1 Select Issues Concerning Freedom of Thought, Conscience and ReligionETHR 103 R. Murat ÖNOK

2 ECHR Art. 9 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 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.

3 AİHS m. 9 1. Herkes düşünce, vicdan ve din özgürlüğüne sahiptir. Bu hak, din veya inanç değiştirme özgürlüğü ile tek başına veya topluca, açıkça veya özel tarzda ibadet, öğretim, uygulama ve ayin yapmak suretiyle dinini veya inancını açıklama özgürlüğünü de içerir. 2. Din veya inancını açıklama özgürlüğü ancak kamu güvenliğinin, kamu düzenin, genel sağlığın veya ahlakın ya da başkalarının hak ve özgürlüklerinin korunması için demokratik bir toplumda zorunlu tedbirlerle ve yasayla sınırlanabilir.

4 Defining religion or beliefThe Court has adopted a broad approach to what amounts to religion or belief, and has avoided elaborating any precise definition. This approach is understandable, because any definition would need to be flexible enough to satisfy a broad cross-section of world faiths, as well as sufficiently precise for practical application in specific cases. This would be an almost impossible task. In any case, the inclusion of the term ‘belief’ enables the Court to avoid having to define the word ‘religion’. On the other hand, this may lead to uncertainty, especially with regard to whether certain controversial new religious movements should be protected by Art. 9. A problem is that it is not clear what type and level of evidence applicants are expected to produce in order to establish that their religion is an existing one.

5 Scope of Art. 9 Art. 9 does not only protect “religious beliefs”, but also non-religious beliefs, covering a wide range of convictions (kanaat) and philosophies. In order for the article to apply, a belief must ‘attain a certain level of cogency, seriousness, cohesion and importance’. Once this threshold has been met the state may not determine whether religious beliefs are legitimate. The existence of this threshold means that mere ideas or opinions will not constitute a belief. The borderline is difficult to draw in practice (for example, opposition to abortion was found to fall within Art. 9)

6 Scope of Art. 9 Art. 9 is not confined to long established religions. What has been accepted as religion or belief so far: Islam, Judaism, Christianity, Hinduism, Buddhism, Sikhism, Jehovah’s Witnesses, Church of Scientology, the Salvation Army, atheism, Druidism, the Divine Light Zentrum, the Osho movement, pacifism, veganism. Not covered by Art. 9: request of assisted suicide (Pretty Diane v UK); beliefs relating to the regulation of marriage (Parry v UK, 28/11/2006); wish to have his cremated ashes scattered over his land due to the desire not to be buried in a cemetary with Christian symbols (X v FRG, Commission decision, 1978). In any case, Art. 9 does not protect every act motivated or influenced by a religion or belief (Refah Partisi v Turkey [GC], 13/02/2003, para. 92).

7 Scope of Art. 9 There are two elements to Art. 9: an internal and an external dimension. The internal dimension (forum internum) guarantees freedom of thought, conscience and religion, and is largely exercised inside an individual’s heart and mind. Therefore, it falls beyond the jurisdiction of the state and cannot be restricted. The external dimension (forum externum) recognises that everyone has the right to manifest a ‘religion or belief’ in ‘worship, teaching, practice and observance’. Manifestation of religion or belief can be restricted on the basis of the conditions laid down in para. 2. The distinction between the internal and the externak dimension is sometimes hard to make.

8 Scope of Art. 9 Although the margins of the forum internum are not clear, it is undisputed that certain conduct will be contrary to this internal dimension of Art. 9. An example may be the use of physical threats or sanctions that force people to deny or adhere to a particular religion or belief. Similarly, the state may not dictate nor demand to know what an individual believes (Folgero and others v Norway [GC], 29/06/2007, imposing an obligation on parents to disclose detailed info to school authorities about their religious and philosophical convictions may constitute a violation of Art. 8 and, possibly also, of Art. 9. However, the case was decided under the right to education). The Court held in Sinan Işık v Turkey (02/02/2010) that indicating religion in identity cards is a breach of Art. 9 (nüfus cüzdanlarında din hanesinin bulunması maddenin ihlalidir – yıllarca söylediğimiz şey).

9 Obligations under Art. 9 In the relation between church (or faith communities and individuals) and state, apart from keeping neutrality and impartiality, a government must pay attention to five issues: The state must ensure that religious organisations retain autonomy in relation to the selection of their leaders (see Hasan and Chaush v Bulgaria [GC], 26/10/2000) When a state accords official recognition to certain faiths under national law, it must take into account the Convention (for example, it must respect neutrality and impartiality, and afford equal treatment to all faiths). The state must comply with the requirements of Art. 9 in relation to the regulation of places of worhsip. The implementation of planning permissions is acceptable but such powers should not be exercised arbitrarily, or used against minority groups (see the Manoussakis case against Greece, where a requirement that applicants obtain prior authorization to use premises as a place of worship was held to violate Art. 9 because they had been waiting for over a decade to obtain such permission to be granted, and the relevant law had been employed to curb the activities of non-Orthodox faiths).

10 Scope of Art. 9 In the provision of education to children, the state is under a duty to ensure ‘that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner’ and is forbidden from ‘an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions’. The Court, though, will usually consider this matter under Art. 2 of Prot.1 (see the Hasan and Eylem Zengin v Turkey case regarding compulsory religious instruction). We shall now analyze this case, and then, return to freedom of religion.

11 Art. 2 of Add.Prot.1 – The Right to EducationAn important issue is related to the provision of Art. 24 of the Turkish Constitution which orders that “Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools”. A case regarding the issue was brought before the European Court by Hasan and Eylem Zengin (09/10/2007). The applicants maintained, in particular, that the way in which religious culture and ethics were taught in Turkey infringed Miss Zengin’s right to freedom of religion and her parents’ right to ensure her education in conformity with their religious convictions as guaranteed under P1-2 and Art. 9. The applicants notably alleged that the course’s syllabus lacked objectivity because no detailed information about other religions was included and was taught from a religious perspective which praised the Sunni interpretation of the Islamic faith and tradition. Firstly, the Court determined that the syllabus for teaching in primary schools and the first cycle of secondary school and the relevant textbooks gave greater priority to knowledge of Islam than to that of other religions and philosophies.

12 In particular, the syllabus included study of the prophet Mohamed and the Koran. Pupils had to learn several suras from the Koran by heart and study, with the support of illustrations, daily prayers. They also had to sit written tests. The textbooks did not just give a general overview of religions but provided specific instruction in the major principles of the Muslim faith, including its cultural rites, such as the profession of faith, the five daily prayers, Ramadan, pilgrimage, the concepts of angels and invisible creatures and belief in the other world. On the other hand, pupils received no teaching on the confessional or ritual specificities of the Alevi faith, even though its followers represented a large proportion of the Turkish population. Information about the Alevis was taught in the 9th grade but the Court, like the applicants, considered that the fact that the life and philosophy of the two great Sufis, who had had a major impact on the movement, were only taught at such a late stage was insufficient to compensate for the shortcomings of the primary and secondary school teaching.

