Attack on the Turkish Constitution

In early June, Turkey's Constitutional Court declared the lifting of the ban on headscarves in public institutions as unconstitutional. Ülkü Azrak, an expert in Turkish administrative law, explains the decision from a legal perspective and sees it as an indication of an impending ban on the AKP

At the beginning of June, the Turkish Constitutional Court issued a sensational judgment confirming the ban on headscarves at universities. The judges thereby declared the changes to the law approved by Parliament last February permitting women to wear headscarves at universities to be unconstitutional.

The High Court stated that constitutional amendments introduced by the governing party and passed by Parliament violate Article 2 of the Turkish constitution, known as the secularism article, and are therefore invalid. The court's decision stemmed from a petition raised by the opposition CHP (Republican People's Party), the party founded by Atatürk.

The principle of secularism

Article 10 of the Turkish constitution establishes the principle of equality before law. The Islamic AKP government wanted to expand this article with their amendment by adding the provision that all citizens should have unlimited access to government facilities and institutions. The main idea behind this addition and the resultant changes to Article 42 is that everyone should have equal access to every kind of government service, including, of course, educational institutions. This would primarily affect universities. According to the AKP amendment, they would thereby be accessible to students wearing headscarves.

From a legal perspective, criticism of the court judgment by some government members and the inflammatory comments from media outlets close to the government miss the mark. The court decision is not the first such judgment dealing with the headscarf. Back in 1989, the High Court ruled in a case concerning the university law that any such changes violate the principle of secularism laid down in the constitution. The judgment at the time states:

"The basis of the democratic structure is national sovereignty. The democratic order also opposes the supremacy of religious values, the Sharia. A ruling giving particular prevalence to religious values cannot be democratic. A democratic state can only be secular. Regulations contingent upon religion are accompanied by religious zeal and constraints, which cause religious conflicts. This eventually leads to a loss of quality in the freedom, majority control, and tolerance of the democracy."

In 1991, just two years later, the Constitutional Court confirmed this ruling again.

The ban on headscarves is not undemocratic

The current judgment on the constitutional changes with respect to Articles 4 and 148 of the constitution concurs with the previous decisions of the Constitutional Court, as well as with the decision of the European Court of Human Rights in the case of Leyla Şahin and the Welfare Party (Refah Partisi). The decision from 2005 stated that a ban on headscarves in universities did not violate the European Convention on Human Rights. "This ban is required, especially in Turkey, to protect the rights of those who do not wear the headscarf," was the justification of the court in Strasbourg.

Although the European Union often meddles in Turkey's domestic political affairs, Brussels has issued no further comment on the judgment. Only Olli Rehn, European Commissioner for Enlargement, has demanded that Turkey solves these problems through a new constitution.

The AKP attack on the constitution

In his charges before the court, Turkey's Chief Prosecutor Abdurrahman Yalcinkaya stressed the persistence of the governing party in trying to allow women to wear headscarves at university. In addition, Yalcinkaya criticizes the AKP for not willing to recognize the contradiction between secularism and lifting the ban on the headscarf. From his point of view, the statements of numerous government members with respect to the secularism articles anchored in the constitution fulfill the conditions laid down in Article 69 of the constitution for a ban on the party. The charges therefore accuse Prime Minister Erdoğan's party of attempting to abolish secularism, which is one of the basic principles upon which the Turkish Republic was established.

Taking all of these factors into consideration, it becomes clear that the judgment on headscarves by the Constitutional Court on 5 June 2008 will considerably influence the case to ban the governing AKP. A ban is now more likely than ever before.

Ülkü Azrak

Translated from German by John Bergeron

Ülkü Azrak is constitutional law professor at Maltepe University in Istanbul, Chairman of the German-Turkish Cultural Advisory Board as well as recipient of the German Order of Merit.

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