Introduction
Under the title of “the right
to freedom of conscience, religious belief and conviction”, Article 24/4 of the
Turkish Constitution stipulates that “[e]ducation 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. Other religious education and instruction
shall be subject to the individual's own desire, and in the case of minors, to
the request of their legal representatives.” Although the wording states quite
explicitly that there are two different kinds of religious education, one
compulsory, the other optional, this important clause has been interpreted and
implemented as if the Constitution promulgates only compulsory religious
education in primary and secondary schools. Moreover, “education and
instruction in religion and ethics” understood most commonly by state
authorities as the instruction of the fundamental principles of (Sunni) Islam
as approved of by the Presidency of Religious Affairs (Diyanet). This practice of religious education has not only led to
a series of violations regarding freedom of religion or belief, but has been
also a source of deep controversy among Muslim and non-Muslim communities and
individuals in Turkish society. Even if the rights of non-Muslim communities
and individuals have been under the protection of the Treaty of Lausanne, the
state authorities interpretation of the stipulations pertaining to the rights
of non-Muslim minorities have always been suspicious vis-à-vis the language
used therein and the universal principles of modern rule of law. Explicitly put,
in the official interpretation of the term “non-Muslim minorities” includes
only Greek Orthodox, Armenian and Jewish communities, whereas no specific
religious or ethnic community has been mentioned in the Treaty.[1]
This official interpretation of the Treaty, therefore, led to a negligence of
the rights and liberties of ancient Syriac, Nestorian and Chaldean Christian
communities or caused some problems regarding freedom of religion for newly
formed communities.
Leaving
aside the problems faced by non-Muslim communities, major problems caused by
the constitutional provision mentioned above pertain to the rights and freedoms
of the vast majority of Turkish society who regard themselves as Muslims. In
contrast to an outsider’s view of Turkey as a predominantly Muslim society[2],
there happen to be sharp differences, hence a highly significant degree of
cultural and religious pluralism reflected in certain fault lines like that of
the Sunni-Alevi divide, or that of Hanafi and Shafii (mostly Kurdish)
denominations within the Sunni majority, or that of the practicing and
non-practicing members within the greater society, etc. As each of these groups
might have developed their own understanding of religious belief and practice,
the undifferentiated implementation of the constitutional provision has caused
a serious stress, controversy and human rights violations reflected in some
recent decisions of European Court of Human Rights (ECHR) and Turkish Council
of State (hereafter Danıştay). In
addition to this major problem area caused by the misinterpretation of the
compulsory education in religion, there are also other constitutional
promulgations related to any discussion of the legal status and practice of
freedom of religion or belief in contemporary Turkey. If one example is the ban
on women’s headscarf in higher education, the other is the constitutional
status of the Diyanet.
What
follows is a critical assessment of the present Turkish Constitution regarding
the ways in which it stipulates the relations between religion, education, and
the state. Since the universal standards of freedom of religion or belief
provide for the guidelines of the critical analysis I wish to pursue, and so
far as these standards include “the establishment clause”, “the free exercise clause”
and the requirement of “equal respect”[3],
the assessment will focus on three major problem areas it Turkey. The first
problem area concerns the institutional
framework within which the relations between religion, education and the
state have been established, that is the historical formation and present
status of the Diyanet. The second
problem area pertains to the ways in which the constitutionally compulsory
education in religion and ethics is understood and implemented. Finally, the
third problem regards the now famous issue of the ban on women students’
headscarf in higher education.
The
Institutional Framework of the Relations between Religion and the State: The
Formation and Increasing Role of the Diyanet
Established
territorially in a region (mostly Anatolia) whose inhabitants have become
“Islamized”, the Turkish Republic inevitably faced with the problem of religion
as an important part of the emerging “national identity”. Anatolia,
historically being a territory with almost a third non-Muslim population in the
nineteenth and early twentieth centuries, have become a 99 percent Muslim land
due to the Armenian “Great Catastrophe” of 1915 and the population exchange
with Greece in 1924. The “asset tax” law of 1942 (Varlık Vergisi) which discriminated against non-Muslims and the
riots of September 6-7, 1955 should be noted also as major historical events
that contributed to almost total disappearance of non-Muslims from Turkey,
leaving few Greek and Armenian communities in Istanbul and in some Anatolian
towns, and very few and marginalized communities of ancient Christians mainly
in the south and the east.
Thus,
the Kemalist founders of the Republic in 1923 had to face a dilemma: The
population of the Republic consisted of different ethnic groups like “Turks,
Kurds, Laz, Albanians, Circassians, etc.” who were united under the banner of
Islam for “national (millî, a term
reflecting still the old Ottoman meaning of a religious community) struggle”.
