Turkish Secularism: How to Raise Its Level of Protection (European Union and its Neighbours in a Globalized World, 12) 3031460103, 9783031460104

Citation preview

European Union and its Neighbours in a Globalized World 12

Tarlan Masmaliyeva

Turkish Secularism How to Raise Its Level of Protection

European Union and its Neighbours in a Globalized World Volume 12

Series Editors Marc Bungenberg, Saarbrücken, Germany Mareike Fröhlich, Saarbrücken, Germany Thomas Giegerich, Saarbrücken, Germany Neda Zdraveva, Skopje, North Macedonia Advisory Editors Başak Baysal, Istanbul, Türkiye Manjiao Chi, Beijing, China Annette Guckelberger, Saarbrücken, Germany Ivana Jelić, Strasbourg, France Irine Kurdadze, Tbilisi, Georgia Gordana Lažetić, Skopje, North Macedonia Yossi Mekelberg, London, UK Zlatan Meškić, Riyadh, Saudi Arabia Tamara Perišin, Luxembourg, Luxembourg Roman Petrov, Kyiv, Ukraine Dušan V. Popović, Belgrad, Serbia Andreas R. Ziegler, Lausanne, Switzerland

The series “The European Union and its Neighbours in a Globalized World” will publish monographs and edited volumes in the field of European and International Law and Policy. A special focus will be put on the European Neighbourhood Policy, current problems in European and International Law and Policy as well as the role of the European Union as a global actor. The series will support the cross-border publishing and distribution of research results of cross-border research consortia. Besides renowned scientists the series will also be open for publication projects of young academics. The series will emphasize the interplay of the European Union and its neighbouring countries as well as the important role of the European Union as a key player in the international context of law, economics and politics. Unique Selling Points: • Deals with a wide range of topics in regard of European and International Law but is also open to topics which are connected to economic or political science • Brings together authors from the European Union as well as from accession candidate or neighbouring countries who examine current problems from different perspectives • Draws on a broad network of excellent scholars in Europe promoted by the SEE | EU Cluster of Excellence, the Europa-Institut of Saarland University as well as in the South East European Law School Network

Tarlan Masmaliyeva

Turkish Secularism How to Raise Its Level of Protection

Tarlan Masmaliyeva Saarbrucken, Germany

ISSN 2524-8928 ISSN 2524-8936 (electronic) European Union and its Neighbours in a Globalized World ISBN 978-3-031-46010-4 ISBN 978-3-031-46011-1 (eBook) https://doi.org/10.1007/978-3-031-46011-1 A thesis submitted to the Law Faculty of Saarland University for the degree of Doctor of Law By Tarlan Masmaliyeva, April 2021 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Paper in this product is recyclable.

Acknowledgments

This work is a result of an immense labor, patience, will, and enthusiasm. I want to thank everyone who has supported me in beginning, pursuing, and completing this huge project which took several years. First, I wish to express many thanks to my supervisor Prof. Dr. Thomas Giegerich who guided me throughout this journey, for his insights and advice. His assistance and support during the study is much appreciated. Also, I thank the colleagues of the Europa-Institut for their efforts and devotion. I would like to especially thank the Law Faculty of Saarland University for the extent of the academic freedom from which I have greatly benefited. I achieved the completion of my dissertation with the support of my family and friends. I wish to thank my dearest little son, and my friends for their love, energy, and encouragement that empowered me throughout my research. Finally, my deepest thanks go to my parents. I am infinitely grateful for their unconditional support, constant love, and open-mindedness. This dissertation is dedicated to them. Saarbrucken, Germany August 2023

Tarlan Masmaliyeva

v

Contents

1

2

3

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Finding a Balance between Irrevocable Principles of Secularism and Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Research Questions and Methodology . . . . . . . . . . . . . . . . . . . . . 1.3 An Outline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

The Historical Development and Definition of a Secular State . . . . . . 2.1 The Historical Development of the Principle of Secularism . . . . . . 2.1.1 Church-State Relationships throughout the Medieval Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.2 The Reformation: Struggle against the Church and Wars of Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.3 Separation of Church and State in the American and French Constitutions . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.4 The Factors Lying behind the Different Practices of State-Religion Separation . . . . . . . . . . . . . . . . . . . . . . . 2.2 Requirements of the Principle of a Secular State . . . . . . . . . . . . . . 2.2.1 Freedom of Religion: Nature and Scope . . . . . . . . . . . . . . 2.2.2 Separation of State and Religion: Conditions . . . . . . . . . . . 2.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11 11

The Constitutional Development and Regulation of Turkish Secularism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Historical Background of the Adoption of the Principle of Secularism in Turkey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Normative Standing of the Principle of Secularism in the 1982 Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 The Unamendable Characteristic Level . . . . . . . . . . . . . . . 3.2.2 The Limitation of Fundamental Rights and Freedoms Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 5 6 8

11 15 17 20 25 25 30 37 38 43 43 48 49 50 vii

viii

Contents

3.2.3

The Prohibition of Abuse of Fundamental Rights and Freedoms Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 The Elaboration of the Principle of Secularism by the Turkish Constitutional Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 The Distinctiveness of Turkish Secularism . . . . . . . . . . . . 3.3.2 The Essential Characteristics of Turkish Secularism . . . . . . 3.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5

The TCC’s Approach to Secularism in Freedom of Religion Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 The TCC’s Approach Before the 2010 Constitutional Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1 Establishment of the Turkish Constitutional Court . . . . . . . 4.1.2 The Principle of Secularism as a Basis for the General Ban on Wearing the Headscarf in Higher Education . . . . . . 4.1.3 Judicial Review of Constitutional Amendments Indirectly Modifying the Unamendable Articles . . . . . . . . . 4.1.4 Comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Evaluation of the Restructuring of the TCC Under the 2010 Constitutional Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 An Overview of the 2010 Amendments . . . . . . . . . . . . . . . 4.2.2 Analysis of the Amendments . . . . . . . . . . . . . . . . . . . . . . 4.2.3 Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 The New Approach Adopted by the TCC after the 2010 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 The Case Concerning the Elective Religious Courses . . . . . 4.3.2 The Case Concerning Wearing the Headscarf in a Courtroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3 The Case Concerning the Call to Prayer . . . . . . . . . . . . . . 4.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protection of Secularism Within the Framework of the Political Party Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Constitutional and Statutory Regime for the Prohibition of Political Parties in Turkey . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1 Prohibition of a Political Party . . . . . . . . . . . . . . . . . . . . 5.1.2 Legal Consequences of the Prohibition . . . . . . . . . . . . . . 5.2 Prohibition of Political Parties by the TCC for Being “a Center of Anti-Secular Activities” . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 Prohibition Cases concerning “Anti-Secular” Parties . . . . 5.2.2 The Refah Party Case . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 The Fazilet Party Case . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.4 The AKP Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

51 52 52 53 53 54 57 57 57 58 62 66 68 68 69 73 76 77 81 84 86 87

.

91

. . .

91 92 94

. 96 . 97 . 99 . 112 . 115

Contents

ix

5.3

Amendments Needed to Bring the Rules on Prohibition of Political Parties into Conformity with International Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 Principles to be Drawn from the International Sources in the Field of Political Parties . . . . . . . . . . . . . . . . . . . . . 5.3.2 Evaluation of the Amendments made to the Constitutional and Legal Provisions on the Prohibition of Political Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.3 Amendments Needed to Elaborate the Party Prohibition Rules Relevant to the Protection of the Principle of Secularism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.4 Legal Questions Raised by the Refah Case . . . . . . . . . . . . 5.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

7

The Impact of the 2017 Constitutional Amendments on the Protection of Secularism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Evaluation of the 2017 Constitutional Amendments . . . . . . . . . . 6.1.1 Adoption of the Amendments . . . . . . . . . . . . . . . . . . . . . 6.1.2 The Separation of Powers under the 2017 Amendments . . 6.1.3 Recommendations Concerning Presidential Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . .

123 123

131

143 148 152 154 157 157 157 159

. 176 . 178 . 179

The ECtHR and Turkish Secularism . . . . . . . . . . . . . . . . . . . . . . . . 7.1 The Headscarf Debate: The Case of Leyla Şahin . . . . . . . . . . . . . . 7.1.1 The Facts and the Decision . . . . . . . . . . . . . . . . . . . . . . . . 7.1.2 Analysis of the Leyla Şahin Decision . . . . . . . . . . . . . . . . 7.2 Compulsory Religious Education in Light of the ECtHR’s Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.1 The Implementation of Religious Culture and Ethics Classes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.2 How Should Article 24(4) of the 1982 Constitution Be Read? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.3 The Position of the ECtHR . . . . . . . . . . . . . . . . . . . . . . . . 7.3 The Case of İzzetin Doğan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.1 The Facts and the Decision . . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 The Impact of the Strasbourg Case-Law on the Alevism’s Legal Situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 Comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

183 183 183 186 195 195 198 201 218 218 226 235 236 237

x

8

Contents

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1 Summary and Critique . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Future of Turkish Secularism . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

243 243 247 250

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle of Secularism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

Abbreviations

AKP CHP CJP DP ECtHR ECHR FCC GNAT HRC ICCPR LPP MHP NSC Diyanet PACE RP TCC UDHR

Adalet ve Kalkinma Partisi (Justice and Development Party) Cumhuriyet Halk Partisi (Republican People’s Party) Council of Judges and Prosecutors (Hakimler ve Savcılar Kurulu) Democrat Party (Demokrat Parti) European Court of Human Rights Convention for the Protection of Human Rights and Fundamental Freedoms German Federal Constitutional Court (Bundesverfassungsgericht) Grand National Assembly of Turkey (Türkiye Büyük Millet Meclisi) United Nations Human Rights Committee International Covenant on Civil and Political Rights Law on Political Parties (Siyasi Partiler Kanunu) Nationalist Movement Party (Milliyetçi Hareket Partisi) National Security Council (Milli Güvenlik Kurulu) Presidency of Religious Affairs (Diyanet İşleri Başkanlığı) Parliamentary Assembly of the Council of Europe Refah Partisi (Welfare Party) Turkish Constitutional Court (Anayasa Mahkemesi) Universal Declaration of Human Rights

xi

Chapter 1

Introduction

1.1

Finding a Balance between Irrevocable Principles of Secularism and Democracy

This thesis concerns the position and protection of the principle of secularism within the Turkish constitutional and legal framework. In general terms, the principle requires the separation of religion and state, i.e., the absence of state participation in religious issues and vice versa. According to the Constitution of the Republic of Turkey (hereafter the Turkish Constitution, the 1982 Constitution, or the Constitution), secularism is a founding characteristic of the Republic.1 This principle cannot be amended, nor can it be proposed to amend it.2 With a view to ensuring the unamendability of the principle it has been provided with special constitutional and legal guarantees. Yet the increasing visibility of religion at the administrative level and promotion of Islam by political leaders or bureaucrats invites debate on the reasons behind the challenges and contradictions of the constitutionally enshrined principle of secularism in a Muslim-majority country. The tension between the rights and freedoms of majority religion and the principle of secularism has existed since the foundation of the Turkish Republic in 1923. While secularization policies were conducted harshly and speedily during the single-party system in the early republican period (pre-1950), after transition to the multi-party democracy and political competition (1946), the democratically elected parliaments pursued policies responding to the religious demands and expectations of their electorate. However, increased visibility of religion in the public sphere was perceived as a threat to secular order and therefore, was counteracted by the military with coups d’état in 1960, 1971, 1980, and 1997. 1 Constitution of the Republic of Turkey, 7 November 1982, Art. 2 [hereafter Turkish Constitution]. The official English version of the Constitution can be found at the website of the GNAT, https:// global.tbmm.gov.tr/docs/constitution_en_2019.pdf. 2 Turkish Constitution Art. 4.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Masmaliyeva, Turkish Secularism, European Union and its Neighbours in a Globalized World 12, https://doi.org/10.1007/978-3-031-46011-1_1

1

2

1

Introduction

While the principle of state-religion separation has evolved in Europe as a result of historical conflict between the Church and temporal rulers, it was established in Turkey in revolutionary haste and sustained by legal activism; its repercussions, therefore, were reflected in later struggles between religiously-motivated political parties, the secular establishment, and the military. The military, which was entitled under the 1982 Constitution to intervene in the political process and even to topple a duly elected government on the grounds of the protection of republican values, including secularism, exercised a strong control over the civil politics. After the military was deprived of its concerning competences and prerogatives by a series of constitutional and legislative reforms held in the 2000s,3 its supervision over the political process, as well as its guardianship for secularism, came to an end. This made the fate of the ruling conservative Justice and Development Party (Adalet ve Kalkinma Partisi, AKP) with Islamic sensitivities different from that of the Democrat Party (Demokrat Parti, DP) and the Welfare Party (Refah Partisi, RP) which were overthrown by the military for the perceived rise of Islam in the political sphere, respectively in 1960 and 1997. Another decisive event occurred in the recent political life of Turkey when the Chief Public Prosecutor petitioned the Turkish Constitutional Court (hereafter the TCC, the Constitutional Court or the Court) to prohibit the party permanently and demanded a 5-year politics ban for 71 high-ranking AKP members, including the then prime minister, Recep Tayyip Erdoğan, President Abdullah Gül, four ministers, and 39 deputies on the grounds that the party had become “a center for anti-secular activities.”4 The TCC decided with a 10/11 majority that the party had become “a center for anti-secular activities.” However, emphasizing the importance of the founding principle—democracy, its special instrument of political parties and other constitutive elements of this principle, the TCC chose to pay a financial penalty instead of closing the party. In its decision, the TCC emphasized the considerable and consistent popular support for the party in the elections, mentioned the inevitable interrelation between secularism and democracy, and stated that both principles are unamendable features of the Turkish Republic. Comparing the anti-secular activities of the AKP government with its other democratization reforms and progressive policies, the Court concluded that those activities had not reached the threshold for prohibiting the party, therefore, it chose the sanction of financial deprivation. The fate of the AKP also differed in this point from that of earlier pro-Islamic parties, including the ruling Refah, which were banned by the TCC based on their antisecular activities. Thus, looking closer at the complicated matrix of democracy and secularism in a Muslim context makes it clear that finding the correct balance between these competing constitutional values is not easy, yet it is vital for the structural unity of

3

See Özbudun (2007), p.193. Turkish Constitutional Court decision, 30 July 2008, E. 2008/1, K. 2008/2. Decisions of the Turkish Constitutional Court are available at the Court’s website, https://www.anayasa.gov.tr.

4

1.1

Finding a Balance between Irrevocable Principles of Secularism and Democracy

3

the state. Islam is a shaping part of Turkey’s social, cultural and historical structure and therefore, in a democratic system its visibility in the political and public spheres should not be regarded as exceptional or surprising. However, the fact that in Muslim societies religion is more closely integrated into social fabrics was perceived by the secular establishment as a reason for the severe secularization policies. In fact, after the transition to multi-party politics, any rise in religious rhetoric and conduct of officials was considered as a danger to the secular nature of the state and brought about the dissolution of political parties or military interventions practically every 10 years beginning from the 1960s. The harsh measures that were instituted such as prohibiting wearing the headscarf at universities and other public institutions did not achieve their goal, i.e., absolute exclusion of religion from the public sphere. In response to removal of Islam from the public sphere, the Muslim identity engaged in searching for a rightful treatment within a secular system with the democratic political means.5 In this regard, pro-Islamic parties’ involvment in politics and promises of the enjoyment of freedom of religion should be understood in the light of excessively restrictive measures affecting the freedom of the majority religion. Similarly, the grave compromises from the requirements of the principle of secularism such as favoring certain religious movements and activities can also in the long-term cause unexpected and fatal consequences for the existence of the Republic in the Turkish context. Turkey’s transition from theocratic imperial order to the republican state order was achieved by its adoption of the principle of secularism. It is this principle that allowed Turkey to depart from the philosophical and legal basics of the 400-year-old Ottoman Empire, and in this context, it constitutes the foundation of the democratic order and institutions in Turkey. Therefore, every political party, including religiously-motivated ones, that comes to power through the democratic means of this system has no alternative but to protect this basic pillar of the democratic order. Due to its existential significance for Turkish democracy, the principle has a heavy structure and guarantees within the Turkish constitutional system. The text of the 1982 Constitution refers to the principle ten times, declares it as an unamendable characteristic of the Republic, and sets up multi-level mechanisms to protect it. However, the research will show that, besides the direct formal-constitutional guarantees, the uniform and sustainable application of this principle depends to a great extent on other conditions. These include the approach of the judiciary in construing the definition of the principle, addressing the balance between the principle and freedom of religion, as well as in evaluating the claims of majority and minority religions. In this regard, the composition of the Constitutional Court also has immediate relevance to the effective application of the principle. This, in its turn, brings the matter of presidential appointment powers in the formation of the judiciary into question. The principle of secularism cannot be properly implemented

5

Erdoğan (1999), pp. 28–29.

4

1

Introduction

under the constitutional system which gives the main weight in the formation of the judiciary to one institution, namely, the President of the Republic. This is the fault of the 1982 Constitution, drafted following the 1980 military intervention, which aimed to strengthen the guardian role of the presidency,6 the primary post of the secular establishment at the time, vis-à-vis all other branches of the state. This change was actually against the requirement of the constitutional theory establishing that fundamental rules should be determined based on their abstract merits, as the political conjuncture changes over time and the incumbent political actors do not rule forever. The disregard of this basic requirement in drafting the 1980 Constitution affected the settlement of social, political, and legal issues in Turkey, including the proper implementation of secularism. It should be clarified here that “proper implementation” of the principle of secularism does not necessarily denote the excessively restrictive application of the principle seeking to remove religion from the public sphere and affording it a supreme constitutional value. This was the approach taken by the TCC until the 2010 constitutional amendments which will be examined in Chapter 4. Proper implementation requires equal treatment and a balanced review of the principle and other constitutional norms such as freedom of religion, right to education, right to practice a profession, freedom of party activity, and others, in the cases where they interact. Only such an approach to the application of the principle can achieve its consolidation within the state order. In this regard, in addition to direct and specific constitutional guarantees, the balanced protection of the principle of secularism further depends on other rules and mechanisms. The rules governing the activities of political parties and party prohibition, and also the general system of checks and balances carry great significance for the protection of secularism. Moreover, the role of the European Court of Human Rights (hereafter the ECtHR, the European Court, or the Strasbourg Court) as an external venue for answering human rights questions stemming from Turkish secularism is important in terms of upgrading the content and application of this principle in line with Turkey’s international human rights obligations. Nevertheless, there has never been any comprehensive analysis of the constitutional protection of secularism systematically covering all its relevant facets. Turkish secularism has been the subject of various studies but in limited aspects. The majority of studies focus on the different freedom of religion and administrative questions such as the headscarf issue, compulsory religious education, Alevi issues, and the Diyanet (the Presidency of Religious Affairs), among others, arising from the regulation of religion.7 Some works prefer to study state-religion relationships concerning the policies of particular governments.8 There are also works discussing the nature and scope of the understanding of Turkish secularism, its relationship with

6

See Heper and Çinar (1996), pp. 489–492. See for example, Gözaydın (2006); Ulutas (2010); Uzun (2010); Çınar (2013); Hurd (2014); Yüksel (2013); Yüksel (2015). 8 See for example, Kuru (2006); Hale and Özbudun (2010); Watters (2018). 7

1.2

Research Questions and Methodology

5

Islam, and dealing with several other theoretical questions in this regard.9 However, no study provides a comprehensive and coherent analysis of the constitutional-legal framework of this principle within the Turkish legal system and focuses on particular protection mechanisms and general checks and balances. From this perspective, this thesis will add a significant contribution to knowledge. The study will also fill the gap in the scholarly literature by presenting the legal definition and framework of the principle that is universally applicable.

1.2

Research Questions and Methodology

This research focuses on the position and protection of the principle of secularism within Turkey’s constitutional system. Its main questions are as follows: 1. What is the nature and scope of protection provided to the principle of secularism within the Turkish constitutional and legal framework? 2. What is the approach of the Turkish constitutional judges to the protection of the principle? 3. What kind of gaps and shortcomings exist in the constitutional and legal framework of Turkey and the judicial approach affecting the proper implementation of the principle of secularism? 4. What kind of amendments are needed to improve the constitutional-statutory framework in this field? Thus, this thesis aims to study all legal aspects relevant to the constitutional protection of secularism in Turkey, and in this regard, it takes a comprehensive approach. The research studies the protection of the Turkish principle of secularism as a matter of national law with reference to its international dimensions. The thesis explores primarily the normative sources, Turkish legislation, and jurisprudence. To establish the theoretical framework required for the treatment of the issues under the national legislation the thesis will first introduce the definition of the secular state together with its historical Western background. The standing of the principle of secularism within the Turkish legal framework and the significance afforded to it will be described to introduce a normative framework of the fragile relationships between religion and state. The main part of the study focuses primarily on the regulatory framework including constitutional and legislative amendments, domestic judgments, and decisions of the ECtHR. The approach of the TCC towards the interaction of secularism and the freedom of religion is critically analyzed with reference to its composition. The approach of the ECtHR is also introduced through a critical review of its

9 See for example, Erdoğan (2000); Wing and Varol (2006); Kuru (2009); Yildirim (2010); Yildirim (2013); Warhola and Bezci (2010).

6

1

Introduction

jurisprudence. Books, journal writings, reports, and online sources have also been utilized to a great extent. The approach taken in this research posits that examination based on only the national normative framework will be insufficient to evaluate the effectiveness of the national rules relevant to the proper implementation of the principle. Therefore, in relevant parts, the research draws principles from the applicable international sources, particularly, from the Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter the ECHR, the Convention, or the European Convention), the International Covenant on Civil and Political Rights (hereafter the ICCPR), the case-law of Strasbourg organs, and the comments of the United Nations Human Rights Committee (hereafter the HRC). Soft law documents such as guidelines, resolutions, reports, and opinions have also been referred to in the analysis. References have been made to the German Federal Constitutional Court (Bundesverfassungsgericht, hereafter the FCC) and the United States constitutional system to derive benefit from these sources and to present a comparative view.

1.3

An Outline

The thesis is composed of seven chapters. In the first step, Chapter 2 will explain the historical emergence of the principle of a secular state in the Western world to duly grasp the concept. It is also a prerequisite for understanding the judgments of the TCC in which it established that the functioning of secularism can differ depending on the specific conditions of each country, especially the differences between Islam and Christianity, and defined distinctive features of Turkish secularism on this ground.10 In the second step, Chap. 2 will introduce the definition of the secular state expounding its essential requirements. It will clarify the basic requirements of the principle of secularism which have not been sufficiently elaborated on in other definitions. Chapter 3 will analyze the normative position and protection of the principle of secularism within the Turkish constitutional framework. First, it will describe the historical background of the adoption of the principle of secularism in Turkey. Second, it will examine the normative standing of the principle in the 1982 Constitution. Lastly, it will demonstrate the judicial protection afforded to the principle by the TCC. The undertaking of Chap. 4 is to demonstrate the concrete application of the principle of secularism according to the 1982 Constitution. Section A will first 10

Turkish Constitutional Court decision, 21 October 1971, E.1970/53, K.1971/76; Turkish Constitutional Court decision, 3 July 1980, E.1980/19, K.1980/48; [1986] Turkish Constitutional Court decision, 4 November 1986, E.1986/11, K.1986/26; Turkish Constitutional Court decision, 7 March 1989, E.1989/1, K.1989/12; Turkish Constitutional Court decision, 25 October 1983, E. 1983/2, K. 1983/2.

1.3

An Outline

7

illustrate the rigid application of the principle by the Court in the cases decided prior to the 2010 constitutional amendments. Then, Section B will evaluate the restructuring of the TCC under the 2010 constitutional amendments which are considered by some legal scholars to have caused the Court’s shift towards an understanding of “liberal secularism” or “pluralistic secularism.” Therefore, this section will examine in detail the shortcomings in the appointment mechanism of constitutional justices and show that the Court is even more homogeneous now than before. It will further introduce recommendations concerning the structure of the TCC with a view to ensuring its democratic legitimacy, pluralist structure, and independence. Section C seeks to identify whether the TCC has made a shift towards a rights-based approach and adopted a “liberal understanding of secularism.” Therefore, it will examine the Court’s present argumentation in the light of recent judgments. It will evaluate the implications of the change that occurred in the legal interpretation of the Court used for the application of the principle. In Turkey, a violation of the principle of a secular Republic constitutes a ground for the prohibition of a political party that is governed by a strict legal regime (Article 68(4) of the constitution). At the same time, “[p]olitical parties are indispensable elements of democratic political life.”11 Five political parties have been prohibited by the Constitutional Court on the ground of becoming “a center of anti-secular activities.” Therefore, the frequent use of this instrument, which is unique to the Turkish constitutional system, has raised questions both among the national scholars and the CoE institutions12 concerning the Turkish legal regime on the prohibition of political parties and the application of this mechanism by the Constitutional Court. In this regard, Chap. 5 will focus on the constitutional and statutory regime for the prohibition of political parties for the sake of protecting secularism. It will examine the party prohibition jurisprudence of the TCC concerning the religiously-motivated parties. The judgment of the ECtHR approving Refah’s dissolution will be also examined in this chapter. After studying the applicable international principles and identifying the deficiencies in the constitutional and legal framework of party prohibition, the chapter will propose the amendments needed to bring the party prohibition rules into conformity with international standards. The strict separation of powers and its particular aspect of an independent judiciary is the sine qua non for protecting the secular and democratic state order. Chapter 6 studies the 2017 constitutional amendments which shifted Turkey’s political system from a parliamentary to a presidential one. It analyzes the rearranged relationship of the executive and legislative to find out whether it ensures sufficiently effective checks and balances. It will further make proposals on how the presidential powers concerning the judiciary should be construed. Chapter 7 studies the judgments of the ECtHR regarding the human rights conflicts stemming from the state regulation of religion in Turkey. It particularly

11

Turkish Constitution Art. 68(2). PACE (2008), [hereafter PACE Resolution 1622 (2008)]; Venice Commission (2009), [hereafter Prohibition of Political Parties in Turkey]. 12

8

1

Introduction

focuses on the cases concerning the headscarf ban, compulsory religious education, and the non-recognition of the Alevi faith. This chapter assesses how the European Court addresses the implementation of the principle of secularism in Turkey and determines its value in relation to the Convention rights.

References Çınar Ö (2013) Compulsory religious education in Turkey. Relig Hum Rights 8:223–241. https:// doi.org/10.1163/18710328-12341253 Erdogan M (1999) Islam in Turkish politics: Turkey’s quest for democracy without Islam. Crit Crit Middle East Stud 8:25–49. https://doi.org/10.1080/10669929908720149 Erdoğan M (2000) Demokrasi, Laiklik, Resmi İdeoloji [Democracy, laicisim and the official ideology], 2nd edn. Liberte Yayınları, Ankara Gözaydın İB (2006) A religious administration to secure secularism: the presidency of religious affairs of the Republic of Turkey. Marburg J Relig 11:1–8 Hale W, Özbudun E (2010) Islamism, democracy and liberalism in Turkey: the case of the AKP. Routledge, London Heper M, Çinar M (1996) Parliamentary government with a strong president: the post-1989 Turkish experience. Polit Sci Q 111:483–503. https://doi.org/10.2307/2151972 Hurd ES (2014) Alevis under law: the politics of religious freedom in Turkey. J Law Relig 29:416– 435 Kuru AT (2006) Reinterpretation of secularism in Turkey: the case of the justice and development party. In: Yavuz MH (ed) The emergence of a new Turkey. The University of Utah Press, Salt Lake City Kuru AT (2009) Secularism and state policies toward religion: the United States, France, and Turkey. Cambridge University Press, Cambridge Özbudun E (2007) Democratization reforms in Turkey, 1993–2004. Turk Stud 8:179–196 PACE (2008) Resolution 1622 (2008) on functioning of democratic institutions in Turkey: recent developments. https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=1 7664&lang=en Ulutas U (2010) Religion and secularism in Turkey: the dilemma of the directorate of religious affairs. Middle East Stud 46:389–399 Uzun MC (2010) The protection of laicism in Turkey and the Turkish Constitutional Court: the example of the prohibition on the use of the Islamic veil in higher education. Penn State Int Law Rev 28:383–426 Venice Commission (2009) Opinion on the Constitutional and Legal Provisions Relevant to the Prohibition of Political Parties in Turkey. https://www.legislationline.org/download/id/2793/ file/CDL-AD2009006-%20Opinion%20on%20Prohibition%20of%20Political%20Parties%20 Turkey.pdf Warhola JW, Bezci EB (2010) Religion and state in contemporary Turkey: recent developments in Laiklik. J Church State 52:427–453. https://doi.org/10.1093/jcs/csq052 Watters S (2018) Developments in AKP policy toward religion and homogeneity. Ger Law J 19: 351–374. https://doi.org/10.1017/S2071832200022720 Wing AK, Varol OO (2006) Is secularism possible in a majority-Muslim country: the Turkish example. Tex Int Law J 42:1–54 Yildirim S (2010) The search for shared idioms: contesting views of Laiklik before the Turkish Constitutional Court. In: Marranci G (ed) Muslim societies and the challenge of secularization: an interdisciplinary approach. Springer, Dordrecht, pp 235–251

References

9

Yildirim S (2013) Conceptions of religion in the secular state: evolving Turkish secularism. Pepperdine Law Rev 41:1049–1058 Yüksel S (2013) The clash between free exercise of religion and secularism within the Turkish Legal System. Public Priv Int Law Bull 33:115–135 Yüksel S (2015) Anayasa Yargısında İbadet Özgürlüğü [The freedom of worship in Constitutional Jurisdiction]. ALFA, Istanbul

Chapter 2

The Historical Development and Definition of a Secular State

2.1 2.1.1

The Historical Development of the Principle of Secularism Church-State Relationships throughout the Medieval Period

The French term “laïcité” and the English term “secularism” are used to refer to the separation of religion and state, i.e., the absence of state participation in religious issues and vice versa. The term “secular” derives from the Latin word “saeculum” which means an age or era.1 Saeculum was used to mean the longest potential lifetime of a human, roughly 100 or more years. It is also the origin of the term “century” in Romance languages. In Latin, saeculum was used to distinguish the temporal era of this world from the everlasting, divine realm of God. The French “laïque” and “laïc” originate from the Latin “laicus”, which itself derives from the Greek “laikos”. It means “from the people” contrary to “klerikos” which means “from the clergy.”2 In medieval times, both “laic” and “secular” designated people who took religious vows but lived out of monastic communities in contrast to those who cloistered themselves in monasteries.3 During the late eighteenth and early nineteenth centuries, the term “secularization” was employed to describe the expropriation of church properties by the state and their transfer to non-ecclesiastical ownership.4 The principle of separation of religion and state is a result of the historical conflict between the Church and State in the Western world. It might be thought that the

1

See Gunn (2013), p. 65. See Gunn (2013), p. 67. 3 See Gunn (2013), pp. 65–68. 4 See Gunn (2019), p. 472. 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Masmaliyeva, Turkish Secularism, European Union and its Neighbours in a Globalized World 12, https://doi.org/10.1007/978-3-031-46011-1_2

11

12

2

The Historical Development and Definition of a Secular State

historical origination and definition of the principle of secularism could be dealt with in just a few sentences. However, the notion of the secular state and its Turkish version cannot be fully comprehended without a more comprehensive handling. Therefore, Section A provides a detailed historical overview of the development of this concept in the West. Following this, Section B will outline the concept of the secular state framing its fundamental features. During the Middle Ages, the Roman Catholic Church and European states often claimed authority over the same areas. As the Church grew, it became increasingly rival to the state. In certain periods of European history there existed de facto two states: the state of the Church and the temporal state.5 In the course of the emergence of Christianity, Christians were unconcerned about temporal power. This approach was expressed in the quote by Jesus, “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.” In his teachings, Saint Paul maintained that it was the duty of Christians to obey civil authorities as all authority derives from God. It was probably due to this reason of loyalty that in the early fourth century, Christians were granted limitless freedom of religion within the borders of the Roman Empire, and in the late fourth century Christianity became the state religion.6 As the state was constantly declining in the Western Roman Empire, the Church quickly began to pursue ambitions of independence. In the late fifth century, Pope Gelasius I developed the theory of the two swords defining the jurisdiction of the pope and emperor. His theory observed a duality in the constitution of human society: the state to preserve justice, peace, and order in civil matters, and the church to mediate permanent redemption and guard religious interests. However, there was no absolute equality between these two powers. In a letter to Emperor Anastasius, Gelasius I noted, “[t]here are indeed, most august Emperor, two powers by which this world is chiefly ruled: the sacred authority of the popes and the royal power. Of these, the priestly power is much more important because it has to render account for the kings of men themselves at the divine tribunal.”7 The original concept of the two swords was subsequently modified by the papalists to underpin the supremacy of the Church over the state. According to this position, both religious and temporal power was initially granted to the Church; keeping hold of religious authority, the Church transferred worldly power to the state. However, it maintained the original and highest dominion over all temporal authority. The dispute was above and beyond a theological controversy; it was a demonstration of clashing crucial interests and ambitions for authority. Beginning in the mid-eighth century, the doctrine of papal supremacy began to develop and strengthen. For example, Pope Nicholas I (858–867) defended the supremacy of

5

See Robertson (1987), p. 155. See Robertson (1987), pp. 153–154. 7 Ehler and Morrall (1954), p. 11. 6

2.1

The Historical Development of the Principle of Secularism

13

the Church over the temporal authority and called the priests to disobey the unjust kings.8 The conflict between the Church and temporal powers continued into the next centuries. A lack of strong central authority after the collapse of the Roman Empire, a very limited economic structure, and a weak position of local authorities vis-à-vis the Church with a universal bureaucracy and largest lands enabled the Church to consolidate its unity and gain a huge supranational power throughout the medieval ages.9 One of the most significant and far-reaching church-state confrontations of the eleventh to twelfth centuries was called the Investiture Controversy. The term “Investiture” means the appointment of church offices,10 including the pope in the Catholic Church. This was a conflict that lasted for decades between the Holy Roman emperors and different popes for the sake of obtaining the authority to appoint church offices in the Holy Roman Empire. The conflict had emerged between Pope Gregory VII (1073–85) and Emperor Henry IV (1056–1106) in 1075.11 In that year, Pope Gregory VII issued the Dictatus Papae.12 By this declaration, the pope vested himself with the power to engage in every issue concerning the church and even issues not concerning the church. One of the clauses affirmed that the pope had absolute power to depose an emperor. It announced that the church of Rome was established solely by God and therefore, the only universal domination was papal.13 This measure of entrusting to himself an authority on a dimension that was equal to that of a Roman ruler was very insulting to laic royalty in the west of Europe, particularly to Henry IV, as he had already been deprived of his princely power to ratify the pontifical elections in 1059 when he was 6 years old.14 Emperor Henry IV replied to this statement by delivering Gregory VII a message in which he addressed him by the name “Hildebrand” and called him “[a] false monk.”15 He continued his accusations against Gregory VII and denied his status as the pope. The German king concluded his written message by demanding Gregory leave his position and “be damned throughout the ages.”16 As a response, in 1076 Gregory VII excommunicated Henry IV and deposed him as a German ruler, abolishing the duty of obedience of all Christians before him. The dissident groups in the Holy Roman Empire, who had been waiting for such an

8

Erdoğan (1995), p. 185. Yurdusev (1996), p. 78. 10 See Cantor (1958), pp. 8–9. 11 See Rubenstein (2011), p. 18. 12 See The Investiture Controversy. https://history.hanover.edu/courses/excerpts/211inv.html. 13 See The Investiture Controversy. 14 See Ullmann (1972), p. 144. 15 See Tierney (1970), p. 123. 16 See Tierney (1970), p. 124. 9

14

2

The Historical Development and Definition of a Secular State

opportunity, took advantage of the situation, and in the name of religious fervor, they rebelled against the emperor.17 This was the upturn of an increasing fracture or separation between the temporal authority in the Holy Roman Empire and the Roman Catholic Church. The Investiture Conflict went on for several decades, at the end finalizing in compromise over the conflict at the Concordat of Worms, which was signed in 1122 between the Holy Roman King Henry V (1106–25) and Pope Calixtus II (1119–24).18 The agreement approved the right of the king to vest bishops with temporal power in the areas they ruled, but not with religious power. The king committed to guaranteeing “canonical election and free consecration.”19 The Concordat accepted that the election of bishops and abbots had to be held in line with the procedure provided by the canons of the cathedral.20 Accordingly, the abbot was to be chosen by the monks, and exclusively clerical seniors could present the candidate with a ring and staff (the symbols of the sacred authority). According to the compromise, “the elections of the bishops and abbots of the German kingdom” would have been held in the presence of the emperor having the right to settle “any discord. . .between the parties concerned.”21 It should be added that, while a relative compromise was achieved over the Investiture Conflict by the Concordat, the struggle would continue over many years. The fight between religious and temporal leaders gained new momentum with the clash which began in 1296 between Philip IV, King of France, and Pope Boniface VIII over the taxation of the clergymen. The papacy was this time resisted by an independent monarch instead of a theoretically universal emperor. Philip achieved to impose taxes on the French clerics despite the pope’s protests. Going even further, he called a meeting of the States-General which charged Boniface VIII with heresy and crime. This striking event indicated a definite and constant win of the state against the papacy in the competition for worldly supremacy.22 Europe became subject to political fragmentation with the growth of separate independent states which effectively contested the church’s claims to supreme leadership. Against the Church’s established position, new teachings were developed legitimizing the independence of the temporal authority. At the beginning of the fourteenth century, Dante argued for the separate existence of the papacy and empire in his book De Monarchia and maintained that both authorities should have supremacy in their own realms for the sake of international peace. However, he also regarded the presence of the state as the project of God.23 His view was followed by William of

17

See Samuel (2010), p. 16 See Wilken (1993), p. 47. 19 Medieval Sourcebook: The Concordat of Worms 1122. https://sourcebooks.fordham.edu/source/ worms1.asp. 20 See Medieval Sourcebook: The Concordat of Worms 1122. 21 Medieval Sourcebook: The Concordat of Worms 1122. 22 See Noss (1949), pp. 652–658. 23 Reinhardt (1904), pp. xxvi–xxvii. 18

2.1

The Historical Development of the Principle of Secularism

15

Ockham who stood for the supremacy of the monarch in temporal affairs without denying the supremacy of the church in spiritual matters.24 Afterward, papal supremacy was attacked by Marsiglio of Padua who advocated the supremacy of the state both in temporal and spiritual matters in his book Defensor Pacis (1324).25 He distinctly characterized the secular state declaring that “[t]he rights of citizens are independent of the faith they profess, and no man may be punished for his religion.”26 Marsiglio’s call for the rejection of coercion in faith was totally neglected. The trend of the age upheld rather the views of Aquinas and Augustine, according to which heresy was the most serious evil and offense, for which the only appropriate punishment was execution. Thus, the notion of freedom of religion and tolerance was unfamiliar throughout the medieval period. The medieval Church held absolute power over the belief of all individuals.27

2.1.2

The Reformation: Struggle against the Church and Wars of Religion

Having regard to the contributions of the major geographical discoveries, rising commerce, and strengthening bourgeoisie it can be said that the Renaissance constituted the decisive stage in the emergence of secular thought and the secular state. Thinkers such as Niccolo Machiavelli, Jean Bodin, Thomas More, Thomas Hobbes, and Hugo Grotius made great contributions to secularization in political philosophy.28 Meanwhile, the Church itself faced dissenting movements which gave rise to the Reformation in the sixteenth century under the guidance of the Protestant theorists Martin Luther, John Calvin, and Ulrich Zwingli. On 31 October 1517, Luther’s posting of the Ninety-five Theses on the Wittenberg Church door marked the beginning of the Protestant Reformation. In 1523, Luther published his treatise “Temporal Authority: To What Extent Should It Be Obeyed?”, where he argued for the separation of the church and state.29 In Luther’s opinion, there are two distinct realms: the kingdom of the world (the state) and the kingdom of God (the church). As these two distinct authorities (Zwei-Regimenten-Lehre) have different tasks and are ruled with different methods, they must be kept separate from each

24

Sullivan (1897), pp. 421–423. Sullivan (1897), p. 423. 26 Pfeffer (1953), p. 18. 27 See Northcott (1948), p. 25. 28 See Daver (1969), pp. 14–16. 29 See Vaughn, Martin Luther on Secular Authority: The Powers of Princes versus the Obligations of Subjects. https://history.hanover.edu/hhr/18/HHR2018-vaughn.pdf, p. 157. 25

16

2

The Historical Development and Definition of a Secular State

other. Luther believed that both kingdoms are governed by God.30 In other words, both spiritual and temporal authorities are grounded in the divine source, although they are ruled differently. The Reformation supported the efforts of temporal rulers to gain independence from the external ecclesiastical authority. For example, King Henry VIII of England broke his relations with Rome and began to administer the Church of England autonomously under the 1534 Act of Supremacy. However, this was followed by a situation of uncertainty and upheavals in which the English rulers acceding to the throne engaged in imposing their faith on their subjects.31 Escalating confessional divisions caused the outbreak of the English civil wars. The clash between Catholics and Protestants brought about the longest, most destructive, and bloodiest wars of religion throughout the whole of Europe during the sixteenth to seventeenth centuries. There had been no sign of religious freedom and tolerance for a long time. The principle cuius regio, eius religio (“in the prince’s land, the prince’s religion”) was endorsed by the Religious Peace of Augsburg of 1555 which concluded the Schmalkaldic wars (1546–1555) that occurred between the Holy Roman Emperor Charles V and the Protestant League of Schmalkaldic. This principle allowed the ruler to decide his confessional affiliation, Catholic or Protestant, which would then become the official religion binding all his subjects. Those who adhered to a different confession had to either follow the official religion or migrate to a state affirming their religion. Otherwise, they could be persecuted, imprisoned, fined, or executed.32 It seems that in the West, secularism emerged both as a result of political struggle between the Church and temporal rulers and as a search for a peaceful solution to the environment of brutality and horror caused by the wars of religion. Seeing the division of his country through religious conflicts, John Locke published his work “A Letter Concerning Toleration” in 1689 which was directly related to the problem of separation of church and state. It seems that throughout the letter, Locke’s quest is to prevent the utilization of religion in the struggle for gaining political power, which he saw as the real motivation for religious conflicts.33 First, he emphasized the necessity of distinguishing “the business of civil government from that of religion and to settle the just bounds that lie between the one and the other.”34 Thus, he viewed tolerance as something inevitably conditioned upon a strict separation of state and church: “the power of civil government relates only to men’s civil interests, is confined to the care of the things of this world, and hath nothing to do with the world to come.”35 Contrarily, “[t]he only business of the Church is the salvation of

30

See Prill (2005), p. 18. See Marshall (2017); see also Pettegree (2011). 32 See Trim (2010). 33 See Cholakov (2015), p. 188. 34 John Locke, A Letter Concerning Toleration. https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/ locke/toleration.pdf, p. 6. 35 John Locke, A Letter Concerning Toleration, p. 9. 31

2.1

The Historical Development of the Principle of Secularism

17

souls.”36 Locke developed the thesis of the inconsistency of the goals and the tools of the state with the “care of the salvation of men’s soul.”37 Locke reached this conclusion by coining the following ultimate arguments: 1. It “appears not that God has ever given any such authority to one man over another as to compel anyone to his religion. Nor can any such power be vested in the magistrate by the consent of the people.”38 2. The magistrate’s power “consists only in outward force; but true and saving religion consists in the inward persuasion of the mind.”39 3. Although “the rigor of laws and the force of penalties were capable to convince and change men’s minds, yet would not that help at all to the salvation of their souls.”40 Thus, it would be “irrational” for the sovereign to engage in something that it was naturally unable to accomplish.41 The claim defended throughout the letter that “the care of each man’s salvation belongs only to himself”42 is a logical outcome. Locke was of the view that believers are driven by their “sufferings and oppressions” to struggle against a “tyrannical yoke” of oppressive regimes.43 Thus, tolerance and non-coercion of worship were regarded as a remedy for odium theologicum. However, atheists were outside the scope of Locke’s tolerance. Locke’s “Two Treatises of Government”, which constitutes the ground of contemporary liberal political theory, also greatly influenced secularization in political thought by asserting natural rights and elaborating the social contract theory. It put a strong emphasis on the individual’s “life, health, liberty and possessions,” security of which must be guaranteed by a political authority.44

2.1.3

Separation of Church and State in the American and French Constitutions

Locke’s ideas exerted great influence on the American Revolution (1775–83) along with the political theories of the eighteenth-century Enlightenment which were imported from France. Due to the growing influence of Enlightenment rationalism and the concept of natural rights, the separation of church and state increasingly 36

John Locke, A Letter Concerning Toleration, p. 23. John Locke, A Letter Concerning Toleration, p. 8. 38 John Locke, A Letter Concerning Toleration, p. 7. 39 John Locke, A Letter Concerning Toleration, p. 7. 40 John Locke, A Letter Concerning Toleration, p. 8. 41 Creppell (1996), p. 220. 42 John Locke, A Letter Concerning Toleration, p. 31. 43 John Locke, A Letter Concerning Toleration, pp. 37–38 44 See Bristow (2017). https://plato.stanford.edu/archives/fall2017/entries/enlightenment/. 37

18

2

The Historical Development and Definition of a Secular State

gained importance for the American states during the late eighteenth century. The wide diversity of religious groups residing throughout the thirteen colonies was another factor contributing to this rising trend. The direct context was contention over a plan of appointment of the American bishop of the Anglican Church for the British American colonies for the first time.45 During this period, the Church of England was dominant in only five of the southern colonies, including Virginia, Maryland, Georgia, South Carolina, North Carolina, and some districts of New York. No religious establishment existed in Rhode Island, Pennsylvania, Delaware, and, controversially, New Jersey.46 The remaining colonies had various establishments favoring dissenting denominations such as Presbyterians, Congregationalists, and Dutch Reformed. Therefore, colonialists residing in these colonies were concerned not only about the possible involvement of a domestic bishop in strengthening the position of the Anglican Church but also in undermining the religious and civil liberties that they had enjoyed without intervention for over 150 years.47 It is uncontested that issues of freedom of religion and conscience were of major concern to the Founding Fathers during the period of the American Revolution. The colonies of Pennsylvania and Rhode Island, founded by William Penn and Roger Williams respectively, refused to establish any official religion and enforced an effective church-state separation. During the Revolutionary period, successful experiments of these colonies were regarded as the model of religious freedom solving the church-state question. Presbyterians, Baptists, and others considered the separation of church and state as a clause of faith and persistently campaigned for it in Virginia and New England. Unitarians and Deists protested against the “spiritual tyranny” of those religions which advocated their doctrines through the use of state coercion.48 All these influences contributed together to the reduction of religious fanaticism and dogmatism and the accentuation of freedom of conscience, which could exclusively be ensured by the separation of church and state. The Constitution of the United States (U.S.), which came into force in 1789, stipulates, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”49 The First Amendment to the Constitution defines the border of church and state concisely and definitely: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”50 In the American context, the superior value underlying “separation” is the aim of protecting the freedom of religious institutions and reducing government intervention in religious liberties. Thomas Jefferson, in his notable 1802 letter to the Danbury

45

See Green (2014). See Kuru (2009), p. 74 47 See Green (2014). 48 Smith (2015), pp. 15–16. 49 Constitution of the United States, art. VI, cl. 3 [hereafter U.S. Const.]. 50 U.S. Const. amend. I. 46

2.1

The Historical Development of the Principle of Secularism

19

Baptists Association, qualified Article VI and the First Amendment as building a “wall of separation between church and state.”51 The term “separation of church and state” was later used by the Supreme Court for the first time in 1879 as a short-form expression of the essence of the First Amendment’s religion clauses.52 The concept of a secular state became clearer in the Age of Enlightenment. The works of Enlightenment thinkers such as Montesquieu, Voltaire, and Rousseau buttressed freedom of religion by vehemently attacking the notion of religious uniformity, religious prejudice, bigotry, and authoritarian types of religion. Despite these challenges, in France, Protestants were not granted freedom of worship until 1745, and the capital punishment for religious dissent remained until 1762.53 The Enlightenment philosophers contended that the separation of church and state would allow the state to be ruled based on reason, instead of religious dogmas, myths, and obscure traditions. All these currents of Enlightenment thought constituted the philosophical basis of the 1789 French Revolution which put an end to the authority of the monarchy along with the Catholic Church. Religious liberty was announced firstly in the 1789 French Declaration of the Rights of Man and Citizen, and then in the 1791 French Constitution.54 In 1795, the new Constitution declared the separation of church and state. The 1795 Constitution prohibited the state from recognizing or subsidizing any religion.55 In the aftermath of the French Revolution, Catholicism was harshly persecuted and public prayers were suppressed. The revolutionary state replaced Catholicism with a new faith of rationalism venerating the Cult of Reason. The struggle between the Church, monarchists, and republicans continued throughout the nineteenth century. The French state maintained its radical anticlericalism to a large extent until the Concordat of 1801. France entered the Concordat regime in 1802 by promulgating the Concordat, an agreement signed on 15 July 1801, between the first consul, Napoleon Bonaparte, and Pope Pius VII. According to this treaty, Catholicism was recognized by the French state as the majority religion of the French. Under the Concordat, the Catholic clergy became a subdivision of the civil service, maintaining a position in the governmental hierarchy and receiving regular salaries from the state. The government controlled all the ecclesiastical appointments and rigorously regulated the entirety of church affairs. Thus, the church officially became an instrumentum regni under this regime which continued for a century.56 After the establishment of the Third Republic in 1870, the anticlericalism current rose substantially among the republicans. The republicans regarded the church as

51 Jefferson’s Letter to the Danbury Baptists. In: Library of Congress. https://www.loc.gov/loc/lcib/ 9806/danpre.html. 52 See Green (2014). 53 See Bates (1945), pp. 193–194. 54 See Durand-Prinborgne (2004), p. 24. 55 See Durand-Prinborgne (2004), p. 24. 56 See Guerlac (1908), pp. 260–262.

20

2

The Historical Development and Definition of a Secular State

their common enemy since it continued to cooperate with the monarchists.57 This enmity was formalized with the famous watchword, “le cléricalisme, voilà l’ennemi!” (clericalism is the enemy) phrased by Leon Gambetta, a prominent Republican leader.58 Constant and comprehensive secularization measures, including the secularization of schools, were taken between 1881 and 1903.59 Separation of church and state was finally codified by the Law on the Separation of the Church and State (la loi concernant la séparation des Églises et de l’État) adopted on 9 December 1905.60 According to this law, “[t]he Republic ensures the freedom of conscience. It guarantees the freedom of worship, subject only to restrictions imposed in the interest of public order” (Article 1).61 According to Article 2, the Republic “does not recognize, finance, or subsidize any religious group.”62 All types of religious buildings, including churches, were declared property of the state (Articles 3–6, 12). Thus, the adoption of this act completed the process of separation of church and state to all intents and purposes.

2.1.4

The Factors Lying behind the Different Practices of State-Religion Separation

Implementation of this concept is influenced by several factors such as the historical conditions and motives, and religious, political, and social characteristics of each country. In France, the principle of secularism emerged as a result of a centuries-long battle between state and church and was a triumph of the anti-clerical republicans. Contrarily, in the United States, separation was established with no enmity toward religion, and it has developed further based on a mutually favorable relationship between church and state.63 Ahmet Kuru explains the differences in the implementation of secularism, i.e., the approach to the visibility of religion in public, primarily with the existence or lack of an ancien régime grounded on the partnership between monarchy and dominant religion.64 The United States originated as a young republic without the danger of the restoration of an ancient monarchy, or the problem of modernizing old state establishments grounded on faith. Due to the lack of a politically influential hegemonic religion, the establishment of a secular state in the U.S. was not accompanied

57

See Bergounioux (1995), p. 19. Ozouf (1982), p. 50. 59 See Guerlac (1908), p. 262. 60 Loi du 9 décembre 1905 concernant la séparation des Églises et de l’État [Law of 9 December 1905 concerning the Separation of Church and the State]. 61 Cited in Norton (2016), p. 46. 62 Norton (2016), p. 46. 63 See Maritain (1951), pp. 182–183. 64 Kuru (2009), pp. 137–138. 58

2.1

The Historical Development of the Principle of Secularism

21

by sweeping secularization reforms, and the visibility of religion was not excluded from the public sphere as strictly as in France and the early Turkish Republic. Furthermore, American states were faced with a wide diversity of Protestant, Catholic, and other denominations, which allowed none of these groups to hold a countrywide majority. The religious denominations considered the absence of a national church as an assurance of their freedom of religion.65 Thus, particular circumstances in the crucial founding period led to the adoption of a less restrictive approach in the U.S. towards the visibility of religion in the public sphere. By comparison, in Turkey and France, during the period of secular state-building, there was a danger posed by the ancien régime grounded on old monarchy and the dominance of Islam and Catholicism, respectively. Therefore, in the face of persisting public influence of hegemonic religions, their visibility was removed from the public domain and restricted to the private sphere. The conservative French Catholics did not view the separation of church and state as favorable to them, since Catholicism was the dominant religion in the country, and therefore they resisted it. Apart from the absence of religious diversity, the Catholic Church’s organizational structure also had a huge impact on this resistance. The Church’s hierarchical structure enabled it to foster a consistent protest against the separation of church and state. In that respect, during the period between the eighteenth and mid-twentieth centuries, Catholic and secular thought in France was mutually opposite and lacked any point of convergence.66 Despite its century-long journey, the question of the relationship between religious and state affairs has not been settled definitively and the problem persists in different forms. The principles of a secular state still encounter various obstacles in practice and are not implemented by the states smoothly and absolutely. For example, the church-state separation expressed in the U.S. Constitution’s relevant clause has been interpreted differently. The Supreme Court’s so-called “strict separationist” reading of the Establishment Clause seeking a “high and impregnable wall of separation” between religion and state was upheld in church-state decisions for nearly 50 years. The strict separationist position was best articulated by Justice Hugo Black in the landmark decision of Everson v. Board of Education (1947): The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. . . . In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.”67

65

Kuru (2009), p. 82. Kuru (2009), pp. 137–138. 67 Everson v Board of Education 330 US 1, 15–16 (1947). 66

22

2

The Historical Development and Definition of a Secular State

However, the conservatives have rejected this reading of the founders’ original purpose in the First Amendment.68 The Supreme Court’s strict separationist position has been contested due to the revival of conservatism in the 1980s.69 In fact, the existence of Catholic, Protestant, and Jewish chaplain positions in the army, the granting of tax exemptions to synagogues and churches, and the use of opening prayers at state legislatures and Congress all allow one to conclude that separation is compromised to some degree.70 Even in France, despite the secular regime, the Concordat of 1801 signed between the first consul, Napoleon Bonaparte, and Pope Pius VII has never been abolished and is still in force in Alsace-Moselle. Four religions are recognized and publicly funded in this region (Reformed Church of Alsace and Lorraine, Church of Augsburg Confession of Alsace and Lorraine, Catholic dioceses of Strasbourg and Metz, Jewish consistories of Strasbourg, Colmar, and Metz).71 Since the religious ministers of Alsace-Moselle are categorized as public officials, the French Ministry of Interior makes salary payments to priests, rabbis, and pastors.72 Religious instruction, which lies within the competence of the different religious communities and their organizations, constitutes a part of the educational program in state primary and secondary schools. Besides this, the faculties of Catholic and Protestant theology of the University of Strasbourg are the only religious faculties in France authorized to function within a state university.73 Blasphemy constituted an offense exclusively in the region of Alsace-Moselle (départments Haut-Rhin, Bas-Rhin, and Moselle) until 2016. Relevant Articles 166 and 167 of the local penal code (droit local) were inherited from the German Criminal Code of 1871 and continued to be in force in Alsace after the return of the region to France in 1918.74 The blasphemy provisions were repealed in October 2016.75 The repeal became effective on 27 January 2017.76 Moreover, although public funding of religion is prohibited by Article 2 of the Law

68 Dissenting Opinion of Justice Scalia, Justice Rehnquist and Justice Thomas in McCreary County v ACLU 545 US 844 (2005). 69 See Green (2014). 70 See Smith (2015), p. 17. 71 See Chelini-Pont and Ferchiche (2015), pp. 322–323. 72 Décret n°2007-1445 du 8 octobre 2007 relatif à la fixation du classement indiciaire des personnels des cultes d’Alsace et de Moselle [Decree No 2007-1445 of 8 October 2007 concerning the determination of the index classification of the personnel of the religions of Alsace and Moselle]. https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000794003/2021-02-17/. 73 See Messner, L’enseignement Religieux En Alsace-Moselle: L’émergence d’un Nouveau Modèle? [Religious Education in Alsace-Moselle: The Emergence of a New Model?]. https:// books.openedition.org/pus/9305. 74 See generally de la Morandière (1927), p. 100; see also Venice Commission (2010), pp. 168, 261–262. 75 See France: “Blasphemy” law ended: 2016! In: End Blasphemy Laws. https://end-blasphemylaws.org/countries/europe/france-abolished-its-blasphemy-law-in-2016/. 76 Code Pénal Local (Alsace-Moselle) [Local Penal Code]. https://www.legirel.cnrs.fr/spip.php? article528&lang=fr.

2.1

The Historical Development of the Principle of Secularism

23

of 1905, private Catholic schools throughout France are subsidized by the state in a way akin to public schools.77 As it seems “separation” has not been built in the Alsace-Moselle region despite the secular and unitary character of the French state. This is because Alsace-Moselle was not included in the French territory when the Law of 1905 concerning the Separation of Church and the State came into force. As a consequence of the FrancoGerman War, which was ended by German victory in 1871, Alsace-Moselle was united with Germany and therefore, legislative amendments of France were not implemented in this area.78 The German authorities did not abolish the French legislation applying to religions, congregations, and education, and thus the Concordat regime was preserved in the annexed regions.79 When Alsace-Moselle reincorporated with France following World War I, in 1919, the status quo in religious matters was conserved in this area for political reasons. The French government did not wish to alienate the Alsatian Moselle population by abolishing the continuing regime which could serve as a means for its francization policy. In its opinion issued on 24 January 1925, the French Council of State (Conseil d’État) declared that the Concordat regime which resulted from the Law of 18 Germinal, Year X (Concordat and Organic Articles of the Catholic Religion and Protestant Religions) was still in force in Alsace-Moselle.80 The freedom of thought, conscience, and religion has been guaranteed under the international documents signed after World War II. Article 18 of the Universal Declaration of Human Rights (hereafter the UDHR) maintains that “[e]veryone 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 teaching, practice, worship and observance.”81 Today, the freedom of religion and conscience protected by the ECHR, among other international conventions, has become an indispensable element of the democratic orders. The West passed through that long way, full of wars and sufferings, with the help of rationality, and has reached the safe environment established by the secular order. It seems that in the West, secularism has been a result of the settlement of the political conflict between the Church and temporal powers in favor of the latter. In other words, the emergence of secularism is related to the historical practice of Christianity, rather than its doctrines making a distinction between the two realms of religious and temporal. The essence of this historical practice consists of the fact that

77

See Chelini-Pont and Ferchiche (2015), p. 325. See Glenn (1974), p. 769. 79 See Clanchet (2013). 80 See Clanchet (2013). 81 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III), Art. 18 [hereafter UDHR]. 78

24

2

The Historical Development and Definition of a Secular State

in Christianity, the Church was developed as an independent and hierarchical organization. According to the generally widespread opinion in academia, the problematic situation concerning state-religion separation in Muslim countries derives from the doctrine of the Islamic religion on this matter. Many Western scholars who defend this opinion compare Islam and Christianity in this regard; for example, according to Bernard Lewis and Samuel Huntington, Islam fundamentally rejects state-religion separation and from this perspective, it can be regarded as the opposite of Christianity.82 Defenders of this view refer to some religious texts. To demonstrate that Christianity recognizes the separation of religion and state, they cite Prophet Jesus’s quote: “render unto Caesar the things that are Caesar’s and unto God the things that are God’s.” To justify that Islam does not allow such separation, they mention the alleged hadith of Prophet Muhammad concerning state-religion unity: “Islam and government are twin brothers. One cannot thrive without the other. Islam is the foundation, and government is the guardian. What has no foundation, collapses; what has no guardian, perishes.”83 Referring to the distinctive feature of Islam, political Islamists in Turkey have also argued that secularism should be rejected as it does not conform to the constitution of Islam.84 However, according to a specialist in Islamic thought, Ahmet Arslan, as these two religions are theocentric doctrines, they are both totalitarian teachings that do not distinguish between the religious and temporal realms.85 The difference between Christianity and Islam, which should be strongly underlined, is rather the absence of a well-ordered religious institution such as the papacy and clergy in the latter. In Professor Ali Bardakoğlu’s words: “[t]he absence of clergy in Islam means that there is no special class equipped with holy abilities to speak on behalf of God and religion.”86 This factor has been referred to as the main legitimate reason necessitating the categorization of religious service as a public service by the Turkish state.87 A widespread perception that state-religion separation is not possible in Muslim countries as the doctrine of Islam rejects it, unlike Christianity, is erroneous. Actually, an attempt to explain the highly complicated state-religion relationships in the history of Western Christianity by only one Biblical statement grossly oversimplifies the issue; the same applies to the abovementioned Sasanian 88 maxim

82

Lewis (1996); Huntington (1996). Rosenthal (1962), p. 8; Rubin (2017), p. 50. 84 See Erdoğan (1995), p. 186. 85 Arslan (1995), p. 69. 86 Bardakoglu (2006), p. 11. 87 See Gozaydin and Ozturk (2014), p. 13. 88 Sasanian dynasty was an ancient Persian dynasty that ruled the Sasanian or Sassanid Empire (224–651 AD), the last pre-Islamic Empire of Iranians which collapsed in result of the early Islamic conquests of the seventh to eighth centuries AD. 83

2.2

Requirements of the Principle of a Secular State

25

concerning state-religion unity which was wrongly imputed to Prophet Muhammad.89 As argued by Ahmet Kuru, the religious interpretations of political matters have been shaped under the influences of political conditions, instead of the sacred texts.90 Thus, recognition of church-state separation by the Catholic Church and some Protestant interpretations is not the result of Prophet Jesus’s saying, but rather century-long strife between the church and state. The claim that state-religion separation is a particularity of Christianity is the result of confusion about the birth of this religion with its later historical-political tradition. Christianity has been in dispute with modern thought and society as much as Islam has. The dogmas of Islam and Christianity (e.g., the unity of God) and their reflections on the worldview and socio-political ideals of these religions are essentially similar. The big difference that is most frequently underlined between these two religious traditions lies in their “historical form,” namely, their different historical experiences. While Christianity evolved into a political power in parallel to secular authority throughout the Middle Ages, Islam had been always intertwined with the central government.91

2.2

Requirements of the Principle of a Secular State

Having reviewed the historical evolution of the secular state, this section will introduce a definition of the secular state. The introduction of the definition will serve to establish the conceptual structure required for the treatment of issues considered in the following chapters. To define the concept of a secular state, this section will elaborate on its two fundamental features: freedom of religion and separation of religion and state. Firstly, the meaning and scope of the freedom of religion as a main aspect of the secular state will be clarified. While doing this, it will be explained how the Turkish Constitution and the ECHR regulate the freedom of religion. The notion of religious freedom will be expounded in the light of the relevant decisions of the TCC and the ECtHR.

2.2.1

Freedom of Religion: Nature and Scope

Freedom of religion has two dimensions; it entails the right to hold religious and non-religious beliefs ( forum internum) and the freedom to manifest one’s religion or belief ( forum externum). After the respective regulation of the UDHR, both the

89

Kuru (2019a); Kuru (2019b). Kuru, Is Religion-State Separation Possible in Islam? 91 See Mert (1994), pp. 44–45. 90

26

2

The Historical Development and Definition of a Secular State

ECHR and the ICCPR distinguish between the two aspects of religious freedom, the freedom of belief and the freedom to manifest the belief. Article 90(5) of the Turkish Constitution declares the supremacy of international human rights agreements signed by Turkey over national law. Therefore, it is particularly relevant to look at the respective rules of both the ICCPR and the ECHR. According to Article 18 of the ICCPR: 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.92

Article 9 of the ECHR titled “Freedom of thought, conscience and religion” sets forth that: 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.93

Freedom of holding a belief enshrined in Article 9(1) of the ECHR is absolute and inviolable. Manifestation of belief, whether religious or not, however, is not absolute and can be restricted on the grounds provided in Article 9(2) ECHR. This means that the restrictions contemplated in Article 9(2) exclusively apply to the right to express one’s religious or other beliefs and not to the freedom of holding those beliefs.94 The rationale behind the use of the terms “thought,” “conscience,” and “belief” is to enlarge the scope of protection to other worldviews falling outside the religious beliefs.95 The ECtHR has also emphasized the importance of the freedom of belief for atheists, agnostics, and holders of other beliefs in its first related judgment Kokkinakis in which it held: 92

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, Art. 18 [hereafter ICCPR]. 93 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.TS. 222, Art. 9 [hereafter Convention on Human Rights]. 94 Ivanova v Bulgaria App no 52435/99 (ECtHR, 12 April 2007) para. 79. 95 See Özenç (2005), pp. 32–33.

2.2

Requirements of the Principle of a Secular State

27

Freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.96

The internal dimension of religious freedom and freedom of belief means that the person is free to have any religion or belief and to change religion or belief.97 This freedom also encompasses a negative facet, namely the freedom of the person not to profess any religion.98 The negative aspect of freedom of belief also involves the right of individuals not to be asked to disclose their religion or beliefs. Thus, state authorities are not allowed to interfere with persons’ freedom of conscience by raising a question about their religious convictions or obliging them to reveal those convictions.99 The freedom of individual thought and conscience is of key importance for religious freedom and the ECtHR held in this context that a state cannot push individuals to hold certain beliefs or force them to change their convictions.100 Freedom of belief is an essential requirement of the secular state. Article 24(1) of the Turkish Constitution recognizes freedom of belief declaring that, “[e]veryone has the freedom of conscience, religious belief, and conviction.” Article 24 places no restriction on the freedom of belief. Moreover, the Constitution brings additional protection to the freedom of belief by providing that, “[n]o one shall be compelled. . .to reveal religious beliefs and convictions, or be blamed or accused because of his religious beliefs and convictions.”101 Additionally, according to Article 15(2), even in times of war, a state of emergency, or mobilization “no one shall be compelled to reveal his/her religion, conscience, thought or opinion.”102 In its judgment of 4 November 1986, the TCC held concerning the freedom of belief: In a secular state, every person is free to choose his religion and manifest his beliefs within the recognized limitations of the freedom of religion and conscience. It also applies to those who have no religious convictions. In a secular state, every person can have a religion or

96

Kokkinakis v Greece App no 14307/88 (ECtHR, 25 May 1993) para. 31. Eweida and Others v the United Kingdom App nos 48420/10, 59842/10, 51671/10 and 36516/10 (ECtHR, 15 January 2013) para. 80. 98 Alexandridis v Greece App no 19516/06 (ECtHR, 21 February 2008) para. 32. 99 Alexandridis v Greece, para. 38; Dimitras and Others v Greece App nos 42837/06, 3237/07, 3269/07, 35793/07 and 6099/08 (ECtHR, 3 June 2010) para. 78. 100 Ivanova v. Bulgaria, para. 79. 101 Constitution of the Republic of Turkey, 7 November 1982, Art. Art. 24(3) [hereafter Turkish Constitution]. The official English version of the Constitution can be found at the website of the GNAT, https://global.tbmm.gov.tr/docs/constitution_en_2019.pdf. 102 Turkish Constitution Art. 15(2). 97

28

2

The Historical Development and Definition of a Secular State

belief of his choice. This falls outside any kind of influence and intervention of the legislature.103

The term “religion” is defined neither by the ECHR nor by the Turkish Constitution. It would be an infeasible task to formulate a definition embracing the entire range of religions throughout the world. Under the Convention, the states are not entitled to make a restrictive definition of religious denominations as to exclude a minority and non-traditional category of religion from the protection of the law.104 A personal or collective conviction that fulfills “a certain level of cogency, seriousness, cohesion, and importance” is eligible for the protection of the respective Convention right no matter if it is defined by the state as a religion or not. If this criterion is met, the state’s duty of neutrality and impartiality will prevent it from evaluating the legitimacy of religious convictions or the means used to manifest those convictions.105 The state also cannot deal with any sort of religious question of a religious community, and particularly determining religious affiliation of the community; this power belongs exclusively to the highest spiritual authorities of this community.106 The guarantees of freedom of religion envisaged in Article 9 of the Convention cover the entire range of religions—ancient and new, major and minor, theistic and non-theistic, as well as coherent and sincerely-held philosophical beliefs.107 These doctrines and convictions fall into the scope of the freedom of religion without regard to the state’s attitude toward them. Contrarily, the philosophical and religious convictions of individuals relate to their own views about religion, a field in which subjective judgments play a greater role.108 Thus, it is not the state’s task to assess whether the religious beliefs of the person genuinely constitute a “religion” or not. The Turkish Constitution also equally protects the freedom of believers of both Abrahamic and non-Abrahamic religions. The TCC maintained in its judgment of 4 November 1986: The freedom of religion and conscience found in Article 24 of the Constitution and guaranteed by the Constitution is not peculiar to believers of Abrahamic religions. Every person living on the territories of this country enjoys this freedom.109

Moreover, the state cannot make distinctions between the denominations and orders within the same religion. The person is also free to adopt any denomination or order within his/her religion. Ultimately, everyone can have his/her own understanding of

103

Turkish Constitutional Court decision, 4 November 1986, E. 1986/11, K.1986/26 (author’s own translation). 104 İzzettin Doğan and Others v Turkey [GC], App no 62649/10 (ECtHR, 26 April 2016) para. 114. 105 Eweida, para. 81. 106 Miroļubovs and Others v Latvia App no 798/05 (ECtHR, 15 September 2009) para. 90. 107 Council of Europe/European Court of Human Rights (2020), pp. 8–10. 108 İzzettin Doğan and Others v Turkey, para. 107. 109 Turkish Constitutional Court decision, 4 November 1986, E. 1986/11, K.1986/26 (author’s own translation).

2.2

Requirements of the Principle of a Secular State

29

religion. The secular state cannot assess whether the person’s conception of a religion really constitutes a “religion” and if so, which one. Freedom to the manifestation of religion constitutes the second aspect of freedom of religion. As one’s manifestation of his/her religion may influence others, it can be subject to restrictions. Article 9(2) of the Convention requires that any measure restricting an individual’s freedom to manifest religious belief be prescribed by law and necessary in a democratic society in achieving “public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”110 Article 9(1) of the ECHR enumerates several forms in which the exercise of one’s religion or belief may be fulfilled such as “worship, teaching, practice, and observance.” On the other hand, the expression of religious conviction is not restricted to these actions. The European Court of Human Rights has held that the right to try to persuade somebody constitutes a principal part of the freedom of religion as well.111 Participating in the activities of the religious community also amounts to the manifestation of religion for its followers.112 Freedom to practice a religion also encompasses a negative ingredient, that is, the freedom of an individual not to practice a religion.113 The Turkish Constitution recognizes the right to practice a religion maintaining that, “[a]cts of worship, religious rites and ceremonies shall be conducted freely, as long as they do not violate the provisions of Article 14.”114 Unlike the freedom of belief, it appears that freedom to practice a religion is not absolute and can be restricted in pursuit of legitimate aims set out in Article 14(2) of the Constitution, namely, “the indivisible integrity of the State with its territory and nation,” and “the existence of the democratic and secular order of the Republic based on human rights.” The Turkish Constitution also guarantees the freedom not to practice a religion. In a secular state, individuals cannot be forced to practice a religion. Article 24(3) of the Constitution guarantees that “[n]o one shall be compelled to worship, or to participate in religious rites and ceremonies.” The TCC also mentioned in its decisions that freedom to practice a religion is not absolute and can be subject to restrictions. In its judgment of 21 October 1971, the TCC held that one of the fundamental elements of the principle of secularism adopted by the Constitution of the Turkish Republic is that: in such parts of religion as go beyond the spiritual life of the individual and as relate to actions and behaviours which affect societal life, restrictions may be imposed, and the abuse

110

Convention on Human Rights, Art. 9(2); see also Eweida, para. 80. Kokkinakis v. Greece, para. 31. 112 İzzettin Doğan and Others v Turkey, para. 111. 113 Alexandridis v. Greece, para. 32. 114 Turkish Constitution, Art. 24(2). 111

30

2

The Historical Development and Definition of a Secular State

and exploitation of religion may be prohibited, with a view to protecting public order, public safety and the public interest.115

2.2.2

Separation of State and Religion: Conditions

The second essential aspect of the principle of secularism is the separation of state and religion. This requirement is fulfilled in case of the following conditions: (1) the absence of an official religion; (2) the state’s duty of neutrality vis-à-vis all religions; (3) the separation of state institutions and religious institutions; (4) the separation of legal rules and religious rules.

2.2.2.1

The Absence of an Official Religion

As a matter of historical negotiations, many constitutions involve provisions concerning state-religion relationships. A constitution may regulate state-religion relationships within the following possible frameworks:

2.2.2.1.1

State Religion

A constitution may expressly declare an official religion. A constitution which explicitly endorses a state religion cannot be considered as secular as it does not separate religion and state affairs. Even if such a constitution recognizes and protects the freedom of religion and beliefs of members of other religions, it nevertheless cannot be considered secular. A typical example of this framework is the Basic Law (Kanūn-ı Esāsī) of the Ottoman Empire of 23 December 1876. Article 11 of the Basic Law of 1876 declared that “[t]he religion of the Ottoman state is the religion of Islam.”116 Another example is Israel’s Constitution. Article 1 of the Basic Law of 1992 openly defines the State of Israel “as a Jewish . . . state.”117 The United Kingdom also is not a secular state as it still preserves the state church. In the United Kingdom, the Church of England and the Church of Scotland have been given the status of “established” churches.118 The head of state, the king or queen, is also the head of the Church of England.119

115

Turkish Constitutional Court decision, 21 October 1971, E. 1970/53, K. 1971/76 (cited in Boyle and Sheen 1997, pp. 389–390). 116 Röder (2012), pp. 341–352. 117 Basic Law: Human Dignity and Liberty, 17 March 1992, (Israel), Art. 1. 118 See Smith and Brazier (1989), pp. 123, 250–251. 119 See Smith and Brazier (1989), p. 137.

2.2

Requirements of the Principle of a Secular State

31

At the same time, the constitutions which endorse certain religions officially can also recognize and guarantee the free practice of other religions. For example, Article 11 of the Ottoman Basic Law of 1876 ensured “the free exercise of all faiths known in the Ottoman lands.”120

2.2.2.1.2

Prevailing Religion

A constitution may give preference to one of the religions without explicitly declaring an official religion. A constitution may also mention the name of a certain religion or denomination, contain a reference to God, or use religious expressions in the oaths of the head of state or deputies. Such a constitution also cannot be regarded as secular. Although such a state may recognize the free exercise of other religions, it nevertheless cannot be considered secular, since it links the state and religious affairs. The best example of this framework is the Greek Constitution. It begins by invoking the “Holy Trinity.”121 Article 3 of the Greek Constitution declares that the Eastern Orthodox Church of Christ is the prevailing religion and brings several other norms concerning religion.122 Thus, the Greek Constitution is not secular.

2.2.2.1.3

Cooperation Model of Separation

A constitution may recognize the Church and religious societies as a corporation under public law without declaring an official religion. This is a particular statereligion arrangement provided by the German Basic Law which allows different forms of cooperation between the state and religion without integrating religious societies into the state order. Both features of freedom of religion and state-religion separation together form the fundamental concept of the state-religion relationship in Germany. This concept is named the principle of state neutrality.123 The framework of German state-church law is anchored to the provisions of the German Constitution of 11 August 1919 (Weimarer Reichsverfassung, WRV)124 which ensures firstly the separation between the state and church (Article 137 (1) WRV) and the right to autonomy (Article 137 (3) WRV) for religious societies. Thus, connected to the church-state separation and the right to autonomy, the legal principle of neutrality can be construed from Article 4 (Freedom of faith and conscience) of the German

120

See Röder (2012), p. 342; see also Tan (2010), p. 143; Brown (2019), p. 61. Constitution of Greece, 9 June 1975. 122 Constitution of Greece, Art. 3. 123 See Huster (1998), p. 69; Schieder (2001), p. 16. 124 ‘Die Verfassung Des Deutschen Reichs (“Weimarer Reichsverfassung”) Vom 11. August 1919’. https://www.jura.uni-wuerzburg.de/fileadmin/02160100-muenkler/Verfassungstexte/Die_ Weimarer_Reichsverfassung_2017ge.pdf. 121

32

2

The Historical Development and Definition of a Secular State

Basic Law in conjunction with Article 140 (Law of religious denominations) Basic Law, Articles 136(1), 136(4) and Article 137 WRV.125 The right to freedom of religion, including internal and external aspects, has been guaranteed by Articles 4 (1) and 4(2) of the German Basic Law. This right to freedom of religion or philosophical views is reinforced by the fundamental right of equality before the law. Article 3(3) of the German Basic Law provides that “[n]o person shall be favoured or disfavoured because of . . . faith or religious . . . opinions.” This general rule is specified by Article 33(3) which stipulates that “[n]either the enjoyment of civil and political rights nor eligibility for public office nor rights acquired in the public service shall be dependent upon religious affiliation. No one may be disadvantaged by reason of adherence or non-adherence to a particular religious denomination or philosophical creed.” The second pillar of the concept of religious neutrality under German constitutional law has been framed in the Constitution in a specific way. Article 140 (Law of religious denominations) of the German Basic Law integrates Articles 136, 137, 138, 139, and 141 of the Weimar Constitution into the body of the Basic Law. These embodied provisions set up the institutional dimension of German law regarding religious communities and religion. While on one hand, these rules guarantee a separation, on the other, they form the legal basis for cooperation between state and religious communities. The basic norm provides that there shall be no state church (Article 140 of the German Basic Law and Article 137(1) WRV). It draws a basic boundary between the state and religion. Article 137(3) WRV approves the autonomy of all religious societies stipulating that they shall govern and manage their issues autonomously within the boundaries of the legislation pertaining to all. Particularly, it gives these societies the right to make appointments to their posts without the involvement of the state or civil society. While the religious societies are granted independency from the state on one hand, on the other, according to Article 140 of the German Basic Law and 137(5) WRV, they “remain corporations under public law insofar as they have enjoyed that status in the past. Other religious societies shall be granted the same status upon application, if their constitution and the number of their members give assurance of their permanency.”126 The most significant outcome of this status as public corporations is that under Article 137(6) WRV, religious societies holding this status are authorized to collect taxes based on the civil taxation list. It should be mentioned that in Germany the most significant funding source for religious societies is formed by tax receipts.127 Besides, the relevant religious societies are entitled to make use of the state and its tax administration for the purpose of collecting these taxes on their behalf.128

125

See Unruh (2015), p. 65. Cited in Korioth and Augsberg (2010), p. 324. 127 See von Campenhausen and de Wall (2006), p. 226. 128 See von Campenhausen and de Wall (2006), p. 234. 126

2.2

Requirements of the Principle of a Secular State

33

Religious societies are granted considerable competences in the public sphere under Articles 140 of the German Basic Law and 141 WRV. Accordingly, religious societies are authorized to carry out religious activities in the military, hospitals, penitentiary establishments, or other public establishments. The cooperation of the state and various religious societies in relevant fields is structured by the bilateral contracts signed between them.129 These contracts are signed concerning matters such as pastoral care in the army, the formation of theology faculties, and religious instruction in public schools.130 This distinctive legal status of religious societies can appear to be contrary to the basic principle declaring the absence of the state church. Obviously, this legal status allows religious societies to take part in public administration and therefore to turn into an essential component of the state. However, this would be a misreading of the overall concept. The concept should be perceived considering its historical context. It is the consequence of a bargain that was reached in the procedures for the WRV. Its original intent was to give the historical churches only private corporations status. As against the churches’ exceptional societal role and importance, this status was believed to be inappropriate and insulting.131

2.2.2.1.4

Lack of Provision

A constitution may also not contain any provision concerning the “state religion” or the “principle of secularism.” Although it does not expressly adopt the principle of secularism, such a constitution can be regarded as secular if it fulfills other conditions. The Turkish Constitution of 20 April 1924 (Teşkilât-ı Esasîye Kanunu)132 during the period between 1928 and 1937 can be regarded as an example of such a framework. Initially, Article 2 of the 1924 Constitution declared Islam as the state religion of the Turkish Republic. This paragraph of Article 2 was repealed by Law No. 1222 dated 10 April 1928.133 The principle of secularism was included in Article 2 by Law No. 3115 dated 5 February 1937.134 Thus, the Turkish Republic can be accepted as having been a secular state between 1928 and 1937 although its Constitution did not explicitly declare the principle of secularism in this period.