13 The Court therefore found that religious culture and ethics lessons in Turkey could not be considered to meet the criteria of objectivity and pluralism necessary for education in a democratic society and for pupils to develop a critical mind towards religion. In the applicants’ case, the lessons did not respect the religious and philosophical convictions of Ms Zengin’s father. Secondly, the Court examined whether appropriate means existed in the Turkish educational system to ensure respect for parents’ convictions. Following a decision by the Supreme Council for Education of July 1990, it was possible for children “of Turkish nationality who belong to the Christian or Jewish religion” to be exempted from religious culture and ethics lessons. That decision necessarily suggested that the lessons were likely to create conflict for Christian or Jewish children between the religious instruction given by the school and their parents’ religious or philosophical convictions. Like the Council of Europe’s European Commission against Racism and Intolerance (ECRI), the Court considered that that situation was open to criticism: if the course intended to be about different religious cultures, there was no reason to make it compulsory for Muslim children alone.

14 As for the exemption procedure, the fact that parents were obliged to inform the school authorities of their religious or philosophical convictions was an inappropriate way to ensure respect for freedom of conviction. Moreover, in the absence of any clear text, the school authorities always had the option of refusing exemption requests, as in Ms Zengin’s case. Consequently, the Court considered that the exemption procedure did not use appropriate methods and did not provide sufficient protection to those parents who could legitimately consider that the subject taught was likely to raise a conflict of values in their children. That was especially so where no choice had been envisaged for the children of parents who had a religious or philosophical conviction other than that of Sunni Islam (diğer bir deyişle, Müslüman olup da Sünni olmayanlar için muafiyet opsiyonu yoktur) and where the exemption procedure involved the heavy burden of disclosing their religious or philosophical convictions. (Yani: muafiyetten yararlanmak için dinini açıklamak zorundasın! Kaldı ki, bu muafiyetten sadece belirli dine mensup olanlar (Hristiyan, Musevi) yararlanabiliyor, fakat Sünni mezhepten olmayan Müslümanlar (ya da diğer inançtakiler) faydalanamıyor. Accordingly, the Court concluded that there had been a violation of the ECHR.   The Court considered that no separate issue arose under Article 9. (yani m. 9 uyarınca ayrıca inceleme yapmaya gerek görülmemiş). As can be seen, the ECtHR did not analyze the case from the viewpoint of freedom of religion.

15 Art. 9 (2) – restricting the manifestation of religion or beliefThe manifestation of religion and belief may be subject to limitations in accordance with para. 2 of the Article. Such limitations must be: (i) prescribed by law, and (ii) 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). For example, the limitations imposed on the movement of Greek Cypriots in the occupied north part of the island which prevented them from being able to manifest their religion was found to violate Art. 9 (Cyprus v Turkey, 10/05/2001). When it comes to the public manifestation of religion or belief, the Strasbourg organs adopt the view that there is no interference when a person voluntarily accepts a position whereby restrictions are placed on the free exercise of their religious beliefs (Read the Kalaç v Turkey case (textbook, p. 411, last para.)

16 Art. 9 (2) – restricting the manifestation of religion or beliefIn fact, in the sphere of employment, the Court applies the ‘free to leave’ test whereby certain restriction imposed on the manifestation of religious belief are not found to constitute interferences as the applicant is free to resign. Examples: a Christian employed in a travel agency refusing to work on Sundays is ‘free to resign and did in effect resign’ (no violation, Stedman v UK, Commission decision, 1997); a Muslim teacher seeking an extended Friday lunch break so that he can attend the nearest mosque for prayers ‘remained free to resign if and when he found that his teaching obligations conflicted with his religious duties’ (Ahmad v UK, 1981).

17 Art. 9 (2) – restricting the manifestation of religion or beliefEvery restriction must be ‘necessary in a democratic society’ and, thus, proportionate to the intended aim. Curbs on religious dress have provoked major controversy as the Court has granted states a wide margin of appreciation in this issue. All applications based on the prohibition of the headscarf have failed. See the Dahlab case (Teacher with Islamic headscarf in primary school) See the Leyla Şahin case (ban on headscarves in university) Dikkat: GC bu kararı 16’ya karşı 1 oyla aldı! See various decisions of 17/07/2009 concerning prohibitions on the wearing of conspicuous religous symbols which have been found manifestly ill-founded (açıkça temelsiz). Result: The ban on headscarves IS NOT a violation of the right to freedom of thought, conscience, and religion.

18 Art. 9 (2) – restricting the manifestation of religion or beliefProselytizing (to try to persuade someone to change their religious or political beliefs or their way of living to your own) is protected by Art. 9 unless conducted by ‘improper means’ (Kokkinakis v Greece, 25/05/1993). In that sense, missionary activities are protected under Art. 9! However, in the case-law of the ECtHR, an interesting distinction is made between ‘true evangelism’, which is ‘an essential mission and the responsibility of every Christian’ and ‘improper proselytism, which is ‘a corruption or deformation’ of it. Improper proselytism can ‘take the form of activities offering material or social advantage with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need’, possibly also entailing ‘the use of violence or brainwashing’ . Therefore, ‘improper’ proselytism does not enjoy the protection of Art. 9.

19 Laiklik

20 THE PURPOSE OF THE REFORMS CARRIED OUT IN THE EARLY YEARS OF THE TURKISH REPUBLICThe ultimate goal that the leader of the national independence war, Mustafa Kemal Atatürk, had in mind was to transform Turkey into a modern nation state (ulus devlet), an advanced and civilized nation that would be part of modern civilization. In order to achieve that objective, all legal and political ties with the past had to be broken.

21 The first step was secularizing the state, thus reducing the societal significance of religious values and eventually aiming at disestablishing Islamic cultural and political institutions. Thus, policy-makers either excised any pre-Republican Islamic references or rendered them attributes of a modern state based on the notion of ‘nation’. A further objective was to develop a system of natural morals and ethique independent of the religion/s adopted by the members of the society. That was because Ataturk’s secularism intended to liberate the society from the hold of religion, bringing about a new type of free individual. In fact, it has been suggested by Daver that the Turkish secularist movement appeared mainly as ‘an anti-clerical drive, a protest at the tyranny of religious fanaticism’.

22 Measures Implemented In 1921 (January 20), the new Constitution reorganizing the state was promulgated by the Turkish Grand National Assembly. The principle of national sovereignty was proclaimed, legislative and judicial powers were vested in the Assembly. However, for tactical-political reasons the sultanate was still not abolished. Although there was no clear provision to that effect, it was implied that Islam was the state religion, since according to one of the acts cited by the constitution, the purpose of the nationalist régime was to liberate the Caliphate and Sultan from foreign control. However, on November 2, 1922 the TGNA adopted a resolution declaring that the office of the Sultan had ceased to exist and that the office of the Caliph which had hitherto been vested in the person of the Sultan was to be filled by one of the princes belonging to the Ottoman dynasty.

23 Within this framework, the Republic was proclaimed on 29 October 1923 in order to give the state a democratic form in the contemporary sense. Four months later, the Caliphate, which was incompatible with the principle of republicanism, was abolished and the members of the Ottoman Dynasty were deprived of Turkish citizenship and expelled from Turkey on 3 March 1924. Being aware of the fact that the separation of religious and state affairs and the provision of freedom of religion and conscience for individuals were among the prerequisites of forming a modern society, Mustafa Kemal initiated in the framework of the "principle of secularity" the most important changes. After the abolition of the Caliphate, a series of radical reforms were made in the institutions and mentality connected to the Caliphate.