The founders, on the other hand, had a project of modernizing the society from
above, using the power of the state to establish a new nation-state and in
order to realize this project they had to replace the religious institutions,
most notably the Caliphate and the office of the Şeyhülislam. The historical but partial resolution of this dilemma
took place in 1924 when a law passed by the parliament abolished the Caliphate
and the office of the Şeyhülislam,
establishing instead the Presidency of Religious Affairs (Diyanet). I say the resolution was “partial” because these
legal-institutional changes had to be supported by cultural policies to
eradicate the strong religious (Islamic) element that existed in the
traditional national identity.
Resulting
from the failure of establishing a culturally pluralist polity with Muslim and
non-Muslim communities, the Republic had established the new institution of the
Presidency of Religious Affairs (Diyanet).
The new institution had been so organized as to deal with the problems of the
Muslims in ethics (ahlâk), faith (itikadât) and worshipping (ibadât), giving the law-making and
judicial powers of the office of the Şeyhülislam to the legislature, that is
Turkish Grand National Assembly (TGNA) and secular courts.[4]
When
this new institutional design took place in 1924, the Constitution of the new
Republic had an article “the religion of the Turkish state is the religion of
Islam”. Reflecting the dominant role of Islam in mobilizing Anatolian Muslims
for “national struggle”, this article would be abolished in 1928 and the
principle of “laicism” (secularism) would be constitutionalized some nine years
later, in 1937.
As
for the issue of religious education, having stated already the provisions for
non-Muslims in the Lausanne Treaty, for the Muslim population, we have to
mention that religious education continued at all levels of organized education
in Turkey until the early 1930’s when authoritarian secularist policies had
been adopted. Starting with the university reform of 1933 which closed down both
the Darülfünun (meaning literally the
realm of sciences, a name given to a modern higher education institute
established in the late 19th century) and its theology school, religious
education had been erased from school curricula at all levels in organized
education until 1949.
With
an increasing visibility in the public and political role of Islam after
Turkey’s transition to a multi-party politics in 1945, a new theology school
has been opened together with religious vocational schools to educate imams and
preachers, hence the permission of “optional” religion courses in primary and
secondary (high school) levels after 1949. Together with the increasing public
and political role of Islam in Turkey and as a consequence of societal
modernization, popular understanding by relatively conservative minded parents
of the religious vocational schools as places where children learn their
religion properly, the numbers of these schools increased. The overall
modernization of Turkish society, thus, resulted in an increasing role of the Diyanet in public and educational
affairs.
The
increasing role of the Diyanet can be
seen most notably in the change of its constitutional status. The institution
had no constitutional status when it was established in 1924. In the 1961
Constitution, the Diyanet enjoyed a
constitutional status of being an organ of the central state administration,
attached to the office of the Prime Minister. In the 1982 Constitution,
however, the status of the Diyanet
redefined so as to function “in accordance with the principles of secularism, removed from all
political views and ideas, and aiming at national solidarity and integrity”
(Art. 136). Reflecting a conservative and authoritarian reaction in Turkish
politics to the social and political unrest and street violence experienced in
Turkish society during the 1970’s, this provision gives the Diyanet the duty to provide for cultural
(ideological) means of social integration.
Even
if this constitutional arrangement is sufficient to show the increasing public
and political role of the Diyanet, we
cannot help but mention another provision in the Article 89 of the Political
Parties Act. Placed under the part of the act that promulgates the prohibitions
for political parties, Article 89 stipulates an important prohibition for the
protection of the secular state, entitled “the protection of the place of the
Presidency of the Religious Affairs”, reads as follows: “Political parties
cannot pursue aims that violate Article 136 of the Constitution pertaining to
the organization of the Presidency of the Religious Affairs functioning in
accordance with the principles of secularism, removed from all political views
and ideas, and aiming at national solidarity and integrity”. This stipulation
has a kind of constitutional status for it is so formulated as to protect
secularism which in turn has been defined as one of the immutable principles of
the Turkish Constitution.
This
increased role of the Diyanet in
Turkish public and political life is further reinforced by its central role in
designing the curricula of compulsory religious education in primary and
secondary education. Leaving the discussion of the problems created by this
institutional framework to the following section, we have to emphasize that the
authoritarian conservative mentality that placed its stamp on almost every
aspect of the current Turkish Constitution has shared the judgment that the
fundamental reason that has given way to the outbreak of political violence
especially among Turkish youth in the 1970’s was the lack of education with the
aim of the internalization of national values (again the term millî is used to imply Islamic
traditions).
