Constitutional Crisis in Turkey

The Turkish Constitutional Court has held that the law, passed by the governing religious party--the AK Party (the darling of the United States and the EU)--that would ease the ban on the wearing by women of Muslim head scarves violated the secular principles built into the Turkish constitution. See Court Annuls Turkish Head Scarf Reform, BBC News On Line, June 5, 2008. Article 2 of the Turkish Constitution provides: "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." Constitution of the Republic of Turkey, Art. 2. The intent of the Preamble (adopted in 2001) also appears clear, though its interpretive extent might be less so.

The recognition that no protection shall be accorded to an activity contrary to Turkish national interests, the principle of the indivisibility of the existence of Turkey with its state and territory, Turkish historical and moral values or the nationalism, principles, reforms and modernism of Atatürk and that, as required by the principle of secularism, there shall be no interference whatsoever by sacred religious feelings in state affairs and politics.

Constitution of the Republic of Turkey, Preamble. The provisions of Article 2 are made irrevocable Turkish Constitution, Art. 4). Religious freedom rights are guaranteed. "Everyone has the right to freedom of conscience, religious belief and conviction." (Turkish Constitution, Art. 24). In addition, "no one may be compelled to reveal his or her religion, conscience, thought or opinion, nor be accused on account of them." Turkish Constitution, Art. 15. However, the expression of that right is bounded in the service of the secular and democratic purpose of state organization.

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.

Turkish Constitution, Art. 14. And Article 24, both references the limitation on religious freedom rights in Article 14 and reaffirms that limitations in the body of that provision:

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.

Turkish Constitution, Art. 14. Moreover, despite (or because of ) the separation of religion and the state, all religious instruction is vested in the state, which retains the power to supervise and control it. Id. It appears clear that the Turkish Constitution meant to creat a hierarchy of principles within its constitutional framework. And within that hierarchy of values, those of the secular and democratic character of the state appears to hold a higher place than the protection of religious expression. This sort of constitutional principle hierarchy, and their application to void legislative acts is well known and respected in the German constitutional system, for example in the famous SouthWest State case. See Gerhard Liebholz, The Federal Constitutional Court on Germany and the 'Southwest' Case, 46(3) The American Political Science Review 723-731 (Sept., 1952) (the author was an associate justice of the Bundesverfassungsgericht). As such, the AK Party makes a political rather than a lawyer's argument (and one pitched toward its electorate rather than to those charged with safeguarding the institutions of the state) when it declared "The AK Party, which was re-elected last year with a convincing 47% of the vote, says it is a matter of personal and religious freedom." Court Annuls Turkish Head Scarf Reform, supra. This may be true but is subordinate to the overarching Constitutionally mandated obligation of fidelity to secularism and democracy. The solution, of course, is a difficult one for the AK--change the constitution. But is certainly a lawful and legitimate route for change.

Thus, whatever one thinks of the Turkish Constitution, it appears that the Turkish decision is arguably well within the usual bounds of constitutional interpretation. If the AK Party might be unhappy with the result, the unhappiness ought to be directed to the Constitution rather than to the Court whose principle duty is to interpret and apply the instrument as written and reasonably understood. "But a senior party member of the AKP, Bekir Bozdag, said the court had overstepped its jurisdiction." Court Annuls Turkish Head Scarf Reform, supra. That is unlikely true. "Judicial power shall be exercised by independent courts on behalf of the Turkish Nation." Turkish Constitution, Art. 9. Moreover, "The Constitutional Court shall examine the constitutionality, in respect of both form and substance, of laws, decrees having the force of law, and the Rules of Procedure of the Turkish Grand National Assembly. " Turkish Constitution, Art. 148. It is also clear that "The decisions of the Constitutional Court are final. Decisions of annulment cannot be made public without a written statement of reasons." Id., at Art. 153. These decisions "shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies." Id.

All the same, the case is much more important as symbol and signal than as practice. The practical realities for Muslim women who have embraced the wearing of certain clothing as an outward expression of faith will continue to be observed. Even if that observance is disguised under elaborate wigs covering head scarves covering hair. And individuals in individual cases will tend to be more or less tolerant of deviation depending on where in Turkey the studying is taking place. For all that symbol matters. The very act of putting a wig on over a head scarf is a tangible reminder of the subordination of religious values to the superior values of secularism enshrined in the Turkish constitution, at least as currently written.

Nonetheless, it is also clear that the ruling on the head scarf law was really a proxy for a much more important constitutional moment in Turkey. "Thursday's court ruling is the latest episode in a power struggle between the establishment and the AK Party, which has its roots in Islamism." Id. Indeed, the importance of the head scarf case might be best understood as a reading of the likely actions of the Turkish Supreme Court in an even more sensitive case. See Turkish Leaders Face Court Case, BBC News On Line, March 31, 2008.

The ruling, by a panel of 11 judges, could foreshadow the outcome of a separate court case in which the ruling AK Party (AKP) could be banned for anti-secular activities. Some 71 members of the party, including the prime minister and the president, could also be banned from belonging to a political party for five years.

Court Annuls Turkish Head Scarf Reform, supra. And both sides know what they are doing as they move toward a climax by pushing the institutions of state organization to their limit. And that is a shame. The sort of gambles being made by both sides are more likely to injure the state than advance wither position. See Sara Rainsford, Turks Fear Turmoil, BBC News On Line, April 3, 2008. Sadly, the Europeans are showing both a bit of cravenness and a deliberate obtuseness to constitutional niceties that they appear to reserve to themselves. "EU Enlargement Commissioner Olli Rehn warned the case could jeopardise Turkey's accession bid - arguing such disputes should be resolved through the ballot box, not the courts." Turks Fear Turmoil, supra. That was certainly not the case when, for example the German Federal Constitutional Court was asked to apply its Basic Law to the issue of the legitimacy of a number of political parties. There were no calls for Germany's ouster from the EU then, nor a suggestion that the German Basic Law ought to be subordinated to a sense of constitutional revision by ballot. Yet the same rules to not appear to apply to Turkey. And to boot, such activity serves to provide an excuse for another postponement of Turkish accession. But that may reflected more the European support of the AK Party than it has to do with constitutionalism in Turkey. In any case, this case suggests that the future character of the Turkish Constitution is certainly in play. The outcome is unclear.