129

See von Campenhausen and de Wall (2006), p. 141. See Jeand’Heur and Korioth (2000), p. 189 et seq. 131 See Korioth (2007), p. 54. 132 Teşkilâtı Esasiye Kanunu [Law of Fundamental Organization], No. 491, 20 April 1340 [1924], Official Gazette, 24 April 1924. 133 See Özsunay (1997), p. 102; Orhan (2013), p. 36. 134 See Özsunay (1997), pp. 102–103; see also Orhan (2013), p. 36. 130

34

2

2.2.2.1.5

The Historical Development and Definition of a Secular State

The Principle of Secularism

Finally, a constitution may expressly adopt the principle of secularism in the matter of state-religion relationships. Since 1937, the Turkish constitutions have openly declared the principle of secularism. Article 2 of the 1982 Constitution explicitly defines the Republic of Turkey as a secular state. The research conducted by Servet Armağan has in detail analyzed 173 constitutions around the world in terms of statereligion relationships.135 According to this research, only 21 constitutions out of 173 world constitutions explicitly recognize the principle of secularism.136

2.2.2.2

The State’s Duty of Neutrality vis-à-vis All Religions

The principle of secularism requires the state to be neutral vis-à-vis all religions and not to promote, protect, direct, or impede any of them. Certainly, there can be several religions in the society and one of them may be more dominant than others. However, under the duty of neutrality, the state is prevented from giving priority to the majority religion. Thus, the state cannot seek for a certain religion to be adopted and learned in the society.137 Consequently, the state is not allowed to make instruction of certain religion compulsory for its citizens.138 The state’s duty of neutrality also obliges it to treat persons equally, irrespective of their religious affiliation. This principle constitutes part of the broader principle of “Equality before the law” enshrined in Article 10 of the Turkish Constitution: “[e] veryone is equal before the law without distinction as to . . . philosophical belief, religion, and sect, or any such grounds . . . State organs and administrative authorities are obliged to act in compliance with the principle of equality before the law in all their proceedings.” The TCC annulled some provisions of Law No. 3255 dated 9 January 1986 which brought larger legal protection to the members of Abrahamic religions compared to the members of other religions. The Court maintained: In a secular society religious or denominational difference cannot cause any kind of differentiation between persons. In using its power to punish, the state must not treat individuals differently based on their religious beliefs. . . It is manifest that the new regulation brought by Law No. 3255 makes distinction between Abrahamic and non-Abrahamic religions and between the members of Abrahamic and non-Abrahamic religions. . . In our country, it is not possible to justify a distinction between religions and beliefs relying on the fact that some religions and beliefs have not yet evolved into congregations. It is essential for the legislature to bring similar solutions to the similar situations. . . In this respect, the new

135

Armağan (1998). Armağan (1998), p. 733. 137 See Sabuncu (1997), p. 92; Özbudun (2003), p. 45. 138 See Sabuncu (1997), p. 92; Özbudun (2003), p. 45. 136

2.2

Requirements of the Principle of a Secular State

35

regulation envisaged by Law No. 3255 is inconsistent with the principle of equality before the law expressed in Article 10 of the Constitution.139

2.2.2.3

Separation of State and Religious Institutions

In a secular state, religious and state institutions must be separated. Separation of religious and state institutions means that “non-secular bodies shall not exercise secular power, not even by the grace of the sovereign. Vice versa, secular bodies shall not exercise ecclesiastical power (the principle of church autonomy or noninterference).”140 However, this requirement of secularism is not fulfilled in Turkey due to the existence of the Diyanet. According to Article 136 of the Constitution, the Diyanet is “within the general administration.” It directly reports to the President of the Republic.141 Religious services pertaining to the Muslim religion in Turkey have been considered a public service and the duty of management of these services has been assigned to the Diyanet. Imams and other Muslim religious leaders are subordinate to the Diyanet. Therefore, the Muslim clergy in Turkey are subject to the hierarchical control of the central government and receive their salaries from the state budget. As it is known, the hierarchical superior is authorized to appoint, register, promote, discipline, and transfer their subordinates. Moreover, the hierarchical superior can give orders and instructions, as well as send notifications and explanations to his/her subordinates. Finally, the hierarchical superior is competent to examine the works assigned to the subordinate and change or annul them as a result of an examination.142 As it is, it seems that, although in Turkey the state is not under the control of religion, religion, namely, the Sunni denominations of Islam, is completely under the control of the central administration. As outlined above, the conception of a secular state rejects both the “state is subordinate to religion” and “religion is subordinate to state” systems. In this respect, the existence of the Diyanet within the general administration is incompatible with the principle of a secular state. Therefore, the dominant view in the Turkish constitutional law literature143 which tries to reconcile the existence of the Diyanet with the principle of secularism cannot be accepted. In its judgment of 21 October 1971, the TCC decided that the formation of a group of civil servants responsible for religious services was in compliance with the

139

Turkish Constitutional Court decision, 4 November 1986, E. 1986/11, K.1986/26 (author’s own translation). 140 Sajó (2009), p. 2406. 141 Diyanet İşleri Başkanlığı’nın Kuruluşu ve Görevleri Hakkında Kanun [Law on Organization and Duties of the Presidency of Religious Affairs], No. 633, 22 June 1965, Official Gazette, 02 July 1965, No. 12038, Art. 1. 142 For the scope of the hierarchical power of the superior see Günday (1997), pp. 55–56. 143 For the scholars who defend this view see Sabuncu (1997), pp. 94–95; Soysal (1997), p. 174; Özbudun (2003), p. 46.

36

2

The Historical Development and Definition of a Secular State

constitutionally enshrined principle of secularism.144 The Constitutional Court justified this position arguing that specific characteristics of each religion cause distinctive features in the overall conception of secularism in various countries. According to the TCC, the existence of a clergy dealing with religious services in Catholicism and the universal religious leadership of the pope had a great effect on the separation of this religion from the state. However, in Islam, there was no separate class of clergy involved in the management of places of worship and religious matters. Thus, the TCC concluded that, due to the different characteristics of Islam and Christianity, the functionaries of these religions could not be given the same status. In this regard, it noted that the independence of religious functionaries from the state could be thought up only in Christian countries. The Constitutional Court concluded that the purpose of the principle of secularism was to support the development of the Turkish Republic, and it prevented the formation of religious groups seeking goals that clashed therewith. In the view of the TCC, as Islam governs not only the matters of religious belief relating to the individual conscience but also social relationships, law and state issues, absolute religious freedom and the notion of free religious organization can have fatal consequences for Turkey. This justification of the TCC for the existence of the Diyanet within the state administration has been criticized by legal scholar Kemal Gözler as it contradicts the principle of secularism.145

2.2.2.4

Separation of Legal Rules and Religious Rules

In a secular state, the source of laws is “the consent of the governed.” In a secular system, the legislature must not be obliged to comply with religious rules. The state cannot be characterized as secular if its laws are required to observe religious rules. For example, according to Article 2 of the Constitution of Iran, “[t]he Islamic Republic is a system based on belief in: 1. The One God (as stated in the phrase ‘There is no deity except God’), His exclusive sovereignty and right to legislate, and the necessity of compliance to His command; 2. Divine revelation as the primary source of law. . . 4. Divine justice, in creation as well as legislation...”146 Article 20 of the Iranian Constitution states: “[a]ll citizens of the country, men and women, enjoy equal protection of the law as well as all human, political, economic, social and cultural rights in conformity with Islamic criteria” (emphasis added).147 According to the Ottoman Basic Law of 1876, the Chamber of Notables was obliged to examine the legislative bills sent to it by the Chamber of Deputies in terms

144

Turkish Constitutional Court decision, 21 October 1971, E. 1970/53, K. 1971/76. Gözler (2000), pp. 147–148. 146 Constitution of the Islamic Republic of Iran, 24 October 1979, Art. 2. The official English version of the Constitution can be found at the website of the Parliament of Iran, https://en.parliran. ir/eng/en/Constitution. 147 Constitution of the Islamic Republic of Iran Art. 20. 145

2.3

Conclusion

37

of their compatibility with religious matters (Article 64).148 The 1982 Constitution, however, does not involve any norm requiring the compatibility of legal rules with religious rules. In this sense, the 1982 Constitution provides for a secular legal system. Nevertheless, the question remains whether in a secular state legal rules can be influenced by the religious rules. In other words, whether a secular state can consider certain religious thoughts or religious necessities in fulfilling its regulatory power. Certainly, religion can influence the decision-making of the secular state through the popular will. Both in the Turkish legal system and in other secular legal systems there have always been legal rules based on religious motives. For example, the motive for setting up of the days of rest to Saturdays and Sundays is a completely religious one. According to Article 2 of the Law on National Holidays and General Holidays, the Ramadan Feast and the Sacrifice Feast are the official holidays for the state agencies and institutions in Turkey.149 There is no doubt that these rules are imposed by the legislature based on “the consent of the governed.” However, the legislature is influenced by religious rules in imposing these legal rules. In this sense, there cannot be an absolute secular legal order. The only requirement of secularism in this regard is the lack of duty of the state to observe the compatibility of its laws with the religious principles. Therefore, if in the lawmaking process, the legislature is influenced by the religious rules of its own free will, that would not constitute inconsistency with the principle of secularism.

2.3

Conclusion

The evolution of the secular state in the West has passed through several historical phases; the idea of a secular state was born in the Renaissance, supported by the Reformation, developed in the Enlightenment, and eventually was accommodated in the American and French constitutions. By tracking the historical evolution of the principle we concluded that in the West, secularism was reached as a result of centuries of political strife between the Church and kings, and as a solution formula for civil wars caused by confessional divisions. In that regard, freedom of religion is an essential element of a secular order guaranteeing peace in the society and can be achieved by keeping the state away from intervening in religious issues. Thus, the freedom of thought, conscience and religion guaranteed under the international documents such as the UDHR and the ECHR is an indispensable element of the democratic orders and must be protected at all costs to prevent any return to the period of religious divisions and clashes.

148

Röder (2012), p. 347 Ulusal Bayram ve Genel Tatiller Hakkında Kanun [Law on National Holidays and General Holidays], No. 2429, 17 March 1981, Official Gazette, 19 March 1981, No. 17284, Art. 2. 149

38

2

The Historical Development and Definition of a Secular State

Chapter 2 has precisely outlined the fundamental features of the principle of a secular state. However, an overview of different countries’ practices has shown that the implementation of this principle varies from country to country and there is not a uniform approach. Historical path dependence, in particular the existence or lack of an ancien régime grounded on the partnership between dominant religion and monarchy, strongly affects the approach of the states taken towards visibility of religion in public. Moreover, characteristics of majority religion and other social and political conditions play a role in shaping the mode of implementation of the principle. Nevertheless, freedom of religion and state-religion separation constitute the essential elements of the principle, and other factors cannot be relied on as justification to deny these elements in practice; this would go against the purpose of the historical emergence of this principle. Due to its relevance for this research, Chap. 2 focused on the frequently raised argument claiming that state-religion separation is not possible in Muslim countries as the doctrine of Islam rejects it in contrast to Christianity. This argument is not accepted as it has been determined that the achievement of religion-state separation in the West is not related to the doctrinal features of Christianity. Conversely, it is the result of centuries of strife between the church and temporal rulers over political power and the settlement of the conflict in favor of the latter. The biggest difficulty for Muslim countries to establish or maintain the secular order is rather the fact that Islam had always been intertwined with the central government and no well-ordered religious institution such as the papacy and a clergy was developed to manage the religion independently. This factor forced the Muslim-majority secular countries such as Turkey and Indonesia to establish a special bureaucratic body responsible for the management of Islam, a move that sharply conflicts with the requirement of secularism.150 Despite its centuries-long journey, the issue of separation of religion and state matters has not been resolved and the problem continues in various forms. The requirements of the principle still face various impediments in practice and are not fulfilled by the states in an ideal and absolute form. Due to the changing dynamics of religion and increasing references to religion in the current political debates, the importance of the question of state-religion separation is more relevant than ever today.

References Armağan S (1998) Dünya Devletleri Anayasalarında Lâiklik Prensibinin Düzenlenişi [Regulation of the Principle of Secularism in the World Constitutions]. Yeni Türkiye 4:732–741 Arslan A (1995) İslam, Demokrasi, Türkiye [Islam, democracy, Turkey]. LDT, Ankara

150 For the comparison of state bodies responsible for the management of Islam in Turkey and Indonesia see Bruinessen (2018).

References

39

Bardakoglu A (2006) Religion and society: new perspectives from Turkey. Publications of Presidency of Religious Affairs, Ankara Bates MS (1945) Religious liberty: an inquiry. International Missionary Council, New York Bergounioux A (1995) La Laïcité, Valeur de La République [The laicism, value of the Republic]. Pouvoirs 75:17–26 Boyle K, Sheen J (1997) Freedom of religion and belief: a world report. Routledge, London Bristow W (2017) Enlightenment. In: Zalta EN (ed) The Stanford encyclopedia of philosophy. Metaphysics Research Lab, Stanford University Brown NJ (2019) Citizenship, religious rights, and state identity. In: Bhuta N (ed) Freedom of religion, secularism, and human rights. OUP, Oxford Bruinessen M van (2018) The Governance of Islam in Two Secular Polities: Turkey’s Diyanet and Indonesia’sMinistry of Religious Affairs. European Journal of Turkish Studies 27:1-26 Cantor NF (1958) Church, Kingship, and Lay Investiture in England, 1089–1135. Princeton University Press, Princeton Chelini-Pont B, Ferchiche N (2015) Religion and the Secular State: French Report. In: Religion and the Secular State: National Reports. Publicaciones facultad derecho Universidad Complutense Cholakov P (2015) The development of John Locke’s ideas on toleration. Balkan J Philos 7:187– 194. https://doi.org/10.5840/bjp20157223 Clanchet S (2013) La préservation du régime concordataire en Alsace Moselle par les Sages de la rue Montpensier [The Preservation of the Concordat Regime in Alsace-Moselle by the Sages of the Montpensier Street]. https://www.eurojuris.fr/articles/la-preservation-du-regimeconcordataire-en-alsace-moselle-par-les-sages-de-la-rue-montpensier-1847.htm Council of Europe/European Court of Human Rights (2020) Guide on Article 9 of the Convention – Freedom of thought, conscience and religion Creppell I (1996) Locke on toleration: the transformation of constraint. Polit Theory 24:200–240 Daver B (1969) Siyaset Bilimine Giriş [Introduction to political science]. Doğan Yayınevi, Ankara de la Morandière LJ (1927) The legal system of Alsace-Lorraine. J Comp Leg Int Law 9:100–110 Durand-Prinborgne C (2004) La Laïcité [The Laicisim], 2nd edn. Dalloz, Paris Ehler SZ, Morrall JB (1954) Church and state through the centuries: a collection of historic documents with commentaries. Newman Press, Westminster Erdoğan M (1995) Sekülerizm, Laiklik ve Din [Secularism, laicism, and the religion]. J Islam Res 8: 179–194 France: “Blasphemy” law ended: 2016! In: End Blasphemy Laws. https://end-blasphemy-laws.org/ countries/europe/france-abolished-its-blasphemy-law-in-2016/ Glenn HP (1974) The local law of Alsace-Lorraine: a half century of survival. Int Comp Law Q 23: 769–790 Gozaydin I, Ozturk AE (2014) The management of religion in Turkey. Turkey Institute Gözler K (2000) Türk Anayasa Hukuku [Turkish Constitutional Law]. Ekin, Bursa Green SK (2014) The Separation of Church and State in the United States. http://americanhistory. oxfordre.com/view/10.1093/acrefore/9780199329175.001.0001/acrefore-9780199329175-e-29 Guerlac O (1908) The separation of church and state in France. Polit Sci Q 23:259–296. https://doi. org/10.2307/2141325 Günday M (1997) İdare Hukuku [Administrative law]. İmaj Yayınları, Ankara Gunn TJ (2013) Secularism, the secular, and secularization. In: Contreras J, Martinez de Codes RM (eds) Trends of secularism in a pluralistic world. Iberoamericana Vervuert, pp 59–106 Gunn TJ (2019) The “principle of secularism” and the European Court of Human Rights: a shell game. In: Temperman J, Gunn TJ, Evans MD (eds) The European Court of Human Rights and the freedom of religion or belief. Brill Nijhoff, pp 465–573 Huntington SP (1996) The clash of civilizations and the remaking of world order. Simon & Schuster, New-York Huster S (1998) Die religiös-weltanschauliche Neutralität des Staates. Das Kreuz in der Schule aus liberaler Sicht. In: Brugger W, Huster S (eds) Der Streit um das Kreuz in der Schule. Nomos, Baden-Baden

40

2

The Historical Development and Definition of a Secular State

Jeand’Heur B, Korioth S (2000) Grundzüge des Staatskirchenrechts. Boorberg Jefferson’s Letter to the Danbury Baptists. In: Library of Congress. https://www.loc.gov/loc/lcib/ 9806/danpre.html Korioth S (2007) Die Entwicklung des Staatskirchenrechts in Deutschland seit der Reformation. In: Heinig HM, Walter C (eds) Staatskirchenrecht oder Religionsverfassungsrecht? Mohr Siebeck, Tübingen Korioth S, Augsberg I (2010) Religion and the secular state in Germany. https://classic.iclrs.org/ content/blurb/files/Germany.pdf Kuru AT (2009) Secularism and state policies toward religion: the United States, France, and Turkey. Cambridge University Press, Cambridge Kuru A (2019a) İslam’da Din-Devlet Ayrımı Mümkün mü? [Is State-Religion Separation Possible in Islam?]. In: Kıtalararası. https://kitalararasi.com/2019/10/26/islamda-din-devlet-ayrimimumkun-muahmet-kuru/ Kuru A (2019b) Is religion-state separation possible in Islam? http://www.cambridgeblog.org/201 9/06/is-religion-state-separation-possible-in-islam/ Lewis B (1996) Islam and liberal democracy: a historical overview. J Democr 7:52–63 Locke J. A Letter Concerning Toleration. https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/locke/ toleration.pdf Maritain J (1951) Man and the state. University of Chicago Press, Chicago Marshall P (2017) Henry VIII’s savage reformation. In: HistoryExtra. https://www.historyextra. com/period/tudor/henry-viiis-savage-reformation/ Medieval Sourcebook: The Concordat of Worms 1122. https://sourcebooks.fordham.edu/source/ worms1.asp Mert N (1994) Laiklik Tartışmasına Kavramsal Bir Bakış [A conceptual look at the secularism debate]. Bağlam, İstanbul Messner F. L’enseignement religieux en Alsace-Moselle: l’émergence d’un nouveau modèle? [Religious Education in Alsace-Moselle: The Emergence of a New Model?] https://books. openedition.org/pus/9305 Northcott C (1948) Religious liberty. SCM Press, London Norton BJ (2016) A question of balance: a study of legal equality and state neutrality in the United States, France, and the Netherlands. Lexington Books, Lanham Noss JB (1949) Man’s religions. Macmillan, New York Orhan Ö (2013) The paradox of Turkish secularism. Turk J Polit 4:29–49 Özbudun E (2003) Anayasa Hukuku [Constitutional law]. Anadolu Üniversitesi, Eskişehir Özenç B (2005) Avrupa İnsan Hakları Sözleşmesi ve İnanç Özgürlüğü [The European Convention on Human Rights and freedom of belief]. Kitap Yayınevi, İstanbul Ozouf M (1982) L’Ecole, l’Eglise et la République: 1871–1914 [The School, The Church and the Republic: 1871–1914]. Cana, Paris Özsunay E (1997) Religious Fundamentalism: Turkish Experience. Nacionalismo en Europa – Nacionalismo en Galicia, La religion como elemento impulsar de la ideologia nacionalista, Simposio internacional celebrado en: Pazo de Marinan A Coruna, 4–6 Septiembre 1997. https:// ruc.udc.es/dspace/bitstream/handle/2183/9708/CC_37_art_6.pdf?sequence=1&isAllowed=y Pettegree A (2011) The English reformation. http://www.bbc.co.uk/history/british/tudors/english_ reformation_01.shtml Pfeffer L (1953) Church, state, and freedom. Beacon Press, Boston Prill T (2005) Martin Luther, the two kingdoms, and the church. Evangel 23(1):17–21 Reinhardt AH (1904) The De monarchia of Dante Alighieri. Houghton, Mifflin and Company, Boston Robertson R (1987) Church-state relations in comparative perspective. In: Robbins T, Robertson R (eds) Church-state relations: tensions and transitions. Transaction Books, New York, pp 153–160 Röder T (2012) The Basic Law [Kanūn-ı Esāsī] of the Ottoman Empire of 23 December 1876. In: Grote R, Röder T (eds) Constitutionalism in Islamic countries. New York, OUP, pp 341–359

References

41

Rosenthal EIJ (1962) Political thought in Medieval Islam: an introductory outline. CUP Archive, Cambridge Rubenstein J (2011) Armies of heaven: the first crusade and the quest for apocalypse. Basic Books, New York Rubin J (2017) Rulers, religion, and riches: why the west got rich and the middle east did not. CUP, New-York Sabuncu Y (1997) Anayasaya Giriş [Introduction to the constitution], 5th edn. İmaj, Ankara Sajó A (2009) Constitutionalism and secularism: the need for public reason. Cardozo Law Rev 30: 2401–2429 Samuel D (2010) “In the Name of Almighty God” Gregory VII and the Investiture Controversy. Student Theses, Papers and Projects (History). p 94. https://digitalcommons.wou.edu/cgi/ viewcontent.cgi?article=1085&context=his Schieder R (2001) Wieviel Religion verträgt Deutschland? Suhrkamp, Frankfurt Smith DE (2015) India as a secular state. Princeton University Press, New Jersey Smith SAD, Brazier R (1989) Constitutional and administrative law. Penguin Books, London Soysal M (1997) 100 Soruda Anayasanın Anlamı [The Meaning of the Constitution in 100 Questions], 11th edn. Gerçek Yayınevi, İstanbul Sullivan J (1897) Marsiglio of Padua and William of Ockam I. Am Hist Rev 2:409–426. https://doi. org/10.2307/1833397 Tan KYL (2010) Secularism and the constitution: striking the right balance. In: Heng MSH, Liew TC (eds) State and secularism: perspectives from Asia. World Scientific, Hackensack The Investiture Controversy. https://history.hanover.edu/courses/excerpts/211inv.html Tierney B (1970) The middle ages: sources of medieval history, vol 1. McGraw-Hill, New York Trim DJB (2010) The reformation and wars of religion. http://libertymagazine.org/article/thereformation-and-wars-of-religion Ullmann W (1972) A short history of the papacy in the middle ages. Methuen, London Unruh P (2015) Religionsverfassungsrecht, 3rd edn. Nomos, Baden-Baden Vaughn N. Martin Luther on Secular Authority: The Powers of Princes versus the Obligations of Subjects. https://history.hanover.edu/hhr/18/HHR2018-vaughn.pdf Venice Commission (2010) Blasphemy, insult and hatred: finding answers in a democratic society. Science and technique of democracy, No 47. https://www.venice.coe.int/webforms/ documents/?pdf=cdl-std(2010)047-e von Campenhausen A, de Wall H (2006) Staatskirchenrecht, 4th edn. C. H. Beck, Munich Wilken R (1993) Gregory VII and the politics of the spirit. First Thing Month J Relig Public Life 89: 26–32 Yurdusev AN (1996) Laiklik ve Modern Uluslararası Sistem [Secularism and the Modern International System]. Liberal Düşünce 1:77–84

Chapter 3

The Constitutional Development and Regulation of Turkish Secularism

3.1

Historical Background of the Adoption of the Principle of Secularism in Turkey

The Ottoman Empire was ruled by a semi-theocratic and complex legal regime. Although sharia, Islamic law constituted the main part of the Ottoman legal system, this existed in parallel with the secular decrees (kanun) adopted by the sultans on administrative, criminal, and fiscal matters.1 Recognizing the multi-religious structure of the society, the Ottoman administration identified its subjects based on their religious affiliation. Under this system of classification, namely the millet (nation) system, each religious group was recognized as a distinct nation.2 All millets set up and sustained their “own institutions to care for the functions not carried out by the Ruling Class” such as “education, religion, justice, and social security.”3 “Each religious community maintained its own courts, judges, and legal principles for the use of coreligionists” within the framework of the millet system.4 Greek Orthodox Christians, Jews, and Armenians exercised their rights granted by the recognized millet status.5 This system operated until the nineteenth century when the Greeks, Serbs, and Bulgarians with nationalistic enthusiasm started to rebel for the purpose of establishing their own respective states.6 As science, technology, and industry progressed in Europe, the Ottoman Empire slowly lost its military dominance. Beginning in the mid-nineteenth century, the Ottoman rulers attempted to stop the decline by a concerted endeavor at

1

See Toprak (2005), p. 28. See Berkes (1998), pp. 11–12. 3 Shaw and Shaw (1977), p. 151. 4 Quataert (2000), p. 175. 5 See Kucukcan (2003), pp. 483–484. 6 See Kucukcan (2003), p. 484. 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Masmaliyeva, Turkish Secularism, European Union and its Neighbours in a Globalized World 12, https://doi.org/10.1007/978-3-031-46011-1_3

43

44

3

The Constitutional Development and Regulation of Turkish Secularism

Westernization. Large-size reforms were implemented in education, law, and administration which lead to a constitutional movement at the end of the nineteenth century. The constitutional groundwork for the secularization process was laid by a new period of reforms called the Tanzimat introduced by Sultan Abdulmejid (1839–1861). The heart of Sultan Abdulmejid’s reforms constituted the Reform Edict (Islahat Fermani) which was proclaimed in 1856.7 The edict established equal citizenship and granted all subjects equal rights, thereby erasing all differences between Muslims and non-Muslims. The edict caused the change of most common cultural practices through reforming the judicial procedures, central administration, and the military, and through presenting secular laws and education to the Turkish nation.8 As these reforms touched upon the legal system, the educational institutions, political culture, and the Islamic feature of the government structure, nearly all of them somehow affected the relationship of religion and state. As mentioned above, the legal system of the Ottoman period was partly grounded on sharia. Although the basics of sharia were codified and preserved, as a crucial condition of the Westernization and modernization project the state presented secular legislation.9 Within the framework of this reform project, the French Commercial Code and the Maritime Commerce Code were approved by the government, in 1850 and 1863 respectively. New secular courts named Nizamiye were established by the government in 1869.10 The establishment of Nizamiye courts reduced the jurisdiction of sharia courts which ruled absolutely based on sharia. Modern institutions of learning were opened besides the traditional religious schools (medrese).11 As a culmination of these reforms, the first constitution, the Basic Law of the Ottoman Empire was adopted on 23 December 1876 which was the next attempt for a more liberal system.12 Nevertheless, these reforms did not pursue the aim of removing the religious fundamentals of the imperial state. It seems as if on one hand, Western laws were incorporated into the Ottoman legal system and secular institutions were adopted, while on the other hand the foundations of the sharia and sharia-based institutions were protected. This brought about dualism in every field of social life and weakened society’s unity. The dichotomy between Western and Eastern institutions prevailing during the periods of Tanzimat and Constitutionalism (Meşrutiyet) was later removed only by Atatürk’s Reforms.13 During the last period of the Ottoman Empire, between 1913 and 1918, Şeyhülislam (chief religious authority of the empire) was excluded from the cabinet, 7

See Berkes (1998), p. 152. See Kucukcan (2003), p. 478. 9 See Berkes (1998), pp. 160–169. 10 See Zürcher (1993), p. 64. 11 See Sayar (1978), p. 182. 12 See Heyd (1970), p. 367. 13 See Özbudun (1992), p. 430. 8

3.1

Historical Background of the Adoption of the Principle of Secularism in Turkey

45

and the control over the sharia courts was given to a secular Ministry of Justice, in 1916 and 1917 respectively. Also, traditional religious schools were subordinated to the Ministry of Education, which modernized the program of study. During the final years of the Ottoman Empire, women were empowered. Primary education became obligatory for girls (1913) and several university programs were launched for women (1914). However, these reforms were not sufficient to prevent the collapse of the Empire. Since the late nineteenth century, the Ottoman Empire was recognized as the “sick man of Europe” whose lands were subject to division by external powers.14 The Ottoman Empire collapsed towards the end of World War I. Defeat and the accompanying occupation of the Ottoman Turkey at the end of World War I drove nationalists to begin national fighting and the War of Independence (1919–1922) against Western expansion. Following a victorious national struggle over the occupation, and a short civil war between the Ottoman dynasty and the nationalists, the Republic of Turkey was declared on 29 October 1923. The founder of the new Republic, Mustafa Kemal Atatürk, manifested on that date that there existed “a sufficient social base for establishing a secular republic.”15 The first Constitution of the Turkish nation-state adopted on 20 January 1921 declared: “Sovereignty is vested in the nation without condition” (Article 1).16 This was a fundamental departure from the philosophical and legal basics of the 400-yearold Ottoman Empire. After the final victory of the War of Independence, the Sultanate was officially abolished by the Grand National Assembly of Turkey (hereafter the GNAT, the Assembly, or the Parliament). Decisions No. 307 and No. 308 were adopted on 30 October and 1–2 November 1922.17 These decisions declared the end of the Ottoman Empire’s legal existence. A major number of revolutionary measures taken during the establishment of the Republic under the views of Atatürk were related to the setting up of a secular state order. Although at the beginning Islam remained the state religion, the thorough secularization stage of the state had irrevocably started. The establishment of the secular order was necessary to modernize the newly founded Turkish state and to transform its philosophical and legal foundations preventing any threat of regression toward the imperial governance model based on religious identification. It was designed to create the foundation for the republican state enabling it to practice to a great extent Western legal values and norms. In the words of legal scholar Yüzbaşıoğlu, the aim of “the principle of laicism and kemalist principles18 and reforms which constitute the means of its application within the society, is to 14

See Toprak (2005), p. 29. Ahmad (1993), p. 8. 16 The 1921 Constitution (Selections) (2003). http://genckaya.bilkent.edu.tr/1921C.html 17 See Özbudun (2003), p. 6; Özbudun (2011), pp. 1–17. 18 Different phrases used in Turkish legal language like “Kemalist Principles” and “Principles and Reforms of Atatürk” indicate the main founding measures taken in the time of formation of the modern Turkish state under the ideas of Atatürk. Besides secularism, these principles include national sovereignty, republicanism, gender equality, rationalism, modernism, nationalism etc. These notions have been embodied in revolutionary laws which will be shortly reviewed further. 15

46

3

The Constitutional Development and Regulation of Turkish Secularism

implement in Turkey in a very short amount of time, the processes of Renaissance and Enlightenment of the West and to achieve the level of contemporary civilization thanks to the new form of the laic society. Thus, the principle of laicism sets out for Turkey a social dimension which is more important than its legal dimension which constitutes its infrastructure.”19 The government led by Atatürk took revolutionary measures to secularize the state order. One of the most important measures was the abolition of the caliphate20 by Law No. 431 adopted by the GNAT on 3 March 1924. This was a radical measure that enabled the state to launch revolutionary reforms against the principles of sharia and to build a secular state order.21 It also eliminated the possibility for anti-secular forces to unite around the position of caliph with time and to endanger not only secularism but also a young republic.22 Two other laws adopted on the same day constituted the next important step in the formation of a secular order. Law No. 429 abolished the Ministry of Religious Affairs and Pious Foundations which regulated religious affairs and controlled religious foundations. It was replaced by the Diyanet supporting worship matters. Moreover, the existence of parallel schools representing different worldviews was considered inappropriate for the purposes of the nation-building process.23 Therefore, Law No. 430 on the Unification of Education (Tevhid-i Tedrisat Kanunu) put an end to the bifurcation in the education system by abolishing religious schools and declaring the secular schools as the only establishments of education.24 With this law, all establishments of education were brought under the control of the Ministry of National Education (hereafter the MNE). Further secularization reforms included symbolic measures such as the adoption of the Western style of dress. Law No. 671 on the Wearing of Hats adopted on 25 November 1925 banned the wearing of the fez, traditional Ottoman clothing, and obliged men to wear the Western hat instead. The most important secularization reform in the field of Islamic attributes was the replacement of Arabic letters with the Latin alphabet in 1928.25 Law No. 2596 of 3 December 1934 on the Prohibition of the Wearing of Certain Garments prohibited the wearing of outfits representing a religious status or office except at religious ceremonies or in places of worship. Moreover, the steps such as the transition to the Gregorian calendar (1925),26 altering the weekly rest day from Friday to Sunday (1935), and the inclusion of

19

Yüzbaşıoğlu (1993), p. 170 (cited in Uzun 2010, p. 391). The Caliph was the spiritual and temporal ruler of all Muslims. The Ottoman rulers held this authority since 1517 until it was abolished in 1924. 21 See Özek (1962), p. 33. 22 See Özbudun (1992), p. 432. 23 See Arı (2002), p. 182. 24 See Genç and Kaynar (1998), p. 19. 25 See Karpat (1970), p. 535. 26 See Davison (1998), p. 150. 20

3.1

Historical Background of the Adoption of the Principle of Secularism in Turkey

47

Western music in school programs (1935)27 were taken to further consolidate the secularization process. Another secularization measure included the prohibition of Sufi orders and their actions by the enactment of Law No. 677 of 30 November 1925 on the Closure of Dervish Monasteries and Tombs, the Abolition of the Office of Keeper of Tombs, and the Abolition and Prohibition of Certain Titles. Adoption of this measure was accelerated by the Sheikh Said rebellion that took place against the abolition of the caliphate in 1925, in the southeastern part of Turkey.28 During the court proceedings initiated after the Sheikh Said rebellion, it was ascertained that the dervish monasteries constituted a great threat to the modern republic and some of them were found to have been involved the in preparation of the rebellion.29 At the end of the trial, on 28 June 1925, the Eastern Independence Tribunal decided to prohibit all the dervish monasteries within the area of its jurisdiction based on their detrimental activities.30 Aftewards, the Ankara Independence Tribunal proposed that the government ban dervish monasteries all over the country.31 It was within this context that dervish monasteries and the use of certain mystical titles were banned. The incorporation of Western codes was considered an essential step for removing Islam’s functional impact on the society by reducing sharia law and thereby further secularization of the judicial system. In this regard, the adoption of the Swiss Civil Code on 17 February 1926 was one of the most important secularization reforms.32 In this way, sharia law, which regulated Muslims’ private matters such as inheritance, marriage, and divorce was replaced by secular rules. This was followed by the adoption of other basic European laws which resulted in the complete elimination of sharia law from the legal system.33 Most of these revolutionary statutes, called the “Reform Laws,” are preserved by Article 174 of the 1982 Constitution and cannot be rendered unconstitutional. The process shaped by the implementation of these reforms which “aim to raise Turkish society above the level of contemporary civilization and to safeguard the secular character of the Republic”34 is also referred to as the “Turkish Revolution.” There was a clear contradiction between these secularization reforms and Article 2 of the 1924 Constitution declaring Islam as the state religion. This contradiction was removed by the constitutional amendment of 10 April 1928 which lifted the provision declaring Islam as an official religion. The principle of secularism was

27

See Toprak (1981), p. 45. See Yanardağ (2017), pp. 152–159. 29 See Turan (2005), p. 178. 30 See Aybars (1998), p. 271. 31 See Yanardağ (2017), p. 155. 32 See Oguz (2005), pp. 380–381. 33 See Liebesny (1975), pp. 78–79. 34 Constitution of the Republic of Turkey, 7 November 1982, Art. 174 [hereafter Turkish Constitution]. The official English version of the Constitution can be found at the website of the GNAT, https://global.tbmm.gov.tr/docs/constitution_en_2019.pdf. 28

48

3

The Constitutional Development and Regulation of Turkish Secularism

inserted into the 1931 program of the Republican People’s Party (Cumhuriyet Halk Partisi, CHP) as one of the party’s founding principles. Thus, the 1931 program recognized the principles of statism, secularism, and reformism as the party’s core tenets in addition to the doctrines of republicanism, nationalism, and populism.35 Finally, on 5 February 1937, the principle of secularism was included in Article 2 of the 1924 Constitution as a basic feature of the state. Since then, this provision has been maintained both by the 1961 Constitution and the present 1982 Constitution.36

3.2

Normative Standing of the Principle of Secularism in the 1982 Constitution

The text of the Constitution refers to the principle of secularism (Turkish: laiklik) ten times. According to Article 2 of the 1982 Constitution, the Republic of Turkey is “a democratic, secular and social state governed by rule of law, within the notions 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.” Moreover, Article 10 of the Turkish Constitution declares that “[e]veryone is equal before the law without distinction as to language, race, color, sex, political opinion, philosophical belief, religion and sect, or any such grounds.”37 It further endorses the state’s duty “to ensure that this equality exists in practice” and requires all state authorities to “act in compliance with the principle of equality before the law in all their proceedings.”38 These articles can be considered constitutional guarantees for the state’s religious neutrality. At the same time, the 1982 Constitution adopts the principle of secularism, and envisages different levels of constitutional protection in case of activities that might impair this principle. These guarantees have been particularly set up on the grounds that the state is directly identified with the principle. Therefore, the implementation of the Turkish concept of secularism requires the regulation of the visibility of religion in the public sphere. Thus, while Turkish secularism guarantees the state’s religious neutrality, it also invokes various mechanisms that are particularly contemplated to control the external dimensions of religion to guard the principle. The normative basis for these protection mechanisms is provided by the Constitution in three different levels of the regulatory regime: The Unamendable Characteristic Level, the Limitation of Fundamental Rights and Freedoms Level, and the Prohibition of Abuse of Fundamental Rights and Freedoms Level.

35

See Cagaptay (2006), p. 44. See Mumcu (1999), p. 525. 37 Turkish Constitution Art. 10(1). 38 Turkish Constitution Arts. 10(2) and 10(5). 36

3.2

Normative Standing of the Principle of Secularism in the 1982 Constitution

3.2.1

49

The Unamendable Characteristic Level

Undoubtedly, the highest standard of regulatory protection applicable to the principle is the general regime of unamendability envisaged primarily for the principle of secularism and secondarily expanded to cover the concrete laws that enforce its implementation in practice. Firstly, the secular character of the state is defined as unamendable by Article 4 of the Constitution which regulates Irrevocable Provisions: “[t]he provision of Article 1 regarding the form of the State being a Republic, the characteristics of the Republic in Article 2 . . . shall not be amended, nor shall their amendment be proposed.” Accordingly, the constitutional text is insulated from the attempts aiming to alter the constitutional principle of secularism enshrined in Article 2 through direct amendment. This general unamendability regime is further extended to protect the “Reform Laws” enumerated by Article 174, which embody material applications of the principle of secularism. The Article stipulates: No provision of the Constitution shall be construed or interpreted as rendering unconstitutional the Reform Laws indicated below, which aim to raise Turkish society above the level of contemporary civilization and to safeguard the secular character of the Republic, and whose provisions were in force on the date of the adoption of the Constitution by referendum.39

Article 174 of the Constitution enumerates the following revolutionary principles and laws which are protected by the self-preservation regime: 1. Law on the Unification of the Educational System, 2. Law on the Wearing of Hats, 3. Law on the Closure of Dervish Monasteries and Tombs, the Abolition of the Office of Keeper of Tombs, and the Abolition and Prohibition of Certain Titles, 4. The principle of civil marriage according to which the marriage act shall be concluded in the presence of the competent official, adopted with the Turkish Civil Code (1926), 5. Law on the Adoption of International Numerals, 6. Law on the Adoption and Application of the Turkish Alphabet, 7. Law on the Abolition of Titles and Appellations such as Efendi, Bey or Pasha, 8. Law on the Prohibition of the Wearing of Certain Garments. It is possible to argue that the norms that are protected by Articles 4 and 174 can still be modified indirectly, without making any direct amendment to the constitutional text of the articles. This is a valid argument from a normative standpoint. Precisely against this possibility, the Constitutional Court, through case-law interpretation, has developed practical protection towards any such implicit initiative. On the basis of reasoning of unamendability, the Court designed the safeguard for indirect modifications by way of affording the principle of secularism practically a hierarchical

39

Turkish Constitution Art. 174.

50

3

The Constitutional Development and Regulation of Turkish Secularism

superiority over many other principles.40 This point will be explained in Chap. 4, in light of the Court’s headscarf decisions.

3.2.2

The Limitation of Fundamental Rights and Freedoms Level

The Constitution structures a protection mechanism by bringing direct restriction provisions to relevant fundamental rights and freedoms provided therein. For instance, while Article 24 of the Constitution guarantees the Freedom of Religion and Conscience, it also formulates restrictions on the exercise of this right justified by the protection of the principle of secularism enshrined in Article 14 of the Constitution. According to Article 24: Everyone has the freedom of conscience, religious belief and conviction. Acts of worship, religious rites and ceremonies shall be conducted freely, as long as they do not violate the provisions of Article 14. ... 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 interest or influence, or for even partially basing the fundamental, social, economic, political, and legal order of the State on religious tenets.41

As it seems, Article 14 (“Prohibition of Abuse of Fundamental Rights and Freedoms”) and the prohibition of exploitation of religion (Article 24(5)) are determined as justification for the limitation of the fundamental freedom of religion. A comparable restriction has been put on the Right and Duty of Education regulated by Article 42 which declares that “[n]o one shall be deprived of the right of education,” and at the same time adds that the provision of education “shall be conducted along the lines of the principles and reforms of Atatürk, based on contemporary scientific and educational principles, under the supervision and control of the State.”42 Under any circumstances, Article 42 provides that the exercise of this right “does not relieve the individual from loyalty to the Constitution.”43 The right to form and join political parties foreseen by Article 68 of the Constitution can be shown as another such example. After recognizing political parties as “indispensable elements of democratic political life,” Article 68 clearly states, “[t]he statutes and programs, as well as the activities of political parties shall not be contrary to . . . the principles of the democratic and secular republic . . .”44 The

40

See Uzun (2010), p. 400. Turkish Constitution Art. 24. 42 Turkish Constitution Arts. 42(1) and 42(3). 43 Turkish Constitution Art. 42(4). 44 Turkish Constitution Arts. 68(2) and 68(4). 41

3.2

Normative Standing of the Principle of Secularism in the 1982 Constitution

51

prohibition of political parties as a mechanism protecting the principle of secularism will be thoroughly examined in Chap. 5. Likewise, other rights and freedoms enshrined in the Constitution which are in part relative to the exercise of religious freedom also involve specific limitations designed analogously. These rights and freedoms are Article 20 “Privacy of private life,” Article 21 “Inviolability of the domicile,” Article 22 “Freedom of communication,” Article 23 “Freedom of residence and movement,” Article 25 “Freedom of thought and opinion,” Article 26 “Freedom of expression and dissemination of thought,” Article 28 “Freedom of the press,” Article 33 “Freedom of association,” and Article 34 “Right to hold meetings and demonstration marches.”45

3.2.3

The Prohibition of Abuse of Fundamental Rights and Freedoms Level

The Constitution provides for the normative basis to deprive anti-secular activities of protection. This normative basis can be found in the Preamble and Article 14 of the Constitution. According to Paragraph 5 of the Preamble, “no protection shall be accorded to an activity contrary to . . . the nationalism, principles, reforms and civilizationism of Atatürk and that sacred religious feelings shall absolutely not be involved in state affairs and politics as required by the principle of secularism.” This provision of the Preamble, which constitutes “an integral part of the Constitution” according to Article 176 of the Constitution, has been extensively used by the Turkish constitutional judges in interpreting the principle under a teleological method. This general principle prescribed by the Preamble is further concretized by Article 14(1) which provides that “[n]one of the rights and freedoms embodied in the Constitution shall be exercised in the form of activities aiming to violate the indivisible integrity of the State with its territory and nation, and to endanger the existence of the democratic and secular order of the Republic based on human rights.” Thus, the principle of secularism can be invoked as a ground for refusing to protect activities contrary to it, based on Article 14, read in light of the Preamble. Interestingly, this scheme has not only been relied on by the TCC but also has been adopted by the ECtHR in the cases of Refah Partisi (the Welfare Party) and Others v. Turkey and Leyla Şahin v. Turkey. The approach of the ECtHR taken in these cases will be examined respectively in Chaps. 5 and 7.

45

See Uzun (2010), p. 398.

52

3

3.3 3.3.1

The Constitutional Development and Regulation of Turkish Secularism

The Elaboration of the Principle of Secularism by the Turkish Constitutional Court The Distinctiveness of Turkish Secularism

The principle of secularism has been the key dynamic of Turkey’s transition from a theocratic empire to a democratic republic. In this context, it is also recognized as the foundation of basic democratic values. This fundamental position together with contextual particularities has caused Turkish secularism to differ from its original Western source and acquire its own sui generis conception. The TCC has adopted a rigid interpretation of the principle. In response to the claims of differentiation from its original Western source, the TCC has explained the inevitability of “distinctiveness of Turkish secularism” arguing that: Secularism is not only a philosophical and ideological notion, but a principle that is applied. On that account, the understanding of secularism is affected by the religious, political, and social conditions of the country, where it is implemented. When Turkey dismantled its theocratic regime following the War of Independence and set up through revolutionary reforms the democratic republic in a Muslim-majority society, our Constitution construed the meaning of secularism partially differently from that of the Western world.46

According to the Court, secularism was adopted by the founding intellectuals of the Republic as a shield against a world vision that might hinder any effort for the progress of the nation and its rise to the high level of contemporary civilization.47 Accordingly, its implementation carries a higher significance for Turkey in comparison to certain Western countries which do not appear to be exposed to any actual danger of fundamentalist religious groups, jeopardizing eventually the political order of the state. The difference has been further elaborated by the Court referring to specific features of majority religions. According to the Court, the different characteristics of Islam and Christianity produced different cases and consequences in Turkey and Western states.48 It cannot be expected that countries with distinct religions and religious perceptions can adopt the practice of secularism on the same scope and level.49 Furthermore, the understanding of secularism in Western states has also varied even though they accept the same religion.50

46

Turkish Constitutional Court decision, 4 November 1986, E. 1986/11, K.1986/26 (author’s own translation). 47 Turkish Constitutional Court decision, 4 November 1986, E. 1986/11, K.1986/26. 48 Turkish Constitutional Court decision, 16 January 1998, E. 1997/1, K. 1998/1. 49 Turkish Constitutional Court decision, 16 January 1998, E. 1997/1, K. 1998/1. 50 Turkish Constitutional Court decision, 16 January 1998, E. 1997/1, K. 1998/1.

3.4

Conclusion

3.3.2

53

The Essential Characteristics of Turkish Secularism

The 1982 Constitution emphasizes the principle systematically and sets up multilevel mechanisms to protect it. Based on this well-established legal regime, the TCC has decided to adopt a rigid interpretation and strict application of the rule. Under the effect of the importance afforded to the principle, the Court expressed the views that recognition of the state’s supervisory and control powers in religious matters cannot be regarded as an illegitimate limitation to the freedom of religion and conscience and to the requirements of the democratic social order.51 In this respect, in its judgment of 21 October 1971, the TCC described in detail the core features of the principle of secularism enshrined in the Turkish Constitution as follows: 1. Religion is not to be effective and dominant in state affairs. 2. In such parts of religion as relate to the spiritual life of the individual, a constitutional guarantee recognizes unlimited freedom, without any discrimination. 3. In such parts of religion as go beyond the spiritual life of the individual and as relate to actions and behaviours which affect societal life, restrictions may be imposed, and the abuse and exploitation of religion may be prohibited, with a view to protecting public order, public safety and the public interest. 4. As the guardian of public order and public rights, the state may be given a power of control and supervision with respect to religious rights and freedoms.52

The final element of this formulation especially manifestly establishes the room for action allowed to the state for controlling religion and for responding to the religious needs of the society.53 This component, together with the fundamental importance afforded to the principle under the Court’s teleological approach, enabled it to justify an extension of the scope of its judicial supervision over the acts of the legislature. The next chapter will illustrate how the Court formed the ban on the Islamic headscarf in higher educational institutions and limited the legislature’s action on this issue through the interpretation of the constitutional principle of secularism based on this legal framework.

3.4

Conclusion

This chapter explained how contextual particularities caused Turkish secularism to differ from its original source of French laïcité and acquire its own sui generis conception. While Turkish secularism is the prerequisite for the establishment of the Turkish nation-state and democracy, European secularism itself is an outcome of the

51

Turkish Constitutional Court decision, 16 January 1998, E. 1997/1, K. 1998/1. Turkish Constitutional Court decision, 21 October 1971, E. 1970/53, K. 1971/76 (cited in Boyle and Sheen 1997, pp. 389–390). 53 Turkish Constitutional Court decision, 21 October 1971, E. 1970/53, K. 1971/76. 52

54

3

The Constitutional Development and Regulation of Turkish Secularism

establishment of the nation-state and in this regard, it is understandable that there is a distinction between these conceptions. Due to the missionary role of secularism in Turkey’s transition from a theocratic imperial order to a republican state order and its fundamental significance for Turkish democracy on that ground, the principle has a strong presence and guarantees within the Turkish constitutional system. Section B analyzed how the principle is invoked under three different levels of regulatory protection: (1) as an unamendable characteristic of the Republic (Article 4 “Irrevocable provisions,” Article 174 “Preservation of Reform Laws”); (2) as a justification for limitation of fundamental rights and freedoms (Article 24 “Freedom of religion and conscience,” Article 42 “Right and duty of education,” Articles 68–69 “Provisions relating to political parties”); (3) as a ground for refusing to protect acts contrary to secularism (Paragraph 5 of the Preamble, Article 14 “Prohibition of abuse of fundamental rights and freedoms”). The last section studied the elaboration of the principle by the TCC. The TCC adopted a strict interpretation of the principle. In response to criticism of an interventionist approach to Turkish secularism, the TCC justified the “distinctiveness of Turkish secularism” by objective factors, i.e., specific features of the majority religion that it encounters and the threatening position of the religious movements. The TCC gave the principle a fundamental importance with respect to the democratic republican order under a teleological interpretation. Based on this rationale, when spelling out the essential elements of Turkish secularism, it openly accorded to the state the power of control of religious issues.

References Ahmad F (1993) The making of modern Turkey. Routledge, London Arı A (2002) Tevhid-i Tedrisat ve Laik Eğitim [The law of unification of education and secular education]. Gazi Eğitim Fakültesi Dergisi 22:181–192 Aybars E (1998) İstiklal Mahkemeleri [Independence Tribunals]. Milliyet, İstanbul Berkes N (1998) The development of secularism in Turkey. Routledge, New York Boyle K, Sheen J (1997) Freedom of religion and belief: a world report. Routledge, London Cagaptay S (2006) Islam, secularism and nationalism in modern Turkey: who is a Turk? Routledge, London Davison A (1998) Secularism and revivalism in Turkey: a hermeneutic reconsideration. Yale University Press, New Haven Genç R, Kaynar R (1998) Türkiye’yi lâikleştiren yasalar [The laws secularizing Turkey]. Atatürk Kültür, Dil ve Tarih Yüksek Kurumu, Ankara Heyd U (1970) The later Ottoman empire in Rumelia and Anatolia. In: Holt PM, Lambton AKS, Lewis B (eds) The Cambridge history of Islam: the central Islamic lands. CUP, Cambridge, pp 354–373 Karpat KH (1970) Modern Turkey. In: Holt PM, Lambton AKS, Lewis B (eds) The Cambridge history of Islam: the central Islamic lands. CUP, Cambridge, pp 527–565 Kucukcan T (2003) State, Islam and religious liberty in modern Turkey: reconfiguration of religion in the public sphere. BYU Law Rev 2003:475–506. https://doi.org/10.2139/ssrn.2498563

References

55

Liebesny HJ (1975) The law of the Near and Middle East: readings, cases, and materials. State University of New York, Albany Mumcu A (1999) Cumhuriyetin İlk Dönemlerinde Laiklik [Secularism in the early periods of the Republic]. In: Atatürk Düşüncesinde Din ve Laiklik [Secularism and religion in the thought of Atatürk]. Atatürk Araştırma Merkezi Yayınları, Ankara Oguz A (2005) The role of comparative law in the development of Turkish Civil Law. Pace Int Law Rev 17:373–386 Özbudun E (1992) Atatürk ve Lâiklik [Ataturk and Laicism]. Atatürk Araştırma Merkezi Dergisi 8: 429–438 Özbudun E (2003) Anayasa Hukuku [Constitutional law]. Anadolu Üniversitesi, Eskişehir Özbudun E (2011) The Constitutional System of Turkey: 1876 to the present. Palgrave Macmillan, New York Özek Ç (1962) Türkiye’de Laiklik [Laicism in Turkey]. Baha Matbaası, İstanbul Quataert D (2000) The Ottoman Empire, 1700–1922. Cambridge University Press, Cambridge Sayar NS (1978) Türkiye İmparatorluk Dönemi, Siyasi, Askeri, İdari ve Mali Olayları [Turkey’s imperial period, political, military, administrative and financial events], 2nd edn. İ.İ.T.İ.A. Nihad Sayar Yayın ve Yardım V, Istanbul Shaw SJ, Shaw EK (1977) History of the Ottoman empire and modern Turkey: Volume 2, Reform, revolution, and republic: the rise of modern Turkey 1808–1975. Cambridge University Press, Cambridge The 1921 Constitution (Selections) (2003). http://genckaya.bilkent.edu.tr/1921C.html Toprak B (1981) Islam and political development in Turkey. Brill, Leiden Toprak B (2005) Secularism and Islam: the building of modern Turkey. Macalester Int 15:27–43 Turan Ş (2005) Türk Devrim Tarihi: Yeni Türkiye’nin Oluşumu (1923–1938) [The history of Turkish revolution: the emergence of a new Turkey (1923–1938)], 2nd edn. Bilgi Yayınevi, Ankara Uzun MC (2010) The protection of laicism in Turkey and the Turkish Constitutional Court: the example of the prohibition on the use of the Islamic veil in higher education. Penn State Int Law Rev 28:383–426 Yanardağ A (2017) Tarikat, Tekke, Zaviye ve Türbelerin Kaldırımasına dair Devrim Kanunu ve Uygulamaları [The reform law on the abolition of Sufi orders, dervish monasteries and tombs and its implementation]. In: International Conference on History and Culture, Gaziantep, 19–22 August Yüzbaşıoğlu N (1993) Türk Anayasa Yargısında Anayasallık Bloku [The Constitutional Block in TurkishConstitutional Jurisdiction]. İstanbul Üniversitesi Basımevi, İstanbul Zürcher EJ (1993) Turkey: a modern history. I.B. Tauris & Co Ltd, London

Chapter 4

The TCC’s Approach to Secularism in Freedom of Religion Cases

4.1 4.1.1

The TCC’s Approach Before the 2010 Constitutional Amendments Establishment of the Turkish Constitutional Court

Court-based constitutional review as a means of supervising the activity of the legislature and executive generally is regarded as one of the most important achievements in constitutionalism. For example, in Italy and Germany, constitutional courts were established following World War II, in response to the offences of the governments that ruled prior to the war in these states.1 In Turkey, checking the constitutionality of the decisions of the democratically elected parliament was considered necessary after the abuses of the ruling Democratic Party (Demokrat Parti, DP) in the 1950s.2 After moving to the multi-party regime, the Democratic Party replaced the CHP by winning the first election in 1950.3 Although the reasons for the victory of the DP are much debated, it should be noted that the DP had a liberal stance towards religion and responded to the sensible demands of the society, including its religious necessities.4 In this early multi-party parliamentary election, the political parties were offered support by religious communities.5 The impact of religious groupings supporting the DP was apparent immediately after the victory of DP, and religion reappeared more expressly in the public sphere. For instance, religious courses were expanded to all schools by the DP government giving room for parental choices.6 1

Arslan (2002), p. 12. Arslan (2002), p. 12. 3 Howard (2001), p. 119. 4 Turan (1991), p. 45. 5 Landau (1981), pp. 374–75. 6 Ayhan (1999), pp. 125–35. 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Masmaliyeva, Turkish Secularism, European Union and its Neighbours in a Globalized World 12, https://doi.org/10.1007/978-3-031-46011-1_4

57

58

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

Seven vocational religious schools (imam-hatip schools) were established in 1951 offering education for religious servants.7 Moreover, the language of call to prayer was shifted from Turkish to the Arabic language and religious journals and periodicals appeared in the public area. Towards the end of its 10-year rule, the Democratic Party was accused by the military of misuse of state power, crackdown on political opposition, and destruction of the Republic’s fundamental tenets,8 including secularism. Thus, escalating accusations of the DP resulted in a military coup on 27 May 1960. Following the coup d’état, the new Constitution was adopted on 9 July 1961. The main goal in drafting the new Constitution was to address the constitutional gaps which facilitated the oppression of the DP. In the opinion of the military leaders, the cause giving rise to these abuses was the concentration of all political and administrative authority in a single-chamber legislature.9 Therefore, the new Constitution set up several countermajoritarian bodies and granted them broad supervisory powers over political bodies.10 Consequently, these measures put an end to the supremacy of the one-chamber parliament by sharing the exercise of state power between elected bodies and counter-majoritarian bodies.11 In founding these establishments, the military aimed to protect the basic principles of the state, mainly secularism and indivisibility of the nation, which, in the military’s view, had prevented the threat of regression towards a theocratic governance model.12 One of the counter-majoritarian establishments set up by the new Constitution was the Turkish Constitutional Court. The Court was explicitly entitled by the Constitution to check the constitutionality of the laws and by-laws adopted by the GNAT (Article 147, Constitution of 1961). According to the military leaders, an independent judicial authority was vital to preclude oppressive government policies and misuse of authority by elected institutions and to preserve the basic values of the state, particularly secularism and indivisibility of the nation, greatly defended by the military.13

4.1.2

The Principle of Secularism as a Basis for the General Ban on Wearing the Headscarf in Higher Education

The first law governing clothing was the Law on the Wearing of Hats adopted on 28 November 1925 which banned men from wearing the fez and obligated them to 7

Aksit (1991), pp. 146–47. Arslan (2002), p. 12. 9 Varol (2013), p. 737. 10 Belge (2006), p. 663. 11 Shambayati (2008), pp. 100–101. 12 Varol (2011), p. 1284. 13 Belge (2006), pp. 662–663. 8

4.1

The TCC’s Approach Before the 2010 Constitutional Amendments

59

wear European hats instead. Later, on 3 December 1934, another prohibition was introduced by Law No. 2596 on wearing an outfit representing a religious status or office except at religious ceremonies or in places of worship. Since the establishment of the Republic, imposition of revolutionary measures of this kind had brought about a socio-political tension between the state and religious movements. For instance, on 23 December 1930, Dervish Mehmed of the Naqshbandi religious order and his followers gathered people in Menemen, a town near Izmir, calling for the reestablishment of sharia.14 Chaos erupted after police officers reached the area to subdue the rebellion. The commander of the officers, Lieutenant Mustafa Fehmi Kubilay was attacked and beheaded by the gathering, his head was hanged on a flagstick and exhibited around the town.15 This revolt, also referred to as the “Menemen incident” along with other similar ones, impelled the government to tighten its policies on the theme of religion in pursuit of preventing any risk of regression towards the old theocratic order.16 Such incidents were also considered by the Turkish judiciary in elaboration of the concept of Turkish secularism. Public controversies over the wearing of the headscarf in institutions of higher education emerged in the 1970s.17 As rural inhabitants began to populate metropolitan areas during this period, marking an extensive urbanization process in the country, the visibility of a traditional religious lifestyle also increased in everyday living as a result of these developments.18 The increase of veiled students in higher education triggered social worries among the established secular circles of society, mainly concerning the politicization of religion challenging the secular regime of the state.19 Beginning in the 1980s, university authorities began to impose prohibitions on wearing the headscarf at universities.20 The first legal act on clothing in establishments of higher education was a series of rules adopted by the cabinet on 22 July 1981 forbidding female students and members of staff to wear headscarves at universities. On 20 December 1982, the Council of Higher Education (Yüksek Öğretim Kurulu, YÖK), newly founded by the 1982 Constitution, adopted a circular prohibiting the wearing of headscarves in university lecture rooms.21 Afterward, the Council of State (Danıştay)22 endorsed the lawfulness of the regulations stating that “wearing the headscarf is in the process of becoming the symbol of a vision that is

14

Aysal (2009), p. 602. Aysal (2009), pp. 603–604. 16 Kadioğlu (1996), pp. 187–188. 17 See Guindi (2005), pp. 70–72. 18 See Keskin (2002), p. 249. 19 See Keskin (2002), p. 249. 20 See Hale and Özbudun (2010), p. 71. 21 See Keskin (2002), p. 249. 22 The highest administrative court in Turkey. 15

60

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

contrary to the freedoms of women and the fundamental principles of the Republic.”23 On 24 December 1987, the Council of Higher Education renewed the blanket ban on the wearing of the headscarf in institutions of higher education based on the Council of State’s jurisprudence.24 Subsequently, in reply to these restrictive practices of universities and the position of the Council of State upholding them, the ruling party at that time, Motherland Party (Anavatan Partisi, ANAP) introduced Law No. 3511 which was passed by parliament on 10 December 1988.25 The law envisaged the addition of Article 16 to Law No. 2547 on Higher Education, which indicated: “[m]odern dress or appearance shall be compulsory in the rooms and corridors of institutions of higher education, preparatory schools, laboratories, clinics, and multidisciplinary clinics. A veil or headscarf covering the neck and hair may be worn out of religious conviction.”26 The President of the Republic at that time promptly brought the legislation before the TCC. Deciding on 7 March 1989, the TCC repealed the abovementioned addition by ten votes to one, finding it in breach of the principles of secularism (Article 2), equality (Article 10), and freedom of religion (Article 24) enshrined in the Constitution.27 Moreover, the Court determined that the contested legislation could go against the principle of gender equality implicitly, among others, embraced by revolutionary and republican values reflected in the Preamble and Article 174 of the Constitution. In identifying the value of the principle of secularism, the TCC took a teleological approach and gave the principle a fundamental importance: Secularism is the civil organiser of political, social and cultural life, based on national sovereignty, democracy, freedom and science. Secularism is the principle which offers the individual the possibility to affirm his or her own personality through freedom of thought and which, by the distinction it makes between politics and religious beliefs, renders freedom of conscience and religion effective.28

The TCC held that freedom of religion and conscience cannot be equalized with the freedom to wear any specific religious clothing. Rather, it guarantees predominantly the freedom to choose whether or not to observe a religion. The Court clarified that, when the manifestation of religion exceeds the borders of the private life, it can be restrained on the grounds of public order to protect the principle of secularism. In this context, it explicitly stated that the dress matter was restricted by Atatürk’s principles and the Turkish Revolution and is not a matter of religious freedom.

23

Council of State (8. Chamber), 13 December 1984, E.1984/636, K.1984/1574 (cited in Leyla Şahin v Turkey [GC], App no 44774/98 (ECtHR, 10 November 2005) para. 37) [hereafter Şahin Grand Chamber judgment]. 24 See Keskin (2002), pp. 245–257. 25 See Hale and Özbudun (2010), p. 71. 26 Cited in Şahin, Grand Chamber judgment, para. 38. 27 Turkish Constitutional Court decision, 7 March 1989, E. 1989/1, K. 1989/12. 28 Cited in Şahin, Grand Chamber judgment, para 39.

4.1

The TCC’s Approach Before the 2010 Constitutional Amendments

61

In the Court’s view, the choice of dress was free, since due regard had to be paid also to the religious and social values and traditions of society. On the other hand, once a certain dress model was imposed on citizens for religious reasons, the religion concerned was introduced and perceived as a value system that was in contradiction to that of modern society. According to the Court, sacred religious feelings could absolutely not be involved in legal regulations in a secular state. The public sphere could not be regulated by law referring to religious necessities or thoughts; regulations of this kind could only be drawn up according to individual and societal needs based on scientific data. In the Court’s view, the challenged rule violated the principle of secularism by grounding a regulation in the field of public law on religious tenets. Additionally, in a Muslim-majority country, like Turkey, introducing the wearing of the headscarf as an imperative religious obligation would lead to discrimination among non-believers, non-practicing Muslims, and practicing Muslims by virtue of outfit, with anyone who refused to wear the headscarf certainly being considered as non-religious or anti-religion. Moreover, the TCC maintained that students had to be allowed to study and work in collaboration in an environment of peace, tolerance, and mutual support without being disrupted by indications of religious backgrounds. It determined that, no matter if the headscarf was obligatory in Islam, giving legal permission to wear this kind of religious clothing in universities was contrary to the principle of neutral state education, as it could produce dispute among students of different religions or beliefs.29 After the first unsuccessful attempt, the parliament enacted Law No. 3670 on 25 October 1990, once more trying to lift the headscarf ban. This law envisaged the inclusion of Additional Article 17 in the Law on Higher Education, which indicated: “[c]hoice of dress shall be free in institutions of higher education, provided that it does not contravene the laws in force.”30 The then main opposition party contested the Law before the Constitutional Court, claiming that it intended to nullify the Court’s decision of 1989 on the same matter and that it breached the principle of secularism. In its judgment of 9 April 1991, the Court decided that the provision was consistent with the Constitution and rejected the main opposition party’s petition to annul it.31 However, in its judgment, the TCC also maintained that: . . .the expression “laws in force” refers first and foremost to the Constitution . . . In institutions of higher education, it is contrary to the principles of secularism and equality for the neck and hair to be covered with a veil or headscarf on grounds of religious conviction. In these circumstances, the freedom of dress which the impugned provision permits in institutions of higher education “does not concern dress of a religious nature or the act of covering one’s neck and hair with a veil and headscarf” . . . The freedom afforded by this provision [transitional section 17] is conditional on its not being contrary to “the laws in force.” The judgment [of 7 March 1989] of the Constitutional Court establishes that covering one’s neck and hair with the headscarf is first and foremost contrary to the Constitution.

29

Turkish Constitutional Court decision, 7 March 1989, E. 1989/1, K. 1989/12. Cited in Şahin, Grand Chamber judgment, para. 40. 31 Turkish Constitutional Court decision, 9 April 1991, E.1990/36, K.1991/8. 30

62

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

Consequently, the condition set out in the aforementioned section requiring [choice of] dress not to contravene the laws in force removes from the scope of freedom of dress the act of “covering one’s neck and hair with the headscarf”. . .32

In sum, the Court determined that the contested provision was not in breach of the Constitution; yet it maintained simultaneously that it had to be read in conformity with the Court’s previous judgments. As a result, although the TCC did not invalidate the additional article, it decided nevertheless that wearing the headscarf in higher education institutions was still against the law. This practice of interpretation applied by the TCC is named “interpretation in conformity with the constitution”, which has often been used also by the constitutional courts of Germany, Italy, and France.33 The rationale behind the Court’s application of the “interpretation in conformity with the Constitution” method can be explained as follows: a definite annulment of a law can provide the legislative organ with larger space for political tactics, in that to enact a new law.34 However, announcing only one certain interpretation of the impugned law compatible with the constitution often involves particular instructions and can well amount to legislative action by the Constitutional Court.35 Thus, while not annulling the law, the Constitutional Court nullified its main purpose through interpretation. More importantly, the Court disabled the legislative maneuvering of the parliament in the headscarf matter by making any future proposal subject to the particular interpretation of existing legislation. Consequently, while there was no statutory ban on wearing the headscarf, the higher education institutions went ahead to forbid veiled students from entering their establishments referring to the TCC’s two aforementioned judgments.

4.1.3

Judicial Review of Constitutional Amendments Indirectly Modifying the Unamendable Articles

4.1.3.1

Extensive Interpretation of the Unamendable Articles as a Restriction on Legislative Power

Making radical amendments to the relevant articles of the Constitution was regarded by the parliament as a possible solution to this impasse. On 9 February 2008, the GNAT adopted Law No. 5735 to amend Articles 10 (“Equality before the law”) and 42 (“Right and duty of education”) of the Constitution. The amendment added the expression “in the use of all kinds of public services” after the expression “in all their proceedings” in the text of Article 10. The change in Article 42 concerning the right

Cited in Şahin, Grand Chamber judgment, para. 41. Özbudun (2006), p. 222. 34 Landfried (1988), p. 154. 35 Landfried (1988), p. 154. 32 33

4.1

The TCC’s Approach Before the 2010 Constitutional Amendments

63

to education involved the addition of a new paragraph: “No one shall be deprived of his/her right to higher education for any reason not explicitly specified by law. The limits on the exercise of this right shall be determined by law”.36 The law entered into force on 23 February 2008. Subsequently, members of the main opposition party and other deputies brought the law before the TCC alleging that it violated the unamendable articles of the Constitution and must be annulled. The general reasons of the disputed law expressly provided that the legislation’s aim was to ensure equality among individuals in the exercise of the right to higher education and to put an end to any deprivation of this right based on religious affiliation, dress, and other grounds.37 So when the law was brought before the Constitutional Court, the main issue debated was the Court’s jurisdictional reach vis-à-vis constitutional amendments. Under Article 148(2) of the Constitution, the Constitutional Court is empowered to review constitutional amendments exclusively in respect of their form. Different from its predecessor, the 1982 Constitution expressly limits the Court’s competence of procedural review of constitutional amendments to the examination of “whether the requisite majorities were obtained for the proposal and in the ballot, and whether the prohibition on debates under expedited procedure was observed.”38 Accordingly, the Court could only review the amendments with regard to procedural requirements and by no means assess their compatibility with the Constitution in substantive terms. Therefore, when the TCC repealed the impugned constitutional amendment finding it incompatible with the Constitution, it was much criticized by scholars for completely usurping the constituent power labeling it as “juristocracy.”39 It should be mentioned that long before the headscarf case of 2008, the TCC had already construed a well-established extensive interpretation of its jurisdiction concerning verifying constitutional amendments. Article 4 of the Turkish Constitution provides that the initial three provisions of the Constitution are irrevocable and their amendment cannot be proposed. Since its establishment, the TCC had always taken an attitude under which it interpreted its own jurisdictional reach broadly in case of constitutional amendments which could affect the unamendable articles. In the TCC’s opinion, it could scrutinize the amendments touching the legal structure presented by the unamendable provisions framework referred to in Article 4 of the Constitution as the legislative body could not be considered subject to laws. Under the 1961 Constitution, the Court stipulated the rationale that the rule which restricts the Court’s jurisdiction to “form,” goes beyond the revision of formal

36

Cited in Özbudun and Gençkaya (2009), p. 107. Roznai and Yolcu (2012), p. 183. 38 Constitution of the Republic of Turkey, 7 November 1982, 148(2) [hereafter Turkish Constitution]. The official English version of the Constitution can be found at the website of the GNAT, https://global.tbmm.gov.tr/docs/constitution_en_2019.pdf. 39 See Özbudun and Gençkaya (2009), p. 109; Roznai and Yolcu (2012), pp. 197–198; Arslan (2009), p. 7. 37

64

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

requirements and also involves the need for a substantive review of any constitutional amendment proposal to determine whether it can be proposed foremost concerning the unamendable characteristics of the republic.40 Accordingly, in the headscarf decision of 2008, the Court reinstated the extensive reading of its jurisdiction to verify constitutional amendments adopted under the 1961 Constitution. According to the Court, the provision of Article 148 of the Constitution which restricts the scope of procedural examination of the constitutional amendments to scrutiny of “whether the requisite majorities were obtained for the proposal” involves an assessment of the validity of the proposal as well.41 Based on this reasoning, the TCC maintained in the related case that the first three articles of the Constitution represent the fundamental qualities of a political regime decided by the constitutive power, and the details of these qualities are concretized in the other constitutional provisions. For this reason, the validity of the constitutional amendments adopted by the legislature is subject to the constitutional restrictions determined by the original constitutive power.42 Thus, although Article 148 expressly restricted the review of constitutional amendments to the well-defined formal regularities, referring to its previous jurisprudence,43 the TCC persisted that the review of formal regularity also involves the republican form of the state foreseen by the unamendable characteristics regime and that dominant political force in the legislative body does not entitle this body to alter the basic state order determined by the original constitutive power.44 Therefore, in the case of examining an amendment that might modify the principle of secularism, it would assess whether the substance of the legislative act could cause an inconsistent condition with the principles envisaged by the first three articles of the Constitution.45

4.1.3.2

Substantive Review of the “Headscarf Amendment” with Respect to the Principle of Secularism

After finding the ground for judicial examination, the TCC began to evaluate the substantive compatibility of the amendment with the principle of secularism. Firstly, the TCC maintained that it inferred from the GNAT’s discussions that the proposal was harshly challenged in the parliament by the deputies. It admitted that the 40

Turkish Constitutional Court decision, 16 June 1970, E. 1970/1, K. 1970/31. Turkish Constitutional Court decision, 5 June 2008, E. 2008/16, K. 2008/116. 42 Turkish Constitutional Court decision, 5 June 2008, E. 2008/16, K. 2008/116. 43 Turkish Constitutional Court decision, 4 April 1971, E. 1970/41, K. 1971/37; Turkish Constitutional Court decision, 15 April 1975, E. 1973/19, K. 1975/87; Turkish Constitutional Court decision, 23 March 1976, E. 1975/167, K. 1976/19; Turkish Constitutional Court decision, 12 October 1976, E. 1976/38, K. 1976/46; Turkish Constitutional Court decision, 27 January 1977, E. 1976/43, K. 1977/4. 44 Turkish Constitutional Court decision, 5 June 2008, E. 2008/16, K. 2008/116. 45 Judges Haşim Kiliç and Sacit Adali dissented. 41

4.1

The TCC’s Approach Before the 2010 Constitutional Amendments

65

legislation could bring a solution to some students’ trouble who were deprived of their right to higher education because of the headscarf prohibition in higher education institutions. However, the Court focused on the method of adoption of the legislation, underlining that it did not resolve society’s fears, but instead embraced a defiant or impositional approach excluding a democratic consensus and jeopardizing the main democratic values.46 The Court stated that Article 1 of Law No. 5735 amending Article 10 of the Constitution obliged the public bodies and administrative authorities to observe the principle of equality in the provision “of all kinds of public services” for the citizens. This obligation would apply to higher education which could be characterized as public services. Thus, it would entitle citizens to require the exercise of public services conforming to the principle of equality from public bodies and administrative authorities. According to the TCC, “from the point of view of dress it means that the public bodies and administrative authorities cannot impose any kind of restriction on the exercise of the right to higher education by individuals.”47 According to the Court, Article 2 of Law No. 5735 amending Article 42 of the Constitution prevented the deprivation of the right to higher education on the ground of religious outfit, unless expressly banned by law.48 In this regard, the TCC held that, although wearing the religious dress was the exercise of an individual’s freedom, de-regulating this freedom carried the possibility of transforming such religious symbols into a means of compulsion in classrooms and laboratories where people of different lifestyles, beliefs, and political thoughts were required to collaborate. If this risk is realized, in that case, the religious symbol threatens public order by giving rise to social pressure on others and perturbing the sustainability of higher education, which would infringe on the person’s enjoyment of the right to higher education on an equal basis.49 Article 2 of Law No. 5735 empowered the legislative body to determine limitations on the matter through law. However, the Constitutional Court noted that there was no mechanism obliging the legislative body to adopt such a legal precaution. Thus, in the Court’s view, the adoption of legal measures protecting other persons’ freedoms and regulating the public order was in the legislative body’s discretion. Considering that a substantial majority of the population is affiliated with a certain religion, it would seem unlikely that this discretionary power might be used for restraining religious freedoms. According to the TCC, when the Constitution is amended, it is the state’s duty to guarantee the protection of the fundamental rights and freedoms of the individuals who do not belong to a dominant religion and this

46

Turkish Constitutional Court decision, 5 June 2008, E. 2008/16, K. 2008/116. Turkish Constitutional Court decision, 5 June 2008, E. 2008/16, K. 2008/116 (author’s own translation). 48 Turkish Constitutional Court decision, 5 June 2008, E. 2008/16, K. 2008/116. 49 Turkish Constitutional Court decision, 5 June 2008, E. 2008/16, K. 2008/116. 47

66

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

guarantee must be stipulated explicitly in the constitution, without being left to the discretion of the legislature.50 The TCC referred to Article 24(5) of the Constitution which prohibits the exploitation of religion “for the purpose of personal or political interest or influence, or for even partially basing the fundamental, social, economic, political, and legal order of the State on religious tenets.” It maintained that the impugned legislation disregards the principal commitments reflecting the purpose and essence of Article 24(5) of the 1982 Constitution. The TCC recalled its judgment of 7 March 1989, which found a measure permitting the wearing of a headscarf in universities unconstitutional in terms of the exploitation of religion, public order, and other persons’ freedoms and rights. To support its view, the Constitutional Court referred to the jurisprudence of the ECtHR in its judgment. The TCC cited the Strasbourg Court’s judgment of Dahlab v. Switzerland, which endorsed the broad margin of appreciation for the states in the field of regulation of the wearing of religious dress and symbols. The Constitutional Court mentioned the view of the European Court which stated in this case that the headscarf could impair the neutrality of public schools; therefore, imposition of the ban on headscarves in schools is a proportional and democratic precaution pursuing the protection of the rights of others, the public order, and the public security. The TCC also cited the European Court judgment of Refah Partisi and Others v. Turkey delivered on 31 July 2001, which determined that the choice of wearing the headscarf can be restrained if it goes against the necessity of protecting the public order, security, and the rights of others, and that arrangements that prohibit causing a compulsion on students who do not comply with the dominant religion’s obligations or who hold different faith conform to the Convention.51 Observing the judgments of the Constitutional Court and the European Court, the TCC established that the changes to Articles 10 and 42 of the Constitution gave rise to the exploitation of religion for political interests, violated the rights and freedoms of others, and disrupted the public order, and were manifestly in contradiction with the principle of secularism. As the proposed provisions indirectly shifted the unamendable principle of secularism, they were found by the Court to be inconsistent with Articles 2, 4, and 148(2) of the Constitution and, accordingly, were invalidated.

4.1.4

Comment

This section did not have the purpose of discussing the legitimacy of the headscarf ban at universities, its relationship with the protection of secularism in Turkey, and the pro arguments presented by the Constitutional Court. These issues will be

50 51

Turkish Constitutional Court decision, 5 June 2008, E. 2008/16, K. 2008/116. Turkish Constitutional Court decision, 5 June 2008, E. 2008/16, K. 2008/116.

4.1

The TCC’s Approach Before the 2010 Constitutional Amendments

67

examined in Chap. 7, in light of the ECtHR’s judgment of Leyla Şahin which relied primarily on the arguments of the TCC in confirming the necessity of the headscarf ban. The importance of these decisions should be kept in mind considering that, generally, there is a growing concern in matters regarding secularism in contemporary countries,52 and particularly, the question of headscarf prohibitions is of great relevance in many European countries.53 This section’s primary purpose has been to represent the importance given to the principle of secularism by the TCC based on the Turkish constitutional framework by demonstrating the legal debate encompassing the contentious matter of the wearing of the headscarf at universities. However, the legitimacy of the approach taken by the TCC in the cases concerning wearing the headscarf in higher education can still be discussed at this stage from two perspectives. Firstly, it is undeniable that extensive interpretation of Article 148, together with the indirect application of the unamendable provisions to the entire body of the Constitution has allowed the TCC to enjoy larger and occasionally unlimited supervision over the legislative body. This point intrinsically involves risks for the separation of powers. According to Article 6 of the Constitution, “[t]he Turkish Nation shall exercise its sovereignty through the authorized organs, as prescribed by the principles set forth in the Constitution” and “[n]o person or organ shall exercise any state authority that does not emanate from the Constitution.”54 In this regard, an effort made by one authority to intervene in the other authority’s domain will manifestly breach the limitations foreseen by the separation of powers. Therefore, considering that all authorities tend to enlarge their power as far as possible, the delicate balance between them should be protected under any circumstances. Furthermore, undoubtedly, in a democratic order, the wearing of religious clothing by an adult person must be viewed within the limits of the exercise of the fundamental freedom of religion. Religious expression in itself cannot be perceived as a hypothetical danger to the secular nature of the state. Especially, when the issue is considered from the perspective of students, it cannot be considered in conformity with the Constitution that one can be deprived of exercising the right to higher education and the right to manifest one’s religion simultaneously. However, it is also clear that in legal disputes, the conclusion must be reached by the judicial body in result of assessments of the specific facts of the case. Consequently, whether or not a person has exceeded the limitations of rights and freedoms and, as a result, violated the rights of others and disturbed the public order will be deduced from the information provided by the particular facts and conditions of each case. If that is 52

See, e.g., Bhargava (2006); Sandberg and Doe (2007); Sandberg (2008); Sajó (2008); Rosenfeld (2009); Zucca (2009); Zucca (2012); Nammour (2011); Neo (2016); Jamal and Neo (2019). 53 See, e.g., Mahlmann (2015); (2020) Ban on Wearing a Headscarf for Legal Trainees Is Constitutional. In: Bundesverfassungsgericht. https://www.bundesverfassungsgericht.de/ SharedDocs/Pressemitteilungen/EN/2020/bvg20-013.html; Portaru (2017); Howard (2017); (2018) Restrictions on Muslim Women’s Dress in the 28 EU Member States: Current Law, Recent Legal Developments, and the State of Play. Open Society Justice Initiative; Idriss (2006). 54 Turkish Constitution Arts. 6(2) and 6(3).

68

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

the case, then it is the state’s duty to take action against such abuses, to preserve the rights and freedoms of others, and to protect public order to ensure that pluralism, as an essential condition of democratic order, is successfully maintained.

4.2 4.2.1

Evaluation of the Restructuring of the TCC Under the 2010 Constitutional Amendments An Overview of the 2010 Amendments

In 2010, after the TCC’s abovementioned controversial headscarf decision, among others,55 the ruling AKP declared that it was introducing a package of constitutional reforms consisting of 26 amendments. According to AKP, the amendments aimed to speed up Turkey’s accession to the EU and reform the 1982 Constitution which had been widely considered as an impediment to further democratization of Turkey.56 In the center of this wider reform package, there was an amendment to Article 146 of the Constitution restructuring the TCC.57 If the package could garner a two-thirds majority in the GNAT (367 out of 550 deputies), it would directly change the constitution. However, the proposal was supported by 331 members, barely passing the three-fifths majority (330 votes) and therefore was submitted to a mandatory referendum according to Article 175 of the Constitution.58 The amendment package was challenged before the Constitutional Court on the ground that it violated the unamendable characteristics of the state, including the separation of powers, 55 The period of 2007–2008 is characterized by the constitutional crisis emerged over the 2007 Presidential Election, the following 2007 constitutional amendments, and the controversial “Headscarf Amendment” of 2008. In 2007, the term of office of the President of the Republic, Ahmet Necdet Sezer ended and the ruling AKP seemed to hold sufficient parliamentary majority to elect its candidate to the presidency alone. The candidacy of Abdullah Gül was opposed by the secular opposition party, the CHP, emphasizing his prior “Islamist” background and due to his wife’s wearing of the headscarf. In 2007, the Constitutional Court ruled that for the election of the President by the Assembly, a two-thirds “special quorum” (367) is required for the meeting of the Parliament (Turkish Constitutional Court decision, 1 May 2007, E. 2007/45, K. 2007/54, Official Gazette, 27 June 2007, No. 26565). While the Constitution did not require this quorum for the meeting of the Assembly, the Constitutional Court established it with the purpose of reaching the maximum consensus in the Parliament for the election of the President. This decision of the TCC terminated the election process as a two-thirds quorum was not reached on the first meeting due to the absence of the opposition members. For the controversial decisions of the TCC concerning the ruling AKP issued on the matter of the crisis of the 2007 Presidential Election, the AKP Prohibition Case and the “Headscarf Amendment” of 2008 see Shambayati and Sütçü (2012), pp. 117–119. 56 Varol et al. (2016), https://papers.ssrn.com/abstract=2746559, p. 11. 57 Law No. 5982 Amending Certain Provisions of the Constitution, 7 May 2010, Official Gazette, 13 May 2010, No. 27580. English translation of the Law can be found at the website of the Directorate for EU Affairs, https://www.ab.gov.tr/files/BasınMusavirlik/haberler/constituional_ amendments.pdf. 58 Özbudun (2010), p. 193.

