Volume 43 | Number 3

Is Secularism Possible in a Majority-Muslim Country?: The Turkish Example

by Adrien Katherine Wing & Ozan O. Varol

Summary

Introduction

Secularism Generally and the Turkish Version
The Role of Religion in the Ottoman Empire

The Change from a Theocratic Regime to a Secular Government
Secularism and the Turkish Constitution
1. The Current Constitution
  1. The Safeguards of Secularism in the Turkish Constitution
  2. Secularism and Political Parties
  3. Freedom of Religion in the Turkish Constitution
  4. Anti-Secularist Provisions in the Turkish Constitution?
    1. Department of Religious Affairs
    2. Mandatory Religious Education
The Ban Against the Wearing of the Islamic Headscarf in Educational Institutions
1. Headscarf Goes to Europe: Leyla Sahin v. Turkey
  1. Background
  2. Analysis Under Article 9 of the Convention
    1. Interference
    2. “Prescribed by Law”
    3. “Legitimate Aim”
    4. “Necessary in a Democratic Society”
  3. Analysis Under Article 2 of Protocol No. 1 of the Convention
  4. The Dissent’s and Ms. Sahin’s Arguments
  5. Turkish Government’s Response to the Decision
The Future of Secularism in Turkey
Conclusion

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I. Introduction

In the post-9/11 world, the Middle East has gained special importance. Unfortunately, given the limited availability of education about international issues in the American education system and media, the nation in general is relatively ignorant about Middle Eastern countries. Undoubtedly, ignorance leads to unjust prejudice and discrimination. Some view all Muslims as terrorists and all countries in the Middle East as fundamentalist regimes and supporters of terrorism.

During an interview discussing the role that Shari’a law will play in the new government of Iraq, then-Secretary of State Colin Powell stated that there would be an Islamic Republic in Iraq “as there are other Islamic Republics—Turkey and Pakistan.”¹ This statement of a high-level U.S. official labeling Turkey, a strictly secular and democratic country, an “Islamic Republic” exemplifies the lack of knowledge in the Western world about Middle Eastern countries. In an attempt to remedy this widespread ignorance, this Article provides a comparative look at secularism in the legal system of one of the most unique countries in the Middle East, the Republic of Turkey.

Muslims make up ninety-nine percent of Turkey’s population.² Contrary to popular Western belief that all majority-Muslim³ states are theocracies, Turkey is a democratic and secular state. Among the fifty-two majority-Muslim states, the constitutions of only two countries, Turkey and Senegal, prescribe secularism.⁴ Indeed, as this Article discusses in Part II, the Turkish version of secularism is arguably the strictest version of secularism implemented by any nation.⁵

“Turkey’s ability to maintain a secular democratic state in a region of the world with rising Islamic fundamentalism has allowed it to maintain very strong connections to Europe and the United States.”⁶ In May 2005, during a Capitol Hill Hearing on the state of U.S.-Turkish Relations, Representative Robert Wexler (DFL) stated: “There is no greater friend [in the Middle East] to the United States than Turkey when it comes to defending the values of freedom . . . .”⁷ Europe values the Republic of Turkey “not just for where it is but for what it is.”⁸ Turkey’s secular order not only protects the democratic system of the Turkish Republic itself, but also serves as a barrier between the rest of the Western world and the continuously spreading threat of Islamic fundamentalism from the Middle East.

Turkey is also of special importance to the United States and Europe because of its strategic geographic location from an economic and military perspective. Turkey is situated “at the crossroads between eastern Europe, central Asia and the Middle East.”⁹ Furthermore, Turkey is “the only NATO member state to border Iran, Iraq, Syria, and two former Soviet states.”¹⁰ Consequently, “[o]nly Turkey lies either close to or at the center of most of the gravest threats to Europe’s peace and well-being.”¹¹ As a result, Turkey’s strict secular legal system, in a region filled with fundamentalist regimes and Islamic terrorism, is an essential protector of one of the United States’ and Europe’s greatest allies.

