Is Secularism Possible in a Majority-Muslim Country?: The
Transkript
Is Secularism Possible in a Majority-Muslim Country?: The
09 WingVarol Publication 3/29/2007 1:31:44 PM 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. 1 09 WingVarol Publication 2 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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). 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 1:31:44 PM 3 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. 09 WingVarol Publication 4 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 09 WingVarol Publication 2006 3/29/2007 1:31:44 PM IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 5 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. 09 WingVarol Publication 6 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 29. Aliefendioglu, supra note 19, at 77. 30. Id. 31. Id. at 78. 32. See infra Part II.C (discussing the unique historical, geographical, and demographical context of Turkey). 33. Aliefendioglu, supra note 19, at 73. 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). 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 1:31:44 PM 7 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 http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number). 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. 09 WingVarol Publication 8 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 44. Oktem, supra note 2, at 373. 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. 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 1:31:44 PM 9 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). 55. Saylan, supra note 39, at 9. 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. 09 WingVarol Publication 10 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 09 WingVarol Publication 2006 3/29/2007 1:31:44 PM IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 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. 09 WingVarol Publication 12 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. BORAK, supra note 71, at 169. Id. 09 WingVarol Publication 2006 3/29/2007 1:31:44 PM IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 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 95. Aliefendioglu, supra note 19, at 86. 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. 103. ARSEL, supra note 58, at 724. 104. Id. 09 WingVarol Publication 14 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. ARSEL, supra note 58, at 708. Aliefendioglu, supra note 19, at 86. See id. See id. at 87. ARSEL, supra note 58, at 708. Id. at 709. See Dokupil, supra note 63, at 68. See id. BORAK, supra note 71, at 167. Kucukcan, supra note 13, at 488. See Aliefendioglu, supra note 19, at 87. See Saylan, supra note 39, at 10. 09 WingVarol Publication 2006 C. 3/29/2007 1:31:44 PM IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 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). 124. ARSEL, supra note 58, at 715. 125. Id. 126. Aliefendioglu, supra note 19, at 87. 127. See Dokupil, supra note 63, at 68. 09 WingVarol Publication 16 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. Aliefendioglu, supra note 19, at 87. Id. BORAK, supra note 71, at 164. 09 WingVarol Publication 2006 3/29/2007 1:31:44 PM IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 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 http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm. 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. 09 WingVarol Publication 18 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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). 154. Saylan, supra note 39, at 11. 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. 156. Saylan, supra note 39, at 10. 157. Thanks to Professor Enrique Carrasco for pointing out this distinction. 158. See Aliefendioglu, supra note 19, at 86. 159. See BORAK, supra note 71, at 100. 160. Id. at 83. 161. Id. at 7. 09 WingVarol Publication 2006 3/29/2007 1:31:44 PM IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 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). 09 WingVarol Publication 20 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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.178 167. See Aliefendioglu, supra note 19, at 88. 168. Dokupil, supra note 63, at 76. 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). 173. Aliefendioglu, supra note 19, at 89; see also TURK. CONST. art. 19 (1961). 174. TURK. CONST. art. 19 (1961). 175. Aliefendioglu, supra note 19, at 89; see also TURK. CONST. art. 57 (1961). 176. Aliefendioglu, supra note 19, at 89; see supra text accompanying note 163; see also TURK. CONST. art. 153 (1961). 177. Dokupil, supra note 63, at 77. 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. 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 1:31:44 PM 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 179. See Dokupil, supra note 63, at 91. 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. 09 WingVarol Publication 22 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 1:31:44 PM 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. 200. TURK. CONST. art. 4. 201. Aliefendioglu, supra note 19, at 91. 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). 204. TURK. CONST. art. 6. 205. Id. 206. Id. art. 7. 09 WingVarol Publication 24 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 209. TURK. CONST. art. 11. 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. 212. TURK. CONST. art. 146. 213. Id. art 148. 214. Id. art. 153. 215. See id. art. 138. 09 WingVarol Publication 2006 3/29/2007 1:31:44 PM IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 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. 221. TURK. CONST. art. 14. 222. Id. 223. Id. art. 81. 224. See id. art. 103. 09 WingVarol Publication 26 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 2. 1:31:44 PM VOL. 42:1 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. 226. TURK. CONST. art. 69. 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. 09 WingVarol Publication 2006 3/29/2007 1:31:44 PM IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 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. 235. TURK. CONST. art. 24. 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. 239. Oktem, supra note 2, at 386. 240. TURK. CONST. art. 15 (1982). 241. Id. art. 24. 09 WingVarol Publication 28 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 09 WingVarol Publication 2006 3/29/2007 1:31:44 PM IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 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. 252. Oktem, supra note 2, at 375. 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. 09 WingVarol Publication 30 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 262. Oktem, supra note 2, at 378. 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. 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 1:31:44 PM 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 267. See Aliefendioglu, supra note 19, at 97. 