4.2

Evaluation of the Restructuring of the TCC Under the 2010. . .

69

provided in Article 2 of the Constitution. The Court annulled a minor part of the package.59 The amendments were adopted in the referendum symbolically held on 12 September 2010, on the 30th anniversary of the 1980 military coup, after a severely disputed campaign. First, the amendments raised the number of permanent members of the Constitutional Court from 11 to 17. It abolished 4 substitute members.60 Before the amendments, all 11 permanent judges were appointed by the president either indirectly, upon the nominations from the high judiciary and the Council of Higher Education (8) or directly (3). After the amendments, the president appoints 14 of the 17 members of the Court. The other three members are elected by the GNAT. Four judges are directly appointed by the president “from among high level executives, selfemployed lawyers, first category judges and public prosecutors or rapporteurs of the Constitutional Court. . .”61 The president appoints seven members from among the judges of the high courts: three nominated by the Court of Cassation, two nominated by the Council of State, one nominated by the Military High Court of Appeals, and one nominated by the Military High Court of Administration.62 The other three members are selected by the president from among the candidates nominated by the Council of Higher Education “from among members of the teaching staff . . . in the fields of law, economics, and political sciences.”63 The novelty introduced by the amendments is that the parliament elects three of the 17 members. Against the requirement of reform of the 1982 system, it increased the president’s influence in the formation of the Constitutional Court. While the number of judges indirectly elected by the president was increased from eight to ten, the number of directly elected judges was increased from three to four. As it seems, the reform, which was supposedly intended to remove the anti-democratic barriers of the 1982 Constitution, in fact, maintained the 1982 framework and even strengthened it.64

4.2.2

Analysis of the Amendments

4.2.2.1

Increased Influence of the President

It was expected that the 2010 amendments would considerably diminish the influence of the president on the composition of the Constitutional Court, particularly 59

Turkish Constitutional Court decision, 7 July 2010, E. 2010/49, K. 2010/87. Law No. 5982 Amending Certain Provisions of the Constitution. 61 Turkish Constitution Art. 146(3). 62 The two high military courts, the High Military Court of Appeals and the High Military Administrative Court were abolished by the 2017 constitutional amendments, and consequently, the number of constitutional judges were decreased from 17 to 15. 63 Turkish Constitution Art. 146(3). 64 See Sağlam (2010), p. 31. 60

70

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

after the 2007 amendments. In 2007, the parliament adopted the constitutional amendment (Law No. 5678 dated 31.05.2007) amending Article 101 of the Constitution. The amendment abolished the election of the president by the parliament and shortened his term of office from 7 years to 5 years. Instead, it adopted popular election of the president and allowed him to be elected for two consecutive 5-year terms.65 This amendment removed the institutional guarantee for the political neutrality of the president and considerably affected the role of the president as a pouvoir neutre. From that time, the president would join the political battle and competition and seek for the party support to be elected. Therefore, although it was continued to be written in the Constitution (Article 104(2)) that the president was politically neutral, this became practically impossible due to the abovementioned reasons, including introduction of the opportunity of election for the second term.66 Considering that the implementation of the principle of neutrality of the president had become unlikely because of the mentioned change, it was particularly necessary to narrow the power of the politically active president in the formation process of the Constitutional Court.67 Conversely, the 2010 amendments increased the relevant power of the president. Nevertheless, the problems of the 2010 amendments are not limited to the increase of presidential appointments but also include the election and nomination methods employed in the appointment process. The plenary assemblies of each high court nominate three candidates for each vacant seat from among their presidents and members. Before the 2010 amendments, Article 146 of the Constitution provided that the plenary assemblies of each high court elect three nominees for each seat “by an absolute majority of the total number of members.”68 In this way, all three persons were considered to qualify as a candidate of the respective court as they were supported by an absolute majority thereof. After the amendments, in the elections of the general assemblies of the high courts, “three persons obtaining the greatest number of votes shall be considered to be nominated for each vacant position.”69 This means that the person who obtains relatively few votes yet becomes the third person on the list of nominations can be appointed by the president as a member of the Constitutional Court.70 In this case, the person who is preferred by the president for his ideological relatedness, is in the capacity of an independent candidate rather than the candidate of the respective high court. Thus, the appropriate participation of the high judiciary in the composition of the Constitutional Court is decreased. Leaving the composition of the Constitutional

65

See Gönenç (2008), pp. 520–521. See Dissenting Opinion of Judge Osman Alifeyyaz Paksüt in Turkish Constitutional Court decision, 7 July 2010, E. 2010/49, K. 2010/87. 67 See Dissenting Opinion of Judge Osman Alifeyyaz Paksüt in Turkish Constitutional Court decision, 7 July 2010, E. 2010/49, K. 2010/87. 68 Law No. 5982 Amending Certain Provisions of the Constitution. 69 Turkish Constitution Art. 146(4). 70 See Dissenting Opinion of Judge Osman Alifeyyaz Paksüt in Turkish Constitutional Court decision, 7 July 2010, E. 2010/49, K. 2010/87; Sağlam (2010), p. 32. 66

4.2

Evaluation of the Restructuring of the TCC Under the 2010. . .

71

Court primarily to the discretion of the president is in breach of the principle of the independence and impartiality of the judiciary which is the primary guarantee for the protection of secularism. The same voting rule applies to the candidates selected by the heads of bar associations for appointment by the GNAT. The candidates to be nominated by the heads of the bar association are not required to obtain the support of a certain majority. Rather, “three persons obtaining the greatest number of votes shall be nominated” (emphasis added).71 An election system which upholds the will of the relative majority cannot be considered democratic.72

4.2.2.2

Limited Role for the GNAT and Inadequate Methods Employed in the Nomination of Candidates

Under the amended Article 146(2) of the Constitution, the parliament elects three of the 17 judges: “two members from among three candidates to be nominated by . . . the Court of Accounts, for each vacant position,” and “one member from among three candidates nominated by the heads of the bar associations.” Although in the election by the Grand Assembly, “a two thirds majority of the total number of members [is] required for the first ballot, and an absolute majority of the total number of members [is] required for the second ballot,” in the third ballot only a simple majority is required for election of the member.73 It means that the members which will be elected in the last ballot will be the preferred candidates of the ruling party.74 That will call the impartiality and independence of the concerning judges, and consequently of the judiciary, into question in the public mind and will threaten the legitimacy of the Court.75 This applies to all three members elected by the GNAT. Another concern is related to nominations made by the Court of Accounts. According to the Law on the Court of Accounts, the members of the relevant court are appointed by the GNAT.76 This means that the ruling party is influential in the appointment of the majority of the members of the Court of Accounts. Consequently, it can be concluded that the ruling party indirectly determines the candidates to be

71

Turkish Constitution Art. 146(4). See Dissenting Opinion of Judge Fulya Kantarcıoğlu in Turkish Constitutional Court decision, 7 July 2010, E. 2010/49, K. 2010/87. 73 Turkish Constitution Art. 146(2). 74 See Dissenting Opinion of Judge Osman Alifeyyaz Paksüt in Turkish Constitutional Court decision, 7 July 2010, E. 2010/49, K. 2010/87. 75 See Dissenting Opinion of Judge Zehra Ayla Perktaş in Turkish Constitutional Court decision, 7 July 2010, E. 2010/49, K. 2010/87. 76 Law No. 6085 on Turkish Court of Accounts, 3 December 2010, Official Gazette, 19 December 2010, No. 27790. English translation of Law No. 6085 can be found at the website of the Court of Accounts, https://www.sayistay.gov.tr/tr/Upload/95906369/files/mevzuat/LawNo_6085_English. pdf. 72

72

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

elected from among the judges of the Court of Accounts for the membership of the Constitutional Court.77 Moreover, there is an important inequality between nomination methods provided for the high courts (Court of Cassation, Council of State, Court of Accounts, and the previous high military courts), the Council of Higher Education, and the heads of bar associations. While the candidates are nominated by the respective general assemblies of the high courts, the Council of Higher Education directly elects the candidates “from among members of the teaching staff who are not members of the Council . . .”78 This difference can be explained by the fact that the members of the Council of Higher Education are directly (14) and indirectly (7) appointed by the President of the Republic.79 The candidates to be appointed by the GNAT are nominated by the heads of bar associations instead of the Union of Turkish Bar Associations (Türkiye Barolar Birliği, TBB) which is a democratic superior body of the bar associations. It is supposed that this is because the TBB is an independent organization and is not ideologically aligned with the ruling AKP.80 Another point that must be underlined is that the number of members of associations represented by their heads differs extremely. For example, while the Istanbul Bar Association had 46052 members on 31.12.2019, the Tunjeli Bar Association had only 42 members.81 Nevertheless, all the heads of bar associations have the same number of votes in the election of candidates for membership in the Constitutional Court. This violates the principles of fair representation and equality in a democratic state and is not consistent with the requirements of democratic elections. As a result, such a method enables the president to play a decisive role in the appointment process, instead of bar associations.82 To sum up, the GNAT elects three of the judges with a simple majority; the president appoints four of the judges directly, and the remaining ten indirectly and undemocratically. This will certainly impair the independence and impartiality of the Constitutional Court which controls the functioning of the legislature and decides in party prohibition cases, all of which are directly related to the protection of the principle of secularism. In conclusion, the 2010 amendments to Article 146 of the Constitution do not involve the guarantees for the independence and impartiality of the judiciary and even remove the existing ones. This consequently undermines the

77

See Dissenting Opinion of Judge Osman Alifeyyaz Paksüt in Turkish Constitutional Court decision, 7 July 2010, E. 2010/49, K. 2010/87. 78 Turkish Constitution Art. 146(3). 79 Yükseköğretim Kanunu [Law on Higher Education], No. 2547, 4 November 1981, Arts. 6(b) (1) and 6(b)(5), Official Gazette, 6 November 1981, No. 17506. 80 See Sağlam (2010), p. 32. 81 Union of Turkish Bar Associations (2020) 2019 Avukat Sayıları (31.12.2019) [2019 Number of Attorneys]. https://www.barobirlik.org.tr/Haberler/2019-avukat-sayilari-31122019-81078. 82 See Sağlam (2010), p. 32.

4.2

Evaluation of the Restructuring of the TCC Under the 2010. . .

73

principles of separation of powers and democratic and secular state protected by Article 4 of the Turkish Constitution.

4.2.3

Recommendations

The main criticism concerning the prior structure of the TCC made by both national and international observers was focused on the lack of “democratic legitimacy” underlining that “the Turkish Constitution does not provide for any involvement of parliament in the nomination or appointment of constitutional court judges.”83 Compared to European countries, many legal studies have proposed in this regard that the Turkish parliament should be also entitled to appoint at least half of the constitutional court justices.84 Certainly, this view has a historical value considering that the idea of the constitutional court with the power of controlling the direct representative body has emerged very recently—in the second half of the twentieth century. However, today it is an outdated view to look for the democratic legitimacy of the constitutional court in its members’ organic relationship with the legislature. Rather, the democratic legitimacy of the constitutional court should be searched in its independent status against the political power, the people’s trust in this body, and its reputation among the citizens.85 Germany’s practice in the composition of the constitutional court has been referred to by some scholars as an example for Turkey.86 However, the feasibility of the foreign models cannot be ensured without analyzing the legal framework and the functioning of appointment mechanisms in those countries. In Germany, “[h]alf of the 16 members of the Federal Constitutional Court are elected by the Bundestag, and half by the Bundesrat.”87 The election of the judges requires a two-thirds majority vote in both representative bodies. Until 2015, the Bundestag elected the judges “indirectly through its Judicial Selection Committee, which is a proportional representation of the political parties at the Bundestag.”88 In 2015, the Act on the Federal Constitutional Court was amended providing that “[t]he Justices to be elected by the Bundestag shall be elected upon proposal by the Selection Committee . . . without prior debate and by secret ballot. They shall be elected as Justices if they 83

Venice Commission (2009), para. 89 [hereafter Prohibition of Political Parties in Turkey]. See Erdoğan and Yazıcı (2011). https://www.tesev.org.tr/wp-content/uploads/report_Towards_ Turkeys_New_Constitution.pdf, pp. 27–28; Erözden et al. (2010). https://www.tesev.org.tr/ wpcontent/uploads/report_A_Judicial_Conundrum_Opinions_And_Recommendations_On_Con stitutional_Reform_In_Turkey.pdf, p. 15; Özipek et al. (2011), pp. 24–25. 85 See Sağlam (2010), p. 30. 86 Erdoğan and Yazıcı (2011), p. 22. 87 The Federal Constitutional Court - Structure. In: Bundesverfassungsgericht. https://www. bundesverfassungsgericht.de/EN/Das-Gericht/Organisation/organisation_node.html. 88 Venice Commission (1997), p. 5 [hereafter Constitutional Courts]. 84

74

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

obtain a two-thirds majority of the votes cast and at least the majority of the votes of the Members of the Bundestag” (emphasis added).89 Thus, the Selection Committee now is entitled only to nominate candidates. Under this framework, no party takes a decisive role in this appointment process and the results are based on the bargaining of the political parties. This political consensus has been sustained without interruption for 50 years.90 Whether such a participatory process and broad political consensus can be achieved in Turkey is a key question to be answered before referring to the practices of Germany or similar countries. The 2010 constitutional package was rather expected to enlarge the appointment power of the GNAT, instead of the president. Instead of debating a two-thirds majority or a proportional representation of political parties, and taking the relevant risks within the framework of parliament’s appointment of the justices, the decisiveness of the president’s role was preferred. One of the criticisms is that even after the 2010 amendments, Turkey is the only country in the world where the parliament cannot elect constitutional justices directly.91 The reforms restructuring the TCC should be in a capacity to produce ideological diversity within the Court which is of utmost importance for the protection of secularism. According to the findings of the Venice Commission concerning “the composition of constitutional courts”: Society is necessarily pluralist – a field for the expression of various trends, be they philosophical, ethical, social, political, religious or legal. Constitutional justice must, by its composition, guarantee independence with regard to different interest groups and contribute towards the establishment of a body of jurisprudence which is mindful of this pluralism. The legitimacy of a constitutional jurisdiction and society’s acceptance of its decisions may depend very heavily on the extent of the court’s consideration of the different social values at stake, even though such values are generally superseded in favour of common values. To this end, a balance which ensures respect for different sensibilities must be entrenched in the rules of composition of these jurisdictions.92

The balanced structure of the Court was better provided under the 1961 Constitution. Under the 1961 Constitution, the TCC was composed of 15 members: two of them were appointed by the president, five of them by the bicameral parliament, and the other eight by the judiciary.93 The Court became highly powerful and independent from the military influence within this structure and issued decisions opposing the military.94 Following the Court’s growingly resistant position, it was restructured by the 1982 Constitution and the role of the parliament in the formation of the

89

Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz—BVerfGG), 12 March 1951. The official English version of the Act can be found at the website of the FCC, http://www.bundesverfassungsgericht.de/SharedDocs/Downloads/EN/Gesetze/BVerfGG.pdf?__ blob=publicationFile&v=1. 90 See Sağlam (2010), p. 30. 91 Gözler (2010), p. 417. 92 Venice Commission (1997) Constutional Courts, p. 21. 93 See Sevinç (2010), p. 289. 94 See Shambayati and Kirdiş (2009), pp. 774–75.

4.2

Evaluation of the Restructuring of the TCC Under the 2010. . .

75

Constitutional Court was completely removed. Therefore, the reasons behind the TCC’s fundamentalist approach to secularism and its statist position under the 1982 Constitution can be considered to lie largely in its composition unilaterally determined by the president which had to be amended by the 2010 reforms. Certainly, to ensure the democratic legitimacy, pluralist structure, and independence of the Constitutional Court, the various state institutions, including the GNAT, should participate in the election of the judges. However, giving the main role to the GNAT, as defended by many scholars, does not seem to ensure the Court’s independence with respect to different social groups. In such a case, it is much more likely that the dominant single party will play a key role in the appointment of constitutional court judges. Therefore, to avoid the politicization of the Constitutional Court and to prevent the hegemony of a certain ideological outlook, the mixed method should be adopted in the formation of the Turkish Constitutional Court. In 2003, the Constitutional Court prepared draft regulations concerning its field of duties which went beyond the 12 September framework. These rules were drafted based on the Court’s nearly half-century experience and knowledge. This model was further adopted and updated by the Constitutional Proposal of the TBB issued in 2007, which envisages appropriate guarantees ensuring the Court’s political neutrality.95 To ensure the principle of judicial independence, the main role in the formation of the Constitutional Court must be given to the high courts. In its constitutional proposal drafted based on the TCC’s model, the TBB suggested that out of the then 17 constitutional judges, four should be selected by the Court of Cassation, four by the Council of State, one by the Military High Court of Appeals, and one by the Military High Court of Administration. In the current context, considering that the high military courts do not exist anymore after the 16 April 2017 amendments, only the first two courts will participate in the appointment. The plenary assemblies of each high court should select the members of the Constitutional Court from among their presidents and members by secret ballot and by an absolute majority of the total number of their members. The role of the president should not be excluded as he/she is elected by the people. Therefore, the proposal of the TBB provided that the president should select two members from among high-level executives. Moreover, the TBB proposed that the parliament should elect four of the then 17 judges. The GNAT shall elect two members from among three candidates nominated by the Council of Higher Education for each vacant position from among members of the teaching staff who hold the title of “Professor” in the fields of law, political sciences, and economics; one member from among three candidates nominated by and from among the president and members of the Court of Accounts, who have been in the membership for at least 3 years, and one member from among three candidates nominated by the TBB from among self-employed lawyers with at least 20 years of work experience. The GNAT shall elect the members by secret ballot and by an absolute majority of the total number of members.

95

Türkiye Barolar Birliği [Turkish Union of Bar Associations] (2011), p. 275.

76

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

It is considered that such an inclusive appointment system can better ensure the Court’s pluralistic structure. In addition, legal scholar Fazıl Sağlam suggested that one member with at least 10 years of rapporteur experience should be elected by the general assembly of the Constitutional Court from among the Court rapporteurs.96 This could be useful in terms of taking benefit of the rapporteur experience. It is concluded that as these proposals go beyond the 12 September framework, they can reform the TCC enabling it to serve as an effective control on the protection of the principle of secularism.

4.3

The New Approach Adopted by the TCC after the 2010 Amendments

The impact of the reforms on the Constitutional Court has been much debated among scholars. According to some, the reforms paved the way to pack the court, substantively affected its jurisprudence, and weakened its capacity to effectively check the political institutions.97 Other scholars, however, welcomed the reforms arguing that they have caused “an overwhelmingly liberalizing effect.”98 Particularly concerning secularism, it has been argued by some scholars that after the reforms, the TCC departed from its fundamentalist approach to secularism and adopted a more liberal and passive understanding of secularism.99 Zühtü Arslan, the president of the TCC, claimed that the Court introduced the concept of a “pluralistic secularism” after 2012 due to “a radical paradigm shift” triggered by the individual constitutional complaint introduced by the 2010 amendments.100 The question of whether the TCC has made a significant change in the direction of “liberal secularism” or “pluralistic secularism” requires a thorough analysis of the Court’s new caselaw. In this section, it will be evaluated how the paradigm shift, which occurred within the TCC as a result of the structural amendments, has influenced its approach to religious and state issues.

96

Sağlam (2010), p. 34. Gülalp (2010). 98 Bâli (2012), p. 297; Cremer (2011). 99 Yazıcı (2017), p. 1320. 100 Arslan (2017). https://www.anayasa.gov.tr/en/president/presidents-speeches/re-interpreting-sec ularism-in-a-democratic-society-a-cursory-view-of-the-case-law-of-the-turkish-constitutionalcourt-international-symposium-on-constitutional-courts-as-the-guardian-of-ideology-and-democ racy-in-a-pluralistic-society/. 97

4.3

The New Approach Adopted by the TCC after the 2010 Amendments

4.3.1

77

The Case Concerning the Elective Religious Courses

The first critical case coming before the new Constitutional Court was about the unconstitutionality of the elective religious courses introduced into the curriculum of elementary and high schools.101 This case shows a major paradigm shift in the Court’s interpretation of a secular state and therefore is worth being thoroughly analyzed. On request of the parliamentary group of the CHP, the Constitutional Court, inter alia, assessed the constitutionality of the elective religious courses as introduced by Article 9 of Law no. 6287 to Article 25 of the Basic Law on National Education (Law no. 1739). The amended Article 25 stipulated: “The Quran and the Life of the Prophet are among the elective courses which shall be taught in elementary and high schools.”102 The claimant party contended that the instruction of elective religious courses in schools is against the principle of secularism as it builds a link between the state and Islam. It was argued that organizing the teaching of exclusively Islam is contrary to the state’s impartiality before all religions and beliefs. Nevertheless, based on a new concept of “flexible and liberal secularism,” the TCC approved the new law. This 2012 Court decision that dealt with the question of secularism has some new points in comparison to its earlier analogous decisions. The analysis of this decision will be focused on these four points: (1) the Constitutional Court develops a different understanding of secularism; (2) the different understanding of secularism is established by applying a systematic interpretation method to bring that into conformity with the Constitution; (3) more references are made to the concept of fundamental rights, and the concept of positive obligations of the state is introduced to the secularism debate; (4) the principle of equality is explained by the Court also by referring to systematic interpretation.

4.3.1.1

Secularism and Systematic Interpretation

If the Court had aimed at reviewing the case as a matter of a fundamental right and freedom, it should have posed this question: whether the introduction of these courses infringes on the rights and freedoms of the students and parents who are non-Sunni Muslims, members of non-Muslim minorities, and non-believers. However, the Court does not raise this question. Instead, it reviews the case from the perspective of the separation of religion and state as it did in previous cases. It can be inferred from the case that the Court tries to answer the implicit question of whether the state’s instruction of religious courses in schools infringes on the principles of secularism. Therefore, it is concluded that the Court still fails to approach religious claims as an issue of fundamental freedoms. 101 102

Turkish Constitutional Court decision, 20 September 2012, E. 2012/65, K. 2012/128. Cited in Venice Commission (2013), p. 170.

78

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

In this case, the TCC differentiated between two kinds of understanding and implementation of secularism. According to the Court, one is restrictive secularism which imprisons religion in the conscience of the person and categorically forbids its expressions in the public sphere. Then the Court described its new “flexible and liberal understanding of secularism” as follows: The other flexible and liberal meaning of secularism acknowledges that religion is also a social phenomenon apart from its private dimensions. This understanding of secularism does not imprison religion in the inner world of the individual, rather sees it as an important element of the individual and collective identity and allows its visibility in the public sphere. In a secular political system, the individual religious preferences and the respective lifestyle is outside of the state intervention but falls within the state protection. In this sense, the principle of secularism is a guarantee of the freedom of religion and conscience (emphasis added).103

As it seems, the Court tries to develop an understanding of secularism that focusses on the freedom of religion instead of the institutions. The Court refers to the systematic interpretation method to shed light on this notion: In order to define this understanding and to describe its elements, all related provisions of the Constitution should be evaluated in a comprehensive way by using the systematic interpretation method. The notion of secularism is contemplated in the Preamble and Articles 2, 13, 14, 68, 81, 103, 136 and 174 of the Constitution. Secularism has been defined as a political principle determining the position of the state before the religious beliefs. In other words, secularism is a quality of the state, not the individual or society.104

Although the Court emphasizes the systematic interpretation method, it is not clear why it does not mention the state’s duty to protect the freedom of religion enshrined in Article 24. It only mentions Article 24 in terms of religious education under state supervision to show the institutional relationship between the state and religion. The further parts of the decision make it clear that the main question in the Court’s mind is not freedom of religion. In other words, the point that the Court wants to reach via the systematic interpretation is not the systematic reading of the freedoms in the Constitution. Rather, the Constitutional Court uses the systematic interpretation method to designate the relationship between the state and Islam within the new understanding of secularism.105 According to the Court: If reviewed as a whole, since the beginning, the principle of secularism in Turkey has not absolutely excluded the institutional relationship between the state and Islam within the constitutional order and in implementation.106

103

Turkish Constitutional Court decision, 20 September 2012, E. 2012/65, K. 2012/128 (author’s own translation). 104 Turkish Constitutional Court decision, 20 September 2012, E. 2012/65, K. 2012/128 (author’s own translation). 105 See Altıparmak (2013), p. 150. 106 Turkish Constitutional Court decision, 20 September 2012, E. 2012/65, K. 2012/128 (author’s own translation).

4.3

The New Approach Adopted by the TCC after the 2010 Amendments

79

According to the Court, Article 136 of the Constitution governing the Diyanet, Article 174 protecting Law No. 430 of 3 March 1924 on the Unification of the Educational System, and Article 24 guaranteeing religious education under state supervision portray this institutional relationship. Considering that there is an institutional relationship between the state and the majority religion, organizing courses on Islamic education in schools is not contrary to the Constitution.

4.3.1.2

Positive Obligations of the State in the Field of Religious Freedom

In this case, the Constitutional Court inferred a positive obligation for the state which is not much used in the field of religious freedom: In this meaning, secularism imposes negative and positive obligations on the state. . . . The positive obligation requires the state to remove all the obstacles in the way of the freedom of religion and conscience and to create an appropriate atmosphere and provide the necessary facilities allowing the people to live in accordance with their beliefs (emphasis added).107

This is a highly interesting conclusion. In fact, religious freedom comes at the top of civil rights where the positive obligation is least applied.108 More interestingly, the Court underlines the state’s positive obligation in the field of education: According to Article 3 of the Law on Private Education Institutions (no. 5580), “private education institutions cannot open establishments for religious education.” Therefore, the state has a monopoly both over the establishment of institutions for religious education and determination of obligatory and elective religious courses in schools. Since in the field of religious education there are no alternatives to the state institutions, the state’s positive obligation in this field becomes more understandable and important.109

In other words, the state has a positive obligation to provide an elective religious education. However, in Turkey, there is already an obligatory religious teaching in schools provided under Article 24(4) of the Constitution which has been found by the ECtHR in breach of respect for the parents’ religious convictions.110 The positive obligations of the state concerning religious freedom could be at the furthest creating “an appropriate atmosphere allowing the people to live in accordance with their beliefs” as mentioned by the Constitutional Court itself.111

107

Turkish Constitutional Court decision, 20 September 2012, E. 2012/65, K. 2012/128 (author’s own translation). 108 In the handbook published by the CoE in 2007 it is stated that no violation of Article 9 of the Convention was pronounced under the positive obligation of the state by the ECtHR until that time. See Akandji-Kombe (2007), pp. 50–51. 109 Turkish Constitutional Court decision, 20 September 2012, E. 2012/65, K. 2012/128 (author’s own translation). 110 Compulsory religious education and the respective ECtHR cases will be separately discussed in Chap. 7. 111 Altıparmak (2013), p. 151.

80

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

It has been determined by the ECtHR that the state’s duty is not to remove pluralism by unifying the divided religions; it should rather guarantee a peaceful existence among the conflicting religious groups in a tolerant atmosphere.112 In other words, the rationale behind the state’s positive obligation in the field of religious freedom is not to deliver religious services for the dominant religion but rather to establish an atmosphere where the members of different religions and also atheists, agnostics, skeptics, and the unconcerned113 can enjoy their democratic rights in a pluralist society. The organization of religious education as a public service by the state cannot be understood as a positive obligation. Unlike the TCC, the Strasbourg organs have decided that the states are not under the obligation to provide a particular kind of education to respect the parents’ philosophical convictions; however, they are under the positive obligation to respect the preferences of parents within the education process.114 The ECtHR has determined the state’s positive obligation in the field of education in this scope. The ECtHR concluded that the state must “take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.”115 Guaranteeing religious education for the dominant part of society, while neglecting other groups, does not support pluralism and tolerance, and therefore cannot be accepted as a positive obligation of the state. It must be underlined that while the previous Court behaved excessively restrictively by absolutely removing religion from the public sphere, the new Court acted excessively unrestrictively by defining religious education as a positive obligation of the state and bringing religion to the center of the legal system.

4.3.1.3

The Elective Religious Courses from the Perspective of Equality

The applicant argued that the regulation was in breach of the principle of equality. In response, the Constitutional Court held that if the public need arises, the MNE can organize the same type of courses for other religions and there is no legal barrier in this respect. The problem was that the legislature had decided in favor of Sunni Islam and legally ensured instruction of only this belief without giving any further explanation. This means that it left instruction of other religions to the discretion of the Ministry.

112

Serif v Greece App no 38178/97 (ECtHR, 14 December 1999), para. 53. Kokkinakis v. Greece, para. 31. 114 W and DM, M and HI v United Kingdom (dec), App nos. 10228/82 and 10229/82 (ECmHR, 6 March 1984) “The Law”. 115 Kjeldsen, Busk Madsen and Pedersen v Denmark App nos 5095/71, 5920/72, and 5926/72 (ECtHR, 7 December 1976), para 53. 113

4.3

The New Approach Adopted by the TCC after the 2010 Amendments

81

The second interesting point that the Court makes concerning equality is that since the Lausanne Treaty has already guaranteed the rights of religious minorities, there is no need for separate regulation. According to the Court, under the Lausanne Treaty, Turkey is committed to treating all its population equally, without regard to religious affiliation, and to granting non-Muslim minorities the same cultural and political rights as the Muslim majority. Analyzing the disputed rule in conjunction with the Lausanne Treaty, it becomes clear that no discriminatory treatment is made towards other religions in the matter of religious education. Perhaps this explanation of the Court could be a ground for annulling the disputed regulation, rather than upholding it. Despite the abovementioned requirement of the Lausanne Treaty, the disputed regulation makes the provision of elective courses on Sunni Islam obligatory, while not providing the same guarantee for other religions. More importantly, the problem is not about only the religious minorities recognized in the Lausanne Treaty. Under the ECHR, the freedom of religion and conscience should be protected not only with respect to different religions but also with respect to the holders of different beliefs such as “atheists, agnostics, sceptics and the unconcerned.”116 If advantageous treatment is granted to a certain group, this must be strictly justified under the principle of equality. It is a discriminatory treatment if there is no legitimate objective or no proportional relationship between the legitimate objective and the restrictive means.117 If the Court had approached the case from the perspective of equality, it could not have found a satisfactory justification for the disputed regulation.

4.3.2

The Case Concerning Wearing the Headscarf in a Courtroom

In 2014, the Constitutional Court decided on the question of wearing the headscarf in the public sphere. A Muslim attorney wearing a headscarf to a courtroom was prevented by the judge to participate in the hearing. The judge suspended the trial and gave time for her client to get access to a new representative until the next trial. The judge maintained that “the attorneys cannot wear head scarf during hearings in accordance with the decisions of the ECtHR and the Constitutional Court as to the fact that the headscarf is a strong religious symbol and political symbol that is against secularism.”118

116

Kokkinakis v. Greece, para. 31. Schalk and Kopf v Austria App no 30141/04 (ECtHR, 24 June 2010), para. 96; Burden v the United Kingdom App no 13378/05 (ECtHR, 29 April 2008), para. 60. 118 Tuğba Arslan, 25 June 2014, Turkish Constitutional Court decision, App no 2014/256, para. 92. 117

82

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

Before evaluating the details of the case, the Constitutional Court again distinguished two different meanings of secularism referring to its previous case.119 The Court held that a democratic and secular state is obliged to create a social and political environment enabling the peaceful coexistence of different religions.120 Moreover, to rely on secularism as a reasonable ground to dismiss the applicant’s claim, it was required to demonstrate that she wore the headscarf to show political aggression to force her beliefs on others or break social peace and public order in a certain way. Finally, the Court maintained that any limitation on a fundamental freedom and right must be prescribed by law. As there is no restriction provided in the legislation requiring lawyers to attend trials without covering on their heads, precluding the lawyer to enter the courtroom due to her headscarf constituted an unconstitutional intervention in her freedom of religion (Article 24 of the Constitution)121 and a violation of the principle of equality (Article 10 of the Constitution).122 As it seems, the Constitutional Court is still focused on the state’s positive obligation to “provide an appropriate environment” for the exercise of religious freedom,123 without getting involved in a detailed examination of the state’s duty to protect the rights and freedoms of people of different religions and non-believers. In this case, the Court did not employ certain legal standards such as the proportionality test which is applied for evaluating the legitimacy of administrative action that conflicts with fundamental freedoms.124 The TCC found a violation of religious freedom based on the fact that there was no law prohibiting the lawyers to attend the hearing with “their heads uncovered.”125 Therefore, the Court considered it unnecessary to evaluate the issues of legitimate aim and necessity in a democratic society additionally.126 In explaining the requirement of lawfulness, the TCC referred to the case law of the ECtHR. The Court stated that “the word “code” or “law” in the phrase of being prescribed by law according to the ECtHR covers not only the written law but also the case law.”127 Thus, the Court emphasized that the ECtHR has established a definitive stance on this matter and has decided that “the rights may be limited in the absence of the formal provisions of the law in its judgment Leyla Şahin v. Turkey, which is the most important decision that it has delivered as regards the headscarf . . .”128 It must be noted that in its judgment Leyla Şahin v. Turkey, the ECtHR deduced that the reasoning in judgments of the TCC has a binding effect referring to

119

Tuğba Arslan, para. 134. Tuğba Arslan, para. 135. 121 Tuğba Arslan, paras. 93–101. 122 Tuğba Arslan, paras. 153–154. 123 Tuğba Arslan, para. 138. 124 See Yüksel, pp. 126–130. 125 Tuğba Arslan, paras. 98–99. 126 Tuğba Arslan, para. 100. 127 Tuğba Arslan, para. 93. 128 Tuğba Arslan, para. 94. 120

4.3

The New Approach Adopted by the TCC after the 2010 Amendments

83

the Constitutional Court’s judgment of 27 May 1999 which states: “[t]he legislature and executive are bound by both the operative provisions of judgments and the reasoning taken as a whole.”129 Then the TCC mentioned its judgments of 1989 and 1991 which were used by the European Court as a ground for its judgment Leyla Şahin.130 Nevertheless, the Constitutional Court held that “[a]lthough, the law created by the judge is accepted as a source of the law in some fields of Turkish law, it can never acquire a status of rule with the quality of “law” in a field that is organized based on a completely formal principle of lawfulness such as limitation of the human rights and freedoms.”131 The Court emphasized the requirement of Article 13 of the Constitution which determines that “[f]undamental rights and freedoms may be restricted only by law.” It stated that this constitutional requirement was not met in the relevant case as there was no legal restriction demanding the attorneys to enter the courtroom with “their heads uncovered.”132 According to the Court, “[n]either the ECtHR’s judgment Leyla Şahin nor the judgments of the Constitutional Court . . .which became the basis of the practice as regards the attire and outfit of the students in Turkey, may be accepted as rules that meet the “condition of lawfulness” stipulated in the relevant provision of Article 13 of the Constitution. . .”.133 As it seems, despite the clearly established meaning of “prescribed by law,” the Constitutional Court has set aside the ECtHR’s reasoning laid down in the Leyla Şahin judgment. This is a new practice that the Court has followed after the reforms. According to Turkish legal scholar Kerem Altıparmak, since being recomposed the Constitutional Court has begun to make more references to the recent decisions of the ECtHR. However, it draws support from the selective parts of the decision and does not follow the final reasoning of the judgment. As a result, the conclusion reached by the Court completely opposes that of the ECtHR.134 Being obsessed with the legality of the headscarf ban, the Court refused to make a deeper examination of the freedom of religion and again failed to approach the case as a matter of fundamental freedom. In this case, first, the Court should have analyzed whether the interference with the freedom of religion pursued a legitimate aim and was necessary in a democratic and secular society. Such analysis would require the application of the proportionality test as determined by Article 13 of the Turkish Constitution. Accordingly, in terms of a legitimate aim, the Court should have examined the state’s duty of neutrality before its citizens of different religions and non-believers. The Court should have maintained that, generally, religious outfits and symbols can be restricted on the ground of protection of public order and the rights of others

Cited in Şahin, Grand Chamber judgment, para. 54. Tuğba Arslan, para. 95. 131 Tuğba Arslan, para. 96. 132 Tuğba Arslan, para. 98. 133 Tuğba Arslan, para. 98. 134 Altıparmak (2013), pp. 154–155. 129 130

84

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

as already had been mentioned in its headscarf judgment of 5 June 2008.135 Then the Constitutional Court should have weighed the interests of the lawyer wearing the headscarf and the interests of the believers of other religions and non-believers applying the proportionality test. The state’s motive for excluding religious representations from the public space is to protect minority religions and non-believers from religious pressure and to respect their freedom of conscience in this way. Therefore, after evaluating and weighing the interests of all groups under the proportionality test, the Court would have found that it was not a proportional measure to intervene in the attorney’s free exercise of religion. To sum up, in this case, first, the Court should have emphasized the state’s duty of neutrality before different religions and beliefs. Second, the Court should have stated that the state’s policies in religious matters are subject to certain tests. As a result, equal constitutional protection would have been granted both to majority and minority religions by actualizing the “pluralistic secularism understanding” as defended by the Court throughout the case.136 Moreover, such an approach can allow the Constitutional Court to develop a coherent understanding of secularism without struggling between so-called different interpretations of secularism. However, the Court still refrains to apply a coherent standard in cases concerning religious sensibilities and thus, fails to deal with the issue as a matter of human rights. Therefore, it cannot be agreed with some authors who claim that the TCC has taken a rights-based approach beginning from 2012 and “started to interpret secularism as a principle that is in harmony with fundamental human rights and democratic society.”137

4.3.3

The Case Concerning the Call to Prayer

Another Constitutional Court judgment that reflects its new attitude on secularism was adopted on 30 June 2016 concerning the call to prayer.138 The applicant claimed that he was disturbed by the loud sounds of the call to prayer in the early mornings produced by the mosques surrounding his house. The three mosques situated within proximity to his house were under the control of the Diyanet.139 According to the applicant, he was forced to attend religious rituals and ceremonies of the Sunni branch of Islam of which he was not a member. He added that, although the people living in that area did not go to the mosque in the early mornings, the practice was continued; thus, the state violated the people’s right to live in a peaceful and healthy environment by making propaganda of one religion. He argued that his right to

135

See Justification of Dissenting Vote of Judge Osman Alifeyyaz Paksüt in Tuğba Arslan. See e.g. Tuğba Arslan, para. 140. 137 Arslan (2017). 138 DÖ, 30 June 2016, Turkish Constitutional Court decision, App no 2014/3977. 139 DÖ, para. 44. 136

4.3

The New Approach Adopted by the TCC after the 2010 Amendments

85

protection of private life, right to live in a healthy and balanced environment, and freedom of religion and conscience were violated, and the principles of secularism and equality were infringed.140 Therefore, moral compensation was required. Although the applicant expressly claimed that the subject matter of his application was a violation of his freedom of religion, the Constitutional Court refused to evaluate the case under the corresponding Article 24 of the Constitution. The Court held that the applicant’s concern was rather related to noise pollution, and therefore had to be evaluated within the scope of “the right to protect and improve his/her corporeal and spiritual existence” envisaged by Article 17 of the Constitution.141 Thus, in this way, the Court refused to evaluate the applicant’s claim to freedom of religion. Although the applicant argued that the state’s propaganda for a certain religious belief was in breach of the principles of secularism (Article 2) and equality (Article 10), the Court refrained from examining this claim concerning the principle of secularism. The Court focused on the applicant’s claim alleging that this particular action of the state violated the principle of equality.142 The TCC held that the applicant should have introduced certain facts evidencing that he had been treated differently compared to the other people who were in the same situation as him based on prohibited grounds. Since the applicant failed to demonstrate such evidence, Article 10 of the Constitution could not be applied separately from any other right. Therefore, the Court decided to evaluate the case under the right to protect and improve one’s corporeal and spiritual existence (Article 17 of the Constitution) in conjunction with the protection of private life (Article 20 of the Constitution) and the right to live in a healthy and balanced environment (Article 56 of the Constitution). The TCC held that the case concerned balancing the applicant’s right to protect his corporeal and spiritual existence and the interests of society in accessing the call to prayer which constitutes the requirement of the majority religion.143 In a democratic society, these interests should be certainly balanced on the ground of pluralism and tolerance. Then the Court reviewed Article 24 of the Constitution from the perspective of the majority religion and held that the freedom of religion could be restricted only on the grounds of Article 24(5) and within the conditions of Article 13 of the Constitution.144 In this regard, the Court held that the call to prayer had been an important religious Islamic ritual since its inception and had gained a cultural value within the society.145 Moreover, “the democratic tolerance and pluralism made it inevitable to allow some practices of majority religion of the society and included the obligation to tolerate such kind of cultural and religious

140

DÖ, para. 21. DÖ, para. 23. 142 DÖ, para. 24. 143 DÖ, para. 45. 144 DÖ, para. 49. 145 DÖ, para. 50. 141

86

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

practices to some extent as a matter of living together.”146 However, it was mentioned that these practices could not extend as far as violating the right of individuals to protect and improve their corporeal and spiritual existence and creating an unbearable burden for them. On the ground of the mentioned reasons, the Court declared the case inadmissible considering that “it lacks an explicit basis.”147 The violation of freedom of religion and the principle of secularism was at the core of the application. However, the Court did not evaluate the case within the scope of the constitutional provisions relied on by the applicant. In this way, it refused to review the allegation of a member of a minority religion as a matter of religious freedom and refrained from comparing the claims of two different religions. Secondly, the Court did not answer the question of whether the state’s promotion of one branch of the majority religion constitutes a violation of the principle of secularism envisaged by Article 2 of the Constitution or not. Both were the fundamental questions lying at the heart of the case. Interestingly, the Court was silent on the application of Article 2 to the case and did not refer to its new, “flexible and liberal” interpretation of secularism construed in the two preceding cases. Instead, the TCC applied Article 24 only concerning the majority religion and emphasized the obligation of tolerance for the cultural and religious practices of the majority religion as requirements of tolerance and pluralism.

4.4

Conclusion

After reviewing the headscarf cases of 1989, 1991, and 2008, it has become clear that by affording fundamental significance to the principle of secularism, the Court expanded also the scope of its judicial supervision over the acts of the legislator. The case concerning the “Headscarf Amendment” shows perfectly how the TCC increased its jurisdictional reach vis-à-vis constitutional amendments overcoming the explicit jurisdictional limitation on the substantive review. Unfortunately, by adopting a historical and teleological approach, the Court failed to see the wearing of religious clothing as a matter of a fundamental right and freedom and considered it as an abstract danger to a secular regime. The fundamentalist approach of the TCC adopted in these cases is found to be connected with its formation solely by the president under the 1982 Constitution. Analyzing the 2010 amendments, the research has found that, instead of removing these anti-democratic features of the 1982 Constitution, the amendments have gone even further to ensure the president’s decisive role in the formation of the TCC by (1) raising the number of direct (from three to four) and indirect (from eight to ten) presidential appointments; (2) by empowering the GNAT to elect three judges by a simple majority; (3) by inadequate methods employed in the nomination of

146 147

DÖ, para. 51 (author’s own translation). DÖ, para. 55.

References

87

candidates. The research has detected grave shortcomings in the appointment mechanism of constitutional justices leading to a loss of guarantees for the independence and impartiality of the judiciary. According to an empirical study on the transformation of the Turkish judiciary, “the 2010 reforms represented a significant break in the ideological position of the Court. The Court has shifted, and continues to shift, to the right. This shift has likely resulted from the changes to the Court’s structure and appointments process.”148 The research adds that “[d]espite the demonstrated ideological rightwards shift, judicial practice has not been significantly altered.”149 The findings of our research made specifically in the field of state-religion relationships completely overlap with the results and conclusion of the abovementioned research. A review of the TCC’s religious freedom cases marks a significant shift in the Court’s interpretation of secularism. However, this change is rather a reflection of “the increasing conservative shift in judicial preferences on the Court” which has been found also by the abovementioned study.150 Although the Court’s interpretation of secularism has changed, it is limited to protecting the rights and freedoms of the majority religion. It is another debate whether such an approach undermines the rights also of the majority religion which seeks protection from the interventionist state policies in the field of religion. An analysis of the cases shows that the Court’s judicial practice on religious liberties has not been changed—it still refrains from looking at the matter as a question of fundamental freedom and approaches the cases from the point of statereligion separation. Allowing more space for the majority religion in the public sphere without measuring its harms to the members of both majority and minority religions does not meet the requirements of the rights-based approach. Therefore, the opinion of some scholars who argue that the Court has now adopted a rights-centered approach which resulted in the construction of a liberal understanding of secularism is not accepted. The Court’s endorsement of expressions of the majority religion in the public sphere to a larger extent is not the outcome of the proper application of legal standards such as proportionality or equal treatment standards by it, nor the development of its general legal practice. It is rather a reflection of the conservative paradigm shift in the Court caused by the 2010 reforms.

References (2018) Restrictions on Muslim women’s dress in the 28 EU Member States: current law, recent legal developments, and the state of play. Open Society Justice Initiative (2020) 2019 Avukat Sayıları (31.12.2019) [2019 Number of Attorneys]. In: Union of Turkish Bar Associations. https://www.barobirlik.org.tr/Haberler/2019-avukat-sayilari-31122019-81078

148

Varol et al. (2016), p. 22. Varol et al. (2016), p. 22. 150 Varol et al. (2016), p. 23. 149

88

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

(2020) Ban on wearing a headscarf for legal trainees is constitutional. In: Bundesverfassungsgericht. https://www.bundesverfassungsgericht.de/SharedDocs/ Pressemitteilungen/EN/2020/bvg20-013.html Akandji-Kombe J-F (2007) Positive obligations under the European Convention on Human Rights. Council of Europe, Strasbourg Aksit B (1991) Islamic education in Turkey: medrese reform in late Ottoman Times and ImamHatip schools in the Republic. In: Tapper R (ed) Islam in modern Turkey: religion, politics and literature in a secular state. I. B. Tauris, London Altıparmak K (2013) Anayasa Mahkemesi ve 4+4+4: Din ve Vicdan Özgürlüğü Hanesinde Elde Var 0 [Constitutional Court and 4+4+4: In the Checkwork of the Freedom of Religion and Conscience There is Null]. Mülkiye Dergisi 37:147–158 Arslan Z (2002) Conflicting paradigms: political rights in the Turkish Constitutional Court. Crit Crit Middle East Stud 11:9–25. https://doi.org/10.1080/10669920120122225 Arslan Z (2009) Başörtüsü, Ak Parti ve Laiklik: Anayasa Mahkemesinden İki Karar Bir Gerekçe [Headscarf, AK Party and Secularism: Two Decisions and One Justification from the Constitutional Court]. Siyaset, Ekonomi ve Toplum Araştırmaları Vakfı (SETA), pp 1–28 Arslan Z (2017) (Re)interpreting secularism in a democratic society: a cursory view of the case-law of the Turkish Constitutional Court. International symposium on the occasion of the 14th anniversary of the Constitutional Court of the Republic of Indonesia on “The Constitutional Courts as the Guardian of Ideology and Democracy in the Pluralistic Society”, 9 August 2017, Solo, Indonesia Ayhan H (1999) Türkiye’de din eğitimi, 1920-1998 [Religious Education in Turkey, 1920–1998]. Marmara Üniversitesi İlâhiyat Fakültesi Vakfı yayınları, İstanbul Aysal N (2009) Yönetsel Alanda Değişimler ve Devrim Hareketlerine Karşı Gerici Tepkiler “Serbest Cumhuriyet Fırkası – Menemen Olayı” [Changes in the Administrative Field and Unprogressive Reactions Against Revolution Movements “Liberal Republican Party – Menemen Incident”]. Ankara Üniversitesi Türk İnkilap Tarihi Enstitüsü Atatürk Yolu Dergisi 11:581 Bâli AÜ (2012) The Perils of Judicial Independence: constitutional transition and the Turkish example. VA J Int Law 52:235 Belge C (2006) Friends of the court: the republican alliance and selective activism of the Constitutional Court of Turkey. Law Soc Rev 40:653 Bhargava R (2006) Political secularism: why it is needed and why we need to learn form its distinctive Indian version. In: Rehberg K-S (ed) Soziale Ungleichheit, kulturelle Unterschiede: Verhandlungen des 32. Kongresses der Deutschen Gesellschaft für Soziologie in München. Teilbd. 1 und 2. Campus Verl., Frankfurt am Main, pp 361–377 Cremer AS (2011) Turkey between the Ottoman Empire and the European Union: shifting political authority through the constitutional reform. Fordham Int Law J 35:279 Erdoğan M, Yazıcı S (2011) Report of the TESEV Commission on Constitution: towards Turkey’s New Constitution. TESEV Publications Erözden O, Kardaş Ü, Özbudun E, Yazıcı S (2010) A Judicial Conundrum: opinions and recommendations on constitutional reform in Turkey. TESEV Publications Gönenç L (2008) Presidential elements in government: Turkey. Eur Const Law Rev 4:488–523. https://doi.org/10.1017/S1574019608004884 Gözler K (2010) Türk Anayasa Hukuku Dersleri [Turkish constitutional law lessons], 9th edn. Ekin, Bursa Guindi FE (2005) The veil becomes a movement. In: Moghissi H (ed) Women and Islam: social conditions. Routledge, Obstacles and Prospects Gülalp H (2010) The battle for Turkey’s constitution. In: The Guardian. http://www.theguardian. com/commentisfree/2010/sep/04/turkey-constitution-undemocratic Hale W, Özbudun E (2010) Islamism, democracy and liberalism in Turkey: the case of the AKP. Routledge, London Howard DA (2001) The history of Turkey. Greenwood, Westport

References

89

Howard E (2017) Religious clothing and symbols in employment: a legal analysis of the situation in the EU Member States. European Commission Idriss MM (2006) Laïcité and the banning of the ‘hijab’ in France. Leg Stud 25:260–295. https:// doi.org/10.1111/j.1748-121X.2005.tb00615.x Jamal AA, Neo JL (2019) Religious pluralism and the challenge for secularism. J Law Relig State 7: 1–12 Kadioğlu A (1996) The paradox of Turkish nationalism and the construction of official identity. Middle East Stud 32:177–193. https://doi.org/10.1080/00263209608701110 Keskin B (2002) Confronting double patriarchy: Islamist women in Turkey. In: Bacchetta P, Power M (eds) Right-wing women: from conservatives to extremists around the world. Routledge, London, pp 241–253 Landau JM (1981) Islamism and secularism: the Turkish case. In: Morag S et al (eds) Studies in Judaism and Islam. The Magnes Press/The Hebrew University, Jerusalem Landfried C (1988) Constitutional review and legislation in the Federal Republic of Germany. In: Landfried C (ed) Constitutional review and legislation: an international comparison. Nomos, Baden-Baden Mahlmann M (2015) Religious symbolism and the resilience of liberal constitutionalism: on the Federal German Constitutional Court’s Second Head Scarf Decision. Ger Law J 16:887–900. https://doi.org/10.1017/S2071832200019933 Nammour J (2011) State and religion: comparing cases of changing relations. Friedrich Ebert Foundation and RES GERENDAE Neo JL (2016) Secular constitutionalism in Singapore: between equality and hierarchy. Oxf J Law Relig 5:431–456. https://doi.org/10.1093/ojlr/rww044 Özbudun E (2006) Political origins of the Turkish Constitutional Court and the problem of democratic legitimacy. Eur Public Law 12:213–223 Özbudun E (2010) Turkey’s constitutional reform and the 2010 constitutional referendum. Mediterr Polit 16:191 Özbudun E, Gençkaya ÖF (2009) Democratization and the politics of constitution-making in Turkey, NED-New edition, 1. Central European University Press, Budapest Özipek BB, Korkut L, Yılmaz M et al (2011) Vesayetsiz ve Tam Demokratik Bir Türkiye İçin: İnsan Onuruna Dayanan Yeni Anayasa [For an uncontrolled and full democracy in Turkey: a new constitution based on human dignity]. Institute of Strategic Thinking Portaru A (2017) CJEU Cases C-157/15 Achbita and C-188/15 Bougnaoui – ‘Neutrality’ Trumps Religious Freedom. In: Völkerrechtsblog. https://voelkerrechtsblog.org/articles/cjeu-cases-c-1 5715-achbita-and-c-18815-bougnaoui/ Rosenfeld M (2009) Can constitutionalism, secularism and religion be reconciled in an era of globalization and religious revival? Cardozo Law Rev 30:2333 Roznai Y, Yolcu S (2012) An unconstitutional constitutional amendment--the Turkish perspective: a comment on the Turkish Constitutional Court’s headscarf decision. Int J Const Law 10:175– 207. https://doi.org/10.1093/icon/mos007 Sağlam F (2010) AKP’nin Anayasa Değişikliği Paketi Üzerine Düşünceler [The thoughts about the AKP’s constitutional change package]. Mülkiye Dergisi 34:15–46 Sajó A (2008) Preliminaries to a concept of constitutional secularism. Int J Const Law 6:605–629. https://doi.org/10.1093/icon/mon018 Sandberg R (2008) Church-state relations in Europe: from legal models to an interdisciplinary approach. J Relig Eur 1:329–352. https://doi.org/10.1163/187489208X336560 Sandberg R, Doe N (2007) Church-state relations in Europe. Relig Compass 1:561–578. https://doi. org/10.1111/j.1749-8171.2007.00040.x Sevinç M (2010) 2010 Anayasa Değişiklikleri: Yöntem ve İçerik Eleştirisi [The 2010 Constitutional Amendments: criticism of regularity and substance]. Ankara Üniversitesi SBF Dergisi 65:271– 294

90

4

The TCC’s Approach to Secularism in Freedom of Religion Cases

Shambayati H (2008) The guardian of the regime: the Turkish Constitutional Court in comparative perspective. In: Arjomand SA (ed) Constitutional politics in the Middle East. Hart Publishing, Oxford, pp 99–121 Shambayati H, Kirdiş E (2009) In pursuit of “contemporary civilization”: judicial empowerment in Turkey. Polit Res Q 62:767–780 Shambayati H, Sütçü G (2012) The Turkish Constitutional Court and the Justice and Development Party (2002–09). Middle East Stud 48:107–123. https://doi.org/10.1080/00263206.2012. 644461 The Federal Constitutional Court - Structure. In: Bundesverfassungsgericht. https://www. bundesverfassungsgericht.de/EN/Das-Gericht/Organisation/organisation_node.html Turan I (1991) Religion and political culture in Turkey. In: Tapper R (ed) Islam in modern Turkey: religion, politics and literature in a secular state. I. B. Tauris, London Türkiye Barolar Birliği [Turkish Union of Bar Associations] (2011) Türkiye Cumhuriyeti Anayasa Önerisi: Geliştirilmiş Gerekçeli Yeni Metin [Proposal for a constitution of the Republic of Turkey: new and improved text with reasonings], 5th edn. TBB Varol OO (2011) The origins and limits of originalism: a comparative study. Vand J Transnatl Law 44:1239 Varol OO (2013) The Turkish “model” of civil-military relations. Int J Const Law 11:727. https:// doi.org/10.1093/icon/mot023 Varol OO, Dalla Pellegrina L, Garoupa N (2016) An empirical analysis of judicial transformation in Turkey. Am J Comp Law 65:187–216 Venice Commission (1997) The composition of constitutional courts. Science and technique of democracy, No. 20. https://www.venice.coe.int/webforms/documents/default.aspx?pdffile= CDL-STD(1997)020-e Venice Commission (2009) Opinion on the constitutional and legal provisions relevant to the prohibition of political parties in Turkey. https://www.legislationline.org/download/id/2793/ file/CDL-AD2009006-%20Opinion%20on%20Prohibition%20of%20Political%20Parties%20 Turkey.pdf Venice Commission (2013) e-Bulletin 2013-1 on constitutional case-law. https://www.venice.coe. int/files/Bulletin/B2013-1-e.pdf Yazıcı S (2017) Kuruluşundan Bu Yana Türk Anayasa Mahkemesinin Değişen Rolü [The Changing Role of the Turkish Constitutional Court since its Establishment]. In: Anayasa Mahkemesinin Kuruluşunun 55. Yılı Anısına: 55 Yıl 55 Makale [In Memory of the Constitutional Court’s 55th anniversary: 55 Years 55 Articles]. Anayasa Mahkemesi Yayınları, Ankara Zucca L (2009) The crisis of the secular state—a reply to Professor Sajó. Int J Const Law 7:494– 514. https://doi.org/10.1093/icon/mop010 Zucca L (2012) A secular Europe: law and religion in the European Constitutional Landscape. Oxford University Press, Oxford

Chapter 5

Protection of Secularism Within the Framework of the Political Party Regime

5.1

Constitutional and Statutory Regime for the Prohibition of Political Parties in Turkey

The TCC has dissolved a total of 24 parties; five of them were dissolved on the grounds of their anti-secular activities. The Parliamentary Assembly of the Council of Europe (hereafter the PACE) paid special attention to the legal ground for the prohibition of political parties in Turkey following the dissolution proceedings initiated against the AKP in 2008. In its Resolution 1622 (2008) of 26 June 2008, the PACE stressed the necessity for the detailed study of the Turkish constitutional and statutory framework on political parties to make this legal regime consistent with European standards and to promote further constitutional and legal reforms in this regard.1 This analysis aims to fulfill this need by giving due consideration to Turkey’s changing political, constitutional, and historical context.2 The Turkish party legislation in terms of its mechanisms protecting the principle of secularism reflects the concept of militant democracy.3 The concept of militant democracy was advanced by the German constitutional theory after the Second World War. The most important feature of Article 21 of the German Basic Law of 1949 (Grundgesetz, GG) is that it reflects the concept of militant democracy.4 In the English version of its judgment concerning the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, NPD), the FCC uses the terms “militant” or “fortified democracy” as a translation of the German principle of

1

PACE (2008a), paras. 14–15 [hereafter PACE Resolution 1622 (2008)]. The implications of the 2017 constitutional amendments transferring Turkey from the parliamentarian system to the presidential one will be separately evaluated in Chap. 6 with respect to the protection of the principle of secularism. 3 For the description of the tension between a militant democracy and legal pluralism in the example of Refah judgment, see Macklem (2006). 4 Rinck (1966), p. 322; Hesse (1995), p. 297. 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Masmaliyeva, Turkish Secularism, European Union and its Neighbours in a Globalized World 12, https://doi.org/10.1007/978-3-031-46011-1_5

91

92

5

Protection of Secularism Within the Framework of the Political Party Regime

“streitbare” or “wehrhafte Demokratie.”5 The rationale behind the concept of militant democracy is best described by Carl Schmitt, a German legal theorist, who argued that democracy should not allow the emergence of the “preconditions of its own destruction” and that it should have the right to protect itself from the actors who aim to destroy it.6 Turkey first incorporated provisions on the prohibition of political parties into the 1961 Constitution. Since then, the TCC has dissolved 24 parties altogether, omitting parties that were banned as a result of the military intervention of 12 September 1980.7 Out of these 24 parties, 18 were closed under the 1982 Constitution.8 Yet since 1983, several dissolution cases have been brought before the Constitutional Court, but have not resulted in any prohibition. These figures have raised the question both within Turkey itself and also on the European level about whether the Turkish party prohibition regime corresponds to European standards, while it must also be noted that there are no common European standards in the field of party prohibition.9 Contrarily, there is a high level of diversity in the constitutional and legal framework of European countries in terms of means and methods of party prohibition. Nevertheless, there exists a common European approach towards the mode of application of party prohibition rules: they are strictly interpreted and are invoked only in exceptional cases.10 There are at least general principles that can be drawn from the ECtHR cases, and also from soft law instruments which will be examined in detail in Section C.

5.1.1

Prohibition of a Political Party

In Turkey, the prohibition of a political party is governed by a strict legal regime. This means that the competence to open dissolution proceedings does not belong to the political organs, but under a procedure similar to a criminal case, belongs to the Chief Public Prosecutor at the Court of Cassation, the final judicial instance for reviewing criminal and civil judgments. The prohibition of political parties is regulated by Articles 68 and 69 of the 1982 Constitution, which was changed by the 1995 and 2001 amendments. The details of 5 BVerfG, 17 January 2017, 2 BvB 1/13, National Democratic Party II, para. 418 [hereafter NPD II]. 6 Finn (1991), p. 189. 7 See (2010) 1961’den Günümüze Kadar 25 Parti Kapatıldı [25 Parties Have Been Banned since 1961 to Date], No. 161 Meclis Haber Dergisi [Assembly News Journal], https://www.tbmm.gov.tr/ eyayin/GAZETELER/WEB/MECLIS%20BULTENI/2469_2009_0000_0161_0000/0006. pdf, p. 6. 8 See (2010) 1961’den Günümüze Kadar 25 Parti Kapatıldı [25 Parties Have Been Banned since 1961 to Date], No. 161 Meclis Haber Dergisi [Assembly News Journal], p. 6. 9 See Venice Commission (2009), paras. 62–63 [hereafter Prohibition of Political Parties in Turkey]. 10 See Venice Commission (2009) Prohibition of Political Parties in Turkey, paras. 13–22.

5.1

Constitutional and Statutory Regime for the Prohibition of. . .

93

these constitutional provisions are to be found in Law no. 2820 of 22 April 1983 on Political Parties (hereafter the LPP), in Chap. 4 “Bans regarding political parties” including articles 78–108.11 Article 68 of the Constitution governs the status of political parties and paragraph two determines that “[p]olitical parties are indispensable elements of democratic political life”. At the same time, Article 68(4) enumerates the founding principles of the state to which parties must adhere. According to Article 68(4), the fact that “statutes and programs, as well as the activities” of political parties violating the secular order, among other fundamental principles, is a ground for dissolving a party. Articles 68 and 69 of the Constitution should be read together with other constitutional provisions, to which they are intimately connected. In respect of secularism, this particularly includes Article 2, according to which “[t]he Republic of Turkey is a democratic, secular and social state” and is loyal to “the nationalism of Atatürk.” These are unamendable characteristics of the Constitution under Article 4. Therefore, the political parties are required to respect these core principles and can face prohibition in case of violating them. Another key constitutional provision that constitutes a principal ground for the decisions of the Constitutional Court in party prohibition cases is Article 24(5) which states that “[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.” In the LPP, this prohibition is reflected in Part 3 “Protecting the Principles and Revolutions of Atatürk and the Characteristics of a Secular State” covering Articles 84–89. These provisions include “Protecting the principles and revolutions of Atatürk” (Article 84), “Respect to Atatürk” (Article 85), “Safeguarding secularism and not demanding the caliphate regime” (Article 86), “Prohibition on the exploitation of religion and things sanctified by religion” (Article 87), “Prohibition on holding religious demonstrations” (Article 88), “Protecting the status of the Presidency for Religious Affairs” (Article 89). The criteria and procedure for prohibiting a political party are regulated by Article 69 of the Constitution and Articles 98–108 of the LPP. Article 69(4) assigns the jurisdiction to ban a political party permanently to the Constitutional Court. It also gives the competence to initiate dissolution proceedings exclusively to the Chief Public Prosecutor. According to Article 100(1) of the LPP, the Public Prosecutor can file a suit ex officio, relying on the petition of the Minister of Justice based on the decision of the Council of Ministers (government), or relying on the petition of another party. It should be mentioned that the 2017 constitutional amendments abolished the Council of Ministers and the office of prime minister, and transferred

11

Law No. 2820 on Political Parties, 22 April 1983, Official Gazette, 24 April 1983, No. 18027 [hereafter LPP]. English version of the Law can be found at the website of the Venice Commission, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2018)032-e.

94

5

Protection of Secularism Within the Framework of the Political Party Regime

their competences to the president.12 According to Article 100(2) of the LPP, to be eligible for requesting the Public Prosecutor to bring an action, a political party “must have run in the last parliamentary elections, must have a group in parliament, must have held its first grand congress, must have passed a decision to petition the case with the absolute majority of the votes of all members of the party’s central decision-making and administrative committee, and the petition must be submitted in writing to the Chief Public Prosecutor’s office on behalf of the political party by its chairman.” Political parties are monitored by the Office of Chief Public Prosecutor, which keeps “a record file for each political party.”13 The Chief Public Prosecutor can require political parties to provide any documents and information necessary for this record other than specified by Article 10(2) of the LPP.14 Under Article 74 of the LPP, the financial audit of political parties is conducted by the Constitutional Court. According to Articles 69(5) and 69(6) of the Constitution, the Constitutional Court dissolves a political party permanently when its statute and program or activities are contrary to the secular order, among other principles protected by Article 68(4). Article 101 of the LPP on “Dissolution of parties in case of violation of the prohibitions specified in the Constitution” rephrases the constitutional rules regarding the prohibition of political parties by the Constitutional Court. However, a party cannot be prohibited for any anti-secular activity. To dissolve a political party, it must be determined by the Constitutional Court that it has become a “center for the execution of such activities” within the meaning of Article 69(6). The term a “center” is explained by Article 69(6), which determines that a political party is considered “to become the center of such actions only when such actions are carried out intensively by the members of that party or the situation is shared implicitly or explicitly” by the central party organs, or “when these activities are carried out in determination by the abovementioned party organs directly.”

5.1.2

Legal Consequences of the Prohibition

The prohibition of a political party is followed by ancillary measures and bans. According to Article 107 of the LPP, the assets of the dissolved party are transferred to the Treasury as a result of the prohibition. According to the former Article 108 of the LPP, if the party dissolved itself in the course of dissolution proceedings, this

12

See Venice Commission (2017), para. 60 [hereafter Opinion on the Amendments to the Constitution]. 13 LPP, Art. 10(1). 14 LPP, Art. 10(3).

5.1

Constitutional and Statutory Regime for the Prohibition of. . .

95

would not affect the legal outcome of the TCC’s judgment on dissolution.15 This article was annulled by a Constitutional Court judgment of 8 December 2010.16 According to the former Article 84(5) of the Constitution, deputies who were found to have caused the dissolution of their parties with their acts and statements would lose their parliamentary mandate. This article was repealed by the 2010 constitutional amendments. The impact of the repeal of this rule will be evaluated further in Section C. Moreover, the party members who were found responsible for the prohibition of their party may not get involved in politics for 5 years. According to Article 69(9) of the Constitution, those members “shall not be founders, members, directors or supervisors in any other party” for the mentioned period. Moreover, they cannot be nominated as candidates by political parties in elections.17 Finally, Article 69(8) of the Constitution prohibits it to reorganize a dissolved party under another name. Article 69(7) of the Constitution introduces the deprivation of state funding as an alternative sanction to prohibition. Considering the “intensity of the actions,” the Constitutional Court may decide to deprive the party of public financing wholly or in part instead of prohibiting it permanently. The questions arising from the application of this sanction will be discussed in Section C. Another form of penalty is the “warning” governed by Article 104 of the LPP. The party gets an official notice of warning from the Constitutional Court in the case of simple violations which can be repaired by the party. The prohibition procedure is based on the Criminal Procedure Code numbered 5271 and dated 4 December 2004.18 Although it is proceeded in a way akin to criminal proceedings, the dissolution procedure is not categorized as a criminal case. Rather, due to its political nature, it constitutes a specific kind of proceeding. The motive of the framers of the Constitution and lawmakers in giving this procedure a legal form to the extent possible was related to the lack of confidence in the political organs.19 Unlike a criminal case, which is focused on resocialising the accused and on overall prevention, the party prohibition procedure functions as a specific protection mechanism of the democratic regime against the anti-democratic parties which is applied as a last resort.20

Former Article 108 of the LPP read as follows: “A resolution by the competent body of a political party dissolving that party after an application for its dissolution has been lodged shall not prevent the proceedings before the Constitutional Court continuing or deprive any dissolution order that is made of its legal effects” (cited in Algan (2011), p. 830. 16 Turkish Constitutional Court decision, 8 December 2010, E. 2010/17, K. 2010/112. 17 LPP, Art. 95. 18 Law No. 6216 on the Establishment and Rules of Procedure of the Constitutional Court, 30 March 2011, Official Gazette, 3 April 2011, No. 27894, Art. 52(2) [hereafter Law on the Constitutional Court]. English version of the Law can be found at the website of the Venice Commission, https:// www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2011)047-e. 19 See Rumpf and Akartürk (2008), p. 11. 20 See Sağlam (1999), p. 143. 15

96

5

Protection of Secularism Within the Framework of the Political Party Regime

Once the Public Prosecutor has filed an indictment, the Constitutional Court, composed of fifteen members after the 2017 constitutional amendments, is required to investigate the case. According to Article 52(3) of the Law on the Constitutional Court, the case is reviewed by the Court in two separate steps. In the first step, admissibility is decided, then the case is scrutinized on its substantive merits. As in the constitutional courts of other European countries, the rapporteur takes a significant position in this review process. The rapporteur “prepares a preliminary examination report and submits it to the Presidential Office.”21 The Public Prosecutor’s petition for dissolution is rejected if less than two-thirds, i.e. ten members, agree with the dissolution of the party as provided in Article 149(3) of the Constitution. Deprivation of the party of state funding also requires the same quorum. The judgment is published in the Official Gazette. The decision cannot be appealed, nor can its execution be suspended temporarily even if an application is lodged with the ECtHR.22

5.2

Prohibition of Political Parties by the TCC for Being “a Center of Anti-Secular Activities”

The party system described above displays the tension between the protection of secularism and democracy. On the one hand, secularism and democracy together constitute the constitutional foundation of the Turkish Republic, and thus their preservation can be ensured only in creative unity as suggested by the German principle of practical concordance (German: praktische Konkordanz).23 On the other hand, these constitutional values are in competition and can threaten each other. While democracy requires free participation and representation of religious groups in political affairs, the principle of secularism needs to be protected from the antisecular activities of the political parties. Yet democratic rights can be also harmed by an excessively restrictive implementation of secularism. This conflicting relationship between secularism and democracy requires that each of these principles get its optimum value satisfying the principle of proportionality to construct a harmony of both constitutional values. Sacrificing one of the competing values for the other can jeopardize both founding principles, and consequently, the structural unity of the constitution altogether. This nuance should be considered both in the adoption of the legal rules and in their application by the Constitutional Court. This section will evaluate whether the Constitutional Court has succeeded in critically assessing the risky relationship between the principle of secularism and the

Law on the Constitutional Court, Art. 52(3). Note: the term “the Presidential Office” is used to mean “Presidency of the TCC”. 22 Rumpf and Akartürk (2008), p. 15. 23 See Kommers (1997), pp. 45–47. 21

5.2

Prohibition of Political Parties by the TCC for Being “a Center. . .

97

freedom of the political process, and in balancing them. The relevant jurisprudence of the TCC will be reviewed to identify its approach to this matter.

5.2.1

Prohibition Cases concerning “Anti-Secular” Parties

The TCC has dissolved five political parties for being “a center of anti-secular activities”. These include the National Order Party (Milli Nizam Partisi, MNP) (1971), the Peace Party (Huzur Partisi, HP) (1983), the Freedom and Democracy Party (Özgürlük ve Demokrasi Partisi, ÖZDEP) (1993), the Refah Party (1998), and the Virtue Party (Fazilet Partisi, FP) (2001).24 Besides, the Court did not dissolve the Democratic Peace Movement Party (Demokratik Barış Hareketi Partisi, DBH) and the ruling AKP which were charged with the same violation in its judgments dated 22 May 1997 and 30 July 2008 respectively. After briefly discussing early prohibition cases, the analysis will mainly focus on two high-profile cases, the cases for dissolving ruling parties, namely the Refah and the AKP. The Constitutional Court made its first dissolution decision under the 1982 Constitution in the Peace Party case after Turkey’s return to multi-party politics in 1983. The indictment stated that some of the provisions in the party program expressly violated the principle of secularism.25 Especially, it was declared in the party program that the party did not accept the idea that education must be “secular as in some socialist countries” and committed itself to raise generations through the educational system taking its source from “Turkish Islamic traditions.”26 In its policy program, the Peace Party expressed its aim to apply religious education at the universities and ensure that the educational system esteemed religious values. In defending itself, the Peace Party claimed that its program was not in breach of the principle of secularism, rather it wished the young generations to preserve the national character, embracing “Turkish Islamic traditions.” The party added that “[i]t is the state that is secular. The people are free to instruct religion.”27 The Constitutional Court did not accept this argument. In rejecting the Peace Party’s defence, the TCC underlined that although the concept of a secular state was imported from Western countries, its implementation in Turkey was unique to the country’s specific context. Different models of secularism could be developed depending on the internal context of each country and the different features of each religion. In this regard, Turkey could not be expected to implement the same model of secularism as in the Western countries, while Islam and Christianity differ in their conditions, tenets, and requirements. The TCC held that in the Ottoman

24 See (2010) 1961’den Günümüze Kadar 25 Parti Kapatıldı [25 Parties Have Been Banned since 1961 to Date], No. 161 Meclis Haber Dergisi [Assembly News Journal]. 25 Turkish Constitutional Court decision, 25 October 1983, E. 1983/2, K. 1983/2. 26 Turkish Constitutional Court decision, 25 October 1983, E. 1983/2, K. 1983/2. 27 Turkish Constitutional Court decision, 25 October 1983, E. 1983/2, K. 1983/2.

98

5

Protection of Secularism Within the Framework of the Political Party Regime

Empire, religion had been abused by religious leaders who had misused their authority by giving judgments that had precluded the “civilizational” growth and had even strived to preclude the independence struggle towards the end of WWI. According to the TCC, it was a reality that certain groups were continuously intending to exploit religion for personal interests, therefore the principle of secularism was strictly protected by the Constitution. Further, it maintained that the ultimate aim of Atatürk’s revolution was to escape underdevelopment, and to achieve “the level of contemporary civilization.”28 Based on this reasoning, the TCC rejected the idea that this target could be reached at some stage, thus alleviating the nation’s reformist struggle. The Court further stated that “secularism is in the center of Atatürk’s revolution, and this rule forms the cornerstone of the reforms. In other words, even a minimal modification to the principle of secularism could derail Atatürk’s reforms and cause their destruction.”29 Consequently, the Peace Party was permanently dissolved by the Court. The reasoning formulated by the Court in the Peace Party case has been cited regularly in later rulings. In the case of the Democratic Peace Movement Party, the indictment alleged that the party program, which advocated the abolition of the Diyanet, infringed the principle of secularism.30 The Prosecutor claimed that the Diyanet is a state office founded by the Constitution and is indispensable for the maintenance of secularism. The accused party responded that the Diyanet, which was a state institution, provided legal opinions and was involved in religious matters. Furthermore, it propagated the interpretation of the Hanafi legal sub-school of the Sunni branch of Islam, instead of serving the interests of all Muslim citizens. The presence of this institution as a state body caused an exclusionary attitude towards the non-Muslim citizens of Turkey. Characterizing the Turkish state as only “semi-secular,” the accused party claimed that the constitutional provision instituting the Diyanet is not unamendable, and thus it could be changed or repealed. The Court refused to ban the party reasoning that the objective of the proposal concerning the abolition of the Diyanet made in the party program was not to remove secularism, but rather to advance it. The criteria for dissolving political parties were regulated exclusively by the constitutional provisions, Articles 68 and 69, which did not prohibit changing the status of the Diyanet. It was prohibited rather by Article 89 of the LPP which created an additional ban extending the constitutional criteria. Thus, article 89 of the LPP should be set aside in evaluating the compatibility of the party program with the dissolution criteria of the Constitution. Therefore, the Court did not find the party program in violation of Articles 68 and 69 of the Constitution. What prevented the Court from declaring Article 89 of the LPP unconstitutional, was Provisional Article 15/3 of the Constitution, which prohibited raising the

28

Turkish Constitutional Court decision, 25 October 1983, E. 1983/2, K. 1983/2. Turkish Constitutional Court decision, 25 October 1983, E. 1983/2, K. 1983/2 (author’s own translation). 30 Turkish Constitutional Court decision, 22 May 1997, E. 1996/3, K. 1997/3. 29

5.2

Prohibition of Political Parties by the TCC for Being “a Center. . .

99

constitutionality question of the laws enacted during the period of the military regime (12 September 1980–6 December 1983), including the LPP.31 The mentioned Transitional Article was abolished by the 2001 constitutional amendments.32 The same question was raised in the case of the Democratic Masses Party (Demokratik Kitle Partisi, DKP).33 The part of the petition concerning the infringement of secularism related to the party’s promotion of the removal or reform of the Diyanet. Based on the same ground, the Court refused the part of the complaint regarding the breach of secularism.

5.2.2

The Refah Party Case

5.2.2.1

Dissolution of Refah by the Turkish Constitutional Court

Refah was a special case for the Court due to its size and political importance. It was the biggest political party in the country, declaring over 4.3 million members. It had existed since 1983, for nearly 14 years at the time of initiation of the dissolution proceedings. In the parliamentary elections of December 1995, Refah obtained 21.4% of the votes, becoming the biggest party in the Assembly, with 158 seats out of 550 available.34 It was for the first time since the establishment of the Republic of Turkey that an Islamic party had gained the biggest popular support in the general elections. In June 1996, as a leading partner, Refah established a coalition government with the True Path Party (Doğru Yol Partisi, DYP), and its chairman Necmettin Erbakan began to serve as prime minister.35 In the municipal elections held on November 1996, the party gained 35% of the votes. When the petition for the prohibition of the Refah Party was brought before the Constitutional Court on 21 May 1997, Refah remained the leading party in a coalition government for a year. However, it was already being attacked by the military and other secular Kemalist circles including “professional organizations, academia, parties of the center, big media and some sections of the civil bureaucracy”36 which alleged that there was a serious danger to the secular regime under the Refah Party-led coalition government. After issuing a memorandum in February 1997 proclaiming Islamic fundamentalism as a vital threat to the country, the National Security Council (hereafter the NSC) started to occupy itself intensively with everyday politics.37 The media also actively contributed to the debate. In the

31

See Hakyemez (2002), pt. II (D). See Hakyemez (2002), pt. II (D); see also Özbudun (2010), p. 136. 33 Turkish Constitutional Court decision, 26 February 1999, E. 1997/2, K. 1999/1. 34 See Cox (1997), p. 9. 35 See Howe (2000), pp. 118–19. 36 Erdogan (1999), p. 39. 37 Erdogan (1999), p. 39. 32

100

5

Protection of Secularism Within the Framework of the Political Party Regime

end, the coalition government was urged to resign by the military in June 1997, while dissolution proceedings were still pending. It was within this context that the prohibition case against the Refah Party was heard by the Constitutional Court. On 21 May 1997, the Public Prosecutor petitioned the Constitutional Court to ban the Refah Party for the reason that it had become a “center” of activities offending the principle of secularism.38 Unlike preceding cases brought before the Court on the same grounds (the Peace Party, the Democratic Peace Movement Party, and the Democratic Masses Party), the indictment did not rely on the statute or election manifesto of the party, nor its program for the government adopted in agreement with its coalition partner. Thus, no provision was referred to as advocating the establishment of a theocratic state or proposing to impair the principle of secularism as enshrined in the Constitution. The party’s program explicitly accepted the state’s secular character. No evidence was presented to the Court concerning the recourse to force or violence by the party. The evidence relied on by the Public Prosecutor to support the prohibition request included acts and speeches of the prime minister, vice-chairman of the party, and some other party members, all of which had been made several years before coming to power, particularly in 1993 and 1994. It also included certain acts of party leaders made while the party was in power, which will be examined in detail below. The Constitutional Court did not find any provision in Refah’s statute or political program indicating that the party aimed to establish a theocratic regime or to infringe on the secular nature of the constitutional system. However, after examining the presented twelve speeches and acts of the party leaders and other members, the Court decided that the party had become a “center of anti-secular activities” and it must be dissolved on that ground. The decision for dissolution was based on Articles 101 (b) and 103(1) of the LPP. It banned five party leaders from politics for 5 years. The other 153 Refah parliamentarians continued holding their seats as independent Members of Parliament (MPs). As a consequence of the dissolution, Refah’s assets were confiscated and granted to the Treasury by the order of the Constitutional Court according to Article 107 of the LPP. The Constitutional Court based its decision in favor of the party closure on the following grounds: 1) the speeches of Erbakan, the chairman of Refah, encouraging the wearing of the headscarf at schools and universities, promoting a policy of plurality of legal systems, and the speeches quoting establishment of a “just order” (adil düzen) given in 1993–1994, before entering the government; 2) the speeches of certain Refah MPs supporting the establishment of sharia and referring to the concept of jihad (“holy war”); 3) several activities of party leaders during Refah’s government term such as adjusting work time in the public sector to comfort fasting employees during Ramadan, the reception given by Prime Minister Erbakan to

38

Turkish Constitutional Court decision, 16 January 1998, E. 1997/1, K. 1998/1.

5.2

Prohibition of Political Parties by the TCC for Being “a Center. . .

101

religious leaders during Ramadan at his official residence, and visiting a party member charged with inciting religious hatred.39 Based on some statements of Necmettin Erbakan, made in 1993, the Constitutional Court held that Refah aimed to establish a plurality of legal systems in Turkey, a project that, if it were realized, would compel each person to join a religious group of his/her choice and thus, be governed by a legal system prescribed by his/her religious community. It would, according to the Court, divide society into various religious groups and also impair judicial and legislative unity, which were the prerequisites for a secular state and national consciousness. According to the Court, it would prepare preconditions for the introduction of sharia. The Constitutional Court determined that Refah’s concealed aim was to establish a sharia-based political regime. The TCC came to this conclusion from the public speeches of some Refah members referring to sharia. In that connection, the Court criticized sharia considering it the opposite concept of democracy and characterized it as the antithesis of the ideal of humanity, freedom, and independence. The Court found the statements of certain party members making references to “jihad” as the ground for dissolution. Although it was clear from the case that the party had not made recourse to violent methods for gaining political power, the Court considered the offensive speeches as a ground for presuming the possibility of recourse to violence in the party’s future political fight. Two judges of the Constitutional Court, Haşim Kılıç and Sacit Adalı, issued dissenting opinions. They argued, based on the ECHR, that the protection of freedom of expression covers also the ideas that shock or disturb, and that the prohibition of a party that did not use violent methods was inconsistent with the jurisprudence of the ECtHR. The arguments of the Constitutional Court will be evaluated together with the ECtHR’s decision in Refah Partisi (the Welfare Party) and others v. Turkey.