Problems Arising from
the Constitutional Status and the Actual Practice of Compulsory Religious
Education
As
the foregoing suggests, the relationship between religion and the state has
been changed from “religion as the legitimizing ideology” to “religion as an
instrument of political control”, the latter becoming more and more explicit as
the need for increased state control over society increased. The abolishment of
the Caliphate and the office of the
Şeyhülislam, the establishment of the Diyanet,
acceptance of the Unification of Instruction (Tevhid-i Tedrisat) have marked the initial phases of implementing a
project to establish a modern state with a united, homogeneous national
culture. So far as this “nation building” project has succeeded in social and
economic modernization, the ensuing public presence of religious,
denominational and cultural differences alarmed the state to find new
institutional mechanisms for societal control. This need, backed by the
authoritarian-conservative idea regarding religion and traditional culture as
an important pillar of societal integration, paved the way for the promotion of
the constitutional-legal status of the Diyanet and the acceptance of compulsory
religious education in primary and secondary school curricula.
The
official justification of this change in the approach of the state towards
religious education has been provided by the National Security Council (Millî Güvenlik Konseyi):
“By taking this new decision, religious education will be introduced in
every
primary, middle and high school on a compulsory basis. Consequently our
pupils will receive religious education from state schools. In the
majority of
Western countries religious education is given by schools. In fact,
compulsory
religious education in schools is compatible with secularist principles.
In this
matter Ataturk stated: ‘Religion must be taken out from the hands of
ignorant
people, and the control should be given to the appropriate people’. For
these
reasons, we will introduce compulsory religious education in our
schools.”[5]
This
official justification of the acceptance of compulsory religious education by
the military junta of the 1980s, refers to the “undisputable” and “infallible”
personal cult of Atatürk on the one hand and tries to reconcile this policy
choice with secularism and a modern idea of religious education in democratic
and secular societies. Attempts at reconciling compulsory religious education
in Turkey with the experience of the Western democracies have not been confined
to the views of the military founders of the 1982 Constitution. Referring
occasionally to the wording of Article 24 of the Constitution, many supporters
of compulsory religious education in Turkey argue that the courses in fact aim
at providing the students in primary and secondary education with knowledge
about religion in general, Islam in particular and ethics.
So
far as the wording of the Constitution is concerned, it is not easy to say that
this is incorrect for the Constitution makes a distinction between “education
and instruction in religious culture and ethics” and “other religious
education”. Three cases, all filed by Turkish citizens belonging to the Alevi
community, one for the European Court of Human Rights (Hasan and Eylem Zengin v.
Turkey) and two others for the Turkish Council of State (Danıştay)[6], however,
suggest that the compulsory education in religion has been implemented as a
kind of catechistic instruction of Sunni Islam and discriminating against the
Alevi identity.
Deciding
on a case filed by the parents of a 4th grade student in primary
school, the 5th Administrative Court in Istanbul made a judgment
that the state authorities’ refusal of the parent’s demand for their child to be
exempted from compulsory religious courses violates both the Constitution and
the ECHR. Mentioning the different types of religious education stipulated in
the Article 24 of the Constitution, the court has decided that the current
practice of compulsory religious instruction is against the Constitution and
violates also Article 2 of Protocol No. 1 of the ECHR which requires
governments respect for parents’ philosophical and religious beliefs in
education with an absolute failure of enabling the child to develop critical
appoaches to religious claims. This preliminary court decision of 2006 has been
approved by Danıştay (Turkish Court
of Appeals in the judicial review of state administration) in 2008. In its 2008
decision, Danıştay refers to the 2007
decision of the European Court of Human Rights (the European Court). The
importance of the dates is that even though the preliminary court decision has
been made before the European Court explained its verdict on the case Hasan and
Eylem Zengin vs. Turkey (Zengin Case), the Istanbul court followed almost an
identical line of reasoning.
The
importance of the Eropean Court decision in the Zengin Case that the Court
establishes the actual practice of compulsory religious education as violating
the ECHR. According to the European Court:
“The right
of parents to respect for their religious and philosophical convictions is grafted
on to this fundamental right, and the first sentence does not distinguish, any
more than the second, between State and private teaching. In short, the second
sentence of Article 2 aims at safeguarding the possibility of pluralism in
education, a possibility which is essential for the preservation of the
“democratic society” as conceived by the Convention. In view of the power of
the modern State, it is above all through State teaching that this aim must be
realized. . . .
Article 2 of Protocol No. 1 does not
permit a distinction to be drawn between religious instruction and other
subjects. It enjoins the State to respect parents' convictions, be they
religious or philosophical, throughout the entire State education programme”[7]
Now,
according to Article 90 of the Turkish Constitution, as amended in 2004, “[i]n the case of a conflict between international
agreements in the area of fundamental rights and freedoms duly put into effect
and the domestic laws due to differences in provisions on the same matter, the provisions of international
agreements shall prevail.” ECHR, beyond doubt, falls into that category of
international agreements that shall prevail over the domestic “status” laws
that contradict its provisions. In view of the above quotations from the
European Court decision, there shall be no doubt that there is a contradiction
between “domestic laws” in Turkey that regulate compulsory religious education.