Additionally, Turkey, as a secular and democratic majority-Muslim state, provides answers to many of the questions Americans ask as the United States is striving to instill democracy into Middle Eastern nations like Iraq.¹² Can a majority-Muslim state also be democratic?¹³ Can women stand on equal footing with men in the legal system of a majority-Muslim state? Can democracy, even if forcefully implemented, stand the test of time? As this Article demonstrates, the history and the legal system of the Turkish Republic provide an affirmative answer to all of the foregoing questions.

Even though Turkey has accomplished the difficult task of maintaining a democracy in a majority-Muslim state, it is widely criticized in U.S. law review articles for a number of reasons.¹⁴ Most of these criticisms are outside the scope of this Article. Nonetheless, it is important, when reading or writing about Turkey, to base one’s conclusions on justified and objective observations, and to take what has been written with a grain of salt. In 1923, an American student wrote to Mustafa Kemal Atatürk,¹⁵ the founder of the Republic of Turkey, and asked for an autographed picture and reply.¹⁶ Atatürk wrote back and stated: “My advice to intelligent and studious American children is not to believe as true anything they hear about Turks, but to carefully base their views on scientific and substantive research.”¹⁷ Thus, our goal in this Article, following Atatürk’s words, is to provide observations into the secular legal system of Turkey, basing all of our conclusions on, not myths, but legal documents, facts, and interviews we conducted in Turkey.

This Article examines, in six major parts, the past, present, and future of secularism in the Republic of Turkey. Part II of the Article provides an overview of the principle of secularism generally, and in Turkey specifically, and describes how Turkish secularism differs from the Western notion of secularism. Part III discusses the role of religion in the Ottoman Empire, the predecessor to the modern day Turkey, in order to provide a background for the legal developments that occurred after the Empire’s collapse. Part IV outlines the reforms that Atatürk and his supporters implemented following the downfall of the Ottoman Empire and demonstrates how a fundamentalist empire became a strictly secular government in less than twenty years. Part V provides a thorough examination of the various provisions of the Turkish Constitution that relate to secularism. Part VI demonstrates the application of the principle of secularism in Turkey by discussing the legal history of the ban against the wearing of the Islamic headscarf in Turkish educational institutions. This Part also analyzes the November 10, 2005 decision of the Grand Chamber of the European Court of Human Rights in Leyla Sahin v. Turkey.¹⁸ Finally, Part VII speculates on the future of secularism in Turkey and discusses whether it is possible to implement any fundamental changes in the regime.
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II. Secularism Generally and the Turkish Version

First, this Part defines secularism and describes the characteristics of a secular government. Second, it analyzes the Turkish version of secularism. Finally, it examines, by focusing on Turkey’s unique context, the reasons behind the strict version of secularism that Turkey has implemented.

A. Definition and Characteristics of Secularism

The most common definition of secularism is the separation of religion and state.¹⁹ Nonetheless, this narrow definition does not encompass many important characteristics of a secular government. First, in secular regimes, sovereignty belongs to the nation and not to a divine body.²⁰ Since sovereignty belongs to a divine power in theocratic regimes, like the former Ottoman Empire, going against the government is equivalent to going against God.²¹ Second, religion is separate from state in a secular government.²² Religion does not affect the government’s affairs, meaning that laws and regulations are not based on religion.²³ Third, a secular government is neutral towards all religions.²⁴ As such, the regime cannot have an official religion and does not protect one religion over another.²⁵ Likewise, all individuals, irrespective of their religion, are equal before the law.²⁶

Fourth, a secular regime requires the education and the legal systems to be secular.²⁷ The legal system does not contain laws based on religion, and the education system is based on logic and science, not religion or dogmas.²⁸ Fifth, a secular government requires freedom of religion and conscience.²⁹ Thus, secularism does not mean the absence of religion from society. Individuals are free to exercise their religions and manifest their religious beliefs in both the private and the public sphere.³⁰ Finally, a secular regime is based on pluralism, which requires the government’s respect for all religions and religious beliefs.³¹ It is important to note that the foregoing characteristics describe a theoretically perfect secular government, which, to our knowledge, does not exist.