5.2.2.2

The ECtHR’s Refah Decision

In the Refah case, the central question before the ECtHR was whether the dissolution of Refah and the auxiliary measures fulfilled a “pressing social need” and were compatible with the principle of proportionality. The Chamber answered this question in the affirmative by four votes to three.40 The Grand Chamber upheld the dissolution unanimously.41

39

The detailed information concerning these impugned acts and statements are provided in the ECtHR’s Chamber and Grand Chamber judgments in the Refah case. They will be analyzed in light of the mentioned judgments of the ECtHR in the next part. 40 Refah Partisi (The Welfare Party) and Others v Turkey App nos 41340/98, 41342/98, 41343/98 and 41344/98 (ECtHR, 31 July 2001) [hereafter Refah Chamber judgment]. 41 Refah Partisi (The Welfare Party) and Others v Turkey App nos 41340/98, 41342/98, 41343/98 and 41344/98 (ECtHR, 13 February 2003) [hereafter Refah Grand Chamber judgment].

102

5

Protection of Secularism Within the Framework of the Political Party Regime

In Refah, the ECtHR referred to its classic Article 11 test to decide whether the prohibition of Refah contravened the applicants’ freedom of association as guaranteed by the Convention. First, the Court ascertained whether Refah’s freedom of association was interfered with by the state.42 Second, the ECtHR examined whether there was a justification for the interference. Justification can be considered to exist if the restriction is prescribed by law, pursues a legitimate aim as provided in Article 11(2) ECHR, and is necessary in a democratic society.43 The ECtHR made its analysis based on the same actions and public speeches presented to the TCC. After analyzing relevant pieces of evidence, the ECtHR concluded that the state’s interference pursued a legitimate aim. The ECtHR decided that the prohibition of Refah served “several of the legitimate aims listed in Article 11” such as “protection of national security and public safety, prevention of disorder or crime and protection of the rights and freedoms of others.”44 Subsequently, the ECtHR began to assess thoroughly whether the restriction was necessary in a democratic society and estimated the state’s recourse to dissolution as a legitimate necessity. The ECtHR focused on the same grounds relied on by the Constitutional Court for its decision that Refah had violated the principle of secularism: (1) by proposing to institute a plurality of legal systems on the ground of religious belief; (2) by supporting the application of sharia to the Muslim population, and (3) by statements of its members referring to jihad as a means of obtaining political power.45 The ECtHR adopted the findings of the Constitutional Court concluding that Refah was aimed at the establishment of a plurality of legal system and the introduction of sharia. The Grand Chamber endorsed the Chamber’s view that plurality of legal systems would subject individuals to a distinct set of rights and freedoms grounded on their religion and would consequently bring discrimination between the individuals.46 The ECtHR found such a system inconsistent with the Convention system on two grounds. First, it would eliminate the positive obligation of the state to guarantee that everyone “enjoys in full, and without being able to waive them, the rights and freedoms guaranteed by the Convention.”47 In other words, the unity of law would be extinguished. Second, this kind of model would violate the principle of non-discrimination between persons, causing them to face different treatment in all areas of public and private law based on their religion which is in breach of the Convention, and more specifically Article 14 ECHR as it affects the exercise of several Convention rights. The Grand Chamber adopted the position of the Constitutional Court and the Chamber on the question of sharia and repeated their criticisms of sharia. It

42

Refah, Grand Chamber judgment, para. 50. Refah, Grand Chamber judgment, para. 51. 44 Refah, Grand Chamber judgment, para. 67. 45 Refah, Grand Chamber judgment, paras. 116–134. 46 Refah, Grand Chamber judgment, para. 119. 47 Refah, Grand Chamber judgment, para. 119. 43

5.2

Prohibition of Political Parties by the TCC for Being “a Center. . .

103

considered sharia to be incompatible with the Convention principles referring to the Chamber judgment which held that “[i]t is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values . . .”.48 Concerning the political methods used by the party the Chamber confirmed that “it was not disputed before the Court that so far Refah had pursued its political ends by legitimate means . . .”49 However, based on certain speeches of Refah members referring to the need for jihad, it was convinced by the Constitutional Court’s finding concerning the possibility of using force as a political weapon in the future.50 This conclusion of the Chamber was also approved by the Grand Chamber.51 Finally, the European Court considered that as an influential party, Refah had high chances of gaining power enabling it to implement its political aims. Referring to the number of seats (157) secured by Refah in the GNAT and its significant success in the general and local elections, the ECtHR considered that Refah’s real chance of implementing those plans created “a more tangible and more immediate” danger to the public order.52 Accordingly, the Grand Chamber decided that the state’s intervention was a proportionate step to the legitimate aims sought because it was taken to meet a “pressing social need.”53 Thus, the Grand Chamber unanimously maintained the 4:3 judgment of the Chamber.

5.2.2.3

Analysis of the ECtHR’s Refah Decision

In the Chamber judgment, the dissenting judges Fuhrmann, Loucaides, and Sir Nicholas Bratza argued that the prohibition of the party was an excessive measure considering that the majority of the disputed statements had been made long before the party had taken office and there was no proof showing that the party had, when it was in government, taken any measure to infringe on secularism.54 However, it is stunning that the Grand Chamber did not make any endeavor to deal with the arguments of the dissenting judges in the Chamber ruling. Such omission challenges the strength of the ECtHR’s unanimous judgment representing the position of seventeen judges.55 In its judgment, the Grand Chamber relied entirely on the grounds given by the TCC to justify the dissolution of Refah.

48

Refah, Grand Chamber judgment, para. 123. Refah, Chamber judgment, para. 74. 50 Refah, Chamber judgment, para. 74. 51 Refah, Grand Chamber judgment, para. 131. 52 Refah, Grand Chamber judgment, paras. 107, 110. 53 Refah, Grand Chamber judgment, para. 132. 54 Joint Dissenting Opinion of Judges Fuhrmann, Loucaides and Sir Nicholas Bratza in Refah, Chamber judgment [hereafter Joint Dissenting Opinion in Refah, Chamber judgment]. 55 See Boyle (2004), p. 6. 49

104

5

Protection of Secularism Within the Framework of the Political Party Regime

In assessing Refah’s dissolution, the ECtHR did not apply its previous reasoning and precedents. This departure from previous case law included: (1) omitting to examine the party’s statute as a basis of its assessment; (2) failing to focus on Refah’s activities when it was the dominant party in the GNAT; (3) giving too much weight to party members with extremist views, and (4) establishing new criteria for finding a violation of Article 11 of the Convention.56 Firstly, the ECtHR refrained from examining Refah’s statute to assess the necessity of restricting the freedom of association which was part of its precedents.57 Refah did not propose introducing sharia or a plurality of legal systems in Turkey in its statute or program.58 Also, there was nothing in the party statute indicating that the party pursued the goal of undermining or destroying the democratic system in Turkey, or sought to reach its objectives by undemocratic means as claimed by the government. Rather, the Refah statute advocated lifting the headscarf ban at public universities and schools, permitting people to educate their children at religious middle schools, and permitting citizens with Islamic beliefs to serve in the military.59 Moreover, the applicants challenged before the ECtHR that their shared government program prepared jointly with the True Path Party bound the coalition of the government partners by “the fact that Turkey is a civil, democratic, secular, and social State” and by “Kemalist principles.”60 Admittedly, as it has also been expressed by the ECtHR, a party may have hidden aims and plans different from the proclaimed ones.61 The European Court in the United Communist Party case had observed that to confirm such a presumption, the party program had to be considered together with the party’s activities and declarations. Thus, to establish that Refah pursued political aims hostile to the secular and democratic regime as argued by the government, impugned acts and declarations of Refah members had to be closely examined by the ECtHR.62 Moreover, as it was observed by the dissenting judges in Refah, “whereas here the grounds relied on by the Constitutional Court relate not to the program and activities of the political party itself but rather to actions or statements of individual leaders or members of the party . . . particularly convincing and compelling reasons must be shown to justify a decision to dissolve the entire party” (emphasis added).63 The dissenters also 56

Schilling (2004), p. 511. United Communist Party of Turkey and Others v Turkey Case no 133/1996/752/951 (ECtHR, 30 January 1998), para. 26. 58 The speeches of Erbakan concerning plurality of legal system cited by the ECtHR were given in 1993. In these speeches Erbakan had suggested permitting Turkish nationals to select a legal system on the basis of their religious affiliations. See Refah, Grand Chamber judgment, paras. 28–30 and para. 72. 59 Yuksel (1999), pp. 445–46. 60 Refah, Chamber judgment, para. 55. 61 United Communist Party of Turkey and Others v. Turkey, para. 58; Socialist Party and Others v Turkey Case no 20/1997/804/1007 (ECtHR, 25 May 1998), para. 48. 62 Joint Dissenting Opinion in Refah, Chamber judgment. 63 Joint Dissenting Opinion in Refah, Chamber judgment. 57

5.2

Prohibition of Political Parties by the TCC for Being “a Center. . .

105

emphasized that particularly strict scrutiny is required where, as in the Refah case, the disputed speeches and actions were not connected concerning place or time but were separate incidents happening in varying circumstances during a period of 5 years (1992–1997) and in most cases long before the party was in authority (1996).64 It is concluded that both the Chamber and Grand Chamber judgments have failed to make a detailed, concrete, and rigorous assessment of the evidence and upheld the dissolution of Refah while there was no compelling evidence proving its aim of destroying secularism. It is argued that the strict and concrete assessment of the dissenting judges in the Chamber judgment, who maintained that the prohibition was an excessive measure, is preferrable.65 In the view of the dissenting judges, the evidence relied on to justify the measure of prohibiting Refah did not reach the high threshold demanded for justification under the ECHR. The source of the dispute over the judgments of the Chamber and Grand Chamber do not stem from the principles to be applied under the ECHR when dealing with the question of defending the tenets of democracy and prohibition of a political party. Rather, the matter of concern is the application of those principles to the case of Refah under Convention law.66 We will examine the ECtHR’s evaluation concerning the necessity of the prohibition measure applied to Refah in pursuit of protecting the secular order focusing on the main grounds relied on by the Strasbourg Court judges.

5.2.2.3.1

Plurality of Legal Systems

It is agreed with the European Court and the Turkish Constitutional Court that the introduction of a plurality of legal systems would be in breach of the principles of secularism and equality, which are consistent with respect for human rights and the rule of law. However, it is submitted that there was not necessity for the ECtHR to analyze the concrete nature or impact of the plurality of legal systems, which was referred to by Necmettin Erbakan. The pieces of evidence listed by the Constitutional Court to prove the party’s aim of establishing a multi-juridical system consisted of only two speeches of Necmettin Erbakan given in March and October 1993, more than 4 years before the dissolution decision and nearly 3 years before Refah entered government.67 As argued by the dissenting judges, these declarations did not afford adequate basis for concluding that the party posed a real danger to the secular order at the time of the prohibition.68 Moreover, no evidence was revealed in

64

Joint Dissenting Opinion in Refah, Chamber judgment. Boyle (2004), p. 3. 66 Boyle (2004), p. 4. 67 These speeches were given in the GNAT and at a Refah party conference. See Refah, Chamber judgment, para. 117. 68 Joint Dissenting Opinion in Refah, Chamber judgment. 65

106

5

Protection of Secularism Within the Framework of the Political Party Regime

the documents before the ECtHR showing that the party, while in power, did anything in the direction of implementing a multi-juridical system as described by the Constitutional Court.69 Certainly, as pointed out by the ECtHR, “a party’s political programme may conceal objectives and intentions different from the ones it proclaims.”70 However, the existence of such concealed aims can be demonstrated only by the party’s real implementing measures, either by violent or legal democratic means. As mentioned above, in the Refah case it was admitted that the party had never referred to violent methods. It was also evident that “Refah had not proposed reform of Turkey’s constitution, either in its statute or in the programme it drew up with its coalition partner”71 nor had it taken any legislative or administrative measure to implement the idea of a multi-juridical society.72 It is quite astonishing that both Chambers considered the quotations73 extracted from the speeches of 1993 as “relevant and sufficient” evidence for inferring that the party had pursued the concealed aim without having any real sign thereof. In fact, “multi-culturalism” was the most heavily debated topic of political theory during the last 20 years of that period and the plurality of legal systems was a very “trendy” idea debated among the Islamic intellectual circles.74 Bringing any kind of topic like this into a public debate, even if it was irksome, could be seen as a natural opportunity offered by the freedom of expression, the condition that democracy thrives on. This is the principle elaborated by the ECtHR in its earlier jurisprudence where it held: “There can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned. It is of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself.”75 However, it seems that the ECtHR failed to apply the same principle to the Refah case.76

69

Joint Dissenting Opinion in Refah, Chamber judgment. Refah, Grand Chamber judgment, para. 101. 71 Refah, Chamber judgment, para. 80. 72 Refah, Grand Chamber judgment, para. 118. 73 In his speech of 23 March 1993 Erbakan stated: “[t]here must be several legal systems. . . . Moreover, that has always been the case throughout our history. . . . there have been various religious movements. Everyone lived according to the legal rules of his own organisation, and so everyone lived in peace”. See Refah, Grand Chamber judgment, para. 28. 74 Erdoğan (2001a), pp. 46–47. 75 United Communist Party of Turkey and Others v. Turkey, para. 57; Socialist Party and Others v. Turkey, paras. 45 and 47; Freedom and Democracy Party (ŐZDEP) v Turkey App no 23885/94 (ECtHR, 8 December 1999), para. 44. 76 See Joint Dissenting Opinion in Refah, Chamber judgment. 70

5.2

Prohibition of Political Parties by the TCC for Being “a Center. . .

5.2.2.3.2

107

Sharia and References to Jihad

The ECtHR has been criticized for making an “unnecessary” and “unhelpful” evaluation of sharia.77 It is considered that because no exact political model for introducing sharia was proposed by the party, the Court did not need to evaluate the abstract compatibility of sharia with the Convention at all. For the Court, it would have been sufficient to infer from the adduced acts and speeches whether the political party posed a real danger to the secular order. For instance, the European Commission of Human Rights in the case of Communist Party of Germany (Kommunistische Partei Deutschlands, KPD) entered into a debate about the compatibility of communism with democracy as establishing a communist society was a declared aim of that party.78 In the Refah case, the European Court fell into the TCC’s trap which diagnosed the “establishment of a political regime based on sharia” as a concealed aim of Refah.79 It would have sufficed to compare the compatibility of Refah’s activities with the requirements of protection of secularism, without speculating about what kind of religious regime it aimed to introduce. In establishing that Refah aimed to set up sharia, the Constitutional Court relied on the speeches of the chairman and vice-chairman of Refah, expressing their intention of bringing sharia or a “just order,” made in 1993, 1994, and 1996— years before Refah came to authority.80 The ECtHR rightly emphasized that, although phrases such as “just order” or “God’s order” “lend themselves to a number of different interpretations, their common denominator is that they both refer to religious or divine rules as the basis for the political regime” envisioned by the speakers.81 Nevertheless, there was no evidence in the material “to indicate that Refah, once in power, ever sought to implement such a system.”82 The speeches of the other three Refah MPs making explicit references to sharia were undeniably inflammatory and aggressive in their rhetoric. All of them were sued for their offending speeches and removed from the party after the dissolution proceedings were started against Refah. However, this fact was dismissed both by the Constitutional Court and the European Court considering that the party did not promptly disavow these statements, and the “decisions to expel the persons concerned were taken in the hope of avoiding Refah’s dissolution.”83 Thus, their expulsion was not accepted by the three Courts as a free decision of the political party. In fact, Refah failed to timeously repudiate those statements. However, Article

77

See Erdoğan (2001a), p. 47; Boyle (2004), pp. 12–13. Communist Party of Germany v Federal Republic of Germany (dec), App no 250/57 (ECmHR, 20 July 1957). 79 See Erdoğan (2001a), p. 47. 80 For the list of those statements see Refah, Grand Chamber judgment, paras. 120–121; Refah, Chamber judgment, para. 71. 81 Refah, Grand Chamber judgment, para. 122; Refah, Chamber judgment, para. 72. 82 Joint Dissenting Opinion in Refah, Chamber judgment. 83 Refah, Chamber judgment, para. 78; Refah, Grand Chamber judgment, para. 115. 78

108

5

Protection of Secularism Within the Framework of the Political Party Regime

101(d)84 of the LPP explicitly provided that if within 30 days of the submission of the request for prohibition “the member or members in question have been permanently excluded, the dissolution proceedings shall lapse.”85 The Grand Chamber affirmed the Chamber’s finding that although so far the party had sought to promote its political aims by legitimate methods, there was “the possibility of having recourse to violent methods.”86 This conclusion was inferred from the speeches referring to jihad made by almost the same members, who were prosecuted and expelled from the party for their expressions, and from the fact that Refah did not timeously separate itself from those members. It seems that the ECtHR’s finding of violence was not based on concrete and real facts of violence, but rather on the presumption of violence. The European Court adopted a very low standard of proof mentioning that the statements of party members “give the impression that Refah did not exclude the possibility of recourse to force in certain circumstances” (emphasis added).87 However, the view of the minority judges is based on the rational ground. They considered that the offending speeches made several years before the party came to office could not justify the complete prohibition of the party.88 The jurisprudence and experience of the United States also shed light on the issue. The “clear and present danger” principle established by the U.S. Supreme Court under the First Amendment prescribes a proper standard to assess disputed remarks that were considered to express a possibility of recourse to violence for setting up sharia in the future.89 Arguably, the speeches made several years before the party entered government would fail to meet the condition of a real danger or risk under that test.90 The dissenters considered it significant that, except Erbakan, all these members were neither party leaders nor party officials.91 In regard to the members of Refah who made the offending speeches in their individual capacity, without representing the position of the political party, the proper reaction to any violation of the law would be to hold the individual perpetrators responsible. This was indeed done in the case of Refah. This is also the approach taken by the FCC in the case concerning the NPD where it held: “[i]ntimidation and threats, as well as the building-up of potentials for violence, must be countered thoroughly and in due time with the means of preventive police law and repressive criminal law in order to effectively

84

Article 101(d) of the LPP was in force until Article 103(2) of the same Law was nullified by the Constitutional Court judgment of 9 January 1998, 1 week before the decision for prohibition of Refah. 85 Cited in Refah, Grand Chamber judgment, para. 46. 86 Refah, Grand Chamber judgment, para. 131. 87 Refah, Chamber judgment, para. 76; Refah, Grand Chamber judgment, para. 132. 88 Joint Dissenting Opinion in Refah, Chamber judgment. 89 Brandenburg v Ohio (1969) 395 US 444. See also Leader (1982). 90 See Boyle (2004), p. 11. 91 Joint Dissenting Opinion in Refah, Chamber judgment.

5.2

Prohibition of Political Parties by the TCC for Being “a Center. . .

109

protect the freedom of formation of the political will as well as individuals affected by the respondent’s behaviour.”92

5.2.2.3.3

Anti-Secular Activities While in the Government

The statements on the question of the headscarf, activities of Refah’s leaders while in government including adjusting work time in the public sector during Ramadan, the reception given by Prime Minister Erbakan to religious leaders during Ramadan at his official residence, and visiting a party member charged with inciting religious hatred were reviewed by the ECtHR. The Chamber accepted that, taken separately, these activities “did not constitute an imminent threat to the secular regime in Turkey.”93 Nevertheless, the Chamber was convinced by the government’s argument that these speeches and acts by party members “were consistent with Refah’s unavowed aim of setting up a political regime based on sharia.”94 The Grand Chamber also held a similar view.95 This reasoning of the ECtHR is self-defeating. In determining whether there were concealed political aims, the ECtHR should have relied on the party’s activities and political statements;96 the Court, however, merely “believed” the charge of “the concealed aim of establishing sharia” proposed by the government without having definite and weighty indications. Thus, the Strasbourg Court upheld the judgment of the TCC which dissolved Refah not “for anything it had done in government but rather because of what it might do, should it, at some point in the future, become the outright party in power.”97 The Grand Chamber held that the state was authorized to intervene for precluding the realization of political objectives which were contrary to the Convention norms “before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country’s democratic regime” (emphasis added).98 It further held that it could not condemn the national courts for not waiting until Refah came to power and take concrete steps “for example by tabling bills in Parliament, in order to implement its plans.”99 The ECtHR added a new element to its assessment of Refah’s application that had not been considered in prohibition cases of other parties: likelihood of success. In evaluating the existence of “a threat to the democratic regime” the Grand Chamber relied on the electoral success of Refah in the general (1995) and local (1996)

92

NPD II, para. 1008. Refah, Chamber judgment, para. 73. 94 Refah, Chamber judgment, para. 73. 95 Refah, Grand Chamber judgment, para. 122. 96 Refah, Grand Chamber judgment, para. 101. 97 Boyle (2004), p. 10. 98 Refah, Grand Chamber judgment, para. 102 (quoting the Chamber judgment, para. 81). 99 Refah, Grand Chamber judgment, para. 110. 93

110

5

Protection of Secularism Within the Framework of the Political Party Regime

elections, as well as its dominant position in the GNAT.100 The Grand Chamber further indicated the opinion polls prognosing that Refah could obtain a majority of votes in the next election, which meant that it had a chance of forming a single government in the future.101 Based on Refah’s growing political success, the ECtHR estimated that, “at the time of its dissolution Refah had the real potential to seize political power without being restricted by the compromises inherent in a coalition.” 102 It added that, “[i]f Refah had proposed a programme contrary to democratic principles, its monopoly of political power would have enabled it to establish the model of society envisaged in that programme.”103 In general, the criterion of “likelihood of success” is not irrelevant in evaluating the possibility of a danger posed by the political party to the state’s democratic order. This concept amounts to “potentiality of success” which was applied by the FCC in NPD II. It was found that the NPD intended “to replace the existing constitutional system with an authoritarian national state that adheres to the idea of an ethnically defined ‘people’s community’ (Volksgemeinschaft).”104 The FCC referred to the low level of representation of the party both in regional and national parliaments and its low degree of organization; therefore it concluded that there was no possibility of success by democratic means.105 The number of criminal offences committed by the party adherents also was not seen by the FCC as fulfilling the threshold required for the prohibition.106 It can be argued that in evaluating the likelihood of success, the ECtHR failed to fully consider the political context in Turkey having regard to the strong positions of the “guardians of secularism,” namely, the military and judiciary at the time. First, the European Court did not mention the fact that Refah had already been forced to resign by the NSC in June 1997, shortly after the dissolution proceedings were opened against Refah. In the course of the dissolution proceedings, Refah had already been driven from office and attacked by other Kemalist circles; therefore, it was not in the position to pose any danger to the existing democratic regime, even if it would have aimed to do so.107 The party’s large electoral support would not guarantee the consistency of its authority against the same kind of intervention of the Kemalist circles in the future. The ECtHR also did not consider the strong position of the Constitutional Court and other domestic courts in the protection of secularism against any infringing constitutional proposal or administrative actions. For example, the cabinet’s 13 January 1997 decree about rearranging working hours in public

100

Refah, Grand Chamber judgment, para. 107. Refah, Grand Chamber judgment, para. 107 102 Refah, Grand Chamber judgment, para. 108. 103 Refah, Grand Chamber judgment, para. 108. 104 NPD II, para. 1. 105 NPD II, paras. 898–909. 106 NPD II, paras. 951–1008. 107 See Erdoğan (2001a), p. 48. 101

5.2

Prohibition of Political Parties by the TCC for Being “a Center. . .

111

service was annulled by the Council of State because it infringed upon the principle of secularism.108 Thus, even if Refah could have come to authority alone, it would have been controlled by the military and judicial powers. In regard to a “seizure of power,” it must be mentioned that the power in contemporary Turkish history has been seized several times as a result of the intervention of the Turkish military in politics. In estimating potentiality of success, the ECtHR also did not consider that during its existence of about 13 years as the largest party in Turkey and during its 1-year period in government, Refah did not take any steps that were in breach of the democratic principles. Considering these points, it can be said that the Strasbourg Court based its decision on a purely abstract danger and there was no real tangible and immediate danger.109 Finally, the ECtHR found the prohibition of Refah to be a proportionate measure based on the fact that after that prohibition only five of its elected representatives to the GNAT lost their parliamentary mandate and their position in the party leadership. The remaining 152 deputies kept running their parliamentary offices and continued their political careers in the usual way.110 This is not a convincing argument. What this argument disregards is that the primary matter at issue was Refah’s separate legal personality and its right of association in terms of the ECHR. No matter how the party members are affected by their party’s prohibition, the consequence for the party itself could not be more severe, its assets forfeited, and its personality destroyed.111 In Refah, the TCC relied on Article 17 of the Convention as it had in the earlier Turkish cases of the United Communist Party and Socialist Party and Others. According to the Constitutional Court, the leadership and members of Refah were utilizing democratic freedoms and rights as a means to introduce a sharia regime that would replace the existing democratic order.112 The Constitutional Court referred to the Commission’s Communist Party of Germany decision which found the prohibition of the KPD to be legitimate under the Convention. In the Turkish United Communist Party case, the ECtHR rejected the TCC’s reliance on Article 17 ECHR and its argument from the German Communist Party case.113 According to the ECtHR, the Turkish Communist Party was not the same as the German Communist Party which had expressly declared the aim of establishing a dictatorship of the proletariat. The European Court pointed out that the Communist Party of Turkey met “the requirements of democracy, including political pluralism, universal suffrage and freedom to take part in politics.”114 The party’s statute or program

108

Refah, Grand Chamber judgment, para. 39. See Erdoğan (2001a), p. 48. 110 Refah, Grand Chamber judgment, para. 133 (quoting the Chamber judgment, para. 82). 111 Joint Dissenting Opinion in Refah, Chamber judgment. 112 Refah, Grand Chamber judgment, para. 40. 113 United Communist Party of Turkey and Others v. Turkey, paras. 54 and 60. 114 United Communist Party of Turkey and Others v. Turkey, para. 54. 109

112

5

Protection of Secularism Within the Framework of the Political Party Regime

involved no ground to assume that it relied on the Convention to put an end to the freedoms and rights guaranteed in it, in this way justifying reliance on Article 17. While the dissenters argued that the same view could be held regarding Refah’s statute and program, both the Chamber and Grand Chamber judgments did not touch on the question of relevance of Article 17 to the case of Refah. Even though both Chambers agreed that Refah’s statute and program could not justify its dissolution, they accepted the Turkish government’s argument that its true intentions might be hidden and determined that the acts and statements which had been included as evidence of the party’s presumed objective were sufficient to justify its prohibition. In these conditions, it could be alleged that both Chambers should either have declared the application inadmissible based on Article 17, or the Chambers should have explained the reason behind the inapplicability of Article 17.115

5.2.3

The Fazilet Party Case

5.2.3.1

An Overview of the Case

After its dissolution, the previous members of the banned Refah founded a different party named the Fazilet Party. On 7 May 1999, the Chief Public Prosecutor requested the TCC to dissolve Fazilet permanently alleging that it had breached the requirement of Article 69(8) of the Constitution that, “[a] party which has been dissolved permanently shall not be founded under another name” and that it had become a center of anti-secular activities.116 The indictment mainly focused on the fact that the MP of Fazilet, Merve Kavakçı had arrived at the Parliament Building wearing a headscarf for the MPs’ oath-taking ceremony. The indictment presented several statements by Kavakçı and other well-known party members to demonstrate that the incident of the day had been arranged in advance as a protestation. Together with several speeches of Fazilet MPs concerning the need to remove the headscarf ban, the Prosecutor alleged that the party intended to introduce sharia in Turkey. In the course of proceedings, Fazilet had 111 representatives in the Parliament. In its defense, Fazilet concentrated on the importance of the freedom of religion in a secular and democratic society. In this regard, it differentiated between secularism and “totalitarian secularism.” It argued that while the former, which embraced freedom of religion, was an essential precondition for democracy, the latter was grounded on the conception that religion per se was a “bad, detrimental, and reactionary social force,” and therefore, its impact should be eliminated to foster development.117 Referring to Turkish and international thinkers, including John Locke, the accused party argued that secularism implied neutrality of the

115

See Boyle (2004), p. 10. Turkish Constitutional Court decision, 22 June 2001, E. 1999/2, K. 2001/2. 117 Turkish Constitutional Court decision, 22 June 2001, E. 1999/2, K. 2001/2. 116

5.2

Prohibition of Political Parties by the TCC for Being “a Center. . .

113

government towards religion, and must be construed in harmony with fundamental freedoms and democracy. Therefore, it maintained that “criticizing the law regarding headcoverings alone cannot constitute anti-laik behavior. If we [Fazilet] argue that all women must cover their hair, then that would constitute a violation of laiklik.”118 The Constitutional Court found the Prosecutor’s first allegation, related to the unity of Fazilet and Refah, ill-founded. Nevertheless, the Court considered the pieces of evidence mentioned above sufficient to define a party as a “center of anti-secular activities” and to dissolve it on that ground. After reiterating its construction of secularism set forth in the earlier decisions, the TCC centered on the headscarf question and established that Fazilet had acted in the same manner as Refah, in spite of the Court’s definitive ruling in the Refah case. The Court repeated that permitting headscarves at universities would result in coercion and would cause discrimination on the ground of religious belief. The TCC found that Fazilet used the headscarf “as a political symbol” and that its deputy’s entering the Parliament Building wearing a headscarf could simply be regarded as a political protest attacking the secular character of the state. The Court stated that the party had undermined the previous decisions of the Constitutional Court and the Council of State endorsing the legitimacy of the restriction of the religious freedom in the public sphere for the purpose of protecting the rights of others, public order, and public security. Moreover, it added that due to Fazilet’s “significant electoral potential,” its members’ speeches and acts posed a great danger to secular democracy. Therefore, the Court banned Fazilet permanently.

5.2.3.2

Comment

This Constitutional Court decision was based on two grounds: the speeches of the Fazilet MPs demanding liberty for the headscarf at universities and the Merve Kavakçı incident. The Court’s decision in Fazilet is wrong for two reasons. As it becomes clear from Chap. 4, wearing a headscarf at universities was declared unconstitutional by the Constitutional Court in 1989. However, merely debating the legal, political, and social dimensions of a general societal problem and making proposals in this regard is a duty of a political party and falls within the scope of the freedom of expression and thought that are indispensable elements of democracy.119 To put it another way, what was declared unconstitutional by the Constitutional Court’s 1989 decision was wearing a headscarf at universities, but not promoting discussions over it. As mentioned by the dissenting Judge Haşim Kiliç, a party’s defending of wearing a headscarf based on additional Article 17 of Law No. 2547 on Higher Education, could not be regarded as a more serious anti-secular activity than that of a

118 Turkish Constitutional Court decision, 22 June 2001, E. 1999/2, K. 2001/2 (cited in Yildirim (2010), p. 244). 119 See Turhan (2002), p. 37.

114

5

Protection of Secularism Within the Framework of the Political Party Regime

party that adopted that provision for the purpose of solving the headscarf question at universities. Extending this reasoning, it can be concluded that while the Motherland Party adopted laws twice with the purpose of removing the headscarf ban at universities and was not prosecuted or dissolved on that ground, promoting a similar debate by another party should have also been regarded as legitimate. It has been also argued by legal scholar Mustafa Erdoğan that criticizing the legislation or expressing the societal concerns caused by the headscarf ban, and demanding a liberty by the deputies sitting in the Parliament could not be considered as attacking the state’s secular or democratic order.120 Thus, since religious freedom is a fundamental liberty protected by the Constitution, any statement by the deputies concerning the headscarf question should have been regarded as criticism and reaction towards its implementation, instead of an attack on the democratic state.121 Another strong criticism leveled at the Constitutional Court was that it completely disregarded the requirements of the criterion “center” of anti-secular activities, which was described in detail in Article 69(6) of the Constitution. Thus, even if the headscarf-related criticisms of the deputies were illegitimate, they were not carried out “intensively” and “in determination” as required by the concept of a “center.” The indictment introduced no piece of evidence other than the mentioned ones. The party behaved as a loyal party of the system during its 3-year existence and refrained from demonstrating decisive attitude on the principal issues, including the headscarf question, due to the fear of prohibition. In other words, although it was a successor of Refah, Fazilet abandoned the “just order” rhetoric and formulated its political base not only in connection with the hegemonic language of the system, i.e., Ataturkism and secularism, but also with the universal language of democracy, human rights and freedoms, striving to overcome the contradictions.122 The Constitutional Court was harshly criticized by Mustafa Erdoğan arguing that the Court persisted in implementing the principle as a “project of social and cultural engineering” in the multi-party system and did not revise its understanding of secularism by considering the relevant legal literature and criticisms developed in Turkey at the time.123 He claimed that following the two headscarf cases, the Refah and afterwards the Fazilet case, it could be said that the headscarf issue had created a deadlock in the implementation of the principle. Accordingly, it could be inferred from the jurisprudence of the Constitutional Court that “demanding liberty for the headscarf is categorically contrary to secularism, and consequently to the constitution” which is a completely wrong position from the perspectives of democracy, freedoms, and secularism.124 It was asserted that, particularly in Fazilet case, the

120

Erdoğan (2001b), p. 37. Dissenting Opinion of Judge Haşim Kılıç in [2001] Turkish Constitutional Court decision, E. 1999/2, K. 2001/2. 122 See Özdemir (2015), p. 180. 123 Erdoğan (2001b), p. 38. 124 Erdoğan (2001b), p. 39. 121

5.2

Prohibition of Political Parties by the TCC for Being “a Center. . .

115

problem lay not with the restrictive aspects of the Turkish constitutional and legal framework, but rather the Court’s interpretation of the rules in force. Fazilet was dissolved by the Constitutional Court while there were no grounds under the Constitution and the LPP. Therefore, it is concluded that the problems in the sphere of protection of secularism and religious freedoms have been caused not only by the general inadequacy of the national framework, but also an illiberal approach of the Court in pertinent cases. In this regard, the composition of the Constitutional Court, which is discussed in Chap. 4, is of the utmost importance. Unfortunately, the opportunity of hearing the reasoning of the European Court on the case was missed as Fazilet withdrew its application from the review of the ECtHR asserting that the decisions of Refah and Leyla Şahin clearly showed that the ECtHR “is prejudiced against Muslim communities” and therefore it is “believed that it cannot be trusted in the justice of [the] Court.”125

5.2.4

The AKP Case

5.2.4.1

Overview of the Case

On 14 March 2008, the Chief Public Prosecutor presented a petition to the Constitutional Court asking it to prohibit the ruling AKP based on Articles 68(4) and 69(6) of the Constitution, and Articles 101(1b) and 103(2) of the LPP. The indictment, consisting of 162 pages, introduced evidence supporting its claim that the party had become a “center of anti-secular activities” and demanded the imposition of a 5-year ban on political activity on 71 high-level AKP members, including Prime Minister Recep Tayyip Erdoğan, President Abdullah Gül, four ministers, and 39 deputies. On 31 March 2008, the TCC admitted the case, unanimously, concerning dissolution of the AKP and the exclusion of its 71 members from politics. The Court agreed to review the case with respect to President Gül by a 7: 4 majority vote.126 The indictment accepted that the AKP’s program and statutes were consistent with the principle of secularism. However, it accused the AKP of violating the principle by activities and statements. The violations were evidenced mainly by actions, incidents, and speeches by the AKP members. As for imposing a politics ban on party members, the indictment (iddianame) listed 61 statements and acts by Erdoğan, 16 for Bülent Arınç (former Speaker of the Parliament), and 10 for Gül, made during his term as Minister of Foreign Affairs. The rest of the evidence was

125

Fazilet Partisi and Kutan v Turkey App no 1444/02 (ECtHR, 27 April 2006), para. 9 (translated from Turkish). 126 Turkish Constitutional Court decision, 30 July 2008, E. 2008/1, K. 2008/2.

116

5

Protection of Secularism Within the Framework of the Political Party Regime

based on the legislative and executive policies, and activities of the local authorities.127 The indictment claimed that the AKP was the successor of the banned religiouslymotivated parties, which had built their policies on a fight against the foundations of the republic, particularly secularism. The Public Prosecutor came to the conclusion that the AKP had: revealed its intention to constitute the environment in which basic principles of the Republic of Turkey will be changed by the actions mentioned above and especially by their proposals for a constitutional amendment and changes [in] the Law on Higher Education [abolishing the ban on headscarves at universities]; ignored the fact that religious symbols cannot be used in secular systems; been determined to transform the secular republic into a new life system and a new state order and begun to divide the society into those who are religious and those who are not; attempted to change gradually the secular judicial structure and to give it a new shape; [and] opened the discussion on the future of the regime and the republic.128

Moreover, the indictment described the danger posed by the ruling party maintaining that “it is a fact that the AK Party will use material power to change the secular order because it enjoys the government power today and this danger is not far. This is a fact when we consider that they will adopt sharia by enabling the society to evolve towards an Islamic structure through what they call consensus processes,” also “the AK Party would use jihad as required by sharia if it fails to achieve to establish the regime [that] it aims [to]. In other words, the use of jihad, that is to say, violence, is probable”; “the threat posed by the policies of the AK Party is clear and present. Concrete steps have been taken that may harm the civilized peace and the democratic regime in the country”; “in this context, there is no other possibility than closing the party as the only sanction applicable and also required by the society in order to protect the society from this danger and to prevent [the AK Party] from reaching its objective.”129 The AKP presented its final defense testimony to the Constitutional Court on 16 June 2008. In its 98-page written response, the AKP rejected the accusation of becoming a “center of anti-secular activities,” claiming that the indictment was stimulated by political and ideological impetus instead of legitimate grounds. The defendant alleged that the Public Prosecutor’s perception of the notions of secularism and democracy did not match the internationally adopted conception of those notions. According to the AKP, the Public Prosecutor guarded secularism as a way of life instead of separation of state and religion affairs. The defense statement claimed that the indictment did not constitute a legal document, but was loaded with fake charges grounded on hypothetical presumptions concerning the future,

127

Indictment comes in the beginning of the official version of Turkish Constitutional Court decision, 30 July 2008, E. 2008/1, K. 2008/2, under the part “I-Claim” (I-Dava) [hereafter Indictment]. 128 Cited in PACE (2008b), para. 36. 129 Cited in PACE (2008b), para. 37.

5.2

Prohibition of Political Parties by the TCC for Being “a Center. . .

117

disregarding both the contributions of the governing party made within a 6-year period and the real situation of the country.130 In a 28 July 2008 judgment, the Constitutional Court decided with a 10/11 (ten-elevenths) majority that the ruling party had become “a center for anti-secular activities.” However, in voting on sanction, the party escaped dissolution due to just one vote, as only six of the 11 justices voted in favor of dissolution, with seven being needed. The AKP was ultimately sanctioned by partial deprivation of state funding as a result of ten of 11 votes. According to the amendment made in 2001 to Article 149 of the Constitution, the prohibition of a party requires a qualified majority of three-fifths of the then 11 judges. In the AKP case, the Court decided to apply the same quorum in admission and evaluation of the evidence. While deciding about the admissibility of evidence, the Court excluded a substantial part of the evidence in a general way, without specifying the exact reasons. The Court also mentioned that part of the evidence was under the scope of the freedom of expression, without referring to the relevant statements. Then, in the part on the assessment of evidence, such as antisecular speeches and certain legislative activities, the Court briefly reworded selected accusations of the Public Prosecutor and the defense of the defendant party towards each accusation. The assessment part of the judgment enumerates the following activities of the AKP found to be against the “principles of the democratic and secular republic” envisaged in Article 68(4) of the Constitution: 1. Political declarations of the party members, including the prime minister, predominantly related to the removal of the headscarf ban; 2. Elimination of age restrictions on Koran courses, which was prompted by mitigating criminal penalties applied to illegal education courses (Article 263 of the Criminal Code No. 5357), including the mentioned courses; 3. Adoption of the constitutional amendments (Law No. 5735) in 2008 aiming at lifting the headscarf ban at universities; 4. Removal of the requirement of bareheaded appearance for entering the central exams organized by the Ministry of National Education from the Central Examination Regulations (revised 19.04.2006 and No. 5855); 5. Adoption of the Regulations on Distance Education Institutions131 by the MNE which enabled the graduates of vocational schools, including religious vocational schools, to get double diplomas bypassing the effects of the coefficient system applied to them at the university exams;132 moreover, it allowed the students to continue their education with headscarves and beards. These regulations were illegally implemented in breach of the repeated decisions of the Council of State

130

Turkish Constitutional Court decision, 30 July 2008, E. 2008/1, K. 2008/2. Published in the Official Gazette, 14 December 2005, No. 26023. 132 The coefficient system was applied to the graduates of vocational schools, including imam-hatip schools in university admission exams since 1999. The idea was to toughen the admission for imamhatip graduates in higher education areas not corresponding to their high school education. For the attempts of the AKP in reforming the coefficient system, see Shambayati and Sütçü (2012), p. 116. 131

118

5

Protection of Secularism Within the Framework of the Political Party Regime

Chamber No 8 suspending the enforcement of the regulations’ respective provisions.133 The Constitutional Court stated that the political struggle of the ruling party towards lifting the headscarf ban at universities, elimination of age restrictions on Koran courses, and removal of the coefficient system applied to the graduates of imamhatip schools was not pursued in compliance with the principle of secularism enshrined in the Constitution. The Court emphasized that “these issues have been made as main topics of the politics in a way creating division and tensions in the society; religious sensibilities of the society have been instrumentalized for the benefit of simple political interests, and it has become difficult to include the basic economic, social, and cultural problems of the society in the agenda of the politics.”134 The Court’s final assessment was that “it cannot be denied that the activities of the defendant party, which are in breach of secularism due to abuse of religion and religious feelings, can prevent the democratic functioning and challenge the legitimacy of the constitutional order by alieanting society from the state and politics.”135 Finally, the Court maintained that the activities in breach of Article 68(4) of the Constitution had been conducted in determination and intensively by the general chairman of the AKP, Recep Tayyip Erdoğan, in the capacity of party organ and by other party members, including the Speaker of the Parliament, the Minister of Education, several MEPs and chairmen of municipalities. Moreover, the Court added that adoption of Law No. 5735 changing some provisions of the Constitution with the purpose of lifting the headscarf ban at universities had also made it clear that the party had internalized such kinds of activities. Thus, with a majority of ten to one, the Court decided that the party had become a “center of anti-secular activities.” In choosing the sanction, the Court noted that to determine whether the party had pursued the aims of abolishing the secular order, destroying foundations of secularism, and consequently the democratic order, the proofs in favor of the defendant should be also evaluated alongside the proofs against it. According to the Court, although the party’s statute and program had not included any anti-secular provision, it may have concealed intentions different to the proclaimed ones in its program. Therefore, the activities and statements of the party organs must be compared with its program. Firstly, the Court mentioned that the vast majority of the activities attributed to the defendant party had been performed before the 22 July 2007 elections, during the 22nd legislative session. In the 22 July 2007 elections, the party had renewed its presence in the GNAT by winning two-thirds of the parliamentary seats. The party had gained nearly half of the votes of the electorate meaning that the people trusted

133

Council of State (8. Chamber), 7 February 2006, E. 2005/6384; Council of State (8. Chamber), 7 June 2006, E. 2006/2349, K. 2006/1249. 134 Turkish Constitutional Court decision, 30 July 2008, E. 2008/1, K. 2008/2 (author’s own translation). 135 Turkish Constitutional Court decision, 30 July 2008, E. 2008/1, K. 2008/2 (author’s own translation).

5.2

Prohibition of Political Parties by the TCC for Being “a Center. . .

119

the party once more after evaluating the attributed activities together with all other actions.136 The Court then enumerated the policies implemented by the ruling party such as the continuation of the accession negotiations with the European Union and acceleration in the related political and legal reforms, adoption of the required constitutional and legislative changes, total elimination of the death penalty, adoption of the theory of the supremacy of international human rights agreements over the national laws, recognizing the ECtHR judgments as grounds for a retrial, progressive reforms in the field of gender equality, adoption of the laws improving the status of the non-Muslim minorities, etc. From the long list of these kinds of reforms and policies, the Court inferred that it was obvious that the party had exercised its power to raise the country to the standards of modern democracies. Moreover, it was strongly emphasized that the party had not made any recourse to violence. Assessing the anti-secular activities of the party in conjunction with its modernization and democratization policies, the Court held that the gravity of the party’s mentioned activities against the secular and democratic republic necessitated deprivation of half of the annual state funding according to Article 69 of the Constitution and Article 101(2) of the LPP.

5.2.4.2

Analysis of the AKP Decision

As the voting for dissolution had failed just by one vote, six judges issued a dissenting opinion against the non-dissolution of the party. They held that since the same quorum (a qualified majority of three fifths of the 11 judges) was chosen to be applied in the admission of evidence, some activities introduced by the indictment were not admitted as evidence against their opinion.137 Among others, there was the instruction of the then Minister of Internal Affairs, Abdullah Gül addressed to the Turkish embassies concerning cooperation with Fetullah Gülen’s National Outlook Movement, and its schools abroad in the capacity of business enterprises;138 withdrawal of the government’s additional defense in the Leyla Şahin case stating that the headscarf promotes reactionism and is against the secular education on orders of Abdullah Gül, etc. According to the dissenting judges, this, and several other speeches of the party members, including the prime minister, criticizing the illiberal official interpretation of the headscarf showed that the party posed a serious threat to

136

Turkish Constitutional Court decision, 30 July 2008, E. 2008/1, K. 2008/2. Dissenting Opinion of Judges Osman Alifeyyaz Paksüt, Fulya Kantarcıoğlu, Mehmet Erten, A. Necmi Özler, Şevket Apalak, Zehra Ayla Perktaş in Turkish Constitutional Court decision, 30 July 2008, E. 2008/1, K. 2008/2. 138 The criminal proceedings were opened against Fetullah Gülen based on allegations of replacing the secular order of the state with the religiously-legitimized order through establishing and managing the illegal movement. See Indictment, “c-Anti-secular activities and speeches of Minister of Foreign Affairs, Abdullah Gül”, para. 1. 137

120

5

Protection of Secularism Within the Framework of the Political Party Regime

the democratic regime which could not be prevented by the partial deprivation of state funds. Besides the two activities mentioned above, there were several other acts in the indictment which were not admitted by the Court as evidence, such as packing the bureaucratic system with the adherents of the governing party and political Islam, imposition of restrictions on the drinking establishments in some areas, encouragement and promotion of wearing the headscarf by students, public officials, doctors and nurses, respectively at secondary schools, public bodies and hospitals against the persisting ban. Moreover, although the Court mentioned the elimination of age restrictions for Koran courses, it did not analyze the legislative changes introduced by the AKP government to Article 263 of the Criminal Code No. 5357 criminalizing the opening of the illegal education courses, including Koran courses. According to the indictment, the Law on Amendments to the Turkish Criminal Code No. 5357 was adopted by the GNAT on 27 May 2005. The new regulation reduced the maximum level of imprisonment sanction for running illegal education courses, envisaged in the new Criminal Code No. 5237 that entered into force on 1 June, from 3 years to 1 year, lifted the sanction for the teachers working on these courses, and removed the sanction of closure provided for these courses. It can be presumed that due to the expected effects of these measures, they were perceived and labelled as “elimination of age restrictions on Koran courses” both in the public mind and also in the judgment. The Law was vetoed by the then president, Ahmet Necdet Sezer, with statement No. 451, dated 3 June 2005: [T]he [new] regulation encourages the opening of the illegal education courses or enables continuation of their functioning. The objective of the existing legal provisions is to prevent the separatist terrorist organizations, missionaries, and the religious orders supporting the theocratic state from opening of the schools or courses by illegal means, without getting the permission of the related authorities; hence, it is clear that it prevents the training of the youth in a reactionary and separationist manner through the perverted methods and contrary to the founding philosophy of the Turkish Republic. It seems that this objective has not been protected by the relevant regulation.139

Despite the veto, Law number 5377 was approved again by the GNAT on 29 June 2005 and was published in the Official Gazette on 8 July 2005.140 It should be noted that under the previous Article 89 of the Constitution, the GNAT was empowered to adopt the law returned by the president for reconsideration without any amendment. Afterward, the 2017 constitutional amendments changed Article 89 requiring “the absolute majority of total number of members” of the GNAT for the adoption of the law sent back for reconsideration. Since the Court did not express its reasoning concerning the admission of the evidence, it is unclear why some highly serious

139 Indictment, “e-Anti-secular activities and speeches of other MPs”, para. 17 (author’s own translation). 140 Later in 2013 Article 263 of the Criminal Code was completely abolished.

5.2

Prohibition of Political Parties by the TCC for Being “a Center. . .

121

accusations mentioned above were excluded from the list of evidence. Besides, the pieces of evidence which were accepted as the ground for considering the AKP as “a center of anti-secular activities” also were not assessed in detail by the Court.

5.2.4.2.1

Did the Court Adopt a New Approach?

The approach of the Constitutional Court in the AKP case is sharply distinct from its earlier prohibition decisions in which it defended secularism as a superior principle of the republic. In assessing the necessity of prohibition, the Constitutional Court put a strong emphasis on the importance of democracy which is a choice of the Turkish Republic historically expressed as “[s]overeignty belongs to the Nation without any restriction or condition” (Article 6(1) of the Constitution). The Court stated that according to Article 6 of the Constitution,141 the people exercise their authority through the institutions specified in the constitution. The exercise of this authority in accordance with the Constitution, adopted by the democratic constituent power—the people, and with the will of the legislature which holds the direct democratic legitimacy is a necessary consequence of the people’s authority and legitimizes the exercise of the power. The Court further emphasized the expectations and demands of the society in the democratic state order. It held that in a democratic political order, the social, economic, and cultural conflicts are resolved by considering the values and perception of justice of people in a way receiving the approval of at least majority of people. The Court focused on the interpretation of the principle of democracy giving weight to the importance of the parliamentary assembly as a direct representative of the will of the people, the importance of freedoms of assembly and association as guarantees of expression of democratic political will, as well as the importance of political parties as agencies connecting the people and political authority and enabling the functioning of the principle of democracy provided in Article 2, and the importance of a plurality of party programs for democracy. This approach of the Court seems to be in sharp contrast to its earlier decisions in which the Court upheld the importance of secularism over the acts adopted by the legislature which is a direct representative of the will of the majority. This interpretation of Article 6 particularly contradicts the Court’s “constituent power” argument brought in the headscarf decision of 2008, which made a distinction between the people as the bearer of “original constituent power” and the legislature as a “bearer of derived constituent power”.142 Making this distinction between the original constituent power and the legislator, the Court aimed to limit the GNAT’s power to amend the constitution, generated by the original constituent power. In the actual case, the Court rather underlined the link between the legislator and the authority of

141 Article 6 (3) of the Turkish Constitution reads: “The Turkish Nation shall exercise its sovereignty through the authorized organs, as prescribed by the principles set forth in the Constitution”. 142 Turkish Constitutional Court decision, 5 June 2008, E. 2008/16, K. 2008/116.

122

5

Protection of Secularism Within the Framework of the Political Party Regime

people without focusing on its own role, constitutional control of the functioning of the democratic political process. The Court mentioned the inevitable interrelation between secularism and democracy. According to the Court, Article 68(4) of the Constitution requires the party programs and activities to be bound by both principles of democracy and secularism, which constitute the unamendable characteristics of the Turkish Republic together. The Court stated that both principles must keep their superiority in evaluation of the prohibition of a party accused in anti-secular activities.143 It cannot be agreed with legal scholar Fazıl Sağlam who claims that this approach of the Court can be explained by the Court’s application of the principle of practical concordance.144 The Court rejected the government’s headscarf amendment, supported by 411 MPs, a considerable majority of the democratic institution in the same year, arguing that it would be in breach of the principle of secularism. While in that decision the TCC made a verbatim replica of its reasoning in the prior judgments, in the actual decision it did not refer to Atatürk’s principles and reforms and did not cite its classic interpretation of secularism in relation to the Turkish democracy. Contrarily, in this decision, the Court focused primarily on the concept of democracy without comprehensively evaluating its relationship with the principle of secularism, failing to apply the principle of the constitution’s unity which “requires the optimization of [values in conflict]: Both legal values need to be limited so that each can attain its optimal effect.”145 Despite the strong emphasis on democracy and its constitutive elements, it cannot be concluded that the TCC adopted a new approach, embracing the principle of practical concordance, towards the relationship between secularism and democracy, particularly political parties. Rather it can be considered that the Court afforded a heavy weight to the concept of democracy to prepare preconditions for avoiding the sanction of prohibition.

5.2.4.2.2

The Court’s Assessment of the Pro Evidence

As mentioned above, in determining the sanction, the Court chose to evaluate pro evidence to determine whether the party sought to abolish the secular, and consequently the democratic, order. According to the Court, political and legal reforms conducted by the AKP government within the framework of the EU negotiations and several other democratization policies indicated that the ruling party did not pursue the aim of destroying the secular state order. However, evaluation of the impact of each reform requires an in-depth analysis that falls outside the Court’s capacity in the pertinent case. It is argued that the Court should not have given weight to these reforms as progressive measures for

143

Turkish Constitutional Court decision, 30 July 2008, E. 2008/1, K. 2008/2. Sağlam (2009), p. 402. 145 Hesse (1995), p. 27 (cited in Kommers 1997, p. 46). 144

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

123

modernization of the country without referring to the scientific opinion about their implementation and their direct and concrete impact on the fulfillment of the principle of secularism. In comparison to the party’s concrete acts introduced as proof of its anti-secular policies, the impact of the mentioned legislative and constitutional reforms were not clear as they were followed by theoretical debates and raised practical concerns; particularly, their implementation was not harmonious.146 Furthermore, in addition to the list of legal reforms, the Court gave importance to the political factors such as “commencing the negotiations with the EU and the active contribution to the peaceful resolution of international conflicts” which are also broad topics that cannot be assessed without referring to the scientific opinion and cannot be directly relied on as proofs for the situation of the state-religion relationship in the country. Thus, the Court’s superficial enumeration of the government reforms, of which the material consequences were unkonwn, could not give sufficient ground to mitigate a sanction of prohibition. In conclusion, it can be said that in comparison to the Refah party which was closed mainly due to several speeches made by extremist party members, in the AKP case the indictment presented a thick score of the party’s concrete legislative and administrative measures allegedly in breach of secularism. However, from the judgment, it is unclear why some of the serious pieces of evidence, mentioned above, were not admitted by the Court. Moreover, in the part of assessment of the admitted evidence, it is not explained how the concerned activities violate the principle of secularism. Finally, the success of the party in the 22 July parliamentary elections and various legal and political reforms referred by the Court could not be considered as clear and relevant indications to rebut its intention to destroy the secular order.

5.3

5.3.1

Amendments Needed to Bring the Rules on Prohibition of Political Parties into Conformity with International Standards Principles to be Drawn from the International Sources in the Field of Political Parties

Before examining the problems and suggesting proposals in the field of the party prohibition regime, it is necessary to emphasize the basic principles at the core of this evaluation. This can be summarized in two basic points: (1) constitutional

146

For example, the principle of the primacy of international human rights agreements over national laws was expressly included in Article 90(5) of the Constitution in 2004. However, it is still debatable whether this precedence also covers the Constitution, and to which extent the ECHR can be invoked for interpreting the constitutional provisions. See Venice Commission (2009) Prohibition of Political Parties in Turkey, para. 72; Bilgin (2017), pp. 104–113.

124

5

Protection of Secularism Within the Framework of the Political Party Regime

amendments should raise the party prohibition regime to the level of the international standards, and (2) constitutional amendments should include determinative provisions about legislative implementation. The principles which are important in relevance to the party prohibition regime in Turkey can be drawn from the ECtHR cases, the Tsatsos Report, a 1996 European Parliament Resolution, and the Venice Commission Guidelines.

5.3.1.1

Decisions of the ECtHR

The prohibition of political parties is examined by the ECtHR focusing on the freedom of association and assembly (Article 11 ECHR), and also the freedom of expression (Article 10 ECHR). The prohibition of a political party amounts to an interference with the rights of the citizens protected by Article 11 ECHR. Such interference will be legitimate only if “it was prescribed by law,” pursued one or more legitimate aims under paragraph 2, and was “necessary in a democratic society” for the achievement of those aims.”147 Moreover, the ECtHR has endorsed the importance of the political parties emphasizing that they are “a form of association essential to the proper functioning of democracy” which “appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.”148 As they are an indispensable part of democracy, the ECtHR expects an especially strict justification for the dissolution of a political party, in contrast to other associations. The first decisions of the Strasbourg organs on party prohibition were adopted in cases concerning the fascist party in Italy and the Communist Party of Germany. In the case of the resurgence of the Italian fascist party, the European Commission endorsed the compatibility of Italian Law No. 645, dated 20.06.1952, implementing the constitutional ban on the re-establishment of the fascist party,149 with Article 11 of the Convention.150 In the case of the Communist Party of Germany, the Commission did not consider the application of the party as admissible, based on its incompatibility with Article 17 ECHR which forbids the abuse of fundamental rights and freedoms.151 This case shows that Article 17 ECHR is one of the applicable norms in party prohibition cases.

147

United Communist Party of Turkey and Others v. Turkey, para. 37. United Communist Party of Turkey and Others v. Turkey, paras. 25 and 45. 149 According to Article 1 of Law 645/1952: “. . .it was reorganizing the dissolved fascist party when an association, a movement or at least a group of at least five people pursue their undemocratic goals of the fascist party, enhancing, or threatening using violence as a method of political struggle or advocating the suppression of the freedoms guaranteed by the Constitution or denigrating democracy, its institutions and values of strength, or acting racist propaganda, which addresses its activities to the exaltation of leaders, principles, facts and methods of that party or its outward manifestations of character turns fascist” (cited in Christians (2011). 150 X v Italy (1976) 5 DR 83. 151 For the review of the case with regard to Article 17 ECHR, see Rainey et al. (2017), pp. 123–24. 148

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

125

The ECtHR established its general approach and basic principles in the early two rulings against Turkey, regarding the United Communist Party of Turkey and the Socialist Party. The European Court continued them in Freedom and Democracy Party (ÖZDEP) v. Turkey, and elaborated them in Yazar and others v. Turkey,152 which further narrowed the criteria for party prohibition. There are also several other cases in which the ECtHR approved and repeated the principles laid down in the abovementioned cases.153 The principles which can be drawn from the relevant jurisprudence of the ECtHR on Article 11 can be summarized as follows: 1. Democracy is the only political regime contemplated by the Convention and, consequently, the exclusive one consistent with it;154 the role of political parties is of vital importance for maintaining a democratic order;155 2. Political parties are entitled to the freedom of association and freedom of expression;156 3. Political parties are essential for maintaining pluralism in democracy and their proper functioning needs the protection under Articles 11 (freedom of assembly and association) and 10 (freedom of expression) of the Convention;157 4. Due to the vital importance of the freedom of expression for guaranteeing pluralism, its protection “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”, subject to the restrictions stipulated in Article 10(2).158 5. Political parties may propose a change “in the law or the legal or constitutional structures of the State,” under these terms: (i) “the means used to that end must be . . . legal and democratic,” and (ii) “the change proposed must itself be compatible with fundamental democratic principles;”159

152

Yazar and Others v Turkey App nos 22723/93, 22724/93 and 22725/93 (ECtHR, 9 April 2002). They are: DEP v. Turkey App no 25141/94 (ECtHR, 10 December 2002), STP v. Turkey App no 26482/95 (ECtHR, 12 November 2003), and EP v. Turkey App no 39434/98 (ECtHR, 31 May 2005). Judgments against other states include the Christian Democratic People’s Party v. Moldova App no 28793/02 (ECtHR, 14 February 2006), and Zhechev v. Bulgaria App no 57045/00 (ECtHR, 21 June 2007). This list is not comprehensive. 154 Loizidou v Turkey (Preliminary Objections), App no 15318/89 (ECtHR, 23 March 1995), para. 75; United Communist Party of Turkey and Others v Turkey, para. 45. 155 United Communist Party of Turkey and Others v. Turkey, para. 25. 156 United Communist Party of Turkey and Others v. Turkey, paras. 42–43. 157 United Communist Party of Turkey and Others v. Turkey, para. 43. 158 Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976), para. 49. 159 Yazar and Others v. Turkey, para. 49. 153

126

5

Protection of Secularism Within the Framework of the Political Party Regime

6. Political parties cannot invoke the protection of the ECHR for the purpose of infringing the rights and freedoms guaranteed in the ECHR and consequently destroying the democratic state order; 7. Some of the freedoms of political parties may be restricted on the ground of guaranteeing greater stability of the state; nevertheless, the limitations of freedom of association and expression of political parties, stipulated in Articles 10(2) and 11(2), should be interpreted narrowly, granting a minimal margin of appreciation to the states, whose exercise is rigorously supervised by the ECtHR;160 8. In reviewing the justification of the party prohibition based on a pressing social need, the following issues should be scrutinized: (i) whether there is credible evidence proving that the danger posed to democracy by the political party concerned is real; (ii) whether the statements and actions of the concerning political party’s leaders and members are attributable to the party as a whole; (iii) whether the impugned statements and actions altogether reflected a full picture of a political project perceived and promoted by the party which was irreconcilable with the fundamental democratic principles;161 9. Additionally, it should be scrutinized whether the prohibition is a proportionate means to the legitimate objectives sought; even though democratic regimes are entitled to protect themselves from anti-democratic parties,162 the prohibition of a political party or imposing a political activity ban on its leaders are severe measures which can be applied only in truly exceptional cases.163 5.3.1.2

Tsatsos Report and a 1996 European Parliament Resolution

Another source that can give insight into the international standards in the field of political parties is a Report on the Constitutional Status of the European Political Parties and a relevant resolution of the European Parliament of 10 December 1996 adopting this report.164 One of the most interesting aspects of this resolution is that it emphasizes certain obligations of the European political parties before identifying their rights and privileges. According to this Resolution, the political parties should: (b) respect, in their programme and practical activities, the fundamental constitutional principles enshrined in the Union Treaty of democracy, respect for human rights and the rule of law,

160

United Communist Party of Turkey and Others v. Turkey, para. 46. Socialist Party and Others v. Turkey, para. 52. 162 See PACE (2002), [hereafter PACE Resolution 1308 (2002)]. 163 United Communist Party of Turkey and Others v. Turkey, para. 46. 164 European Parliament (1996a). 161

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

127

(c) so word their statutes that the expression of their political will accords with democratic principles and all citizens of the Union who with to do so are able to express their political will in this process.165

In the opinion of Fazıl Sağlam, these obligations carry the features of the German party concept from the perspective of importance given to the “fidelity to internal party democracy and the state based on democracy, human rights and the rule of law.”166 This impact is more evident from the Explanatory Statement provided in the Report: 10. . . . Re (b) Unlike loose associations, political parties need some kind of organizational structure to cope with their constitutional mission. ... 12. . . . Re (b) The specific privileges of European political parties cannot in any case be claimed by associations that attack the foundations of the democratic expression of political will.167

The features of militant democracy appear more clearly when this resolution of the European Parliament is analyzed in conjunction with this Explanatory Statement.

5.3.1.3

The PACE Resolution 1308 (2002) on Restrictions on Political Parties in the Council of Europe Member States

While the case of Refah was under review by the Grand Chamber of the ECtHR, the PACE adopted Resolution 1308 (2002) on “Restrictions on political parties in the Council of Europe member states” on 18 November 2002. In paragraph 11 of this resolution, the PACE described the principles to be complied with for the legitimate dissolution of the political parties: 11. In conclusion and in the light of the foregoing, the Assembly calls on the governments of member states to comply with the following principles: political pluralism is one of the fundamental principles of every democratic regime; restrictions on or dissolution of political parties should be regarded as exceptional measures to be applied only in cases where the party concerned uses violence or threatens civil peace and the democratic constitutional order of the country; as far as possible, less radical measures than dissolution should be used; a party cannot be held responsible for the action taken by its members if such action is contrary to its statute or activities; a political party should be banned or dissolved only as a last resort, in conformity with the constitutional order of the country, and in accordance with the procedures which provide all the necessary guarantees to a fair trial;

165

European Parliament (1996a), para. 5. Sağlam (2000), p. 241. 167 European Parliament (1996b), Explanatory Statement, paras. 10 and 12. 166

128

5

Protection of Secularism Within the Framework of the Political Party Regime

the legal system in each member state should include specific provisions to ensure that measures restricting parties cannot be used in an arbitrary manner by the political authorities.168

5.3.1.4

The 1999 Venice Commission Guidelines

As a result of its study on the prohibition of political parties in European countries, the Venice Commission drafted “Guidelines on prohibition and dissolution of political parties and analogous measures” in December 1999.169 According to paragraph 3 of these guidelines: Prohibition or enforced dissolution of political parties may only be justified in the case of parties which advocate the use of violence or use violence as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution. The fact alone that a party advocates a peaceful change of the Constitution should not be sufficient for its prohibition or dissolution.170

From this paragraph, it seems that the Venice Commission exclusively accepts “the threat or use of violence as the sole legitimate criterion for dissolution of political parties.”171 This means that political parties cannot be prohibited solely based on their anti-democratic projects, but the party must be involved in violence for its dissolution to be legitimate. This criterion appears to be more restrictive than that established by the ECtHR case-law which will be discussed below. Paragraph 4 of the guidelines distinguishes between the responsibility of the party and that of its individual members: 4. A political party as a whole can not be held responsible for the individual behaviour of its members not authorised by the party within the framework of political/public and party activities.172

In the explanatory report to the guidelines, it is elaborated that: . . . Any restrictive measure taken against a political party on the basis of the behaviour of its members should be supported by evidence that he or she acted with the support of the party in question or that such behaviour was the result of the party’s programme or political aims. Where these links are missing or cannot be established the responsibility should fall entirely on the party member.173

Paragraphs 5 and 6 of the guidelines draw attention to the importance of the principle of proportionality and burden of proof in party prohibition cases:

168

PACE Resolution 1308 (2002), para. 11. Venice Commission (2000), [hereafter Guidelines]. 170 Venice Commission (2000) Guidelines, para. 3. 171 Venice Commission (2009) Prohibition of Political Parties in Turkey, para. 58. 172 Venice Commission (2000) Guidelines, para. 4. 173 Venice Commission (2000) Guidelines, Explanatory report, para. 13. 169

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

129

5. The prohibition or dissolution of political parties as a particularly far-reaching measure should be used with utmost restraint. Before asking the competent judicial body to prohibit or dissolve a party, governments or other state organs should assess, having regard to the situation of the country concerned, whether the party really represents a danger to the free and democratic political order or to the rights of individuals and whether other, less radical measures could prevent the said danger. 6. Legal measures directed to the prohibition or legally enforced dissolution of political parties shall be a consequence of a judicial finding of unconstitutionality and shall be deemed as of an exceptional nature and governed by the principle of proportionality. Any such measure must be based on sufficient evidence that the party itself and not only individual members pursue political objectives using or preparing to use unconstitutional means.174

The Venice Commission issued a separate Opinion on the Constitutional and Legal Provisions Relevant to the Prohibition of Political Parties in Turkey at the request of the Monitoring Committee of the PACE. The request was stimulated generally by the need to amend the legal regime on party prohibition as a part of the reform process held at the time, and more specifically by the dissolution proceedings against AKP brought before the Constitutional Court on 14 March 2008.175 The Venice Commission confirmed and reiterated its preceding guidelines on the closure of political parties in this opinion. However, it must be noted that the Commission attached excessive importance to the criterion of violence neglecting the possibility that the anti-democratic forces could destroy the democratic order also by legal means. This contradicts the ECtHR conditions, which require not only the means but also the proposals of the political parties to be compatible with the Convention. The European Commission rejected the application of the German Communist Party considering that its avowed aims were incompatible with the Convention, based on Article 17 ECHR. In other words, “even if it sought power by solely constitutional methods, recourse to a dictatorship was incompatible with the Convention because it would involve the suppression of a number of rights and freedoms that the Convention guaranteed.”176 According to the Venice Commission, although its standard is even lower than that established by the ECtHR or provided in party legislation of certain European countries, this standard “conforms to what has been the actual practice in democratic Europe for many decades” (emphasis added).177 This explanation cannot be accepted since the mentioned practice highly depends on the local as well as regional political conditions and can change according to the political context of each country. Rather, the general condition of the country concerned should be seen as a main factor in evaluation of the determined principles for party prohibition.178 For example, the German Communist Party was banned by the FCC in 1956 solely based

174

Venice Commission (2000) Guidelines, paras. 5 and 6. Venice Commission (2009) Prohibition of Political Parties in Turkey, paras. 1–4. 176 Rainey et al. (2017), p. 124. 177 Venice Commission (2009) Prohibition of Political Parties in Turkey, para. 59. 178 See Sağlam (2000), p. 242. 175

130

5

Protection of Secularism Within the Framework of the Political Party Regime

on its anti-constitutional objectives.179 According to the German legal scholar and constitutional judge, Ernst-Wolfgang Böckenförde, “the ban was essentially based on the incompatibility of the KPD’s aims and activities with the democratic principles of freedom and equality, because [the party] allegedly conceives of its political opponent as the enemy to be stripped of his rights as soon as is opportune.”180 The party was dissolved by the FCC although politically it was dead: it gained the support of only 2.2% of the electorate in the 1952 national elections held in Western Germany.181 On the other hand, in 2017 the FCC did not consider the prohibition of the NPD necessary due to “a lack of specific and weighty indications suggesting that this [the party’s attack on the constitution] endeavor will be successful.”182 Thus, while the mere existence of the Communist Party with connections to the USSR was perceived as a real threat to democracy during the period of Communist rule of Eastern Europe, in the case of the NPD, the FCC refused to prohibit the party as it did not find “any possibility of successfully pursuing its anti-constitutional aims with democratic means outside its parliamentary action.”183 Consequently, the potentiality of successful attainment of the anti-democratic goals without regard to the legality of the methods should be sufficient for banning a party as it can bring destruction of the rights and freedoms in the end.

5.3.1.5

Summary of the International Principles

In light of the abovementioned international standards, the principles relevant to the legal framework of party prohibition in Turkey can be summarized as follows: 1. Political parties should be prohibited only in truly exceptional circumstances, as a preventive measure necessary in a democratic society. However, resort to subversive methods or inciting violence are not the only criteria for the prohibition of parties. Prohibition can also be applied in cases where the party endangers civil peace and the free democratic basic order of the state. 2. Apart from the criteria mentioned above under (1), political parties cannot be prohibited for advocating a revision of the legal or constitutional orders of the state. However, activities seriously threatening the unamendable principles of the Constitution, such as the principle of secularism in case of Turkey and federal

179

BVerfG, 17 August 1956, 5 BVerfG 85. Böckenförde (1991) (cited in Niesen 2002, para. 11). 181 Brockhaus Enzyklopädie (1970), p. 389. 182 (2017) No Prohibition of the National Democratic Party of Germany as There Are No Indications That It Will Succeed in Achieving Its Anti-Constitutional Aims. In: Bundesverfassungsgericht. https://www.bundesverfassungsgericht.de/SharedDocs/ Pressemitteilungen/EN/2017/bvg17-004.html. 183 (2017) No Prohibition of the National Democratic Party of Germany as There Are No Indications That It Will Succeed in Achieving Its Anti-Constitutional Aims. 180

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

131

form of the state in case of Germany,184 can be used as a ground for party prohibition. 3. Legal measures concerning illegal statutes, programs, and activities of political parties are subject to the principle of proportionality. As the most severe sanction, the prohibition of political parties may be applied only in the exceptionally critical cases identified in the Constitution. Other illegal activities may only be subject to different sanctions, depending on the gravity of activity. 4. Individual actions of its members cannot be imputed to a political party unless such actions are condoned by the central party organs either implicitly or explicitly. The party can be bound only by the speeches and activities of the party organs representing it.

5.3.2

Evaluation of the Amendments made to the Constitutional and Legal Provisions on the Prohibition of Political Parties

5.3.2.1

Evaluation of the 2001 Constitutional Amendments

5.3.2.1.1

Summary of the Content

To raise the threshold for prohibiting a political party, several amendments were made to the Constitution in 2001. These amendments were also incorporated into the LPP by Law No. 4748 dated 26 March 2002 published in the Official Gazette No. 24721 of 9 April 2002. Moreover, provisions concretizing the constitutional amendments were added to the LPP in 2003.185 The main purpose of the constitutional amendments was to solve the actual problems and fulfil the gaps in the respective legislation. However, the 2001 constitutional amendments which were adopted as a result of inter-party dealings are rather prone to cause new problems instead of solving them.186 This part will analyse the amendments in detail. Article 103(2) of the LPP defining the term of a “center for the unconstitutional activities,” which had been struck down by the TCC,187 was turned into Article 69(6) of the Constitution by Law No. 4709.188 The term “center” is defined in two alternatives:

184

Basic Law for the Federal Republic of Germany, 23 May 1949, Art. 79(3) [hereafter German Basic Law]. The official English version of the Basic Law can be found at the website of the Federal Ministry of Justice, http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.pdf. 185 See Ekizceleroğlu and Çelikyay (2017), p. 105. 186 See Sağlam (2002). 187 Turkish Constitutional Court decision, 12 December 2000, E. 2000/86, K. 2000/50. 188 Türkiye Cumhuriyeti Anayasasinin Bazı Maddelerinin Değiştirilmesi Hakkinda Kanun [Law to Amend Certain Provisions of the Constitution of the Republic of Turkey], No. 4709, 3 October 2001, Official Gazette, 17 October 2001, No. 24556.

132

5

Protection of Secularism Within the Framework of the Political Party Regime

1. In the first alternative, the ordinary members and the central party organs or authorities are definitively differentiated, and the party is considered to become the center of the banned activities “when such actions are carried out intensively by the members of that party and the situation is shared implicitly or explicitly” by the central party organs.189 2. In the second alternative, it is enough that “these activities are carried out with determination” directly by the central party organs.190 Under Article 69(6) of the Constitution, the central party organs are “the grand congress, general chairpersonship, or the central decision-making or administrative organs of that party” or “the group’s general meeting or group executive board at the Grand National Assembly of Turkey.” The 2001 constitutional amendments have also empowered the TCC, instead of prohibiting a party permanently, to deprive it of “state aid wholly or in part with respect to the intensity of the actions brought before the court.”191

5.3.2.1.2 5.3.2.1.2.1

Evaluation The Qualification of the “Center”

The purpose of concretizing the qualification of the “center” was to elevate the threshold for applying party prohibition rules. However, a comprehensive analysis of this term in conjunction with other party prohibition rules shows that the term “center” lacks sufficient qualifying criteria for the purposes of party prohibition and it should be further concretized and elaborated. The main problematic point of the party prohibition regime is a lack of sufficient qualifying criteria for determining the party as the “center” of the unconstitutional activities and a lack of inclusion of the principle of proportionality in the dissolution procedure enshrined in the Constitution (Articles 68 and 69). The Venice Commission has also criticized this point: “[t]he wording of the provisions does not for example state that they should only be invoked in particularly severe cases, and there is no real formulation of a general principle of proportionality.”192 Thus, the definition of the term “center” is not comprehensive enough to elevate the threshold for applying the sanction of party prohibition and it is suggested to supplement it with a clearer criterion, the criterion of “the real threat and danger.” To better understand the shortcoming of the term “center,” it is necessary to make a comparative analysis of Articles 68 and 69 of the Turkish Constitution together with the parallel Article 21(2) of the German Basic Law. According to Article 21(2) of the German Basic Law, “[p]arties that, by reason of their aims or the behaviour of their 189

Turkish Constitution Art. 69(6). Turkish Constitution Art. 69(6). 191 Turkish Constitution Art. 69(7). 192 Venice Commission (2009) Prohibition of Political Parties in Turkey, para. 79. 190

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

133

adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality” (emphasis added). This provision more successfully incorporates the criterion of “real danger” making it clear that the parties can be prohibited only if their activities are capable of “abolishing the free democratic basic order.” To put it another way, the German Basic Law is not focused on the intensity or manner of the unconstitutional actions. Rather it is focused on their destructive effect on the democratic order as a determining criterion. This has been accurately illustrated by the recent NPD case. In this case, the FCC stated that “[f]or a political party to be prohibited it is sufficient that the political party in question “seeks” (darauf ausgehen) to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany.”193 Furthermore, the FCC established that “the NPD acts in a systematic manner and with sufficient intensity towards achieving its aims that are directed against the free democratic basic order”194 which corresponds to the concept of the “center” of the Turkish Constitution (emphasis added). However, according to the FCC, what prevents a dissolution of the NPD is that “the criterion of “seeking”. . . within the meaning of Art. 21(2) first sentence GG is not met.”195 The FCC argued that “[w]hile the respondent does indeed advocate aims which are directed against the free democratic basic order and although it systematically acts towards achieving those aims, there are no specific and weighty indications suggesting even at least the possibility that these endeavours might be successful” (emphasis added).196 Thus, what the FCC requires further for the prohibition of a party is the element of potential success.197 In short, while the Turkish Constitution considers it enough to provide that “[t]he statutes and programs, as well as the activities of political parties shall not be contrary. . . to the principles of the democratic and secular republic” (Article 68(4)), the German Basic Law conditions prohibition of the political party upon the criterion of seeking “to undermine or abolish the free democratic basic order” with potential success (Article 21(2)). Although the qualification of the “center” also requires these activities to be carried out “intensively” and “in determination,” it cannot provide for a necessary criterion, “real threat and danger to the democratic order” for invoking party prohibition rules. Consequently, to incorporate the criterion of “real threat and danger,” it must be added to Article 69(6) that the concept of the “center” is met only when the party activities are carried out at such intensity or have such an effect that they threaten or endanger the values under the protection of Article 68(4) of the Constitution. In this

193

NPD II, para. 522. NPD II, para. 1. 195 NPD II, para. 845. 196 NPD II, para. 845. 197 It corresponds to the “real danger” concept of the US Supreme Court. 194

134

5 Protection of Secularism Within the Framework of the Political Party Regime

way, the qualification of the “center” will be associated with the criterion of the “real threat and danger” from the perspectives of both the intensity and impact of the anticonstitutional activities. Thus, the addition of the element of the “real threat and danger” will bring clarity to the definition of the “center” by fulfilling the problematic gap in this definition. The definition of the term “the center” has a deficiency also from the perspective of the list of the central party organs it covers. The deputies to the general chairperson and the general secretary of the party should be also added to the list of central party organs. Otherwise, the persons who have an authority to represent their parties according to the party law and party statute will be provided with an uncontrolled space with regard to violation of the Constitution. Most importantly, the list of central party organs should also cover the MPs and the ministers whose statements and actions are under protection of parliamentary immunity according to Articles 83 and 106(11) of the Constitution, respectively. The current regulation puts the status of the mentioned high-ranking members on the same level as the ordinary party members in terms of the threat to the democratic regime. The statements or actions of one of the central party organs provided in Article 69(6) of the Constitution should bind the party directly and give a ground for the presumption of having become a “center” unless they are not disavowed by other party organs. Certainly, such a situation is to be evaluated by the TCC depending on the concrete cases. Admittedly, however, the proper application of these rules highly depends on the professional competency and proper training of the constitutional judges. As already discussed, even the introduction of the qualification of the “center” has not narrowed the dissolution criteria in practice as was demonstrated in the Fazilet case. Therefore, it should be kept in mind that achieving the balance between protection of the secular order and political freedoms depends much more on whether the justices are provided with coherent guiding principles on how to be engaged in this delicate task. 5.3.2.1.2.2

Deprivation of State Aid

The 2001 constitutional amendments introduced an alternative sanction to permanent prohibition, namely, partial or complete deprivation of state aid (Article 69(7) of the Constitution). Although the introduction of this sanction is considered an improvement, its formulation can be criticized in several respects. The new sanction as an alternative to prohibition cannot be considered proportional to the sought aim. If the party is found to be a “center” for anti-constitutional activities, it means that the party has extended the threshold for conducting antisecular activities determined by Article 69(6), which cannot be prevented by any sanction other than prohibition. It is a paradox that a party which destroys one of the constituent principles of the democratic order such as secularism is deprived of state funding instead of being prohibited permanently.

