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Turkey: Constitutional Court Annuls 2008 Law That Had Lifted Ban on Wearing Headscarves at Universities

(Dec. 3, 2012) It was reported on November 29, 2012, that Turkey’s Constitutional Court has annulled a government-backed law, adopted in 2008, that sought to amend the Constitution to lift a ban on the wearing of headscarves at universities. Under the law such apparel could be worn on campuses. The Court has now characterized the law as “an attempt to change nonamendable articles of the Turkish Constitution.” (Turkish Top Court Annuls Headscarf Law, HURRIYET DAILY NEWS (Nov. 29, 2012).)

The Court stated that the law’s cancellation is based on articles 2, 4, and 148 of the Constitution and that implementation of the law has been halted. The reasoning of the decision, with the details, has not yet been published, but is to be issued “as soon as possible,” according to Hasim Kilic, Chairman of the Court, who was one of two justices to vote against the annulment; nine voted in favor of it. (Id.)

Article 2 of the Constitution characterizes Turkey as a “secular and democratic Republic” article 4 states “[t]he provision of Article 1 … 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” and article 148 stipulates the Constitutional Court’s mandate. (Id.; Constitution of the Republic of Turkey (as amended May 7, 2010), Directorate General of Press and Information, Office of the Prime Minister website; Türkiye Cumhuriyeti Anayasasi (Nov. 7, 1982, as last amended Mar. 17, 2011), Grand National Assembly of Turkey [the Turkish Parliament] website.)

Background on the Ban

According to one study, published in 2005, about 70% of Turkish women use head coverings, “a percentage that varies widely depending on region and class.” (Valorie K. Vojdik, Politics of the Headscarf in Turkey: Masculinities, Feminism, and the Construction of Collective Identities, 33 HARVARD JOURNAL OF LAW & GENDER 667 (2010).) The headscarf ban in universities and public offices was imposed in 1982, and in the mid-1980s “became a flashpoint for conflict between secularists and Islamists in Turkey, as protests against the ban increased.” (Id. at 668.) The Higher Education Council twice removed restrictions on wearing headscarves, in 1989 and 1991, but the Constitutional Court annulled both repeal attempts. (Id. at 669.)

In its March 7, 1989, ruling the Court concluded:

The headscarf and the particular style of clothing that accompanies it, which lacks a modern appearance, is not an exemption but a tool of segregation. … This situation, which is the display of a pre-modern image, is increasingly becoming widespread and this is unacceptable in terms of the principles of secularism, reformism and the Republic. Using democratic principles to challenge secularism is the abuse of freedom of religion. (Id., citing to fn. 55, Anayasa Mahkemesi [Constitutional Court], Mar. 7, 1989, Esas No. 1989/1 [Basis Number], Karar No. 1989/12 [Decision Number] (TC Resmi Gazete [Official Gazette of Republic of Turkey], 1989, No. 20216) (Turk.).)

Women and conservative Islamic political parties continued to push for the ban’s repeal, and Leyla Sahin, a female medical student, even brought a challenge to the ban before the European Court of Human Rights. (Vojdik, supra, at 669-671.) Subsequently, in 2007, the Justice and Development Party (Adalet ve Kalkinma Partisi, or AKP) won power with 47% of the popular vote and took action to challenge the headscarf ban, “not as a matter of religion but as a violation of basic rights,” with the result that in 2008 the Grand National Assembly “voted to amend the Turkish Constitution to repeal the ban on headscarves.” (Id. at 671.)

The Text of the 2008 Law

The Law Amending Some Provisions of the Constitution of the Republic of Turkey, Law No. 5735, of February 9, 2008, amended articles 10 and 42 of the Constitution, on equality before law and the right and duty of training and education, respectively. (Id.; Türkiye Cumhuriyeti Anayasasinin Bazi Maddelerinde Degisiklik Yapilmasina Dair Kanun, Law No. 5735 (Feb. 9, 2008), arts. 1 & 2, Grand Assembly of the Republic of Turkey website.) The Law States:

Article 1 – “In all their proceedings” in the fourth paragraph of Article 10 of the Constitution of the Republic of Turkey, No. 2709 of July 11, 1982, is to be followed by “and in the utilization of all kinds of public services.” [Article 10(4) stated: “(4) State organs and administrative authorities shall act in compliance with the principle of equality before the law in all their proceedings” (Turkey Constitution (as last amended May 10, 2007), ICL [International Constitutional Law].)

