as the country’s Muslim citizens.255 With
respect to Turkey’s respect for religious minorities, Rabbi Cenk Misraji, the
“highest-ranking Jewish leader in Asian Turkey,” stated: “From the moment of our
arrival more than 500 years ago, there has been great religious tolerance in Turkey.
250. See generally Aliefendioglu, supra note 19, at 95-97.
251. See id. at 96.
253. Id.
254. See Stanford J. Shaw, Turkey and the Jews of Europe During World War II,
http://www.sefarad.org/publication/lm/043/6.html. Shaw observes:
While six millions Jews were being exterminated by the Nazis, the rescue of some 15,000
Turkish Jews from France, and even of some 100,000 Jews from Eastern Europe might well be
considered as relatively insignificant in comparison. It was, however, very significant to the
people who were rescued, and above all it showed that, as had been the case for more than five
centuries, Turks and Jews continued to help each other in times of great crises.
Id. (quoting Stanford J. Shaw, Professor of Turkish History).
255. See generally Miguel Angel Rivera, Turkey an Example of Religious Tolerance for 500
Years, VOANEWS.COM, Sept. 20, 2005, http://voanews.com/english/archive/2005-09/2005-09-20-voa65.cfm?
CFID=35813612&CFTOKEN=20458757.
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We have been able to follow our religion, and open our synagogues wherever we
desired. We were free to follow our traditions, practices and Jewish customs.”256
Similarly, Priest Mehmet Biraz in Turkey remarks that “[t]here is no
difference” between the Muslims and Christians in Turkey.257 He says that he
happily serves “the faithful” in his church in Istanbul and stresses that the “faithful”
includes Christians as well as Jews and Muslims who go to his church to pray.258
Indeed, Kuzguncuk, a town in Istanbul, Turkey, is one of the few places in the world
where one can see a church, a mosque, and a synagogue adjacent to each other.259 A
woman who lives in this particular part of Kuzguncuk stated: “Everybody loves each
other. This mosque on this side, and the synagogue on the other, being so close to
each other, shows that Turks really accept different religions and cultures.”260
Although some commentators have argued that the government has acted
somewhat discriminatorily against religious minorities in certain instances in the
past,261 it is also noted that the government has “undertaken a new, friendlier
dialogue with its non-Muslim citizens.”262 For example, in 1999, the President of
Turkey “congratulated Christians on Christmas Eve.”263 Moreover, the Department
of Religious Affairs conducted celebrations “to mark the completion of the second
millennium since the birth of Jesus Christ.”264 Because “the state’s perspective on
interreligious dialogue [has] fundamentally changed,”265 the existence of two separate
departments for the regulation of different religions in the country does not appear
to have any discriminatory effects on the population at the present time.
b.
Mandatory Religious Education
Another controversial provision in the Turkish Constitution deals with
mandatory religious education. Article 24 states: “Education and instruction in
religion and ethics shall be conducted under state supervision and control.
Instruction in religious culture and moral education shall be compulsory in the
curricula of primary and secondary schools.”266 Some commentators view the
256. Id.
257. Id.
258. See id. (“‘There is no difference between us,’ says priest Mehmet Biraz. ‘Muslims come in here
to light a candle. Yes, Muslims come to pray here. They light the candle and they pray. There is no
difference. There is only one God and different paths to that God.’”).
259. Id.
260. See Rivera, supra note 255.
261. Oktem, supra note 2, at 375-79; see also Kucukcan, supra note 13, at 503-06. According to one
commentator, in the past, religious minorities in Turkey have had problems acquiring additional property
to be used as religious institutions, getting permission to renovate religious buildings, conducting
missionary activities, and “training new clergy.” Oktem, supra note 2, at 375-78.
263. Id.
264. Id.
265. Id. at 379. For further examples of how the Turkish government’s attitude towards religious
minorities has changed, see id. at 278-79.
266. TURK. CONST. art. 24 (1982), available at http://www.byegm.gov.tr/mevzuat/anayasa/anayasaing.htm. Although not specifically stated in the Constitution, non-Muslim students are exempt from the
requirement of mandatory religious education.
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31
requirement of compulsory religious education as inconsistent with the principle of
secularism.267
Nevertheless, this provision, which was added to the Constitution in 1982
following the military coup,268 ensures that students receive a secular religious
education under government supervision. If there was no compulsory religious
education, many parents who want their children to obtain an education on Islam
would send them to private religion courses, some of which are known to have ties to
Islamic fundamentalist organizations.269
Accordingly, the need to prevent
fundamentalists from brainwashing the Turkish youth necessitates the inclusion of
this provision in the Turkish Constitution.
In conclusion, this Part summarized the provisions of the Turkish Constitution
that relate to the principle of secularism. As this Part demonstrated, the Turkish
Constitution is designed to affirm some of the most fundamental protections of the
Turkish democracy, Atatürk’s reforms, and the principle of secularism. The next
Part analyzes the application of these principles in modern-day Turkey by examining
the ban against the wearing of the Islamic headscarf in educational institutions.
VI. THE BAN AGAINST THE WEARING OF THE ISLAMIC HEADSCARF IN
EDUCATIONAL INSTITUTIONS
First, this Part provides an overview of the issues surrounding the ban on the
wearing of the Islamic headscarf in educational institutions and analyzes the
advantages and the disadvantages of the ban in light of the unique context of
Turkey. Second, it outlines and analyzes the legislation the TGNA passed regarding
Islamic headscarves, as well as the decisions of the Turkish Constitutional Court that
have addressed the constitutionality of the same. Finally, it examines the decision of
the Grand Chamber of the European Court of Human Rights in Leyla Sahin v.
Turkey, which analyzed the conformity of the Islamic headscarf ban in Turkish
educational institutions with the Convention for the Protection of Human Rights
and Fundamental Freedoms.270
A.
Overview of the Islamic Headscarf Ban in Turkey
Bans against the wearing of religious symbols in educational institutions have
sparked in several countries across Europe within the past few years. For example,
France implemented a law banning the wearing of conspicuous religious symbols in
K-12 institutions.271 Turkey also has a similar ban in place, which prohibits the
268. ALAIN BOCKEL, Laiklik ve Anayasa [Secularism and the Constitution], in LAIKLIK VE
DEMOKRASI [SECULARISM AND DEMOCRACY] 51 (Ibrahim O. Kaboglu ed., 2001).
269. See Caldwell, supra note 7 (describing the link between private Qu’ran courses in Turkey and
“the Iran-backed Turkish Hezbollah movement”).
270. See Leyla Sahin v. Turkey [Sahin I], No. 44774/98 (Eur. Ct. H.R. June 29, 2004), available at
271. Peter Cumper, Regulating Religion—Case Studies from Around the Globe, 13 WILLAMETTE J.
INT’L L. & DISP. RESOL. 87, 103-04 (2005).
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wearing of the Islamic headscarf in educational institutions.272 Unlike the French
law, the Islamic headscarf ban in Turkey also applies to universities in addition to K12 institutions. Yet, women and men are free to wear religious clothing in private or
communal premises,273 which includes homes, streets, grocery stores, movie theaters,
malls, etc.274
Before the Article discusses the various aspects of the Islamic headscarf debate
in Turkey, the authors want to stress the importance of context in this heated debate.
It is entirely possible for an individual to support the ban against the wearing of the
Islamic headscarf in Turkish educational institutions due to Turkey’s unique
context,275 and at the same time, disapprove of the ban in France, a country with no
threat or history of religious extremism. As the rest of this subpart demonstrates,
the ban against the wearing of the Islamic headscarf in universities is, for the present
time, a necessary concession in the context of Turkey to ensure that the democratic
regime of the country stands strong.
The current Islamic headscarf debate in Turkey centers on university students.