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

135

Thus, it is considered that deprivation of public funding is not a proportional measure with respect to the severity of the party’s activities.198 The discretion given to the Court to sanction the party found as a “center” of anti-secular activities with the deprivation of state funding reflects an improper application of the principle of proportionality on sanctions. Such an inappropriate differentiating regime in the sanctions system cannot fulfill the preventive purpose of party prohibition rules. Thus, the application of the sanction of deprivation of state aid to parties that are a “center of anti-secular activities” poses a vital threat to the republic’s secular and democratic regime. The AKP case is a good example to illustrate the paradoxical situation caused by the inappropriate sanction system of Article 69. The party which was found as a “center of anti-secular activities” by a ten-elevenths (10/11) majority of the votes was deprived of state funding partially, instead of being prohibited. This concern was expressed in the dissenting opinion of six judges who voted for the party’s prohibition. Enumerating several violations carried out by the respondent ruling party, the dissenting judges held that these activities proved that the danger posed by the party to the secular regime had reached such a serious level that it could not be prevented by the sanction of deprivation of state funding.199 It is suggested that for the purposes of the principle of proportionality, deprivation of state aid should not be classified as an alternative sanction to party prohibition. The party that surmounts the threshold of anti-secular activities determined by Article 69(6) of the Constitution and the relevant concretizing norms in the LPP should be penalized exclusively by permanent prohibition. Deprivation of state aid should be applied to the parties for their illegal activities falling outside the scope of “center” as understood by Article 69(6) of the Constitution. The sanction also raises a question concerning its scope of applicability to the parties. Firstly, this sanction cannot be applied to parties that do not receive the state aid. Moreover, the sanction raises equality concerns since the amount of state funding differs according to the number of votes obtained by the parties.200 5.3.2.1.2.3

Violation of Constitutional Restrictions by Party Statutes, Programs and Other Party Rules

According to Article 69(5) of the Constitution, “[t]he permanent dissolution of a political party shall be decided when it is established that the statute and program of the political party violate the provisions of the fourth paragraph of Article 68.” The qualification of a “center” appears not to be required by Article 69(5) in cases when the party violate Article 68(4) by its program or statute. It applies only when the

198

See Sağlam (2002); Öden (2003), pp. 93–96; Teziç (2005), p. 331. Dissenting Opinion of Judges Osman Alifeyyaz Paksüt, Fulya Kantarcıoğlu, Mehmet Erten, A. Necmi Özler, Şevket Apalak, Zehra Ayla Perktaş in the Turkish Constitutional Court decision, 30 July 2008, E. 2008/1, K. 2008/2. 200 See Algan (2011), p. 817; Ekizceleroğlu and Çelikyay (2017), p. 105. 199

136

5

Protection of Secularism Within the Framework of the Political Party Regime

party and party members infringe Article 68(4) by their activities, as explained in Article 69(6) of the Constitution. The 2001 constitutional amendments have not brought a necessary distinction between the parties that have not started their activity and those who are in action. It is inappropriate to invoke the same prohibition rules for violations committed through anti-secular activities and party rules. Instituting a dissolution procedure based on party rules has been criticized both by international and national legal scholars as it constitutes too low a threshold for applying the prohibition rules.201 Despite the constitutional reforms made in 2001 and 2010, this provision has not been amended and still is in force. Different legal regimes should be contemplated for activity-based violations and party rules-based violations. The introduction of this amendment into legislation has become obligatory due to the ECtHR’s ruling in the United Communist Party v. Turkey case which mentioned the problem.202 Thus, at the current moment, according to Article 69(5) of the Constitution, the prohibition of a political party merely on the ground of its statute and program is possible, and several parties have already been prohibited on this ground. Although there is no obstacle to apply the deprivation of state aid sanction instead of the prohibition sanction in such case, the Harmonization Law No. 4778, dated 11 January 2003, which incorporates the 2001 constitutional amendments into the LPP, has not included any express provision in this regard.203 It seems to be an ideal solution to subject the violations committed through activities and party rules to a different regime, to incorporate the criterion of “the real threat and danger” in the definition of the qualification of being a “center” and to leave its evaluation to the TCC.204

5.3.2.1.3

Recommendations

The following revisions should be made to the prohibition procedure instituted on the ground of unconstitutionality of internal party rules: 1. As a supplementing provision, it must be added that in addition to the party program and statute, the violation of constitutional criteria by “equivalent rules of the party” should also be considered as a ground for prohibition, as it was mentioned in the previous text of Article 101(a) of the LPP.205 2. The legislation should be amended allowing the parties, whose statutes, programs, and equivalent rules conflict with Article 68(4) of the Constitution and Article 101(a) of the LLP, to correct the concerning norms under the warning 201 See Venice Commission (2009) Prohibition of Political Parties in Turkey, para. 81; Sağlam (2000), p. 247; Türkiye Barolar Birliği [Turkish Union of Bar Associations] (2011), p. 106. 202 United Communist Party of Turkey and Others v. Turkey, para. 51. 203 Türkiye Barolar Birliği [Turkish Union of Bar Associations] (2011), p. 106. 204 Türkiye Barolar Birliği [Turkish Union of Bar Associations] (2011), p. 107. 205 Sağlam (2000), p. 248.

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

137

procedure before initiating the prohibition process. In this way, the concerned party will have an opportunity to make amendments in order to avoid the prohibition. Moreover, if the party insists on maintaining the unconstitutional rules despite the warning notice, this will prove its unconstitutional purposes. The importance of the warning notice has been mentioned in the defense statements of the parties closed as a result of the prohibition cases. For example, in Refah, the party claimed that “the prosecuting authorities had not issued any warning to Refah (which had four million members) that might have enabled it to expel any of its members whose acts had contravened the provisions of the Criminal Code.”206 3. Moreover, it would be appropriate to regulate the warning procedure in detail and introduce certain time limits. For example, if the Chief Public Prosecutor does not initiate the warning procedure within 6 months after becoming aware of the party rules, the unconstitutionality of the party statutes and programs can be invoked only together with the party activities on the ground of Article 103 (“A political party becoming the focal point of prohibited acts”) of the LPP. If a political party fails to make the necessary correction to its party rules within 3 months, the Public Prosecutor should initiate proceedings at the Constitutional Court, ex officio, for prohibition of that political party.207 Article 102 of the LPP (“Actions to be taken in cases where the party refuses to comply with the demands of the Chief Public Prosecutor”) should be amended accordingly.

5.3.2.2

Evaluation of the 2010 Constitutional Amendments

The main aim of the 2010 constitutional amendments was to make the prohibition of political parties by the Constitutional Court more difficult. Several proposals drastically amending the party prohibition regime (Article 69 of the Constitution) were rejected by the GNAT. Two important amendments concerning party prohibition rules were, however, adopted in the constitutional referendum held on 12 September 2010.

5.3.2.2.1

Paragraph 5 of Article 84 of the Constitution Was Repealed

The 2010 constitutional amendments repealed paragraph 5 of Article 84 of the Constitution on “Loss of Membership” which stated: “[t]he membership of a deputy whose statements and acts are cited in a final judgment by the Constitutional Court as having caused the permanent dissolution of his party shall terminate on the date when the decision in question and its justifications are published in the Official

206 207

Refah, Grand Chamber judgment, para. 15. Sağlam (2000), p. 248.

138

5

Protection of Secularism Within the Framework of the Political Party Regime

Gazette.”208 This is to say that a deputy found responsible to have caused the dissolution of his/her party by the TCC “shall continue to stay in Parliament as an independent MP.”209 If the party is prohibited by the Constitutional Court, it means that the party has become the focal point of acts turned against the founding principles of the democratic state order. Under Article 69(9) of the Constitution, “[t]he members, including the founders of a political party whose acts or statements have caused the party to be dissolved permanently, shall not be founders, members, directors, or supervisors in any other party for a period of 5 years.” Allowing the MP, who has caused his/her party to be dissolved, to maintain his/her seat in parliament as an independent deputy eliminates the effectiveness of the party prohibition rules to a considerable degree. It is not reasonable to allow someone who is banned from being even a member of the political party for a 5-year period, to represent the national will.210 Although there is not any mention of the loss of membership of parliament in the German Basic Law or the German Act on Political Parties, the FCC has come to this conclusion through the interpretation that the deputies who are members of the prohibited party should lose their seats in the parliament. According to the FCC, the purpose of the party prohibition is to exclude the concerned party from the process of formation of the national will. Since the formation of the national will takes place in the parliament, the loss of seats of the deputies belonging to the prohibited parties is an inevitable consequence of the party prohibition.211 It must be noted that the older version of Article 84(5)212 of the Constitution provided for the loss of membership of all the deputies belonging to the prohibited party. Thus, in comparison to the pertinent conclusion of the FCC which was deduced from the constitutional provisions through interpretation, the repealed Article 84(5) had already narrowed the effects of the party prohibition considerably. Based on this provision, only five deputies who belonged to the Refah party lost their seats in the Parliament after the party was dissolved. The repeal of this provision which provided for the minimum degree of restriction after the 1995 constitutional amendments is against the purpose of the Constitution.213 Moreover, the abolition of the mentioned provision is unnecessary, as Article 83 of the Constitution on “Parliamentary Immunity” already provides sufficient protection for the deputies by prohibiting prosecuting them for their statements and activities.

208

Law No. 5982 Amending Certain Provisions of the Constitution. Levent Gönenç (2010), p. 3. 210 See Sağlam (1999), p. 116. 211 Sağlam (1999), p. 116 (citing Leibholz et al. (1993), GG. Art. 21, Rz. 401). 212 Old Article 84(5) of the Constitution stipulated: “The membership of a deputy, whose acts and statements are cited in a judgement of the Constitutional Court as having caused the dissolution of a political party and that of other deputies who belonged to the party on the date when the action for dissolution was brought, shall end when the Presidency of the Turkish Grand National Assembly is notified of the dissolution order”. 213 See Sağlam (1999), p. 116. 209

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

5.3.2.2.2

139

The Voting Rules Were Changed

The 2010 amendments introduced a rule which made it harder for the Constitutional Court to order dissolution in party prohibition cases. Article 149 of the Constitution was amended requiring the Constitutional Court to have a two-thirds majority to order dissolution as well as to deprive the party of the state aid, as opposed to a threefifths majority under the 2001 constitutional amendments.214 At the time this meant that “12 members of the Constitutional Court, which is composed of 17 members after the [2010] amendment, will have to agree with the decision of closure.”215 Currently, this means that ten members of the Court, which consists of 15 justices, will have to vote for the dissolution and deprivation of state aid. Taking the reformed structure of the Constitutional Court into account “such a coalition seems very unlikely.”216

5.3.2.2.3

Issues Remaining Unaddressed

It is necessary also to consider the important issues which were not addressed by the 2010 amendments. 1. The 2010 constitutional amendments did not make a necessary improvement in Article 68(4) of the Constitution concerning the prohibition of parties on the grounds of unconstitutional party statutes and programs. However, this rule should be amended as proposed above. 2. The amendments did not make any improvement in the list of material criteria provided for the prohibition of parties either. However, this area especially needed to be reformed. As mentioned above, the biggest problem in the party prohibition regime is a deficiency in the definition of the concept of a “center.” The party cannot be prohibited in case of any violation. To prohibit a party, its violations must pose a “real threat and danger” to the pillars of the democratic order including secularism. The addition of this criterion will make the concept of a “center” clearer. Amending these two areas, which have been touched also by the Venice Commission,217 would be sufficient to bring the constitutional party prohibition rules into compliance with that Commission’s criteria. More importantly, the LPP also requires reform. The criteria in the LPP which extend the list of constitutional criteria for prohibition such as the criterion of taking action against the “Preservation of the status of the Religious Affairs Department” (Article 89 of the LPP) are still in effect. This is an unconstitutional legislative provision that should be annulled. It is not a

214

Law No. 5982 Amending Certain Provisions of the Constitution. Algan (2011), p. 823. 216 Algan (2011), p. 823. 217 Venice Commission (2009) Prohibition of Political Parties in Turkey, paras. 79–82. 215

140

5

Protection of Secularism Within the Framework of the Political Party Regime

consistent approach to make constitutional reforms in the field of political parties without reforming this kind of provision of the LPP and without addressing the shortcomings of the prohibition regime and the concept of a “center.”

5.3.2.3

Failed Proposals of the 2010 and 2015 Constitutional Amendment Packages

The major proposals of the 2010 constitutional amendments package suggesting radical changes to the legal regime of party prohibition were not approved by the GNAT during the negotiations.218 Due to their significance for the ruling party, the same failed proposals of 2010 were reintroduced into the Parliament in 2015 as a package of constitutional amendments. However, the so-called “proposals complicating the party prohibition” failed to pass through the Parliament this time, too.219 Nevertheless, analysis of these proposals is important to better understand the approach and get a full picture of the changes attempted in 2010 and 2015. Considering the statements of the officials of the ruling party it does not seem unlikely that similar constitutional proposals can return to the agenda of the GNAT in the future.220 1. The 2010 reforms package proposed to repeal Article 69(8) of the Constitution which provides that, “[a] party which has been dissolved permanently shall not be founded under another name.” Moreover, it suggested removing the term “permanently” preceding the term “dissolution” in all relevant parts of Article 69, replacing “permanent dissolution” with “dissolution.”221 Obviously, this proposal is against the concept of party prohibition. If a party is prohibited legitimately, it is logical to prohibit its reemergence under another name. For example, Article 33 of the German Act on Political Parties prohibits organizing

218

(2010) Parti kapatma maddesi düştü! [Provision on the Party Prohibition Dropped!]. In: Milliyet. https://www.milliyet.com.tr/siyaset/parti-kapatma-maddesi-dustu-1233114. 219 (2015) Parti kapatmaları zorlaştıran teklif Meclis’te [The Proposal Complicating Party Prohibition is at the Parliament]. In: Hurriyet. https://www.hurriyet.com.tr/gundem/parti-kapatmalarizorlastiran-teklif-mecliste-28409380; (2015) TBMM Anayasa Komisyonu [The GNAT Constitutional Commission]. In: Türkiye Büyük Millet Meclisi. https://www.tbmm.gov.tr/develop/owa/ haber_portal.aciklama?p1=132184. 220 AKP Deputy Parliamentary Group Chair Mahir Ünal: “Our preparations on the arrangement which was brought to the agenda in the referendum of 2010 and not legalized within the package of 26 articles, and which makes prohibition of the political parties impossible and brings the individual punishment of the responsible persons instead of party prohibition are still continuing” (author’s own translation). See (2017) Muhalefete parti kapatma tehdidi [Party Prohibition Threat to the Opposition]. In: Bir Gün. https://www.birgun.net/haber/muhalefete-parti-kapatma-tehdidi-194571. 221 Türkiye Cumhuriyeti Anayasasının Bazı Maddelerinde Değişiklik Yapılması Hakkında Kanun Teklifi [Law Proposal to Amend Certain Provisions of the Constitution of the Turkish Republic], first Addition to 497, 2010, Art. 8.

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

141

substitute organizations to replace the banned political parties.222 However, the pertinent provision may need reformulation which will be proposed in the next part. 2. The main problem of the 2010 proposals was that they aimed to immunize a political party that is a center of unconstitutional activities against prohibition proceedings. Article 8 of the constitutional amendment proposal provided to subject the competence of the Chief Public Prosecutor to file a case for prohibition of a political party at the Constitutional Court to “the consent of a commission members of which are parliamentarians.”223 That commission should have consisted of five members from each political party having a parliamentarian group at the GNAT and the relevant decision was to be made by two-thirds of the members of the commission. According to the proposed rule, the commission’s decision was to be beyond judicial control; in other words, it could not be appealed before the Constitutional Court.224 This kind of arrangement, if adopted in the future, could disable the protection of the unamendable provisions of the Constitution, including the principle of secularism, from the activities of political parties. Based on this scheme, enabling the initiation of prohibition proceedings only in exceptional cases would most likely be turned against small parties which would not pose a real threat to the protected constitutional principles.225 Moreover, the commission’s decision would be political in character casting doubts on the judicial part of the proceedings. It is highly likely that under Turkey’s conditions, the parties would pose a real threat to the democratic secular regime with their power. Institutional structure and activities would be protected by the proposed system.226 The General Reasons for the 2015 constitutional amendment proposals, which reintroduced the abovementioned mechanism, defended this system. They refer to the Venice Commission’s Opinion227 which recommended establishing “a system under which the competence of the Public Prosecutor to initiate procedures concerning party closure [is] subject to some form of democratic control.”228 This is a selective approach to the international standards which fails to give due consideration to other related suggestions made in the same document. In fact, the Venice Commission stated that several models could be discussed, and that “within Act on Political Parties (Parteiengesetz – PartG), 24 July 1967, Art. 33(1). The official English version of the Act can be found at the website of the Bundestag, https://www.bundestag.de/ resource/blob/189734/2f4532b00e4071444a62f360416cac77/politicalparties-data.pdf. 223 Algan (2011), p. 822. 224 Türkiye Cumhuriyeti Anayasasının Bazı Maddelerinde Değişiklik Yapılması Hakkında Kanun Teklifi [Law Proposal to Amend Certain Provisions of the Constitution of the Turkish Republic], first Addition to 497, 2010, Art. 8. 225 See Sağlam (2010), p. 39. 226 See Sağlam (2010), p. 39. 227 (2015) Parti kapatmaları zorlaştıran teklif Meclis’te’ [The Proposal Complicating Party Prohibition is at the Parliament]. 228 Venice Commission (2009) Prohibition of Political Parties in Turkey, para. 113. 222

142

5

Protection of Secularism Within the Framework of the Political Party Regime

the requirements set by common European standards the national provisions may legitimately be tailored to the constitutional tradition and the political and historical context of each state” (emphasis added).229 Secondly, the relevant reform must be done “in a way which ensures that the instrument of party closure is transformed from being part of the operative constitution to become a genuine safety valve, to be invoked only in truly extraordinary circumstances.”230 While agreeing with this approach, it can also be added that the reform should be done in a way that does not impair the functioning of the party prohibition mechanism completely, depriving the democratic regime of a self-protection mechanism. Rather it should be designed in a way that makes its operation feasible in cases where the democratic, secular regime is endangered by the political parties. The proposed system does not respond to this requirement. Finally, the Venice Commission underlined the necessity of changing “the provisions both on substance and procedure.”231 The necessary amendments and additions to the substantive rules on party prohibition are made throughout this part of research. Omitting the implementation of necessary substantive reforms and changing only the procedural side in a way that does not correspond to the purpose of the party prohibition regime, does not represent a sincere and consistent approach. It is admitted that the competence of the Public Prosecutor to file suit, ex officio, for the dissolution of a political party is not sufficiently safe from the perspective of the functioning of the democratic regime. However, this mechanism can be elaborated remaining within the framework of the current constitutional system. According to Article 99 of the LPP, the Board for the Examination of Prohibitions regarding Political Parties “has been established for the purpose of examining the appeals against the decision of the Chief Public Prosecutor to reject the petitions requesting the dissolution of a political party.” Under Article 100 of the LPP, these appeals are made by the Ministry of Justice (exclusively on the ground of a ministerial order) or a political party that fulfills the requirements of Article 100(2) of the LPP. According to Article 99(2) of the LPP, the Board is composed of “the chief justices of the criminal chambers of the Court of Cassation.” It is suggested that the duties and competencies of this Board can be extended by granting the party that is sued by the Public Prosecutor, ex officio, the right to protest before the Board.232 The constitutional amendment may be required in order to establish such a rule. However, making recourse to arbitrary political decisions, instead of a procedure with a legal form, can have a devastating effect on the system. Under Turkey’s sociopolitical conditions where the parliamentary consensus has not been well developed and while there is a high-level of political and social polarization, binding the

229

Venice Commission (2009) Prohibition of Political Parties in Turkey, para. 112. Venice Commission (2009) Prohibition of Political Parties in Turkey, para. 112. 231 Venice Commission (2009) Prohibition of Political Parties in Turkey, para. 113. 232 Sağlam (2010), pp. 40–41. 230

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

143

initiation of the dissolution procedure completely to the consent of the parliamentarian commission does not ensure this mechanism’s reliability. 3. Another proposal was to include the rule at the end of Article 69(6) of the Constitution stipulating that “the votes and statements used during parliamentary proceedings, the views expressed in the Assembly, and the activities and operations of the administration cannot be considered in establishing the concept of a ‘center.’”233 According to this proposed rule, unconstitutional activities of the party members or leaders, performed either inside the Grand Assembly or during services at the central administration or local government will not bind the party. However, these are areas where the prohibited activities are most frequently performed. Besides, the activities of the MPs performed within the Assembly already do not attract criminal penalties. The adoption of this rule can create an “ideal” environment for violation of the party prohibition rules. Under these conditions, it would be impossible to sue the party manifestly violating the principle of secularism using the abovementioned channels. To sum up, the reforms adopted and proposed in the field of political party regime in 2010, under the disguise of extending party freedoms, allow the political parties to freely destruct the values protected by the party prohibitions. These attempts are against the logic of the party prohibition regime provided by the Constitution and challenge the concept of a robust democracy.

5.3.3

Amendments Needed to Elaborate the Party Prohibition Rules Relevant to the Protection of the Principle of Secularism

After studying the applicable international principles and reviewing the relevant constitutional amendments, we will in this part further identify the deficiencies in the constitutional and legal framework of party prohibition and propose necessary constitutional and legal amendments in light of the international standards.

5.3.3.1

Necessary Amendments to the Constitution

The following amendments are needed to elaborate the constitutional rules on party prohibition:

233

Türkiye Cumhuriyeti Anayasasının Bazı Maddelerinde Değişiklik Yapılması Hakkında Kanun Teklifi [Law Proposal to Amend Certain Provisions of the Constitution of the Turkish Republic], first Addition to 497, 2010, Art. 8 (author’s own translation).

144

5

Protection of Secularism Within the Framework of the Political Party Regime

1. For the purposes of interpretation, Article 24(5) of the Constitution should be inserted into Article 68(4). Prohibition of a party is limited to constitutional restrictions. It has already been mentioned above that the basic prohibition concerning anti-secular activities has been concretized in paragraph 5 of Article 24 of the Constitution. To prevent possible future conflicts in the interpretation of anti-secular activities, it is necessary to incorporate this provision into Article 68(4) of the Constitution. However, it must be noted that this incorporation will not be constitutive, but declaratory in character. Even without such addition, the Constitutional Court should consider the elements of prohibition on exploitation of religion in determination and evaluation of anti-secular activities. 2. The prohibition of the continuation of the banned party should be formulated more clearly. As mentioned above, the 2010 reforms package proposed to repeal Article 69(8) of the Constitution which prohibits the re-establishment of a banned party under another name. The abolition of this rule could render the measure of party prohibition ineffective. However, if it is thought that there is an ambiguity in the formulation of the existing rule provided in Article 69(8), the prohibition of the continuation of the banned party can be clarified in a way that stipulates that “the party which is determined by the Constitutional Court to be a continuation of the banned party in terms of its activities, statements and organizational structure must be dissolved.”234 3. Article 69(9) of the Constitution provides for a 5-year politics ban on the members who are found to cause their party to be dissolved. It would be reasonable to reduce this ban to 4 years from the perspective of political freedom.235 5.3.3.2

Necessary Amendments to the Law on Political Parties

To meet the requirements of the international standards in the field of party law, the following changes should be made to the LLP:

5.3.3.2.1

The LPP Should Not Go beyond the Constitutional Criteria for Party Prohibition

It is debated among Turkish legal scholars that some prohibitions of the LPP extend constitutional criteria for prohibition determined by Article 68(4), and are therefore unconstitutional.236 On one hand, Article 101 of the LPP incorporates the list of criteria of Article 68(4) of the Constitution for party prohibition and subjects the party prohibition to violation of this Article. On the other hand, “the list of material 234

Türkiye Barolar Birliği [Turkish Union of Bar Associations] (2011), p. 108. Türkiye Barolar Birliği [Turkish Union of Bar Associations] (2011), p. 109. 236 See e.g., Özbudun (2010), p. 128; Sağlam (2000), p. 246; see also Venice Commission (2009) Prohibition of Political Parties in Turkey, paras. 76–78. 235

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

145

criteria gets even longer when Article 68(4) of the Constitution is supplemented with the provisions in the Law on political parties, Articles 78–96, which state a number of additional “bans” on party opinions or activities.”237 Among these, Part Three under the title “Protecting the Principles and Revolutions of Atatürk and the Characteristics of a Secular State” includes additional “bans” (Articles 84–88). It is not clear which of these prohibitions are within the scope of Article 101 of the LPP (party prohibition) and which ones remain under Article 104 (warning).238 To bring clarification to this point, first, a distinction must be made between provisions which are simple concretization of the constitutional prohibition and provisions which extend the constitutional mandate. The following measures should be taken in this regard: 1. To ensure the necessary precision and internal consistency, it must be expressly stated that the provisions which are a concretization of the constitutional prohibitions are also within the scope of the Article 101.239 It must be expressly ascertained in the LPP which provisions of Chap. 4 (“Prohibitions regarding Political Parties”) are a mere concretization of constitutional criteria that are within the scope of Article 101 and which of them fall outside of this article. 2. Some provisions of Chap. 4 on “Prohibitions regarding Political Parties” are unconstitutional in terms of their content, as they create new prohibitions going beyond the constitutional criteria. In terms of secularism, this particularly applies to Article 89 on “Protecting the status of the Presidency for Religious Affairs.” According to this Article, “[p]olitical parties shall not uphold aims contrary to the provisions of Article 136 of the Constitution regarding the status of the Presidency for Religious Affairs within the general administration . . .” The unconstitutionality of particularly this provision has been discussed by Turkish law scholars who argue that some provisions of the LPP extend the prohibition criteria of Article 68(4) beyond the constitutional framework.240 Although Provisional Article 15/3 of the Constitution which prevented challenging the constitutionality of the laws enacted during the period of the 1980–83 military regime was abolished by the 2001 constitutional amendments, Article 89 of the LPP on “Protecting the status of the Presidency for Religious Affairs” was not amended and is still in force. This prohibition is unconstitutional since it gives Article 136 of the Constitution an unamendable status from the perspective of the political parties. This provision, which artificially extends the constitutional ban against anti-secular activities, must be repealed. Section B of this chapter has already described how this prohibition has been invoked in several cases as a ground for dissolving parties proposing the abolition of

237

Venice Commission (2009) Prohibition of Political Parties in Turkey, para. 75. See Sağlam (2000), p. 244. 239 See Sağlam (2000), p. 245. 240 See Sağlam (1999), pp. 171–172; Teziç (1998), p. 323; Turhan (1997), p. 396; Tanör (1997), pp. 44–45; Perinçek (1985), pp. 274–276. 238

146

5

Protection of Secularism Within the Framework of the Political Party Regime

the Diyanet. Although the position of the Constitutional Court demonstrated in the cases of the Democratic Peace Movement Party and the Democratic Masses Party, and the opinion of legal scholars support the view that the mentioned article cannot be a ground for party prohibition, it is still in force. To prevent the extension of the constitutional criteria for party prohibition by legislative arrangements, an express provision to this effect must be added to Article 69 of the Constitution. It should be expressly stated that the violation by a party of restrictions provided in the Constitution and the legislation will not authorize party prohibition except on the grounds determined by Article 68(4) of the Constitution.241 These violations can, however, be subject to other restrictive measures determined by the legislature depending on the gravity of actions. A paragraph must be also included in Article 68 of the Constitution to the effect that the details of party prohibition and other sanctions to be imposed on political parties must be regulated by legislation provided that it will remain within the boundaries of this article.242

5.3.3.2.2

The Possibility for the Independent Candidacy of the Banned Politicians Should be Removed

According to Article 69(9) of the Constitution, “[t]he members, including the founders of a political party whose acts or statements have caused the party to be dissolved permanently shall not be founders, members, directors or supervisors in any other party for a period of 5 years from the date of publication of the Constitutional Court’s final decision with its justification for permanently dissolving the party in the Official Gazette.” Article 95 of the LPP on “The status of dissolved political parties and their members” supplements this prohibition by adding that “[p] olitical parties shall not nominate these persons as candidates in the elections by any means.” This provision of the LPP is inadequate and can cause unconstitutional consequences. Although the provision prevents the concerned persons from being founders, directors, supervisors, or members of any other party for 5 years, it leaves the door open for the independent candidacy of these persons.243 However, this prohibition is directed against the members who cause their party to be dissolved, rather than the party itself. It would not be reasonable to allow a person who is banned from being a member of a political party to be a member of parliament. Thus, this provision is unconstitutional since it allows the persons who have been banned from engaging in politics by the judgment of the Constitutional Court to declare their candidacy as independents. In this sense, it enables them to bypass the binding and definitive effect of the decision of the Constitutional Court. Therefore, this sentence

241

See Türkiye Barolar Birliği [Turkish Union of Bar Associations] (2011), pp. 108–109. See Sağlam (2002). 243 See Sağlam (1999), p. 117. 242

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

147

should be formulated in this way: “these persons cannot be nominated as candidates in the elections by any means.” It must cover all elections, including the presidential elections.

5.3.3.2.3

The Gap in Regulation of the Sanction of Warning Should be Filled

Article 104 of the LPP regulates the sanction of warning. According to Article 104, “[i]f a political party violates the prescriptive provisions of this Law other than Article 101 and the prescriptive provisions regarding political parties in other laws, the Chief Public Prosecutor of the Court of Cassation shall apply to the Constitutional Court with a petition prepared ex officio . . . If the Constitutional Court finds any violations of the said provisions, it shall issue an official notice of warning to the political party.” Thus, the warning applies in cases other than those where the party can be qualified as a “center” of unconstitutional activities determined in the Constitution and in supplementing provisions in the LPP. However, Article 104 of the LPP does not determine what happens if the party does not follow the notice of warning. This gap emerged after the Constitutional Court’s decision which repealed the second sentence of paragraph 2 of Article 104.244 The repealed second sentence prescribed that if the party did not remedy the violation within 6 months after the notice of warning, the Public Prosecutor could sue the party before the Constitutional Court to be fully or partially deprived of state funding. The TCC struck down this sentence arguing that since not all parties receive state funding, the sanction provided by the second sentence of paragraph 2 of Article 104 would be inapplicable to the parties which are not granted state aid. Moreover, since the legal action by the Chief Public Prosecutor against the political party concerned was discretionary, parties in a comparable situation could be treated differently by the Chief Prosecutor. Considering both cases to be in breach of the principle of equality (Article 10 of the Constitution), the TCC struck down the second sentence on the ground of unconstitutionality. After the elimination of the respective provision, it is questionable that which measure should be taken against the concerned party in case of failure of remedying the violation. It is observed that the second sentence of paragraph 2 of Article 104 (introduced by Harmonization Law No. 4778, dated 11.01.2003) which replaced the sanction of “party prohibition” for non-compliance with the notice of warning by “partial or whole deprivation of state aid” provided a proper regulation considering that it restricted the application of party prohibition to the criteria provided in the Constitution.245 The elimination of this rule caused a considerable gap and legal uncertainty in the warning regime which needs to be addressed.

244 245

Turkish Constitutional Court decision, 11 June 2009, E. 2008/5, K. 2009/81. See Türkiye Barolar Birliği [Turkish Union of Bar Associations] (2011), p. 106.

148

5

Protection of Secularism Within the Framework of the Political Party Regime

There are rightful equality concerns regarding the application of the deprivation of state aid considering that not all parties receive state funding. According to Annex Article 1(4) of the LPP, state funding is granted to the “parties that receive more than 3% of the total number of valid votes during general parliamentary elections . . .” However, the fact that this sanction applies only to certain parties does not justify the abolition of the sanction part of Article 104 LPP as a whole and leaving it without sanction. Instead, it would be appropriate to add alternative sanctions to the deprivation of state funding. This kind of solution would remove the Constitutional Court’s argument that the provision is inapplicable to the parties that are not granted state aid. For example, the following alternative sanctions can be added to Article 104 of the LPP: 1. Deprivation of state aid or other privileges granted to political parties by the party legislation for a certain period; 2. Prohibition of conducting political activities for a certain period; 3. Prohibition of participating in elections for a certain period.246 The Constitutional Court can be empowered to apply one of these sanctions considering the nature and gravity of the violation. The concern about the gap in the warning regime of Article 104 was also mentioned in dissenting opinion of judge Osman Alifeyyaz Paksüt in the relevant judgment. According to the dissenting judge, the argument of the majority judges about the inapplicability of Article 104 to parties not receiving state aid cannot be fully accepted, as under Article 111(d) of the LPP, “[r]esponsible persons who fail to meet the requirements of the official notice of warning” and cause their parties to be deprived of state funding, and “the responsible persons of the political party deprived of state aid shall be sentenced to light imprisonment from 3 months to 6 months . . .” (emphasis added). Thus, although Article 104 of the LPP does not provide for a sanction against the legal personality of the parties which do not get state aid, Article 111(d) provides for the sanction to be imposed on the responsible individuals of the party. This sanction has an indirect effect on the party.247

5.3.4

Legal Questions Raised by the Refah Case

5.3.4.1

Individual Responsibility of Offending Party Members

The Refah case revealed several shortcomings in the legal regime of party prohibition which must be examined closely. From the Refah case, it becomes clear that the abolition of Article 163 of the Turkish Criminal Code causes a gap in party

246

Sağlam (2000), p. 249. See Dissenting Opinion of Judge Osman Alifeyyaz Aksüt in the Turkish Constitutional Court decision, 11 June 2009, E. 2008/5, K. 2009/81.

247

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

149

prohibition rules. Article 163 prohibited propaganda or abuse of religion for political gains and outlawed the creation of religious institutions intended to fully or partially establish religious state order.248 After the abolition of the mentioned provision on 12 April 1991, the activities and statements of individuals violating the principle of secularism do not constitute criminal acts anymore. On the one hand, the abolition of Article 163 of the Turkish Criminal Code removes the criminal liability of party members for their individual anti-secular activities. On the other hand, the international standards described in the first part of this section require holding the party members responsible for their own acts and not punishing the whole party for the individual behavior of its members. The core argument which captured the whole defense of Refah throughout the proceedings was that since after the repeal of Article 163 anti-secular activities do not constitute criminal offenses anymore, the party prohibition procedure had lost its legal ground and therefore, is not applicable to Refah.249 In response to this view, the government stated that the “party’s dissolution had been a preventive measure to protect democracy.”250 Therefore, the “measure in question could be taken in conjunction with a criminal penalty imposed on those who had made the offending remarks or separately, without prosecution of the persons concerned.”251 The ECtHR also remarked that “acts contrary to the principle of secularism are no longer punishable offenses in Turkey.”252 It must be mentioned that before the abolition of Article 163, Article 101(d) of the LPP prescribed the procedure of initiating party prohibition proceedings based on the criminal conviction of party members. According to this article, after the party member got convicted for activities contravening the provisions of Chapter 4 (“Prohibitions regarding Political Parties”) of the LPP, the Public Prosecutor required the expulsion of those members from the party. In case of non-compliance with that demand the Public Prosecutor commenced party prohibition procedure. If, however, the members were expelled within 30 days of notice of the petition for prohibition submitted by the Public Prosecutor, the prohibition procedure was terminated.253

248 For the relationship of secularism and Article 163 of the Turkish Criminal Code, see Hafızoğulları (2015), pp. 213–220. 249 Refah, Chamber judgment, para. 57. 250 Refah, Chamber judgment, para. 63. 251 Refah, Chamber judgment, para. 57. 252 Refah, Chamber judgment, para. 79. 253 Article 101(d) of the LPP read as follows: “Where acts contrary to the provisions of Chapter 4 of this Law have been committed by organs, authorities or councils other than those mentioned in sub-section I(b), State Counsel shall, within two years of the act concerned, require the party in writing to disband those organs and/or authorities and/or councils. State counsel shall [likewise] require, in writing, the permanent exclusion from the party of those members who have been convicted for committing acts or making statements which contravene the provisions of Chapter 4. State counsel shall lodge an application for the dissolution of any political party which fails to comply with the instructions in his letter within thirty days of its service. If, within thirty days of notification of the application for dissolution lodged by State Counsel, the party disbands the organ,

150

5

Protection of Secularism Within the Framework of the Political Party Regime

However, after the repeal of Article 163, the initiation of the prohibition procedure can no longer be linked to criminal conviction of party members. It means that the dissolution of parties has become detached from criminal law, as can be inferred from the government’s argument. The Refah case, where the TCC dissolved the party focusing mainly on the actions of the individual extremist members showed that there is a need for taking measures against individual members of political parties involved in anti-secular activities. In other words, there must be the possibility to take action when the parties are not the “center” in terms of Article 69(6) of the Constitution, yet their members violate the values protected by Article 68(4) of the Constitution to a serious degree. This approach would be in line with the abovementioned international standard which requires not holding the parties responsible for the acts of their members. Therefore, it is suggested that the abovementioned principle, i.e., the separation between party responsibility and individual responsibility should be also expressly stated in Article 69 of the Constitution and internalized by the TCC. However, incorporation of this principle into the Turkish legislation is challenging due to abolition of Article 163 of the Turkish Criminal Code. The gap that emerged in the individual responsibility of party members can be remedied either in a disciplinary or a criminal form. This is necessary both in pursuit of the abovementioned international standards requiring strict application of party prohibition and a proper implementation of the notion of “center.” Therefore, considering the importance of Article 163 of the Criminal Code concerning the protection of the constitutionally enshrined principle of secularism, this article should have been revised in a way that remedied democratic concerns, instead of being totally abolished.254 The details of the reformulation of this article are not within the scope of this research. However, the dissolution procedure should not be linked with the criminal prosecution of the party members and should continue to be an independent preventive measure of the free democratic order. On 9 January 1998, 1 week before the decision on the prohibition of Refah, the TCC, with reference to Article 68(6) of the Constitution, decided for the unconstitutionality of Article 103(2) of the LPP and nullified it. That article, in conjunction with Article 101(d) of the same law, stipulated that a political party was to be qualified as a “center” of unconstitutional actions if its members had been found guilty of criminal acts. The Court maintained especially that, after the abolition of Article 163 of the Criminal Code, actions of individuals violating the principle of secularism no longer constitute criminal offences.

authority or council concerned, or permanently excludes the member or members in question, the dissolution proceedings shall lapse” (cited in Refah, Chamber judgment, para. 33). 254 See Eroğul (2015), p. 190.

5.3

Amendments Needed to Bring the Rules on Prohibition of Political. . .

151

It is suggested that after the abolition of Articles 141, 142,255 and 163 of the Turkish Criminal Code, and the repeal of Article 103(2) of the LPP by the TCC, Articles 102(2) and 102(3) of the LPP which prescribe the initiation of prohibition procedure by the Public Prosecutor based on conviction of the party members must also be repealed. After the abolition of the concerned articles, the procedure laid down in Articles 102(2) and 102(3) of the LPP has lost its legal ground. To sum up, there is a need for the following amendments to Article 69 of the Constitution and to the LPP: 1. It must be expressly stated in Article 69 of the Constitution that individual actions of its members cannot be imputed to a political party unless such actions are shared by the central party organs either implicitly or explicitly; 2. Criminal liability for anti-secular speeches and activities should be determined by law. However, prosecution of the members should not be a ground for initiating the party prohibition proceedings as it was before, and it should not be combined with the party prohibition procedure; 3. Articles 102(2) and 102(3) of the LPP must be repealed considering that the procedure laid down in these Articles has lost its legal ground. 5.3.4.2

The Relationship between the Acts and Statements under Parliamentary Immunity and the Party Prohibition Procedure

One of the main arguments of the Refah party was that most of the speeches which were attributable to the party according to Article 101(b) of the LPP were made inside of the Parliament and therefore came within the scope of the parliamentary immunity.256 Article 83(1) of the Constitution provides that “[m]embers of the Grand National Assembly of Turkey shall not be liable for their votes and statements during parliamentary proceedings, for the views they express before the Assembly, or, . . . for repeating or revealing these outside the Assembly.” Moreover, since Article 100 of the Constitution,257 which was in force at the time, provided for the parliamentary investigation concerning the criminal liability of the prime minister and other ministers, they could not be held responsible for their acts and statements under concerning provisions undermining the mentioned guarantees.258 The same argument was made by AKP during closure proceedings before the Constitutional Court. The Constitutional Court rejected this objection arguing that “the guarantees granted by the mentioned articles provide special protection to the individual

255

Articles 141 and 142 of the Turkish Criminal Code banned formation of the societies with the trend of communism or formation of dominance of one social group over others or propagating for these matters or for anarchy. See Yarsuvat (2011). 256 Turkish Constitutional Court decision, 16 January 1998, E. 1997/1, K. 1998/1. 257 Article 100 of the Constitution was repealed by the constitutional amendments of 16 April 2017. 258 Turkish Constitutional Court decision, 16 January 1998, E. 1997/1, K. 1998/1.

152

5

Protection of Secularism Within the Framework of the Political Party Regime

personality of the representatives in order to enable them to fulfill their duties in representing the national will in a best way, without being subject to any pressure. The legal personality of parties absolutely cannot take benefit of these guarantees.”259 The government also explained in the Refah case that “[w]hereas MPs enjoyed immunity from prosecution for their words in parliament, political parties did not enjoy similar immunity as regards the constitutionality of their activities”.260 The Constitutional Court also held that the assessment of whether the party has become a center of banned activities would be impossible without considering the whole of statements and acts committed by the MPs either inside or outside of the Parliament. It was further stressed that the loss of parliamentary membership of responsible deputies according to Article 84 of the Constitution is a special sanction to be imposed after deciding to dissolve the party based on the evaluated gravity and intensity of the banned acts.261 The TCC’s approach on this subject is reasonable because both MPs and even ministers are in person immune from criminal responsibility under Articles 83 and 106(11) of the Constitution, respectively. This legislative immunity is given only to individuals and it would extend its purposes to apply it also to the legal personality of parties. Moreover, the protection given by these articles is also valid with respect to the party prohibition proceedings, as the deputies and ministries still cannot be prosecuted for their acts and statements causing prohibition of their party, provided that they are made inside of the parliament.

5.4

Conclusion

Applying a balanced approach to the implementation of the party prohibition mechanism is of the utmost importance for the protection of the principle of secularism together with other founding principles. A review of prohibition rules showed that the reason for the frequent use of this instrument, which is unique to the Turkish constitutional system, lies mainly with the low threshold both for initiating the prohibition procedure and for prohibiting parties. On the other hand, the analysis of party prohibition cases also made clear that the issue of the high frequency of party prohibitions is not only due to the general legal and institutional framework but also to attitudinal problems within the Constitutional Court. Examining the TCC’s decisions to dissolve the Peace Party (1983), the ruling Refah Party (1998), and the Fazilet Party (2001), Section B concluded that the TCC failed to apply an appropriate test to establish whether there was a real and immediate danger to the existence of the secular order. This is a general shortcoming in the

259 Turkish Constitutional Court decision, 16 January 1998, E. 1997/1, K. 1998/1 (author’s own translation). 260 Refah, Chamber judgment, para. 63. 261 Turkish Constitutional Court decision, 16 January 1998, E. 1997/1, K. 1998/1.

5.4

Conclusion

153

Constitutional Court’s approach towards cases concerning the intersection of freedom of religiously motivated political parties and the protection of the secular order. Section B also studied the prohibition case against the ruling AKP (2008) where the TCC decided with a 10/11 majority that the party had become “a center for antisecular activities”. However, emphasizing the founding principle of democracy, its constitutive elements and considering the democratization reforms led by the ruling party, the TCC imposed a financial penalty instead of closing the party. In examining party prohibition cases, Section B illustrated the competitive relationship between secularism and democracy and the Court’s attitude towards competing constitutional principles. Lacking compelling and convincing evidence concerning the destruction of the secular order, the Turkish Court disproportionately restricted the participation of Muslim politicians, and indirectly the representation of Muslim voters, in the political affairs of the country for the benefit of the principle of secularism. This approach of the Court prevented an accommodation of the freedom of religion and public participation of peaceful religious groups within the democratic constitutional system. Unfortunately, neither the Constitutional Court nor the ECtHR in the Refah case considered that the prohibition of a peaceful religiouslymotivated party would prevent Turkey’s natural historical progress on the process of balancing secularism and democracy. The analysis of the closure cases altogether showed that the TCC’s failure to strike a balance between democracy and secularism prevented it from giving both founding principles their optimum value which was essential for the constitution’s structural unity. Nor did the European Court of Human Rights critically supervise this approach of the TCC which would have been helpful for Turkey to balance its democracy-secularism tandem. Instead of endorsing Turkey’s secular regime as a democratic model, the ECtHR rather should have questioned its compatibility with democracy and made necessary corrections to it in the context of freedom of religion, freedom of association and assembly, and pluralism. Section C focused on the deficiencies of the substantive and procedural rules governing the party prohibition mechanism. It studied the applicable international principles and proposed necessary constitutional and legal amendments to remedy those deficiencies in light of the identified international standards. It has been concluded that the efforts to raise the substantive and procedural threshold for dissolution of political parties must be made remaining within the framework of the current constitutional system. The constitutional changes amending the party prohibition rules should not be aimed at making application of this mechanism unfeasible. Unfortunately, the analysis of the 2001 and 2010 constitutional amendments and the 2015 constitutional proposals showed that the main aim pursued, and to some degree achieved, by these packages was to immunize political parties against responsibility for unconstitutional activities and to provide them with uncontrolled area of activity. In this regard, the abolition of several important party prohibition rules have reduced the effectiveness and internal consistency of the prohibition mechanism.

154

5

Protection of Secularism Within the Framework of the Political Party Regime

References (1970) Brockhaus Enzyklopädie, 17th edn. F.A. Brockhaus, Wiesbaden (2010) 1961’den Günümüze kadar 25 Parti Kapatıldı [25 Parties Have Been Banned since 1961 to Date]. No 161 Meclis Haber Dergisi [Assembly News Journal]. https://www.tbmm.gov.tr/ eyayin/GAZETELER/WEB/MECLIS%20BULTENI/2469_2009_0000_0161_0000/0006.pdf (2010) Parti kapatma maddesi düştü! [Provision on the Party Prohibition Dropped!]. In: Milliyet. https://www.milliyet.com.tr/siyaset/parti-kapatma-maddesi-dustu-1233114 (2015) Parti kapatmaları zorlaştıran teklif Meclis’te [The Proposal Complicating Party Prohibition is at the Parliament]. In: Hurriyet. https://www.hurriyet.com.tr/gundem/parti-kapatmalarizorlastiran-teklif-mecliste-28409380 (2015) TBMM Anayasa Komisyonu [The GNAT Constitutional Commission]. In: Türkiye Büyük Millet Meclisi. https://www.tbmm.gov.tr/develop/owa/haber_portal.aciklama?p1=132184 (2017) No prohibition of the National Democratic Party of Germany as there are no indications that it will succeed in achieving its anti-constitutional aims. In: Bundesverfassungsgericht. https:// www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2017/bvg17-004.html (2017) Muhalefete parti kapatma tehdidi [Party prohibition threat to the opposition]. In: Bir Gün. https://www.birgun.net/haber/muhalefete-parti-kapatma-tehdidi-194571 Algan B (2011) Dissolution of political parties by the Constitutional Court in Turkey: an everlasting conflict between the Court and the Parliament? AUHFD 60:809–836 Bilgin AB (2017) Avrupa İnsan Hakları Sözleşmesinin İç Hukuktaki Yeri [The status of the European Convention On Human Rights in Turkish Law]. Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi 22:81–130 Böckenförde EW (1991) Staat, Verfassung, Demokratie: Studien zur Verfassungstheorie und zum Verfassungsrecht. Suhrkamp, Frankfurt am Main Boyle K (2004) Human rights, religion and democracy: the Refah Party Case. Essex Hum Rights Rev 1:1–16 Christians L-L (2011) Expert workshop on the prohibition of incitement to national, racial or religious hatred - Annex – European Legislations: Italy. https://www.ohchr.org/documents/ issues/expression/iccpr/vienna/annexes/italy.pdf Cox MKL (1997) Turkish Islamism: The Refah Party. Research Paper. Air Command and Staff College. https://apps.dtic.mil/dtic/tr/fulltext/u2/a425522.pdf Ekizceleroğlu R, Çelikyay HS (2017) Türkiye’de Siyasi Partilerin Kapatılması Rejiminde Son Dönemde Yaşanan Gelişmeler [Recent developments in the regime of dissolution of political parties in Turkey]. Kırklareli Üniversitesi İktisadi ve İdari Bilimler Fakültesi Dergisi 6:102–109 Erdogan M (1999) Islam in Turkish politics: Turkey’s quest for democracy without Islam. Critique: Critical Middle Eastern Studies 8:25–49. https://doi.org/10.1080/10669929908720149 Erdoğan M (2001a) AİHM’nin RP Kararının Düşündürdükleri [The thoughts on the ECtHR’s Refah Decision]. Liberal Düşünce Dergisi Spring:41–50 Erdoğan M (2001b) Fazilet Partisi’nin Kapatılması Kararı Işığında Türkiye’nin Anayasa Mahkemesi Sorunu [The Constitutional Court Problem of Turkey in light of prohibition decision of the Fazilet Party]. Liberal Düşünce Dergisi Spring:36–40 Eroğul C (2015) Öznel Bir Hak Olarak Laiklik [Secularism as a subjective right]. Ankara Üniversitesi SBF Dergisi 46:183–190 European Parliament (1996a) Resolution on the Constitutional Status of European Political Parties, A4–0342/96. https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:51 996IP0342&from=EN European Parliament (1996b) Report on the Constitutional Status of the European Political Parties [Tsatsos report]. https://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT +REPORT+A4-1996-0342+0+DOC+XML+V0//EN#top Finn JE (1991) Constitutions in crisis: political violence and the rule of law. Oxford University Press, New York

References

155

Gönenç L (2010) 2010 proposed constitutional amendments to the 1982 Constitution of Turkey. Evaluation Note. Economy Policy Research Foundation of Turkey. https://www.tepav.org.tr/ upload/files/12844686990.2010_Proposed_Constitutional_Amendments_to_the_1982_Consti tution_of_Turkey.pdf Hafızoğulları Z (2015) Laiklik ve TCK’nun 163. Maddesi Üzerine [About Secularism and Article 163 TCC]. Ankara Üniversitesi SBF Dergisi 42:201–221 Hakyemez YŞ (2002) 2001 Yılında Yapılan Anayasa Değişikliklerinin Siyasal Parti Özgürlüğü Üzerindeki Etkileri [The Impact of the 2001 Constitutional Amendments on the Freedom of Political Parties]. Anayasa Yargısı 19:550–571 Hesse K (1995) Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 20th edn. C. F. Müller, Heidelberg Howe M (2000) Turkey today: a nation divided over Islam’s revival. Westview Press Kommers DP (1997) The Constitutional Jurisprudence of the Federal Republic of Germany. Duke University Press, Boulder Leader SL (1982) Free speech and the advocacy of illegal action in law and political theory. Colum Law Rev 82:412–443 Leibholz G, Rinck HJ, Hesselberger D (1993) Grundgesetz für die Bundesrepublik Deutschland: Kommentar an Hand der Rechtsprechung des Bundesverfassungsgerichts, 7th edn. OttoSchmidt, Köln Macklem P (2006) Militant democracy, legal pluralism, and the paradox of self-determination. Int J Const Law 4:488–516. https://doi.org/10.1093/icon/mol017 Niesen P (2002) Anti-extremism, negative republicanism, civic society: three paradigms for banning political parties. Germ Law J 3:1–32. https://doi.org/10.1017/S2071832200015157 Öden M (2003) Türk Anayasa Hukukunda Siyasi Partilerin Anayasaya Aykırı Eylemleri Nedeniyle Kapatılmaları [Prohibitions of political parties on the ground of unconstitutional activities in the Turkish Constitutional Law]. Yetkin Yayınları, Ankara Özbudun E (2010) Party prohibition cases: different approaches by the Turkish constitutional court and the European Court of Human Rights. Democratization 17:125–142. https://doi.org/10. 1080/13510340903453807 Özdemir H (2015) 28 Şubat Süreci Arifesinde ve Ertesinde İki Milli Görüş Partisi Refah Partisi RP Fazilet Partisi FP (Karşılaştırmalı Bir Analiz) [Two national opinion parties in the eve of and after February 28th process: Welfare Party (RP)-Virtue Party (FP) (a comparative analysis)]. Suleyman Demirel Univ J Faculty Econ Adm Sci 20:165–193 PACE (2002) Resolution 1308 (2002) on restrictions on political parties in the Council of Europe member states. http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=170 63&lang=en PACE (2008a) Resolution 1622 (2008) on functioning of democratic institutions in Turkey: recent developments. https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=1 7664&lang=en PACE (2008b) Report on the functioning of democratic institutions in Turkey: recent developments (Doc 11660). http://semanticpace.net/tools/pdf.aspx?doc=aHR0cDovL2Fzc2 VtYmx5LmNvZS5pbnQvbncveG1sL1hSZWYvWDJILURXLWV4dHIuYXNwP2 ZpbGVpZD0xMjEyMiZsYW5nPUVO&xsl=aHR0cDovL3 NlbWFudGljcGFjZS5uZXQvWHNsdC9QZGYvWFJlZi1XRC1BVC1 YTUwyUERGLnhzbA==&xsltparams=ZmlsZWlkPTEyMTIy Perinçek D (1985) Anayasa ve Partiler Rejimi: Türkiye’de Siyasi Partilerin İç Düzeni ve Yasaklanması [Constitution and political party regime: internal order of political parties and their legal ban in Turkey], 2nd edn. Kaynak Yayınları, İstanbul Rainey B, Wicks E, Ovey C (2017) Jacobs, White, and Ovey: the European Convention on Human Rights, 7th edn. Oxford University Press, New York Rinck H-J (1966) Der verfassungsrechtliche Status der politischen Parteien in der Bundesrepublik. In: Leibholz G, Bracher KD, Rinck H-J (eds) Die Moderne Demokratie und ihr Recht: Festschrift für Gerhard Leibholz zum 65. Geburtstag. Mohr Siebeck, Tübingen

156

5

Protection of Secularism Within the Framework of the Political Party Regime

Rumpf C, Akartürk E (2008) The legal ramifications of the case for closure of the AK Party in view of the case law of the European Court of Human Rights: prohibition of political parties in Turkey - the case of the AKP. European Parliament. https://www.europarl.europa.eu/thinktank/ en/document.html?reference=EXPO-DROI_NT(2008)406976 Sağlam F (1999) Siyasal Partiler Hukukunun Güncel Sorunları [Current issues of political party law]. Beta Yayınları, İstanbul Sağlam F (2000) Siyasi Partiler Kanunu’nda Uluslararası Normlara Uygunluk Sağlamak İçin Yapılması Gereken Değişiklikler [The amendments required for bringing the law on political parties into compliance with the international norms]. Anayasa Yargısı 17:233–255 Sağlam F (2002) 2001 Yılı Anayasa Değişikliğinin Yaratabileceği Bazı Sorunlar ve Bunların Çözüm Olanakları [Certain problems that the Constitutional Amendment of 2001 may cause and their solution possibilities]. Anayasa Yargısı 19:288–310 Sağlam F (2009) Laiklik İlkesine Bağlı Güncel Anayasal Sorunlar [Current constitutional issues regarding the principle of secularism]. In: Eroğul C (ed) Mümtaz Soysal’a Armağan [Festschrift for Mümtaz Soysal]. Mülkiyeliler Birliği Vakfı. Kızılay, Ankara Sağlam F (2010) AKP’nin Anayasa Değişikliği Paketi Üzerine Düşünceler [The thoughts about the AKP’s constitutional change package]. Mülkiye Dergisi 34:15–46 Schilling D (2004) European Islamaphobia and Turkey - Refah Partisi (The Welfare Party) v. Turkey. Loy L A Int Comp Law Rev 26:501–515 Shambayati H, Sütçü G (2012) The Turkish Constitutional Court and the Justice and Development Party (2002–09). Middle East Stud 48:107–123. https://doi.org/10.1080/00263206.2012. 644461 Tanör B (1997) Türkiye’de Demokratikleşme Perspektifleri [Democratization perspectives in Turkey]. TÜSİAD Yayını, İstanbul Teziç E (1998) Anayasa Hukuku [Constitutional law], 5th edn. Beta Yayınları, İstanbul Teziç E (2005) Anayasa Hukuku [Constitutional law], 10th edn. Beta Basım, İstanbul Turhan M (1997) Siyasi Parti Kapatma Davaları [Political party prohibition cases]. Yeni Türkiye 3: 374–405 Turhan M (2002) Anayasa Mahkemesi’nin Fazilet Partisi Kararı [The Fazilet Party Decision of the Constitutional Court]. Liberal Düşünce Dergisi 7:31–42 Türkiye Barolar Birliği [Turkish Union of Bar Associations] (2011) Türkiye Cumhuriyeti Anayasa Önerisi: Geliştirilmiş Gerekçeli Yeni Metin [Proposal for a constitution of the Republic of Turkey: new and improved text with reasonings], 5th edn. TBB Venice Commission (2000) Guidelines on prohibition and dissolution of political parties and analogous measures. https://www.venice.coe.int/webforms/documents/default.aspx?pdffile= CDL-INF(2000)001-e Venice Commission (2009) Opinion on the constitutional and legal provisions relevant to the prohibition of political parties in Turkey. https://www.legislationline.org/download/id/2793/ file/CDL-AD2009006-%20Opinion%20on%20Prohibition%20of%20Political%20Parties%20 Turkey.pdf Venice Commission (2017) Turkey - opinion on the amendments to the Constitution adopted by the Grand National Assembly on 21 January 2017 and to be submitted to a National Referendum on 16 April 2017. https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2017)005-e Yarsuvat D (2011) Case on the constitutionality of Articles 141 and 142 of the Penal Code. Annales de la Faculté de Droit d’Istanbul 18:579–606 Yildirim S (2010) The search for shared idioms: contesting views of Laiklik before the Turkish Constitutional Court. In: Marranci G (ed) Muslim societies and the challenge of secularization: an interdisciplinary approach. Springer, Dordrecht, pp 235–251 Yuksel E (1999) Cannibal democracies, theocratic secularism: the Turkish version. Cardozo J Int Comp Law 7:423–467

Chapter 6

The Impact of the 2017 Constitutional Amendments on the Protection of Secularism

6.1 6.1.1

Evaluation of the 2017 Constitutional Amendments Adoption of the Amendments

The 1982 Constitution has been intensively contested since it entered into force. This Constitution is commonly considered to be the main source of the problems occurring in Turkey’s social and political life. The debates over constitutional reforms and demands for a new constitution have been very high on the agenda of Turkish political life for almost all times. Shortly after its entry into force, the Constitution was amended for the first time in 1987. To date, the 1982 Constitution has been amended 21 times.1 The text of the Constitution has been considerably changed compared to its original version. However, this did not halt the demands towards its reform. Arguing that the 1982 Constitution is a legacy of the 1980 military coup and continues to protect its illiberal spirit despite the amendments, the will for changing the entire constitution and transiting to a new constitutional order has been maintained. Particularly, after 2007, four political parties in the GNAT joined each election with the commitment to a new constitution; they asked for the support of the people to build a democratic and civil constitution.2 After the 2011 parliamentary elections, the Reconciliation Commission for the Constitution was established at the GNAT. The Commission was composed of representatives from four political parties having groups at the GNAT. The main objective of the Commission was to draft a new constitution based on the consensus of the political parties and to submit it to a public referendum. For this purpose, the Commission received proposals and opinions from universities, research centers, civil society organizations, political parties, and citizens. However, the Commission 1 2

See Coşkun (2017), p. 4. See Coşkun (2017), p. 5.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Masmaliyeva, Turkish Secularism, European Union and its Neighbours in a Globalized World 12, https://doi.org/10.1007/978-3-031-46011-1_6

157

158

6

The Impact of the 2017 Constitutional Amendments on the Protection. . .

failed to reach its goal due to the fundamental differences between the parties and ended its activity after a long period of work.3 One of the main areas of conflict among the four political parties was the government system. The Republican People’s Party, the Nationalist Movement Party (Milliyetçi Hareket Partisi, MHP) and the Peoples’ Democratic Party (Halkların Demokratik Partisi, HDP) supported the continuation of the parliamentary system. The ruling AKP, however, proposed changing the system and defended transitioning from the parliamentary system to a presidential one. In fact, the introduction of direct election of the president in 2007, which increased the importance of the president’s role, can be considered as a first step towards presidentialism.4 After the 2007 constitutional amendments, the system was characterized by scholars as a kind of “attenuated parliamentarism.”5 After winning the first popular presidential election in August 2014, President Erdoğan continued to invite the opposition parties to negotiations over the government system change. However, these proposals by the ruling party and the president were rejected by all the opposition parties.6 The ruling AKP intensively campaigned on executive presidency during the June 2015 parliamentary elections. The system change proposal gained a new momentum following an unsuccessful coup of 15 July 2016, which triggered the Nationalist Movement Party to change its attitude and to support the proposal.7 The 21-article amendment package prepared together by the AKP and MHP was submitted to the GNAT on 10 December 2016. As a result of discussions in the constitutional committee and the Assembly, the package was reduced to 18 articles. The draft law was adopted with 339 votes (a three-fifths majority) by the Assembly on 21 January 2017. On 10 February 2017, Law No. 6771 Amending the Constitution was approved by the president and submitted to a national referendum.8 The constitutional amendments were adopted on a referendum held on 16 April 2017.

3

See (2013) Ruling AKP Pulls out as New Charter Efforts Fade. In: Hürriyet Daily News. https:// www.hurriyetdailynews.com/ruling-akp-pulls-out-as-new-charter-efforts-fade-58199. For more detailed information about the formation, members and works of the 24th Legislative Term Reconciliation Commission for Constitution, see Türkiye Büyük Millet Meclisi [Grand National Assembly of Turkey] (2012), pp. 14–15. 4 See von Steinsdorff (2017). 5 Özbudun (2000), pp. 59–60. See also Gönenç (2008), p. 499. 6 See Coşkun (2017), p. 6. 7 See (2016) Bahçeli’den başkanlık sistemine yeşil ışık [Green Light from Bahçeli to the Presidential System]. In: Cumhuriyet. https://www.cumhuriyet.com.tr/haber/bahceliden-baskanliksistemine-yesil-isik-613892. 8 Law No. 6771 Amending the Constitution, 21 January 2017. English version of the Law can be found at the website of the Venice Commission, https://www.venice.coe.int/webforms/documents/ default.aspx?pdffile=CDL-REF(2017)018-e.

6.1

Evaluation of the 2017 Constitutional Amendments

6.1.2

159

The Separation of Powers under the 2017 Amendments

The 2017 constitutional amendments “recomposed relationship of the executive and legislative”9 and granted the president new powers to establish an “active presidency” which considerably changed the balance of powers. Separation of powers and checks and balances are the sine qua non for protection of the secular regime. This part will evaluate the amendments to find out particularly whether the guarantees for separation of powers and checks and balances are ensured. Because of the multidimensional nature of the reforms the overall examination of each article is beyond the scope of this research. This research will center on three points that are especially significant in the context of secularism: firstly, whether the amendments preserve the principle of separation of powers; secondly, as a facet of broad separation of power matter, whether the independence of the judiciary has been sufficiently guaranteed; finally, the impact on the implementation of the party prohibition mechanism.

6.1.2.1

Synchronization of Presidential and Parliamentary Elections

With the 2007 constitutional amendments, the election term of deputies of the GNAT had been reduced from 5 to 4 years. The 2017 amendments again increased the parliamentary term to 5 years and determined that the parliamentary and presidential elections be held on the same day (Article 77 of the Constitution). The presidential elections are held in two rounds. In the first round, the candidate “who receives the absolute majority of the valid votes” is elected as president.10 If no one reaches this majority, the second round is held between the “[t]wo candidates who received the greatest number of votes in the first ballot,” and “the candidate who receives the majority of valid votes” is elected as president.11 The purpose both in raising the term of parliament and holding simultaneous elections is to produce the maximum amount of harmony between the executive and legislative, and to achieve a stable governance. More openly, this regulation aims at achieving the election of the president and parliamentary majority from the same party, thereby ensuring a continuous ruling period.12 Simultaneous elections for the Parliament and presidency can have two consequences. First, as assumed by the authors of the amendment, the president’s party will also win the majority of seats in the Parliament. In this case, the Parliament will come under the control of the

9

Petersen and Yanaşmayan (2017). Constitution of the Republic of Turkey, 7 November 1982, Art. 101(5) [hereafter Turkish Constitution]. The official English version of the Constitution can be found at the website of the GNAT, https://global.tbmm.gov.tr/docs/constitution_en_2019.pdf. 11 Turkish Constitution, Art. 101(5). 12 See Gözler (2016), p. 3. 10

160

6

The Impact of the 2017 Constitutional Amendments on the Protection. . .

president; the legislative and executive power will be concentrated in one hand.13 The president will not be subject to parliamentary supervision and the control over him/her will be limited to elections held for a second term.14 The second possibility, against this expectation, is that the president and the parliamentary majority can be elected from different parties. In this case, two democratically elected state institutions with opposite approaches will come into confrontation. Some scholars argue that the amendment “is wary of independent elections that might potentially produce a majority in the Parliament that is not aligned with the president’s political views and gives more instances to the executive for renewal [of the simultaneous elections].”15 However, calling new parliamentary elections by the president simultaneously results in new presidential elections so it cannot fully guarantee the expected unity of the powers. Thus, the system is quite open to risks of severe political crisis and confusion in the long run provoked by synchronized elections, among others.16 The adverse Parliament and president can mutually block each other’s initiative; an opposing parliamentary majority can nullify the president’s decrees and other administrative regulations by enacting laws, or even “end the presidential term ahead of schedule.”17 Once previously when Turkish citizens voted for two offices simultaneously was 18 April 1999, when local and general elections were conducted on the same day, and there was serious vote-splitting.18 It is worth noting that the simultaneous election system was abandoned by Israel due to its unexpected results.19 Both risks, concentration of the powers and conflict of the powers, existed to an extent also within the previous system. Due to supportive parliamentary majority, both the executive and legislative powers were well concentrated in the hands of President Erdoğan under the parliamentary regime. Also, a conflict of powers was experienced during the presidency of Ahmet Nejdet Sezer, who vetoed many proposals of the AKP-led parliament and caused several severe deadlocks. Nevertheless, when the Constitution was being amended, the probable problem areas should have been detected and the formulas reducing them should have been thoroughly considered even though it was not possible to completely remove them. Diversifying the election dates could provide a solution to the problems of concentration of powers and conflict of powers. Setting the parliamentary term at 4 years and putting 2-year intervals between general and presidential elections could make the Parliament more pluralist and influential, and the democratic control by the

13

See Coşkun (2017), p. 11. See Venice Commission (2017a), para. 47 [hereafter Opinion on the Amendments to the Constitution]. 15 Petersen and Yanaşmayan (2017). 16 See von Steinsdorff (2017). 17 von Steinsdorff (2017). 18 İncioğlu (2002), pp. 82–83. 19 Makovsky (2017). 14

6.1

Evaluation of the 2017 Constitutional Amendments

161

people could be used more effectively in this case.20 For example, the presidential elections could have been held at first, and if the presidency would be considered satisfactory, the people could vote for the incumbent’s party after 2 years. If not, then another party could be elected and effectively control the executive.21

6.1.2.2

Bilateral Renewal of Elections

The amendment empowers both the president and the GNAT to bilaterally terminate each other’s terms and call for new elections (Article 116 of the Constitution). In both cases, the new elections are called for on both sides and held simultaneously. This means that where the GNAT decides to “renew the presidential elections, the parliamentary elections will also be renewed. Likewise, the presidential elections will be simultaneously renewed where the president decides to renew the parliamentary elections.”22 Actually, the presidential regimes are characterized by a very strong separation of legislative and executive powers which excludes the authority to dissolve a legislature. It is argued by some scholars that the rationale behind empowering the president with this competence is to avoid the unexpected result of the simultaneous elections producing an opposing majority in the Parliament.23 However, what is missed by this argument is that dissolution would also put an end to the president’s term, which “the president is extremely unlikely to use during his or her second mandate, as he or she will not be allowed to run again . . .”.24 For instance, when the AKP failed to achieve a majority in the Parliament in the elections of 7 June 2015, President Erdoğan directed “the system toward new elections 5 months later by effectively impeding formation of a governing coalition.”25 This tactic worked well, as it resulted in recapturing the majority of seats by the AKP on 1 November 2015. Within the new framework, however, such an operation would cause the president to sacrifice his entire 5-year mandate—a very high cost that seems to be likely prohibitive. Nevertheless, this power still strengthens the president vis-a-vis the Parliament and they are not on an equal footing in implementation of this competence as argued by the Turkish authorities. First, the free discretion of the president to dissolve the legislature puts the GNAT under permanent pressure. Article 116 of the Constitution prescribes that the president can independently take a dissolution decision for any reason whatsoever, and at any time. The Parliament can also dismiss the president

20

Coşkun (2017), p. 12 Coşkun (2017), p. 12. 22 Venice Commission (2017b)., p. 34 [hereafter Information Note regarding the Constitutional Amendments]. 23 Gözler (2016), p. 3; Petersen and Yanaşmayan (2017). 24 Venice Commission (2017a) Opinion on the Amendments to the Constitution, para. 86. 25 Makovsky (2017). 21

162

6

The Impact of the 2017 Constitutional Amendments on the Protection. . .

for any reason whatsoever, but with 360 votes (a three-fifths majority).26 Thus, if the president has a parliamentary majority, it seems unlikely that Parliament would make this decision. It is equally unlikely that the opposing Parliament would reach that broad consensus against the president as has already been experienced during the conflicts between the 7 June 2015 and 1 October 2015 general elections.27 Article 101(2) of the Constitution limits the presidential mandate to a maximum of two terms of 5 years. Although the amendments maintained this rule, it also opened the door for the president to run for a third term. According to Article 116(3) of the Constitution, “[i]f the Assembly decides to renew the elections during the second term of the president of the Republic, he/she may once again be a candidate.” This would in effect allow the president to obtain a third mandate, enabling him/her to stay in office much longer than the limited number of times.28 In other words, although the Constitution limits the presidential mandate to two terms, when the renewal decision is taken by the GNAT during the president’s second term, he/she is allowed to run for a third term. The possibility of a third term should have been avoided as the long-time occupation of the presidency by the same person may have negative effects on democracy. Moreover, the Parliament representing the opposite political parties will likely refrain from renewing elections as it would allow the president to obtain a third term. It once again shows that the Parliament and the president are not on equal footing in implementation of this power. To prevent extension of the second presidential term, the amendments should not have given the power of renewing elections to the legislative and executive branches.29 In classical presidential systems, the legislative and executive are not granted such bilateral renewal powers.30 For example, the Congress cannot be dissolved by the president of the United States. Similarly, the Congress cannot discharge the president.31 If the authors of the amendments would have abided by this principle, the problem of a third term possibility would not have arisen. The power of dissolving the legislature can be a very significant tool for the president in the case of an impeachment motion. Article 105(4) of the Constitution stipulates that the president cannot call elections while he is under investigation. On the other hand, the discussions in the Assembly as to whether to launch an investigation are held within 1 month (Article 105(1) of the Constitution). This implies that the president whose investigation has been requested by 301 deputies can dissolve the Parliament during the period of discussions over opening the investigation and thus prevent the initiative.32

26

Turkish Constitution Art. 116(1). See Gözler (2016)., p. 3. 28 Venice Commission (2017a) Opinion on the Amendments to the Constitution, para. 56. 29 See Coşkun (2017), p. 16. 30 See Bulmer (2017), p. 21. 31 See Gözler (2011), p. 577. 32 See Makovsky (2017). 27

6.1

Evaluation of the 2017 Constitutional Amendments

163

In conclusion, the lack of “the bilateral renewal of the elections” could make the governance more stable and would give the people predictability in the elections. This power takes the system far away from the classical presidential regimes.

6.1.2.3

The Legislative Power of the President

Article 104 of the Constitution which regulates the powers and duties of the president, empowers the president to issue “presidential decrees on the matters regarding executive power.”33 This is a radical novelty in the 1982 Constitution. Decree power gives the president substantive and independent legislative authority in the executive branch. There are five limitations to the president’s decree power. According to Article 116(17) of the Constitution, the president cannot issue decrees on the following fields: 1. “[t]he fundamental rights, individual rights and duties included in the first and second chapters and the political rights and duties listed in the fourth chapter of the second part of the Constitution,” 2. “on the matters which are stipulated in the Constitution to be regulated exclusively by law,” 3. “on the matters explicitly regulated by law;” moreover, 4. “[i]n the case of a discrepancy between provisions of the presidential decrees and the laws, the provisions of the laws shall prevail,” 5. “[a] presidential decree shall become null and void if the Grand National Assembly of Turkey enacts a law on the same matter.”34 On the other hand, certain issues are exclusively regulated by presidential decrees such as “the establishment, abolition, the duties and powers, the organizational structure of the ministries, and the establishment of their central and provincial organizations,”35 “the functioning of the State Supervisory Council, the term of office of its members, and other personnel matters relating to their status,”36 and “the organization and duties of the General Secretariat of the National Security Council.”37 Thus, the GNAT is not allowed to legislate on these areas. Although it is established that laws prevail over presidential decrees, the practical effect of this limitation is questionable. First, the amendments do not identify which organ will decide in the case where the laws and the decree are in conflict. This competence has not been explicitly given to the Constitutional Court. However, it has been explained by the Turkish authorities that the Constitutional Court will be

33

Turkish Constitution Art. 104(17). Turkish Constitution Art. 116(17). 35 Turkish Constitution Art. 106(11). 36 Turkish Constitution Art. 108(4). 37 Turkish Constitution Art. 118(6). 34

164

6

The Impact of the 2017 Constitutional Amendments on the Protection. . .

competent to resolve the conflict “upon the demand of two political parties with the highest number of members in the GNAT, or at least one-fifth of the total number of members” or “through concrete norm review” requested by the courts under Article 152 of the Constitution.38 This solution, however, does not seem to be responsive to legal certainty. It is not realistic to imagine that the dispute will be readily referred to the Constitutional Court. Even if it happens, the decree will continue to be enforced while the case is pending before the Court. Additionally, the Constitutional Court is authorized to review the constitutionality of a presidential decree “60 days after publication in the Official Gazette” (Article 151 of the Constitution), whereas an inconsistency can occur with regard to an ensuing law.39 Therefore, this limitation will not play a great role in practice, as argued by Mustafa Erdoğan.40 The principle that a later law of the GNAT overrules the presidential decree on the same matter can also be undermined, read together with an increased veto power of the president (Article 89 of the Constitution).41 Under amended Article 89, if the president returns a law to the Parliament for amendment, the Parliament can merely adopt the law with an absolute majority which is a higher quorum than before. According to Article 96 of the Constitution, the quorum for the convention of the Assembly consisted of 600 members is 200 votes (one-third of the whole membership). The minimal quorum for adopting decisions is 151 (one plus a quarter of the whole membership). If for example, the Assembly convenes to nullify a presidential decree and adopts a law with the votes of 151 members, the law can enter into force only if it is promulgated by the president. If the president promulgates the law, it will enter into force and overrule the decree. However, if the law is not approved by the president and is returned to the Parliament for revision, this time the Parliament will need 301 votes (absolute majority) to adopt the law. Thus, the amendment has strengthened the veto power of the president compared to a previous regulation. If the president has a parliamentary majority, it will be impossible to reach 301 votes to overcome the president’s veto. Consequently, in such a situation the parliament’s controlling power over the presidential decrees will exist on paper only.

6.1.2.4

Decreased Powers of the GNAT

In response to the overwhelming list and scope of new presidential competencies, the Assembly should have been vested with adequate supervisory and control powers. Contrarily, the Amendment Law removed some powers of the GNAT enshrined in Article 87 of the Constitution. First, the GNAT’s power of authorizing the Council of Ministers to issue decrees having the force of law was lifted. Second, the power of

38

Venice Commission (2017b) Information Note Regarding the Constitutional Amendments, p. 38. See Venice Commission (2017a) Opinion on the Amendments to the Constitution, para. 80. 40 Mustafa Erdoğan (2016), p. 25. 41 See Petersen and Yanaşmayan (2017). 39

6.1

Evaluation of the 2017 Constitutional Amendments

165

the GNAT to control the Council of Ministers and ministers was abolished. Before the amendments, the Assembly authorized the Council of Ministers to issue decrees having the force of law with an empowering law. Under the new system, the president issues decrees without empowering law. Moreover, the GNAT is not authorized to approve presidential decrees, excluding those issued in a state of emergency (Article 119(7) of the Constitution), although it can request the Constitutional Court to annul them. The ministers are appointed by the president and they are exclusively accountable to him (Articles 106(5) and 106(4) of the Constitution). The Parliament has been absolutely excluded from the appointment process of ministers. There is no constraining mechanism on the president in the formation of his cabinet. However, the Parliament could have been authorized to approve the presidential appointments as the U.S. Senate. In the United States, the president appoints the “Officers of the United States” with the “Advice and Consent of the Senate.”42 This would enable the Parliament to play a role in restraining the president.43 Before the amendment, the Parliament practiced its control power by way of parliamentary inquiry, question, general debate, parliamentary investigations, and interpellation. The amendment preserved only the tools of a parliamentary inquiry and general debate; the questions are allowed only in writing and are limited to ministers and vice-presidents (Article 98(5) of the Constitution). Interpellations are not allowed. Introducing high majorities, the amendment complicates the initiation of a parliamentary investigation. Parliamentary investigation can be conducted regarding the president, vice presidents, and ministers (Articles 98(4) and 105 of the Constitution). Investigations may be requested by the votes of 301 deputies (Articles 105(1) and 106(5) of the Constitution). The decision for opening the investigation is taken by the votes of 360 deputies (three-fifths majority). The case is investigated by a parliamentary committee that prepares a report thereon. After debating the report, the Assembly submits the case to the Supreme Court44 by 400 votes (two-thirds majority). In normal conditions, it is extremely difficult, if not impossible, to reach those majorities (301, 360, 400). In comparison, before the amendment, the parliamentary investigation was opened by the motion of 55 deputies (one-tenth majority) and the case was referred to the Supreme Court by 276 votes (an absolute majority) (repealed Article 100 of the

42

U.S. Const. art. II, sec. 2, cl. 2. See Coşkun (2017), pp. 12–13; Venice Commission (2017a) Opinion on the Amendments to the Constitution, paras. 100–101. 44 According to Article 148(6) of the Constitution: “The Constitutional Court in its capacity as the Supreme Criminal Tribunal shall try, for offences relating to their functions, the President of the Republic, the Speaker of the Grand National Assembly of Turkey, the deputies of the President of the Republic, the ministers, the presidents and members of the Constitutional Court, High Court of Appeals and Council of State, the chief public prosecutors of High Court 115 of Appeals and Council of State, the Deputy Chief Public Prosecutor, the president and members of Council of Judges and Prosecutors and Court of Accounts”. 43

166

6

The Impact of the 2017 Constitutional Amendments on the Protection. . .

Constitution). Thus, as long as these majorities remain, the impeachment procedure will not be a practical tool for the Parliament. Another concern about the criminal liability of the president is the category of crimes leading to impeachment. Before the amendment, the president could be impeached only for high-treason cases (repealed Article 105(3) of the Constitution).45 The amended Article 105, however, does not make such differentiation, and the criminal liability of the president covers all crimes. Although the authors of the amendment argue that it enlarges the scope of the criminal responsibility of the president removing the distinction between “personal offenses or offenses committed during the performance of the duty” and this regulation, among others, removes “the non-accountability of the president which was valid in the parliamentary system,”46 this cannot be agreed. Conversely, it means that trying the president even for the minor personal crimes will necessitate reaching the same high quorums provided for such a grave crime as high treason. Moreover, the president will be tried on the same conditions also after the termination of his term of office (Article 105(6) of the Constitution). Therefore, bringing all crimes under the regime of the parliamentary investigations without differentiation leads to presidential impunity.

6.1.2.5

Appointment Powers of the President

Under paragraph 8 of the amended Article 104, the president is empowered to “appoint and dismiss the deputies of the President of the Republic and the ministers”. The vice presidents and ministers are appointed “from among those who are eligible to be a deputy;” if a deputy is appointed as a vice president or minister, “he/she shall lose his/her membership” (Article 106(4) of the Constitution). The president is exclusively competent to determine how many vice presidents and ministers are to be appointed. Thus, the vice president is not an elected position. According to Article 106(5) of the Constitution, the ministers and vice presidents are subject to the parliamentary investigation under the same rules of Article 105 applying to the president for the alleged “duty-related crimes.” The same conditions will be required to prosecute them also after the expiration of their office. Article 106(10) of the Constitution entitles them to parliamentary immunity for other crimes as contemplated by Article 83 of the Constitution. Granting parliamentary immunity to ministers while they do not have electoral mandate existed also under the previous system. This power of the president can be challenged in several aspects. First, the appointment of the vice presidents and ministers from among deputies effectively increases the president’s influence on the Parliament, consequently threatening the

45

For the unofficial English translation of articles in old and amended version, see Venice Commission (2017c) [hereafter Unofficial Translation of the Amendments]. 46 Venice Commission (2017b) Information Note Regarding the Constitutional Amendments, p. 19.

6.1

Evaluation of the 2017 Constitutional Amendments

167

separation between the executive and legislative branches.47 The presidential system needs a stricter separation of powers, which excludes the appointment of executive officials from among legislators and vice versa. In this respect, career expectations towards the positions of ministers and vice presidents will certainly influence the decisions of parliamentarians and distract them from focusing on legislative activity.48 Another concern is that the GNAT has no power to ensure the political accountability of the vice presidents and the cabinet ministers. As mentioned above, the Assembly can send them only written questions. It can also launch investigations into the respective officials, but only for “duty-related crimes,” and if it achieves the high majorities enshrined in the Constitution. Thus, this is an impeachment procedure that does not amount to a supervisory tool enabling the Parliament to investigate malfunctions within the executive branch.49 The vice presidents and ministers will be tried by the Supreme Criminal Tribunal if the case is referred by the Parliament thereto. However, their term of office is terminated if they are convicted “for a crime that prevents them from being elected” (106(9) of the Constitution).50 It would be appropriate to suspend their mandate when the case is submitted to the Supreme Court. Continuing to use the state power while being tried by the court may affect trial fairness. Moreover, the president has unlimited discretion to decide how many vice presidents will serve, and at least in some instances, which one will exercise presidential competencies in case of vacancy in the presidential office or the president’s temporary absence. The main problem concerning the office of the vice president is that the respective official takes position by designation of the president, instead of by electoral mandate. The vice president is vested with presidential powers and immunity rights. In case of a presidential vacancy, he/she takes the office and can hold it for up to 1 year. Therefore, the occupation of such a powerful position by appointment instead of election is inconsistent with democratic standards.51 Limiting the number of vice presidential positions to one and election of the relevant office holder together with the president, as in the United States,52 would ensure the proper democratic legitimacy of this post.53

47

See Venice Commission (2017a) Opinion on the Amendments to the Constitution, para. 62. See Coşkun (2017), pp. 23–24. 49 See Venice Commission (2017a) Opinion on the Amendments to the Constitution, para. 102. 50 Article 76(2) of the Constitution enumerates the crimes that prevent from being elected: “Persons. . .who have been sentenced to a prison term totalling one year or more excluding involuntary offences, or to a heavy imprisonment; those who have been convicted for dishonourable offences such as embezzlement, corruption, bribery, theft, fraud, forgery, breach of trust, fraudulent bankruptcy; and persons convicted of smuggling, conspiracy in official bidding or purchasing, of offences related to the disclosure of state secrets, of involvement in acts of terrorism, or incitement and encouragement of such activities”. 51 See Venice Commission (2017a) Opinion on the Amendments to the Constitution, para. 65. 52 U.S. Const. art. II, Sec. 1, cl. 1. 53 Coşkun (2017), p. 23. 48

168

6

The Impact of the 2017 Constitutional Amendments on the Protection. . .