24 In order to eliminate the political and social influence of the religious bureaucracy (the ‘ulema’), their authority to issue religious decrees as to daily life (the ‘fetva’), the economic independence they held and the legal and educational functions they possessed had to be revoked. Within this framework, on 3 March 1924, the Ministry of Shariah and Foundations (these foundations were known as ‘vakif’s, which basically were foundations of a religious nature and purpose) was replaced by the Directorate of Religious Affairs and Pious Foundations, both connected to the Prime Ministry. The religious school order was abolished on 3 March 1924 with the Unification of Instruction Act (and all schools and educational matters were united under the Ministry of National Education). Thus, all the schools controlled by the Directorate for Religious Affairs and the Pious Foundations were closed. By the unification of instruction, all schools would be controlled by the Ministry of National Education in accordance with national and secular principles.

25 The Shariah Courts were replaced by secular courts with the Judicial Organization Act in April 1924.Reorganization continued with new reforms. On November 25, 1925 the Hat Reform was accepted. The wearing of the fez (the traditional Ottoman hat worn by men) that was symbol of the former order was banned and the western-style hat became the official headgear, following the promulgation of the Hat Act on 25 November Thus, the traditional symbols in attire, indicating differences of class, rank and religious order were removed. The dervish orders (‘tarikat’s), monasteries (‘tekke’) and lodges (‘zaviye’) and the offices of tombkeepers and the titles of tarikats were abolished on 25 November (The tarikats may also be named as convents or ‘Islam brotherhoods’. However, although outlawed and technically illegal, the brotherhoods’ activities still persist in large number both across Turkey and abroad, especially in Germany (not to mention the US!)).

26 In order to prevent the confusion caused by the use of different calendars by Moslems, Orthodox and Catholics, the Gregorian calendar was accepted on December 26, 1925 and began to be used on January 1, Meanwhile, international time was approved, and Sunday was accepted as a holiday instead of Friday, which still is the common holiday for Islamic countries. Reforms of law which started dating back to the Ottomans continued as the principles of Sheriah were abolished one after the other. A new Civil Code was accepted on February 17, 1926 and came into force on April 4, 1926, and the Code of Obligations entered into force on October 4, With the Turkish Civil Code, Turkish women gained their basic rights and reached a new milestone on the road to progress. Polygamy was forbidden and marriages, to be officially recognized, had to be performed in accordance with civil law and not according to religious ceremonies as in the past. Also, a law was promulgated which made it necessary to get a court decree to get a divorce. The Municipal Act of 1930 and the National Assembly Act of 1934 granted suffrage to Turkish women. Thus, the Turkish woman possessed almost all basic political rights, much before fellow women in many other European countries.

27 After the Turks accepted Islam, they had abandoned their original alphabets, Orhon and Uigur, and began to use the Arabic script. However, it was argued that the Arabic script was not suitable for the Turkish language. Furthermore, a secular conception of the world, society and humanity implied the development of a national language. Extensive studies ended in the promulgation of the law concerning the use of the new (Latin-based) alphabet on November 1, The adoption of this new phonetic alphabet was an important step taken to help increase the literacy rate which had been very low. In 1928, the Grand National Assembly also promulgated the law concerning the use of international numerals.

28 The efforts to create a modern country based on secular foundations was also reflected in the Constitution. On, April 10, 1928, the provision "Islam is the official religion of the state" was removed from the Constitution in accordance with secular principles. The old units of measurement and weight were changed in 1931 and the metric system was accepted. Commercial and economic transactions were facilitated with the acceptance of the metric system and a standard system of measurement was established throughout Turkey. Along with these developments, Atatürk established the Turkish Historical Society in 1925 and Turkish Linguistic Society in 1932 in order to strengthen the foundations of the new national state and contribute to the development of a national consciousness among the Turkish people. In addition, it was decided on November 24, 1934 that, Mustafa Kemal would be given the surname "Atatürk" (father of the Turks). A clause was put in the Constitution later in 1937 (February 5) stating that Turkey is a secular state, thus officially culminating the legal movement of secularization.

29 SECULARISM IN THE CONSTITUTIONAL ORDER OF THE MODERN TURKISH REPUBLICSince this is not a constitutional law course, I will not account in detail the normative framework on the issue. I will only provide you with the very basic information. The Turkish Republic has had three Constitutions in force so far: the Constitutions of 1924, 1961 and 1982. The Turkish Republic is based on six principles that are jointly labeled as ‘Kemalism’: republicanism, secularism, nationalism (which is not based on racial or ethnic origin but on grounds of Turkish citizenship), populism, étatism and revolutionism.

30 According to Art. 1 on the form of the State, ‘The Turkish state is a Republic’ and Art. 2 regarding the characteristics of the Republic reads ‘The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble’. In the preamble it is stated that ‘as required by the principle of secularism, there shall be no interference whatsoever by sacred religious feelings in state affairs and politics’. Art. 4 provides that ‘The provision of Article 1 of the Constitution establishing the form of the state as a Republic, the provisions in Article 2 on the characteristics of the Republic, and the provision of Article 3 shall not be amended, nor shall their amendment be proposed’.

31 Following the basic principles set forth in the opening provisions, there are many rules regarding secularism. According to art. 14 on the prohibition of abuse of fundamental rights and freedoms ‘None of the rights and freedoms embodied in the Constitution shall be exercised with the aim of violating the indivisible integrity of the state with its territory and nation, and endangering the existence of the democratic and secular order of  the Turkish Republic based upon human rights.’ The main provision regarding the freedom of religion and conscience is to be found in Art. 24: ‘Everyone has the right to freedom of conscience, religious belief and conviction. Acts of worship, religious services, and ceremonies shall be conducted freely, provided that they do not violate the provisions of Article 14. No 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.’

32 According to this article, ‘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.’ According to the last paragraph, ‘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.’

33 In the early years of the Republic, religious instruction was gradually eliminated from curriculum. However, with the advent of a multi-party based democracy, parties aiming at gaining political advantage from religious sentiments first reintroduced religious education at schools, and then went on to integrate Islamic religious symbols into the political culture of the country. Especially the Democrat Party took the decisive step by introducing an amendment providing that all Muslim children receive religious instruction automatically unless their parents request in writing that their children be exempt. As Daver rightly points out, this makes religious education virtually compulsory since it could be hard for parents in Turkey to explicitly state such desire. Although the provision explicitly mentions ‘religious culture and moral education’, it has been pointed out that the real purpose was to render ‘religious education’ compulsory. In effect, these lectures have turned out to be the teaching of Islam in practice and Turkish doctrine rightly considers such implementation to contravene secularism (as confirmed by the ECtHR in the Hasan and Eylem Zengin Case).

34 A most interesting provision is in ArtA most interesting provision is in Art. 136 of the Constitution concerning the establishment of the Department (Directorate) of Religious Affairs (Diyanet İşleri Başkanlığı) as a unit within the general administration, thus creating an official administrative body charged with running religious services. The Directorate, which is under the authority of the Prime Minister’s Office, is authorised to organise and run every kind of religious activity and to manage religious institutions. It also has the duty to supply financial aid to the encovered foundations. It appoints religious officials, including imams, pays the stipends of religious officials, and directs the administration of more than 70,000 mosques. The Directorate which takes considerable funds from the state budget, only offers services to (certain) Muslim organisations. The Directorate is often criticised for only reflecting mainstream ‘Sunni’ Islamic beliefs and not those of other Islamic minority sects.