Thus, an idea still prevailing in the Diyanet
and some scholars of Islamic theology and academics in Turkish divinity schools
that the decision of the European Court does not require a reorganization of
religious education as optional courses seems to be groundless.[8]
Despite
this clear and legally binding verdict of the European Court, the insistence by
the Diyanet on sustaining the
existing compulsory constitutional status of religious education suggests that
the majoritarian understanding of Sunni Islam prevails. Much has been said and
written on the ways in which these courses, even in their present content
modified after a series of reforms, do not satisfy the demands of the Alevi
community. On the other hand, there are also other groups and individuals in
Turkish society who are not Alevis but still against compulsory religious
education, no matter what the curricula is. Although we have no case filed
representing these radical secularist groups and individuals in society, their
voice hitherto unheard does not mean that they do not exist.[9]
Another
important point worth mentioning here is that the Diyanet uncompromisingly asserts that the Alevis do not make up a
different identity to be recognized.
In stark contrast to the self-image and self understanding of the Alevi
community as a different sect within Islamic religion with its own particular
symbols and rituals and their resulting demands like the public recognition of
the cemevi as a “place of worship”, Diyanet constantly emphasizes that the
Alevis belong to the same religious tradition of Sunni Islam and that the cemevi cannot be recognized as a place
of worship.[10]
In a similar vein, Diyanet also
emphasizes that compulsory religious education after revised and reformed
curricula, provides the child with adequate knowledge about Alevism, whereas
the Alevi community still emphasize their demand for noncompulsory religious
education.[11]
All
this ongoing conflict between the religious establishment (Diyanet and its
supporters) and the Alevi community can also be read as a sign that the
Republican establishment in Turkey does not want to lose its control over the
religious and cultural practices of its citizens. In spite of the fact that the
military junta tried to justify the constitutional status of compulsory
religious education by references to Western European democracies and Atatürk’s
secularism, the basic motive behind the polished scenes has been that of
establishing an authoritarian system of social and political control. A very
good example of this motive is provided by Hüseyin Atay, a professor of
theology who has written a very influential report on the necessity of
compulsory religious education and its compatibility with the principle of
secularism. According to Professor Atay,
“[Turkish]
youth is under the influence of two negative mentalities. One of them is the
impact of representatives in our country reminiscent of 17th and 18th
centuries of a narrow and blunt meaning of religion, science and thought. The
other is the influence of the representatives of a 19th century
mentality against religion. Fearing from even the possibility of a slight
compromise against religion, the former recognize freedom only to those who
share the same ideas with them. The latter take sides with every thought that
is against religion. . . . Our
instruction, especially our instruction of religion
cannot solved on the right tract suitable to the needs of our times and the
realities of our country. The solution we need is to instruct the pure, clean,
true religion which lies outside these two mentalities that misunderstand
religion and which is isolated from a hostility to religion.”[12]
This
motive of the leadership of the 1980 military coup and its supporters in
establishing an authoritarian social and political control over society has
become more and more evident as the cultural and religious plurality of Turkish
society unfolded as the domestic and international pressures for further
democratization increased.
The Ban on Women’s Headcover in Higher Education: A Turkish Peculiarity!
In
December 1988 a law was passed by the Turkish parliament stipulating, “It is
compulsory to show up in contemporary attire in the institutions of higher
education, in classrooms, laboratories, clinics, policlinics and the corridors.
It is free to cover shoulders and hair with a scarf or turban for reasons of
religious belief.” The former leader of the military junta who became the
President after the approval of the 1982 Constitution by a popular vote filed
case against this law, arguing that it is unconstitutional for reasons of
violating not only the fundamental and immutable principle of secularism
mentioned in Article 2 of the Constitution and protected by Article 4
mentioning its immutability, but also other constitutional provisions like
Article 10 provision of equality before the law, Article 24 provision of
freedom of religion, conscience and conviction and Article 174 protecting the
modernizing reforms made during Atatürk’s single party rule. In 1989, the
Turkish Constitutional Court (TCC) made its decision accordingly and
established a very important verdict based on arguments of crucial importance
that still impact the continuation of the ban on women’s headcover in Turkish
higher education institutions.