The amendments increased the president’s appointment powers. Article 104(9) of the Constitution stipulates that the president “shall appoint and dismiss the highranking executives and shall regulate the procedure and principles governing the appointment thereof by presidential decree.” This regulation is problematic from two aspects. First, the notion of “high ranking executives” is general in scope and the legislation does not determine which posts fall under this category. Moreover, regulation of this issue has been reserved for the presidential decrees instead of the legislative acts. The president will exercise the powers of both legislative and executive, which will strengthen him/her vis-à-vis the Parliament. In contrast, the previous text of the Constitution determined the limited list of state officials appointed and dismissed by the president. The second concern is that this presidential power is free from any supervision. By contrast, the president in the U.S. cannot solely appoint cabinet members or highlevel officials of the executive branch. Appointments to the mentioned posts by the president are subject to the approval of the Senate according to Article II, Section 2, clause 2 of the U.S. Constitution. Thus, the will of the Senate is considered by the president. The 2017 amendments have not stipulated such an approval process and put the president in a unilateral position in the appointments. Giving the president absolute power on this matter has impeded the Parliament from controlling the executive branch once again. Consequently, the president’s uncontrolled power in the formation of the government and appointment of high-ranking officials theoretically enables him/her to determine the internal and external policy independently from the Parliament.54

6.1.2.6

Neutrality of the President

The amendments terminated the president’s political neutrality by amending Article 101 of the Constitution. According to former Article 101(5) of the Constitution, “if the president-elect is a member of a party, his/her relationship with his party shall be severed and his/her membership of the Grand National Assembly of Turkey shall cease.”55 While the latter condition was preserved under Article 101(4), the former was removed by the amendments. Thus, the president is no longer a pouvoir neutre under the amended Constitution. On the other hand, Article 104 of the Constitution still requires the president to “represent the Republic of Turkey and the unity of the Turkish Nation” and “ensure the implementation of the Constitution, and orderly and harmonious functioning of the organs of the State.” It cannot be assumed that a president closely attached to a certain political party and vested with the entire executive powers can fulfill the role of a neutral, all-embracing presidency. First of all, this contradiction between the two provisions should be cleared.

54 55

See Petersen and Yanaşmayan (2017). Venice Commission (2017c) Unofficial Translation of the Amendments.

6.1

Evaluation of the 2017 Constitutional Amendments

169

In presidential systems, the presidents may have a party identity, and this does not raise a question from the constitutional perspective. For example, the U.S. Constitution does not prohibit presidents from holding party affiliation and since 1860 every U.S. president has represented either Republicans or Democrats.56 The issue regarding the new regulation is that the president can remain also the chairman of his/her party. This nuance is problematic both from the point of separation of powers in general and party prohibition mechanism, in particular. First, introducing the partisan presidency would have necessitated the elimination of the appointment powers of the president with regard to the judiciary. In the context of the party prohibition mechanism, this includes the TCC and the Chief Public Prosecutor. The amendments did not review the powers of the president regarding the appointment of the TCC members. Instead, as a consequence of the changes to the Council of Judges and Prosecutors (CJP), his/her role in the formation of the TCC was strengthened further. Therefore, if the party under the leadership of the president is brought before the TCC with the request of prohibition, that will put the fairness of the TCC into jeopardy, as its justices are selected directly or indirectly by the president. The amendments maintained the competence of the president to appoint the Chief Public Prosecutor and the Deputy Chief Public Prosecutor of the Court of Cassation too.57 This also minimizes the possibility of filing a suit by the Public Prosecutor against the party chaired by the president. Thus, the important appointment powers of the president, who holds the post of party chairmanship simultaneously, erode the effectiveness of the party prohibition mechanism. Under the amended Constitution, the president can hold the membership or chairmanship of his/her party. However, the 2017 amendments did not amend Articles 68 and 69 of the Constitution which regulate the criteria and procedure for party prohibition. Dissolution of the party entails some consequences for the members who are found to cause prohibition of the party with their speeches and acts. Before the 2010 constitutional amendments it caused loss of deputy mandate, among others. Under Article 69(9) of the Constitution, the members, including the leaders of a political party “whose acts or statements have caused the party to be dissolved permanently shall not be founders, members, directors or supervisors in any other party for a period of 5 years . . .” This raises the question of what kind of results may arise for the president and his/her party from the dissolution case? Can the president be involved in the party prohibition procedure and what if he/she is found responsible for prohibition of a political party? That is to say, the Constitution is silent on the question of whether the dissolution can entail the loss of the president’s mandate if his/her responsibility is determined. These questions can be answered partly in light of the AKP case of 2008 which involved then-president Abdullah Gül as a former AKP member. President Abdullah Gül was involved in the AKP dissolution case and was requested to be deprived of a political party activity for 5 years according to Article 69(9) of the Constitution and

56 57

See O’Neill (2020). See Turkish Constitution Art. 154(4).

170

6

The Impact of the 2017 Constitutional Amendments on the Protection. . .

Article 95 of the LPP. Abdullah Gül was elected president on 28 August 2007 and his AKP membership was terminated on the same day as a requirement of the then Article 101(5) of the Constitution. Therefore, the accused party contested attributability of the President Abdullah Gül’s activities to AKP and also his involvement in the case referring to his political neutrality and his dissociation from the party.58 In response to this argument, the Public Prosecutor held that party prohibition relates to the freedom of association and is directed at the legal personality of a political party. The applicable rules (Articles 69(6) and 69(9) of the Constitution) do not make any distinction among the responsible party members from the perspective of their official positions and do not consider whether the members have left the party or not. Therefore, the speeches and activities of all party members should be considered in evaluation of the responsibility of the party, including deputies, local government functionaries, or, in case of a ruling party, prime minister, deputy prime minister, or minister and without consideration of their actual membership status. The only criterion required is whether the person has been a member of the accused party in the course of his/her offensive activities.59 Based on the same reasoning, it can be concluded that under the current Constitution (Article 69(6)), the president can be involved in the party prohibition procedure on the ground of his/her unconstitutional activities and speeches as a member or chairman of the party. If his/her responsibility in dissolution of the party is determined by the Constitutional Court, he/she should bear certain consequences stemming from dissolution, such as a 5-year party politics ban. The party prohibition procedure is a special regime and has nothing to do with the president’s criminal responsibility. The object of this procedure is the political party as a legal person and the party politics ban is rather an auxiliary measure applied together with the main dissolution sanction imposed on the party. This ban is applied to complement the main sanction of prohibition and seeks to prevent the guilty party members from founding a new party or involving themselves in the work of other parties. Therefore, the special impeachment regime which applies in case of the president’s criminal liability (Article 105 of the Constitution) has no relationship with the party prohibition procedure and is not an obstacle to determining the president’s responsibility as a chairman or member of a party within the framework of the party prohibition procedure. In this regard, the question at stake is how the politics ban can be applied to the president and what kind of consequences this would have. As already discussed, persons who are found responsible for prohibition of their party by the Constitutional Court are banned from engaging in any role in another party for a 5-year period and they cannot be nominated by political parties “as candidates in the elections by any means.”60

58

Turkish Constitutional Court decision, 30 July 2008, E. 2008/1, K. 2008/2. Turkish Constitutional Court decision, 30 July 2008, E. 2008/1, K. 2008/2. 60 LPP Art. 95. 59

6.1

Evaluation of the 2017 Constitutional Amendments

171

If we take a positivist approach, it becomes clear that the “politics ban” is restricted to party politics and does not immediately exclude the independent political activity of the responsible party members. Moreover, there is no constitutional provision determining the established offensive membership within the banned party as a reason for the loss of presidential mandate like the previous Article 84(5) of the Constitution which required termination of the mandate of the deputies and the prime minister in case they were found responsible for the prohibition of their party. Considering the principle that everything which is not prohibited is allowed, an imposition of a party politics ban on the president does not entail the end of his/her presidential mandate. The president can stay in his/her post in an independent capacity. Thus, the legislation does not provide for loss of presidential mandate in case of the imposition of the party politics ban on the president. This, in fact was contested by the opposition during the AKP proceedings, arguing that maintaining the post by the penalized president would be unethical.61 In our view, it would not be reasonable to allow a person who is banned even from being a member of political party and being nominated in the elections, to govern a state and to represent a nation. In any event, we recommend that the Constitutional Court provides clarification concerning this issue as soon as possible. The possible risks arising from the president’s involvement in a party prohibition procedure once again show that presidential functions and leadership of a party should be kept separate. The fact that the number of party prohibition cases has been sharply reduced in the last 10 years is partly related to the current political constellation. The AKP, which has been twice involved in party prohibition procedures (2002, 2008) and sanctioned by financial penalty since it entered government, is still in power. The messages of the ruling party show that it does not favor application of the party prohibition.62 For comparison, the prohibition case against the ruling AKP was opened in 2008 by the Chief Public Prosecutor, Abdurrahman Yalçınkaya who was appointed by the then president, Ahmet Necdet Sezer in 2007.63 No such initiative was taken by succeeding Chief Public Prosecutors, Hasan Erbil64 and Mehmet Akarca,65 who were appointed by the then president, Abdullah Gül in 2011, and current President Erdoğan in 2015 and in 2019, respectively. However, if political conjuncture changes, the party prohibition cases can be filed again.66 Therefore, the rules on this field should be fully institutionalized considering all the (2008) Ak Parti kapatılırsa ne olur? [What will Happen if the AK Party is Banned?]. In: İhlas Haber Ajansı. https://www.iha.com.tr/haber-ak-parti-kapatilirsa-ne-olur-21895/. 62 See Ekizceleroğlu and Çelikyay (2017), p. 107. 63 See (2007) Yargıtay’da devir teslim [Handover at the Court of Cassation]. In: Yeni Şafak. https:// www.yenisafak.com/gundem/yargitayda-devir-teslim-46505. 64 Yargıtay Cumhuriyet Başsavcılığına Seçme Kararı [Decision on the Appointment to the Office of Chief Public Prosecutor of the Court of Cassation], 2011/30, 30 April 2011, Official Gazette, No. 27921, 1 May 2011. 65 The First President, Mehmet Akarca. In: Court of Cassation of the Republic of Turkey. https:// www.yargitay.gov.tr/icerik/44/yargitay-birinci-baskani. 66 See Ekizceleroğlu and Çelikyay (2017), p. 107. 61

172

6

The Impact of the 2017 Constitutional Amendments on the Protection. . .

possible risks for the presidential office and without regard to the political constellation.

6.1.2.7 6.1.2.7.1

Judicial Independence The Council of Judges and Prosecutors

A presidential regime requires a particularly strong judiciary to serve as an effective supervisory and control power. The judiciary should be totally independent of the legislative, particularly of the executive branch, and should have the power to control, and if required annul, the acts of the Parliament and the president. It should be underlined in this connection that in consequence of the amendment abolishing the impartial status of the president and allowing him to maintain his party affiliation and even party chairmanship, the presidential appointments will be based on political partisanship. Abolition of president’s neutrality should result in the reduction of his/her role with respect to the formation of judicial power. Contrarily, the amendments have preserved this competence for the TCC, the Council of State and the Chief Public Prosecutor, while enhancing it for the CJP. The amendments restructured the High Council of Judges and Prosecutors and modified its name by removing the word “High” (Article 159 of the Constitution).67 Under the previous system, the president appointed four of 22 members of the HCJP. The amendments decreased the number of CJP members from 22 to 13. The president appoints six (four plus the Minister of Justice and his/her undersecretary) of 13 members directly. This means that practically half of the composition of the CJP is determined by the president. Under Article 159(3) of the Constitution, the other 7 members are elected by the Assembly. According to the same provision, the GNAT requires a two-thirds majority (400 votes) in the first ballot. If the election cannot be accomplished in the first ballot, the candidate receiving three-fifths of the votes (360 votes) is elected in the second ballot. If this majority is not reached in the second ballot, the election is concluded “by lot between the two candidates who received the highest number of votes.”68 Furthermore, the limitation on judicial review of the CJP’s decisions was preserved by the amendments: “[t]he decisions of the Council, other than dismissal from the profession, shall not be subject to judicial review.”69 The CJP’s amended structure is highly problematic. Considering that the president can be also the general chair of his/her party, he/she will be able to appoint all members of the Council, if the party has three-fifths of the seats in the Parliament. If the party of the president has a minimum of two-fifths of the seats in the Parliament,

67

Venice Commission (2017c) Unofficial Translation of the Amendments. Turkish Constitution Art. 159(3). 69 Turkish Constitution Art. 159(10). 68

6.1

Evaluation of the 2017 Constitutional Amendments

173

he/she will be able to fill several posts in addition to the presidential appointees.70 This would put the independence of the entire judiciary at stake, because the CJP is the autonomous authority responsible for conducting “the proceedings regarding the admission to the profession of judges and public prosecutors of civil and administrative courts, appointment, transferring to other posts, delegation of temporary powers, promotion, and being reserved to the first category, decisions concerning those whose continuation in the profession is found to be unsuitable, the imposition of disciplinary penalties and removal from office . . .”71 Thus, the judiciary is under the control and supervision of the CJP. The judiciary cannot fulfill its duty of control over the president and Parliament when the judicial Council is brought under the control of the executive branch. Under the previous system, a substantial part of the HCJP was elected by the judiciary in a one-round election. A basic European standard suggests that “a substantial element or a majority of the members of the Judicial Council should be elected by the Judiciary itself.”72 According to the Recommendation of the Committee of Ministers of the CoE, “[w]ith a view to guaranteeing its independence [from the executive and legislative powers], at least half of the members of the authority should be judges chosen by their peers.”73 In this regard, the formation of the HCJP under the previous Constitution was found by the Venice Commission as largely meeting the applicable European standards.74 However, in the view of the national scholars, the previous manner of composition of the HCJP was also problematic as it allowed illegitimate organizations with secret aims to influence elections and manipulate the judiciary via the mentioned body.75 It was also claimed by the Turkish authorities that “[t]he aim of the change in the structure and electoral process of the HCJP is to remove the politicization occurred in the judiciary, to prevent the reseizure of the mentioned institution by organizations like FETO which has secret aims . . .”.76 It should be noted, however, that the solution to this problem is not a total exclusion of the judiciary from the appointment of the CJP. Instead, the pluralist structure could address the concerns of judicial independence. Appointment of “onethird of the members of the CJP by the Council of State and the Court of Cassation, one-third by the president and one-third by the GNAT” would be a much more appropriate solution to the problem.77

70

See Venice Commission (2017a) Opinion on the Amendments to the Constitution, para. 119. Turkish Constitution Art. 159(8). 72 Venice Commission (2007), para. 29. See also Venice Commission (2010a), para. 32. 73 Council of Europe Committee of Ministers (2010), para. 46. 74 Venice Commission (2010b). 75 Ulusoy (2017), p. 8. 76 Venice Commission (2017b) Information Note Regarding the Constitutional Amendments, p. 9. 77 Ulusoy (2017), p. 8. 71

174

6.1.2.7.2

6

The Impact of the 2017 Constitutional Amendments on the Protection. . .

The Turkish Constitutional Court

The amendments did not formally touch the TCC except that the number of judges was decreased from 17 to 15 as a consequence of the removal of the high military courts (Article 146(1) of the Constitution).78 However, read together with other parts of the amendments, the repercussions of the system change on the Constitutional Court becomes evident. First, the changes regarding the CJP have a direct impact on the TCC. The CJP decides on the selection of the judges for the Court of Cassation and the Council of State. Both courts elect two members of the TCC by nominating three candidates for each vacant post to be appointed by the president. Therefore, the rearrangement of the CJP increases the executive power’s weight on the composition of the TCC, although Article 146 has not been amended.79 Under the amended Constitution, the president is not required to issue decrees through an empowering law. By contrast, before the amendments, the Council of Ministers could issue decrees having the force of law with an empowering law. The 2017 constitutional amendments repealed Article 91 regulating “Authorization to issue decrees having the force of law”. By the abolition of an empowering law, the Constitutional Court loses an important power to control the executive by checking “whether the empowering law suffices the requirements of Article 91.”80 The amendments limit the president’s legislative activity by emphasizing the primacy of laws over decrees. However, the Constitutional Court has not been expressly granted the competence of resolving conflict which can arise in this regard. The power of deciding over the conflict should have been included in the list of the competencies of the Court. Moreover, important limitations to constitutional review were upheld by the 2017 amendments: “[c]onstitutional amendments shall be examined and verified only with regard to their form. However, presidential decrees issued during a state of emergency or in time of war shall not be brought before the Constitutional Court alleging their unconstitutionality as to form or substance.”81 Consequently, constitutional control of the constitutional amendments with a view to substance, and emergency decrees is barred.

6.1.2.8

The Budgetary Powers

Turkey allocates a considerable part of the state budget to the Diyanet and to imamhatip schools administered by the MNE. Therefore, the proper division of budgetary powers is highly important with respect of the protection of secularism.

78

Venice Commission (2017c) Unofficial Translation of the Amendments. See Haimerl (2017). 80 Haimerl (2017) The Turkish Constitutional Court under the Amended Turkish Constitution. 81 Turkish Constitution Art. 148(1). 79

6.1

Evaluation of the 2017 Constitutional Amendments

175

Before the amendments, the budget bill was prepared by the Council of Ministers, and the president did not participate in the budget-making process. The budget bill was adopted entirely by the Parliament based on the proposal of the Council of Ministers (repealed Article 162). The new rule under Article 161 of the Constitution gives the power over preparation of the budget bill to the president. The president submits the bill to the GNAT, where it is examined by the Budget Committee. Subsequently, the bill is discussed and adopted by the Plenary. The new Article 161 does not deal with the results of a refusal by Parliament to approve the budget proposal of the president. This gives the president opportunity to apply the re-estimated budget of the preceding year under Article 161(4) of the Constitution which reads: “[i]f the budget law cannot be put into force within due period, the provisional budget law shall be enacted. If the provisional budget law cannot be enacted either, the budget of the previous year shall be applied increasingly as per the revaluation rate until the new budget law is adopted”. This prevents the Assembly from having a crucial tool of supervision on the president again.82 The budget of the Diyanet (TRY 10.445.979.000) is already a great source of concern in Turkey in terms of its excessiveness compared to other important state institutions such as the Ministry of Science and Technology (TRY 2.544.238.000), Ministry of Internal Affairs (TRY 8.572.166.000) and Ministry of External Affairs (TRY 4.635.760.000).83 For example, while for the 2019 year, the budget of the Ministry of Science and Technology was reduced by 56%, from TRY 6 mld. to TRY 2.5 mld., the budget of the Diyanet was raised by 34%, from TRY 8 mld. to TRY 10 mld.84 Turkey allocated TRY 6.7 mld. for the administration of religious education by the Ministry of Education in 2018; 96% of this funding was allocated to imam-hatip schools by the MNE.85 This constitutes 35% of the total education expenses (TRY 19.2 mld.) of the MNE.86 Thus, the manner of allocation of state funds for the administration of religion has already raised serious concerns under the previous regime. The even more advantaged position of the president in the budgetary process 82

See Coşkun (2017), p. 26. The figures reflect the state budget of 2019. See (2018) 2019 Bütçe Ödenek Teklifleri Belli Oldu! En Büyük Pay Hazine’ye [2019 Budget Proposals Have Been Announced! The Greatest Allocation Goes to the Treasury!]. In: Sozcu. https://www.sozcu.com.tr/2018/ekonomi/2019-butce-odenekteklifleri-belli-oldu-en-buyuk-pay-hazineye-2674982/. 84 (2018) 2019 Bütçe Ödenek Teklifleri Belli Oldu! En Büyük Pay Hazine’ye! [2019 Budget Proposals Have Been Announced! The Greatest Allocation Goes to the Treasury!]. 85 (2017) MEB’in 2018 Bütçesi Belli Oldu: Eğitime Ayrılan Kaynağın Yüzde 35’i “Din Öğretimi” İçin [The 2018 Budget of the MNE Has Been Announced: 35 Percentage of the Fund Allocated to Education is for “Religious Education”]. In: Gazete Karınca. https://gazetekarinca.com/2017/11/ mebin-2018-butcesi-belli-oldu-egitime-ayrilan-kaynagin-yuzde-35i-din-ogretimi-icin/. For the table describing Turkey’s state budget allocated for the Diyanet and imam-hatip schools, see also Bruinessen (2018), p. 4. 86 MEB’in 2018 Bütçesi Belli Oldu: Eğitime Ayrılan Kaynağın Yüzde 35’i “Din Öğretimi” İçin [The 2018 Budget of the MNE Has Been Announced: 35 Percentage of the Fund Allocated to Education is for “Religious Education”]. 83

176

6

The Impact of the 2017 Constitutional Amendments on the Protection. . .

under the amended Constitution can make the situation take a turn for the worse depending on his/her political aims.

6.1.3

Recommendations Concerning Presidential Appointments

The principle of secularism is a fundamental characteristic of the republic which should be protected and guaranteed by a strong separation of powers and effective checks and balances. The principle requires verifying whether the parliamentary majority representing the national will carries out legislative activity in accordance with this principle. This is required also by the supremacy of the Constitution. The duty to protect the principle and supremacy of the Constitution against the executive and legislative power falls on the judiciary. The protection of the principle is highly dependent on the effective supervision of activities of executive and legislative bodies. To fulfill this purpose, the judiciary should be ensured with independence from any influence. Guaranteing proper implementation and protection of the principle vis-à-vis the threatening executive policies and legislative arrangments is a constitutional requirement. However, the duties and powers of the bodies within the state structure have not been designed in accordance with this requirement. While the executive branch has been strengthened vis-à-vis the legislature, the judicial appointments have been almost included in the list of executive powers. This was already a much criticized aspect of the 1982 Constitution which has been further deepened by the 2017 amendments. Excessiveness of the presidential powers was a characteristic constitutional problem under the parliamentary regime. Being a strict secularist, Ahmet Necdet Sezer, the president of the Constitutional Court (1998–2000) proposed “a democratizing and liberalizing agenda that included the curtailment of the powers of the president on the grounds of his non-accountability”.87 Among others, the agenda proposed lifting the then Article 104(c) of the Constitution88 altogether which contemplated the appointment powers of the president concerning the top judiciary.89 It was strongly emphasized that, at least the president’s power to appoint the members of the Constitutional Court and the Chief Public Prosecutor should be abolished.

87

Çınar (2008), p. 115. According to an old Article 104(c) of the Constitution, the powers of the President with regard to the judiciary were as follows: “To appoint the members of the Constitutional Court, one-fourth of the members of the Council of State, the Chief Public Prosecutor and the Deputy Chief Public Prosecutor of the Court of Cassation, the members of the High Military Court of Appeals, the members of the High Military Administrative Court and the members of the High Council of Judges and Prosecutors”. 89 Sezer (2000). 88

6.1

Evaluation of the 2017 Constitutional Amendments

177

However, when he served as the president of the Republic (2000–2007), Sezer’s views on presidential powers changed after the AKP came to power in 2002. The AKP government, whose members were the graduates of religious schools, was distrusted by the secular establishment in terms of its “allegiance to the secular Republic.”90 Ironically, President Sezer became the most rigorous user of the presidential powers, especially the veto power. He vetoed almost all the government appointments in the high-level state positions, including the self-governing Council of Higher Education, and 64 laws which he considered harmful to the secular regime.91 Therefore, as a member of the secular establishment, President Sezer found relocating some of his competencies to elected bodies “dangerous for the stability of the secular regime.”92 In his view, presidential checks and balances become more important during a single-party government. This was based on his reading of the political situation of those days. However, such an attitude is against constitutional theory, according to which “any change in fundamental rules should be decided on its abstract merits, and not confused with the conjectural interests of particular incumbent politicians.”93 Referring to President Sezer’s democratizing and liberalizing agenda, it is concluded that the appointment powers of the president concerning the top judiciary should be decreased to a considerable degree. As Chap. 4 recommends, in the formation of the Constitutional Court the main influence must be given to the high courts. The president should elect two members of the TCC, but this should be subject to the consent of Parliament, if his/her party membership will be kept under the future amendments. The power of the President to appoint the Chief Public Prosecutor should be abolished. Concerning the structure of the CJP, the research adopts the abovementioned suggestion of legal scholar Ali Ulusoy proposing the appointment of one third of the members of the CJP by the Council of State and Court of Cassation, one third by the president and one third by the GNAT. This would be a much more appropriate solution to address the current problematic structure of the CJP. The GNAT should appoint the constitutional justices and the members of the CJP by two-thirds or absolute majority depending on the political status of the president. Presidential functions and leadership of a party should be kept separate.

90

Çınar (2008), p. 120. Çelik (2017). See also Yıldız (2008), p. 49. 92 Çınar (2008), p. 115. 93 Whitehead (2002), p. 106. 91

178

6.2

6

The Impact of the 2017 Constitutional Amendments on the Protection. . .

Conclusion

While the amendments increased the president’s appointment powers (the vice presidents, ministers, “high ranking executives”), and empowered him with the new powers of issuing presidential decrees, forming his cabinet independently, and preparing the budget bill, they did not vest the GNAT with adequate supervisory and control powers. Contrarily, the president issues decrees without empowering the law of the GNAT. Constitutional review of presidential decrees is also problematic in practice. The Parliament has been absolutely excluded from the appointment process of ministers and there is no possibility of questioning the ministers in the Parliament. The amendment complicated the application of a parliamentary investigation because it introduced high majorities. The 2017 amendments abolished the impartial status of the president and allowed him to maintain his party affiliation and even party chairmanship. The consequence of this amendment is that the presidential appointments will be based on political partisanship. Abolition of the neutrality of the president should have resulted in a reduction of his/her role with respect to the formation of judicial power. However, the amendments were not drafted in such a way as to guarantee judicial independence. The new regime brings the judicial system, which is a guarantee of the principle of secularism, under the control of the executive power. It is impossible to protect the principle of secularism in an environment where the judicial branch is under the influence of political power. Undoubtedly, the constitutional amendments were drafted by the AKP officials based on their reading of the political constellation: their leader holds the presidential office and the AKP holds a parliamentary majority. However, this is against the constitutional theory which requires constitutional rules to be drafted based on their abstract merits, as the political actors do not rule forever and the political conjuncture changes over time. In fact, as the new framework was imposed on 150-year parliamentary governance traditions in a poorly designed and unbalanced manner, an institutional breakdown occurred within its first year of implementation (2018). From economics to judiciary, every field of life faced heavier problems creating preconditions for the rising popularity of the founding Republican People Party marked by the significant victory in the March 2019 local elections94 and fracturing within the ruling AKP.95 While returning to the reformed parliamentary regime is at the top of the agenda of the main opposition party, in 2019 President Erdoğan assigned his vice president to revise the system with a view to making necessary modifications96 and in late November of 2020 he publicly announced a new period of reforms in the areas of

94 (2019) Turkey Local Elections: Setback for Erdogan in Big Cities. In: BBC News. https://www. bbc.com/news/world-europe-47764393. 95 See Gall (2019). 96 Yalçın (2019).

References

179

“economy, democracy and law.”97 The 2017 referendum had already been challenged by the Republican People Party before the ECtHR but the application was declared inadmissible.98 It is claimed by Turkish intellectuals that the foundational condition of reconstruction of the democratic-secular structure of the state is the restructuring the judiciary.99 In this regard, it should be mentioned that corrections made throughout this chapter with regard to the current system of checks and balances, including judicial power, are based on general merits and can largely improve the protection level of secularism in Turkey.

References (2007) Yargıtay’da devir teslim [Handover at the Court of Cassation]. In: Yeni Şafak. https://www. yenisafak.com/gundem/yargitayda-devir-teslim-46505 (2008) Ak Parti kapatılırsa ne olur? [What will Happen if the AK Party is Banned?]. In: İhlas Haber Ajansı. https://www.iha.com.tr/haber-ak-parti-kapatilirsa-ne-olur-21895/ (2013) Ruling AKP pulls out as new charter efforts fade. In: Hürriyet Daily News. https://www. hurriyetdailynews.com/ruling-akp-pulls-out-as-new-charter-efforts-fade-58199 (2016) Bahçeli’den Başkanlık Sistemine Yeşil Işık [Green Light from Bahçeli to the Presidential System]. In: Cumhuriyet. https://www.cumhuriyet.com.tr/haber/bahceliden-baskanliksistemine-yesil-isik-613892 (2017) MEB’in 2018 Bütçesi Belli Oldu: Eğitime Ayrılan Kaynağın Yüzde 35’i “Din Öğretimi” İçin [The 2018 Budget of the MNE Has Been Announced: 35 Percentage of the Fund Allocated to Education is for “Religious Education”]. In: Gazete Karınca. https://gazetekarinca.com/201 7/11/mebin-2018-butcesi-belli-oldu-egitime-ayrilan-kaynagin-yuzde-35i-din-ogretimi-icin/ (2018) 2019 Bütçe Ödenek Teklifleri Belli Oldu! En Büyük Pay Hazine’ye! [2019 Budget Proposals Have Been Announced! The Greatest Allocation Goes to the Treasury!]. https://www. sozcu.com.tr/2018/ekonomi/2019-butce-odenek-teklifleri-belli-oldu-en-buyuk-pay-hazineye-2 674982/ (2019) Turkey local elections: Setback for Erdogan in big cities. In: BBC News. https://www.bbc. com/news/world-europe-47764393 Bila F (2019) Yeniden İnşa İhtiyacı [The need for reconstruction]. In: Halk TV. https://halktv.com. tr/makale/yeniden-insa-ihtiyaci-650203 Bila F (2020) İktidarın İtirafı [Confession of the government]. In: T24. https://t24.com.tr/yazarlar/ fikret-bila/iktidarin-itirafi,28723 Bruinessen M v (2018) The Governance of Islam in two secular polities: Turkey’s Diyanet and Indonesia’s Ministry of Religious Affairs. Eur J Turk Stud 27:1–26. https://doi.org/10.4000/ejts. 5964 Bulmer E (2017) Presidential legislative powers. International IDEA constitution-building primer 15. https://www.idea.int/sites/default/files/publications/presidential-legislative-powersprimer.pdf Çelik E (2017) Sezer’li günlere dönecek olursak [If we could go back to the days of Sezer]. In: Gerçek Hayat. http://www.gercekhayat.com.tr/yazarlar/sezerli-gunlere-donecek-olursak/

97

Bila (2020). Cumhuriyet Halk Partisi v Turkey (dec), App no 48818/17 (ECtHR, 30 November 2017). 99 Bila (2019). 98

180

6

The Impact of the 2017 Constitutional Amendments on the Protection. . .

Çınar M (2008) The Justice and Development Party and the Kemalist establishment. In: Cizre Ü (ed) Secular and Islamic Politics in Turkey: the making of the justice and development party. Routledge, London Coşkun V (2017) 16 Nisan 2017 Tarihinde Kabul Edilen Anayasa Değişikliklerinin Değerlendirilmesi [Evaluation of the constitutional amendments adopted on 16 April 2017]. Dicle Üniversitesi Hukuk Fakültesi Dergisi 22:3–30 Council of Europe Committee of Ministers (2010) Recommendation CM/Rec(2010)12 of the Committee of Ministers to Member States on Judges: independence, efficiency and responsibilities. https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016805afb78 Ekizceleroğlu R, Çelikyay HS (2017) Türkiye’de Siyasi Partilerin Kapatılması Rejiminde Son Dönemde Yaşanan Gelişmeler [Recent developments in the regime of dissolution of political parties in Turkey]. Kırklareli Üniversitesi İktisadi ve İdari Bilimler Fakültesi Dergisi 6:102–109 Erdoğan M (2016) Başkanlık Sistemi, Latin Amerika Tecrübesi Ve Türkiye [Presidential System, Latin American Practice and Turkey]. Liberal Perspektif ANALİZ No. 3. Özgürlük Araştırmaları Derneği. https://oad.org.tr/wpcontent/uploads/2021/06/Analyses_2098_201992 5145411997OAD_BtZXPV7.pdf Gall C (2019) Former Turkish Prime Minister forms party in challenge to Erdogan. In: The New York Times. https://www.nytimes.com/2019/12/13/world/europe/ahmet-davutogluerdogan-turkey.html Gönenç L (2008) Presidential elements in government: Turkey. Eur Const Law Rev 4:488–523. https://doi.org/10.1017/S1574019608004884 Gözler K (2016) Elveda Kuvvetler Ayrılığı, Elveda Anayasa: 10 Aralık 2016 Tarihli Anayasa Değişikliği Teklifi Hakkında Bir Eleştiri [Goodbye separation of powers, goodbye constitution: a critique of the constitutional amendment proposal dated 10 December 2016]. https://www. anayasa.gen.tr/elveda-anayasa-v1.pdf Gözler K (2011) Anayasa Hukukunun Genel Teorisi [General theory of constitutional law]. Ekin, Bursa Haimerl M (2017) The Turkish Constitutional Court under the Amended Turkish Constitution. In: Verfassungsblog. https://verfassungsblog.de/the-turkish-constitutional-court-under-theamended-turkish-constitution/ İncioğlu N (2002) Local elections and electoral behavior. In: Sayari S, Esmer Y (eds) Politics, parties, and elections in Turkey. Lynne Rienner Publishers, Boulder Makovsky A (2017) Turkey’s Parliament: an unlikely but possible counterweight to new presidency. In: Center for American Progress. https://www.americanprogress.org/issues/ security/reports/2017/12/19/444281/turkeys-parliament/ O’Neill A (2020) U.S. Presidents: party affiliation 1789–2021. In: Statista. https://www.statista. com/statistics/1124563/us-presidents-party-affiliation/ Özbudun E (2000) Contemporary Turkish politics: challenges to democratic consolidation. Lynne Rienner Publishers, Boulder Petersen F, Yanaşmayan Z (2017) The final trick? Separation of powers, checks and balances, and the recomposition of the Turkish State. In: Verfassungsblog. https://verfassungsblog.de/thefinal-trick-separation-of-powers-checks-and-balances-and-the-recomposition-of-the-turkishstate/ Sezer AN (2000) Anayasa Mahkemesinin 38. Kuruluş Yıl Dönümünde Yaptığı Konuşma [The speech made in the 38th foundation anniversary of the Constitutional Court]. In: Türkiye Cumhuriyeti Anayasa Mahkemesi. https://www.anayasa.gov.tr/tr/baskan/eski-baskanlarinkonusmalari/ahmet-necdet-sezer/ The First President, Mehmet Akarca. In: Court of Cassation of the Republic of Turkey. https:// www.yargitay.gov.tr/icerik/44/yargitay-birinci-baskani Türkiye Büyük Millet Meclisi [Grand National Assembly of Turkey] (2012) 24. Dönem, 1. ve 2. Yasama Yılı Faaliyet Raporu - 12 Haziran 2011/4 Temmuz 2012 [Report on the 24th Term, 1st and 2nd Legislative Year Activities - 12 June 2011/4 July 2012]

References

181

Ulusoy A (2017) Aralık 2016 Anayasa Teklifi Neler Getiriyor, Neler Götürüyor? [What does the 2016 Constitutional Proposal Bring and What does it Take Away?]. https://www.anayasa.gen.tr/ ulusoy-anayasa-degisikligi.pdf Venice Commission (2017a) Turkey - Opinion on the Amendments to the Constitution Adopted by the Grand National Assembly on 21 January 2017 and to Be Submitted to a National Referendum on 16 April 2017. https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(201 7)005-e Venice Commission (2017b) Turkey - Ministry of Justice - Directorate General for EU Affairs Information Note on the Issues to Be Handled in the Visit of the Venice Commission Regarding the Constitutional Amendments (20–21 February 2017). https://www.venice.coe.int/webforms/ documents/default.aspx?pdffile=CDL-REF(2017)015-e Venice Commission (2017c) Turkey - unofficial translation of the amendments to the constitution. https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2017)005-e Venice Commission (2007) Report on judicial appointments. https://rm.coe.int/0900001680700a62 Venice Commission (2010a) Report on the Independence of the Judicial System Part I: The Independence of Judges. https://rm.coe.int/1680700a63 Venice Commission (2010b) Interim Opinion on the Draft Law on the High Council for Judges and Prosecutors (of 27 September 2010) of Turkey. https://www.venice.coe.int/webforms/ documents/default.aspx?pdffile=CDL-AD%282010%29042-e von Steinsdorff S (2017) Presidentialism à la Turka or what? The (missing) logic behind the constitutional amendments. In: Verfassungsblog. https://verfassungsblog.de/presidentialism-ala-turka-or-what-the-missing-logic-behind-the-constitutional-amendments/ Whitehead L (2002) Democratization: theory and experience. Oxford University Press, Oxford Yalçın Z (2019) Presidential system reforms to be presented to public next month. In: Daily Sabah. https://www.dailysabah.com/politics/2019/09/05/presidential-system-reforms-to-be-presentedto-public-next-month Yıldız A (2008) Problematizing the intellectual and political vestiges. In: Cizre Ü (ed) Secular and Islamic Politics in Turkey: the making of the Justice and Development Party. Routledge, London

Chapter 7

The ECtHR and Turkish Secularism

7.1 7.1.1

The Headscarf Debate: The Case of Leyla Şahin The Facts and the Decision

Turkey recognized the compulsory jurisdiction of the ECtHR on 22 January 1990. The sentence declaring the supremacy of international human rights agreements over national law was incorporated into Article 90(5) of the Turkish Constitution in 2004.1 The ECHR and the jurisprudence of the ECtHR was given supremacy and direct effect over domestic law by this constitutional amendment. Based on numerous decisions of the local courts it can be concluded that the Turkish judiciary has timeously adapted to this new situation.2 Fundamental freedom of religion and belief is enshrined in Article 9 of the ECHR under the title of “freedom of thought, conscience, and religion.” Besides, Article 14 of the Convention forbids discrimination on the ground of religion, among others, and Article 2 of Protocol no. 1 (hereafter, Art. 2 of PI) ensures the right to education respecting parents’ religious and philosophical convictions. The headscarf prohibition which emerged in the form of the administrative decisions and penalties of universities and had been upheld by the Turkish judiciary was brought before the ECtHR several times on the ground of inconsistency of these practices with the ECHR.3 On 29 June 2004, the ECtHR introduced its final approach concerning the headscarf ban at universities in the case of Leyla Şahin.4 The Chamber of the ECtHR held unanimously that, in countries such as Turkey, where religious fundamentalism existed as a potential threat, imposition of the 1

See Duvan (2015), p. 60. Arslan (2005), pp. 23–28. 3 Karaduman v Turkey (dec), App no 16278/90 (ECmHR, 3 May 1993). 4 Leyla Şahin v Turkey App no 44774/98 (ECtHR, 29 June 2004) [hereafter Şahin Chamber judgment]. 2

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Masmaliyeva, Turkish Secularism, European Union and its Neighbours in a Globalized World 12, https://doi.org/10.1007/978-3-031-46011-1_7

183

184

7

The ECtHR and Turkish Secularism

headscarf ban on students by the universities did not constitute violation of Article 9 of the ECHR. On appeal, this decision of the Chamber was upheld by the Grand Chamber of the ECtHR. It should be noted that Professor Sevgi Kurtulmuş also lost her position at the Istanbul University simultaneously and under the same circumstances. Her case reached the ECtHR after the Şahin case and was declared inadmissible partially based on the Şahin decision.5 The case was brought before the ECtHR by a student of the Faculty of Medicine of Istanbul University, Leyla Şahin. According to the applicant, the circular of Istanbul University on 23 February 1998, which denied access to students wearing headscarves to the university, violated her freedom of religion protected by Article 9 of the Convention. In the relevant part concerning national law and practice, the Grand Chamber judgment cited the decisions of the Constitutional Court of 7 March 1989 and of 9 April 1991 establishing that wearing the headscarf at universities will pressurize female students who do not choose to wear it, will lead to discrimination and will be in breach of the constitutional principle of secularism.6 The Grand Chamber endorsed the finding of the Chamber, determining that the applicant’s freedom under Article 9 ECHR was interfered with by the challenged measure.7 Then it continued to assess the legitimacy of the measure focusing on three points: (1) whether there was a legal basis for the prohibition; (2) whether there was a legitimate aim pursued by the prohibition, and (3) whether the prohibition was “necessary in a democratic society.” The applicant alleged that there had been no statutory law prohibiting wearing the headscarf at university. According to the applicant, the circular of Istanbul University did not comply with the additional Article 17 of Law No. 2547 on Higher Education which stipulated that “choice of dress shall be free in higher-education institutions, provided that it does not contravene the laws in force.”8 In evaluating the compatibility of the circular with the additional Article 17 of the Law on Higher Education, the European Court noted that “it is primarily for the national authorities, notably the courts, to interpret and apply domestic law.”9 In this regard, both the Council of State and the Constitutional Court developed a consistent case law upholding the headscarf ban at universities. Furthermore, concerning the words “prescribed by law,” the ECtHR noted that it had always construed the expression “law” as involving “written law” and unwritten law.10 Therefore, according to the Strasbourg Court, judge-made law also constituted a reliable source of law and in this regard, “the “law” is the provision in force as the competent courts have

5

Kurtulmuş v Turkey (dec), App no 65500/01 (ECtHR, 24 January 2006). Leyla Şahin v Turkey, App no 44774/98 (ECtHR, 10 November 2005), paras. 38–41 [hereafter Şahin Grand Chamber judgment]. 7 Şahin, Grand Chamber judgment, para. 78. 8 Şahin, Grand Chamber judgment, paras. 40 and 86. 9 Şahin, Grand Chamber judgment, para. 87. 10 Şahin, Grand Chamber judgment, para. 88. 6

7.1

The Headscarf Debate: The Case of Leyla Şahin

185

interpreted it.”11 Thus, it was established that the letter of additional Article 17 was supplemented by a judgment of 9 April 1991 of the Constitutional Court which held that permitting students’ “neck and hair to be covered with a veil or headscarf on grounds of religious conviction” in universities was in breach of the Constitution.12 For these reasons, the ECtHR found that there existed a legal basis for the prohibition. Considering the relevant decisions of the domestic courts, the ECtHR determined that Istanbul University’s regulatory measures pursued the legitimate aims of maintaining public order and protecting other people’s rights and freedoms. As regards the necessity of the measure, the European Court recalled its earlier cases, Karaduman v. Turkey and Dahlab v. Switzerland where it had established that the member state is allowed to restrict the wearing of the Islamic headscarf to maintain the public order and protect other people’s rights.13 In that connection, the European Court determined that universities may impose restricting measures concerning the place and manner of religious expressions to establish a harmonious environment among students of different beliefs and thus secure public order and the faiths of others.14 In evaluating the matter of wearing the headscarf in the Turkish context, the Grand Chamber followed the Chamber’s approach based primarily on the arguments of the Turkish courts. It referred to the potential impact of the Islamic headscarf, which demonstrates the fulfillment of an obligatory religious commitment, on those who choose not to abide by it. The Grand Chamber considered that imposing such restrictions on freedom of religion was especially necessary for the protection of the “rights and freedoms of others” and the “maintenance of public order” in a country where the majority of people belonged to the Muslim religion. The statement of the Turkish judiciary affirming the increasing political weight of the headscarf in the country was also taken into account by the ECtHR.15 The ECtHR also focused on the argument that “there are extremist political movements in Turkey which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts.”16 Summarizing the circumstances of the case, the European Court stressed that it was the principle of secularism, as interpreted by the TCC, which was the key rationale lying behind the prohibition on the wearing of a religious outfit in higher education institutions. Another ground relied on by the ECtHR was the incompatibility of wearing a headscarf with the principle of equality of the sexes underlying both the Convention and the Turkish Constitution. All three arguments were developed originally by the Turkish Constitutional Court in its judgment of 7 March 1989.

Şahin, Grand Chamber judgment, para. 88. Şahin, Grand Chamber judgment, para. 92. 13 Karaduman v. Turkey; Dahlab v Switzerland (dec), App no 42393/98 (ECtHR, 15 February 2001). 14 Şahin, Grand Chamber judgment, para. 111. 15 Şahin, Chamber judgment, para. 108; Şahin, Grand Chamber judgment, para. 115. 16 Şahin, Chamber judgment, para. 109; Şahin, Grand Chamber judgment, para. 115. 11 12

186

7

The ECtHR and Turkish Secularism

Concerning the state’s margin of appreciation in the field of state-religion relationships, the ECtHR concluded that the restrictive measure employed was proportionate to the legitimate objectives sought by the domestic authorities. Accordingly, the Grand Chamber confirmed that no violation of Article 9 of the Convention had occurred.

7.1.2

Analysis of the Leyla Şahin Decision

7.1.2.1

The ECtHR’s Arguments

The Şahin judgment is open to debate and criticism from several points of view. In identifying the legitimate aim of the prohibition, the ECtHR held that the circular of the university in question was grounded on the principles of secularism and equality. Then it elucidated the significance of the notion of secularism as a basic principle of the Turkish State which is “in harmony with the rule of law and respect for human rights” and affirmed that supporting that principle “may be considered necessary to protect the democratic system in Turkey.”17 In evaluating the necessity of the headscarf ban, the ECtHR fully accepted the arguments adopted by the Turkish authorities and courts: (1) wearing a headscarf at the university may pressurize other students who do not wish to wear it; (2) imposing this restriction is necessary for protecting non-practicing Muslims and other religions from the pressure of extremist political movements, and (3) necessary for protecting the principle of gender equality.

7.1.2.1.1

The Impact of Wearing the Headscarf on Others

Pursuant to Article 9 (2) ECHR, the free exercise of religion can be restricted under the protection of the rights and freedom of others and disruption of public order if the material conditions are satisfied. This was a test applied by the ECtHR in the landmark judgment of Kokkinakis v. Greece where the Court determined that it “must weigh the requirements of the protection of the rights and liberties of others against the conduct of which the applicant stood accused.”18 After carefully identifying the notion of proselytism, the European Court decided that the applicant’s liability for proselytism was not justified as the Greek courts “did not sufficiently specify in what way the accused had attempted to convince his neighbour by improper means.”19 In Leyla Şahin, there was no evidence among the case materials demonstrating that the applicant wore the headscarf in a campaigning manner or as

Şahin, Grand Chamber judgment, para. 114. Kokkinakis v Greece App no 14307/88 (ECtHR, 25 May 1993), para. 47. 19 Kokkinakis v Greece, para. 49. 17 18

7.1

The Headscarf Debate: The Case of Leyla Şahin

187

an attempt of pressure, propaganda, proselytism, or provocation and undermined the beliefs of others in this way. As regards the public order, it was neither claimed nor demonstrated by the government that the education process or normal regime at the university was disrupted because of the applicant’s headscarf. However, in Leyla Şahin, the ECtHR maintained that wearing the headscarf which represents an obligatory religious duty, can be restricted due to its potential impact on others in a Muslim-majority country. Although this principle can be acceptable in the general sense, its manner of application to this particular case is open to question. In the actual case, the Strasbourg Court was expected to ascertain whether “wearing a headscarf as a ‘powerful external symbol’ had a proselytizing effect, or more importantly, created pressure on other students at the university.”20 This question should have been answered based on information collected from the University of Istanbul. As Judge Tulkens argued in her dissenting opinion, a restriction of a fundamental freedom guaranteed by the Convention can be justified only by “indisputable facts and reasons” evidencing the existence of a “pressing social need” and not by “mere worries or fears.”21 According to the ECtHR’s established jurisprudence, mere statements cannot be accepted as a ground for interfering with a fundamental right; rather there must be supporting examples.22 Since such examples are absent from the debated case, the mentioned argument of the ECtHR gives the states almost “unlimited” power of restricting any manifestation of religious belief.23 Following the same logic, a categorical ban on calls to prayer or even on mosques can be a matter of debate due to their impact and pressure on other faiths in a Muslimmajority country.24 Moreover, the argument concerning the “potential impact of wearing the headscarf” does not meet the condition of pressing social need in view of the ECtHR’s jurisprudence. In freedom of expression cases (Article 10 ECHR), mutatis mutandis, the ECtHR has never concluded that a limitation to the freedom of expression may be required on the ground that the opinions or ideas challenged are not accepted generally and can even disturb certain persons.25 In the case of Gündüz v. Turkey, the European Court found a breach of the freedom of expression where a leader of a religious community was imprisoned for fiercely vilifying the secular order of Turkey, demanding the establishment of sharia and stigmatizing children born to parents who had married only before the authorized official as “bastards.”26 So, fulfilling one’s religious duty by peacefully wearing a headscarf

20

Altiparmak and Karahanogullari (2006), p. 279. Dissenting Opinion of Judge Tulkens in Şahin, Grand Chamber judgment, para. 5. 22 See Smith and Grady v the United Kingdom App nos 33,985/96 and 33986/96, ECHR 1999-VI, para. 8. 23 See Özenç (2005), p. 117. 24 See Ulusoy (2004), p. 130. 25 Dissenting Opinion of Judge Tulkens in Şahin, Grand Chamber judgment, para. 9. 26 Gündüz v Turkey App no 35071/97 (ECtHR, 4 December 2003). 21

188

7

The ECtHR and Turkish Secularism

may be banned, while in the same conditions, statements that could be established as religious hate propaganda enjoy the Convention’s protection.27

7.1.2.1.2

Protection against the Pressure of Fundamentalist Religious Movements

The ECtHR held that prohibitive regulations should be evaluated in a context in which extremist religious movements are in quest of imposing their concept of religious life on a whole society. Although this can be also accepted as a general principle, its manner of application to the relevant case can be criticized. In fact, the ECtHR has failed to examine the relationship of Leyla Şahin with those fundamentalist movements seeking to put pressure on the students of different faiths.28 This relationship should have been certainly explored, as the essence of the case was the restriction of a fundamental freedom. For example, in the case of Metropolitan Church of Bessarabia, the European Court reviewed the claim of the Moldovan state alleging that the Church was involved in the dangerous political activities towards its territorial integrity. After carefully examining the case materials, the ECtHR held that “in the absence of any evidence, the Court cannot conclude that the applicant Church is linked to the political activities of the above-mentioned Moldovan organisations” which threatened the state’s territorial integrity.29 As to the probability that the Church “might constitute a danger to national security and territorial integrity,” the ECtHR considered it as “a mere hypothesis which, in the absence of corroboration, cannot justify a refusal to recognize it.”30 In Şahin, the ECtHR could also have examined whether the relationship of the women wearing the headscarf, at least a majority of them, with the fundamentalist movements had been evidenced based on certain proofs. In such a case, there would be no need to investigate particularly the situation of Leyla Şahin and it could be argued that once allowed, the female members of the fundamentalist organizations would violate the public order; however, the Strasbourg Court did not adopt such an approach.31 The reasoning of the ECtHR concerning extremist movements raises two concerns. So far, no such action has been taken by the religious movements targeting bareheaded female students at universities. Conversely, preventing students with the headscarf from entering universities can trigger extremist religious circles to take certain actions.32 Moreover, if the headscarf ban at universities relied on general

27

See Van Drooghenbroeck (2004). See Gemalmaz (2005), pp. 1299–1303; Çoşkun (2004). 29 Metropolitan Church of Bessarabia and Others v Moldova App no 45701/99 (ECtHR, 13 December 2001), para. 125. 30 Metropolitan Church of Bessarabia and Others v Moldova, para. 125. 31 See Özenç (2005), p. 118. 32 See Ulusoy (2004), p. 130. 28

7.1

The Headscarf Debate: The Case of Leyla Şahin

189

factors such as the extremist religious movements, the recent political history of Turkey, and the potential effects of the headscarf, then the state would be bound by a positive obligation to impose this ban in private premises too, and not only at state universities.33 It seems that the ECtHR has completely validated the hypothesis of the TCC concerning the necessity to protect individuals from the pressure of extremist political movements. This raises the question of why the ECtHR has regarded the headscarf ban in Turkey as consistent with the Convention, while manifestation of religious belief cannot be restricted except when the activities harm the rights and freedoms of others and the public order. It would not be fair to argue in response to this question that the European Court has a prejudice concerning the Muslim religion.34 The ECtHR has already demonstrated its impartiality in cases of Turks living in Bulgaria and Greece, finding the restriction of Muslims’ right to manifest their religion incompatible with the Convention.35 It can be argued that the main factor influencing this approach of the ECtHR was the “serious concerns” of some circles and judicial bodies regarding the Islamic movements in Turkey. The ECtHR has expressed this point of view in Refah: The Court accordingly finds, at this stage of its examination, that the establishment of a theocratic regime, with rules valid in the sphere of public law as well as that of private law, is not completely inconceivable in Turkey, account being taken, firstly, of its relatively recent history and, secondly, of the fact that the great majority of its population are Muslims.36

In fact, the European Court asserted in Leyla Şahin that “it is the principle of secularism . . . which is the paramount consideration underlying the ban on the wearing of religious symbols in universities.”37 Citing Leyla Şahin, the ECtHR reiterated in Kurtulmuş v. Turkey that it is the principle of secularism, “and not objections to the way a person dresses as a result of his or her religious beliefs, that is the paramount consideration underpinning the rules.”38 With reference to Refah, the ECtHR held in the manner of the Constitutional Court that “[a]n attitude which fails to respect that principle will not necessarily be accepted as being covered by the freedom to manifest one’s religion and will not enjoy the protection of Article 9 of the Convention.”39 Thus, the ECtHR endorsed the view of the domestic authorities

33

See Altıparmak and Karahanoğulları (2004), pp. 22–23. See Gemalmaz (2005), pp. 1296–1297. 35 Serif v Greece App no 38178/97 (ECtHR, 14 December 1999), paras. 51–53; Agga v Greece App nos 50776/99 and 52912/99 (ECtHR, 17 October 2002); Hasan and Chaush v Bulgaria App no 30985/96 (ECtHR, 26 October 2000); Supreme Holy Council of the Muslim Community v Bulgaria App no 39023/97 (ECtHR, 16 December 2004). 36 Refah, Chamber judgment, para. 65. 37 Şahin, Grand Chamber judgment, para. 116. 38 Kurtulmuş v Turkey (dec), App no 65500/01 (ECtHR, 24 January 2006), “The Law”. 39 Şahin, Grand Chamber judgment, para. 114. The condition of an “attitude respecting the principle of secularism” was cited by the ECtHR also in Refah, Grand Chamber judgment, para. 93 and repeated in Dogru v. France App no. 27058/05 (ECtHR, 4 December 2008), para. 72. 34

190

7

The ECtHR and Turkish Secularism

and courts that wearing the headscarf infringes on the principle of secularism and in this way, it adopted an attitude on the matter that had been the topic of bitter controversy, namely the meaning of wearing the headscarf and its place within the secular order.40 Considering Leyla Şahin together with the cases of Kurtulmuş and Refah, it can be concluded that the Strasbourg Court hesitated to apply its well-established principles to the freedom of religion cases which involved the government’s concern about possibility of resurrection of the Islamic theocratic regime. In fact, the ECtHR’s position in the matter of the headscarf was criticized by Turkish legal scholar Ece Göztepe arguing that the European Court remained under the influence of the specific conditions of Turkey.41 On the other hand, the approach of the ECtHR was applauded by legal scholar Fazıl Sağlam claiming that the ECtHR grasped “particularities of Turkish secularism” well in holding that after demolition of the old theocratic regime “Turkey opted for a form of secularism which confined Islam and other religions to the sphere of private religious practice . . .”42 Most importantly, the European Court approved the compatibility of this conception of secularism with the values underlying the Convention and endorsed the significance of this principle for the protection of the Turkish democracy.43 It has been questioned by Jeremy Gunn whether the ECtHR can rely on the principle of secularism as a justification for restricting the fundamental rights while this term does not appear in any of the travaux préparatoires of Articles 9 or 14 and no reservation was made concerning secularism by any of the states.44 Carolyn Evans has also doubted whether the ECtHR can invoke the principle of secularism, given the fact that it is not mentioned among legitimate aims laid down to limit a Convention right and while there are contracting parties that still have official religions.45 Certainly, the fundamentalist movements having political claims which threaten the basic elements of the democratic constitutional order of the states with their activities should be considered by the European Court. In this sense, it is agreed with the general principle established by the ECtHR that, “each Contracting State may, in accordance with the Convention provisions, take a stance against such political movements, based on its historical experience.”46 The source of disagreement over the Leyla Şahin judgment concerns rather the application of this principle to the facts of this case. Assessments made without relying on the concrete data concerning wearing the headscarf in specific situations and associating the headscarf with the fundamentalist movements in an abstract manner have given a political character to the judgments of the TCC and the ECtHR. The paradoxical side of this

40

See Bribosia and Rorive (2004), p. 958. Göztepe (2007), pp. 60–63. 42 Refah, Grand Chamber judgment, para. 125. 43 See Sağlam (2009), pp. 396–397. 44 Gunn (2019), pp. 468–469. 45 Evans (2001), p. 499. 46 Şahin, Grand Chamber judgment, para. 115. 41

7.1

The Headscarf Debate: The Case of Leyla Şahin

191

argument of both the TCC and ECtHR is that the political forces seeking to impose their religious percepts on society have abundantly benefited from the headscarf ban as a propaganda tool and acquired considerable political gains advocating for the headscarf liberty in a Muslim-majority country. Therefore, it is relevant to note a concluding remark of the dissenting opinion of Judge Tulkens that “the best means of preventing and combating fanaticism and extremism is to uphold human rights.”47

7.1.2.1.3

Gender Equality

The Grand Chamber referred to gender equality as a principle underlying the ECHR and the objective to be reached by the contracting parties. However, the Grand Chamber’s analysis on this point remains very superficial as it does not elucidate the relationship between gender equality and the ban. In other words, the judgment does not explain that gender equality can be achieved by imposing the headscarf ban. However, concerning the signification of this wearing, it referred to the decision in the Dahlab case where a teacher had been prohibited from wearing a headscarf in class maintaining that the headscarf can be characterized as a “powerful external symbol” which “appeared to be imposed on women by a precept that was hard to reconcile with the principle of gender equality.”48 Furthermore, the Grand Chamber reiterated the term in Dahlab that this religious symbol “could not easily be reconciled with the message of tolerance, respect for others and, above all, equality and nondiscrimination that all teachers in a democratic society should convey to their pupils.”49 Based on this estimation by the ECtHR, it is not unreasonable to assume that, failing to construe a convincing relationship between the principle of gender equality and the ban, the European Court produced a negative meaning of the headscarf in order to use it as a pretext for its decision. In contrast to this position, the FCC stated in its judgment of 27 January 2015 that wearing the headscarf should not be readily associated with negative connotations; this practice can be followed for various reasons such as “the expression of an individual clothing decision, tradition or identity . . .”.50 In this connection, it is questionable whether gender equality can justify prohibiting an adult woman from fulfilling her religious duty according to her own free will. Some assert that such a ban is against the principle of equality as it deprives some women of the right to education, instead of serving equality.51 Moreover, the right to equal treatment must be left to the disposition of those who are eligible to enjoy it. This kind of “paternalism” is contrary to a genuine right to personal

Dissenting Opinion of Judge Tulkens in Şahin, Grand Chamber judgment, para. 20. Şahin, Grand Chamber judgment, para. 111. 49 Şahin, Grand Chamber judgment, para. 111. 50 BVerfG, 27 January 2015, 1 BvR 471/10, para. 118. 51 See Poulter (1997), p. 70; Tahzib-Lie (2000), p. 982. 47 48

192

7

The ECtHR and Turkish Secularism

autonomy developed by the ECtHR based on Article 8.52 Finally, if wearing the headscarf creates a danger for gender equality in any case, then it must be the state’s positive obligation to ban it everywhere, whether in private or public.53 Otherwise, it would not achieve its objective of protecting gender equality.

7.1.2.2

The Margin of Appreciation and Proportionality

The ECtHR stressed the key role of the doctrine of margin of appreciation in the sensitive relationships between the state and religion. It held that when a case involves issues regarding the state-religion relationships, the assessments of the domestic authority must be given special weight. The ECtHR attached a particular importance to the role of the national authorities when the case concerns the wearing of religious symbols in education establishments, arguing that there is no uniform practice among the member states on the subject and the relevant rules differ from country to country due to contextual particularities.54 In determining the necessity of the measure employed by the national authorities, the European Court conducted no evaluation to verify whether the claimant’s behavior created a danger to other people’s rights and freedoms or public order at Istanbul University. It seems that the ECtHR did not possess any information on this point. Refraining from carefully scrutinizing the proportionality of the ban, the ECtHR maintained that “[b]y reason of their direct and continuous contact with the education community, the university authorities are in principle better placed than an international court to evaluate local needs and conditions or the requirements of a particular course.”55 Although the states are granted a margin of appreciation with regard to the assessment of a “pressing social need,” this discretion is limited as it “goes hand in hand with a European supervision by the Court . . .”56 However, it seems that the Grand Chamber neglected this long-established principle in Leyla Şahin: Besides, having found that the regulations pursued a legitimate aim, it is not open to the Court to apply the criterion of proportionality in a way that would make the notion of an institution’s “internal rules” devoid of purpose.57

52

See Van Drooghenbroeck (2004). For the relevant cases see Keenan v the United Kingdom App no 27229/95 (ECtHR, 3 April 2001), para. 92; Pretty v the United Kingdom App no 2346/02 (ECtHR, 29 April 2002), paras. 65–67; Christine Goodwin v the United Kingdom App no 28957/95 (ECtHR, 11 July 2002), para. 90. 53 See Bribosia and Rorive (2004), p. 962. 54 Şahin, Grand Chamber judgment, para. 109. 55 Şahin, Grand Chamber judgment, para. 121. 56 Bladet Tromsø and Stensaas v Norway App no 21980/93 (ECtHR, 20 May 1999), para. 58; see also Cumpana and Mazare v Romania App no 33348/96 (ECtHR, 17 December 2004), para. 88. 57 Şahin, Grand Chamber judgment, para. 121.

7.1

The Headscarf Debate: The Case of Leyla Şahin

193

This expression of the Strasbourg Court can be read as expanding margin of appreciation to an absolute lack of European supervision and giving free hand to the member states. Leyla Şahin is the first Strasbourg decision which lacks assessment of the relationship between the character of public service received by the applicant and her freedom of religion. As it has been mentioned above, the freedom to express one’s religious belief can be limited if this expression endangers the rights of others. If the ECtHR had assessed the measure under this principle, it would not have endorsed the absolute ban on the headscarf all through the Turkish universities, and thus its decision would have been grounded on sound legal analysis. The abstract ban could be avoided by making an evaluation based on the compatibility of the headscarf with the character of the public service involved, such as medical service. In fact, such data were among the case materials. In the part about the historical background, the European Court cited the university rector’s response addressed to the students protesting the headscarf ban in 1994 in the midwifery school. In that response, the rector emphasized the unsuitability of wearing a long-sleeved dress in the course of operation or while putting a baby into an incubator.58 Thus, the incompatibility of religious attire with the character of the specific public service is clearly described in this example. If the ECtHR had evaluated the issue from this perspective, the categorical ban on the headscarf could not have been upheld and the issue would have found a healthier solution based on legally sound arguments.59 The ECtHR’s earlier decision in Dahlab, which was about a teacher, evaluated wearing the headscarf based on the role-model aspect of teaching activity. Also, in several other similar decisions, although controversial, the European Court at least built a connection between the nature of the service involved and the freedom of religion. For example, in cases concerning the military profession, the ECtHR considered expulsion from the army or military school compatible with Article 9 considering that the applicants had voluntarily chosen a relevant profession which required a special discipline by its very nature.60 Although these judgments were formulated inaccurately for other reasons, they at least established a connection between the character of the service and freedom of religion.61

Şahin, Grand Chamber judgment, para. 43. For the importance of connection between the restriction and the character of the public service rendered or concrete situation, see Tahzib-Lie (2000), p. 983. 60 Kalaç v Turkey App no 20704/92 (ECtHR, 1 July 1997); Larissis and others v Greece Case no 140/1996/759/958–960 (ECtHR, 24 February 1998); Yanaşık v Turkey App no 14524/89 (ECmHR, 6 January 1993); Ramazan Akbulut v Turkey App no 45624/99 (ECtHR, 6 February 2003); Helmi Başpınar v Turkey App no 45631/99 (ECtHR, 3 October 2002); Sedat Şen and others v Turkey App no 45824/99 (ECtHR, 8 July 2003). 61 For example, in Başpınar case, although it was openly stated by the government that one of the grounds for finding the applicant as undisciplined by the Supreme Military Council was his wife’s wearing the headscarf, the ECtHR asserted that his expulsion from the employment was not based on his or his wife’s religious views. For other related cases see: Tepeli and others v Turkey App no 58 59

194

7

The ECtHR and Turkish Secularism

The breadth of the margin of appreciation was justified by the Strasbourg Court with the variety of regulations among the member states on the wearing of religious symbols in education establishments, and thus the absence of a uniform European approach in this field. However, as expressed in the dissenting opinion of Judge Tulkens in the Grand Chamber judgment, the comparative legal materials show that none of the European countries has extended the ban to higher education institutions, which serve mature people, who are more resistant to pressure.62

7.1.2.3

The Implications of the Decision

The Leyla Şahin decision was welcomed by the secular establishment in Turkey. Some circles in Turkey, including the then president, Sezer,63 and the then President of the Council of Higher Education, Erdoğan Teziç64 asserted that the decision put an end to the headscarf debate in the national legal system and the headscarf could not be allowed at universities anymore by amending the laws, Constitution or by any other means. It cannot be agreed with the argument that the ECtHR’s decision prevents Turkish domestic law from authorizing the wearing of the headscarf at universities. It becomes clear from the judgment that the ECtHR gives special importance to the role of the local courts in evaluation of local needs and circumstances, particularly on the matters pertaining to state-religion relationships. Thus, in upholding the headscarf ban, the ECtHR referred to the secularism and public order considerations of the domestic courts, primarily the Constitutional Court and the Council of State. Therefore, overruling previous cases according to the changing needs and conditions is still left to the domestic courts and cannot be regarded as inconsistent with the ECtHR’s decision.65 In view of the secular establishment, the problem originated from the women’s claims that complying with their religious convictions in institutions of higher education was simply a legal question. Therefore, it was readily concluded that the question reached its final solution by the judgment of Leyla Şahin. It was neglected that in a society where religion was gaining a growing influence over the definition of identity day-by-day, upholding the headscarf ban at universities would mean only deferring the debate until the next greater battle. The social dynamics of increasing visibility of religion, however, did not lie in the wearing headscarf at universities. It 31876/96 (ECtHR, 11 September 2001); Acarca v Turkey App no 45823/99 (ECtHR, 3 October 2002); Osman Balcı v Turkey App no 48718/99 (ECtHR, 3 October 2002); Ziya Çelikateş and Others v Turkey App no 45824/99 (ECtHR, 3 October 2002). 62 Dissenting Opinion of Judge Tulkens in Şahin, Grand Chamber judgment, para. 3. 63 The views of the President are expressed in his Veto concerning Law No. 5227 on Basic Principles and Restructuring of Public Administration, No. B.01.0.KKB.01-18/A-9-2004-890, 3 August 2004. 64 Düzel (2004); see also Jenkins (2007). 65 See Ulusoy (2004), p. 133.

7.2

Compulsory Religious Education in Light of the ECtHR’s Decisions

195

was disregarded that those who completed their education with the headscarf would raise the same demands when it comes to entering public service. It can be argued that the ECtHR failed to make a consistent contribution to the solution of a problem of Turkey that had been on the top of the country’s agenda for 20 years and which had departed from the environment of rational debate and conciliation. While Turkey had more serious problems in terms of state units producing religious services such as imam-hatip schools, compulsory religious education, the Diyanet and Koran courses, the entire bill for these losses was charged, with the approval of the ECtHR, to some students and the human rights protection system of Turkey.

7.2 7.2.1

Compulsory Religious Education in Light of the ECtHR’s Decisions The Implementation of Religious Culture and Ethics Classes

Due to its special complexity and controversial constitutional status, this Section will comprehensively analyze compulsory religious education in light of the judgments of the ECtHR and domestic courts and with reference to the critical opinions in the national legal literature. Having regard to the complaints arising from the current implementation of compulsory religious education, the question of how religious education should be organized in accordance with the principle of secularism will be answered at the end of the Section. When it was founded, the Turkish Republic inherited a divided educational system from the Ottoman Empire comprised of religious schools (medreses), secular schools (mekteps), and foreign schools. In 1924, the GNAT adopted a Law on the Unification of Education to put an end to the polarization in the education system, and consequently in the society. It abolished religious schools, declared the secular schools as the only institutions of education and brought all establishments of education under the control of the MNE. The law did not eliminate religious education from the school curricula; religious education continued to be taught in modern schools. In this way it was taken out of the hands of religious orders and brought under state control. Following the 1928 constitutional amendment which repealed the provision declaring Islam as the official religion, the MNE started to remove religion classes from the school curricula.66 From 1930 until 1948, religion classes were completely excluded from the school curricula during the single-party regime, and religious education was left entirely within the responsibility of families. With the establishment of the multi-party system in 1946, the popular demands gained momentum and 66

Berkes (1998), p. 477.

196

7

The ECtHR and Turkish Secularism

in 1948 the GNAT decided for provision of religion classes in primary schools outside of the curriculum and on an optional basis.67 Afterwards, religious education was expanded during the authority of the Democratic Party. The 1961 Constitution clearly designated the optional character of religion classes in public schools, and they were put into practice only in 1967.68 Beside the optional religion classes, the compulsory “knowledge of ethics” lessons were included in the school curriculum beginning from the study year of 1974–1975.69 The 1982 Constitution, for the first time in the history of the Turkish Republic, introduced compulsory religion lessons into the syllabus of primary and secondary schools. As it seems, the 1982 Constitution made a radical shift in the legal regime of religious education compared to earlier policies which either completely excluded it from the school curricula or included it only on an optional basis. Article 24(4) of the Constitution stipulates that “[r]eligious and moral education and instruction shall be conducted under state supervision and control. Instruction in religious culture and morals shall be one of the compulsory lessons in the curricula of primary and secondary schools. Other religious education and instruction shall be subject to the individual’s own desire, and in the case of minors, to the request of their legal representatives.” Article 12 of the Basic Law on National Education was also amended on 16 June 1983 as follows: “Secularism shall be the basis of Turkish national education. Religious culture and ethics shall be among the compulsory subjects taught in primary and upper secondary schools, and in schools of these levels.”70 However, neither the Constitution nor the Law on National Education identifies what is meant by “instruction in religious culture” and what constitutes the content of these lessons. Therefore, the nature and scope of these lessons is to be defined by the judiciary through interpretation.71 The lack of constitutional provision clarifying the content of instruction in religious culture paved the way for the emergence of long-standing debates and conflicts stemming from the manner of implementation of these courses. Compulsory religious education was first put into practice in public schools by the Decision of the Board of Education and Discipline of the MNE under the title “Religion and Knowledge of Ethics.”72 The lessons were decided to be taught in the fourth and fifth grades of primary schools, in all three grades of secondary schools (first, second, third), and in all three grades of upper secondary schools (first, second, third). The program of this class aimed at providing sufficient basic knowledge on

67

Kaymakcan (2006), p. 23. Merter and Kartal (2014), p. 2. 69 Öcal (2017), p. 408. 70 Milli Eğitim Temel Kanunu [Basic Law on National Education], No. 1739, 14 June 1973, Official Gazette, 24 June 1973, No. 14574, Art. 12. 71 See Gözler (2010). 72 Acar (2006), https://katalog.marmara.edu.tr/veriler/yordambt/cokluortam/D/A/E/D/A/T0053097. pdf, p. 12. See also Akyüz (1999), p. 306. 68

7.2

Compulsory Religious Education in Light of the ECtHR’s Decisions

197

the themes of religion, Islamic religion, and knowledge of ethics, among others.73 It should be noted that non-Muslim minority groups recognized by Turkey with the Treaty of Lausanne74 such as Jews, Greeks, and Armenians (Protestant, Catholic, and Apostolic denominations) were entitled to teach their own religions in their private schools.75 Therefore, these private minority schools fell outside of the scope of religious culture classes. Article 24(4) of the Constitution provides no exemption from the religious culture classes, and thus attendance in these classes was mandatory for all students. This particularly affected the Christian and Jewish children studying in Turkish public schools as they were also required to take these classes. In the beginning of its implementation, compulsory religion classes caused growing concerns among the children and parents of Christian and Jewish religions as they were exclusively based on the Sunni perspective of Islam. The earlier decisions of the judiciary confirmed the obligatory nature of religious lessons, without analyzing their content. The Council of State reviewed the complaint of a student who was sanctioned by a disciplinary measure for dropping out of the religious classes. Referring to the relevant provisions of the Constitution and the Law on National Education, the Court ruled that “attending these classes is obligatory for each Turkish citizen” studying in primary and secondary schools and the imposition of the disciplinary measure was not in breach of the laws and regulations.76 As the number of students who dropped out of the classes increased gradually, the Supreme Council for Education addressed the issue by adopting a decision on 3 October 1986. According to the decision, the Christian and Jewish pupils of Turkish nationality attending primary and secondary schools, outside of minority schools, were exempted from the units of the religion classes which taught Islamic prayers and practices.77 In other words, this decision granted Lausanne minority groups partial exemption from the religion courses. In 1990, the right to full exemption was granted to the same groups of Jewish and Christian students by the decision of the Supreme Council for Education.78 The only condition to this exemption was declaration by the parents confirming their adherence to one of the concerned religious minorities. With the introduction of the option of exemption to non-Muslim minorities, the compulsory regime of the religious classes was fractured. Although the children of 73

Decision of the Board of Education and Discipline, No. 30, 18 February 1982, Ministry of National Education, Tebliğler Dergisi [The Journal of Announcements], 29 March 1982, No. 2109, p. 155. 74 Treaty of Peace with Turkey Signed at Lausanne, July 24, 1923. The official English version of the Treaty of Lausanne can be found at the website of the Ministry of Foreign Affairs of the Republic of Turkey, https://www.mfa.gov.tr/lausanne-peace-treaty.en.mfa. 75 See Yildiz (2007), pp. 802–803; Özgül (2019), p. 107. 76 Council of State (8. Chamber), 10 February 1987, E. 1986/518, K. 1987/54. 77 Özenç (2005), pp. 123–124. 78 Decision of the Supreme Council of Education, No. 1, 9 July 1990, Ministry of National Education, Tebliğler Dergisi [The Journal of Announcements], 23 July 1990, No. 2317, p. 553.

198

7

The ECtHR and Turkish Secularism

Christian and Jewish communities recognized with the Lausanne treaty have been entitled to exemption from the religious classes, there has emerged uncertainty in the extension of this right to other religious groups and believers. While the right to exemption has been extended to non-Lausanne Christians such as Jehovahs’s Witnesses and Protestants, this has been accompanied by several administrative problems due to the lack of clear regulation.79 Looking at the current legal framework, it becomes clear that except for the Lausanne minorities, the pupils belonging to the non-recognized religious communities such as Alevis, Yezidis, Bahais, or belief groups such as agnostics or atheists lack the right to exemption from the religion classes.80

7.2.2

How Should Article 24(4) of the 1982 Constitution Be Read?

7.2.2.1

The National Legal Debate on the Content and Legal Regime of the Religious Culture Classes

Based on Article 24(4) of the Constitution and Article 12 of the Law on National Education, the administrative judges, the jurists of the MNE, and the Ministry of Foreign Affairs have proclaimed that attending religion classes is compulsory for all pupils studying in primary and secondary schools.81 As a result of this interpretation, people have unwillingly attended religion classes for more than 20 years and the issue was brought before the ECtHR as it was not resolved within the internal legal framework. Some legal scholars have argued that the inconsistencies and mess in the implementation of compulsory religious education were caused by a wrongful reading of Article 24(4). Legal scholar Kerem Altıparmak has suggested reading Article 24(4) in conformity with the freedom of religion and the principle of secularism.82 Accordingly, it can be claimed that since the text of Article 24(4) does not contain any expression excluding the possibility of exemption, there is no constitutional obstacle to granting the concerned students the right to exemption. In Altıparmak’s opinion, Article 24(4) should be read in light of Article 13 of the Constitution, according to which limitations of fundamental rights and freedoms “shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of 79 See Şirin et al. (2016), pp. 37–38; see also (2010) “A Threat” or Under Threat?: Legal and Social Problems of Protestants in Turkey, 2010. Association of Protestant Churches. https://www. ceceurope.org/wp-content/uploads/2015/07/Protestants_in_Turkey-_A_Threat_or_Under_ Threat_2010__.pdf, pp. 28–29. 80 See Özgül (2019), p. 109. 81 Altıparmak (2005). 82 Altıparmak (2005).

7.2

Compulsory Religious Education in Light of the ECtHR’s Decisions

199

proportionality” and any such limitations should also avoid intruding upon the essence of freedoms. This opinion has been supported by several other legal scholars and was adopted by the Report of the Union of Turkish Bar Associations on the Freedom of Religion and Conscience.83 According to legal scholar Cem Eroğul, Article 24(3) of the Constitution which stipulates that “[n]o one shall be compelled to worship, or to participate in religious rites and ceremonies, or to reveal religious beliefs and convictions, or be blamed or accused because of his religious beliefs and convictions” constitutes a guarantee for exemption from the compulsory religious education.84 In this regard, he held that compulsory religious education cannot be a means of compelling any student to practice a certain religion or of blaming him/her because of his/her religious beliefs. The theoretical aspect of the question finally found a satisfactory solution with the Council of State’s judgment of 28 December 2007.85 In its judgment, the Council of State determined that the religious culture lessons were based on a particular understanding of religion, and even taught the students how to practice the daily prayers and required them to learn surahs from the Koran. It was found that although these lessons were taught under the title “Religious culture and ethics,” their substance was not qualified as such and they amounted to “instruction of religion.” Since instruction of a certain religion was subject to the request of individuals and the consent of the representatives of minors under the third sentence of Article 24(4), giving such instruction without the request of the concerned people was illegitimate. This decision of the Council of State will be further analyzed in more detail. However, at this stage, it should be noted that this interpretation brought an important clarification to Article 24(4), eliminated the need for the scholarly interpretations, and was endorsed by the legal scholars.86 According to Kemal Gözler, the introduction of two distinct legal regimes for religious education by Article 24 gives an important clue to the definition and scope of the term “instruction in religious culture.”87 The second sentence of Article 24(4) states that “[i]nstruction in religious culture . . . shall be one of the compulsory lessons in the curricula of primary and secondary schools,” and the third sentence adds that “[o]ther religious education and instruction shall be subject to the individual’s own desire, and in the case of minors, to the request of their legal representatives” (emphasis added). From its own text of Article 24(4), it becomes clear that “instruction in religious culture” is limited and there is “other religious education and instruction”. Then he focuses on the term “religious culture” and states that the French word for “culture” is defined as important knowledge in certain fields that everybody should know.88 Therefore, it is concluded that the term “religious See Özenç (2005), p. 169; Çınar (2013), pp. 229–230; Şirin (2015); Şirin et al. (2016), p. 39. Eroğul (2015), pp. 188–189. 85 Council of State (8. Chamber), 28 December 2007, E. 2006/4107, K. 2007/7481. 86 See Gözler (2010); Altıparmak (2013), p. 12; Erdoğan (2019). 87 Gözler (2010). 88 Gözler (2010) (citing Rey and Rey-Debove 1991). 83 84

200

7

The ECtHR and Turkish Secularism

culture” can be defined as “the knowledge of religions that every cultured person should know.” In this respect, religious culture is considered a part of a general culture with which every educated person should be familiar. Therefore, this lesson should be limited to inform the students about the history, structure, and basic features of certain religions, and also beliefs such as atheism; however, it cannot instruct the students the doctrine and rituals of certain religions such as surahs from the Koran, taking ablutions, or performing daily prayers. It is observed that this construction of Article 24(4) which resonates with the Council of State’s judgment of 28 December 2007 gives the most accurate and clear picture of Article 24(4) and avoids contradictions between the compulsory religious education and the principle of secularism. It is also in harmony with the requirement of Article 12 of the Law on National Education, which declares that “secularism shall be the basis of Turkish national education.” Therefore, this interpretation is accepted for the purposes of this study. Another debatable issue concerning compulsory religious education is its legal regime and the matter of exemption. Article 24(4) determines education in religious culture as a compulsory lesson in the school curriculum and provides for no exception to this obligation. In other words, the obligation to participate in concerning classes is absolute and covers all the students without regard to their religion. Making religious culture lessons mandatory does not raise a problem if the content of the lessons contains general knowledge about religions as described above. However, since the lessons were put into practice as instruction of confessional and ritual foundations of Islamic religion, the exemption mechanisms were developed gradually to address the concerns of the minority parents. Therefore, it is agreed with Kemal Gözler that introducing exemptions to the non-Muslim students is unconstitutional.89 The problem with this teaching is not that it is given to the non-Muslim students; rather it lies in the fact that the content of the classes does not qualify as general education in religions as understood by Article 24(4). Thus, the detrimental result of one unconstitutional arrangement was attempted to be remedied by another unconstitutional means.

7.2.2.2

“Other Religious Education and Instruction”

As mentioned above, the third sentence of Article 24(4) provides for “other religious education.” It implies that the necessity may arise for religious education other than compulsory religion classes. Since the content of the religious culture lessons should be limited to a general cultural education, evidently, it cannot teach the students about the confession and worship rules of their religions. Therefore, such kind of lessons cannot meet the religious needs of parents and quite naturally, they may wish to educate their children in this field, too.90 89 90

Gözler (2010). See Erdoğan (2010).