B. The Turkish Version of Secularism

The Turkish version of secularism implements most of the foregoing characteristics of a secular government, while, due to Turkey’s unique context,³² restricts some of the freedoms that a perfectly secular government would normally afford. The Turkish word for secularism (laik) and the concept of Turkish secularism were adopted from the French principle of secularism (laïcité).³³ France and Turkey apply a version of secularism that is stricter than the version that most Western nations, including the United States, have implemented.³⁴

If one thinks of secularism as two adjacent but separate fenced-off areas, the Western notion of secularism as a general matter allows neither the state nor religion to violate the territory of the other. In contrast, in the Turkish version of secularism, the state can access and regulate the fenced-off area of religion, whereas religion does not have the same reciprocal right. One example of such an action on the part of the state is the ban against the wearing of the Islamic headscarf in Turkish educational institutions.³⁵ The purpose of this system is to ensure that religion does not completely dominate the state like it did less than ninety years ago.

Because of the differences between the Western and Turkish principles of secularism, the role that religion plays in most Western governments may seem appalling to those not accustomed to it. One of the authors of this Article, Ozan O. Varol, is a native of Turkey who lived in Turkey for seventeen years. Being accustomed to the Turkish version of secularism, it was, at first, very bizarre for him to hear the President of the United States say “God bless America” at the end of his addresses to the nation; see “In God We Trust” on American currency; see Congressmen and Supreme Court Justices take oaths while placing their hands on the Bible; hear “one nation under God” in the Pledge of Allegiance; and see the Justices of the Supreme Court attend the “Red Mass” annually before the first day the Court is in session.³⁶ As the rest of this Article illustrates, none of the foregoing American traditions can be implemented under the Turkish version of secularism.

C. The Unique Context of the Republic of Turkey

The strict version of secularism in Turkey is necessary due to its historical, geographical, and demographical context. First, and foremost, Turkey’s fundamentalist history has necessitated the implementation of certain safeguards, like secularism, to protect the democratic order of the Republic. In one of its decisions regarding secularism, the Turkish Constitutional Court stated that “secularism ha[s] acquired constitutional status by reason of the historical experience of the country and the particularities of Islam compared to other religions; secularism [is] an essential condition for democracy and act[s] as a guarantor of freedom of religion and of equality before the law.”³⁷ Less than ninety years ago during the reign of the Ottoman Empire, the predecessor to the modern-day Turkey, the country was home to arguably the most fundamentalist regime in the world.³⁸ When the Republic of Turkey was formed, the founders implemented a number of precautions, the most important of which is secularism, to prevent Islamic fundamentalism from ever dominating the governmental system again.

Similar restrictions appear in other nations around the world whose histories have required the adoption of certain protections to safeguard their regimes. For example, Germany has taken legal precautions that restrict certain rights and freedoms to ensure that totalitarian Nazis will never rule the country again.³⁹ Italy has laws to prevent fascism from dominating their regime.⁴⁰ Rwanda has provisions in its Constitution to prevent genocide.⁴¹ The United States has affirmative-action laws, which attempt to remedy the effects of past and present discrimination against racial minorities.⁴² Likewise, the strict secular system of Turkey protects freedom and democracy, both of which used to be myths under the rule of the Ottoman Empire less than ninety years ago.

Geographically, Turkey is surrounded by some of the most fundamentalist regimes in the world, like Saudi Arabia and the Islamic Republic of Iran. In countries bordering Turkey, women are stoned to death for having sexual intercourse out of wedlock, people’s hands are cut off for committing burglary, and mass killings occur based on religion.⁴³ One of the main reasons why Turkey has not been a part of the inhumanity that dominates most of the Middle East is its strict secular regime. Because secularism does not allow religion-based laws in the legal system, criminal punishments based on Islam cannot be a part of Turkish law.