According
to the TCC, the clause “for reasons of religious belief” is in contradiction
with the principle of democratic and secular rule of law because, “national
sovereignty is the basis of democratic structure,” thus a regulation that
emphasizes heavily the necessities of religion cannot be democratic. From
within the perspective of the principle of secularism, the Court states that
“Only a secular state is a democratic state. . . . Secularism is connected in
individual, social levels as well as in the affairs of the state with the
requisites of free thought that lie outside the metaphysical thought. It
renders compulsory to fulfill the requisites of reason and science in
regulating individual and social life.”[13]
Another
argument of the TCC is that freedom of covering “shoulders and hair for reasons
of religious belief” contradicts the principle of equality before the law
because,
“from the
perspective of the Constitution religion is not a precondition of enjoying
certain rights. For those who believe in various different religions and for
those who do not believe in any religion, it is free to express their religion and
belief within the limits of freedom of religion and conscience. . . . In a
secular state which treats every citizen as equals regardless of their belief
in religious matters, differences of reigion or denomination cannot be a reason
for discrimination. In the regulation against which the case is filed, however,
there happens to be a recognition of a privilege to the allegedly Islamic
headcover . . . Recognizing the freedom to cover shoulders and hair with
headcover and turban for reasons of religion, a sort of giving directions, is
in a sense an imposition. Forcing persons to get dressed in this or that way to
cover their heads would create a privilege from the perspective of those who
belong to different or even to the same religion.”[14]
All
in all, in its initial verdict on the headcover issue, the TCC has regarded the
recognition of freedom of dress including the headcover for women in higher
education institutions is unconstitutional. The importance of this decision
lies in the fact that the Court reiterated it on certain occasions. In 1989,
for instance, another law has been passed by the parliament, stipulating that
“In institutions of higher education freedom of dress is recognized provided
that the attire does not contradict the prevailing status law”. This time a
case is filed by the “main opposition party” (the Socialdemocratic Populist
Party) in parliament, one of the subjects entitled to file a case as such
according to the Constitution, with similar arguments. In this case, however,
TCC decided that the law is not unconstitutional but in the term of the
“freedom of dress”, freedom to cover head and shoulders, that is “headcover or
turban freedom” is not included. With this decision, the TCC breached the
limits of its competences as a judicial organ which is entitled to settle a
dispute over the constitutionality (hence legal validity) of a status law and
functioned like a legislative body, regulation what consists in the notion of
freedom.[15]
Ever
since, women’s headcover has been one of the major issues concerning freedom of
religion or belief in Turkey. The case of Leyla Şahin v. Turkey in the ECHR has
internationalized the problem, resulting in a European Court decision
establishing that the decisions of Turkish Court do not violate the ECHR. Regarding
the Leyla Şahin decision of the European Court, I wish to draw attention to two
interesting points here.
First
point pertains to the requirement of the presence of a law that restricts
certain rights and freedoms mentioned in the ECHR. In the Turkish case,
however, there is no status law restricting freedom of dress in higher
education institutions, but only the interpretation of the TCC 1991 decision
mentioned above. The European Court, however, decided that the term “law”
includes not only status law but high court decisions as well. This
understanding of the term “law” may not be mistaken, but in view of the TCC
decisions regarding the restrictions on the freedom of religion or belief, I
think the European Court’s broader definition of law including the TCC decision
is disputable for some important reasons. If one reason is the fact that the
TCC breached its competences as a judicial organ and attempted at functioning
like a legislative organ, the other and more important reason is that the TCC set
rather “undefined” limits not only to the women’s headcover, but also to the
freedom of dress for all individuals. Reiterating the evaluations made in the
1989 decision, the TCC concludes in 1991:
“Consequently,
either for reasons of religious belief or for other reasons, the dress in
institutions of higher education must not contradict the modern situation. In
the Constituional Court decision [of 1989] mentioned above, this point has been
explained as “Either religious or not, dress that is against being modern and
contradicting the regulations stipulated by the revolutionary codes cannot be
seen adequate.”[16]
The
crucial point here is that, before going into a detailed argumentation on
whether the ban on women’s headcover in higher education institutions is
justified, as the TCC and the European Court says, for the protection of “the
rights and freedoms of others” and “public order” and whether the ban is
“necessary in a democratic society,” we have to discuss if the ban is
“prescribed by law”. As for an answer to this question, the European Court says
the TCC decision is “law” that has prescribed a limitation to a way of dress,
the headcover for the sake of enabling the TCC with the powers of a legislature
that may establish future restrictions on other forms of dress which it does
not see fit for conemporary (modern) situation. Together with Danchin, one may
think that “Since
the earliest days of the Republic, Turkey has had laws and decrees requiring
‘contemporary costume’ in the public sphere. Atatürk himself signed a 1923
decree on dress and the Hat Law of 1925, and the Law Relating to Prohibited
Garments of 1934 required religious clothing not to be worn outside of times of
worship and laid down dress guidelines for students and civil servants.”[17]
Even though this is true, we have to underline the fact that there has been no
status law stipulating women’s dress in public or in higher education
institutions during or after Atatürk, and there is still no such legally
binding norm, except the TCC decision of 1991. It should be noted also with a
heavy emphasis that the ban on women’s headcover in Turkish higher education
institutions resulting from the so-called law established by the TCC has been
put into practice strictly after the February 28, 1997 military intervention
which resulted in the resignation of Erbakan government.
As
for the other aspects of the European Court decision on the Leyla Şahin case, I
have to say that I am in absolute agreement with Carolyn Evans, in whose
criticisms one may also find a thorough criticism of the TCC decisions as well.