7.2

Compulsory Religious Education in Light of the ECtHR’s Decisions

201

According to the first sentence of Article 24(4), “[r]eligious and moral education and instruction shall be conducted under state supervision and control.” This means that optional religious education is also conducted under state control. While it is exactly provided that compulsory religious education is organized in primary and secondary state schools, there is no constitutional restriction concerning the institutions where the optional religious education can be taught. The only criterion is the subordination of religious education to state control and supervision. If this education is arranged in state schools, it is evident that state control and supervision is present. However, they can be taught also in private schools and courses. The Diyanet has been authorized to organize the optional religious education, namely the Koran courses, by the Law on Organization and Duties of the Presidency of Religious Affairs.91 According to Article 7(b)(1) of this Law, the Diyanet “can arrange the courses and open the Koran courses for those who wish to study the Koran, learn its meaning, memorize the Koran, and receive religious education.”92 It should be noted that this provision applies solely to the adherents of the Islamic religion, and in practice the Sunni branch. Currently, Turkish legislation does not provide for the opportunity for state-subsidized religious education for other religions.93

7.2.3

The Position of the ECtHR

In religious education cases in which applicants have invoked their rights both under Article 9 of the ECHR and under Article 2 of PI, the ECtHR has regularly focused on the “parental rights” as the lex specialis regulated by the latter, skipping to review religious freedom claims of either pupils or parents separately.94 In Saniewski v. Poland, the ECtHR held that the existence of religious education in school curricula is in line with Article 9 of the Convention, provided that it is taught on a voluntary basis or exemptions are allowed from the compulsory religious education.95 The European Court made its most important decision on this matter in Folgerø and others v. Norway. Examining the content of the disputed courses and available exemption mechanisms more closely, the ECtHR found Norway in breach of Article 2 of PI on the ground that the parents were refused full exemption from Diyanet İşleri Başkanlığı’nın Kuruluşu ve Görevleri Hakkında Kanun [Law on Organization and Duties of the Presidency of Religious Affairs], No. 633, 22 June 1965, Official Gazette, 02 July 1965, No. 12038, Art. 7(b)(1). 92 Diyanet İşleri Başkanlığı’nın Kuruluşu ve Görevleri Hakkında Kanun [Law on Organization and Duties of the Presidency of Religious Affairs], Art. 7(b)(1), (author’s own translation). 93 See Demir (2011), p. 154. 94 See Temperman (2019), pp. 182–183; for relevant cases, see Folgerø and others v Norway App no 15472/02 (ECtHR, 29 June 2007), para. 54; Lautsi and Others v Italy App no 30814/06 (ECtHR, 18 March 2011), para. 59. 95 Saniewski v Poland App no 40319/98 (ECtHR, 26 June 2001), “The Law”. 91

202

7

The ECtHR and Turkish Secularism

compulsory religion courses which were not organized in an “objective, critical and pluralistic manner” respecting the philosophical and religious views of the parents.96 Thus, according to the standard laid out by the Strasbourg Court, the states are not prevented by the Convention from giving preference to teaching of certain religion in schools as long as appropriate options for exemption from the relevant instruction are presented.

7.2.3.1 7.2.3.1.1

The Case of Hasan and Eylem Zengin The Facts and the Decision

Following its approach in Folgerø, the ECtHR carefully examined the content of Turkey’s compulsory religion classes and the exemption system in the case of Hasan and Eylem Zengin.97 The Zengin case was brought by a member of the Alevi faith, Hasan Zengin, who demanded exemption of his daughter, a student at the secondary school, from compulsory religion courses. The Alevi faith is a particular belief system within Islam differing in many aspects from the Sunni understanding of the Muslim religion. Alevis recognize the Prophecy of Muhammad and accept the Koran as the holy message. Following Sufi interpretation of the Koran this faith trusts in the “divine essence” of humans and makes no distinction between human beings and the divine essence. In contrast to Sunni-Islam followers, Alevi women and men perform their worship practices together in the cemevis (gathering houses).98 Alevism is influenced by particular pre-Islamic religious beliefs and it refuses sharia. Its worship rules differ considerably from those of the Sunni branch of Islam as it rejects daily prayers, fasting and pilgrimage, and instead involves religious songs and dances.99 According to the USCIRF’s 2019 Annual Report, the Alevi population of Turkey is estimated at 10 million to 25 million.100 The applicant, Hasan Zengin, claimed before the administrative authorities and courts that as a parent he was entitled to choose a form of education to be received by his child, and that the compulsory religious education was contrary to the principle of secularism.101 His request for exemption was dismissed by the Administrative Court on the ground that religious culture and ethics lessons were mandatory according to Article 24 of the Constitution and Article 12 of the Law on National Education.102 After exhausting the domestic remedies, the applicant brought the case before the ECtHR.

96

Folgerø and others v Norway, para. 102. Hasan and Eylem Zengin v Turkey App no 1448/04 (ECtHR, 9 October 2007). 98 İzzettin Doğan and Others v Turkey [GC], App no 62649/10 (ECtHR, 26 April 2016), para. 35. 99 Hasan and Eylem Zengin v. Turkey, paras. 8–9. 100 The U.S. Commission on International Religious Freedom (USCIRF) (2019), p. 217. 101 Hasan and Eylem Zengin v. Turkey, para. 10. 102 Hasan and Eylem Zengin v. Turkey, para. 13. 97

7.2

Compulsory Religious Education in Light of the ECtHR’s Decisions

203

Based on the primary school syllabus in force at the time103 and the textbooks approved by the MNE, applicants argued that the religion lessons were not organized in an objective, critical, and pluralist way. According to applicants, the syllabus “which was taught entirely from a religious perspective and which praised the Sunni interpretation of the Islamic faith and tradition, together with textbooks describing the traditional rites of Sunni Islam” openly showed that these classes were far from objective.104 Moreover, they alleged that the syllabus which was formed based on the Sunni interpretation of Islam denied the existence of their faith, Alevism. It was claimed that the syllabus, all the information given based on the syllabus and textbooks demonstrated that this instruction was organized for the purpose of reinforcing the pupils’ Islamic culture. The teaching in ethics was only used as a method of disguising the true objective of these courses. The government began to defend its position by referring to the general principles applied in the composition of the lessons. According to the government, the main goal of the courses was to promote “understanding, tolerance, and respect among pupils from differing backgrounds and to develop respect and understanding of each individual’s identity, of Turkey’s national history and values, and of other religions and philosophies of life”.105 In this regard, the government stated that on the basis of the state’s regulatory power, education in religion and ethics was provided under the state’s control with the intention of precluding abuse of religion. The rationale behind the compulsory character of the course was that the state was required to safeguard children “from myths and erroneous information, which gave rise to fanaticism.”106 According to the government, the syllabus, written by the MNE and not by the religious forces, satisfied the principle of secularism conforming to the Constitution and laws, and absolutely excluded denominational instruction.107 In this regard, the government negated the claims of applicants that religion courses were organized based on the Sunni interpretation of Islam and served as an instruction of the doctrine and rituals of a certain religion, and insisted that it rather provided general knowledge about different religions. Moreover, it held that the knowledge on Alevism, which seemed to be suited more to the field of philosophy, required more comprehensive instruction, and therefore this subject was taught in the ninth year (the first class of upper secondary school).108 Further, the government claimed that teaching children about Islam could not be seen as a violation of the Convention in itself,

103 The syllabus for religious culture and ethics lessons in primary and secondary schools was adopted by the MNE Decision of 19 September 2000, No. 373 and was published in Tebliğler Dergisi [The Journal of Announcements], October 2000, No. 2517. This syllabus was replaced by a new one which was put into practice for the study year of 2005–2006. 104 Hasan and Eylem Zengin v. Turkey, para. 36. 105 Hasan and Eylem Zengin v. Turkey, para. 40. 106 Hasan and Eylem Zengin v. Turkey, para. 44. 107 Hasan and Eylem Zengin v. Turkey, para. 41. 108 Hasan and Eylem Zengin v. Turkey, para. 43.

204

7

The ECtHR and Turkish Secularism

provided that the courses were conducted in an objective, pluralist and neutral way. It was argued that in contemporary Turkish society, there were legitimate grounds for giving more place to the teaching of Muslim faith than other philosophies and religions. Considering the secular state order of Turkey, “schools were therefore the most appropriate institution for transmitting such knowledge.”109 One of the most attractive points in the government’s defense is that it emphasizes Turkey’s specific conditions in order to be granted a broader margin of appreciation.110 According to the government, the aim of protecting children from religious fanaticism can be achieved only by teaching them true Islam in the schools of a secular state. Such an atmosphere also creates preconditions for developing tolerance and dialog among the children from different religions or branches. The lessons constructed with these purposes do not involve instruction of the doctrine and rituals of a certain religion. However, immediately after this argument, the government held that the fact that priority was given to the teaching of Islam could not amount to a breach of the Convention, as long as the lessons met the criteria of objectivity, pluralism, and criticality. It can be seen that the government’s arguments are contradictory. The ECtHR began its assessment by reiterating the general principles on the subject. Then, it reviewed the syllabus of the relevant class and the content of the textbooks taught in grades 4, 5, 6, 7, 8, and 9. The ECtHR held that the purpose and principles laid down in the syllabus were in compliance with Article 2 of PI. In this regard, referring to the Turkish Constitution, the ECtHR underlined that the principle of secularism “prevents the State from manifesting a preference for a particular religion or belief, thereby guiding the State in its role of impartial arbiter, and necessarily entails freedom of religion and conscience.”111 At this point, the European Court especially noted the importance of providing religious education in schools as a proper way of fighting fanaticism and endorsed responsibility of the administrative courts in supervising compatibility of the syllabus with the principle of secularism, both in the matter of its formulation and application. Despite these features, the ECtHR found that the syllabus and all the textbooks prioritized the knowledge of the Muslim faith over other religions and philosophies.112 The syllabus placed importance on the worship and demonstration of feelings towards Allah from the perspective of development of societal solidarity, explained the rationality and universality of Islam, and provided knowledge of the Koran and the behavior of the prophet Mohammed. The syllabus also contained the topics on the basic features of Muslim faith, including “pilgrimage and sacrifice,” “belief in the other world,” and “angels and other invisible creatures.”113 Examining the textbooks, the ECtHR determined that they were not restricted to giving general knowledge about religions

109

Hasan and Eylem Zengin v. Turkey, para. 42. See Özenç (2011), p. 211. 111 Hasan and Eylem Zengin v. Turkey, para. 59. 112 Hasan and Eylem Zengin v. Turkey, para. 63. 113 Hasan and Eylem Zengin v. Turkey, para. 60. 110

7.2

Compulsory Religious Education in Light of the ECtHR’s Decisions

205

as argued by the government, but rather contained instruction on the fundamental principles and rituals of the Islamic religion such as “the profession of faith, the five daily prayers, Ramadan, pilgrimage . . . etc.”114 Besides, the students were required to memorize several surahs of the Koran, learn to perform the daily prayers, and take paper exams with the aim of evaluation.115 However, the privileged place of Islam in the curriculum alone was not viewed by the ECtHR as a violation of the requirements of objectivity and pluralism, because although Turkey was a secular state, Islam was the dominant religion in this society.116 While the European Court found that the teaching of Islam held a major part in the syllabus, it considered that this fell within the discretion of the member state. However, this did not remove the state’s responsibility of providing education in an “objective, critical and pluralist manner.” Therefore, the ECtHR continued to assess the character of the lessons in light of the established findings. The ECtHR maintained that as the Alevi faith obtains a particular level of “cogency, seriousness, cohesion and importance” it falls within the scope of religious conviction in the sense of the second sentence of Article 2 of PI. Thus, it diverges from the Sunni branch of Islam which is instructed in schools. The government held in this regard that the position of the branches of Islam or religious orders existing in the country was not taken into account in the religious culture courses. According to the Strasbourg Court, however, omitting the teaching of doctrinal or ritual particularities of Alevism, which was a faith of a large proportion of Turkish society, constituted a shortcoming. 117 The lack of information about the features of this faith in the syllabus of primary and secondary schools was not compensated for by the fact that the life and thoughts of two thinkers who played a key role in the origination of this belief were studied in the ninth grade. According to the ECtHR, when the member states provide religious instruction in schools excluding the options for exemption, parents can rightfully anticipate that the lessons will be organized objectively and pluralistically, and take into account their philosophical or religious beliefs.118 The European Court stressed the significance of pluralism in education for developing the critical mind of pupils towards religious issues within the framework of freedom of thought, conscience, and religion. Based on the established findings, the ECtHR concluded that the religious culture lessons failed to satisfy the demands of pluralism and objectivity, and more precisely, respect for the philosophical and religious beliefs of the parents, whose belief was not reflected in the syllabus. Nevertheless, in the view of the European Court, the fact that the content of religion classes reached the level of indoctrination did not imply that they were

114

Hasan and Eylem Zengin v. Turkey, para. 61. Hasan and Eylem Zengin v. Turkey, para. 62. 116 Hasan and Eylem Zengin v. Turkey, para. 63. 117 Hasan and Eylem Zengin v. Turkey, para. 67. 118 Hasan and Eylem Zengin v. Turkey, para. 68. 115

206

7

The ECtHR and Turkish Secularism

inconsistent with the Convention.119 Therefore, the ECtHR went on to find out whether there existed appropriate means, such as an exemption system, ensuring respect for the religious convictions of the parents. According to the ECtHR, if member states provide religious instruction in schools, it becomes necessary, as much as possible, to keep the pupils away from conditions involving a clash between the religious or philosophical beliefs of their parents and the religious education taught in school. In this connection, the ECtHR stressed that, although there were various approaches towards religious instruction in Europe, nearly all of the contracting states introduced at least one channel through which pupils can quit religion courses “by providing an exemption mechanism or the option of attending a lesson in a substitute subject, or making attendance at religious studies classes entirely optional.”120 Reviewing the exemption system, the ECtHR realized the discrepancy in the legal regime of the religious culture lessons; although Article 24 of the Constitution determined it as a compulsory subject, the children of the Christian or Jewish religions were granted exemptions by the decision of the Supreme Council for Education.121 As to the exemption procedure, the European Court held that the requirement of a declaration by the parents affirming their adherence to one of the concerned religions may be problematic under Article 9 of the ECHR. In this respect, the ECtHR also recalled the requirement of Article 24(3) of the Turkish Constitution stipulating that “no one shall be compelled . . . to reveal religious beliefs and convictions . . .”122 Moreover, concerning the introduction of the possibility of exemption exclusively for two groups of students, the European Court referred to the criticism made by the ECRI that “if this is indeed a course on the different religious cultures, there is no reason to make it compulsory for Muslim children alone. Conversely, if the course is essentially designed to teach the Muslim religion, it is a course on a specific religion and should not be compulsory, in order to preserve children’s and their parents’ religious freedoms.”123 The ECtHR rejected the state’s argument that “this possibility for exemption may be extended to other convictions if such a request is submitted.”124 It held that without regard to the extent of this exemption, the condition of a declaration by the parents of their religious or philosophical convictions does not fulfill the requirement of respect for their freedom of belief. Moreover, due to the lack of any written regulation, the education officials are always free to reject such petitions, as in the case of the applicant. Consequently, a violation of Article 2 of PI was established.

119

See Özenç (2011), p. 212. Hasan and Eylem Zengin v. Turkey, para. 71. 121 Hasan and Eylem Zengin v. Turkey, para. 72. 122 Hasan and Eylem Zengin v. Turkey, para. 73. 123 European Commission against Racism and Intolerance (ECRI) (2005), para. 68. 124 Hasan and Eylem Zengin v. Turkey, para. 75. 120

7.2

Compulsory Religious Education in Light of the ECtHR’s Decisions

7.2.3.1.2

207

Analysis of the Decision Regarding Hasan and Eylem Zengin

After carefully examining the textbooks, the ECtHR has made an accurate determination concerning the nature of the concerned lessons. However, although the denominational character of the lessons was established, the European Court stated that giving a greater privilege to the teaching of Islam is within the scope of discretion of the member state and does not in itself amount to the lack of objectivity and pluralism. Therefore, it continued its assessment seeking to identify whether the lessons were organized in an objective, critical and pluralist manner. It seems that the ECtHR fails to draw a categorical distinction between the education about religions in general and the teaching of a certain religion. In the Strasbourg Court’s view, the religion lessons can be denominational, and yet at the same time, objective, critical, and pluralist. Unlike the ECtHR, the HRC has drawn a categorical distinction between “the general history of religions and ethics” taught “in a neutral and objective way” and “instruction in a particular religion.”125 It declared that the latter was in breach of Article 18 of the ICCPR protecting freedom of thought, conscience, and religion “unless provision is made for nondiscriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians.”126 The Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools also distinguish between “the teachings of religions” and “teaching about religions” referring to the abovementioned General Comment 22 of the HRC.127 Moreover, it adds that “[w]here programs for teaching about religions and beliefs are well-designed, and are clearly not aimed at supporting any particular religious or non-religious understanding of the world, the need for opt-outs may be minimal or non-existent.”128 A similar differentiation has been made also in the PACE Recommendation 1720 (2005) which will be highlighted below. It is argued that the underdeveloped use of the terminology by the Strasbourg Court led it to reach controversial conclusions. Thus, according to the understanding of the ECtHR, if the Alevi pupils were taught not only the Sunni perspective on Islam, but also Alevism, these lessons would respond to the requirements of objectivity and pluralism, and thus, would be compatible with the Convention.129 The ECtHR noted that the failure to consider religious diversity in the design of the lessons, and particularly the lack of “teaching on the confessional or ritual specificities of the Alevi faith” constituted a serious shortcoming in this instruction.130 This 125

UN HRC, CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), CCPR/C/21/Rev.1/Add.4, 30 July 1993, para. 6 [hereafter CCPR General Comment No. 22]. 126 CCPR General Comment No. 22, para. 6; see also Erkki Hartikainen v Finland Communication No. 40/1978, U.N. Doc. CCPR/C/OP/1 at 74 (1984). 127 ODIHR Advisory Council of Experts on Freedom of Religion or Belief (2007), p. 69 [hereafter Toledo Guiding Principles]. 128 ODIHR Advisory Council of Experts on Freedom of Religion or Belief (2007), p. 70. 129 Gözler (2010). 130 Hasan and Eylem Zengin v. Turkey, para. 67.

208

7

The ECtHR and Turkish Secularism

conclusion reached by the ECtHR is problematic from a technical perspective. By holding that the content of the concerned lesson should be diversified according to the religious beliefs of the students, the European Court in practice requires it to provide confessional teaching not only to the applicants, as Alevis but also to the members of other religious convictions. According to Kemal Gözler, “the ECtHR says that the knowledge, which in our view is to be given in the optional lessons, should be given in the compulsory religious culture lessons. Thus, the school directorate should diversify the content of the compulsory religion lessons taking the religious convictions of the pupils into account. However, in practice, it is impossible to implement it.”131 Besides, it is also debatable from the point of the principle of secularism which will be discussed below. Legal scholar Berke Özenç also emphasizes that it cannot be expected that the lesson of which the greatest part is dedicated to the teaching of one religion can also meet the criteria of “objectivity, criticism, and pluralism.”132 Nevertheless, according to the ECtHR, giving priority to the teaching of Islam was not in itself a departure from the criteria of objectivity and pluralism (indoctrination); it was rather a lack of Alevism in the syllabus which constituted a departure from these principles. What this reasoning misses is that the weighty place of Islam in the syllabus was not only a matter of quantity; the problem lay rather in the denominational instruction of Islam which influenced the minds of pupils without a doubt. Therefore, compulsory sitting in these lessons should have been legitimately considered indoctrination without regard to its further content. As it seems, the failure to clearly determine the definition of “indoctrination” and the key criteria of “objectivity, pluralism, and criticality” directly influences the validity of the conclusions reached by the Strasbourg Court. The contradiction in the use of terminology by the ECtHR appears also in its emphasis on critical approach to religion courses. On the one hand, the ECtHR emphasized the importance of developing pupils’ critical minds concerning religion and religious matters.133 On the other hand, it had already been established that the religious culture and ethics lessons provided confessional religious teaching of Sunni Islam. Therefore, it is not realistic to expect that a lesson that teaches a certain religion on a confessional basis can also involve a critical approach towards it. More interestingly, when the European Court talks about the importance of criticism, it refers to the PACE Recommendation 1720 (2005) which confirms “the contemporary importance of religious education on a non-confessional basis.”134 In this regard, it provides that: Knowledge of religions is an integral part of knowledge of the history of mankind and civilisations. It is altogether distinct from belief in a specific religion and its observance.

131

Gözler (2010). Özenç (2011) p. 212. 133 Hasan and Eylem Zengin v. Turkey, paras. 52 and 69. 134 Leigh (2012), p. 198. 132

7.2

Compulsory Religious Education in Light of the ECtHR’s Decisions

209

Even countries where one religion predominates should teach about the origins of all religions rather than favour a single one or encourage proselytising (emphasis added).135

The Recommendation then clearly determines criteria for teaching about religions in schools, noting, among others, that religious education in schools “must not overstep the borderline between the realms of culture and worship, even where a country with a state religion is concerned. It is not a matter of instilling a faith but of making young people understand why religions are sources of faith for millions.”136 Although it is evident from the Recommendation that the criteria of objectivity, pluralism, and criticality are applicable only to the non-confessional religion classes, the ECtHR continued to apply these principles to the religious culture and ethics classes after determining that it was denominationally oriented. Further, it becomes clear that when the ECtHR talks about pluralism in the context of the organization of religion classes excluding exemption arrangements, it implies consideration of the religious beliefs of all parents.137 If this is applied to the impugned lessons, it supposes that the doctrinal and practical rules of various religions, and the introduction of philosophical convictions should be handled within the framework of one compulsory lesson. In contrast, the HRC has clearly established in its General Comment 22 that in the case of instruction of a particular religion, the wishes of parents can be accommodated either by nondiscriminatory exemptions or other alternatives.138

7.2.3.1.3

The Effects of the Zengin Judgment

The Zengin decision has important consequences for Turkey from the perspective of implementation measures. In the conclusion part, the European Court clearly ordered that the Turkish educational system and national legal framework should be brought into compliance with Article 2 of PI. Although the Zengin decision does not give explicit instruction concerning the concrete way of ending similar violations, general conclusions can be inferred from the whole of the judgment. It can be concluded from the judgment that the violation can be ended in three ways: 1. religious culture and ethics lessons should be entirely optional; 2. teaching of Alevism and its rituals should be included in the lessons in order to respond to the principles of “objectivity, pluralism, and criticality”; 3. the appropriate exemption mechanisms ensuring respect for the beliefs of parents should be developed and the application of these mechanisms should not be conditioned on the declaration of beliefs.

135

PACE (2005), para. 8 [hereafter PACE Recommendation 1720 (2005)]. PACE Recommendation 1720 (2005), para. 14.4. 137 Hasan and Eylem Zengin v. Turkey, paras. 68–70. 138 CCPR General Comment No. 22, para. 6. 136

210

7

The ECtHR and Turkish Secularism

Items 1 and 3 overlap with the conclusions drawn up by the Monitoring Report on the implementation of the Zengin decision.139 As to a second way of solution inferred from the decision, the Report presumes that “the religious culture and ethics lessons will leave the mode of teaching a particular religion in a one-sided manner and will be transformed into culture lessons both in theory and practice.”140 Although this solution is compatible both with the Convention and the Turkish Constitution, it is observed that the ECtHR has not exactly proposed this version. Rather, the European Court talked about the addition of instruction on the confessional or ritual particularities of Alevism as a way of organizing the lessons in an objective, critical, and pluralist manner. Focusing on the human rights dimension of the issue, the general measures suggested by the ECtHR are not unquestionable from the point of imperatives of the Turkish Constitution, namely, the principle of secularism and the mandatory status of religious education. In other words, these measures should be still scrutinized and tailored to the constitutional framework of Turkey in line with the principle of secularism. In this regard, after reviewing the effects of the Zengin decision on the national level, the recommendations concerning the organization of compulsory religious education within a secular system will be given in the conclusion. Following the Zengin judgment, the Council of State changed its jurisprudence to an important degree. In its judgment of 28 December 2007, the Council of State held that the compulsory education envisaged by Article 24 of the Constitution means “instruction in religious culture and morals” and not “instruction of religion.”141 The Council of State referred to the principles established by the Constitutional Court regarding the scope of the religious culture lessons in an indirectly related case in 1998.142 Thus, in light of those principles, the Council of State for the first time focused on the question of whether the lessons constituted “instruction in religious culture and morals” or “instruction of religion.” Based on the findings and conclusions of the Zengin decision about the content of the lessons, the Council of State concluded that the religious culture lessons were not organized in a pluralist, objective, and rational manner. According to the Council of State, since religious culture lessons are compulsory as a requirement of the Constitution, its syllabus should be designed in line with the purpose sought by the Constitution. In this connection, its content should be objective and pluralist, the religion of individuals should not be used as a criterion for distinction and inequality, and in the provision of these lessons the state should stay neutral vis-à-vis religions by treating all religious beliefs equally. Article 24 of the Constitution obligates the pupils to participate in religious culture and ethics classes only if these conditions are fulfilled. The Council of State concluded that the content of the subject in religious culture and ethics courses did not reflect its own title, but rather amounted to

139

See Altıparmak (2013), pp. 3–4. Altıparmak (2013), p. 3. 141 Council of State (8. Chamber), 28 December 2007, E. 2006/4107, K. 2007/7481. 142 Turkish Constitutional Court decision, 16 September 1998, E. 1997/62, K. 1998/52. 140

7.2

Compulsory Religious Education in Light of the ECtHR’s Decisions

211

religious instruction. However, according to the third sentence of Article 24(4) of the Constitution, religious instruction was subject to the individual’s own wish and the request of legal representatives of minors. Therefore, keeping the lessons in question as compulsory with their actual content was considered illegitimate. This argumentation was repeated in its decisions made in 2008 and 2009.143 It is considered that this formulation of the Council of State offers an optimum solution both to treat the variable between the Convention and the Constitution and respond to the requirement of the principle of secularism. According to the jurisprudence of the ECtHR, the existence of denominational religious education in the school curriculum on a compulsory basis does not violate the Convention provided that appropriate exemption possibilities are offered. This standard determined by the ECtHR in Folgerø and later confirmed in Zengin can match with the constitutional framework of the countries such as Norway, which officially is not a secular state; the Evangelical-Lutheran religion lost its state-religion status only in 2012, while it preserved its special position as a “national” religion.144 The clear conclusion drawn from the Council of State’s decisions of 2007, 2008, and 2009 is that: although the option of unconditional exemption from the obligatory religion classes satisfies the demands of the Convention, it is still contrary to the Turkish Constitution.145 The lessons containing instruction of a certain religion cannot be mandatory no matter whether the appropriate exemption mechanisms are provided. According to the post-Zengin jurisprudence of the Council of State, if as a result of content analysis, it is revealed that the lessons amount to the instruction of a particular religion, participation in those lessons will be entirely optional under the third sentence of Article 24(4) of the Constitution.146 It should be held that the second solution, namely, the inclusion of doctrinal and ritual particularities of Alevism cannot satisfy the requirements of Article 24(4) of the Constitution. First, it would be against the principle of secularism and the requirement of Article 24(4) to give confessional religious education in a mandatory way,147 be it Sunni-Islam or Alevism. Second, practically, it would be impossible to diversify the content of the compulsory religion classes considering the religious and sectarian affiliation of each student, bearing in mind that religious pluralism in Turkey is not limited to Alevism. As to Item 1, it has been already mentioned above that optional religious education can be organized both in state schools, and other schools and courses 143 Council of State (8. Chamber), 29 February 2008, E. 2007/679, K. 2008/1461; Council of State (8. Chamber), 15 May 2009, E. 2007/8365, K. 2009/3238. 144 See (2012) Norway Goes Secular, Removes Lutheran Church as State Religion. In: Nationalpost. https://nationalpost.com/holy-post/norway-goes-secular-removes-lutheran-churchas-state-religion; see also Wood (2017) Norway’s Separation of Church and State: A Work in Progress. In: National Secular Society. https://www.secularism.org.uk/opinion/2017/01/norwaysseparation-of-church-and-state-a-work-in-progress. 145 See Özenç (2011), p. 218. 146 See Özenç (2011), p. 218. 147 See Gözler (2009)..

212

7

The ECtHR and Turkish Secularism

according to the first sentence of Article 24(4) of the Constitution. There is no constitutional limitation regarding the place of optional religious education. However, under the principle of secularism, the state is restricted to privilege certain religions in the education system and is obliged to treat all religions equally. This requires the state to make optional religious education available for all religions which is undoubtedly impossible for technical and practical reasons. In fact, the introduction of the optional religion classes on “the Koran and the life of our Prophet Muhammed” in primary and secondary schools in 2012 has already aggravated the existing problem.148 The syllabus of the religious culture and ethics classes is prepared by the Religious Education Department of the MNE (hereafter, the Department). In the information note provided by the government to the Council of Ministers concerning the implementation of the Zengin decision, it was expressed that a specialized commission was established by the MNE, and the Alevi workshops were organized.149 As a result of these workshops, the opinions and requests of the Alevi associations and representatives were recorded and considered in the revision of the textbooks prepared for the 2011–2012 academic year.150 It was stated that more place was given to the themes of Alevism-Bektasism in the newly established syllabus. From the government’s official position, it becomes clear that it opted for the second general measure implied by the Zengin decision, namely giving sufficient place to the teaching of Alevism. However, the problem of compulsory religious education does not concern only Alevi students, but a wide range of Bahai, Yezidi, atheist, as well as Sunni Muslim students, and therefore, such an approach is flawed from the view of the principle of secularism as already mentioned above. Thus, it can be once again argued that the failure of the ECtHR in drawing a categorical distinction between confessional and non-confessional religious education triggers the state to take an erroneous approach in reviewing the disputed lessons. In its statement given in 2012, the Minister of National Education emphasized that the concerning lesson was a constitutional requirement, and its content would be renewed as a lesson teaching societal values.151 According to the Minister, since it was a constitutional requirement, it would be taught in all schools excluding the minority schools. He further stated that both the ECtHR judgments and the domestic judicial decisions confirmed the necessity of these classes upon the condition that they were organized in an objective and equal way. The expression that they will not See Şirin et al. (2016), p. 46. Altıparmak (2013), pp. 8–9. 150 Republic of Turkey, Ministry of National Education - Strategy Development Department, Letter No. B.08.0.SGB.0.20.02.00/337 of 17 January 2012 on the Parliamentary Question to the Presidency of the Grand National Assembly of Turkey. http://www.aihmiz.org.tr/aktarimlar/ dosyalar/1349594746.pdf. 151 (2018) Zorunlu din dersi anayasal gereklilik [Compulsory religion class is a constitutional requirement]. In: CNN Türk. https://www.cnnturk.com/2012/turkiye/12/22/zorunlu.din.dersi. anayasal.gereklilik/689702.0/index.html. 148 149

7.2

Compulsory Religious Education in Light of the ECtHR’s Decisions

213

be taught in minority schools once again shows that the contradiction underlined in the Zengin judgment has not been handled. In 2010, the Council of State suddenly departed from its new approach. Solely based on an expert report, the Council of State ruled that following the modifications made to the syllabus of the 2007–2008 study year, the concerning instruction had already gained the features of the religious culture and ethics lesson which was compulsory under Article 24 of the Constitution.152 It should be noted here that later the ECtHR ruled Mansur Yalçın judgment on this same case. The Council of State held the same view in its judgments of 2011 and 2012 and refused the requests for exemption.153 This approach of the Council of State has been rightly criticized by scholars for not making appropriate legal scrutiny of the textbooks and binding itself with an expert report.154 It remains to be seen if the Council of State will reanimate its post-Zengin approach following the ECtHR’s Mansur Yalçın judgment. Moreover, in 2012, Article 25 of the Law on National Education was changed introducing optional courses on “the Koran and the life of our Prophet Muhammed” in secondary and high schools. The legitimacy of this amendment has been already discussed in Chap. 4 and it was concluded that it infringes on the principle of secular education, particularly, the state’s duty to provide equal opportunities to students without regard to their religion. Thus, the organization of the new optional lessons reveals the institutional problem concerning the state’s neutrality in the introduction of the religious education in Turkey. It is concluded that religious education in Turkey has been organized completely towards the instruction of one particular religious belief.

7.2.3.2

The Case of Mansur Yalçın

After the Zengin decision, the government changed the curriculum of the classes in religious culture and ethics twice. However, the complaints concerning the partiality of the lessons continued155 and came before the ECtHR more time. The ECtHR again handed down a similar decision in the case of Mansur Yalçın and others v. Turkey.156 On 22 June 2005, the applicants Mansur Yalçın and others requested the MNE to include information about Alevism in the syllabus of religious culture and ethics 152

Council of State (8. Chamber), 13 July 2010, E. 2009/10610, K. 2010/2413. Council of State (8. Chamber), 29 November 2011, E. 2011/5904, K. 2011/6141; Council of State (8. Chamber), 23 May 2012, E. 2012/2599, K. 2012/3401; Council of State (8. Chamber), 8 June 2012, E. 2010/8381, K. 2012/4640. 154 See Çınar (2013), p. 236; Altıparmak (2013), p. 15. 155 See (2014) Open Letter to Prime Minister Ahmet Davutoğlu from the Norwegian Helsinki Committee / Freedom of Belief Initiative. https://inancozgurlugugirisimi.org/en/open-letter-toprime-minister-ahmet-davutoglu-from-the-norwegian-helsinki-committee-freedom-of-belief-initia tive/. 156 Mansur Yalçın and others v Turkey App no 21163/11 (ECtHR, 16 September 2014). 153

214

7

The ECtHR and Turkish Secularism

lessons by making consultations with Alevi religious leaders.157 They also demanded the setting up of mandatory training for instructors of these lessons and the installation of a supervisory and monitoring system. Their request was rejected by the Department. While the government repeated its defense arguments made in the Zengin case, it focused also on the changes that had been made to the syllabus since 2005. Referring to the incorporation of new topics such as “the principles of the Alevi faith, Alevi worship, mystical philosophy, understanding of morality and prayers, as well as Alevi rites” into the syllabus, the government argued that the content of the lessons had been diversified and transformed into a supra-denominational teaching.158 Moreover, the government stated that the program for the optional religion lessons had been also updated seeking to expand the knowledge on Alevism. The ECtHR took the same approach and relied on two issues: the weight given to Alevism as an independent branch of Islam following the syllabus changes and the existence of the appropriate means for guaranteeing respect for parental rights. The ECtHR held that some modifications had been made to the program of compulsory religious education with a view to providing knowledge on the different faiths present in the country such as Alevism.159 Nevertheless, the revisions had not substantively transformed the main parts of the program, which were engaged principally in Islam as adhered to by the majority of people in Turkey. Therefore, the European Court confirmed that as in the old syllabus, the Alevism in the new syllabus was also handled “from a Sunni perspective, as a cultural and traditional concept rather than a branch of Islam in its own right.”160 The Alevi pupils were still under the requirement of learning surahs from the Koran and daily prayers which made them subject to experiencing conflict with the convictions transmitted to them by their families. Thus, the ECtHR concluded that the religious culture classes still lacked the doctrinal and practical specificities of the Alevi faith despite the program changes made in the 2011–2012 teaching year. As regards the appropriate exemption mechanism, the European Court recalled its considerations in the Zengin case, and this time urged the government to set up the necessary instruments without delay. 161 Thus, it was established that Article 2 of PI was infringed by the arrangements for compulsory religious education. This judgment of the ECtHR immediately found reflection in the local judicial decisions. In its judgment of 11 November 2014, with reference to the Zengin and Yalçın decisions, the Council of State approved again that the content of religious culture classes amounted to the instruction of a particular religion and declared the

157

Mansur Yalçın and others v Turkey, para. 7. Mansur Yalçın and others v Turkey, para. 55. 159 Mansur Yalçın and others v Turkey, para. 68. 160 Mansur Yalçın and others v Turkey, para. 68. 161 Mansur Yalçın and others v Turkey, para. 84. 158

7.2

Compulsory Religious Education in Light of the ECtHR’s Decisions

215

refusal of exemption requests to be illegitimate.162 The local administrative courts followed this approach upholding the requests of parents for exemptions.163

7.2.3.3

The Reactions to the ECtHR Judgments in the Turkish Legal Literature

Almost all Turkish scholars interested in the topic of compulsory religious education approved the respective judgments of the ECtHR.164 However, some criticisms have been made concerning them and there is a divergence of opinions about the methods of their implementation. The opinion of Kemal Gözler about the Zengin judgment has been already shared above and therefore, it will not be repeated here. Another criticism concerning the relevant judgments has been stated in the Union of Turkish Bars Associations Report on the Freedom of Religion and Conscience. The report approves the judgments in general; however, it remarks that the freedom of religion of the child has not been sufficiently elaborated by them.165 This is a rightful criticism considering that Turkey is a signatory to the Convention on the Rights of the Child which stipulates the freedom of religion of children.166 The national legal debate also centers around the way of implementation of the decisions. It has been proposed to design the content of the lessons pluralistically or to make them entirely optional.167 According to Derya Kap, considering the will of the government in maintaining the lessons’ compulsory nature, the most realistic solution is to reshape the lesson content in line with the principles laid down by the ECtHR, namely, objectivity, critical approach, and pluralism.168 However, as discussed above, these criteria cannot be fulfilled as long as the denominational character of the lessons is maintained. According to legal scholars Ergun Özbudun and Zafer Gören, since there is a great potential for the turning of the religious 162

Council of State (8. Chamber), 11 November 2014, E. 2014/8515, K. 2014/8417. Istanbul 9. Administrative Court, 26 October 2017, E. 2016/95, K. 2016/1521; Istanbul 2. Administrative Court, 20 April 2017, E. 2016/1587, K. 2017/974; Istanbul 4. Administrative Court, 31 May 2017, E. 2017/57, K. 2017/1233; Antalya 4. Administrative Court, 18 November 2016, E. 2015/804, K. 2016/1133; Konya 3. Administrative Court, 20 June 2017, E. 2017/210, K. 2017/622; Antalya 3. Administrative Court, 12 July 2017, E. 2016/1434, K. 2017/1004; see also (2016) Mahkemeden flaş zorunlu din dersi kararı [Flash decision from the Court about compulsory religion class]. In: Hürriyet. https://www.hurriyet.com.tr/gundem/mahkemeden-flas-zorunlu-dindersi-karari-40070601. 164 See Akbulut and Usal (2008); Özenç (2011); Gözler (2010); Altıparmak (2013); Sağlam (2013), pp. 325–326; Doğru and Nalbant (2013), p. 738; Çınar (2014), pp. 185–207; Özbudun (2014), p. 81; Şirin et al. (2016), p. 35; Tanör and Yüzbaşıoğlu (2014), pp. 172–174; Kaboğlu (2016), p. 296. 165 Şirin et al. (2016), p. 43. 166 Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, Art. 14. 167 See Altıparmak (2013), p. 17; Şirin et al. (2016), p. 144. 168 Kap (2014), p. 61. 163

216

7

The ECtHR and Turkish Secularism

culture lessons into the propaganda of one religion in implementation, the relevant constitutional amendment should be made to clarify the situation.169 Legal scholar Tolga Şirin has argued that although the possibility for exemptions can be enabled through interpretation, it will not resolve the problem definitively. As known from the case of Grzelak v. Poland,170 the students who are exempted can still be subject to stigmatization in school or their further life stages. Therefore, he suggested that the elimination of the lessons’ obligatory status and return to the optional regime of the 1961 Constitution would remove the problem completely.171

7.2.3.4

Recommendations

The compulsory religious education should be brought in line with the principles embodied in the decisions of Zengin and Yalçın and with the state’s duty of neutrality. There is no need to remove the constitutional requirement for the religion classes as proposed by some experts.172 Rather, the implementation is to be correctly conformed to the requirements of Article 24(4) of the Constitution. In this regard, the lessons’ content should be cleared from Islamic instruction and restricted to impartially transmitting knowledge about the historical origin and development of the major religions. The primary purpose of these lessons should be to inform the students about different religions and allow them to recognize the multi-religious structure of the country in a peaceful atmosphere. Moreover, these lessons should not be included in the curriculum of the primary school before the eighth grade.173 Certainly, such neutral religion classes will not meet the needs of many parents who want to give their children education in a particular religion, and therefore the needs of such parents should be also satisfied.174 Providing confessional religious education in state schools will always involve concerns for the principle of secularism as it tasks the state with rendering a religious service. Teaching Islam in state schools will amount to the imposition of certain perceptions or interpretations on believers.175 Religious instruction, even provided “in line with the principle of secularism” and in a manner “supporting the national solidarity and integrity” as cited in the Constitution and other legislative texts results in the utilization of Islam for the needs of the state.176 The Koran courses provided under the auspices of the Diyanet carry the same concerns; moreover, they cover only the Sunni branch of

169

Özbudun (2014), p. 81; Gören (2015), p. 519. Grzelak v Poland App no 7710/02 (ECtHR, 15 June 2010). 171 Şirin (2016), p. 33. 172 See for example, Norwegian Helsinki Committee Freedom of Belief Initiative (2019), p. 38 [hereafter 2019 Report Pursuing Rights and Equality]. 173 Erdoğan and Yazıcı (2011), p. 20. 174 See Erdoğan (2010); see also Erdoğan and Yazıcı (2011), p. 20. 175 See Erdoğan (2010). 176 See Erdoğan (2010). 170

7.2

Compulsory Religious Education in Light of the ECtHR’s Decisions

217

Islam excluding other religions and other denominations within Islam. Based on these grounds, it is concluded that the private education institutions are the most appropriate venues for organizing the additional religious education. For that reason, the establishment of private institutions or courses providing religious education should be guaranteed on the condition that they will be subject to state control based on constitutional principles.177 Their activities should be supervised by the MNE to prevent any attempt at instilling hatred and intolerance among different religious and belief groups or engaging in other anti-constitutional activities.

7.2.3.5

Current Situation

The syllabus and textbooks for the religious culture lessons were updated at the outset of the 2017–2018 school year. The study, which investigates all the textbooks covering 4–12 years unit-by-unit, has demonstrated that the program remains problematic as it still involves the instruction of the main beliefs, prayers, and worship rules in Islam and cherishes the Sunni-Islam perspective.178 Other faiths such as Alevism are handled not on a confessional basis, but from the cultural aspect.179 According to the 2019 Report Pursuing Rights and Equality, the changes to the curriculum include the expanded space given to Alevism, Christianity, Judaism, and Eastern religions and incorporation of some other beliefs existing in Turkey such as the Bahai faith and Jehovah’s Witnesses.180 Moreover, the expressions such as “our religion,” “our prophet,” or “our sacred book, the Koran” have been removed. However, the fundamental problems, namely, the domination of the Sunni-Islam understanding and lack of appropriate exemption mechanisms, persist. Recently, the request of parents who were denied exemption due to failure in proving their adherence to Christianity or Judaism was upheld by the Konya Regional Administrative Court. The court ruled that the instruction of a certain religion cannot be compulsory in a secular state.181 Unfortunately, despite such decisions of the local courts and the ECtHR, the government does not change its attitude.182 Compulsory religious education has been turned into a systemic problem and continues to remain a heavy burden on the court system, administrative bodies, as well as on parents and children.

177

Erdoğan and Yazıcı (2011), p. 20. Demir (2018), pp. 54–63. 179 Demir (2018), pp. 60–61. 180 2019 Report Pursuing Rights and Equality, p. 38. 181 (2019) Zorunlu din dersi için kritik karar [Critical decision for the compulsory religion class]. In: Odatv4. https://odatv4.com/zorunlu-din-dersi-icin-kritik-karar-01021955.html. 182 See (2019) Zorunlu din dersinde aynı yalan: Müfredatımız çoğulcu [The same lie in the compulsory religion class: Our syllabus is pluralist]. In: soL. https://haber.sol.org.tr/toplum/ zorunlu-din-dersinde-ayni-yalan-mufredatimiz-cogulcu-270968. 178

218

7.3 7.3.1

7

The ECtHR and Turkish Secularism

The Case of İzzetin Doğan The Facts and the Decision

This section will explore the ECtHR’s Grand Chamber judgment of İzzettin Doğan and Others v. Turkey which strictly scrutinizes the state-religion relationships in Turkey that fail to meet the state’s duty of neutrality and has been found by the ECtHR as illegitimate in several earlier cases. It is worth noting that this case has been underdeveloped both in the national and international legal literature despite its high importance and long-term implications for the development of state-religion arrangements in Turkey. The case of Alevis was reviewed by the Grand Chamber of the ECtHR for the first time in İzzetin Doğan and others v Turkey. After examining the complaint brought by 203 Alevis, the Grand Chamber by 12 votes to five approved claims of applicants under Article 9, and also by 16 votes to one established a breach of Article 14 taken together with Article 9. The various problems of Alevis had been challenged before the ECtHR several times, in the abovementioned Zengin group of cases, in Sinan Işık v. Turkey (about the designation of religious affiliation on identity cards), and Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v Turkey (about the refusal to supply free electricity to the Alevi places of worship).183 It can be concluded that the legal initiatives brought by the Alevi foundations and citizens have allowed this community to gain some achievements in the dimensions of international law and domestic law. In this sense, it can be said that the legal situation of Alevism in Turkey has been influenced by the relevant Strasbourg jurisprudence. In the Sinan Işık v. Turkey case, the Strasbourg Court decided on the identification of religious affiliation on identity cards. In 2004, Alevi citizen Mr Sinan Isik requested the domestic courts to replace the word “Islam” with the word “Alevi” on his identity card. Izmir District Court refused his request referring to the opinion of Diyanet that the Alevi faith “constitutes an interpretation of Islam and not a religion as such, in accordance with the general principles laid down in this regard.”184 Until 2006 it was mandatory for the citizens’ religious affiliation to be identified on an identity card, and only after 2006 have they been allowed to ask that the box be left empty. The Court reaffirmed that the freedom of religion or belief also involved a negative dimension, namely, the right not to disclose one’s religious belief. Thus, the ECtHR found, by six votes to one, that Turkey violated Article 9 of the Convention. The Court maintained that the violation at issue had been caused not by the rejection to designate the applicant’s faith on his identity card, but by the mere fact that his identity card included a designation of faith, no matter if it was optional 183

Sinan Işık v Turkey App no 21924/05 (ECtHR, 2 February 2010); Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v Turkey App no 32093/10 (ECtHR, 2 December 2014). 184 Sinan Işık v Turkey, para. 9.

7.3

The Case of İzzetin Doğan

219

or mandatory. In this regard, the ECtHR concluded that “the removal of the religion box could constitute an appropriate form of redress to put an end to the breach it has found.”185 In the case of Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfi v. Turkey, the ECtHR reviewed the complaint of the Cumhuriyetçi Eǧitim ve Kültür Merkezi Vakfı (the Foundation for Republican Education and Culture—the Foundation), an Alevi foundation created under Turkish law in 1995. The case concerned the fact that although under Turkish law places of worship were exempted from paying electricity bills, the applicant foundation was refused to be granted this privilege as the cemevi was not recognized as a place of worship.186 It should be mentioned that, according to Provisional Article 16/3 of Law No. 6446 on Electricity Market, “the lighting expenses of the places of worship which are open to public worship and freely accessible are paid out of the appropriation to be set in the budget of the Presidency of Religious Affairs.”187 The only requirements sought for the purposes of Law on Electricity Market are that the places of worship must be “open to public worship” and “freely accessible.” On the other hand, the acquisition of the status of a place of worship is not regulated in Turkish law. According to Article 3 of the Regulation of the Council of Ministers, dated 18 February 1935, which implements the Law on the Prohibition of the Wearing of Certain Garments, “[p]laces of worship (mabedler) are closed areas created in accordance with the relevant procedure and designed in the case of each religion for the practice of religious worship.”188 As it seems, no particular procedure is provided by the regulation for acquisition of the status of a place of worship. Referring to Article 14 in conjunction with Article 9 of the Convention, the foundation contested that, while in Turkey the electricity expenses for places of worship were normally afforded by the Diyanet, it had been denied this privilege due to the reluctance to recognize the Alevi cemevis as places of worship. The Court found that the cemevis were, as other recognized places of worship, used for the purpose of worshipping and therefore, the applicant was in a situation comparable to other religious communities. In this regard, by reserving the privilege of exemption to recognized places of worship and depriving cemevis of the advantages of that status, the Turkish law presented religion-based unequal treatment.189 Therefore, the scheme of granting privileges in the electricity bill payments for the houses of worship under Turkish law gave rise to a discriminatory treatment on the basis of religion.190 Therefore, the Court unanimiously found a breach of Article

185

Sinan Işık v Turkey, para. 60. Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v Turkey, para. 33. 187 Law No. 6446 on Electricity Market, 14 March 2013, Official Gazette, 30 March 2013, No. 28603 (author’s own translation). 188 Cited in Aydin and Gurpinar (2022), p. 8. 189 Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v Turkey, para. 45. 190 Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v Turkey, para. 52. 186

220

7

The ECtHR and Turkish Secularism

14 taken in conjuntion with Article 9. The impact of these European Court cases on the legal situation of Alevism in Turkey will be described below in Part II. The Grand Chamber’s Doğan judgment embodies these abovementioned issues altogether and reveals the core of the Alevi problems. According to the former ECtHR judge, Rıza Türmen, the Doğan judgment identifies that the general cause of separate Alevi issues lies in the fact the government does not recognize Alevism as an autonomous faith and all other violations stem from this non-recognition.191 Another important aspect of this judgment is that it questions the services of the Diyanet and finds its current status as another source of the problem.192 The judgment is worth being analyzed more closely as it obliges the government to reshape the relationships between the state and the Alevi community. In 2005, 203 applicants filed a petition to the prime minister challenging the state’s discriminatory approach towards their faith and complaining that the Diyanet promotes exclusively one theological school of Islamic thinking and neglects all the other beliefs, as well as Alevism. In this regard, they demanded that: a. services connected with the practice of the Alevi faith constitute a public service, b. Alevi places of worship (cemevis) be granted the status of places of worship, c. Alevi religious leaders be recruited as civil servants, d. special provision be made in the budget for the practice of the Alevi faith.193

The applicants’ claims were rejected by the prime minister, the Ankara Administrative Court, and the Council of State consecutively. In 2010, they brought the case before the ECtHR arguing that the Turkish government was in breach of its obligations of impartiality and neutrality towards their faith regarding the issues mentioned above. Although not refuting any of the acts challenged by the applicants, the government insisted that it had acted consistently with the obligation of neutrality and impartiality. The government began to defend its position arguing that there was not a uniform agreement among Alevis concerning “the definition of resources, moral tenets, ceremonies and rules of that faith;” yet, it relied on the description made by the claimants themselves that “the Alevi faith was a Sufi and rational interpretation and practice of Islam.”194 As regards the place of Alevism within the Muslim religion, the government maintained that it “could not be regarded as a religion in its own right or as a branch of Islam, but should be considered as a ‘Sufi order.’”195 Concerning the claim of recognition of Alevi cemevis as places of worship, the government drew a distinction between the places of worship of a certain religion and the places where particular

191

(2016) Rıza Türmen’in Sunumu [Presentation of Rıza Türmen]. Conference on the ECtHR Judgment: Religious Freedoms in Turkey, Istanbul, 8 May 2016. https://tqsweb.s3.amazonaws. com/2018/05/25/13/12/18/60ffbdce-4ad6-4349-9b0f-6c2a324665d0/aihm-cemevi.pdf, pp. 17–18. 192 See Türmen (2016). 193 İzzettin Doğan, para. 10. 194 İzzettin Doğan, para. 79. 195 İzzettin Doğan, para. 88.

7.3

The Case of İzzetin Doğan

221

groups, like Sufi orders, belonging to that religion carry out “their mystical, academic, cultural, and other activities.”196 According to the government, the place of worship in Islam is the mosque which is common to all Muslims, while the Alevi cemevis are the places of rites and ceremonies belonging particularly to the adherents of the Sufi interpretation of Islam.197 Moreover, the government held that Law No. 677 of 30 November 1925 on the Closure of Dervish Monasteries and Tombs, the Abolition of the Office of Keeper of Tombs and the Abolition and Prohibition of Certain Titles banned “the use of certain religious titles, notably that of dede, and the designation of places of worship for the performance of the Sufi rituals associated with those titles.”198 Despite this legal prohibition, Alevis, among other religious groups, were allowed to gather freely and exercise their spiritual practices. Finally, the government claimed a broader margin of appreciation in designing the sensitive link between the state and religious groups. The historical context of the adoption of Law No. 677 has already been described in Chap. 3, under Section A (“Historical Background of Adoption of the Principle of Secularism in Turkey”). It should be recalled that Law No. 677 is secured by Article 174 of the Turkish Constitution as a Reform Law and cannot be rendered unconstitutional.

7.3.1.1

The ECtHR’s Assessment under Article 9 of the ECHR

In its evaluation, the Grand Chamber underlined the point that the government had rejected the claims of applicants based on its assessment of Alevi faith. Reducing the scope of Alevism to a simple Sufi order, the national authorities denied recognizing “the religious nature of the Alevi faith.”199 According to the Grand Chamber, this lack of recognition in practice leads to adverse consequences such as “denying that Alevi religious practices—namely the cem ceremony—constitute a form of religious worship” and “depriving Alevi meeting places (cemevis) and religious leaders

İzzettin Doğan, para. 80. İzzettin Doğan, paras. 80–81. 198 İzzettin Doğan, para. 84. Article 1 of Law no. 677 reads as follows: “Throughout the territories of the Turkish Republic, all tekkes and zaviyes (Dervish monasteries) established either as a foundation, or as the property of a sheikh or in any other way, shall be completely closed, subject to the owner’s right of possession. Those which are still being used as mosques or prayer rooms in accordance with the statutory procedure shall remain operational. In particular, the use of certain religious titles such as Seyhlik, Dervichlik, Muritlik, Dedelik, Seyitlik, Celebilik, Babalık . . . shall be prohibited. Throughout the territories of the Republic of Turkey, tombs belonging . . . to a Sufi order (tarika) or used for purposes of interest, and other tombs, shall be closed . . . Anyone who opens tekkes and zaviyes or tombs and begins carrying on these activities again, or anyone who provides religious premises, even temporarily, for Sufi practices and rituals, and who bears one of the above-mentioned titles or carries on the associated activities, shall be sentenced to a minimum term of imprisonment of three months and to a fine . . .” (cited in İzzettin Doğan, para. 52). 199 İzzettin Doğan, para. 92. 196 197

222

7

The ECtHR and Turkish Secularism

(dedes) of legal protection.”200 The European Court clearly stated, however, that recognition of the Alevi worship practices, places of worship and the position of its religious leaders is considered by Alevis as of vital importance to the survival and evolution of their faith. Thus, equating their faith to a religious order within the religion of Islam, rather similar to the Sufi movements, the national authorities in practice refused to recognize the autonomous, independent structure of Alevi faith. According to the ECtHR, “the right of a religious community to an autonomous existence is at the very heart of the guarantees in Article 9 of the Convention.”201 The right to an autonomous existence is also of the utmost importance to pluralism in a democratic society. In the view of the ECtHR, it affects “not only the organization of these communities as such but also the effective enjoyment of the right to freedom of religion by all their active members.”202 Therefore, the refusal of specific claims of Alevi applicants was found by the ECtHR to be “an interference with the applicants’ right to freedom of religion as guaranteed by Article 9 § 1 of the Convention.”203 The European Court continued to determine whether this interference was necessary in a democratic society. The ECtHR recalled the state’s duty of neutrality and impartiality in the organization of the “exercise of various religions, faiths, and beliefs” which “excludes any discretion on its part to determine whether religious beliefs or the means used to express such beliefs are legitimate.”204 It also emphasized the principle of secularism guaranteed in Article 2 of the Turkish Constitution which “prohibits the State from manifesting a preference for a particular religion or belief.”205 The ECtHR noted that while regarding their faith to be based on Sufi tenets, the applicants were of the view that their faith contained considerably specific features which dissociated it from the understanding of Islam upheld by the Diyanet. In that regard, as a requirement of the right of religious communities to autonomy which is linked with the state’s duty of neutrality and impartiality, “only the highest spiritual authorities of a religious community, and not the State (or even the national courts), may determine to which faith that community belongs.”206 Accordingly, the ECtHR concluded that the approach of the national authorities towards the Alevi faith was in breach of the principle of autonomous existence of religious communities and with the state’s duty of neutrality and impartiality. The ECtHR also did not accept the government’s argument that Alevis were able to freely exercise their faith despite the prohibitions of Law No. 677. The Grand Chamber observed that refusing the specific religious features particular to the Alevi

İzzettin Doğan, para. 92. İzzettin Doğan, para. 93. 202 İzzettin Doğan, para. 93. 203 İzzettin Doğan, para. 95. 204 İzzettin Doğan, para. 107. 205 İzzettin Doğan, para. 117. 206 İzzettin Doğan, para. 121. 200 201

7.3

The Case of İzzetin Doğan

223

faith had the effect of bringing it into the category of “Sufi orders” outlawed by Law No. 677. This Law entails several significant bans such as the ban on “the use of the title ‘dede,’ denoting an Alevi spiritual leader” and “the designation of premises for Sufi practices” subject to “a term of imprisonment and a fine.”207 Although the government held that these prohibitions were not enforced in practice anymore, the ECtHR pointed out the fact that the prime minister’s Legal Department rejected the claim of recognition of cemevi as a place of worship based on Law No. 677. Moreover, the bans imposed by that law were expressly referred to by the Ankara Administrative Court in its decision of 4 July 2007. Thus, the ECtHR concluded that the ability of Alevis to freely exercise their faith depended mainly on the goodwill of the state authorities. In this regard, according to the European Court, the tolerance shown by the administrative officials towards the Alevi practices could not be regarded “as a substitute for recognition,” which is the only means of guaranteeing rights to the concerned community.208 In conclusion, the ECtHR specified the numerous problems which affected both religious and educational life of Alevis, such as lack of recognition for Alevi places of worship, compulsory religion classes, dependency of constructing new places of worship on the goodwill of administrative authorities, and lack of a precise legal regime regulating unrecognized religious minorities. Summing up, the ECtHR ruled that the freedom left by the authorities to Alevis for practicing their faith did not enable them to fully enjoy their rights guaranteed by Article 9.209 Concerning a dispute among the Alevi members on the fundamental tenets of their faith, the Strasbourg Court determined that this internal debate gave the state no ground to refuse the rights of this religious community as protected by Article 9.210 In response to the government’s claim for a broader margin of appreciation, the ECtHR maintained that the state’s duty of neutrality and impartiality does not allow it to decide about the legitimacy of religious convictions or their modes of expression.211 If some level of discretion would be given to the state allowing it to deprive the minority religions of legal protection, the guarantees of Article 9 would be merely illusory. Therefore, because of the lack of reasonable grounds, the state’s interference with the rights of Alevis was found to be in violation of Article 9 of the Convention.

7.3.1.2

The ECtHR’s Assessment of Claims of Discrimination

The ECtHR examined the allegation of applicants that they were discriminated against based on their religion. The claim of discrimination was reviewed by the

İzzettin Doğan, para. 126. İzzettin Doğan, para. 127. 209 İzzettin Doğan, paras. 128–131. 210 İzzettin Doğan, para. 134. 211 İzzettin Doğan, para. 133. 207 208

224

7

The ECtHR and Turkish Secularism

Strasbourg Court under Article 14 of the Convention taken together with Article 9. According to the settled jurisprudence of the ECtHR, the discriminatory treatment is established under Article 14 when persons in analogous cases are treated differently, without objective and reasonable justification.212 In the first step, the European Court determined that the claimants were in a similar situation with other citizens who had benefited from the religious services delivered by the Diyanet. The ECtHR underlined the fact that in Turkey, religious services relating to Islam are categorized as public services and rendered by the Diyanet which is a body within the state administration. It further stressed that the Turkish legal regime regulating public services must comply with “the principle of the neutrality” which is “a component of the broader concept of the secular State.”213 The ECtHR discovered that although theoretically everyone was equally entitled to the services of the Diyanet, in reality it was suitable and available only for the observers of the particular interpretation of Islam upheld by the Diyanet and excluded the followers of different interpretations.214 Therefore, the ECtHR concluded that the applicants had been treated less favorably than the recipients of the religious public services, and continued to explore whether this difference in treatment was justified. The ECtHR noticed that the Diyanet received a substantial amount of funding from the state budget, and thus religious services pertaining to the Muslim religion as interpreted by the Diyanet were fully financed by the state.215 Until Doğan, the ECtHR had briefly touched upon the Diyanet on several occasions only as a body within the state administration established to support secularism.216 However, in Doğan, the European Court reviewed the institution more closely in terms of its extensive powers pertaining to religious matters, the impressive size of the personnel (121,845) and budget.217 With regard to its financial size, the Grand Chamber noticed that in 2015 the Diyanet received a TRY 5.743.000.000 funding from the state budget which corresponds to roughly 2 billion Euro.218 The total sum of funding transferred to its budget during the period from 1996 to 2015 reached TRY 37.275.900.000 which amounts to nearly 16 billion United States dollars. In 2014, the Diyanet allocated the amount of TRY 38.529.463 to electricity expenditure of “mosques, district mosques, churches and synagogues.”219 Meanwhile, no İzzettin Doğan, para. 156. İzzettin Doğan, para. 167. 214 İzzettin Doğan, para. 168. 215 İzzettin Doğan, para. 171. 216 For other prior remarks about the Diyanet see for example, Ahmet Arslan and Others v Turkey App no 41135/98 (ECtHR, 23 February 2010), paras. 12 and 51; Köse and Others v. Turkey (dec) App no 26625/02 (ECtHR, 24 January 2006), “The Facts”; Şerife Yiğit v. Turkey App no 3976/05 (ECtHR, 2 November 2010), paras. 40 and 84; Freedom and Democracy Party (ŐZDEP) v Turkey App no 23885/94 (ECtHR, 8 December 1999), para. 14. 217 İzzettin Doğan, paras. 17–28. 218 İzzettin Doğan, para. 25. 219 İzzettin Doğan, para. 25. 212 213

7.3

The Case of İzzetin Doğan

225

contribution was made to the maintenance of Alevi places of worship or any of the needs of Alevi faith. However, despite being in a similar situation with that of other citizens in regard to their religious needs, the applicants had been completely deprived of corresponding religious services as their faith was categorized as a “Sufi order” by the state.220 Having regard to the government’s argument that the restrictive measure pursued to protect the secular character of the state, the ECtHR noted that it understood the significance of the principle of secularism within the Turkish constitutional framework. It accepted that a state can have “legitimate reasons for restricting eligibility for a specific system to certain religious denominations” or draw “justified distinctions between different categories of religious communities or offer other forms of cooperation.”221 Nevertheless, the ECtHR affirmed that under the principle of proportionality, the state was still obliged to show in this instance that exclusion of certain religious groups from the scope of public religious services was necessary for achieving the aim sought. In this connection, the ECtHR held that Alevi community was deprived of any legal protection as a religious group bearing in mind that its places of worship and religious leaders were not officially recognized, and its members were not entitled to take any of the advantages of the religious services afforded by the state. Thus, the European Court observed that there existed a “glaring imbalance” between the conditions of the claimants and those of other citizens who used religious services performed by the Diyanet and the government did not point out any reasonable justification for this situation.222 The European Court particularly refused the secularism argument of the domestic courts expressing its failure to understand that why protection of this principle should require subjecting the Alevi faith to the mentioned deprivations.223 In the Doğan case, the ECtHR elaborates the principle of pluralism going beyond the Alevi problems and touching the more general issue. In the Strasbourg Court’s opinion, by overlooking special demands of the Alevi community, the state prevents the attainment of pluralism which is a paramount requirement of a democratic society.224 The ECtHR focused also on the shortcomings of the Turkish legal framework governing the religious communities and underlined that it lacks neutral criteria for the legal status and protection of religious groups alongside the Alevi community.225 It was observed that various other religious minorities were in the same disadvantageous situation such as “the Protestant churches, Jehovah’s Witnesses, Yazidis, Syriacs, and Chaldeans.”226 It referred also to the Opinion of the

İzzettin Doğan, para. 172. İzzettin Doğan, para. 175. 222 İzzettin Doğan, paras. 180 and 184. 223 İzzettin Doğan, para. 181. 224 İzzettin Doğan, para. 178. 225 İzzettin Doğan, para. 182. 226 For the general overview of the position of other religions see İzzettin Doğan, paras. 29–34. 220 221

226

7

The ECtHR and Turkish Secularism

Venice Commission overviewing the general legal hurdles encountered by the religious communities in Turkey.227 In the view of the ECtHR, the lack of a clear legal regime regulating religious denominations causes these groups to face several legal, organizational, and financial obstacles turning into “a source of de jure and de facto discrimination towards the adherents of other religions or beliefs.”228 Then the ECtHR reaffirmed the importance of the principles of respect for cultural diversity and pluralism and noted the significant effects of discriminatory treatment of a particular faith on the freedom of religion of its observers. The European Court held that it was incapable of deciding whether to grant or not to grant the requests of the applicants in the specific case, as they covered a broad range of issues. In addition, the ECtHR declared that it was not its position “to impose on a respondent state a particular form of cooperation with the various religious communities,” and that “choosing the forms of cooperation with the various religious communities” fell within the scope of states’ margin of appreciation.229 However, the ECtHR ruled that the Turkish government was in breach of Articles 9 and 14, in denying recognition of the Alevi community as an autonomous religious group and in totally blocking their access to religious public service, respectively. As a result, the Doğan judgment obliges the Turkish state to recognize the Alevi faith as an autonomous religious denomination entitled to relevant rights and to eliminate the discriminatory treatment towards them in the provision of religious public service.

7.3.2

The Impact of the Strasbourg Case-Law on the Alevism’s Legal Situation

As described above in Part I, in Sinan Isik v Turkey case (2010) which concerned the Alevi claim, the ECtHR decided that an identification of faith on the identity card violated the freedom of religion of the applicant and thus, the removal of the religion box could amount to a satisfactory remedy to put an end to this violation. In 2016, Turkey began to issue a new type of identity cards involving a chip carrying the citizens’ personal data such as “identity number, name, surname, previous surname, date and place of birth, gender, parent names, photograph, marital status, blood group as well as information concerning the religion, if requested” (emphasis added).230 Normally, the new identity card’s electronic chip does not involve any information concerning religious affiliation. However, if a citizen, who applies for a new card, opts for the provision of religious information in his/her identity card in the application form, the electronic chip provides information about 227

Venice Commission (2010). İzzettin Doğan, para. 182. 229 İzzettin Doğan, para. 183. 230 Council of Europe Committee of Ministers (2018), para. 15. 228

7.3

The Case of İzzetin Doğan

227

faith on demand. Considering that “no institution has authorization for direct access to the information about religion which is now registered, subject to the individual’s specific request, in an electronic chip in the new identity cards” the Committee of Ministers of the CoE found the new measure satisfactory and terminated the examination of the Sinan Isik v Turkey case by the Resolution CM/ResDH(2018) 221.231 It can be still argued that this measure does not completely remove the violation of the freedom of belief. The violation arises not from the method or form of registering the beliefs of individuals, but rather from the fact that they are left under the pressure of expressing their beliefs. It can be assumed that the only purpose of such coercive measure is to use information about the religious beliefs of individuals in various fields and forms, and therefore the place of storage of this data does not make a difference with regard to the respect for the freedom of belief. The ECtHR decision of Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfi v. Turkey which determined non-recognition of the cemevis as a violation of Article 14 ECHR in conjunction with Article 9, also caused developments in the national level. After the ECtHR’s Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfi decision, the CHP recognized the place of worship status of the cemevis within the borders of its municipalities and decided to deliver the services applicable to the places of worship also thereto.232 This meant that the water and electricity expenses, as well as the landscaping, maintenance, repair, and cleaning services, would be afforded to the cemevis by the municipalities. Moreover, they would be included in the urban plans. The relevant decision of the ECtHR positively influenced the cemevi decisions of the high courts in Turkey, including the Court of Cassation and the Council of State. Following the case of Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfi, the Court of Cassation adopted two important decisions concerning the cemevis considering the ECtHR jurisprudence. In December 2014, in the case concerning the closure of the Çankaya Cemevi Construction Association, the Court of Cassation decided that whether the cemevis are places of worship or not cannot be decided by the judicial decisions.233 The Chief Public Prosecutor had initiated the closure procedure for Çankaya Cemevi Construction Association on the ground that it defined the cemevis as a place of worship in its statute. Ankara 16th court of first instance refused the request maintaining that “for centuries, the cemevis have been known and accepted by the society as places of worship of Alevis. The provision written in the statute of the

231

Council of Europe Committee of Ministers (2018). Karaca (2015) 233 (2014) Yargıtay: Cemevi Yaptırmak İçin Dernek Kurulabilir [The Court of Cassation: An Association Can Be Established for the Construction of the Cemevi]. In: Haberturk. https://www. haberturk.com/gundem/haber/1015418-yargitay-cemevi-yaptirmak-icin-dernek-kurulabilir; (2014) Top Court: It’s Not Judiciary’s Call to Designate Cemevi as Place of Worship or Not. In: Hurriyetdailynews. https://www.hurriyetdailynews.com/top-court-its-not-judiciarys-call-to-desig nate-cemevi-as-place-of-worship-or-not-75151. 232

228

7

The ECtHR and Turkish Secularism

association stating that “the cemevis are the places of worship” is neither contrary to Article 2 of the Constitution nor is forbidden by law.234 The decision which was appealed by the Prosecutor was reversed by the seventh Chamber of the Court of Cassation. The Court of Cassation justified its decision by referring to Article 174 of the Constitution which provides that “[n]o provision of the Constitution shall be construed or interpreted as rendering unconstitutional the Reform Laws . . . which aim to raise Turkish society above the level of contemporary civilization and to safeguard the secular character of the Republic, and whose provisions were in force on the date of the adoption of the Constitution by referendum.” One of the Reform Laws listed by Article 174 of the Constitution is Law No. 677 of 30 November 1925 on the Closure of Dervish Monasteries and Tombs, the Abolition of the Office of Keeper of Tombs and the Abolition and Prohibition of Certain Titles which banned the designation of places of worship for the exercise of the Sufi practices. While this law outlawed the dervish monasteries, it allowed for the mosques and masdjids. Moreover, Law no. 633 on Organization and Duties of the Presidency of Religious Affairs empowers the Diyanet to manage the places of worship (Article 1) and to give consent to the opening of the mosques and masdjids (Article 35). Thus, given Law no. 633 and regulations, places other than mosques and masdjids cannot be accepted as places of worship. Therefore, it was decided that the provisions in the statute of association defining the cemevis as places of worship should be removed.235 After the Ankara 16th court of instance reinstated its original decision, it was discussed in the General Assembly of the Civil Chambers of the Court of Cassation. By adopting the final decision concerning the case, the Assembly approved the decision of the first instance court refusing the closure of the association. In the meeting of the Assembly, while the ECtHR’s Cumhuriyetçi Eğitim Ve Kültür Merkezi judgment was not examined due to the lack of the official translation, it was yet brought on the agenda by the members. The Assembly’s decision was based on the view that “whether a place is a place of worship or not is not decided by judicial decisions. An individual himself/herself decides whether a place is a place of worship or not.”236 This decision did not endorse the cemevis as places of worship, it only accepted that the associations can be established with the purpose of opening and constructing the cemevis, and approved the decision of the first instance court on this matter. According to the General Assembly, as a requirement of Article 90(5) of the Consitution which provides that, “[i]n the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and (2014) Yargıtay: Cemevi Yaptırmak İçin Dernek Kurulabilir [The Court of Cassation: An Association Can Be Established for the Construction of the Cemevi]. 235 (2012) Yargıtay 7. Hukuk Dairesi: Cami Dışında Ibadethane Olmaz [7th Chamber of the Court of Cassation: There Can Be No Place of Worship other than the Mosque]. In: Yeniasya. https:// www.yeniasya.com.tr/gundem/yargitay-7-hukuk-dairesi-cami-disinda-ibadethane-olmaz_139593. 236 (2014) Yargıtay: Cemevi Yaptırmak İçin Dernek Kurulabilir [The Court of Cassation: An Association Can Be Established for the Construction of the Cemevi] (author’s own translation). 234

7.3

The Case of İzzetin Doğan

229

the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail” it was decided that even though the provisions in the statute of the association concerning the construction of the cemevis were contrary to Law No. 677 on the Closure of Dervish Monasteries and Tombs, the Abolition of the Office of Keeper of Tombs and the Abolition and Prohibition of Certain Titles, they were not in violation of the ECHR or other international conventions. Another decision of the Court of Cassation concerning the cemevis was adopted in the case brought by the enterprise, which manages the supply of electricity (Boğaziçi Elektrik Dağıtım A.Ş.—the BEDAŞ), against the Foundation. The BEDAŞ demanded the payment of 46 unpaid electricity invoices covering the period from February 2004 to December 2007. The Cem Foundation, in turn, argued that a piece of the contested building had the status of a place of worship, and therefore demanded an investigation into the building of the Foundation. The local court did not accept this demand and ruled in the BEDAŞ’s favor. After the decision of the first instance court had been brought by the Foundation before the Court of Cassation, it was unanimously overturned by the third Civil Chamber of the Court of Cassation.237 Relying on the ECtHR’s judgments on this issue, the Court of Cassation regarded the omission to conduct an investigation with the participation of an expert on the venue as a ground for the revocation.238 The Council of State also approved the right of the cemevis to an exemption from the payment of electricity charges in the case brought by the BEDAŞ against the Erenler Eğitim ve Kültür Vakfı (The Erenler Foundation for Education and Culture—the Foundation). In March 2015 the BEDAŞ commenced the enforcement procedure against the Foundation on the ground of non-payment of the electricity debt and fraudulent use of the electricity. Thus, the billing for the Foundation included also the penalty for the electricity theft and warned that it would be sued therefor.239 The Foundation brought the dispute before Istanbul 6. Administrative Court demanding that the cemevis should be recognized as a place of worship of Alevism and that their expenses should be covered by the Diyanet’s budget. Istanbul 6. Administrative Court admitted the request of the Foundation and decided for the payment of electricity bills from the budget of the Diyanet due to the fact the cemevis are places of worship. Esenyurt district governorship disputed this decision of Istanbul 6. Administrative Court before the Council of State and requested its repeal alleging that from the Islamic perspective, Alevism is an issue of richness and Sufism, and thus, it cannot be characterized as a different religion; the Diyanet does not have an authority to recognize the places other than the mosques and masjid as a

237

Court of Cassation (third Civil Chamber), 28 May 2015, E. 2014/11238, K. 2015/9711. Court of Cassation (third Civil Chamber), 28 May 2015, E. 2014/11238, K. 2015/9711. 239 Erenler Eğitim ve Kültür Vakfı’ndan Açıklama [Statement from the Erenler Foundation for the Education and Culture]. In: Serhatbirikim. http://www.serhatbirikim.com.tr/haber-erenler-egitimve-kultur-vakfi-ndan-aciklama-7952.html. 238

230

7

The ECtHR and Turkish Secularism

place of worship and therefore, the electricity expenses of the cemevis cannot be covered by its budget.240 Refusing the request of the district governorship, the Council of State Chamber No 8. upheld the decision of the first instance court. It grounded its decision as follows: Examining the 1982 Constitution, the European Convention and the high court decisions and relevant legislation as a whole it has been concluded that: everyone is equal before the law without distinction as to his/her language, race, color, sex, political thought and philosophical belief, religion, denomination, or any such grounds; everyone has a right to freedom of thought, conscience and religion and this right involves the freedom to change one’s religion and conviction and to worship in public or in private and to teach religion; the state bodies and administrative authorities in all their proceedings should act according to the principle of equality before the law; discrimination is forbidden; the electricity expenses of the places of worship that are open to public worship and are freely accessible are paid out of the appropriation to be set in the budget of the Diyanet. As no legitimacy was found in the operation dated 18.05.2015 and No. 2015/331 which was a subject matter of the case, it was decided for annulation thereof.241

Thus, this Council of State decision accepts that the cemevis are places of worship like mosques, churches, and synagogues. This means that their electricity expenses should be also paid out of the Diyanet’s budget as they meet the requirement of the “open to public worship and freely accessible” rule. In fact, since 2012 the electricity expenses of the churches and synagogues are paid from the Diyanet’s budget.242 The cases of Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfı and İzzettin Doğan and Others along with the Zengin group cases are under the enhanced supervision of the Committee of Ministers of the CoE.243 The execution status of the cases was discussed for the last time in the meeting of the Committee of Ministers of the CoE held in December 2021. In October 2021 the Turkish government provided the Committee of Ministers with an Action Plan on Alevi cases.244 Concerning the Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfı case, the Turkish government cited several national judicial decisions upholding the contest of Alevi associations to the payment of electricity costs.245 Moreover, it held that it cannot be foreseen whether the payment of the electricity expenses is requested by each cemevi and as decided by the national courts “an expert review is required to establish what percentage of the illuminating costs are within this scope.”246 Thus, in the government’s opinion,

240

Akıl (2019), pp. 21–22. Akıl (2019), p. 22 (author’s own translation). 242 See Yanardağ (2012). 243 Council of Europe Committee of Ministers (2021a). 244 Council of Europe Committee of Ministers (2021b) [hereafter Action Plan (05/10/2021) Communication from Turkey Concerning the Group of Cases Zengin v. Turkey]. 245 Council of Europe Committee of Ministers (2021b) Action Plan (05/10/2021) - Communication from Turkey Concerning the Group of Cases Zengin v. Turkey, paras. 16–17. 246 Council of Europe Committee of Ministers (2021b) Action Plan (05/10/2021) - Communication from Turkey Concerning the Group of Cases Zengin v. Turkey, para. 44. 241

7.3

The Case of İzzetin Doğan

231

to determine the electricity expenses of cemevis it was required to bring a legal action and expert review. Therefore, the Turkish authorities claimed that resorting to judicial remedy would constitute a sufficient measure considering that the high courts have established a jurisprudence compatible with the ECtHR’s judgment. According to the government, “all the judicial authorities harmonized their case law in conformity with the Court’s findings,” and therefore “this issue no longer constitutes a subject open to discussion in Turkish Judiciary.”247 However, in its December 2021 meeting, the Committee of Ministers held that this practice of the domestic courts is “insufficient to resolve the discrimination identified by the Court arising from the blanket exclusion of the Alevi community from State religious subsidies and other benefits, including tax exemptions.”248 Therefore, the Committee urged “the authorities to adopt more comprehensive measures to ensure equal treatment of the Alevi faith and to consider some practical solutions to exempt cemevis from the payment of lighting costs.”249 Concerning the case of İzzettin Doğan and Others, the Turkish government mentioned no concrete measure to be taken or planned in the Action plan of 2021. While concerning the Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfı case, the government referred to national court judgments considering them as sufficient redress, it did not cite any national judgment concerning the case of İzzettin Doğan. In fact, neither the Action plan presented to the Committee of Ministers, nor the National Action Plan on Human Rights250 issued in March 2021 provided for any specific measure to put an end to similar violations determined by the judgment of İzzettin Doğan and Others. Therefore, the Committee of Ministers “strongly encouraged the authorities to take specific solution-oriented measures in the framework of the implementation of the new Human Rights Action Plan to address the Court’s findings” in the respective cases.251 Considering “the longstanding issues examined in these cases and the lack of progress achieved so far” the Committee of Ministers “decided to resume consideration of these cases at their DH meeting in March 2023.”252 The judicial decisions do not constitute measures for the prevention of similar violations. They do not introduce a precedent to be followed by all courts and do not have a binding effect on the cases of all cemevis except those directly involved in these cases. This means that each cemevi should have recourse to the judicial 247

Council of Europe Committee of Ministers (2021b) Action Plan (05/10/2021) - Communication from Turkey Concerning the Group of Cases Zengin v. Turkey, para. 45. 248 Council of Europe Committee of Ministers (2021c), para. 4 [hereafter Council of Europe Committee of Ministers (2021) H46-36 Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfı]. 249 Council of Europe Committee of Ministers (2021c) H46-36 Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfı, para. 4. 250 Ministry of Justice of the Republic of Turkey (2021). 251 Council of Europe Committee of Ministers (2021c) H46-36 Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfı, para. 7. 252 Council of Europe Committee of Ministers (2021c) H46-36 Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfı, para. 8.

232

7

The ECtHR and Turkish Secularism

proceedings to take advantage of the exemptions from the electricity payments. This is an expensive, cumbersome, and long process which cannot be undertaken by every cemevi. This, will certainly also cause a work overload for the bureaucratic and judicial system. In November 2022, legislative measures were taken to address the Alevi concerns. On 16 November, the GNAT adopted Law No. 7421 involving significant changes for funding the cemevis. Based on the new law, the electricity consumption of the cemevis will be financed by the Ministry of Culture and Tourism.253 The legislative amendments included Additional Article 6 in Law No. 6446 on Electricity Market. Additional Article 6 expressly provides that “[t]he lighting expenses of the cemevis shall be covered by the Ministry of Culture and Tourism.”254 In its Action Plan concerning the execution of the Alevi judgements, presented to the Committee of Ministers on March 2023, the Turkish government has stated that “[t] his provision fully addresses the shortcomings identified by the Court in Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı since the lighting costs of cemevis will be covered by the State.”255 Another amendment introduced by Law No. 7421 concerns the construction and maintenance of cemevis. A new sub-paragraph has been added to Article 7 of Law No. 5216 on Metropolitan Municipality which sets out the following duties of the metropolitan municipalities: bb) (Additional: 16/11/2022-7421/14 Art.): To construct buildings and facilities for cemevis when necessary, to carry out all kinds of maintenance and repair of these buildings and facilities and to provide the necessary material support. g) (Additional: 16/11/2022-7421/14 Art.) Construction, maintenance and repair of cemevis.256

Besides, Law No. 7421 has incorporated Additional Article 10 into Law No. 3194 on Urban Planning concerning the designation of location in the design of zoning plans. Additional Article 10 provides that: ADDITIONAL ARTICLE 10- (Additional: 16/11/2022-7421/8 Art.) In the preparation of zoning plans, the necessary cemevi places are to be allocated by taking into account the conditions and future needs of the planned town and region. In provinces and districts, cemevis may be built provided that the permission of the local administrative authority is obtained and that they comply with the zoning legislation.