As such, not only the context of Turkey, due to its fundamentalist history,
geographic location, and demographic makeup,276 is of great importance, but also the
context of Turkish universities is critical to this debate. Unlike universities in the
United States, Turkish universities are political arenas, the breeding grounds for
political extremism, and stages to violent confrontations between political groups, as
exemplified by the hostility between the leftists and the right-wing nationalists in the
1970s.277
In the late 1970s, thousands of university students were killed due to violence
between these political groups.278 Yurdanur and Tacettin Varol, the parents of the
co-author of this Article, Ozan O. Varol, remember that at least one university
student was killed every day during the late 1970s.279 Indeed, Yurdanur Varol was
stuck in a classroom in her university when right-wing extremists raided her leftoriented campus and started shooting guns randomly through classroom windows.280
Universities were continuously shut down, and many students were unable to
graduate in four years.281 In fact, the political violence on university campuses was
one of the main reasons for the military coup on September 12, 1980.282
Because of the unique context of Turkey and Turkish universities, allowing a
conspicuous religious symbol in Turkish universities may lead to discrimination and
272. A similar ban is also in place in certain universities for men who wear long “Islamic” beards. See,
e.g., Sahin I, No. 44774/98, para. 12 (discussing the prohibition against the wearing of beards in Istanbul
University). Men who wear beards for religious reasons do so because they believe that since God grows a
man’s beard, cutting their beard is a symbol of going against God’s will. This Part focuses on the Islamic
headscarf ban, because the ban on the wearing of “Islamic” beards in educational institutions does not
have a comparably rich legal history.
273. See id. para. 93.
274. See NEVZAT BOLUGIRAY, TURBAN SAVASI [THE TURBAN WAR] 75 (2003).
275. See supra Part II.C.
276. See supra Part II.C.
277. See Caldwell, supra note 7.
278. See id.
279. Interview with Yurdanur Varol and Tacettin Varol, in Istanbul, Turk. (July 1, 2005).
280. Id.
281. Id.
282. See text accompanying notes 179-180.
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33
violence,283 similar to the events that occurred in universities during the late 1970s.
In fact, “violent confrontations between opposing radical groups” was the reason
that Istanbul University implemented strict controls on the wearing of Islamic
headscarves on the university premises.284 The likelihood of discrimination resulting
from the acceptance of the Islamic headscarf in universities was exemplified by the
statement of Ramazan Yenidede, a former pro-Islamist member of the Turkish
Parliament.285 He stated that if the Islamic headscarf is a political symbol, then
“some other clothes” students wear in universities are symbols of “immorality and
prostitution.”286
Additionally, lifting the headscarf ban may also lead to discrimination among
women who wear the Islamic headscarf, since there are different methods of wearing
the headscarf that demonstrate to which sect of Islam that individual belongs.287
Especially in light of the ongoing violence between the Shiites and Sunnis in Iraq,288
the potential for discrimination between members of the same religion is not
illusory. As such, the ban is necessary to prevent discrimination and violence in
Turkish universities.289
Furthermore, the wearing of the Islamic headscarf in educational institutions
has become a symbol of Islamic fundamentalism and a threat to the secular order of
the Turkish Republic and Turkish women’s rights.290 The Islamic headscarf is
constantly being used by “religious fundamentalist movements for political ends.”291
For example, in protests advocating the lifting of the Islamic headscarf ban in
universities, the headscarf was tied to the Turkish flag and protestors carried banners
that read: “The headscarf is our flag.”292 Some fundamentalists also state: “We have
declared jihad against the government [of Turkey] and the headscarf is the flag of
our jihad.”293 Thus, the Islamic headscarf has become a symbol for the advocates of
overthrowing the secular order in Turkey.
The wearing of the Islamic headscarf in universities has also become a symbol
of the threat against Turkish women’s rights. Islamic fundamentalists, in an attempt
to turn innocent female students against the government, tell them: “Allah
commands you to cover yourself. Your cover is our flag, your cover is our ammo
against the enemy. Who is the enemy? The government of the Republic of
Turkey.”294
Young and innocent Muslim women have become agents of
283. Decision
No.
1989/12
(Turk.
Const.
Ct.
1989),
available
at
285. BOLUGIRAY, supra note 274, at 51.
286. Id.
287. See id. at 43.
288. See, e.g., Cyrille Cartier, Kurds Vote with Dreams of Independence, USA TODAY, Oct. 17, 2005,
at 8A (noting the “[i]nsurgent violence and factional rivalries” between the Shiites and Sunnis in Iraq).
289. See
Decision
No.
1989/12
(Turk.
Const.
Ct.
1989),
available
at
292. See BOLUGIRAY, supra note 274, at 39.
293. See id. at 42.
294. See id.
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propaganda,295 while their beliefs are being abused for political and religious
extremism.
Professor Nur Serter, an Economics professor and former Vice Chancellor of
Istanbul University whom the authors interviewed in Turkey, explained the
magnitude of the situation in the following manner: “Some [extremist] groups are
forcing [women] to use the headscarf [in universities], helping them, giving them
some money.”296 In fact, Professor Serter stated some of these women were “very
happy to hear from [university officials] that they would not get an education from
the university if they [wear the Islamic headscarf,]” since this would let them take
their headscarves off, at least on the university campus.297 At least in some instances,
the Islamic headscarf ban in universities allows women to have a legitimate
explanation for not wearing the headscarf when confronting the individuals who
force them to wear it.
Turkish women are not the only ones who suffer from the effects of
fundamentalism in the context of the Islamic headscarf debate. Administrators and
government officials who support the Islamic headscarf ban in educational
institutions have been put on death lists by extremist terrorist organizations.298 For
example, Professor Nur Serter, who publicly supported the Islamic headscarf ban in
her university, has been put on the death list of terrorist organizations that advocate
the violent overthrow of the secular Turkish government.299 According to Professor
Serter, Islamist terrorist groups have murdered many important people in Turkey,
including professors, journalists, and writers, for advocating the protection of the
secular regime.300 Recently, a gunman shot five judges in the highest administrative
court of Turkey after the court rendered a decision against a school teacher who
wore the Islamic headscarf.301 When asked how she dealt with the death threats she
has been receiving, she replied: “I am not afraid of them. They may kill me
whenever they want to, but I have always been a person who is very direct with her
beliefs. I believe in secularist Turkey. I believe in modern Turkey and in Atatürk’s
reforms.”302 She still continues to voice her opinion in the media, believing that the
Islamic headscarf ban in universities is necessary for the security of the secular order
of the Turkish Republic.
Inevitably, there are disadvantages to a ban against the wearing of the Islamic
headscarf in educational institutions. First, the focus on the Islamic headscarf gives
Islamist parties an opportunity to use religion as a political tool by continuously
bringing the Islamic headscarf debate to the public’s attention.303 In the 1999
295. See id. at 42-43.
296. Interview with Nur Serter, Professor of Econ., Istanbul University, in Istanbul, Turk. (July 4,
2005).
297. Id.
298. Id.
299. Id.
300. Id.
301. Judge
Shot
to
Death
in
Turkish
Court,
May
17,
2006,
http://edition.cnn.com/2006/WORLD/europe/05/17/turkey.shooting/index.html. The gunman, a lawyer,
broke into a judges’ conference and fired his weapon after yelling: “Allahu Akbar (God is the greatest).
His anger will be upon you!” Id. (internal quotations omitted).
302. Interview with Nur Serter, supra note 296.
303. The actions of these political parties and the members of the Parliament are clearly in violation
of Article 24 of the Turkish Constitution, which prohibits “exploit or abuse [of] religion or religious
feelings, or things held sacred by religion . . . for the purpose of . . . political influence.” TURK. CONST. art.
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3/29/2007
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35
elections, one political party used slogans like, “Your votes are for the headscarf”
and “Vote for us for the headscarf.”304 Necmettin Erbakan, who was the leader of
the now-dissolved Welfare Party and who was banned from political service after his
party’s dissolution, stated: “When our party wins the elections, the university rectors
[who support the Islamic headscarf ban] will salute our covered women.”305
Likewise, four million Islamic headscarves were distributed to those attending
political rallies for the moderate True Path Party (Dogru Yol Partisi).306 The leader
of the True Path Party, Tansu Ciller, who later became the first female Prime
Minister of Turkey and who does not wear the Islamic headscarf herself, explained
her actions against the Islamic headscarf ban in the following manner: “If I do not
defend the [headscarf,] then the votes will go to [Islamist parties.] We will be better
able to control the situation if [the votes] come to us.”307 As such, the focus on the
Islamic headscarf ban allows political parties to abuse religion to gain political
capital.