Demographically, ninety-nine percent of Turkey’s population is Muslim,⁴⁴ making the country prone to the use of religion as a tool by political parties. Indeed, so far in Turkey’s legal history, the Turkish Constitutional Court has dissolved four political parties for violating the principles of secularism and/or advocating the violent overthrow of the secular regime.⁴⁵ For example, in 2003, the European Court of Human Rights (ECHR), sitting in Grand Chamber, or en banc, unanimously (18–0) held that Turkey did not violate Article 11 on Freedom of Association of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) when the Turkish Constitutional Court dissolved the Islamist Welfare Party (Refah Partisi).⁴⁶

The ECHR outlined a great amount of evidence demonstrating the credible and pending threat that the Welfare Party posed to the secular and democratic order of the Republic. For example, while advocating a change in the Republic’s regime, the leader of the Welfare Party, Necmettin Erbakan, stated: “[But] will the transition be peaceful or violent; will it be achieved harmoniously or by bloodshed?”⁴⁷ Mr. Erbakan also advocated the implementation of a plurality of legal systems based on an individual’s religion.⁴⁸ Likewise, Hasan Huseyin Ceylan, a member of the Welfare Party, stated: “If you want the solution, it’s sharia.”⁴⁹ Sevki Yilmaz, another member of the Welfare Party, had “issued a clear call to wage a jihad [holy war] and had argued for the introduction of Islamic law.”⁵⁰ Finally, in one of his speeches in the Parliament, Ibrahim Halil Celik, another Welfare Party member, declared: “I too would like blood to flow . . . . I will fight to the end to introduce sharia.”⁵¹

The foregoing is only a small sample of the statements that Welfare Party members made, calling for a replacement of the secular order with Shari’a. These statements demonstrate that certain political parties in Turkey have used and will continue to use religion in their agendas to deceive and gain the support of the majority-Muslim population. Thus, the strict secular system of Turkey is a safeguard that protects the democratic order of the Republic against political parties that want to take advantage of sacred religious beliefs.

The reasons behind the strict secular system in Turkey are important to keep in mind throughout this Article. Everything from the reforms that led to the foundation of the Republic⁵² to the reasons behind the current ban on the wearing of Islamic headscarves in all educational institutions⁵³ should be viewed in connection with the unique context of Turkey. Even though certain legal restrictions this Article discusses may seem excessive from a Western point of view, they are, for the most part, necessary safeguards to protect the secular and democratic order of the Turkish Republic. Indeed, in light of the unique context of Turkey, the Grand Chamber of the ECHR, in a 16–1 decision, approved the Turkish notion of secularism and found it to be “consistent with the values underpinning” the Convention.⁵⁴

This Part provided a general overview of the principle of secularism and of the Turkish version of secularism in the unique context of Turkey. The rest of the Article traces the development of secularism throughout Turkey’s history. To that effect, the next Part examines the role of religion in the Ottoman Empire, the predecessor to the modern-day Republic of Turkey, in order to provide a background for the secular reforms that followed the collapse of the Ottoman Empire.
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III. The Role of Religion in the Ottoman Empire

The Ottoman Empire, the predecessor to the modern-day Republic of Turkey, was a theocratic regime⁵⁵ with Islam comprising a central part of the governmental affairs. From the early days of the Empire, Islam was the Empire’s official state religion.⁵⁶ The Sultan of the Empire also served as the caliph, a position that has “both temporal and spiritual authority”⁵⁷ over all Muslims, including those that resided in other nations. The caliph was to Muslims as the Pope is for Roman Catholics, except that the orders of the caliph had the full force and effect of law.

The Empire’s primary purpose was jihad, which entailed endless battle with other nations with the purpose of spreading Islam across the world.⁵⁸ “Wars [in the Ottoman Empire] started, ended, and started again in accordance with the orders of the Qur’an.”⁵⁹ When the Empire lost a war, the defeat would be deemed a punishment from Allah.⁶⁰ In short, the functioning of the government was intricately intertwined with religion.