35 To make sure that the principles mentioned above are implemented on the political stage, Art. 68 (4) of the Constitution stipulates that ‘The statutes and programmes, as well as the activities of political parties shall not be in conflict with’, amongst others, the principles of the democratic and secular republic. According to Art. 69/5, ‘The permanent dissolution of a political party shall be decided when it is established that the statute and programme of the political party violate’ this provision. These limitations are further enhanced by the Law no on Political Parties (Siyasi Partiler Kanunu) which severely restricts the area of activity of parties with regard to secularism by banning anti-secular parties (see, for example, Arts. 86 and 101). Thus, the Turkish system constitutes a clear example of ‘militant or fighting democracy’ (militan/mücadeleci laiklik).

36 Five parties have been dissolved by the Constitutional Court due to anti-secular activities.- Milli Nizam Partisi (National Order Party) on (the party requested that religious instruction be compulsory – and it is interesting that the Constitution of 1982 has later provided so, that Art. 163 of the Turkish Penal Code (concerning the punishment of certain anti-secular activities be abolished – and, indeed, it was later abolished in 1991), that Friday be the official holiday, and the party further viewed that the establishment of the Caliphate would bring along important advantages); - Huzur Partisi (Peace Party) on (the party requested that religious instruction be applied in universities, the national education institutions be based on … Turkish-Muslim traditions and that a system of education which gives importance to religious and moral values be established); - Özgurluk ve Demokrasi Partisi (Freedom and Democracy Party) on (in the party’s official program it was declared that state would not interfere with religious affairs and that religion would be totally left to communities, this was an action that would have run against the function of the Directorate on Religious Affairs; however the same purpose was not found sufficient for the dissolution of another party in a case judged later on )

37 - Refah Partisi (Welfare Party) on 16. 1- Refah Partisi (Welfare Party) on (the party chairman’s suggestions on a multi-legal system, certain speeches inciting to the use of violence and implying resort to force if necessary in order to establish a new order, especially the statement he made during a public speech in which he said he would establish a just system, that Islamic revolution was the destiny of Turkey and then indicated that he did not know whether such a revolution would be bloody or not, hosting the leaders of Islamic brotherhoods dressed up in religious attire in violation of the reform laws to an official Ramadan dinner held at the Prime Minister’s official residence, anti-secular speeches delivered by various party officials, a speech by the Prime Minister aired on television in which he mentioned the jihad, a decision taken by the cabinet which meant to regulate official working hours according to the breaking hour of the Ramadan fast); - Fazilet Partisi (Virtue Party) on (you may read my article (by requesting it from me in my office) for details).

38 The Fazilet Partisi (Virtue Party) case is important for two aspects: first, it deals directly with the headscarf issue and secondly, the current Prime Minister Erdogan and Minister of Foreign Affairs Gul were then both leading members of the party. The Court made reference to the speeches of the party’s chairman, certain MPs and mayors alleging that secularism was not defined correctly and that the prohibition on wearing headscarves applied at universities and government offices constituted a persecution and despotism preventing the enjoyment of fundamental rights and freedoms, and thus inciting the population to disrupt public order and arousing feelings of hatred and hostility against public officers. The Court further noted the action of this party during a session of the Parliament, when the parliamentarian Ms. Merve Kavakci appeared at the Grand Assembly with a headscarf and many other Party members gave her a standing-ovation. According to the Court, by attempting to penetrate in the parliament with a headscarf which was used as a strong political symbol by the party, the principle of secularism was severely breached.

39 The fact that most members and the chairman participated to this demonstration against secularism was found to be a proof of the fact that the party had become a focus for anti-secular activities. In sum, the resolute and insistent activities of the chairman, his deputy and certain leading members in order to support the headscarf, the above-mentioned action taking place in the parliament, the support offered by a parliamentarian to a student standing up against the prohibition and the speeches of other members with regard to the problem were found to be proofs of the fact that the party had become a focal point for anti-secular activities. Thus, the Fazilet Partisi was dissolved and banned. (Kavakci tried to enter the Parliament to be sworn in (plead of allegiance) but faced resistance from Prime Minister Bülent Ecevit and members of his Social Democratic Party (SDP). As the members of the Virtue Party stood up to applaud, all members of the SDP shouted in unison ‘get out’ (dışarı), punctuating the slogan with claps. Kavakçı could not take her oath that day.

40 The event provoked almost unprecedented popular, political and media reaction, and most important, great rage amongst many (most?) people. Following a long course of events, Kavakçi did not take her seat in the parliament and later lost her Turkish nationality on the grounds that she had become a U.S. national before obtaining approval from Turkish authorities. She was also deprived of her parliamentary immunities and privileges, although technically not of her elected seat, since the Parliament did not vote to remove her. She later married a Turkish man to regain Turkish citizenship but the Turkish Constitutional Court still did not accept Kavakci as a member of Parliament. M.K. Video = response of Bülent Ecevit

41 Features of Laiklik The principle which is known as ‘laiklik’ in Turkish, is the counterpart of the French term ‘laїcité’ (indicating a certain institutional-structural situation) and not ‘laїcisme’, which defines a certain doctrine. Therefore, there is a difference between the Anglo-Saxon understanding of secularism and the French version of laїcité. For convenience, throughout the text, I shall use laїcité and secularism interchangeably, referring however in both cases to the Turkish understanding of the concept, as delineated below.

42 As in the West, the principle encompasses the following elements:the inexistence of an official state religion (‘Türkiye Müslüman bir ülkedir’ (!); non-discrimination between different religions and denominations (impartiality and equal treatment); not recognising religion a social function, in other words, not subjecting state administration and social relations to religious rules. However, this is just a structural aspect of secularism in Turkey. As it will be demonstrated below, secularism, as a system of modern and scientific, rational values is the cornerstone of the Turkish Republic. As a distinguishing point, Turkish secularism also requires the regulation and running of religious services as a public service. Apart from the arguments discussed above, religious service is run by the State also because of the fact that, contrary for example to Italy, religion is not allowed to become fully independent and institutionalise, but is only recognised as a value. Thus, religious service is offered by the State, not for the purposes of institutionalising religion through state mechanisms, but just to structure it as a public service in the light of public law principles.

43 In countries such as Turkey and France, where laїcité is the cornerstone of the Republic, the State must be religiously neutral and isolate herself from the religious sphere. As in any secular order, religion is deprived of its public character and delimited as an individual-social value. Even so, secularism in Turkey does not mean that law completely ignores religion. In fact, as a social institution, religion is an area regulated by law. In that sense, laїcité does not entail an absolute disregard of religious affairs; on the contrary, the state is entitled to impose restrictions and limitations in order to establish religious peace.

44 A clear demonstration of the different understanding of secularism in Turkey with respect to the West is the existence of the Diyanet İşleri Başkanlığı as a unit of the central administration. This is puzzling at first, since secularism in the West usually means complete separation of religion (church) and the state. Howevet, the Kemalist (Ataturk’s) conception of the notion allows for some measure of state control over religion. That is because it is feared that a total non-interference politics would result in the interference and exploitation of religion in governmental affairs. This is concisely explained by Özbudun (!) in the following way: ‘Islam is not only a system of faith but also a system of law, a social and political ideology, and a total way of life. If religious affairs were left entirely in the hands of communal organisations without any governmental supervision, Islam would inevitably retain its hold over the society, over its laws, politics and economics’ and these communities could soon become a power clashing with the state .