Additionally, the Islamic headscarf ban in universities may be aligning certain
Muslim women who wear the Islamic headscarf simply because of their beliefs along
the same lines as those who wear it as a symbol of the fight against secularism.308
Women who wear the Islamic headscarf out of religious conviction may feel that the
ban specifically targets them as well and join Islamic fundamentalists in their protests
against the ban. Moreover, extremists try to take advantage of the headscarf ban by
targeting, among others, the rural population, a majority of whom wear the
traditional headscarf. Unlike the Islamic headscarf, the traditional headscarf does
not cover the entire head and is not a symbol or an alleged mandate of Islam.309 An
Islamist sheikh in Turkey stated: “The headscarf ban was the best thing that ever
happened to us. This will allow us to get the support of the rural population. One
drop of Muslim blood spilled over this debate will give us thousands of
supporters.”310 Accordingly, the Islamic headscarf ban may be paving the way for
fundamentalists to push innocent women to extremism.
Finally, it is important to provide a secular education to women who choose to
wear the Islamic headscarf. The ban excludes such women from universities, where
they can learn about the importance of democracy, secularism, and women’s rights.
Instead, they remain uneducated and continue to be prone to brainwashing by
fundamentalists.
Nevertheless, weighing the reasons for and against the Islamic headscarf ban
shows that, for the present time, the ban is necessary in the Turkish society to
protect the stability of the country. Perhaps, in the future, when fundamentalism is
not such an imminent threat, political parties do not use religion as a tool, and
universities do not serve as breeding grounds for political fanaticism, the Islamic
24 (1982), available at http://www.byegm.gov.tr/mevzuat/anayasa/anayasa-ing.htm.
305. See id. at 48-49.
306. Id. at 62.
307. Id.
308. See id. at 94; see also Decision No. 1989/12 (Turk. Const. Ct. 1989), available at
309. See Caldwell, supra note 7 (noting that unlike the “loose-fitting” traditional headscarves, the
Islamic headscarves constitute a symbol of “political Islam”).
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headscarf ban may be lifted. Until then, the ban against the wearing of the Islamic
headscarf in educational institutions will continue to be an important safeguard of
the principle of secularism in Turkey.
B.
The Early Legal History of the Islamic Headscarf Debate and the First
Legislation Lifting the Islamic Headscarf Ban
The wearing of the Islamic headscarf at Turkish universities is a relatively
recent phenomenon, which started in the 1980s and subsequently led to the adoption
of various regulations and legislation related to the issue.311 The Cabinet issued the
first regulation addressing the wearing of Islamic headscarves in universities in 1981.
The regulation “required staff working for public organizations and institutions and
personnel and students at State institutions to wear ordinary, sober, modern dress.
The regulations also provided that female members of staff and students should not
wear veils in educational institutions.”312 The Cabinet’s action most likely resulted
from the increasing number of students who wore the Islamic headscarf in
educational institutions.
In 1982, under the authority of the foregoing regulation, the Higher Education
Council (Yuksek Ogretim Kurulu) issued a circular prohibiting students who wear
the Islamic headscarf from attending university classes.313 The Council of State, the
highest administrative court of Turkey, upheld this circular, noting: “Beyond being a
mere innocent practice, wearing the headscarf is in the process of becoming the
symbol of a vision that is contrary to the freedoms of women and the fundamental
principles of the Republic.”314 As a result of this initial wave of legal activity, the
Islamic headscarf ban started to garner more attention from the public, which
brought the issue to the attention of the TGNA.
In response to these developments, the TGNA passed a law in 1988 which in
part provided: “Modern dress or appearance shall be compulsory in the rooms and
corridors of higher-education institutions, preparatory schools, laboratories, clinics
and multidisciplinary clinics. A veil or headscarf covering the neck and hair may be
worn out of religious conviction.”315 Then-President of the Republic Kenan Evren
applied to the Constitutional Court to annul the foregoing provision.316 In 1989, the
Turkish Constitutional Court, in a 10-1 decision,317 struck down the provision,
holding that it violated the Preamble,318 Article 2 (secularism), Article 10 (equality
before the law), Article 24 (freedom of religion),319 and Article 174 (protection of
Atatürk’s reforms) of the Constitution.320 Among the signatory Justices to this
311. See Leyla Sahin v. Turkey (Sahin I), No. 44774/98, para. 31 (Eur. Ct. H.R. June 29, 2004),
available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number).
312. Id. para. 33.
313. See id. para. 34; Aliefendioglu, supra note 19, at 110.
314. Sahin I, No. 44774/98, para. 34.
315. Id. para. 35.
316. See
Decision
No.
1989/12
(Turk.
Const.
Ct.
1989),
available
at
317. See id.
318. Id.
319. Sahin I, No. 44774/98, para. 36.
320. Decision
No.
1989/12
(Turk.
Const.
Ct.
1989),
available
at
2006
3/29/2007
1:31:44 PM
37
controversial decision was Ahmet Necdet Sezer,321 the current President of the
Republic of Turkey.
In its judgment, the Court stated that secularism is the most important among
all of Atatürk’s reforms and held that the legislation was inconsistent with a secular
legal system.322 Initially, the Court emphasized that the legislation concerned
universities, which it defined as “public institutions.”323 The legislation, according to
the Court, “undoubtedly” attempted to allow a religion-based rule in public
institutions and “formed a direct relationship between clothing and religion.”324
The Court noted that laws are not derived from religion in a secular legal
system.325 Laws that are based on religion mandate different laws for different
religions and do not encompass the principle of freedom of religion, violating the
fundamental principles of a secular legal system.326 Since the law at issue was based
on religion, the Court held that it was contrary to the principle of secularism, which
requires the separation of religion and state.327 The Court further held that even if
the legislation did not state that women can wear the headscarf “out of religious
conviction,” the law still would have been contrary to the principle of secularism
since the underlying purpose of the law, according to its legislative history, was to
allow the wearing of Islamic headscarves in universities.328 The Court also noted that
religion-based legislation, such as the law at issue, eliminated the neutrality that a
secular government is supposed to have towards all religions.329
Moreover, the Court held that the legislation was contrary to the principles of a
secular education system. It noted that a secular education system formed an
integral part of a secular government.330 In secular education, there cannot be any
discrimination based on religious beliefs.331 The Court reasoned that the law at issue
would have the effect of segregating students based on their religious beliefs with a
symbol that manifested religious affiliation, potentially resulting in discrimination
and violence.332
In addition to finding the law inconsistent with the principles of secularism, the
Court found the law to be in violation of Article 10 of the Constitution on equality
before the law, since the law made a special exception for Islamic clothing.333 The
Court also emphasized that a law allowing the wearing of Islamic headscarves “out
of religious conviction” may constitute an assertion on the part of the legislature that
321. See id.
322. See id.
323. Id.
324. Id.
325. Decision
No.
1989/12
(Turk.
Const.
Ct.
1989),
326. Id.
327. Id.
328. See id.
329. Id.
330. Decision
No.
1989/12
(Turk.
Const.
Ct.
1989),
331. Id.
332. Id.
333. Id.
available
at
available
at
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VOL. 42:1
Islam mandates that women wear the headscarf.334 Thus, the Court believed that
while the law may be seen as promoting freedom of religion on its surface, it may, on
a certain level, amount to coercion.335 The Court also noted that even if the law had
provided the freedom to wear religious symbols for people of all religions, it still
would have been inconsistent with the various provisions of the Constitution on
secularism.336
In finding the law in violation of Article 24 of the Constitution on freedom of
religion, the Court emphasized that even though a secular regime requires freedom
of religion and conscience, the use of discriminatory religious symbols in educational
institutions may result in the loss of the very freedoms that secularism is trying to
protect.337 The wearing of religious symbols in universities would not only lead to
discrimination between people from different religions, but also between people
from the same religion.338 According to the Court, women who chose not to wear the
headscarf or the veil would inevitably be labeled as faithless or irreligious.339 Thus,
following the recurring theme in the Turkish secularism debate of not allowing the
exercise of freedoms to restrict other freedoms, the Court found it appropriate in the
instant case to annul the provision that allowed the wearing of the Islamic headscarf
in universities.