According to Evans, writing on the European Court decisions on Dahlab v.
Switzerland and Şahin v. Turkey cases, for instance, the argument that the
freedom to veiling is against “gender equality” cannot be sustained as a valid
argument. For Evans,
This is a serious issue that
deserves proper consideration, but it did not receive such consideration by the
Court in either case. In both cases the Court made the assertion that wearing
the veil is incompatible with gender equality, but in neither case did it flesh
out the reasoning behind this statement beyond saying that it ‘appears to be
imposed on women by a precept which is laid down in the Koran’.[74]
The way in which the word ‘imposed’ is used here is loaded. Most religious
obligations are ‘imposed’ on adherents to some extent and the Court does not
normally refer to the obligations in such negative terms. It is not clear why
wearing headscarves is any more imposed on women by the Qur’an, than abstinence from pork or alcohol is imposed on all
Muslims, or than obeying the Ten Commandments is imposed on Jews and
Christians. Both Ms Dahlab and Ms Şahin lived in societies where there was no
imposition by the state that required women to wear particular religious
clothing — indeed, it is clear from the cases that the governments in question
were unsupportive of the wearing of Muslim clothing. In this circumstance the
adoption of the headscarf by educated, intelligent women might be better
described as voluntary compliance with what they perceived to be a religious
obligation.”[18]
Another
point that is worth mentioning here is the European Court’s “justification for
banning the headscarf that it is incompatible with a
tolerant, secular society that respects the rights and freedoms of others.”
According to Evans,
“there is no
evidence that Ms Şahin was intolerant of the views of others. She did not
engage in any behaviour that involved attempting to force her views on others.
She was not guilty of any disciplinary offence at university other than those
related to clothing and she did not belong to any of the fundamentalist groups
within Turkey. At some level, the Court seems to be saying that anyone who is
sufficiently serious about advertising the fact that they are Muslim must be,
by definition, intolerant. Of course, the Court does not make that point
explicitly, but this equating of Islam with intolerance (and Islamic woman with
oppression) seems to inform the Court’s judgment implicitly.”[19]
In
the criticisms I quoted from Evans, one may easily replace the word “Court”
with “the Turkish Constitutional Court”. Like the European Court, the TCC also
established lines of reasoning and justification almost identical with that of
the European Court. One important difference of the TCC decisions, however,
regards a distinction made between two types of Turkish women. Echoing the
unjustified argumentation mentioned above pertaining to the issue of gender
equality, the TCC draws a distinction between traditional, uneducated and
innocent women covering their heads in accordance with the traditions of rural
life and educated women covering their heads with what the TCC calls “turban”
as a symbol of political Islam, aiming the secular foundations of the Republic.[20]
This
is a self-contradictory statement for on the one hand women wearing headcovers
are regarded as victims of an intolerant and oppressive religious practice and
on the other hand they are seen as bearers of a political ideology, conscious
of a political project with the aim at undermining secularism and establishing
an Islamic state. All these attempted justifications for the ban on women’s
headcovers serve, on the contrary, to the exclusion from public and educational
life of many women who either insist on wearing headcover as a fulfillment of
the requisites of their religion or for other social and cultural have no
chance to take part unless they put on their scarves or veils.[21]
Coupled
with the recognition of a kind of law-making power to the Courts, this
self-contradictory and unjustified line of reasoning seem to be the real
obstacle vis-à-vis the realization of a fuller freedom of religion or belief
not only in Turkey, but also in the contemporary world.[22]
Conclusion
Freedom
of religion or belief entails three interrelated dimensions. The first regards
the obligation of the state not to establish an official religion. Replacing
the word “Congress” with “the State”, we may recite the First Amendment of the
US Constitution: The state “shall make no law respecting an establishment of
religion.” The second dimension, again stated in the First Amendment, as well
as in other national and international legal documents, regards the free
exercise of religion and belief. Third dimension is the requirement on the part
of state and public authorities and private citizens to respect differences in
religion or belief.
As
for the first dimension, the Constitutional and legal status of the Presidency
of Religious Affairs (Diyanet) seem
to be violating the burden on the state not to create an establishment of
religion. The Constitutional status of Diyanet
as a public administration unit with the task of maintaining national unity and
solidarity and the effective legal protection provided in the Article 89 of the
Political Parties Law are not the only reasons behind this conclusion. Diyanet is a good example of a religious
establishment also due to its huge public bureaucracy and its incomparably high
degree of enjoyment of public funds. Perhaps the mot important factor in this
conclusion, however, is the very fact that Diyanet
represents the correct interpretation of Sunni Islam and it has a
self-image that its interpretation of Islam as such must be recognized and
internalized by all Muslims in Turkey, regardless of their personal and
community sects or denominations. So, Alevis and Sunnis, Hanafis and Shafiis,
practicing and non-practicing citizens of Turkey shall listen to and preferably
follow what the Diyanet says about
religious matters. In view of both the moral and legal requirements embedded in
the notion of freedom of religion or belief and the contemporary requirements
of multiculturalism, this state establishment of religion cannot be accepted.