45 In fact, the Constitutional Court has underlined this issue, by stating that since secularism is a principle that regulates the relationship between religion and state affairs, it is a natural consequence that differences between religions and each country’s conditions shall bring along some distinctions in the understanding of secularism. Due to the characteristics of the Christian religion, the fact that the principle of reciprocal non-intervention between religion and state affairs has been conceptualized as the independence of the church, has not created problems. However, Islam not only lays down rules regarding individual conscience and religious belief but also regulates social relations, state activities and law. Therefore, secularism as a revolutionary principle of Ataturk has the basic function of eliminating the public function of Islam and making sure that religion does not trespass the sphere of personal conscience.

46 For this reason, the Turkish understanding of secularism also renders necessary that religious services be ran by the State as a public service. Therefore, state is not subject to religion but religion is subject to the State. The presence of this Directorate (Diyanet İşleri Başkanlığı), which only deals with Islam as an agency in the central administration is said to be based ‘upon the pecularities of our (Turkish) society, emerging from social, economic, cultural and even political considerations and facts’. The Constitutional Court has also stressed out this aspect of Turkish secularism by viewing that it recognizes the State the authority to control religious rights and freedoms in quality of the protector of public order.

47 The Turkish understanding of secularism has been described as ‘active or militant’ laiklik, which means that the State exercises control over religion in order to eliminate the effects it may have over social and political life and the functioning of the state. This control is said to be rendered necessary by the fact that Islam provides many legal rules regarding the administration of the state. The peculiarity of the Turkish situation is caused by the fact that %99 of the population is Muslim and according to Islamic thought there shouldn’t be a separation between religion and state, politics and public law. Indeed, Islam aims to be a State ideology and does not allow any political movement to compete for power. The clear fact that religious feelings have been misused by certain fringes throughout the history of the Republic for political and/or personal purposes and even to destroy the integrity and independence of the State is also a highly relevant factor in explaining state intervention. For these reasons, the compatibility of Islam with laїcité or secularism has also been debated. The French Stasi Commission working on laїcité has rejected the incompatibility thesis. (RTE = ikisi bir arada olmaz!)

48 Apart from and maybe above these juridical considerations, it is vital to know that in the establishment of the modern Turkish Republic the principle of secularism was seen as a matter of modernisation. In order to have a tolerant, rational, modern and contemporary society, secularism was understood to be an imperative prerequisite. In that vein, secularism is described as being the co-ordinating axis of Turkish modernisation. The protection of national sovereignty and independence, freedom and democracy as well as the protection of a scientific mentality and a conception of valid (‘valable’ in French) development is still considered to be based on the effective protection of this principle. This way, Turkish secularism resembles the French laїcité as it refers to a system of values founding the conception of citizens and society.

49 However, to realise this transformation, many reforms were done ‘in spite of the people on behalf of the people’. Contrarily to other European countries, the Turkish revolution was not set in motion by a certain social class standing up against the rulers, but by those in power themselves. To be clearer, the reform has not been realized through the evolutionary currents and ideas of philosophers disseminated among the people through long years, but by direct action of a small elite of bureaucrats and army officers who gained power following a successful national independence war. T his is an important point, because the reforms on the road to modernity had to be imposed on the people. Ataturk and his followers, although being a narrow minority in their ideology, had to reform society with a model of social engineering through law. This is useful in explaining certain areas of tension between official state ideology and Turkish society. As Daver puts it, ‘the secularization of masses is still the great unfinished mission of Turkish elites’.

50 The Headscarf Issue

51 Distinction (?) between Turban and BasortusuThe first question that should be addressed is the meaning of ‘headscarf’. In Turkey, there are two words which are used to define the veil which covers the head of a Muslim woman: ‘türban’ and ‘başörtüsü’. The former is often used to express the ‘Islamic headscarf’ while the latter is usually referring to the headgear which was traditionally used by Anatolian women. However, both the words ‘türban’ (deriving from French) and ‘başörtüsü’ (Turkish) are used to somehow define the headscarf. In the official Turkish dictionary of the Turkish Language Institution, ‘türban’ is defined as a type of headgear ‘which latches on to/clutches the head firmly’ (İnce kumaştan yapılmış, başı sıkıca kavrayan bir tür başörtüsü). As for ‘başörtüsü’, it is defined as ‘a veil which is used by women to cover their hair’. (‘Kadınların saçlarını örtmek için kullandıkları örtü, başörtü, bürgü, eşarp’).

52 Therefore, ‘başörtüsü’ seems to be an upper definition, with the ‘türban’ representing one of the many types of it. Başörtüsü may differ from the traditional Islamic headscarf in that it leaves the hair partly visible and is worn by modern women at funerals or by women in rural areas. But we must note that in Turkish academic writings such distinction has never been made clearly, or, at least, no legal consequence has ever been attached to the different denomination. It is argued that the distinction between the traditional headscarf and the political turban is ‘a purely invented notion’. (CLICKERS POLL) Notwithstanding this determination (with which I agree), the two words seem to express different things to Turkish society. Although the distinction may be fictional, it is a fact that the ‘türban’ recalls the Islamic headscarf and is seen by some as a religious and political symbol, while the ‘başörtüsü’ is rather a reflection of ancient Turkish customs and in no way associated with any political ideology.

53 ANKET: http://www.ntvmsnbc.com/id/25153846/2003 DEV ANKET- TARHAN ERDEM: ZAMAN GAZETESİ 2008 ANKET: HABERTÜRK 2010: HABERTÜRK 2008:

54 Preliminary questionsWhen is the utilization of a certain object a symbolic action and when is such action to be deemed of a ‘religious’ nature? Is the wearing Islamic headscarves, a religious obligation or merely a religiously inspired action; or at worst, a politically motivated expression? Or is it just a cultural expression? There is no definitive answer. However, it is important to know that throughout Ottoman history, dress and appearence has been highly charged with symbolism and regarded as criteria for maintaining distinctions of religion, gender, occupation. Even in modern times, just the way the beard or moustache is shaved was a key to showing affiliation with a certain political idea. It is in this context that politically engaged Islamists tried to legitimize traditional Islam garments with a view to reenforcing existing distinctions between Turkish nationalism and Muslim identity, or staunch seculars and those oriented toward an Islamic society.

55 On the other hand, although the headscarf and veiling in general may undoubtedly be regarded as a (religious or otherwise) symbol, academic works show that whatever its original meaning or the intent of the wearer, veiling does not have a monolithic (solely religious) meaning. The term ‘headscarf’ (or ‘türban’) only describes one of the many clothing items which recall religious ideology. In addition, it is only one of the many types of clothes that veil part of the body. Therefore, veil (or ‘hijab’) refers to many such items: The burka (full veil covering the entire body and the face) worn by Afghan women was an obligation imposed by the Taliban when in power, in accordance with their interpretation of Islam. The chador or abaya (‘kara çarşaf’ - a black veil which covered the entire body from head to ankles) was also worn in Arabic countries and Iran.

56 It is known that there are many different ways of tying a headscarf which indicate devotion to different sects, denominations or value systems. On the other hand, for example the ‘Alevi’ (a denomination of Islam) women do not veil themselves The basic distinction within veiling is said to be that between the social veil (khimar) which covers the face, and the religious veil (tarha) commanded (is it so?) by the Koran. The social veil protects women from social shame. This veil is perceived as custom (adet). In contrast, wearing a religious veil is a sign of submission to God and of modesty in behaviour. Both veils relate to two separate orders: one is historical and varies across the Islamic world and elsewhere, the other is theological and applies to all Muslims.