253

(2022) Turkish Parliament Approves Crucial Law for Alevi Citizens. In: Daily Sabah. https:// www.dailysabah.com/politics/legislation/turkish-parliament-approves-crucial-law-for-alevicitizens. 254 Cited in Council of Europe Committee of Ministers (2023), para. 30 [hereafter Council of Europe Committee of Ministers (2023) Action Plan (29/03/2023) - Communication from Türkiye Concerning the Case of ZENGIN v. Turkey]. 255 Council of Europe Committee of Ministers (2023) Action Plan (29/03/2023) - Communication from Türkiye Concerning the Case of ZENGIN v. Turkey, para. 31. 256 Cited in Council of Europe Committee of Ministers (2023) Action Plan (29/03/2023) - Communication from Türkiye Concerning the Case of ZENGIN v. Turkey [2023], para. 33.

7.3

The Case of İzzetin Doğan

233

Cemevi places may not be allocated for other purposes in violation of the zoning legislation.257

Moreover, the recently adopted Law No. 7421 empowers provincial directorates “to construct, maintain and repair sites, including historical and cultural properties, as well as cemevis”.258 A new sub-paragraph has been added to Article 6 of Law No. 5302 on the Special Provincial Administration which reads as follows: (Additional paragraph: 16/11/2022-7421/15 Art.) Special provincial administration may construct, maintain and repair temples, cultural and natural heritage, historical texture and places of importance in terms of urban history and cemevis within the provincial borders.259

Law No. 7421 has also amended Article 14 of Law No. 5393 on Municipalities to guarantee that the municipalities will carry out the construction, maintenance and repair services of cemevis. Amendment to Article 15 of Law on Municipalities also ensures that the cemevis will be privileged to get cheaper or free water supply arranged by municipalities or organisations associated with municipalities.260 Thus, although the law does not grant a formal place of worship status to the cemevis considering that their expenses will not be afforded through the budget of the Diyanet, it is the first time that they will be granted the state funding. Another action taken by the state to respond to the needs of the Alevi community was to establish the Alevi-Bektashi Culture and Cemevi Presidency under the Ministry of Culture and Tourism on 9 November 2022. The Presidency was established by the presidential decree No. 112 dated 08.11.2022 signed by President Erdoğan. The presidential decree enlarges the list of duties and powers of the Ministry of Culture and Tourism by including the “research of Alevi-Bektashi culture and conducting business and operations related to cemevis” therein.261 According to the presidential decree, the Presidency is responsible for the “tasks such as carrying out studies to determine the cemevis and their needs, coordinating the effective and efficient execution of the services in the cemevi, organizing national and international events on Alevi-Bektashism, and conducting educational and cultural activities.”262 Additionally, the Presidency will be accompanied by an advisory board consisting of a chairman and 11 members who will assess the functioning of the Presidency and issue recommendations. The members of the

257 Cited in Council of Europe Committee of Ministers (2023) Action Plan (29/03/2023) - Communication from Türkiye Concerning the Case of ZENGIN v. Turkey [2023], para. 34. 258 (2022) Turkish Parliament Approves Crucial Law for Alevi Citizens. 259 Cited in Council of Europe Committee of Ministers (2023) Action Plan (29/03/2023) - Communication from Türkiye Concerning the Case of ZENGIN v. Turkey [2023], para. 35. 260 Council of Europe Committee of Ministers (2023) Action Plan (29/03/2023) - Communication from Türkiye Concerning the Case of ZENGIN v. Turkey, para. 36. 261 (2022) Türkiye Establishes Cemevi Presidency to Address Alevi Citizens’ Problems. In: Daily Sabah. https://www.dailysabah.com/politics/legislation/turkiye-establishes-cemevi-presidency-toaddress-alevi-citizens-problems. 262 (2022) Türkiye Establishes Cemevi Presidency to Address Alevi Citizens’ Problems.

234

7

The ECtHR and Turkish Secularism

advisory board will be elected from among distinguished personalities on the way of Alevi-Bektashism. As it seems, the opinions expressed in the ECtHR’s Alevi decisions and its related jurisprudence have led to the adoption of domestic decisions recognizing violations of the right to equality and religious freedom towards the Alevi citizens. Faced with the international and national court decisions and the systematic legal struggle of Alevis, the government had to take legislative measures in November 2022 by granting the cemevis state funding for electricity usage and building construction, repair, and maintenance. Therefore, it can be assumed that the claims of exemption from the electricity payment will not come before the courts anymore considering that recently accepted measures can be considered as “practical solutions to exempt cemevis from the payment of lighting costs” as determined in the Committee of Minister’s decision. Unlike the Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v. Turkey case which was about one concrete practical issue, namely, the payment of electricity bills, the case of Doğan involved several broader and more fundamental issues such as the determination of services related to the practice of the Alevi faith as public service, recruitment of Alevi religious leaders as civil servants, granting the status of places of worship to cemevis, recruitment of Alevi religious leaders as civil servants, and inclusion of a special provision in the state budget for the exercise of the Alevi faith. Thus, although the legislative measures introduced in November 2022 aim to finance the electricity consumption of the cemevis among their other needs, they are not recognized as places of worship which would legally qualify them to be provided with state funding akin to mosques, churches, and synagogues. Rather, they are recognized as foundations under the Ministry of Culture and Tourism. Also, unlike the claim of the Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfı v. Turkey case which continuously triggered the national courts to decide on the issue, no case law has yet emerged within the national judiciary regarding the broader subject matter of the Doğan judgment. Some attempts have been made by the opposition deputies concerning the recognition of cemevis as places of worship although they have been unsuccessful. On 22 January 2020, CHP MP Mürsel Alban, a representative of Muğla, presented a legislative proposal regarding the recognition of cemevis as places of worship to the GNAT which was rejected.263 Similarly, a proposal introduced by the CHP and İYİ Party groups to the Istanbul Metropolitan Municipality demanding recognition of the city’s 92 cemevis as places of worship was declined by the AKP and MHP votes.264 Summarizing all the above-mentioned legislative measures concerning the cemevis, the Turkish authorities conclude that “all necessary general measures have been taken in response Articles 9 and 263

(2020) CHP Muğla Milletvekili Mürsel Alban’dan Cemevleri Için Kanun Teklifi [A Legislative Proposal from the CHP Muğla Deputy Mürsel Alban]. In: Cumhuriyyet. https://www.cumhuriyet. com.tr/haber/chp-mugla-milletvekili-mursel-albanda-cemevleri-icin-kanun-teklifi-1715697. 264 (2020) AKP, MHP Councillors Vote down Proposal to Recognize Cemevis as Places of Worship. In: Duvar English. https://www.duvarenglish.com/human-rights/2020/01/16/istanbulmunicipality-to-vote-on-approving-status-of-cemevis-as-places-of-worship.

7.3

The Case of İzzetin Doğan

235

14 violations established by the Court in the cases of İzzettin Doğan and Others and Cumhuryetçi Eğitim ve Kültür Merkezi Vakfı.”265 The Committee of Ministers of the CoE will assess the general measures taken in respect of the mentioned cases at their meeting in June 2023.

7.3.3

Comment

In the Doğan judgment, the Strasbourg Court did not assess whether specific requests of the applicants should be fulfilled by the state. It rather focused on the question of the refusal to recognize the Alevi faith. Although the ECtHR generally accepted the existence of positive obligations intrinsic to Article 9 of the ECHR, it rejected “to examine further whether Article 9 also imposed positive obligations on the Turkish authorities.”266 The ECtHR explained this by the fact that the refusal at issue constituted in any case an interference that had to be justified. In this connection, Marcella Ferri criticized the European Court for shifting the focus of the case from the applicants’ specific claims to the general issue of legal recognition of Alevi faith, arguing that the Court had refrained from debating positive obligations stemming from Article 9 of the ECHR.267 Shifting the question of the judgment has been also disagreed with by Judges Villiger, Keller, and Kjølbro in their separate opinions, however, on different grounds. According to the judges in the minority, the European Court should have focused on the applicants’ specific requests and assessed them within the scope of the state’s positive obligations emanating from Article 9 of the ECHR.268 However, since the applicants’ claim for particular advantages and privileges from the state compared to other religious groups, the assessment should have denied a violation of Article 9 and led only to establishing a breach of Article 14 taken together with Article 9. This criticism cannot be accepted. It is considered that the ECtHR appropriately addressed the crux of the matter, namely, denying the independent religious nature of the Alevi faith altogether, which was invoked by the state authorities in refusing to recognize its places of worship, in the arrangement of religious education or the construction of the places of worship. It seems that the separate opinions fail to grasp the negative implications of non-recognition of the Alevi faith on the religious

265

Council of Europe Committee of Ministers (2023) Action Plan (29/03/2023) - Communication from Türkiye Concerning the Case of ZENGIN v. Turkey, para. 38. 266 İzzettin Doğan, paras. 96–97. 267 Ferri (2017). 268 Joint Partly Dissenting and Partly Concurring Opinion of Judges Villiger, Keller and Kjølbro in İzzettin Doğan, paras. 10 and 13.

236

7

The ECtHR and Turkish Secularism

freedom of its followers, regarding the challenges of applicants as mere claims for privileges.269 Going beyond the Alevi problems, the ECtHR elaborates the principle of pluralism throughout the Doğan judgment. This is an important point considering that today the current AKP government is transforming Sunni Islam into an official ideology and trying to impose it on the society as a monotype ideology denying pluralism.270 This ideology is transferred to the society by way of education and by promoting conservative cultural values. The current government’s position on issues such as abortion, artificial insemination, cesarean section, in vitro fertilization, surrogate motherhood, creating a pious generation, and its “call for three children per family” has been also seen by İştar Gözaydın, a Turkish legal scholar, as a measure of social engineering towards transforming Turkish society into a conservative social body nourished by religious feelings.271 The monotype and antipluralist ideology instilled with Islamic and conservative national values reshape the so-called “New Turkey” project of the AKP government.272 The Alevi faith and the principle of secularism attached to it is the biggest obstacle forced by this “project.” Since the recognition of Alevism does not comply with it, the scale of this faith is reduced to the level of a religious order, if not assimilated.273 In that regard, the ECtHR’s Doğan judgment is a very important decision as it builds a barrier against this purpose of the AKP government by stressing the state’s duty of neutrality under the principle of pluralism, endorsing the autonomous nature of the Alevi faith, and underlining the importance of its recognition in that capacity.

7.4

Conclusion

In the cases of Refah, Leyla Şahin, and Kurtulmuş, referring to the principle of secularism as a ground of justification, the Strasbourg Court deferred it to the Turkish state to adopt decisions pertaining to sensitive relationships between state authorities and the free exercise of religion. However, both in the Zengin group of cases and in Doğan, the ECtHR refused to leave the issue to the decisions of the MNE, Diyanet executives, the office of the prime minister, or the domestic courts, respectively, and did not refer to the “margin of appreciation” as a means of

269

See Yildirim (2016); for the consequences of the non-recognition of the places of worship, see (2017) The Right to Have Places of Worship - a Trapped Right. In: International Institute for Religious Freedom. https://www.iirf.eu/news/archiv/the-right-to-have-places-of-worship-atrapped-right/. 270 See (2016) Rıza Türmen’in Sunumu [Presentation of Rıza Türmen], p. 23. 271 Gozaydin and Ozturk (2014), p. 19; see also Gözaydın (2015). 272 See Mutluer (2018), e.g., pp. 3, 14. 273 See (2016) Rıza Türmen’in Sunumu [Presentation of Rıza Türmen].

References

237

excluding itself from deciding on the matter. According to Gunn, this difference in the Strasbourg Court’s approach can be explained by the contextual particularities of these cases. The ECtHR readily accepted “secularism” arguments of the domestic courts in the cases arising during the 1997–1998 period which centered on issues connected with “Islamist politics.”274 However, the Strasbourg Court began to question Turkey’s neutrality in the cases emerging “after the Islamist AKP had consolidated its political power after 2007” which focused on the issues of heterodox Islamic denominations.275 Detailed analysis of its secularism jurisprudence shows that the European Court abandoned its role of bastion against state infringements of rights in cases involving the Turkish government’s worries about political Islam. Yet, it has been doubted whether the ECtHR can refer to the principle of secularism, taking into account that it has been mentioned neither among the legitimate aims laid down to limit a Convention right nor in the travaux préparatoires of the Convention. Having regard to the subsidiary nature of the Convention machinery, it should be noted that the characteristic pillars of each constitutional order, which are in principle compatible with the values founding the ECHR and are even employed to actively support them due to historical negotiations, need to be considered by the ECtHR. In this context, certainly, the principle of secularism should be protected from the threatening activities of the fundamentalist movements having political claims, and preventive actions taken in this direction by the state can be viewed by the ECtHR as pursuing legitimate aims. However, in none of the political Islam-related cases were the decisions of the ECtHR genuinely grounded on evidence of real and immediate danger. Rather, they relied on loyalty towards the Turkish state’s declaration of its “values”, i.e., secularism, equality, pluralism, and respect for the rights of others. The ECtHR’s crucial responsibility in its secularism cases was to protect religious freedoms from the state’s suppressive practices. By fulfilling this responsibility, the European Court could better contribute to the elaboration of the principle of secularism by obliging the Turkish state to bring the implementation of this principle into compliance with the Convention standards. However, the ECtHR chose not to examine strictly whether Turkey had actually observed neutrality but merely assumed that it had due to its professions of secularism.

References (2010) “A threat” or under threat?: legal and social problems of protestants in Turkey, 2010. Association of Protestant Churches. https://www.ceceurope.org/wp-content/uploads/2015/07/ Protestants_in_Turkey-_A_Threat_or_Under_Threat_2010__.pdf

274 These cases such as Leyla Şahin and Kurtulmuş are classified by Jeremy Gunn as “Phase 1” cases. See Gunn (2019), pp. 516–521. 275 Gunn (2019), p. 521.

238

7

The ECtHR and Turkish Secularism

(2012) Norway goes secular, removes Lutheran Church as state religion. In: nationalpost. https:// nationalpost.com/holy-post/norway-goes-secular-removes-lutheran-church-as-state-religion (2012) YARGITAY 7. HUKUK DAİRESİ: Cami dışında ibadethane olmaz [There can be no Place of Worship except the Mosque]. In: Yeniasya. https://www.yeniasya.com.tr/gundem/yargitay7-hukuk-dairesi-cami-disinda-ibadethane-olmaz_139593 (2014) Yargıtay: Cemevi Yaptırmak İçin Dernek Kurulabilir [The court of cassation: the association can be established for the construction of the Cemevi]. In: Haberler. https://www.haberler.com/ guncel/yargitay-cemevi-yaptirmak-icin-dernek-kurulabilir-6742961-haberi/?m=0 (2014) Top court: It’s not judiciary’s call to designate cemevi as place of worship or not. In: Hurriyetdailynews. https://www.hurriyetdailynews.com/top-court-its-not-judiciarys-call-to-des ignate-cemevi-as-place-of-worship-or-not-75151 (2016) Rıza Türmen’in Sunumu [Presentation of Rıza Türmen]. Conference on the ECtHR Judgment: religious freedoms in Turkey, Istanbul, 8 May 2016. https://tqsweb.s3.amazonaws. com/2018/05/25/13/12/18/60ffbdce-4ad6-4349-9b0f-6c2a324665d0/aihm-cemevi.pdf (2017) The right to have places of worship - a trapped right. In: International Institute for Religious Freedom. https://www.iirf.eu/news/archiv/the-right-to-have-places-of-worship-a-trapped-right/ (2018) Zorunlu din dersi anayasal gereklilik [Compulsory religion class is a constitutional requirement]. In: CNN Türk. https://www.cnnturk.com/2012/turkiye/12/22/zorunlu.din.dersi. anayasal.gereklilik/689702.0/index.html (2019) Zorunlu din dersi için kritik karar [Critical decision for the compulsory religion class]. In: Odatv4. https://odatv4.com/zorunlu-din-dersi-icin-kritik-karar-01021955.html (2019) Zorunlu din dersinde aynı yalan: Müfredatımız çoğulcu [The same lie in the compulsory religion class: Our syllabus is pluralist]. In: soL. https://haber.sol.org.tr/toplum/zorunlu-dindersinde-ayni-yalan-mufredatimiz-cogulcu-270968 (2020) CHP Muğla Milletvekili Mürsel Alban’dan cemevleri için kanun teklifi [A legislative proposal from the CHP Muğla Deputy Mürsel Alban]. In: Cumhuriyyet. https://www. cumhuriyet.com.tr/haber/chp-mugla-milletvekili-mursel-albanda-cemevleri-icin-kanunteklifi-1715697 (2020) AKP, MHP councillors vote down proposal to recognize cemevis as places of worship. In: Duvar English. https://www.duvarenglish.com/human-rights/2020/01/16/istanbul-municipal ity-to-vote-on-approving-status-of-cemevis-as-places-of-worship (2022) Turkish Parliament approves crucial law for Alevi citizens. In: Daily Sabah. https://www. dailysabah.com/politics/legislation/turkish-parliament-approves-crucial-law-for-alevi-citizens (2022) Türkiye establishes Cemevi Presidency to address Alevi citizens’ problems. In: Daily Sabah. https://www.dailysabah.com/politics/legislation/turkiye-establishes-cemevi-presidency-toaddress-alevi-citizens-problems Acar A (2006) İlköğretim 4. ve 5. Sınıf Din Kültürü Ve Ahlak Bilgisi Öğretimi Dersi Müfredatlarının Mukayesesi (1949-2000) [The comparison of the syllabus of the classes in religious culture and ethics for the 4th and 5th grades of primary schools (1949-2000)]. Master’s Thesis, Marmara University, Social Sciences Institute Akbulut O, Usal ZO (2008) Parental religious rights vs. compulsory religious education in Turkey. Int J Minor Group Rights 15:433–455. https://doi.org/10.1163/157181108X374752 Akıl A (2019) İnsan Hakları Avrupa Mahkemesi İçtihadında İnanç Hürriyeti ve Tezahürlerinin Sınırlandırılması [Religious liberty and limitation of its expression under the jurisprudence of the European Court of Human Rights]. İstanbul Medipol Üniversitesi Hukuk Fakültesi Dergisi 6:5–32 Akyüz Y (1999) Türk Eğitim Tarihi [History of Turkish education], 7th edn. Alfa, İstanbul Altiparmak K, Karahanogullari O (2006) European Court of Human Rights: after Şahin: the debate on headscarves is not over, Leyla Şahin v. Turkey, Grand Chamber Judgment of 10 November 2005, Application No. 44774/98. Eur Const Law Rev 2:268–292 Altıparmak K (2005) Zorunlu din dersi gerçekten zorunlu mu? [Is the compulsory religion class really compulsory?]. In: Radikal. http://www.radikal.com.tr/radikal2/zorunlu_din_dersi_ gercekten_zorunlu_mu-872303/

References

239

Altıparmak K (2013) Hasan ve Eylem Zengin/Türkiye Kararının Uygulanması—İzleme Raporu [Implementation of the Judgment of Hasan and Eylem Zengin v. Turkey - The Monitoring Report]. İnsan Hakları Ortak Platformu (İHOP). http://www.aihmiz.org.tr/files/01_Hasan_ve_ Eylem_Zengin_Rapor_TR.pdf Altıparmak K, Karahanoğulları O (2004) Pyrrhus Zaferi: Leyla Şahin/Türkiye, AİHM/Hukuk, Düzenleyici İşlem/Kanun [Pyrrhic Victory: Leyla Şahin v.Turkey, European Court of Human Rights v. Law, Regulatory Measure v. Law]. Hukuk ve Adalet Dergisi 1:249–275 Arslan Z (2005) Avrupa İnsan Hakları Sözleşmesi’nde Din Özgürlüğü [Freedom of religion under the European Convention on Human Rights]. Liberal Düşünce Topluluğu. https://docplayer.biz. tr/30500605-Avrupa-insan-haklari-sozlesmesi-nde-din-ozgurlugu-zuhtu-arslan.html Aydin O, Gurpinar B (2022) the right to have places of worship: the Cemevi Case in Turkey. Religions 13:1–14 Berkes N (1998) The development of secularism in Turkey. Routledge, New York Bribosia E, Rorive I (2004) Le voile à l’école: une Europe divisée [The veil at school: a divided Europe]. Revue trimestrielle des droits de l’homme 15:951–984 Çınar Ö (2013) Compulsory religious education in Turkey. Relig Hum Rights 8:223–241. https:// doi.org/10.1163/18710328-12341253 Çınar ÖH (2014) An unsolved issue: religous education in international human rights law and the case of Turkey. In: Çınar ÖH, Yıldırım M (eds) Freedom of religion and belief in Turkey, Unabridged edn. Cambridge Scholars Publishing, Newcastle upon Tyne Committee of Ministers (2018) Resolution on the Execution of the judgment of the European Court of Human Rights Sinan Işık against Turkey. https://hudoc.echr.coe.int/eng#{%22itemid%22:[% 22001-184029%22]} Çoşkun V (2004) AİHM Meşruiyetini Tehlikeye Attı! [The ECtHR has jeopardized its own legitimacy!]. In: HAKSÖZ OKULU. https://www.haksozhaber.net/okul/aihm-mesruiyetinitehlikeye-atti-4084yy.htm Council of Europe Committee of Ministers (2018) Action report (12/04/2018) - communication from Turkey Concerning the Case of SINAN ISIK v. Turkey (Application No. 21924/05). https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016807bb98c Council of Europe Committee of Ministers (2021a) Communication from NGOs (Norwegian Helsinki Committee and İnanç Özgürlüğü Girişimi (Freedom of Belief (Initiative)) (11/10/ 2021) in the cases of ZENGIN, MANSUR YALCIN AND OTHERS, CUMHURIYETCI EGITIM VE KULTUR MERKEZI VAKFI and IZZETTIN DOGAN AND OTHERS v. Turkey (Applications No. 1448/04, 21163/11, 32093/10, 62649/10). https://hudoc.exec.coe. int/eng#{%22EXECIdentifier%22:[%22DH-DD(2021)1078E%22]} Council of Europe Committee of Ministers (2021b) Action plan (05/10/2021) - communication from Turkey Concerning the Group of Cases Zengin v. Turkey (Application No. 1448/04), Izzettin Dogan and Others v. Turkey (Application No. 62649/10), Mansur Yalcin v. Turkey (Application No. 21163/11) and Cumhuriyetci Egitim Ve Kultur Merkezi Vakfi v. Turkey (Application No. 32093/10). https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0 900001680a416dc#globalcontainer Council of Europe Committee of Ministers (2021c) H46-36 Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfı (Application No. 32093/10), İzzettin Doğan and Others (Application No. 62649/10) and Hasan and Eylem Zengin group (Application No. 1448/04) v. Turkey. https://hudoc.exec.coe.int/eng#{%22EXECIdentifier%22:[%22CM/Del/Dec(2021)1419/H46-3 6E%22]} Council of Europe Committee of Ministers (2023) Communication from Türkiye concerning the case of ZENGIN v. Turkey, CUMHURIYETCI EGITIM VE KULTUR MERKEZI VAKFI v. Turkey, MANSUR YALCIN AND OTHERS v. Turkey and IZZETTIN DOGAN AND OTHERS v. Turkey (Application Nos 1448/04, 32093/10, 21163/11 and 62649/10). https:// hudoc.exec.coe.int/eng#{%22EXECIdentifier%22:[%22DH-DD(2023)407E%22]} Demir HS (2011) Türkiye’de Din ve Vicdan Özgürlüğü [The freedom of religion and conscience in Turkey]. Adalet, Ankara

240

7

The ECtHR and Turkish Secularism

Demir Ö (2018) Laiklik İlkesi Bağlamında Türkiye’de Zorunlu Din Dersi ve Muafiyet Sistemi [Compulsory religion class and the exemption system in the context of the principle of secularism in Turkey]. Master’s thesis, Istanbul Bilgi University DHA A (2016) Mahkemeden flaş zorunlu din dersi kararı [Flash decision from the Court about compulsory religion class]. In: Hürriyet. https://www.hurriyet.com.tr/gundem/mahkemedenflas-zorunlu-din-dersi-karari-40070601 Doğru O, Nalbant A (2013) İnsan Hakları Avrupa Sözleşmesi: Açıklama ve Önemli Kararlar [The European Convention on Human Rights: commentary and the important judgments]. Legal, İstanbul Duvan AÖ (2015) The judicial application of human rights law in Turkey. J Penal Law Criminol 3: 59–73 Düzel N (2004) Türbanın Şansı Yok [Headscarf has no chance] - Interview with Erdoğan Teziç. In: Radikal. http://www.radikal.com.tr/turkiye/turbanin_sansi_yok-717777/ Erdoğan M (2019) Din Dayatma İlkelliğinden Vazgeçmek [Abandoning the primitiveness of imposing religion]. In: Mustafa Erdoğan. http://erdoganmustafa.org/din-dayatmailkelliginden-vazgecmek/ Erdoğan M (2010) Zorunlu din dersi, çoğulculuk ve tarafsızlık [The compulsory religion class, pluralism and impartiality]. In: Hür Fikirler. http://www.hurfikirler.com/zorunlu-din-dersicogulculuk-ve-tarafsizlik/ Erdoğan M, Yazıcı S (2011) Report of the TESEV Commission on Constitution: towards Turkey’s New Constitution. TESEV Publications. https://www.tesev.org.tr/wp-content/uploads/report_ Towards_Turkeys_New_Constitution.pdf Erenler Eğitim. ve Kültür Vakfı’ndan açıklama [Statement from the Erenler Foundation for the Education and Culture]. In: Serhatbirikim. http://www.serhatbirikim.com.tr/haber-erenleregitim-ve-kultur-vakfi-ndan-aciklama-7952.html Eroğul C (2015) Öznel Bir Hak Olarak Laiklik [Secularism as a subjective right]. Ankara Üniversitesi SBF Dergisi 46:183–190 European Commission against Racism and Intolerance (ECRI) (2005) Third report on Turkey, Adopted on 25 June 2004. Council of Europe. https://rm.coe.int/third-report-on-turkey/1680 8b5c7b Evans C (2001) Freedom of religion under the European Convention on Human Rights. Oxford University Press, Oxford Ferri M (2017) The Dogan et al. v. Turkey Case: a missed opportunity to recognise positive obligations as regards the freedom of religion. Eur Pap J Law Integr 2:311–319. https://doi. org/10.15166/2499-8249/117 Gemalmaz MS (2005) Türk Kıyafet Hukuku ve Türban [Turkish dress law and headscarf]. Legal Yayıncılık, İstanbul Gören Z (2015) Anayasa Hukuku [Constitutional law]. Yetkin Yayınları, Ankara Gozaydin I, Ozturk AE (2014) The Management of Religion in Turkey. Turkey Institute. https:// www.turkeyinstitute.org.uk/assets/docs/The-Management-of-Religion-in-Turkey.pdf Gözaydın İ (2015) AKP ve Diyanet [The AKP and Diyanet]. In: Cumhuriyet. https://www. cumhuriyet.com.tr/yazarlar/olaylar-ve-gorusler/akp-ve-diyanet-242033 Gözler K (2010) 1982 Anayasasına Göre Din Eğitimi ve Öğretimi [Religious education and instruction under the 1982 constitution]. In: Türk Anayasa Hukuku Sitesi. https://www. anayasa.gen.tr/din-egitimi.htm#_ftn1 Gözler K (2009) Kamu Hizmetlerinde Laiklik İlkesi [The principle of laicism in public services]. In: Türk İdare Hukuku Sitesi. https://www.idare.gen.tr/laiklik.htm Göztepe E (2007) Das Kopftuchverbot: Die letzte Bastion des türkischen Laizismus. In: Oebbecke J, Kalisch MS, Towfigh E (eds) Die Stellung der Frau im islamischen Religionsunterricht. Peter Lang Verlag, Frankfurt am Main Gunn TJ (2019) The “principle of secularism” and the European Court of Human Rights: a shell game. In: Temperman J, Gunn TJ, Evans MD (eds) The European Court of Human Rights and the freedom of religion or belief. Brill Nijhoff, Leiden, pp 465–573

References

241

Jenkins G (2007) Turkish government and secular establishment face off over headscarf ban. In: The Jamestown. https://jamestown.org/program/turkish-government-and-secular-establish ment-face-off-over-headscarf-ban/ Kaboğlu İ (2016) Anayasa Hukuku Dersleri: Genel Esaslar [Lessons of constitutional law: general principles]. Legal, İstanbul Kap D (2014) Türkiye’de Zorunlu Din Dersi Uygulaması [Implementation of compulsory religious education in Turkey]. Akademik Perspektif November:58–61 Karaca E (2015) Ağbaba: 100 Civarı Belediye Cemevlerine İbadethane Statüsü Verdi [Ağbaba: nearly 100 municipalities have given the status of place of worship to the Cemevis]. In: Bianet. https://m.bianet.org/bianet/ifade-ozgurlugu/162094-agbaba-100-civari-belediye-cemevlerineibadethane-statusu-verdi Kaymakcan R (2006) Türkiye’de Din Eğitimi Politikaları Üzerine Düşünceler [The thoughts on the religious education policies in Turkey]. Ekev Akademi Dergisi 10:21–36 Leigh I (2012) Objective, critical and pluralistic? Religious education and human rights in the European Public Sphere. In: Zucca L, Ungureanu C (eds) Law, state and religion in the new Europe: debates and dilemmas. Cambridge University Press, Cambridge Merter F, Kartal Ş (2014) 1967’den Günümüze Lise Din Kültürü ve Ahlak Bilgisi Dersleri Öğretim Programlarında Atatürkçülük ve Türk Kültürü Konuları [The Subjects related to Kemalism and Turkish culture included in high school curricula of religious culture and ethics courses since 1967]. Mehmet Akif Ersoy Üniversitesi Eğitim Fakültesi Dergisi 1:1–26 Ministry of Justice of the Republic of Turkey (2021) Action plan on human rights. https://inhak. adalet.gov.tr/Resimler/SayfaDokuman/1262021081047Action_Plan_On_Human_Rights.pdf Mutluer N (2018) Diyanet’s role in building the ‘Yeni (New) Milli’ in the AKP Era. Eur J Turk Stud 27:1–24. https://doi.org/10.4000/ejts.5953 Norwegian Helsinki Committee Freedom of Belief Initiative (2019) Pursuing rights and equality: monitoring report on the right to freedom of religion or belief in Turkey. https:// inancozgurlugugirisimi.org/wp-content/uploads/2019/08/Report_Turkey_ENG_web.pdf Öcal M (2017) Osmanlı’dan Günümüze Türkiye’de Din Eğitimi [Religious education in Turkey from the ottoman time to the present]. Dergah Yayınları, İstanbul ODIHR Advisory Council of Experts on Freedom of Religion or Belief (2007) Toledo guiding principles on teaching about religions and beliefs in public schools. https://www.osce.org/files/f/ documents/c/e/29154.pdf Özbudun E (2014) Türk Anayasa Hukuku [Turkish constitutional law]. Yetkin Yayınları, Ankara Özenç B (2005) Avrupa İnsan Hakları Sözleşmesi ve İnanç Özgürlüğü [The European Convention on Human Rights and Freedom of Belief]. Kitap Yayınevi, İstanbul Özenç B (2011) AİHM ve Danıştay Kararlarının Ardından Zorunlu Din Dersleri Sorunu [The problem of compulsory religion classes after the decisions of the ECtHR and the council of state]. İstanbul Üniversitesi Hukuk Fakültesi Mecmuası 66:191–226 Özgül C (2019) Freedom of religion, the ECtHR and grassroots mobilization on religious education in Turkey. Polit Relig 12:S103–S133. https://doi.org/10.1017/S1755048318000779 PACE (2005) Recommendation 1720 (2005) on education and religion PACE (2005). http:// assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17373 Poulter S (1997) Muslim headscarves in school: contrasting legal approaches in England and France. Oxf J Leg Stud 17:43–74 Sağlam F (2009) Laiklik İlkesine Bağlı Güncel Anayasal Sorunlar [Current constitutional issues regarding the principle of secularism]. In: Eroğul C (ed) Mümtaz Soysal’a Armağan [Festschrift for Mümtaz Soysal]. Mülkiyeliler Birliği Vakfı. Kızılay, Ankara Sağlam F (2013) Anayasa Hukuku Ders Notları [Constitutional law lecture notes]. Yakın Doğu Üniversitesi, Lefkoşa Şirin T (2015) Zorunlu Din Dersi Tartışmasının Görünmeyenleri [The unseen points of the debate on the compulsory religion class]. Güncel Hukuk Dergisi

242

7

The ECtHR and Turkish Secularism

Şirin T (2016) Türkiye’de Zorunlu Din Eğitimi Sorunu [The problem of compulsory religious education in Turkey]. https://www.academia.edu/28867575/Zorunlu_Din_Dersi_Helsinki_ Yurtta%C5%9Flar_Giri%C5%9Fimi_Ekim_docx Şirin T, Duymaz E, Yıldız D (2016) Türkiye’de Din ve Vicdan Özgürlüğü: Sorunlar, Tespitler ve Çözüm Önerileri [The freedom of religion and conscience in Turkey: problems, findings and solutions]. Türkiye Barolar Birliği, Ankara Tahzib-Lie B (2000) Applying gender perspective in the area of the right to freedom of religion or belief. BYU Law Rev 2000:967–988 Tanör B, Yüzbaşıoğlu N (2014) 1982 Anayasasına Göre Türk Anayasa Hukuku [Turkish Constitutional Law according to the 1982 constitution]. Beta Yayınları, İstanbul Temperman J (2019) Education and freedom of religion or belief under the European Convention on Human Rights and Protocol No. 1. In: Temperman J, Gunn J, Evans M (eds) The European Court of Human Rights and the Freedom of Religion or Belief: the 25 years since Kokkinakis. Brill | Nijhoff, Leiden The U.S. Commission on International Religious Freedom (USCIRF) (2019) 2019 Annual Report. https://www.uscirf.gov/reports-briefs/annual-report/2019-annual-report Türmen R (2016) AİHM’in Aleviler ve cemevleri ile ilgili kararı hangi gerekçelere dayanıyor? [On what grounds does the ECtHR’s judgment on Alevis and cemevis rely?]. In: T24. https:// t24.com.tr/yazarlar/riza-turmen/aihmin-aleviler-ve-cemevleri-ile-ilgili-karari-hangigerekcelere-dayaniyor,14502 Ulusoy A (2004) Avrupa İnsan Hakları Mahkemesi’nin Üniversitelerde Türban Yasağına İlişkin Kararları Üzerine Notlar [The notes on the European Court of Human Rights Decisions on the issue of headscarf ban at universities]. Ankara Üniversitesi Hukuk Fakültesi Dergisi 53:125– 134 Van Drooghenbroeck S (2004) Strasbourg et le voile [Strasbourg and the veil]. J Juris 0:10 Venice Commission (2010) Opinion on the legal status of religious communities in Turkey and the right of the orthodox patriarchate of Istanbul to use the adjective “ecumenical”. https://www. legislationline.org/download/id/5734/file/Turkey_VC_opinion_legal_status_religious_ comunities_Turkey_2010_en.pdf Wood KP (2017) Norway’s separation of Church and State: a work in progress. In: National Secular Society. https://www.secularism.org.uk/opinion/2017/01/norways-separation-of-church-andstate-a-work-in-progress Yanardağ V (2012) Kilisenin elektriğini Diyanet ödüyor [The electricity of the church is paid by the Diyanet]. https://www.aksam.com.tr/guncel/kilisenin-elektrigini-diyanet-oduyor%2D%2D10 9292h/haber-109292 Yildirim M (2016) Grand Chamber Judgment in Izzettin Doğan and Others v. Turkey: more than a typical religious discrimination case. In: Strasbourg Observers. https://strasbourgobservers. com/2016/07/18/grand-chamber-judgment-in-izzettin-dogan-and-others-v-turkey-more-than-atypical-religious-discrimination-case/ Yildiz I (2007) Minority rights in Turkey. BYU Law Rev 2007:791–812

Chapter 8

Conclusion

8.1

Summary and Critique

The subject of this research is the protection of the principle of secularism within the Turkish legal framework. The thesis aims to examine deficiencies existing in the Turkish constitutional-legal framework and judicial approach which prevent proper implementation of the principle of secularism and to elaborate recommendations with a view to improving the relevant constitutional-statutory framework. Firstly, how the concept of a secular state emerged in the West is explained and its definition is provided. Therefore, in Chap. 2, sufficient attention is given to the historical and religious factors lying behind the different practices of state-religion separation in the United States, France, and Turkey. Despite the different historical and religious contexts, however, the principle has two core requirements—freedom of religion and state-religion separation that must be respected by the states abiding thereto. These conceptual and theoretical explanations give an understanding of the issues regarding Turkish secularism treated in the subsequent chapters. This is also important to evaluate the claims raised in the court cases or the academic discussions making comparisons between different practices of secularism or proposing modifications to the understanding of Turkish secularism with reference to Western-type or American-type secularism. For example, in its headscarf decision of 2014, the TCC attempted to construe a different understanding of secularism for accommodating the appearance of the majority religion in the public sphere: “[w]hen the historical development of secularism is examined, it is seen that the concept has two different interpretations and practices depending on the differences in the approach towards the phenomenon of religion.”1 On this ground, it differentiated between “strict secularism understanding” and “flexible or libertarian interpretation of the secularism.”2 There is no need to evaluate this claim of the Court here, but it once 1 2

Tuğba Arslan, para. 134. Tuğba Arslan, para. 134.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Masmaliyeva, Turkish Secularism, European Union and its Neighbours in a Globalized World 12, https://doi.org/10.1007/978-3-031-46011-1_8

243

244

8

Conclusion

again shows that having sound knowledge of the historical background and theoretical framework of secularism has practical importance for addressing related issues. Chapter 3 aimed to explain the significance of the principle of secularism for the Turkish democratic republican order, and therefore its place within the Turkish legal framework. It has always been a prevalent view in the Turkish constitutional law literature that secularism is a precondition of Turkish democracy. This view was expressed by the TCC in its various judgments and adopted by the ECtHR. Yet some scholars challenge the value and necessity of secularism for Turkish democracy. Arguing that secularism is not a precondition of democracy, Kemal Gözler refers to the constitutions of Israel and Greece which adopt the Jewish faith as a state religion and the Eastern Orthodox Church of Christ as the prevailing religion, respectively, but at the same time enshrine the democratic order.3 He also mentions the United Kingdom where the Church of England and the Presbyterian Church have the status of established churches, the head of state is also the head of the Church of England and some clergymen are members of the House of Lords (The Lords Spiritual).4 It is emphasized that the UK is one of the oldest democracies of the world. Another legal scholar who challenged the importance of secularism for Turkish democracy is Mustafa Erdoğan. In his analysis of the Refah judgment, he criticized the ECtHR for adopting the TCC’s “superficial” evaluations concerning the character of sharia.5 He did not agree with the ECtHR’s opinion that “[i]t is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia . . .”6 According to Erdoğan, while it may be “difficult,” it is not impossible, as the Ottoman Basic Law of 1876 envisaged the sharia-based regime, but at the same time recognized the democratic institutions and introduced the human rights regime.7 Such dissenting views can cause one to question and rethink the significance of secularism for Turkish democracy. Therefore, the purpose of Chap. 3 was to allow the reader to perceive the meaning of the principle of secularism for the democraticrepublican order and not to confuse it with the Ottoman religious tolerance and the dualistic regime which involved sharia-based and secular institutions in parallel. There is a need to explore the recent jurisprudence of the TCC to identify the Court’s new approach toward the interaction of secularism and freedom of religion. Chapter 4 fulfilled this need. It has been found that the TCC is striving to formulate a new interpretation of secularism differentiating between restrictive and liberal models of secularism. This can be accepted as a sign of a need to establish a new application of the principle of secularism without merely trying to produce artificial new interpretations. The research has found that the TCC uses a “liberal

3

Gözler (2000), pp. 153–154. Gözler (2000), p. 154. 5 Erdoğan (2001), p. 47. 6 Refah Partisi (The Welfare Party) and Others v Turkey App nos 41340/98, 41342/98, 41343/98 and 41344/98 (ECtHR, 31 July 2001), para. 72. 7 Erdoğan (2001), p. 47. 4

8.1

Summary and Critique

245

understanding of secularism” and invokes the positive obligations of the state in the field of religious freedoms in cases concerning the regulation of majority religion in the public sphere. The Court still conducts a formal review of neutrality that misses the strict assignation of the state’s duty to secure the religious freedoms of individuals. As secularism is an irrevocable provision of the 1982 Constitution, the TCC must determine and enforce a coherent standard that ensures constitutional protection of religious liberties not solely for the dominant religion, but for minority religions as well. Coherent application of legal standards such as proportionality and equal treatment in religious freedom cases would ensure the state’s neutrality before its citizens of different faiths and allow the cohabitation of multiple religions. A limited approach of the TCC that does not consider these legal standards can allow neither the members of the Muslim majority nor those of minority religions to enjoy their freedom of religion. At the same time, in its current homogenous formation, the Court’s rulings can be easily determined by the ideological views of majority members and contemporary political tendencies. The Court’s jurisprudence can protect different religious sensibilities and respect different social values only if a relevant balance is settled in the rules of its composition. Considering this point, Chap. 4 introduced proposals for the appointment mechanism of constitutional judges aimed at providing democratic legitimacy, pluralist structure, and independence of the Constitutional Court. Chapter 5 analyzed the legal framework of political party prohibition and relevant jurisprudence of the TCC and proposed necessary constitutional and legislative amendments. The amendments proposed by the study are adequate from the point of bringing the rules on the prohibition of political parties into conformity with international standards. Moreover, Chap. 6 examined the redrafted balance of powers under the 2017 amendments and made proposals on how the presidential powers with respect to the judiciary should be construed. However, it should not be forgotten that accomplishment of these proposals depends on a consensus of political parties on the existence and protection of the democratic secular regime. A democratic secular consensus can be reached only by achieving a complete agreement on the basic principles that are the common heritage of the Constitutions of the Republic. These principles can be summarized as stipulated in Article 2 of the Constitution: “. . . a democratic, secular and social state governed by rule of law, within the notions of public peace, national solidarity, and justice, respecting human rights, loyal to the nationalism of Atatürk . . .” Pluralist and secular democracy can only develop with common consent on such a basis. Therefore, political actors who do not agree on fundamental principles cannot establish a pluralist balance based on consensus in daily politics. In this case, a regime dispute will come to the fore in the solution of every concrete issue. An example of this can be seen in a futile effort made by Ismail Kahraman, former speaker of the GNAT and also an AKP parliamentarian, during the debates over the proposed amendments held before the constitutional referendum of April 2017. Although the package of 2017 constitutional amendments did not propose any change concerning the constitutional provisions on secularism, the Parliament

246

8

Conclusion

speaker remarked about the necessity for a new “religious constitution” and emphasized that the current Constitution does not mention the word “Allah.”8 Going further, he suggested that the new Constitution should eliminate all references to secularism. Despite the strict provision of unamendability, a high-ranking official such as the Assembly speaker was not shy about proposing the inclusion of references to God in the Constitution and eliminating provisions of secularism. The AKP immediately reacted, asserting that the speaker expressed merely his personal views and that his expressions did not represent the party’s position towards secularism. Similarly, President Erdoğan noted that his own opinion on secularism was known: “The reality is that the state should have an equal distance from all religious faiths.”9 The establishment and protection of the pluralist and secular democratic balance is not only a duty of the state or the parties of the established order. The anti-system parties also share this responsibility. The democratic order of Turkey which offers political rights and freedoms is based on the tenet of secularism. It is so much so that even religiously-motivated parties can take large benefit of this system for their own purposes as long as their struggle remains within the basic rules of the state order; in other words, as long as they do not abuse the rights provided to them by the democratic secular order. Provided that they comply with these basic conditions, in a democratic secular order even the anti-system parties can find a large political sphere through the democratic methods without being subject to restrictions. However, the parties that, instead of using these opportunities, pursue to destroy the secular democratic order and for that purpose abuse the rights granted to them by democracy, should be penalized according to party prohibition rules. The effective application of the party prohibition mechanism, in its turn, requires the balanced arrangement of powers, particularly the judicial power, including the CJP, the TCC, and the Chief Public Prosecutor. In this context, the main problem is that the principle of secularism as a fundamental tenet of the state has not been commonly understood by all political groups due to the extremely polarized structure of Turkish society. Religion is very active in the political sphere and it is extremely difficult to overcome this problem by legal guarantees alone. Overcoming this issue is largely a matter of political culture. A secularism-based democracy and human rights education starting from primary school to higher school could make an important contribution to the development of a such political culture. The EctHR’s judgments have an impact on the conceptualization of Turkish secularism in line with Turkey’s international human rights obligations. It is assumed that as much as the application of this principle is informed by international human rights commitments, it raises fewer questions in practice concerning the state’s duty of neutrality. In other words, international human rights law has a transformative effect on Turkish secularism. Therefore, the key duty of the ECtHR seems to be the capability and the eagerness to strictly assess the restriction of the

8 9

Osborne (2016). Osborne (2016).

8.2

Future of Turkish Secularism

247

Convention rights concerning the regulation of religion by the state. It has been observed that an apparent willingness of the ECtHR to grant states a broad margin of appreciation in freedom of religion cases diverges from the more coherent approach of the HRC.10 Analysis of the ECtHR’s jurisprudence and comparisons between the usage of terminology by the ECtHR and the HRC confirms that this finding is also applicable to Turkish cases. However, the adoption of a more consistent standard of freedom of religion by the ECtHR without regard to diverse state-religion relationships can provide effective European scrutiny for Turkey, among other countries, in control of the religious sphere. In recent times, the ECtHR has begun to conduct a more rigorous examination and avoid invoking the margin of appreciation in reviewing the effects of regulation of the religious sphere on the non-Sunni Islamic denominations. This approach of the Strasbourg Court should be consistent. It should be emphasized that the domestic courts have internalized the ECtHR’s judgments to a large extent. Referring to the Zengin and Yalçın decisions, the Council of State and local administrative courts have upheld the requests of Alevi parents for exemptions from the obligatory religion classes considering this instruction unconstitutional. Thus, through accurate interpretation of the constitutional principle of secularism and support drawn from the ECtHR decisions, the domestic courts have been able to remedy violations of the Convention and Constitution in individual cases. Yet, the government still has not removed the general cause of those violations in accordance with the ECtHR judgments. This requires the ECtHR to improve its follow-up and implementation mechanisms.

8.2

Future of Turkish Secularism

The policies conducted under the AKP government during its 18-year governance gave rise to the expansion of religion in the political and public sphere against the requirements of the principles of secularism and pluralism. The increasing place of religious instruction in the education system, the growing public influence of the Diyanet, the intentions for withdrawing from the Istanbul Convention,11 plus the attempts at building the conservative family model and creating a pious generation are some examples of using religion for populist purposes. These examples can be extended. The retransformation of the Hagia Sophia into a mosque should be also seen within the framework of the same political understanding.12

10

See Taylor (2005), pp. 343 and 350. (2020) Turkey, Poland Consider Leaving Istanbul Convention on Violence against Women. In: International Justice Resource Center. https://ijrcenter.org/2020/08/06/turkey-poland-considerleaving-istanbul-convention-on-violence-against-women/. Turkey withdrew from the Istanbul Convention on 19 March 2021 by the decree of President Erdoğan. 12 See Türmen and Kurnaz (2020). 11

248

8

Conclusion

The Hagia Sophia, a Byzantine Christian Orthodox cathedral transformed into a mosque following the Ottoman conquest of Istanbul in 1453, was turned into a museum by a decision of the Board of Ministers adopted on 24 November 1934.13 This decision signed by Atatürk was a symbol of the importance given to secularism, pluralism, and peaceful coexistence by the young republic. On 10 July 2020, the Hagia Sophia was again turned into a mosque by a presidential decree14 adopted in accordance with the Council of State’s decision of 2 July 2020.15 This decision intensified the concerns about the challenges for secularism in Turkey16 and raised questions about the values and principles of the state order envisioned by the AKP government. The answer to these questions, especially to the future of secularism in Turkey cannot be given solely by focusing on the mentioned policies of the current AKP government. It should be remembered that restrictive secularist policies carried out after the establishment of the Turkish Republic for decades did not fully achieve consolidation of the principle of secularism as a basic pillar of the state. Furthermore, political Islam arose during the 1990s and beyond, mainly as a response to restrictive measures such as the headscarf prohibition. Towards the end of the Ottoman Empire, Sultan Abdulhamid II (1876–1909) conducted Islamic policies pursuing to reinstitute the dominance of Islam.17 His policies, however, were opposed by a secular young generation, the Young Turks, who challenged the two basic pillars of “the Ottoman ancien regime”—“the sultanate and Islamic institutions.”18 Thus, the policies pursued by the government cannot be the sole criterion to predict the future of secularism in Turkey. Other dynamics in the society such as the level of personal piety, the influence of opposition and intellectuals, and the trends among the young generation should be also considered. Several sociological surveys and studies indicate increasing secularization tendencies and decreasing religious behavior among young people in Turkey. Reviewing the quantitative and qualitative studies, sociologist Volkan Ertit argues that the “top-down religiosity” enforced by the AKP government has failed to achieve the intended transformation. He rather points out a declining influence of Islam in the social sphere.19 According to the poll conducted by the pollster Konda in 2018, levels of piety in Turkey have been dropping in comparison to the results of the similar survey held in 2008.20 The Turkish analyst, Soner Cagaptay believes that if these surveys reflect a real tendency,

13

Aymalı (2013). Cumhurbaşkanı Kararı [Presidential Decree], No. 2729, 10 July 2020, Official Gazette, 10 July 2020, No. 31181. 15 Council of State decision, 2 July 2020, E. 2016/16015, K. 2020/2595. 16 See, for example, Kılıç (2020); Lixinski and Tzevelekos (2020). 17 Kuru (2009), pp. 209–211. 18 Kuru (2009), pp. 212–214. 19 Ertit (2018), pp. 192–211. 20 What Has Changed in 10 Years? In: Konda Interaktif. https://interaktif.konda.com.tr/en/ HayatTarzlari2018/#firstPage. 14

8.2

Future of Turkish Secularism

249

then it should be perceived as a backlash from the youth against the official push towards religiosity.21 The research conducted by Yusuf Sarfati together with a team of researchers from the Baker Institute also indicates that 45 percent of the Turkish respondents expressed that they “do not approve of religious leaders,” demonstrating a “broad skepticism of religious authority in Turkey.”22 Evaluating these surveys and producing concrete scenarios concerning the future of secularism in Turkey is not within the scope of our research. However, these data once again show that the political and social circumstances are dynamic and change over time. Moreover, the impact of social engineering policies is limited. Therefore, the decision about the fundamental rules and the rules on the working of secularism must be made on its abstract merits, without being influenced by the reading of political currents. In late November of 2020, President Erdoğan publicly announced a new period of reforms. The reform plan will concentrate on the fields of law, economy, and human rights. Legal reforms look to come at the top of the reform agenda. It is claimed that “making the Turkish legal system more consistent, strengthening institutional coordination, and removing some of the barriers to the democratic system are the key pillars of the legal reforms.”23 The Assembly will prioritize the judicial reforms and is expected to introduce the reform packages in 2021.24 Additionally, the President gave important messages to the international allies and partners of the country declaring that “Turkey is committed to the European Union agenda and willing to improve cooperation and coordination with its traditional Western allies.”25 The announcement of the reforms is not surprising considering the economic and social crisis, institutional breakdown caused by the 2017 amendments, and the economic and political anticipations of the Turkish citizens. According to some critics, the emphasis of the reforms on the “economy, democracy and law” indicates that Turkey has a poor score especially in these fields and can be considered as a confession of the wrong policies held in these areas.26 The President of the Ankara Bar Association, Erinç Sağkan, argues that the reforms should not focus on the laws, but on the judicial independence which is a prerequisite for changing the understanding of the judiciary. A serious step in this field can be taken by ensuring independence of the CJP from the influence of the government.27

21

Kenyon (2019). Sarfati (2019). 23 Köse (2020). 24 (2020) Erdogan: Turkey Initiates New Economic and Judicial Reform Era. In: TRTWorld. https:// www.trtworld.com/turkey/erdogan-turkey-initiates-new-economic-and-judicial-reform-era-41440. 25 Köse (2020). 26 Bila (2020). 27 (2020) HUKUK REFORMU NEYİ DEĞİŞTİRMELİ?: “Reform, Yargı Bağımsızlığıyla Gerçekleşir”‘[WHAT THE LEGAL REFORM SHOULD CHANGE?: “The Reform Can Be Achieved by the Judicial Independence”]. In: Bianet. https://www.bianet.org/bianet/hukuk/234 877-reform-yargi-bagimsizligiyla-gerceklesir. 22

250

8

Conclusion

An independent and strong judiciary is vital for the substantial improvement of the application of the principle of secularism. This improvement can be reached by granting constitutional protection of religious freedoms not only for the majority religion, but also for minorities, and by strict scrutinization of the state’s duty of neutrality. Such a change in the understanding and approach of the judiciary can be achieved only by reforms guaranteeing the independence and impartiality of the judiciary. An effective working stable democratic order must be grounded in the ethical value of citizenship granting equal rights and freedoms to all citizens in the public area. This equality is ensured through the principle of secularism which prohibits discriminatory treatment on the ground of religion and requires the state authorities to be neutral towards religions. If not, identity-based divisions and confrontations will impair the peaceful coexistence and the unity of the state. For Turkey, there is no consistent alternative other than the secular democratic constitutional framework. Therefore, this framework should be protected and strengthened.

References (2020) Turkey, Poland Consider Leaving Istanbul Convention on Violence against Women. In: International Justice Resource Center. https://ijrcenter.org/2020/08/06/turkey-poland-considerleaving-istanbul-convention-on-violence-against-women/ (2020) Erdogan: Turkey initiates new economic and judicial reform era. In: TRTWorld. https:// www.trtworld.com/turkey/erdogan-turkey-initiates-new-economic-and-judicial-reformera-41440 (2020) HUKUK REFORMU NEYİ DEĞİŞTİRMELİ?: “Reform, yargı bağımsızlığıyla gerçekleşir” [WHAT THE LEGAL REFORM SHOULD CHANGE?: “The reform can be achieved by the judicial independence”]. In: Bianet. https://www.bianet.org/bianet/hukuk/234 877-reform-yargi-bagimsizligiyla-gerceklesir Aymalı Ö (2013) How was the Hagia Sofia transformed into a museum? In: World Bulletin. https:// worldbulletin.dunyabulteni.net/islamic-world/how-was-the-hagia-sofia-transformed-into-amuseum-h123539.html Bila F (2020) İktidarın İtirafı [Confession of the government]. In: T24. https://t24.com.tr/yazarlar/ fikret-bila/iktidarin-itirafi,28723 Erdoğan M (2001) AİHM’nin RP Kararının Düşündürdükleri [The thoughts on the ECtHR’s Refah Decision]. Liberal Düşünce Dergisi Spring:41–50 Ertit V (2018) God is dying in turkey as well: application of secularization theory to a non-Christian society. Open Theology 4:192–211. https://doi.org/10.1515/opth-2018-0014 Gözler K (2000) Türk Anayasa Hukuku [Turkish Constitutional Law]. Ekin, Bursa Kenyon P (2019) Turks examine their Muslim devotion after poll says faith could be waning. In: NPR. https://www.npr.org/2019/02/11/692025584/turks-examine-their-muslim-devotion-afterpoll-says-faith-could-be-waning Kılıç AO (2020) Creeping diversion from secularism in Turkey – how the Hagia Sophia decision poses a threat to inter-faith co-existence, secular spaces and freedom of religion. In: Völkerrechtsblog. https://voelkerrechtsblog.org/creeping-diversion-from-secularism-in-turkey/ Köse T (2020) Wind of reforms and Erdoğan’s step to catch spirit of time. In: Daily Sabah. https:// www.dailysabah.com/opinion/columns/wind-of-reforms-and-erdogans-step-to-catch-spirit-oftime

References

251

Kuru AT (2009) Secularism and state policies toward religion: the United States, France, and Turkey. Cambridge University Press, Cambridge Lixinski L, Tzevelekos VP (2020) The Hagia Sophia, Secularism, and International Cultural Heritage Law. In: ASIL. https://www.asil.org/insights/volume/24/issue/25/hagia-sophia-secu larism-and-international-cultural-heritage-law Osborne S (2016) Turkish parliament speaker prompts outrage with call to replace secularism with religious constitution. In: The Independent. https://www.independent.co.uk/news/world/ europe/turkish-parliament-speaker-prompts-outrage-call-replace-secularism-religious-constitu tion-a7002901.html Sarfati Y (2019) Religious authority in Turkey: hegemony and resistance. Rice University’s Baker Institute for Public Policy. https://www.bakerinstitute.org/media/files/files/c873dd82/cme-publuce-sarfati-031119.pdf Taylor PM (2005) Freedom of religion: UN and European Human Rights Law and Practice. Cambridge University Press, Cambridge Türmen R, Kurnaz I (2020) Bir hukuk bulmacası: Ayasofya müze mi, cami mi? [Here is a legal puzzle: is Hagia Sophia a museum or a mosque?]. In: T24. https://t24.com.tr/yazarlar/rizaturmen/bir-hukuk-bulmacasi-ayasofya-muze-mi-cami-mi,27410 What has changed in 10 years? In: Konda Interaktif. https://interaktif.konda.com.tr/en/ HayatTarzlari2018/#firstPage

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle of Secularism1

PREAMBLE (As amended on July 23, 1995; Act No. 4121) Affirming the eternal existence of the Turkish Motherland and Nation and the indivisible unity of the Sublime Turkish State, this Constitution, in line with the concept of nationalism introduced by the founder of the Republic of Turkey, Atatürk, the immortal leader and the unrivalled hero, and his reforms and principles; Determining to attain the everlasting existence, prosperity, material and spiritual well-being of the Republic of Turkey, and the standards of contemporary civilization as an honourable member with equal rights of the family of world nations; The absolute supremacy of the will of the nation, the fact that sovereignty is vested fully and unconditionally in the Turkish Nation and that no individual or body empowered to exercise this sovereignty in the name of the nation shall deviate from the liberal democracy indicated in the Constitution and the legal system instituted according to its requirements, The separation of powers, which does not imply an order of precedence among the organs of the State, but refers solely to the exercising of certain state powers and discharging of duties, and is limited to a civilized cooperation and division of functions; and the fact that only the Constitution and the laws have the supremacy; (As amended on October 3, 2001; Act No. 4709) That no protection shall be accorded to an activity contrary to Turkish national interests, Turkish existence and the principle of its indivisibility with its State and territory, historical and moral values of Turkishness; the nationalism, principles, reforms and civilizationism of

1

These provisions have been extracted from the official English version of the 1982 Turkish Constitution which can be found at the website of the GNAT, https://global.tbmm.gov.tr/docs/ constitution_en_2019.pdf.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Masmaliyeva, Turkish Secularism, European Union and its Neighbours in a Globalized World 12, https://doi.org/10.1007/978-3-031-46011-1

253

254

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

Atatürk and that sacred religious feelings shall absolutely not be involved in state affairs and politics as required by the principle of secularism; That every Turkish citizen has an innate right and power, to lead an honourable life and to improve his/her material and spiritual wellbeing under the aegis of national culture, civilization, and the rule of law, through the exercise of the fundamental rights and freedoms set forth in this Constitution, in conformity with the requirements of equality and social justice; That all Turkish citizens are united in national honour and pride, in national joy and grief, in their rights and duties regarding national existence, in blessings and in burdens, and in every manifestation of national life, and that they have the right to demand a peaceful life based on absolute respect for one another’s rights and freedoms, mutual love and fellowship, and the desire for and belief in “Peace at home; peace in the world”; With these IDEAS, BELIEFS, and RESOLUTIONS to be interpreted and implemented accordingly, thus commanding respect for, and absolute loyalty to, its letter and spirit; Has been entrusted by the TURKISH NATION to the democracy-loving Turkish sons’ and daughters’ love for the motherland and nation.

PART ONE General Principles I. Form of the State ARTICLE 1—The State of Turkey is a Republic. II. Characteristics of the Republic ARTICLE 2—The Republic of Turkey is a democratic, secular and social state governed by rule of law, within the notions 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. IV. Irrevocable provisions ARTICLE 4—The provision of Article 1 regarding the form of the State being a Republic, the characteristics of the Republic in Article 2, and the provisions of Article 3 shall not be amended, nor shall their amendment be proposed. VI. Sovereignty ARTICLE 6—Sovereignty belongs to the Nation without any restriction or condition. The Turkish Nation shall exercise its sovereignty through the authorized organs, as prescribed by the principles set forth in the Constitution.

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

255

The exercise of sovereignty shall not be delegated by any means to any individual, group or class. No person or organ shall exercise any state authority that does not emanate from the Constitution. X. Equality before the law ARTICLE 10—Everyone is equal before the law without distinction as to language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such grounds. (Paragraph added on May 7, 2004; Act No. 5170) Men and women have equal rights. The State has the obligation to ensure that this equality exists in practice. (Sentence added on September 12, 2010; Act No. 5982) Measures taken for this purpose shall not be interpreted as contrary to the principle of equality. (Paragraph added on September 12, 2010; Act No. 5982) Measures to be taken for children, the elderly, disabled people, widows and orphans of martyrs as well as for the invalid and veterans shall not be considered as violation of the principle of equality. No privilege shall be granted to any individual, family, group or class. State organs and administrative authorities are obliged to act in compliance with the principle of equality before the law in all their proceedings.

PART TWO Fundamental Rights and Duties CHAPTER ONE General Provisions II. Restriction of fundamental rights and freedoms ARTICLE 13—(As amended on October 3, 2001; Act No. 4709) Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality. III. Prohibition of abuse of fundamental rights and freedoms ARTICLE 14—(As amended on October 3, 2001; Act No. 4709) None of the rights and freedoms embodied in the Constitution shall be exercised in the form of activities aiming to violate the indivisible integrity of the State with its territory and nation, and to endanger the existence of the democratic and secular order of the Republic based on human rights. No provision of this Constitution shall be interpreted in a manner that enables the State or individuals to destroy the fundamental rights and freedoms recognized by

256

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

the Constitution or to stage an activity with the aim of restricting them more extensively than stated in the Constitution. The sanctions to be applied against those who perpetrate activities contrary to these provisions shall be determined by law. IV. Suspension of the exercise of fundamental rights and freedoms ARTICLE 15—(As amended on April 16, 2017; Act No. 6771) In times of war, mobilization, a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended, or measures derogating the guarantees embodied in the Constitution may be taken to the extent required by the exigencies of the situation, as long as obligations under international law are not violated. (As amended on May 7, 2004; Act No. 5170) Even under the circumstances indicated in the first paragraph, the individual’s right to life, the integrity of his/her corporeal and spiritual existence shall be inviolable except where death occurs through acts in conformity with law of war; no one shall be compelled to reveal his/her religion, conscience, thought or opinion, nor be accused on account of them; offences and penalties shall not be made retroactive; nor shall anyone be held guilty until so proven by a court ruling.

CHAPTER TWO Rights and Duties of the Individual IV. Privacy and protection of private life A. Privacy of private life ARTICLE 20—Everyone has the right to demand respect for his/her private and family life. Privacy of private or family life shall not be violated. (Sentence repealed on May 3, 2001; Act No. 4709) (As amended on October 3, 2001; Act No. 4709) Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorized by law, in cases where delay is prejudicial, again on the abovementioned grounds, neither the person, nor the private papers, nor belongings of an individual shall be searched nor shall they be seized. The decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours. The judge shall announce his decision within forty-eight hours from the time of seizure; otherwise, seizure shall automatically be lifted. (Paragraph added on September 12, 2010; Act No. 5982) Everyone has the right to request the protection of his/her personal data. This right includes being informed of, having access to and requesting the correction and deletion of his/ her personal data, and to be informed whether these are used in consistency with envisaged objectives. Personal data can be processed only in cases envisaged by law or by

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

257

the person’s explicit consent. The principles and procedures regarding the protection of personal data shall be laid down in law. B. Inviolability of the domicile ARTICLE 21—(As amended on October 3, 2001; Act No. 4709) The domicile of an individual shall not be violated. Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorized by law in cases where delay is prejudicial, again on these grounds, no domicile may be entered or searched or the property seized therein. The decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours. The judge shall announce his decision within forty-eight hours from the time of seizure; otherwise, seizure shall be automatically lifted. C. Freedom of communication ARTICLE 22—(As amended on October 3, 2001; Act No. 4709) Everyone has the freedom of communication. Privacy of communication is fundamental. Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorized by law in cases where delay is prejudicial, again on the abovementioned grounds, communication shall not be impeded nor its privacy be violated. The decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours. The judge shall announce his decision within forty-eight hours from the time of seizure; otherwise, seizure shall be automatically lifted. Public institutions and agencies where exceptions may be applied are prescribed in law. V. Freedom of residence and movement ARTICLE 23—Everyone has the freedom of residence and movement. Freedom of residence may be restricted by law for the purpose of preventing crimes, promoting social and economic development, achieving sound and orderly urbanization, and protecting public property. Freedom of movement may be restricted by law for the purpose of investigation and prosecution of an offence, and prevention of crimes. (As amended on October 3, 2001; Act No. 4709, and as amended on September 12, 2010; Act No. 5982) A citizen’s freedom to leave the country may be restricted only by the decision of a judge based on a criminal investigation or prosecution. Citizens shall not be deported, or deprived of their right of entry into the homeland. VI. Freedom of religion and conscience ARTICLE 24—Everyone has the freedom of conscience, religious belief and conviction.

258

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

Acts of worship, religious rites and ceremonies shall be conducted freely, as long as they do not violate the provisions of Article 14. No one shall be compelled to worship, or to participate in religious rites and ceremonies, or to reveal religious beliefs and convictions, or be blamed or accused because of his religious beliefs and convictions. Religious and moral education and instruction shall be conducted under state supervision and control. Instruction in religious culture and morals shall be one of the compulsory lessons in the curricula of primary and secondary schools. Other religious education and instruction shall be subject to the individual’s own desire, and in the case of minors, to the request of their legal representatives. 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 interest or influence, or for even partially basing the fundamental, social, economic, political, and legal order of the State on religious tenets. VII. Freedom of thought and opinion ARTICLE 25—Everyone has the freedom of thought and opinion. No one shall be compelled to reveal his/her thoughts and opinions for any reason or purpose; nor shall anyone be blamed or accused because of his/her thoughts and opinions. VIII. Freedom of expression and dissemination of thought ARTICLE 26—Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities. This provision shall not preclude subjecting transmission by radio, television, cinema, or similar means to a system of licensing. (As amended on October 3, 2001; Act No. 4709) The exercise of these freedoms may be restricted for the purposes of national security, public order, public safety, safeguarding the basic characteristics of the Republic and the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation or rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary. (Repealed on October 3, 2001; Act No. 4709) Regulatory provisions concerning the use of means to disseminate information and thoughts shall not be deemed as the restriction of freedom of expression and dissemination of thoughts as long as the transmission of information and thoughts is not prevented. (Paragraph added on October 3, 2001; Act No. 4709) The formalities, conditions and procedures to be applied in exercising the freedom of expression and dissemination of thought shall be prescribed by law.

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

259

IX. Freedom of science and the arts ARTICLE 27—Everyone has the right to study and teach, express, and disseminate science and the arts, and to carry out research in these fields freely. The right to disseminate shall not be exercised for the purpose of changing the provisions of articles 1, 2 and 3 of the Constitution. The provision of this article shall not preclude regulation by law of the entry and distribution of foreign publications in the country. X. Provisions relating to the press and publication A. Freedom of the press ARTICLE 28—The press is free, and shall not be censored. The establishment of a printing house shall not be subject to prior permission or the deposit of a financial guarantee. (Repealed on October 3, 2001; Act No. 4709) The State shall take the necessary measures to ensure freedom of the press and information. In the limitation of freedom of the press, the provisions of articles 26 and 27 of the Constitution shall apply. Anyone who writes any news or articles which threaten the internal or external security of the State or the indivisible integrity of the State with its territory and nation, which tend to incite offence, riot or insurrection, or which refer to classified state secrets or has them printed, and anyone who prints or transmits such news or articles to others for the purposes above, shall be held responsible under the law relevant to these offences. Distribution may be prevented as a precautionary measure by the decision of a judge, or in case delay is deemed prejudicial, by the competent authority explicitly designated by law. The authority preventing the distribution shall notify a competent judge of its decision within twenty-four hours at the latest. The order preventing distribution shall become null and void unless upheld by a competent judge within forty-eight hours at the latest. No ban shall be placed on the reporting of events, except by the decision of judge issued within the limits specified by law, to ensure proper functioning of the judiciary. Periodical and non-periodical publications may be seized by a decision of a judge in cases of ongoing investigation or prosecution of crimes specified by law; or by order of the competent authority explicitly designated by law, in situations where delay may constitute a prejudice with respect to the protection of the indivisible integrity of the State with its territory and nation, national security, public order or public morals and for the prevention of crime. The competent authority issuing the order to seize shall notify a competent judge of its decision within twenty-four hours at the latest; the order to seize shall become null and void unless upheld by a judge within forty-eight hours at the latest. General provisions shall apply when seizing and confiscating periodicals and non-periodicals for reasons of criminal investigation and prosecution. Periodicals published in Turkey may be temporarily suspended by court ruling if found to contain material which contravenes the indivisible integrity of the State

260

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

with its territory and nation, the fundamental principles of the Republic, national security and public morals. Any publication which clearly bears the characteristics of being a continuation of a suspended periodical is prohibited; and shall be seized by decision of a judge. XI. Rights and freedoms of assembly A. Freedom of association ARTICLE 33—(As amended on October 3, 2001; Act No. 4709) Everyone has the right to form associations, or become a member of an association, or withdraw from membership without prior permission. No one shall be compelled to become or remain a member of an association. Freedom of association may be restricted only by law on the grounds of national security, public order, prevention of commission of crime, public morals, public health and protecting the freedoms of other individuals. The formalities, conditions, and procedures to be applied in the exercise of freedom of association shall be prescribed by law. Associations may be dissolved or suspended from activity by the decision of a judge in cases prescribed by law. However, where it is required for, and a delay constitutes a prejudice to, national security, public order, prevention of commission or continuation of a crime, or an arrest, an authority may be vested with power by law to suspend the association from activity. The decision of this authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours. The judge shall announce his/her decision within forty-eight hours; otherwise, this administrative decision shall be annulled automatically. Provisions of the first paragraph shall not prevent imposition of restrictions on the rights of armed forces and security forces officials and civil servants to the extent that the duties of civil servants so require. The provisions of this article shall also apply to foundations. B. Right to hold meetings and demonstration marches ARTICLE 34—(As amended on October 3, 2001; Act No. 4709) Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission. The right to hold meetings and demonstration marches shall be restricted only by law on the grounds of national security, public order, prevention of commission of crime, protection of public health and public morals or the rights and freedoms of others. The formalities, conditions, and procedures to be applied in the exercise of the right to hold meetings and demonstration marches shall be prescribed by law.

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

261

CHAPTER THREE Social and Economic Rights and Duties II. Right and duty of education ARTICLE 42—No one shall be deprived of the right of education. The scope of the right to education shall be defined and regulated by law. Education shall be conducted along the lines of the principles and reforms of Atatürk, based on contemporary scientific and educational principles, under the supervision and control of the State. Educational institutions contravening these principles shall not be established. The freedom of education does not relieve the individual from loyalty to the Constitution. Primary education is compulsory for all citizens of both sexes and is free of charge in state schools. The principles governing the functioning of private primary and secondary schools shall be regulated by law in keeping with the standards set for the state schools. (Paragraph added on February 2, 2008; Act No. 5735, and annulled by the decision of the Constitutional Court dated June 5, 2008 numbered E. 2008/16, K. 2008/116) The State shall provide scholarships and other means of assistance to enable students of merit lacking financial means to continue their education. The State shall take necessary measures to rehabilitate those in need of special education so as to render such people useful to society. Training, education, research, and study are the only activities that shall be pursued at institutions of education. These activities shall not be obstructed in any way. No language other than Turkish shall be taught as a mother tongue to Turkish citizens at any institution of education. Foreign languages to be taught in institutions of education and the rules to be followed by schools conducting education in a foreign language shall be determined by law. The provisions of international treaties are reserved.

CHAPTER FOUR Political Rights and Duties III. Provisions relating to political parties A. Forming parties, membership and withdrawal from membership in a party ARTICLE 68—(As amended on July 23, 1995; Act No. 4121) Citizens have the right to form political parties and duly join and withdraw from them. One must be over eighteen years of age to become a member of a party.

262

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

Political parties are indispensable elements of democratic political life. Political parties shall be formed without prior permission, and shall pursue their activities in accordance with the provisions set forth in the Constitution and laws. The statutes and programs, as well as the activities of political parties shall not be contrary to the independence of the State, its indivisible integrity with its territory and nation, human rights, the principles of equality and rule of law, sovereignty of the nation, the principles of the democratic and secular republic; they shall not aim to promote or establish class or group dictatorship or dictatorship of any kind, nor shall they incite citizens to crime. Judges and prosecutors, members of higher judicial organs including those of the Court of Accounts, civil servants in public institutions and organizations, other public servants who are not considered to be labourers by virtue of the services they perform, members of the armed forces and students who are not yet in higher education, shall not become members of political parties. The membership of the teaching staff at higher education to political parties is regulated by law. This law shall not allow those members to assume responsibilities outside the central organs of the political parties and it also sets forth the regulations which the teaching staff at higher education institutions shall observe as members of political parties in the higher education institutions. The principles concerning the membership of students at higher education to political parties are regulated by law. The State shall provide the political parties with adequate financial means in an equitable manner. The principles regarding aid to political parties, as well as collection of dues and donations are regulated by law. B. Principles to be observed by political parties ARTICLE 69—(As amended on July 23, 1995; Act No. 4121) The activities, internal regulations and operation of political parties shall be in line with democratic principles. The application of these principles is regulated by law. Political parties shall not engage in commercial activities. The income and expenditure of political parties shall be consistent with their objectives. The application of this rule is regulated by law. The auditing of acquisitions, revenue and expenditure of political parties by the Constitutional Court in terms of conformity to law as well as the methods of audit and sanctions to be applied in case of inconformity to law shall be indicated in law. The Constitutional Court shall be assisted by the Court of Accounts in performing its task of auditing. The judgments rendered by the Constitutional Court because of the auditing shall be final. The dissolution of political parties shall be decided finally by the Constitutional Court after the filing of a suit by the office of the Chief Public Prosecutor of the High Court of Appeals. The permanent dissolution of a political party shall be decided when it is established that the statute and program of the political party violate the provisions of the fourth paragraph of Article 68.

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

263

The decision to dissolve a political party permanently owing to activities violating the provisions of the fourth paragraph of Article 68 may be rendered only when the Constitutional Court determines that the party in question has become a centre for the execution of such activities. (Sentence added on October 3, 2001; Act No. 4709) A political party shall be deemed to become the centre of such actions only when such actions are carried out intensively by the members of that party or the situation is shared implicitly or explicitly by the grand congress, general chairpersonship or the central decision-making or administrative organs of that party or by the group’s general meeting or group executive board at the Grand National Assembly of Turkey or when these activities are carried out in determination by the abovementioned party organs directly. (Paragraph added on October 3, 2001; Act No. 4709) Instead of dissolving it permanently in accordance with the above-mentioned paragraphs, the Constitutional Court may rule the concerned party to be deprived of state aid wholly or in part with respect to intensity of the actions brought before the court. A party which has been dissolved permanently shall not be founded under another name. The members, including the founders of a political party whose acts or statements have caused the party to be dissolved permanently shall not be founders, members, directors or supervisors in any other party for a period of five years from the date of publication of the Constitutional Court’s final decision with its justification for permanently dissolving the party in the Official Gazette. Political parties that accept aid from foreign states, international institutions and persons and corporate bodies of non-Turkish nationality shall be dissolved permanently. (As amended on October 3, 2001; Act No. 4709) The foundation and activities of political parties, their supervision and dissolution, or their deprival of state aid wholly or in part as well as the election expenditures and procedures of the political parties and candidates, are regulated by law in accordance with the above-mentioned principles.

PART THREE Fundamental Organs of the Republic CHAPTER ONE Legislative Power I. The Grand National Assembly of Turkey F. Provisions relating to membership 2. Oath-taking

264

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

ARTICLE 81—Members of the Grand National Assembly of Turkey, on assuming office, shall take the following oath: “I swear upon my honour and integrity, before the great Turkish Nation, to safeguard the existence and independence of the state, the indivisible integrity of the country and the nation, and the absolute sovereignty of the nation; to remain loyal to the supremacy of law, to the democratic and secular republic, and to Atatürk’s principles and reforms; not to deviate from the ideal according to which everyone is entitled to enjoy human rights and fundamental freedoms under the notion of peace and prosperity in society, national solidarity and justice, and loyalty to the Constitution.”

CHAPTER TWO The Executive Power I. President of the Republic C. Oath-taking ARTICLE 103—On assuming office, the President of the Republic shall take the following oath before the Grand National Assembly of Turkey: “In my capacity as President of the Republic, I swear upon my honour and integrity before the Great Turkish Nation and before history to safeguard the existence and independence of the state, the indivisible integrity of the country and the nation, and the absolute sovereignty of the nation, to abide by the Constitution, the rule of law, democracy, the principles and reforms of Atatürk, and the principles of the secular republic, not to deviate from the ideal according to which everyone is entitled to enjoy human rights and fundamental freedoms under conditions of national peace and prosperity and in a spirit of national solidarity and justice, and do my utmost to preserve and exalt the glory and honour of the Republic of Turkey and perform without bias the functions that I have assumed.” IV. Administration I. Presidency of Religious Affairs ARTICLE 136—The Presidency of Religious Affairs, which is within the general administration, shall exercise its duties prescribed in its particular law, in accordance with the principles of secularism, removed from all political views and ideas, and aiming at national solidarity and integrity.

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

265

PART FIVE Miscellaneous Provisions I. Preservation of Reform Laws ARTICLE 174—No provision of the Constitution shall be construed or interpreted as rendering unconstitutional the Reform Laws indicated below, which aim to raise Turkish society above the level of contemporary civilization and to safeguard the secular character of the Republic, and whose provisions were in force on the date of the adoption of the Constitution by referendum: 1. Act No. 430 of March 3, 1340 (1924) on the Unification of the Educational System, 2. Act No. 671 of November 25, 1341 (1925) on the Wearing of Hats, 3. Act No. 677 of November 30, 1341 (1925) on the Closure of Dervish Monasteries and Tombs, the Abolition of the Office of Keeper of Tombs and the Abolition and Prohibition of Certain Titles, 4. The principle of civil marriage according to which the marriage act shall be concluded in the presence of the competent official, adopted with the Turkish Civil Code No. 743 of February 17, 1926, and Article 110 of the Code, 5. Act No. 1288 of May 20, 1928 on the Adoption of International Numerals, 6. Act No. 1353 of November 1, 1928 on the Adoption and Application of the Turkish Alphabet, 7. Act No. 2590 of November 26, 1934 on the Abolition of Titles and Appellations such as Efendi, Bey or Pasha, 8. Act No. 2596 of December 3, 1934 on the Prohibition of the Wearing of Certain Garments.

PART SIX Provisional Articles PROVISIONAL ARTICLE 1—On the duly proclamation of the adoption of the Constitution as the Constitution of the Republic of Turkey by referendum, the Chairperson of the Council of National Security and Head of State at the time of the referendum, shall assume the title of President of the Republic and shall exercise the constitutional functions and powers of the President of the Republic for a period of seven years. The oath taken as Head of State on September 18, 1980 shall remain valid. At the end of the period of seven years, the election for the Presidency of the Republic shall be held in accordance with the provisions set forth in the Constitution.

266

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

The President of the Republic shall also hold the chairpersonship of the Council of National Security formed on December 12, 1980, under Act No. 2356, until the convening of the Grand National Assembly of Turkey and the formation of the Bureau following the first general elections. If the Presidency of the Republic falls vacant for any reason before the Grand National Assembly of Turkey convenes and assumes its functions at the end of the first general elections, the most senior member of the National Security Council shall act as President of the Republic and exercise all his constitutional functions and powers until the Grand National Assembly of Turkey convenes and elects a new President of the Republic in accordance with the Constitution. PROVISIONAL ARTICLE 2—The Council of National Security formed on December 12, 1980 under Act No. 2356 shall continue to exercise its functions under Act No. 2324 on the Constitutional Order and Act No. 2485 on the Constituent Assembly until the convening of the Grand National Assembly of Turkey and the formation of the Bureau following the first general elections held under the Political Parties Act and the Elections Act prepared in accordance with the Constitution. After the adoption of the Constitution, Article 3 of Act No. 2356 relating to the procedure for winning a seat on the Council of National Security that falls vacant for any reason shall cease to apply. After the Grand National Assembly of Turkey has convened and assumed its functions, the Council of National Security shall become the Presidential Council for a period of six years, and the members of the Council of National Security shall acquire the title of members of the Presidential Council. The oath they took on September 18, 1980 as members of the Council of National Security shall remain valid. Members of the Presidential Council shall enjoy the rights and immunities conferred by the Constitution on members of the Grand National Assembly of Turkey. The legal existence of the Presidential Council shall terminate on the expiry of the period of six years. The functions of the Presidential Council shall be as follows: (a) To examine laws adopted by the Grand National Assembly of Turkey and submitted to the President of the Republic concerning: the fundamental rights and freedoms and duties set forth in the Constitution, the principle of secularism, the preservation of the reforms of Atatürk, national security and public order, the Turkish Radio and Television Corporation, international treaties, the sending of armed forces to foreign countries and the admission of foreign forces in Turkey, emergency rule, martial law and the state of war, and other laws deemed necessary by the President of the Republic, within the first ten days of the period of fifteen days granted to the President of the Republic for his consideration; (b) On the request of the President of the Republic and within the period specified by him: To consider and give an opinion on matters relating to the renewal of general elections, the exercise of emergency rule and the measures to be taken during a state of emergency, the management and supervision of the Turkish Radio and

Appendix: Provisions of the Turkish Constitution of 1982 relevant to the Principle. . .

267

Television Corporation, the training of the youth and the conduct of religious affairs; (c) According to the request of the President of the Republic, to consider and investigate matters relating to internal or external security and such other matters deemed necessary, and to submit its findings to the President of the Republic.