Finally, the Court found the legislation contrary to Article 174 on the
Preservation of Reform Laws.340 It reasoned that Atatürk’s reforms sought to
abolish the link between religion and clothing, whereas the law at issue did the
opposite by reestablishing a link.341 The religion-based legislation at issue was
especially inconsistent with the reform law on the Unification of the Education
System, which created an education system based on logic and science, free of all
dogmas.342
The Court could have used another provision of the Constitution to support its
reasoning. Article 24 states: “Acts of worship, religious services, and ceremonies
shall be conducted freely, provided that they do not violate the provisions of Article
14.”343 The Court may have interpreted the wearing of an Islamic headscarf as an
“act of worship” subject to restriction pursuant to Article 14, which allows the
limitation of all rights and freedoms afforded by the Constitution if they are used to
endanger the secular order of the Republic.344 Thus, even if Article 24 protects the
freedom to wear the Islamic headscarf, this freedom can be restricted pursuant to
Article 14 since the Court interpreted the wearing of the Islamic headscarf in
universities as endangering the secular order of the Republic.
334. Id.
335. See
Decision
No.
1989/12
(Turk.
Const.
Ct.
1989),
available
at
336. Id.
337. See id.
338. See id.
339. Id.
340. Decision
No.
1989/12
(Turk.
Const.
Ct.
1989),
available
at
341. Id.
342. See id.
344. See id. art. 14.
2006
3/29/2007
1:31:44 PM
39
The only dissenter argued that the various provisions of the Constitution that
addressed freedom of religion allowed the wearing of clothing mandated by an
individual’s religion.345 He also addressed the potential negative implications of this
decision, one being that the ban would push innocent believers onto the same side as
extremists who wanted to abuse religion.346 Thus, the dissent believed, unlike the
majority, that the ban’s disadvantages outweighed any potential advantages that it
may have.
This subpart examined the first legislation lifting the Islamic headscarf ban and
the Constitutional Court’s decision to annul the same. Because the Turkish
Constitution does not specifically address the wearing of religious clothing in
educational institutions, the outcome of the case depended on the Court’s subjective
assessment of what the principles of secularism required. The future members of the
Court could disagree with the definition of secularism that this Court adopted and
overturn the Islamic headscarf ban in educational institutions. Indeed, as the next
subpart demonstrates, the TGNA attempted, alas only one year after this decision of
the Court, to lift the Islamic headscarf ban in educational institutions. The next
subpart analyzes this legislation and the Constitutional Court decision that examined
its constitutionality.
C.
The Second Legislation Lifting the Islamic Headscarf Ban
On October 25, 1990, only one year after the decision of the Constitutional
Court on the Islamic headscarf ban in educational institutions, the TGNA passed the
following law: “Choice of dress shall be free in higher-education institutions,
provided that it does not contravene the laws in force.”347 The legislation at issue
tried to remedy some of the defects of the previously annulled legislation on the
Islamic headscarf ban. The new provision, unlike the previous one, did not
specifically protect the Islamic headscarf, but allowed all types of clothing in
universities. Furthermore, the new legislation did not contain the phrase “out of
religious conviction” or make any other reference to religion, in an attempt to avoid,
at least on its face, religion-based legislation that the previous Court decision found
to be unconstitutional. Thus, it was clear that the TGNA was trying to bypass the
decision of the Court by avoiding some of the shortcomings of the previously
annulled legislation.
This time, Erdal Inonu, the leader of the opposition party in the TGNA,
applied to the Constitutional Court for the annulment of the foregoing provision.
The Court entered judgment on this case in 1991, holding, in a 7-4 decision, that the
legislation was constitutional.348 Nevertheless, this did not mean that women would
be allowed to wear the Islamic headscarf in universities. To the contrary, the Court
held that, “[I]n light of the principles established in its judgment of 7 March 1989, the
345. Decision
No.
1989/12
(Turk.
Const.
Ct.
1989),
available
at
346. Id.
348. See
Decision
No.
1991/8
(Turk.
Const.
Ct.
1991),
available
at
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[provision at issue] did not allow headscarves to be worn in higher-education
institutions on religious grounds and so was consistent with the Constitution.”349
The decision of the Court depended on the meaning of the word “law” in the
provision at issue since the legislation allowed freedom of clothing in universities
“provided that it does not contravene the laws in force.”350 The annulment
application conceded that there was no “law” at the time that prevented Islamic
headscarves from being worn in universities, and thus, the phrase “provided that it
does not contravene the laws in force” had no practical effect. Nevertheless, the
Court noted that the Constitution, as the supreme law of the land, was undoubtedly
a “law” within the meaning of the provision.351 Because the 1989 decision of the
Court annulling the legislation that allowed the wearing of headscarves in
educational institutions was an interpretation of the Constitution, “the laws in force”
did not allow Islamic headscarves to be worn in higher-education institutions.352
Since the provision at issue was conditioned on its not being inconsistent with “the
laws in force,” this, in turn, meant that it did not allow Islamic headscarves to be
worn in universities.353
The Court also based its reasoning on its interpretation of another provision of
the legislation, which afforded amnesty to those students disciplined for wearing
prohibited clothing in universities.354 The Court stated that if the provision at issue in
fact allowed religious clothing to be worn in universities, an amnesty would have
been automatically instituted, notwithstanding the inclusion of a separate amnesty
provision.355 This, in turn, would have rendered the amnesty provision in the
legislation superfluous.356 Stating that courts should interpret legislation to give
meaning to all of its parts, the Court concluded that the TGNA could not have
intended to allow religious clothing in higher-education institutions.357 In short, the
Court found the law to be constitutional, but sent a clear message that the legislation
legally did not allow Islamic headscarves in higher-education institutions.358
The Constitutional Court’s decision on this matter was flawed for a number of
reasons. First, the Court ignored the heart of the matter by convincing itself that the
TGNA did not intend the legislation to allow religious clothing in universities. As
Mustafa Sahin, one of the dissenting Justices, pointed out, the legislative history of
the provision demonstrated that its proponents clearly intended to undermine the
1989 decision of the Court on the same issue and allow the wearing of Islamic
headscarves in universities.359
349. Sahin I, No. 44774/98, para. 38.
350. Id. para. 37 (emphasis added).
351. Decision
No.
1991/8
(Turk.
Const.
Ct.
1991),
352. Id.
353. Sahin I, No. 44774/98, para. 38.
354. Decision
No.
1991/8
(Turk.
Const.
Ct.
1991),
355. See id.
356. Id.
357. See id.
358. See id.
359. Decision
No.
1991/8
(Turk.
Const.
Ct.
1991),
available
at
available
at
available
at
2006
3/29/2007
1:31:44 PM
41
Moreover, the Court should have sent a clear message to the TGNA that its
decisions are binding on all branches of the government by holding that this
legislation, just like its 1989 counterpart, was unconstitutional. For the same reason,
the application for annulment noted that the legislation at issue violated the
principle of separation of powers, Article 153 on the binding effect of the Court’s
judgments, and Article 11 on the supremacy of the Constitution, since the law tried
to undermine the 1989 decision of the Court on the same subject.360 Nevertheless,
the Constitutional Court did not strike down the legislation, which, on its face and
without the interpretation of the Court, permits all types of clothing in highereducation institutions. In short, the Court avoided the important questions
underlying the debate, focused on technicalities, and created bad precedent.
D.
Headscarf Goes to Europe: Leyla Sahin v. Turkey
1.