Disestablishment of Diyanet as a
constitutional and public organ seems to be the most adequate solution that
will fulfill the requirements of religious freedom and pluralism in Turkey.
Compulsory
religious education curricula designed under the heavy influence of Diyanet is another aspect of Turkey’s
practices violating “the establishment clause”. Constitutional distinction
between compulsory instruction and education “in religious culture and ethics”
and other “optional” religious education cannot be sustained as a supporting
ground for the ongoing practice of religious education because there is an
apparent contradiction between the current practice and the requirement of the
state to respect the parents’ religious beliefs and philosophical convictions.
So, it seems necessary for Turkey to opt for eradicating the compulsory status
and establishing at least some form of optional courses in religious education.
As
for the ban on women’s headcover in higher education institutions in Turkey and
in view o the criticisms mentioned above both for the TCC and European Court
decisions, this seems to be a violation of the state’s requirement not to
prohibit or interfere with the free exercise of religion. The unjustified ban
on women’s headcover in Turkey violates:
(1)
Article 38/2 of Lausanne Treaty and is against the law in a more general sense
because according to article 37 of the same treaty “Turkey
undertakes that the stipulations contained in Articles 38 to 44 shall be
recognised as fundamental laws, and that no law, no regulation, nor official
action shall conflict or interfere with these stipulations, nor shall any law,
regulation, nor official action prevail over them.”
(2) Article
13 of the Turkish Constitution promulgating that “Fundamental rights and freedoms may be restricted
only by law”, and there is no law restricting the students attire in higher
education institutions and also Article 42 of the Turkish Constitution
stipulating that no one can be deprived of the right to education.
(3) The moral and legal principle of equal respect
to which every human being is entitled in her own difference of religion or
belief.
It
seems to be the case that the current state of affairs in Turkey regarding the
issues of religion, education and the Constitution, contradicts in most
important dimensions the freedom of religion or belief. The urgent need for a
constitutional and statutory reform is waiting still to be realized for Turkey
to fulfill not only its international legal obligations, but also to eradicate
internal conflicts in its legal system and perhaps more importantly to become a
country with full recognition of human freedom in conformity with the moral
requirements of contemporary multicultural democracy.
Levent Köker
*
Professor of Public Law and Politics, Atılım University, Faculty of Law,
Ankara.
[1]
The most important stipulation regarding the freedom of religion or belief is
Article 38/2 of the Treaty: “All
inhabitants of Turkey shall be entitled to free exercise, whether in public
or private, of any creed, religion or belief, the observance of which shall not
be incompatible with public order and good morals.” [italics added]. All other
articles in the Treaty pertaining to the rights and freedoms of minorities use
the same language, like “all inhabitants of Turkey,” or “Turkish nationals”,
without mentioning any specific religious or denominational community :
“Turkish nationals belonging to non-Moslem minorities shall enjoy the same
treatment and security in law and in fact as other Turkish nationals. In
particular, they shall have an equal right to establish, manage and control at
their own expense, any charitable, religious and social institutions, any
schools and other establishments for instruction and education, with the right
to use their own language and to exercise their own religion freely therein.”
(Art. 40) [italics added]. See http://wwi.lib.byu.edu/index.php/Treaty_of_Lausanne
(09.10.2009).
[2]
Cf. Peter G. Danchin, “Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in
International Law,”The Yale Joural of
International Law, Vol. 33:1, 2008, p. 25 where he states that “in
Turkey there is a strongly homogenous,
religiously and culturally defined majority nation.” [italics added].
[3]
Inspired by the “First Amendment” to the US Constitution, these universal
standards of freedom of religion or belief are justified morally and legally,
as international legal instruments like the “twin international covenants” of
the UN on the civil and political rights and social, economic and cultural
rights and the European Convention on Human Rights (ECHR) have already put into
effect. As for the Republic of Turkey, in fact one of the founding members of
the Council of Europe in 1949 and a drafter of ECHR, the latter has a stronger
binding force, together with the above mentioned Treaty of Lausanne, for Turkey
has accepted since 1987 not only the right of the individuals to apply directly
to the court and the jurisdiction of the European Court of Human Rights. We
need to mention also that Turkey amended its Constitution (Art. 90) in 2004 and
accepted very clearly that international legal instruments regarding
fundamental human rights and liberties have a superior binding force when they
are in conflict with a status law.
[4]
See İştar B. Tarhanlı, Müslüman Toplum,
“Laik” Devlet, Türkiye’de Diyanet İşleri Başkanlığı [Muslim Society,
“Secular” State, The Presidency of Religious Affairs in Turkey], (İstanbul:
Afa, 1993), pp. 41-42.