The legal system of the Empire was based on Islamic Shari’a law and customary law (örf).⁶¹ There were Shari’a courts in the Empire’s legal system, ⁶² with religious experts as judges, who interpreted and applied Shari’a law.⁶³ All new legislation the government passed had to conform to Shari’a law.⁶⁴ As such, Shari’a was like a modern-day constitution, supreme to all of the laws in the Empire. In fact, the Ottoman Empire had no constitution until 1876, almost six hundred years after its formation.⁶⁵ Even then, the Constitution of the Empire was not the supreme law of the land, since it declared that sovereignty was given to the Emperor by God,⁶⁶ reiterating that God’s word was supreme.

Women in the Ottoman Empire were, at best, second-class citizens under religious law. For example, women had minimal inheritance rights; whereas, men had the right to polygamy and the unilateral right to divorce their wives by simply uttering “bos ol” (divorce).⁶⁷ According to custom and religion, women had to stay home, acting as caregivers and nurturers.⁶⁸ Women were servants to their husbands, staying in the background of all aspects of family life.⁶⁹ Furthermore, the Empire obligated its citizens to dress in accordance with their religion,⁷⁰ which required all women to wear veils. In sum, the Islamic regime deprived women of their basic human rights in the Ottoman Empire.

The corruption of the religious institutions in the government was one of the main causes of the collapse of the Ottoman Empire.⁷¹ The Ottomans prevented any of the modern developments in Europe from penetrating their strict Shari’a system.⁷² For example, the newspaper press machine, one of the most important inventions of contemporary civilization, was not allowed in the Empire for two hundred years.⁷³ In a critical period of the Ottoman Empire, Islamists in the government refused to make alliances with foreign nations, interpreting such allegiances as being against Shari’a.⁷⁴ Every reform or new invention that originated in Europe was labeled a “Western intrusion” and was swiftly rejected.⁷⁵ This fundamentalist approach to Islam eventually led to the downfall of the Ottoman Empire, one of the longest-lived empires in the world’s history.⁷⁶

This Part provided an overview of the fundamentalist regime of the Ottoman Empire. The next Part discusses the formation of the Republic of Turkey and the reforms of its founder, Mustafa Kemal Atatürk, and his supporters. In light of the strict theocratic foundations of the Ottoman Empire, one can better understand the importance of Atatürk’s reforms, which transformed one of the most fundamentalist governments in the world to a strictly secular and democratic regime.
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IV. The Change from a Theocratic Regime to a Secular Government

“It is without a doubt that another example can’t be shown indicating greater successes than the birth of the Turkish Republic . . . .”—John F. Kennedy (1963).⁷⁷

World War I marked the virtual end of the Ottoman Empire and the beginning of the Republic of Turkey. After the Empire lost the War alongside Germany, it signed the Treaty of Sèvres in 1920 with the Allied Forces.⁷⁸ Pursuant to the terms of the Treaty, the Ottoman Empire lost most of its land to the Allies.⁷⁹ Mustafa Kemal Atatürk, who was a commander in the Ottoman Empire,⁸⁰ found the Treaty of Sèvres unacceptable.⁸¹ He gathered militia from all around the country and started a nationalist movement against the Allies, as well as the Ottoman Empire, which had accepted the terms of the Treaty.⁸² After almost three years of battle,⁸³ Atatürk and his militia defeated the Allied forces “carv[ing] out a modern republic from the ruins of [the Ottoman Empire,] the sick man of Europe.”⁸⁴

Nonetheless, winning back most of the landmass was not all that Atatürk did. Perhaps of far more importance was the establishment of a secular government through a series of reforms. Atatürk found the establishment of a secular regime to be critical in the development of the newly founded Republic of Turkey. He said: “Look at our history. Those who hid their real beliefs under the disguise of religion deceived our innocent nation with big words like Shari’a. You will see that what destroyed this nation, what caused its collapse, was always the deception hidden under the curtain of religion.”⁸⁵ Accordingly, most of Atatürk’s reforms were aimed at the separation of religion from state.