Background
Most recently, a case involving the Islamic headscarf ban in Turkish highereducation institutions, Leyla Sahin v. Turkey, made its way to the Grand Chamber of
the ECHR.361 Leyla Sahin, who “consider[ed] it her religious duty to wear the
Islamic headscarf,” was a student at the University of Istanbul Department of
Medicine since August 26, 1997.362 In 1994, long before Ms. Sahin’s enrollment at the
University of Istanbul, the University executives adopted a resolution regarding the
dress code on the university premises.363 The resolution stated, in part, that “[t]he
Constitutional Court has delivered a judgment which prevents religious attire [from]
being worn in universities.”364 The Vice Chancellor of Istanbul University “was
concerned that the campaign for permission to wear the Islamic headscarf on all
university premises had reached the point where there was a risk of its undermining
order and causing unrest at the University [and] called on the students to comply
with the rules on dress . . . .”365
On February 23, 1998, the Vice Chancellor issued a circular that stated:
“[S]tudents whose ‘heads are covered’ (who wear the Islamic headscarf) and
students . . . with beards must not be admitted to lectures, courses or tutorials.”366 In
accordance with this circular, Ms. Sahin was denied access to a neurology lecture as
well as written examinations on public health and oncology because she was wearing
the Islamic headscarf.367 Ms. Sahin was thereafter suspended from the university for
one semester because she had shown that she intended to continue to wear the
Islamic headscarf to lectures and/or tutorials.368
360. See id.
361. Leyla Sahin v. Turkey (Sahin II), No. 44774/98 (Eur. Ct. H.R. Nov. 10, 2005), available at
362. Id.
364. Id. (quoting the resolution) (internal quotations omitted).
365. Id. para. 44.
366. Sahin II, No. 44774/98, para. 16 (quoting the circular).
367. Id. para. 17.
368. Id. paras. 22, 24.
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Subsequently, Ms. Sahin filed suit in the Istanbul Administrative Court to set
aside the circular issued by the Vice Chancellor.369 On March 19, 1999, the Istanbul
Administrative Court dismissed the suit holding that the Vice Chancellor had the
authority to regulate students’ clothing in the manner provided for in the circular
based on the previous decisions of the Constitutional Court370 and the Council of
State.371 On April 19, 2001, the Council of State affirmed the judgment of the
Administrative Court.372
Ms. Sahin also applied to the ECHR alleging that Turkey, by instituting a ban
against the wearing of the Islamic headscarf in universities violated Article 9
(Freedom of Religion) and Article 2 of Protocol No. 1 (Freedom of Education) of
the Convention.373 The following two subsections analyze, respectively, the ECHR’s
decision on both of these claims.
2.
Analysis Under Article 9 of the Convention
Ms. Sahin argued that the ban against the wearing of the Islamic headscarf in
Turkish higher-education institutions “constituted an unjustified interference with
her right to freedom of religion, and, in particular, her right to manifest her religion”
under Article 9.374 Article 9 states:
1. 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 and in public or in private, to
manifest his religion or belief, in worship, teaching, practice and
observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to
such limitations as are prescribed by law and are necessary in a democratic
society in the interests of public safety, for the protection of public order,
health or morals, or for the protection of the rights and freedoms of
others.375
Article 9 cases before the ECHR involve a two-layered analysis. The first issue
is whether there was an interference by a member state with the applicant’s right to
freedom of religion within the meaning of Article 9, section 1 of the Convention.376
If there was no interference, there is no violation of Article 9. If there was an
interference, the Court may still find no violation if it decides that the interference
369. Id. para. 18.
370. See supra Parts VI.B-C.
371. Sahin II, No. 44774/98, para. 19.
372. Id. para. 20.
373. Id. paras. 1, 3.
374. Id. para. 70.
375. Convention for the Protection of Human Rights and Fundamental Freedoms, art. 9, 213 U.N.T.S.
222, entered into force Sept. 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11 which entered into force
on
Sept. 21, 1970, Dec. 20, 1971, Jan. 1, 1990, and Nov. 1, 1998, respectively available at
http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf.
376. Sahin II, No. 44774/98, para 75.
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43
with the freedom to manifest one’s religious beliefs was “prescribed by law, pursued
a legitimate aim and was necessary in a democratic society” within the meaning of
Article 9, section 2 of the Convention.377
On June 29, 2004, the ECHR Chamber unanimously held that Turkey had not
violated Article 9 of the Convention by instituting the headscarf ban.378
Subsequently, Ms. Sahin applied to the Grand Chamber of the ECHR, which
accepted her request to hear her case en banc.379 The Grand Chamber also held, in a
16-1 decision, that the Islamic headscarf ban in Turkish educational institutions did
not violate Article 9 of the Convention.380
a.
Interference
In the first part of its analysis, the Court held that there was “an interference
with the applicant’s right to manifest her religion.”381 Ms. Sahin alleged that she was
wearing the Islamic headscarf to comply with what she believed were her religious
duties.382 Accordingly, the regulations at the University of Istanbul, “which placed
restrictions of place and manner on the right to wear the Islamic headscarf,”
amounted to an interference within the meaning of Article 9, section 1 of the
Convention.383
b.
“Prescribed by Law”
Therefore, the Court proceeded to an analysis under Article 9, section 2. First,
the Court had to determine whether or not the interference with the applicant’s right
to manifest her religion was “prescribed by law.”384 For an interference to meet this
standard, it has to (1) have “a basis in domestic law,” (2) “be accessible to the person
concerned,” and (3) be foreseeable “to a degree that is reasonable in the
circumstances.”385 The word “law” within the context of this test refers to both
statutes and the interpretation of those statutes by the courts.386
First, the Court held that the interference with Ms. Sahin’s right to manifest her
religion was based on a valid source of law—a 1991 decision of the Turkish
Constitutional Court that interpreted a statute regarding the wearing of religious
clothing in higher-education institutions.387
Second, the decision of the
Constitutional Court, which was published in the Official Gazette on July 31, 1991,
377. Id. (internal quotations omitted).
378. Id. para. 8.
379. Id. paras. 9-10.
380. Id. para. 166.
381. Sahin II, No. 44774/98, para. 78 (quoting the Chamber’s judgment) (internal quotations omitted).
382. Id.
383. Id.
384. See id. paras. 84-98.
385. Id. para. 84.
386. Sahin II, No. 44774/98, para. 88.
387. Id. paras. 89, 92, 98; see supra Part VI.C (discussing the 1991 decision of the Turkish
Constitutional Court).
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was accessible to Ms. Sahin.388 Finally, the interference was “foreseeable” because
the University of Istanbul had regulations banning the wearing of the Islamic
headscarf since 1994—“well before” Ms. Sahin’s enrollment at the University.389
Thus, the government’s interference with Ms. Sahin’s right to manifest her religion
satisfied the “prescribed by law” standard.390
c.
“Legitimate Aim”
Second, the Court held that the government’s interference also satisfied the
“legitimate aim” standard.391 Indeed, Ms. Sahin herself conceded before the
Chamber that this standard was met “in view of the importance of upholding the
principle of secularism and ensuring the neutrality of universities.”392 Specifically,
the Court held that the interference “pursued the legitimate aims of protecting the
rights and freedoms of others and of protecting public order”393 within the meaning
of Article 9, section 2.
d.
“Necessary in a Democratic Society”
Finally, the Court had to determine whether the government’s interference was
“necessary in a democratic society” within the meaning of Article 9, section 2. The
Court noted that regulations intended to “prevent certain fundamentalist religious
movements from exerting pressure on students,” ensure “peaceful co-existence
between students,” and protect “public order and the beliefs of others” may fall
within the protection afforded to the states by Article 9, section 2 of the
Convention.394 It observed that the interference with the applicant’s right to manifest
her religion was based on the principles of equality and secularism,395 the latter being
“one of the fundamental principles of the Turkish State.”396 The Court further
emphasized that the Islamic headscarf, as a “powerful external symbol,” may be
forcefully imposed on women by a “religious precept” and may thus violate the
principles of gender equality, non-discrimination, and tolerance.397
The Court also stressed that, in applying the principles of the Convention, there
is a “margin of appreciation,” or deference, accorded to the member states.398 The
Court noted that this margin was especially necessary in this case because opinions
with respect to the relationship between the state and religion varied widely among
388. Id. para. 93.
389. Id. paras. 97-98.
391. Sahin II, No. 44774/98, para. 99.
393. Leyla Sahin v. Turkey (Sahin II), No. 44774/98, para. 99 (Eur. Ct. H.R. Nov. 10, 2005), available
at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number).