57 Turkish Legislative Response to the Problem and the Related Jurisprudence

58 The first enactment in this sphere was a decree personally signed and published in the Official Journal by Mustafa Kemal, which established that the dress of civil servants must be common with the way of dressing of the civilised nations of the world, thus making reference to the western customs. The purpose was to eliminate the influence of ancient Ottoman and Islamic dressing traditions and divert the people to follow occidental traditions.

59 This was followed by the Headgear Act of 25 November 1925, which treated dress as an issue relating to modernity and established that all Turkish public servants and citizens wear hats as headgear. Similarly, a ban was imposed on religious officers about wearing religious attire other than in places of worship or at religious ceremonies, irrespective of the religion or belief concerned, by the Dress Act (full name: Act no on the Prohibition of the Wearing of Certain Garments) of 3 December 1934. These two acts are amongst the laws enjoying constitutional status that are protected by Article 174 of the Turkish Constitution, therefore their constitutionality may not be challenged

60 With regard to educational institutions, the first piece of legislation was a set of regulations issued by the Cabinet on 22 July 1981, which required staff working for public organisations 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. As for higher education institutions, on 20 December 1982 the Higher-Education Council issued a circular prohibiting the wearing of headscarves in higher-education institutions. Meanwhile, additional art. 19 incorporated into the Civil Servants Law (Devlet Memurları Kanunu) on 12 May 1982, had established that all civil servants must be dressed in accordance with the rules laid down in the Act and the relative regulations. Based on this provision, the Cabinet issued a regulation on 16 July 1982, banning the wearing of headscarves by officers working for the public (art. 5/a).

61 In 1984, a student who had been imposed disciplinary sanction for not complying with these regulations applied to courts to have the penalty quashed and the regulation set aside. It was argued that such ban and the consequent penalty violated the constitutional right to freedom of religious expression and the right to be free of discrimination on the basis of religious creed. However, the Supreme Administrative Court rejected both requests, noting that ‘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’ and that the purpose of this action is to stand up against the secular principles of the Republic by appropriating a state order based on the rule of religion. It was further stated that it is natural that education institutions entrusted with the duty to bring up a modern, Republican and cultured youth apply certain rules to their students. These rules are amongst the Republican rules known and assimilated by everybody. It is unthinkable that education institutions charged with teaching these rules make concessions from them. For these reasons, it was held that not accepting to school a student who takes such stance against the principles of a secular state as to insist on not taking off her headscarf even in school, is legal. Judgment of the 8th Chamber of the Supreme Administrative Court, t, No. 1984/ /1574.

62 Evaluation: ‘the symbol of a vision that is contrary to the freedoms of women’. To support this suggestion, it should be noted that Muslim clergy and Islamic élites tend to currently prescribe veiling as a custom that ‘virtuous women’ shall respect in order to, amongst others, demonstrate obedience to the tenets of Islam and as a reminder that their proper place is in the home! Others see it as a ‘resistance to Western materialism’, while some depict it as a sign of oppressive hierarchies or blanket male domination. Surely, all these views are equally disturbing. On the other hand, it has to be conceded that the Court’s assumption in the case at hand is a purely socio-political assessment and not a legal evaluation. Still more disturbing may be the fact that in its judgments the court has accepted as a fact that students wearing the headscarf either do so because they are under the oppressive effect of local customs or because they pursue an anti-secular political objective. At least, the Court could have provided a scientific, sociological explanation based on doctrine rather than relying on straight-away assumptions.

63 Further evaluation: Just as in France, the public education system is regarded in Turkey as a secular stronghold where certain Republican values are to be taught to students and where they have to be so indoctrinated as to become ‘citizens’. Therefore, it is argued that liberty of religious expression at education institutions may be curtailed when it interferes with the mission with which the education system is entrusted. This mission, both in Turkey and France, is to make sure students acquire a certain national culture which will turn them into a republican citizen. One writer determines that a distinctive feature of French law is the state’s interest in instilling culture in its citizens and that this argument is an ever-present party to any conflict over conduct in school. If we accept that this line of thinking is valid for Turkey too, the headscarf, recalling Islamic rules and ancient traditions, is an obstacle to the objective and has no place in the education system. However this reasoning is certainly problematic from the point of view of articles 9 and 10 of the European Convention on Human Rights.

64 In 1987, another provision aiming at prohibiting the headscarf was added to the Higher Education Institutions Disciplinary Regulation (art. 7/h) and a request for an order setting aside the enactment was rejected by the Supreme Administrative Court, based on the same reasoning. Likewise, many other cases based on the application of this rule have also been rejected. The rule actually provided that bearing a garment or appearence outside the modern ones at higher education institutes is a breach requiring disciplinary sanction. Decision of of the 8th Chamber of the Supreme Administrative Court’s (No. 1987/ /512).

65 Criticism: It is argued that as far as university students are concerned, there is no legally binding restriction prohibiting the wearing of the headscarf. That is because according to Art. 13 of the Turkish Constitution ‘Fundamental rights and freedoms may be restricted only by law’. Here, the term ‘law’ (‘kanun’) refers explicitly to legislative acts/codes (meclis tarafından çıkarılan, organik anlamda kanun). Therefore, if this right is to be restricted, it shall be made through a law, and not a regulation issued by the administration (idarenin düzenleyici işlemiyle yasak getirilemez, ancak kanunla getirilir). Consequently, if it is accepted that the Headgear Act of 1925 and the Dress Act of 1934 do not include a ban on the wearing of the headscarf (this point is also contested), the regulations issued by agencies of the administration do not have a valid legal basis.

66 OLD PRACTICE: the administrative practice of universities and the case-law of Turkish administrative courts was firmly established. Students wearing headscarves were not allowed to enter the premises of the university and to attend classes or take exams. If they somehow managed to do so, they were usually taken out of the building when spotted. Students who insisted in not leaving were sanctioned with disciplinary measures. The penalties are usually based on art.s 7/a and 7/e of the Higher Education Institutions Disciplinary Regulation. Art. 7/a penalises ‘behaviours which undermine the sense of respect and trust that are required of a student’, while art. 7/e is about ‘disrupting the order of studies such as lectures, seminars, conferences, laboratory activities…’. The sanction imposed was an official reprimand. NOW: YÖK genelgesi ile serbest. (Criticism: Anayasa Mahkemesi kararlarına aykırı YÖK kararı verilebilir mi, bu karar geçerli olur mu? Mahkeme kararlarını uygulamamak suçtur)

67 A very important turning point was the enactment on 10 December 1988 of a provision (add.art. 16) to be added to the Civil Servants Law (Devlet Memurları Kanunu) which provided that: ‘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.”. The then President of the Republic Kenan Evren applied to the Constitutional Court. In a judgment of 7 March 1989 published in the Official Journal of 5 July 1989, the Constitutional Court held by majority that the aforementioned provision was contrary to Articles 2 (secularism), 10 (equality before the law) and 24 (freedom of religion) of the Constitution. It also found that it could not be reconciled with the principle of sexual equality implicit, inter alia, in republican and revolutionary values.

