Two Strikes Against the Headscarf. Three Strikes and AKP is Out.
With a vote of nine to two, Turkey’s Constitutional Court decided yesterday to annul constitutional amendments that would have allowed women to wear the Muslim headscarf at Turkish universities. This decision came despite the fact that last month the court rapporteur Osman Can had recommended that the case be thrown out, arguing that while the court had the right to examine whether the passage of a constitutional amendment was procedurally flawed, it could not pass judgment on its substance. The report was non-binding on the court members. The court’s decision to annul the constitutional changes passed by parliament despite the court’s own evaluation that the case is unsound is a litmus test for the fate of the other major case before the same court, that is, for closing down the ruling AK Party and banning 71 of its politicians from politics. That indictment depends heavily on the constitutional changes for lifting the university headscarf ban as evidence that the AKP is undermining secularism. if the court had followed the rapporteur’s advice and declined to hear the case, thereby leaving the constitutional changes in place, this would have seriously undermined its case against the AKP. Many observers see the court’s decisions as judicial activism and some as an attempted state-sponsored coup against the government.
In related news, the European Court of Human Rights (ECHR) dismissed the appeals of Fatma Karaduman and Sevil Tandogan, two teachers at a religious high school in Turkey who insisted on wearing a headscarf to work. The ECHR ruled that the decision of the Turkish Education Ministry to fire the two women was neither a violation of religious freedom nor discrimination. (click here)
Excerpts from the news article about the Constitutional Court decision:
The amendments ruled on yesterday were adopted in Parliament in February with overwhelming support from 411 deputies, 80 percent of the legislature. Analysts argue the decision to overthrow the changes will inflame already tense discussions on whether the Constitutional Court overstepped its authority by striking down a popular legislative act and in effect turning itself into a lawmaker.
The Constitutional Court took up the case after the opposition Republican People’s Party (CHP) and Democratic Left Party (DSP) challenged the amendment on the grounds it violated the provisions of the Constitution. The AK Party and the Nationalist Movement Party (MHP) defended the amendment, saying it ensured the basic individual right of freedom for women to equal educational opportunity.
Parliament approved the amendment on Feb. 9, and President Abdullah Gül ratified the legislation on Feb. 22. The law amended Articles 10 (equality before the law) and 42 (right to education) of the Constitution. The CHP and DSP appealed to the Constitutional Court on Feb. 27, and in March the court agreed to hear the case.
Many had predicted that the court would rule to annul the amendment, in part because eight members of the 11-judge tribunal were appointed by former President Ahmed Necdet Sezer, a staunch secularist. The votes of only seven of the judges were needed to annul the amendment.
By scrapping the amendment, the court has sent a strong signal that it might also decide against the ruling AK Party when it rules later this year on whether the party should be banned. The indictment filed against the party is full of references to the headscarf issue, cited as evidence of the AK Party’s anti-secular leanings. The AK Party, however, rejects the charges and says the case is politically motivated.
Many commentators describe the court challenge as judicial activism, and some even portray it as a coup attempt against a democratically elected government. They claim a staunchly secular establishment, stung by its defeat in general elections, is attempting to overthrow the government. If the case goes forward, they say, it threatens to erase years of progress toward modernization and greater engagement with the West in a country that stands almost alone in its embrace of both democracy and its Muslim heritage.
The AK Party has the most pro-European Union stance of Turkey’s political parties and has made moves to pass democratic reform packages in Parliament to bring Turkish legislation in line with European norms. The AK Party, along with the opposition MHP, defends the right to wear headscarves at universities as a matter of religious and personal freedom and says some two-thirds of Turkish women cover their heads. Polls conducted over the past few years have consistently suggested the majority of the public wants the headscarf ban lifted.
There is a certain vacuum that had to be somehow filled.
*** Article 4 of the Constitution says that the three preceding articles cannot be altered (the secular character of the state lies therein).
*** Article 148 says the Constitutional Court shall evaluate the laws passed, if brought before them, on substantial and procedural grounds, and shall evaluate constitutional amendments on procedural grounds only.