[Note: Art. 10(4) became 10(5) when the Constitution was amended in 2010. Constitution of the Republic of Turkey, supra.]

Article 2 – The sixth paragraph of Article 42 of the Constitution of the Republic of Turkey is to be followed by: “No one shall be deprived of their right to higher education for any reason except the ones expressed in Law. Limits on the use of this right are determined by law.” [Art. 42(6) stated: “(6) The principles governing the functioning of private primary and secondary schools shall be regulated by law in keeping with the standards set for state schools” (Turkey Constitution, supra.) (Translation of Law No. 5735 provided with the assistance of Luna Barakat, Law Library Intern.)

The 2008 Constitutional Court Response to the Law and Its Aftermath

A Constitutional Court decision of June 5, 2008, had annulled these amendments and instituted a stay of execution of their implementation until a decision was rendered in a lawsuit against their adoption filed with the Court bythe main opposition parties. (Anayasa Mahkemesi Karari [Constitutional Court Decision] (June 5, 2008), No. 2008/116, No. RG [Resmi Gazete, Official Gazette]-27 032 (Oct. 22, 2008); Wendy Zeldin, Turkey: Headscarf Decision Published, GLOBAL LEGAL MONITOR (Oct. 27, 2008).)

In 2010, however, after Prime Minister Recep Tayyip Erdogan won a referendum in September on constitutional reform, and with “more compliant bureaucrats in the Board of Education, the government in effect ended the ban by stealth,” BBC News reported in December of that year. (Jonathan Head, Quiet End to Turkey’s College Headscarf Ban, BBC NEWS (Dec. 31, 2010); Simon Cameron-Moore, Turkey Referendum Win Boosts Erdogan for 2011 Election, REUTERS (Sept. 13, 2010).)

Reactions to the 2012 Constitutional Court Ruling

While some Turkish officials stated that they needed to see the grounds for the decision before commenting on it, the deputy leader of the ruling party (AKP), Bekir Bozdag, stated, “the court violated the constitution with this ruling,” adding that it “opens the way of controlling every constitutional amendment that the parliament would want to make.” (Turkish Top Court Annuls Headscarf Law, supra.) He would not speculate, however, on the effect the ruling might have on another case, aimed at closing down the AKP, that was also launched in 2008; Bozdag stated that each of the cases was unique. (Id.; Gareth Jenkins, Relief but No Victory for ASP in Closure Case, 5:146 EURASIA DAILY MONITOR (July 31, 2008).)

Nationalist Movement Party (Milliyetçi Hareket Partisi, or MHP) leader Devlet Bahceli called the Court’s decision not a legal one, but politically motivated, and said it might increase the religious divisiveness in Turkey. By contrast, the main opposition Republican People’s Party (Cumhuriyet Halk Partisi, or CHP) welcomed the decision; party leader Deniz Baykal stated “the ruling means that constitutional amendments could be analyzed in essence, not just procedurally, if [they threaten] to violate nonamendable articles of the constitution.” (Turkish Top Court Annuls Headscarf Law, supra.) In the view of former parliamentary speaker Husamettin Cindoruk, moreover, “[t]his decision reminds the ruling party what it can and cannot do despite gaining 47 percent of the vote (in the July 22 elections)” and “has set the boundaries and reshaped the state.” (Id.)

Turkish legal experts are reportedly divided over the ruling. Some maintain that the Turkish Constitution only grants the Constitutional Court the power to examine whether or not the passage of a constitutional amendment is procedurally flawed, not to pass judgment on the content of the amendments. (Id.)