68 Gerekçe: Once outside the private sphere of individual conscience, freedom to manifest one’s religion could be restricted on public-order grounds to defend the principle of secularism. To summarize, the Court then expressed that wearing headscarves could not be regarded as a democratic right since no view or idea contravening the basic principles of Kemalist thought and civilisation could be afforded any protection; that freedoms not compatible with secularism can not be defended; that secularism rendered certain partial restrictions imperative; that if religion was to go beyond the moral life of the individual to be used up for actions affecting society’s daily life, such exploitation had to be prevented; and that allowing the wearing of headscarves due to personal religious convictions would not comply with modern education understanding. The Court further stressed that such provision would violate both the principles of secularism and the rule of law since a secular state could not invoke religious conviction when performing its legislative function. According to the Court, granting privilege to the allegedly ‘Islamic’ headscarves would run counter to the principle of equality.

69 In its judgment, the Constitutional Court also stressed out that in Turkey, where the majority of the population were Muslims, presenting the wearing of the Islamic headscarf as a mandatory religious duty would result in discrimination between practising Muslims, non-practising Muslims and non-believers on grounds of dress with anyone who refused to wear the headscarf undoubtedly being regarded as opposed to religion or as irreligious. The Constitutional Court also said that students had to be able to work and pursue their education together in a calm, tolerant and mutually supportive atmosphere without being deflected from that goal by signs of religious affiliation. It found that, irrespective of whether the Islamic headscarf was a precept of Islam, granting legal recognition to a religious symbol of that type in higher-education institutions was not compatible with the principle that State education must be neutral, as it would be liable to generate conflicts between students with differing religious convictions or beliefs.

70 Following this judgment, in October 1990, a provision incorporated into the Civil Servants Law provided that (add. Art. 17) ‘Choice of dress shall be free in higher-education institutions, provided that it does not contravene the laws in force.” When this provision was brought before it, the Constitutional Court, by a majority decision, did not set aside the enactment but underlined the ban on headscarves by making reference to its previous judgment and stating that this provision shall be construed in accordance with that judgment. However, it has been argued that it is the verdict which is legally binding and not the reasoning of the Court. Therefore, this provision is still in force and the opinion put forward in the reasoning does not have a legal effect. Judgment of of the Constitutional Court (No. 1990/36 E., 1991/8 K).

71 Finally, it should be noted that one of the matters taken into consideration by the Constitutional Court in two judgments concerning the dissolution of political parties was the use of religious symbols to political ends (judgments of 16 January 1998 in the Refah Partisi case and of 22 June 2001 in the Fazilet Partisi case). It considered that the opinions expressed by the leaders of those parties, inter alia, on the question whether the Islamic headscarf should be worn in the public sector and/or schools demonstrated an intention to set up a regime based on the Sharia, that is, religious rules.

72 Refah Partisi case: One of the grounds for the dissolution was the party’s support of a movement aimed at allowing female civil servants and university students to wear headscarves, despite the existence of codes and administrative decisions to the opposite direction. The Court found that allowing Islamic headscarf at universities and government offices would run counter to the principle of secularism. The Court reasoned that recognising freedom to the covering of the neck and hair with Islamic headscarves for religious reasons is an orientation and in a sense a compulsion. Forcing people to dress in a certain way or to veil their heads will create a distinction between those of different religions and even those belonging to the same religion. For this reason, the wearing of Islamic headscarves rather than being a privilege is a means for discrimination Criticism: If the wearing of the headscarf is the result of a free choice, this argument would hardly hold. Additionally, it is argued that if the headscarf is seen as an obligation imposed on women, an effective process of liberization should not be based on another prohibition. The unanswered question here is why it is thought that a prohibition would relieve the pressure upon those girls that have been supposedly forced to wear the headscarf.

73 In 2008 (9. 2. 2008 günlü ve 5735 sayılı Kanun ile), ArtIn 2008 ( günlü ve 5735 sayılı Kanun ile), Art. 42 of the Constitution was amended in the following way: “Kanunda açıkça yazılı olmayan herhangi bir sebeple kimse yükseköğrenim hakkını kullanmaktan mahrum edilemez. Bu hakkın kullanımının sınırları kanunla belirlenir.” The obvious purpose was to liberalize the turban. This amendment was taken before the Constitutional Court. Art. 148 of the Constitution States that the Court “Anayasa değişikliklerini ise sadece şekil bakımından inceler ve denetler”. As you see, Art. 148 states that such amendments may only be reviewed formally, i.e., have the necessary procedures (eg., the voting majority) been complied with? The substance/content (esası) of the amendment may not be reviewed by the Court. On the other hand, many politicians and lawyers argued that amendments which run contrary to the first three articles of the Constitution (which are unamendable nor may their amendment be proposed), are unconstitutional and have to be annulled.

74 Thus, the major legal debate revolved around the following issue: can a constitutional amendment be annulled by the Constitutional Court on the ground that it is unconstitutional? (Bir Anayasa değişikliği yapıldığından, bunun Anayasa’ya aykırı olduğundan bahisle, An.Mah.’nce iptali mümkün müdür? In its landmark decision of , the Constitutional Court agreed with the opinion that an amendment which runs against the principles embodied in the first three articles can not be made: “Dolayısıyla Anayasanın ilk üç maddesinde değişiklik öngören veya Anayasa'nın sair maddelerinde yapılan değişikliklerle doğrudan doğruya veya dolaylı olarak aynı sonucu doğuran herhangi bir yasama tasarrufunun da hukuksal geçerlilik kazanması mümkün olmadığından...” Once the Court made this determination, it concluded that it could review the content of the amendment made to Art. 42. Therefore, it went on to analyzing the compatibility of the new rule with the basic principles of the Constitution.

75 At this point, the Court followed its previous case-law and determined that freedom to wear headscarves at universities would violate certain important legal principles: “Bireysel bir tercih ve özgürlük kullanımı olsa da, kullanılan dinsel simgenin tüm öğrencilerin bulunmak zorunda olduğu dersliklerde veya laboratuar ortamlarında, farklı yaşam tercihlerine, siyasal görüşlere veya inançlara sahip insanlar üzerinde bir baskı aracına dönüşmesi olasılığı bulunmaktadır. Bu olasılığın ortaya çıkması durumunda taşınan dinsel simgenin başkalarının üzerinde yaratacağı baskı ve olası eğitim aksamaları ile kamu düzeninin bozulması karşısında, üniversite yönetimlerinin ve kamu kurumlarının müdahalesine olanak verilmemesi, herkesin eşit şekilde eğitim hakkından yararlanmasını engelleyebilecektir.” “Anayasa Mahkemesi ve Avrupa İnsan Hakları Mahkemesi kararları gözetildiğinde, Anayasa'nın 10. ve 42. maddelerinde yapılan düzenlemenin, yöntem bakımından dini siyasete alet etmesi, içerik yönünden de başkalarının haklarını ihlale ve kamu düzeninin bozulmasına yol açması nedeniyle laiklik ilkesine açıkça aykırı olduğu sonucuna ulaşılmıştır.” The decision was taken 9-2 (Obviously (!), H.Kılıç and S. Adalı dissenting).

76 Further problems concerning the headscarf issue

77 How to draw a distinction between public servants (kamu görevlisi/memur) and usagers (hizmetten yararlanan vatandaş)? If a ban is to be imposed, should it comprise public servants acting on behalf of the State or all citizens who are benefitting from a public service? A recurring argument both in France and Turkey is that secularism requires neutrality from the State and not from its citizens. If so, it follows that a ban should apply to public servants and not citizens. So far, there has been little academic debate on the issue in Turkey. According to one view, it is the public servant who is under a duty of strict neutrality, and thus prohibited from exhibiting in any way his/her religious affiliation. The established case-law of the French Supreme Administrative Court also goes in this direction (see, the Conseil d’État advisory opinion of in M.lle Marteaux).