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 http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number). 271. Peter Cumper, Regulating Religion—Case Studies from Around the Globe, 13 WILLAMETTE J. INT’L L. & DISP. RESOL. 87, 103-04 (2005). 09 WingVarol Publication 32 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 1:31:44 PM 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 http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm. 284. Leyla Sahin v. Turkey (Sahin I), No. 44774/98, para. 96 (Eur. Ct. H.R. June 29, 2004), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number). 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 http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm. 290. BOLUGIRAY, supra note 274, at 9. 291. Leyla Sahin v. Turkey (Sahin I), No. 44774/98, para. 93 (Eur. Ct. H.R. June 29, 2004), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number). 292. See BOLUGIRAY, supra note 274, at 39. 293. See id. at 42. 294. See id. 09 WingVarol Publication 34 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 1:31:44 PM 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. 304. BOLUGIRAY, supra note 274, at 48. 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 http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm. 309. See Caldwell, supra note 7 (noting that unlike the “loose-fitting” traditional headscarves, the Islamic headscarves constitute a symbol of “political Islam”). 310. See BOLUGIRAY, supra note 274, at 39. 09 WingVarol Publication 36 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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 http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm. 317. See id. 318. Id. 319. Sahin I, No. 44774/98, para. 36. 320. Decision No. 1989/12 (Turk. Const. Ct. 1989), available at http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm. 09 WingVarol Publication 2006 3/29/2007 1:31:44 PM IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 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), http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm. 326. Id. 327. Id. 328. See id. 329. Id. 330. Decision No. 1989/12 (Turk. Const. Ct. 1989), http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm. 331. Id. 332. Id. 333. Id. available at available at 09 WingVarol Publication 38 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM 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 http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm. 336. Id. 337. See id. 338. See id. 339. Id. 340. Decision No. 1989/12 (Turk. Const. Ct. 1989), available at http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm. 341. Id. 342. See id. 343. TURK. CONST. art. 24 (1982), available at http://www.byegm.gov.tr/mevzuat/anayasa/anayasaing.htm. 344. See id. art. 14. 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 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 http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm. 346. Id. 347. Leyla Sahin v. Turkey (Sahin I), No. 44774/98, para. 37 (Eur. Ct. H.R. June 29, 2004), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number). 348. See Decision No. 1991/8 (Turk. Const. Ct. 1991), available at http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1991/K1991-08.htm. 09 WingVarol Publication 40 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 [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), http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1991/K1991-08.htm. 352. Id. 353. Sahin I, No. 44774/98, para. 38. 354. Decision No. 1991/8 (Turk. Const. Ct. 1991), http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1991/K1991-08.htm. 355. See id. 356. Id. 357. See id. 358. See id. 359. Decision No. 1991/8 (Turk. Const. Ct. 1991), http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1991/K1991-08.htm. available at available at available at 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 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 http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number). 362. Id. 363. See id. para. 45. 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. 09 WingVarol Publication 42 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 1:31:44 PM 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). 09 WingVarol Publication 44 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 390. See id. para. 98. 391. Sahin II, No. 44774/98, para. 99. 392. Leyla Sahin v. Turkey (Sahin I), No. 44774/98, para. 83 (Eur. Ct. H.R. June 29, 2004), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number). 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. 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 1:31:44 PM 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. 09 WingVarol Publication 46 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 4. 1:31:44 PM 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. 424. See supra notes 283-289 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. 427. See BOLUGIRAY, supra note 274, at 40. 428. See supra Part VI.A. 429. Leyla Sahin v. Turkey (Sahin I), No. 44774/98, para. 87 (Eur. Ct. H.R. June 29, 2004), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (search by Application Number). 09 WingVarol Publication 48 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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)). 434. Oktem, supra note 2, at 373. 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. 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 1:31:44 PM 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. 439. Kucukcan, supra note 13, at 499. 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. 09 WingVarol Publication 50 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 446. Elver, supra note 211, at 27. 447. Id. 448. TURK. CONST. art. 147 (1982), available at http://www.byegm.gov.tr/mevzuat/anayasa/anayasaing.htm. 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. 450. Kucukcan, supra note 13, at 499. 09 WingVarol Publication 2006 3/29/2007 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 1:31:44 PM 51 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. 454. TURK. CONST. art. 14 (1982), available at http://www.byegm.gov.tr/mevzuat/anayasa/anayasaing.htm. 455. See id. art. 2. 09 WingVarol Publication 52 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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. 458. Elver, supra note 211, at 29. 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”). 461. Refah Partisi, No. 41340/98, para. 28. 462. Id. para. 40. 09 WingVarol Publication 2006 3/29/2007 1:31:44 PM IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 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. 464. See supra notes 67-70 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. 467. Refah Partisi, No. 41340/98, para. 99. 468. Id. 469. See Decision No. 1989/12 (Turk. Const. Ct. 1989), available at http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm. 09 WingVarol Publication 54 3/29/2007 TEXAS INTERNATIONAL LAW JOURNAL 1:31:44 PM VOL. 42:1 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.