394. See id. para. 111.
395. See id. para. 112.
396. Id. para. 114.
397. Id. para. 111.
398. Sahin II, No. 44774/98, paras. 109-10.
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45
democratic societies.399 The “margin of appreciation” was particularly important in
cases involving the wearing of religious symbols in educational institutions, an issue
on which democratic societies had not reached a consensus, and rules varied greatly
from one nation to another.400
In emphasizing the “margin of appreciation” left to the member states, the
Court also noted the importance of the unique context of Turkey.401 The Court
explained that it cannot lose “sight of the fact that there are extremist political
movements in Turkey which seek to impose on society as a whole their religious
symbols and conception of a society founded on religious precepts . . . .”402 The
Court added that, in compliance with the standards of the Convention, member
states, based on their context and historical experience, had the right to prevent such
political movements.403 Consequently, the Turkish Islamic headscarf ban in highereducation institutions met a “pressing social need” by maintaining public order and
protecting the freedoms of others—especially those who chose not to wear the
headscarf, “which is presented or perceived as a compulsory religious duty.”404
After concluding that the Islamic headscarf ban in Turkish educational
institutions served legitimate objectives, the Court asked whether there was a
reasonable relationship between those objectives and the means employed to
achieve them.405 In this context, the Court noted that Muslim students in Turkish
universities had the right to practice their religion in universities “within the limits
imposed by educational organisational constraints.”406 The Court afforded a great
amount of deference to the university authorities with respect to the means
employed, noting that they are “better placed than an international court to evaluate
local needs and conditions.”407 Moreover, the Court praised the decision-making
process that led to the adoption of the ban, noting that it weighed all of the interests
at stake.408 Finally, it emphasized that the process of regulating the Islamic
headscarves protected the students’ interests since the regulations had to be in
conformity with statutes and be subject to judicial review.409
In light of the margin of appreciation accorded to the member states, as well as
Turkey’s historical and religious context, the Islamic headscarf ban in highereducation institutions was justified and proportionate to the government’s legitimate
objectives.410 Thus, the ban fulfilled the “necessary in a democratic society”
requirement under Article 9, section 2. Accordingly, having satisfied all of the
399. Id. para. 109.
400. See id.
401. Id. para. 115; see also supra Part II.C.
402. Sahin II, No. 44774/98, para. 115 (quoting the Chamber’s judgment) (internal quotations
omitted).
403. Id.
404. See id. (quoting the Chamber’s judgment) (internal quotations omitted).
405. Id. para. 117.
406. Id. para. 118.
407. Sahin II, No. 44774/98, para. 121.
408. Id. para. 159.
409. Id.
410. See id. para. 122.
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criteria under Article 9, section 2, the Court held that Turkey had not breached
Article 9 of the Convention.411
3.
Analysis Under Article 2 of Protocol No. 1 of the Convention
Ms. Sahin also alleged that the Islamic headscarf ban in Turkish highereducation institutions violated Article 2 of Protocol No. 1, which provides that “[n]o
person shall be denied the right to education.”412 Initially, the Court held that the
“right to education” within the meaning of Article 2 of Protocol No. 1 encompasses
the right to attend institutions of higher education.413 The Court also noted that even
though the right to education is an important and fundamental right, it is not
absolute and may be limited by the member states in light of the “margin of
appreciation” accorded to them.414 Such limitations would be upheld if they are
reasonably related to the legitimate aims sought to be achieved by the limitations.415
Finally, the Court emphasized that the language of Article 2 of Protocol No. 1 must
be read in connection with other provisions of the Convention, and especially in the
context of this case, Article 9.416
In applying these general principles to the facts of the case, the Court found no
violation of Article 2 of Protocol No. 1.417 The Court incorporated by reference
many of the statements made in connection with Ms. Sahin’s claim under Article 9,
noting that the limitations in this case aimed to “preserve the secular character of
educational institutions.”418 Further, it noted that, for the reasons stated above in the
context of Article 9, the limitations on Ms. Sahin’s right to wear the Islamic
headscarf had a reasonable relationship to the aims they sought to achieve.419
Finally, the Court emphasized that it would be unrealistic for Ms. Sahin to be
unaware of the regulations in place at Istanbul University and concluded that the
disciplinary measures imposed for violating those regulations were foreseeable.420
Thus, the Islamic headscarf ban in Turkish higher-education institutions did not
violate Article 2 of Protocol No. 1 of the Convention.421
411. Id. para. 123.
412. Sahin II, No. 44774/98, para. 131.
413. Id. para. 141.
414. Id. paras. 153-54.
415. Id. para. 154. Even though the ECHR noted that education is a “fundamental” right, it applied a
test similar to the “rational basis” test adopted by the U.S. Supreme Court for non-fundamental rights. See
Clark v. Jeter, 486 U.S. 456, 461 (1988) (“At a minimum, a statutory classification must be rationally
related to a legitimate governmental purpose.”). The U.S. Supreme Court applies the “strict scrutiny” test
to fundamental rights, id., upholding limitations of those rights only if they are “narrowly tailored to
further compelling governmental interests.” See Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
416. Sahin II, No. 44774/98, paras. 155, 157.
417. Id. paras. 157-62.
418. Id. para. 158.
419. Id. para. 159.
420. Id. para. 160.
421. Sahin II, No. 44774/98, para. 162.
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47
The Dissent’s and Ms. Sahin’s Arguments
The dissenting judge and Ms. Sahin raised several arguments that the majority
did not specifically rebut, and which the authors find important to address here.
First, the dissent argued that there was no evidence that Ms. Sahin had intended to
protest against the principles of secularism by wearing the Islamic headscarf.422
Nonetheless, this argument ignores the reality that the wearing of the Islamic
headscarf in public institutions itself has become a symbol of the threat against the
secular order of the Republic and Turkish women’s rights423—notwithstanding the
individual’s personal beliefs or intentions. Moreover, the wearing of the Islamic
headscarf only for religious beliefs does not prevent discrimination between women
who wear different types of headscarves due to their particular sect and against
women who do not wear the headscarf.424 Thus, the general ban against the wearing
of the Islamic headscarf, regardless of the particular individual’s intentions, is
necessary to achieve all of the purposes sought to be achieved by the implementation
of the ban (e.g., gender equality, non-discrimination, protection of secularism, etc.).
Furthermore, based on the interviews the authors conducted in Turkey, women
who wear the Islamic headscarf due to their beliefs, for the most part, do not object
to taking off their headscarf before they enter the university premises and putting it
back on after they leave.425 Some even wear a wig to conceal their hair,426 thereby
leaving a highly conspicuous religious symbol outside of the school premises and at
the same time complying with what they believe is a religious mandate to cover their
hair. Mostly, the women who want to wear the Islamic headscarf as a symbol of the
fight against the secular order of the Republic protest against the regulations
implemented in universities. In fact, a commentator has noted that the Islamic
headscarves worn by most of the university students who have refused to take them
off have the same color and design, leading him to believe that these women are
being directed from the same, central organization.427 As this Article discussed in
Part VI.A, even though the Islamic headscarf ban will inevitably affect some women
who want to wear their Islamic headscarves to universities with no intention of
threatening the secular order of the Republic, the advantages of the headscarf ban
outweigh its disadvantages.428
Second, Ms. Sahin argued that the wearing of the Islamic headscarf in
universities was not inconsistent with the principle of secularism, as exemplified by
the lack of an Islamic headscarf ban in universities in various other secular European
countries.429 Nonetheless, certain European countries that never had a serious threat
or history of religious extremism may be able to uphold their secular order without
having to institute such a ban. On the other hand, Turkey has had a long history of
422. Id. para. 8 (Tulkens, J., dissenting).
423. See supra notes 290-297 and accompanying text.
425. Interview with Alphan Kan and Yigit Kan, Turkish university students, in Istanbul, Turk. (July 5,
2005); see also Interview with Nur Serter, supra note 296.
426. Interview with Alphan Kan and Yigit Kan, supra note 425.
428. See supra Part VI.A.
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fundamentalism under the Ottoman Empire,430 and there are ongoing fundamentalist
threats to the Turkish secular order. The fact that the lack of an Islamic headscarf
ban in the educational institutions of other European countries has not threatened
their secular order is by no means a basis for arguing that the same will be true in the
unique context of Turkey.431
Finally, the applicant asserted that the Turkish government was not uniformly
applying the restrictions on religious symbols since there was no history of a ban
against “students of the Jewish faith . . . wearing the skullcap or Christian students
the crucifix.”432 To the contrary, and as the majority pointed out, the regulations at
the University of Istanbul prohibited the wearing of clothes that symbolize “any
religion,” and thus, did not specifically target Islamic headscarves.433 Even if the
regulation had singled out Islamic headscarves, there are a number of reasons that
may demonstrate that there would be no discriminatory reasons behind such a
regulation. First, Muslims make up ninety-nine percent of Turkey’s population,434
and thus, there are simply not many Christian or Jewish students in Turkish
universities to make the wearing of the skullcap or the crucifix in universities a
problem. In fact, of the several university students the authors interviewed in
Turkey, none of them had ever seen a student wearing a skullcap or a crucifix to
campus.435
Moreover, Jewish or Christian fundamentalists are not threatening to
overthrow the secular order of the Turkish government. Thus, there is no reason to
institute a ban against symbols that have not been or do not threaten to be sources of
tension or violence. For example, while there is a ban against the wearing of gang
symbols in certain high schools in the United States to prevent violence,436 there is no
similar ban against the wearing of marching-band outfits, even though both are
symbols of an organization. Finally, if there were an increasing number of students
wearing the crucifix or the skullcap to universities, resulting in discrimination and
affecting the neutrality of educational institutions, the TGNA would probably
implement a ban against the wearing of these religious symbols in universities as well
to protect public order.