78 Gozler argues that from the viewpoint of the usager, the prohibition does not stand, because a person benefitting from a public service is not a public servant under a duty to remain impartial. According to this view, the reason of being of the rule is to protect the impartial appearence of the servant in the eyes of the public, thus protecting the service offered; however, there is no rationale behind asking the same from the usager. On the other hand, certain writers rely on the “kamusal alan” (public domain) argument to justify a ban imposed on those who are not civil servants. Thus, they argue that wives with headscarves can not participate to official ceremonies. Those contrary to this view either argue that there is no such juridical term (böyle bir hukuki terim yoktur) or that, in the alternative, it can not impose any obligation on those who are not civil servants.

79 The ECtHR and the Islamic Headscarf

80 As for the European Court (and Commission) of Human Rights, the Strasbourg organs’ established jurisdiction has so far clearly supported the ban on religious symbols in the public. Three decisions and judgments may be pointed out: the (then – o zamanki adıyla) European Commission’s early judgment with regard to applications made by Turkish nationals; the Court’s inadmissibility decision of 15 February 2001 in Dahlab v Switzerland, and the seminal judgment in Leyla Şahin v Turkey. It must be noted that the Human Rights Committee acting under the ICCPR decided in Hudoyberbanova v Uzbekistan (2004) that the exclusion of a student from a state-run university on the ground that she had refused to remove her headscarf during lectures violated the freedom of religion. However, this decision has little precedential value (emsal değeri düşük) because the reason for this finding was that Uzbekistan had failed to invoke any specific ground justifying this prohibition (yani, hangi nedenle bu yasağı uyguladıklarına dair gerekçe sunmadılar, haliyle, bu durumda haksız bulundular).

81 The (then)Commission, in its decisions of 3. 5The (then)Commission, in its decisions of regarding the application logded by a Turkish university student who had been refused her degree certificate until she would submit a photograph of herself with her head uncovered as required by university regulations, the Commission found no violation of the Convention. Indeed, the Commission found that the application was not even admissible on grounds of it being ‘manifestly ill-founded’. The Commission noted that the Convention can not be construed in such way as to recognize an absolute right to behave in the public sphere in a way which is dictated by a belief. Furthermore, a student who accepts studying in a secular university, shall also be deemed to have accepted to be bound by its’ rules. In addition, such behaviour, may also exercise pressure on other students, and such restrictions are permissible in order to prevent extremist religious movements from prejudicing institutional discipline and other students’ beliefs. The Commission concluded that wearing the headscarf would challenge the secular character of the university and that therefore the restriction in question was legitimate. Senay Karaduman/Turkey, Comm. Decision of , appl. no /90 and Bulut/Turkey, Comm. Decision of , appl.no /91.

82 Indeed, the Court has firmly established in its case-law that Article 9 does not protect every act motivated or inspired by a religion or belief and does not in all cases guarantee the right to behave in the public sphere in a way which is dictated by a belief (see, among many other authorities, Kalaç v. Turkey, judgment of 1 July 1997).

83 In Dahlab v Switzerland (2001), an application made against Switzerland in 2001, a ban imposed on a teacher with regard to wearing a headscarf during classes was found to be a legitimate and necessary intervention in a democratic society. According to the Court, such behaviour would violate the denominational neutrality of the school with regard to different beliefs. Furthermore, although it is very difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religion of very young children, it could be possible that it causes some kind of proselytising effect. Thus, the Court underlined the negative religious freedom of the children as an argument counter-balancing the freedom of the teacher. In the Court’s view, it appears ‘difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils’ Lucia Dahlab/Switzerland, Decision of inadmissibility of , application no 42393/98. N.B.: Dahlab was a primary school teacher.

84 For our purposes, the most important decision is the Sahin/Turkey judgment (Grand Chamber judgment of 10/11/2005). The specific circumstances of the case were different from the 1993 application, when the applicant was not expected to dress in a certain way, or from the Dahlab case where the applicant was a public servant acting on behalf of the state. Furthermore, the educational institution in question was not a primary school anymore as in Dahlab, but a university. Very shortly, the Court reiterated and strenghtened its understanding that imposing a ban on the wearing of religious symbols -and in special of Islamic headscarves- in public education institutions does not violate art. 9 of the Convention on the freedom of religion.

85 In this judgment, based on its previous jurisprudence, the Court first noted that in a democratic society the State was entitled to place restrictions on the wearing of the Islamic headscarf if it was incompatible with the pursued aim of protecting the rights and freedoms of others, public order and public safety. In a country like Turkey, where the great majority of the population belong to a particular religion, measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on students who do not practise that religion or on those who belong to another religion may be justified under Article 9 § 2 of the Convention.

86 In this context, the Court reasoned that ‘when examining the question of the Islamic headscarf in the Turkish context, there must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it ... ‘it is the principle of secularism ... which is the paramount consideration underlying the ban on the wearing of religious insignia in universities. It is understandable in such a context where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women, are being taught and applied in practice, that the relevant authorities would consider that it ran counter to the furtherance of such values to accept the wearing of religious insignia, including as in the present case, that women students cover their heads with a headscarf while on university premises’ and found that such restriction was justified and necessary in a democratic society.

87 Criticisms: The Court has made no effort to explain why the wearing of headscarves constitutes a threat and what is the pressing social need which makes the restriction necessary. The Court has not taken into due account that the applicant was not an agent of the state as it was in the Dahlab case and that the place of education in question was no longer an elementary school attended by minors but a university where grown-up people study. Thus, it is criticised that the Court made no investigatory effort to establish if the wearing of headscarves caused a threat on other people or if indeed there was a minority who could have been affected adversely. A further critique is directed to the many historical and sociological determinations on Turkey made by foreign jurists, i.e. people not academically expert neither on those branches nor on Turkey.

88 In its judgment concerning the headscarf, our Constitutional Court had determined that secularism in Turkey was, among other things, the guarantor of democratic values, the principle that freedom of religion is inviolable – to the extent that it stems from individual conscience – and the principle that citizens are equal before the law. Secularism also protected the individual from external pressure. It added that restrictions could be placed on freedom to manifest one’s religion in order to defend those values and principles. In its judgment, the ECtHR established that ‘this notion of secularism appears to the Court to be consistent with the values underpinning the Convention and it accepts that upholding that principle may be regarded as necessary for the protection of the democratic system in Turkey’.

89 SUMMARY In Turkish law, at the moment there is no law (KANUN) in effect which explicitly prohibits or lays down grounds for banning the wearing of the Islamic headscarf. On the other hand, laws aiming at liberalizing the headscarf have always been annulled by the Constitutionanl Court. In addition, various judgments of the Constitutional Court regarding provisions of the Civil Servants Law as well as other judgments delivered by administrative courts have made it clear that civil servants (and university students) may not wear a headscarf. Furthermore, various regulations and circulars issued by the administration in the framework of their law-making powers have openly banned the wearing of the headscarf, both by public servants and at universities. The European Court of Human Rights has found these prohibitions legitimate. Many sanctions have been applied against students not observing the rule, and the Supreme Administrative Court systematically rejected applications lodged against these measures. CURRENT STATUS: A circular (genelge) issued by YÖK allows students with headscarves to attend classes. It is, in reality, a de facto solution.