Now the Court Rapporteur proposed the case to be dismissed for there were no procedural flaws in the passing of the now-nullified amendments. In other words, his was a strict reading of Article 148. However, those who took it to the Court argued, if I am not mistaken, that the amendments should be evaluated on substantial grounds for they, in their view, contradicted with the unalterable secularity principle. So, if those who describe the ruling as judicial activism or coup do so for the Court’s tossing the rapporteur’s evaluation and looking at the substance of the amendment, then I disagree with them. In my opinion, the Court had to step up to the plate and look at the substance of these amendments. That was the responsible thing to do. For the claim in the present case, or an amendment to one part of the constitution possibly violating other parts of the same, is a serious one. It’s infinitely better to have this possibility (this vacuum) covered by the Court than by other forces, say, by the Forces! This much of it is a good precedent until a better constitution and amendment methods are in place.
That said, I consider the ruling or the substance of the matter a separate subject for discussion.
Nihat, the vacuum you speak of isn’t really one caused by the present constitution but by the lack of a reasonably strong and somewhat principled opposition. The unchangeable parts of the constitution (or the army for that matter) cannot make up for the lack of people and organizations with some backing from the populace acting in a principled and sane manner. A new constitution wouldn’t change anything in this regard.
The only (well, one of the few) issue worth considering here is whether or not the government would have been able and willing to protect uncovered women from their peers and headscarf-pushing faculty. We could have faced up to this problem (and restraining people in positions of authority is a problem here) instead of turning a basic freedoms issue into one of this insane magnitude.
It isn’t like we don’t have groups potentially suitable for this task either.
The women’s groups could have played a bigger role, or at least could have challenged the AKP more visibly on what’s clearly a women’s issue. In all fairness, though, I should point out that they say they cannot get press coverage.
The ‘left’ outside the parliament could have done it instead of trying to conquer Taksim the last two May Days. If you can mobilize college-aged people to get beat up and gassed, you can also mobilize them to, say, show up on their campuses wearing headscarves (men and women included) or organize them to put the fear of God into abusive pushers of superficial piety through barrages formal complaints. None of this would have required more guts than directly challenging the riot police.[1]
The liberals could have done it instead of cosying up to the AKP. But no, some even got rewarded through their wives’ appointments to the parliament. (I’d also have expected the feminists to make noises about this use of women as conveyors of benefits to sycophants, BTW.)
Even largish groups of the middle class who bothered to get off their behinds and show up for the “Rallies for the Republic” could have been useful. It seems to suit everyone to either ignore those folks or call them crypto-fascists. I didn’t go to the rallies but those I know who did were the typical AP/ANAP voters who’ve been urbanized for more than a generation and work in the private sector — not exactly the sons and daughters of state-worshipping civil servants as some propagandists would have you believe.
But no, instead we let things get to the point where all those groups turn into spectators watching various non-elected sources of concentrated power inside the gov’t overstep their boundaries. And the consolation in this is that the army didn’t do it? You are right, but the way in which you are right ought not be palatable to anyone.
[1] I’ll give you another infuriating example involving a member the activist left of the 70s. Look at Ferai Tinc casually reporting, in passing, how she was made to sit with women in an event where she was invited as a journalist. This woman was gutsy enough to challenge authority and get involved with the far-left to the point of going to jail in the 70s, so it isn’t like she lacks the personal wherewithall to stand up for her rights. There is a clear abuse as they are interfering with her work because she’s a female. She should have made a scene right there and then and her paper should have printed this on the font page. It merely gets mentioned in passing and Hurriyet chases pictures and footage of high school kids praying instead. I cannot support bothering praying kids, but I sure as hell can and would have stood behind a woman wanting to do her job w/o interference due to her gender.
Bulent, I am not really consoled. In my comment, I was objecting to judicial power grab analyses that were sure to follow, and that have now done so abundantly. Since strong and principled opposition is not guaranteed to exist, the vacuum I spoke of, which is of a legal or technical nature, still stands in my view. Whether the now-nullified amendments belonged in this vacuum, i.e., whether they indeed contradicted Article 2 and the legislature had thus violated Article 4 by passing them, is, again, a separate subject for debate. In my opinion, they didn’t/hadn’t when amendments are taken at face value. But neither the CHP/DSP opposition nor the Court thought so.
I agree with the rest of your social and political critique of various players. As questionable as AKP may be in its actions and policies (or intents and purposes), they should have been engaged fully and substantially, not on purely ideological grounds.