5.
Turkish Government’s Response to the Decision
Ironically, the same government who argued the case on behalf of Turkey and
in support of the Islamic headscarf ban before the ECHR, reacted negatively to the
430. See supra Part III.
431. See supra Part II.C (discussing the unique historical, geographical, and demographical context of
Turkey).
432. Sahin I, No. 44774/98, para. 88.
433. Leyla Sahin v. Turkey (Sahin II), No. 44774/98, paras. 47, 118 (Eur. Ct. H.R. Nov. 10, 2005),
available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number)
(“Students at the University of Istanbul shall not wear clothes that symbolise or manifest any religion,
faith, race, or political or ideological persuasion in any institution or department of the University of
Istanbul, or on any of its premises.” (emphasis added)).
435. Interview with Alphan Kan and Yigit Kan, supra note 425.
436. See, e.g., Jamie Ayala, New Dress Code Aims to Defuse Gang Tensions, PRESS ENTERPRISE
(Cal.), Apr. 29, 2005, at B1; Sue Lowe, Dress Code Enforcement Going Well, S. BEND TRIB. (Ind.), Nov.
12, 2003, at D3; Vanessa Thomas, Seminars Give City Schools Tools to Deal with Youth Gangs, BUFFALO
NEWS (N.Y.), Jan. 6, 2005, at B3.
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49
outcome of the case.437 Top government officials, including Prime Minister Recep
Tayyip Erdogan and Foreign Minister Abdullah Gul, undermined the importance of
the ECHR’s verdict and seemed determined in their attempts to lift the ban.438
Concededly, there is nothing in the ECHR’s decision itself that could prevent the
Turkish government from lifting the Islamic headscarf ban. The ECHR decided that
the ban was consistent with the Convention, but it would be hard to imagine how
lifting the ban would be inconsistent with the Convention. Nevertheless, as long as
the Turkish Constitutional Court continues to interpret the principle of secularism
strictly, any legislation attempting to lift the Islamic headscarf ban in educational
institutions is likely to be struck down as unconstitutional.
This Part examined the legal history of the ban against the wearing of the
Islamic headscarf in Turkish educational institutions. It analyzed the two pieces of
legislation that addressed the ban and the Constitutional Court decisions that
reviewed the constitutionality of the same. Finally, it discussed the holding of the
Grand Chamber of the ECHR in Leyla Sahin v. Turkey, where the Court held that
Turkey was not in violation of Article 9 (Freedom of Religion) or Article 2 of
Protocol No. 1 (Freedom of Education) of the Convention for banning the Islamic
headscarf in higher-education institutions. The next Part speculates on the prospects
of the principle of secularism in Turkey and discusses the future of the Islamic
headscarf ban in educational institutions.
VII. THE FUTURE OF SECULARISM IN TURKEY
A.
Background on the Justice and Development Party
This Part discusses the future of the principle of secularism in Turkey,
especially in light of the pro-Islamist Justice and Development Party’s (Adalet ve
Kalkinma Partisi) (AKP) victory in the last election.439 A great number of AKP’s
members used to be a part of the Welfare Party and the Virtue Party, both of which
the Turkish Constitutional Court dissolved for advocating a change in the secular
order of the Republic.440 Accordingly, AKP is seen as a successor to those parties.441
Indeed, Recep Tayyip Erdogan, the current leader of AKP and the Prime
Minister of Turkey, was banned from holding public office in 1998 after he made the
following recitation of a poem during a political rally: “Mosques are our barracks,
minarets our bayonets, domes our helmets, the believers our soldiers.”442 Ironically,
Ziya Gokalp, a defender of secularism, wrote the poem in the 1910s;443 however, the
437. See Gov’t Says Determined to Lift Headscarf Ban, TURKISH DAILY NEWS, Nov. 12, 2005,
available at http://www.turkishdailynews.com.tr/article.php?enewsid=28115.
438. Id.
440. See id. at 493-99.
441. See id. at 499.
442. Elver, supra note 211, at 27. The TGNA subsequently lifted this ban after AKP won the majority
seat in the Parliament. See Caldwell, supra note 7.
22,
2002,
443. Murat
Bardakci,
Siiri
Boyle
Montajlamislar,
HURRIYETIM, Sept.
http://www.hurriyetim.com.tr/archive_articledisplay/0,,nvid~177061,00.asp.
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Constitutional Court interpreted the speech as “advocating Islamic revolution”444
given its political context. Because of Turkey’s history of political-party dissolutions,
the members of AKP have been very careful not to make any statements or adopt a
public agenda that the Constitutional Court could view as being anti-secular, even
though the party may very well have a hidden agenda of its own.445
B.
Are Fundamental Changes in the Secular Regime Possible?
Can AKP change the democratic and secular order of the Turkish Republic? If
AKP attempted to implement any fundamental changes in the regime, they would
face intense legal and political opposition. First and foremost, the “ultra-secular”446
Turkish Constitutional Court would strike down any anti-secular legislation AKP
passes through the Parliament. As such, AKP has reasons for “wanting to curtail the
authority of the Constitutional Court.”447
AKP could go about implementing a change in its favor in the composition of
the Constitutional Court subtly and in conformity with the law. Since the
Constitution prescribes a mandatory retirement age of sixty-five for judges448 and
also gives the authority to appoint the members of the Court to the President, AKP
could gradually replace the current members of the Court with those who share
AKP’s views. This, of course, rests on the uncertain assumption that AKP stays in
power for an extended period of time and manages to replace the current strictly
secular President of Turkey, Ahmet Necdet Sezer, with a pro-AKP President who is
willing to replace retiring judges of the Court with anti-secular judges. Thus, at least
at the present time, it seems unlikely that AKP can change the composition of the
Constitutional Court to effectuate any changes in the country’s secular regime.
In addition to the Constitutional Court, the vast majority of the Turkish people
would be opposed to a dramatic change in the country’s regime.449 Even though
AKP is currently in power, it only won 34.28% of the popular vote.450 Since more
than half of the Turkish people voted against AKP, the nation is likely to rally
against AKP if it attempted to implement any fundamental changes in the regime.
Furthermore, AKP won the majority seat after a coalition of three major
political parties in the previous term failed miserably to fulfill the economic
444. Elver, supra note 211, at 27.
445. See Kucukcan, supra note 13, at 499-501. Nonetheless, AKP, under Erdogan’s leadership, has
attempted to implement certain legislation that has Islamic undertones. For example, the party tried,
without any success, to criminalize adultery. See Caldwell, supra note 7. It implemented “punitive taxes”
to curtail the growth of Turkey’s wine industry. Id. Furthermore, Erdogan has publicly spoken about his
opposition to contraception and abortion, “both of which are legal” under Turkish law. Id. Likewise,
Erdogan has also voiced his support for the lifting of the Islamic headscarf ban, at least in private
universities. Ergun Babahan, Erdogan’in Turban Formulu [Erdogan’s Turban Formula], SABAH (Turkey),
July 7, 2005, at 23. Nevertheless, these actions probably do not rise to the level of anti-secularism the
Turkish Constitutional Court would normally require to impose punishments against a political party.
447. Id.
449. Guneri Civaoglu, Yapamazsiniz [You Cannot Do It], MILLIYET (Turkey), July 7, 2005, at 19,
available at http://www.milliyet.com/2005/07/07yazar/civaoglu.html.