[5]
Cited in Recep Kaymakcan, “Religious Education Culture in Turkey,” in M. de Souza, et al. (eds.), International Handbook of the Religious, Moral and Spiritual Dimensions in Education, (Springer Science and Business Media B.V., 2009),
p. 450 (Kaymakcan’s translation).
[6]
For Danıştay casesdoi of E.2006/4107,
K. 2007/7481 and E. 2007/679, K. 2008/1461 [E standing for the file number, K
for the number of the decision] see www.danistay.gov.tr
(güncel kararlar).
[7]
Quotations are from “Hasan and Eylem Zengin v. Turkey,” (Appl. No. 1448/04),
ECHR, 9 October 2007, paragraphs 48 and 49.
[8]
The President of the Diyanet, Professor Ali Bardakoğlu, criticized Danıştay’s
decisions of 2008 as copying the mistakes made by the European Court and
insisted on maintaining the existing compulsory status of religious education
with some new reforms to eradicate problem causing aspects of the curricula.
See http://bianet.org/bianet/din/105425-bardakoglu-nun-zorunlu-din-dersi-israri-uzerine
(20.10.2009).
[9]
A recent campaign against compulsory religious education initiated by a trade
union organized among school teahers and other workers in the educational
sector, has brought together members from Alevi and non-Alevi groups. See http://demokrasiveozgurluk.org/v1/genclik/egitimsenden-zorunlu-din-derslerine-karsi-kampanya.html
(11.15.2009).
[10]
Public recognition of “cemevi” as a
place of worship does not only have the meaning of recognizing Alevi identity,
but will result in also bringing some material benefits to the Alevi community
like reduced payments for expenses like electricity or making use of water
supplies,etc., benefits shared by mosques and recognized churches and
synangogues.
[11]
Justice and Development Party (AKP) government’s current attempts at bringing
together columnists, academics, leaders of Alevi community and theologians and
members of the Diyanet in a series of workshops to find ways of settling the
public disputes originating from Alevi demands is called “the Alevi opening”.
This terminology I think reveals the fact that the existing system of
religion-state relations is “closed” to the demands of the Alevis. This
implication, I think is reflected in the words of many prominent members of the
community of religious scholars in their emphasis on the need for further
reforms in the curricula to meet Alevi demands. See for instance Recep
Kaymakcan on the ECHR decision, “AİHM Din Dersi Kararı Nasıl Anlaşılmalı?” [How
Should the ECHR Decision on Religious Education be Understood?], Dem Dergi, Yıl:1, Sayı:2, p. 60-62.
[12]
Cited in Mehmet Günaydın, “Din Kültürü ve Ahlâk Öğretiminin İlköğretim ve
Liselerde Zorunlu Ders Olmasına Prof. Dr. Hüseyin Atay’ın Katkıları,” [The
Contributions of Prof. Dr. Hüseyin Atay to the Formation of the Compulsory
Status of Instruction in Religious Culture and Ethics Courses], Dinbilimleri Akademik Araştırma Dergisi,
IX:1 (2009), p. 295.
[13]
Mehmet Semih Gemalmaz, Türk Kıyafet
Hukuku ve Türban, Istanbul: Legal, 2005), p. 1138. For a full text of the
TCC decision of E.1989/1, K. 1989/12: ibid., pp. 1129-1143 or
http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1989/K1989-12.htm.
[14]
Gemalmaz, p. 1139-1140.
[15]
For a criticism of this decision see…
[16]
Gemalmaz, 1163.
[17]
Danchin, “Suspect Symbols,” p. 26.
[18] Carolyn Evans, "The 'Islamic Scarf' in the European Court of
Human Rights," Melbourne Journal of International Law 4; (2006) 7(1), 52, http://www.austlii.edu.au/au/journals/MelbJIL/2006/4.html (10.15.2009).
[19]
Ibid.
[20]
For a critique of this distinction see Geamlmaz, p. 6. For a reiteration of a
similar distinction made by Turkish Council of State and its critique of this
distinction see ibid., p. 19-23.
[21]
Ibid., pp. 15-19.
[22]
For reasons of space I refrain from going into a detailed criticism of another
TCC decision on the “unconstitutionality” of some recent amendments made in the
Articles 10 and 42 of the Turkish Constitution. It should suffice here to point
out that the amendments in 2008 passed by the parliament by 411 votes out of a
total of 550 had reinforced the meaning of equality before the law (Art. 10)
and prohibited any unlawful restriction on the right to education (Art.
42). Although the intention of the
amendments mentioned in the justification stated the desire to lift the ban on
women’s headcover, the wording made no explicit mentioning of the ban and
despite a clear restriction on the powers of the TCC in reviewing the
constitutionality of the constitutional amendments, the TCC breached once again
constitutional limits set on its judicial competences and decided that the
amendments were unconstitutional.
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