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expectations of the nation, dramatically decreasing the support for those parties.451
The fact that the majority party, AKP, and the minority party, Republican People’s
Party (Cumhuriyet Halk Partisi), currently in the Parliament were not a part of the
three-party coalition government in the previous term provides further support to
the argument that people may have voted for AKP simply due to their dislike of the
previous coalition government.452 Thus, if AKP cannot improve the economy like
the previous government, then it is likely that it will not get enough votes in the next
election to win the majority seat in the Parliament. Given the ambiguity concerning
any political capital the AKP may have, the party probably will not attempt to make
any fundamental changes in the system and even if it does, such changes are likely to
face intense opposition.
C.
Are Minor Changes in the Secular Regime Possible?
This is not to say, however, that AKP may not want to implement minor
changes, like allowing Islamic headscarves in universities, that have an impact on the
secular order of the Republic. Recep Tayyip Erdogan has argued that the Islamic
headscarf ban should be lifted—at least in private universities.453 The Constitutional
Court, based on its precedent, is likely to strike down any legislation the TGNA
passes that attempts in any way to lift the Islamic headscarf ban in educational
institutions. Thus, a constitutional amendment would almost certainly be necessary.
Nevertheless, simply adding a new article to the Constitution affording freedom
of clothing in universities would probably not accomplish this result, since there are a
number of articles in the Constitution that would restrict the scope of the new
provision. For example, the Constitutional Court could restrict the freedoms
granted by the new article pursuant to Article 14, which prohibits the exercising of
any constitutional freedom to endanger the secular system of the Republic.454 As
long as the Court interprets the wearing of religious clothing in universities as
inconsistent with a secular regime, it would have the authority to limit the freedoms
afforded by the new provision.
If the provision in Article 14 relating to the restriction of freedoms is repealed,
the new article may still be inconsistent with the non-amendable Article 2 of the
Constitution listing secularism as one of the defining characteristics of the
Republic.455 Nonetheless, there would be an issue as to whether or not the addition
of an anti-secular article to the Constitution would technically constitute amending
the non-amendable Article 2. Moreover, since the Constitutional Court only has the
451. See W. Robert Pearson, Comment, Democracy as the Cure for Terrorism: Turkey’s Example, 45
VA. J. INT’L L. 1017, 1018 (2005) (“[One of the reasons that] contributed to the AKP’s victory . . . was
disenchantment with established parties, which were widely viewed as corrupt.”).
452. See Cuneyt Ulsever, The Strongest Opposition in the World: Corruption, TURKISH DAILY NEWS,
Jan. 31, 2006, 2006 WLNR 2212964 (“The coalition parties that formed the government before [the last
election] were so riddled with allegations of corruption that the people’s choice in voting for the AKP was
mainly due to their perception that the AKP was a ‘clean’ party.”).
453. Babahan, supra note 445, at 23.
455. See id. art. 2.
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authority to review the form, and not the substance, of constitutional amendments,456
the Court would probably lack jurisdiction to resolve this issue. The Constitution
gives the authority to “ensure the implementation of the Constitution” to the
President;457 however, it is unlikely that this authority would also give the President
the right to reconcile two seemingly inconsistent constitutional provisions.
Accordingly, a number of ambiguities exist as to what governmental body, if any, has
the authority to restrict the applicability of a new constitutional amendment
pursuant to Article 2.
D.
Implications of a Turkish Membership in the European Union
A potential membership in the European Union could also affect the future of
secularism in Turkey. According to one commentator, “militant secularists are . . .
fearful about the EU [since] [t]hey think that the . . . limitless freedom of religion of
Europe [is] not beneficial for Turkey.”458 They contend that implementing the
European notions of freedom of religion in Turkey may give fundamentalist
movements considerable leeway in executing their agendas.
In contrast, and ironically, anti-Western Islamists are striving for Turkish
membership in the EU in order to, among other things, implement the less strict,
Western version of secularism in Turkey.459 For example, during the dissolution case
of the anti-American Islamist Welfare Party before the ECHR, its representatives
argued that the party’s dissolution was not “justified by application of the ‘clear and
present danger’ test laid down by the Supreme Court of the United States of
America.”460 It is also ironic that the same people who advocate for Western notions
of human rights in the context of secularism also want to implement Shari’a law,461
under which women have minimal human rights. The Turkish Constitutional Court
has correctly observed that “democracy is the antithesis of Sharia.”462 Thus, it is
particularly appalling to see how fundamentalists can advocate both human rights
and democracy on the one hand and Shari’a on the other.
It is unclear whether Turkey will ever become a full-fledged member of the
European Union. It is also uncertain if the European Union will condition Turkish
membership on its adoption of European norms of freedom of religion.
Consequently, it remains to be seen whether the Turkish membership in the
European Union will in fact undermine the secular regime of Europe’s only
majority-Muslim, yet secular and democratic, ally.
This Part speculated on the future of the principle of secularism in Turkey.
Fundamental changes to Turkey’s secularist regime are not likely given the intense
456. See id. art. 148.
457. See id. art. 104.
459. See Caldwell, supra note 7 (noting that the Copenhagen criteria for admission into the European
Union would require, among other things, expanding freedom of religion).
460. See Refah Partisi (Welfare Party) and Others v. Turkey (Refah Partisi), No. 41340/98, para. 13
(Eur. Ct. H.R. Feb. 13, 2003), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
(search by Application Number); see also Caldwell, supra note 7 (discussing how Erdogan, the leader of
AKP, advocates the need for “American-style religious freedom” and “Americanizing [Turkey’s] system of
constitutional rights”).
462. Id. para. 40.
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53
legal and political opposition that would accompany such a change. The reforms the
TGNA implemented under Atatürk’s leadership and the extensive safeguards
present in the Constitution will serve as protectors of the strict, yet fragile, secular
regime of Turkey.
VIII. CONCLUSION
Turkey’s democratic and secular regime is not perfect. Yet, no democracy is
perfect. Even the most advanced governments around the world have their
shortcomings. Nevertheless, one can only judge the success of a country’s regime by
looking at the progress it has made over the years and comparing it to other
countries that were historically similarly situated.
This Article examined how Atatürk and his supporters created the secular
Republic of Turkey in less than thirty years from the remains of the most
fundamentalist empire in the world. Today, Turkey is one of the only two secular
states among the fifty-two majority-Muslim countries.463 Less than ninety years ago,
women, who now stand on an equal legal footing with men in Turkish society, were
forced to wear veils, be servants to their husbands, and remain in the background of
all social life under Islamic law.464 While women who commit adultery are awarded
death sentences by stoning in the bordering Islamic Republic of Iran,465 Turkey
awarded the office of the Prime Minister to a female in 1993.466
Needless to say, maintaining a democratic regime in the unique context of
Turkey requires the implementation of safeguards and protections, the most
important of which is a strict system of secularism. In its decision approving the
dissolution of the Islamist Welfare Party, the ECHR stated: “Pluralism and
democracy are based on a compromise that requires various concessions by
individuals or groups of individuals, who must sometimes agree to limit some of the
freedoms they enjoy in order to guarantee greater stability of the country as a
whole.”467 The ECHR continued:
The possibility cannot be excluded that a political party, in pleading the
rights enshrined in Article 11 [(Freedom of Association)] and also in
Articles 9 [(Freedom of Religion)] and 10 of the Convention, might
attempt to derive therefrom the right to conduct what amounts in practice
to activities intended to destroy the rights or freedoms set forth in the
Convention and thus bring about the destruction of democracy.468
Likewise, in the words of the Turkish Constitutional Court: “In old and new
democracies alike, there is no such thing as freedom for individuals to do anything
they want. People cannot use their freedom to defeat the freedom of others.”469 The
463. See supra note 4 and accompanying text.
465. See Janet Maslin, Crowd Pleasers; Light Reading Gone Wild, N.Y. TIMES, Dec. 9, 2005, at E35.
466. See supra note 153 and accompanying text.
468. Id.
469. See
Decision
No.
1989/12
(Turk.
Const.
Ct.
1989),
available
at
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strict secularism system in the unique historical, geographical, and demographical
context of Turkey is a necessary concession to protect the democratic order of the
Republic.
In many ways, the Republic of Turkey is one of the few shining lights in the
darkness that has plagued the Middle East. Even though that light may flicker from
time to time, the strictly secular, democratic country, which has struggled and will
continue to struggle between the clash of its Islamic roots and its secular regime, will
no doubt continue to be a unique and exemplary nation in Europe and the Middle
East.

Is Secularism Possible in a Majority-Muslim Country?: The

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