Even though Atatürk wanted to form a secular regime, he was not an enemy of religion.⁸⁶ He was an enemy of extremists and those who wanted to use religion as a political tool.⁸⁷ According to Ernest Jackh, a German thinker, Atatürk also did not want to paint a Western face on Islam.⁸⁸ Similarly, Andrew Mango, who authored a biography on Atatürk, noted: “Atatürk’s aim was not imitation but participation in a universal civilization . . . .”⁸⁹ Indeed, it would have been ironic for Atatürk to instill Western cultural values into a society that he had just rescued from Western occupation.

Inevitably, the separation of state and religion required the implementation of fundamental changes in a society that had been under the rule of Shari’a law for hundreds of years. As the rest of this Part illustrates, everything from clothing to the alphabet, from education to women’s rights, all of which had been intricately intertwined with religion under the Ottoman Empire’s rule, had to be separated from religion to establish a secular regime. In doing so, Atatürk and his supporters aimed to return the Turkish nation to its roots when the society did not suffer under a regime dominated by religion, and raise the nation to the level of contemporary civilizations. By implementing a series of modernization reforms, Atatürk and his supporters distanced the nation from the fundamentalist notions of Islam, which had plagued the nation for centuries, and “recreated the Turkish nation, not as Westerners, but as Turks.”⁹⁰

A. The Formation of the Turkish Grand National Assembly and the Adoption of the First Constitution

The formation of the Turkish Grand National Assembly (TGNA) on April 23, 1920, was the first important step in changing the theocratic regime of the Ottoman Empire to a democratic government⁹¹ where sovereignty belonged to the people. The TGNA, which was formed when the country was still under the occupation of the Allied forces,⁹² was based on the principle of equality of all citizens irrespective of their religion,⁹³ in strict contrast to the governmental system of the Ottoman Empire. In fact, the first TGNA had one Jewish, one Roman Orthodox, and one Armenian member.⁹⁴

The first step that the TGNA took in forming a democratic regime was the adoption of the Constitution of the Republic of Turkey (Teskilat-i Esasiye Kanunu) in 1921.⁹⁵ The 1921 Constitution was the first to declare, repeating Atatürk’s words, that “sovereignty is fully and unconditionally vest[ed] in the people.”⁹⁶ This statement represented a strong departure from the former theocratic regime,⁹⁷ where sovereignty was vested in Allah and delegated to the Sultan.⁹⁸ With this declaration, the Constitution established that the Republic of Turkey would be a democracy, where the will of the people, as opposed to God’s word, would determine the laws and regulations.

Even though the first Constitution established a democracy, a secular order was not yet in the works. Article 2 of the Constitution stated that the official religion of the Republic of Turkey would be Islam.⁹⁹ Even though a secular government does not have an official state religion,¹⁰⁰ this provision was, at the time, a necessary evil. In explaining why this provision kept its place in the Constitution even after the Constitution was redrafted in 1924, Atatürk stated:

After the foundation of our Republic, when the Constitution was being drafted, to prevent those who thought of a secular Republic as antireligious and those who wanted to use religion as a tool from taking advantage of the situation, we had to allow this meaningless part of Article 2 to stay in the Constitution.¹⁰¹

Thus, Atatürk and his supporters had to make some compromises and avoid, at least initially, overly sweeping reforms in order to establish a secular regime. As one commentator stated: “We know that the idea of a secular Republic was Atatürk’s best kept secret. When the time was right, he would make it a reality.”¹⁰²

B. The Initial Wave of Reform Laws

As one of the major steps towards secularization, Atatürk abolished the nation’s quest for jihad, replacing it with his words: “Peace at home, peace in the world.”¹⁰³ Instead of focusing on endless wars to spread Islam across the world, the new Republic of Turkey would strive towards social and economic development.¹⁰⁴ Accordingly, this reform not only removed the religious concept of jihad from the government system, but also paved the way for the nation’s development.

The next step in the secularization process was a law that the TGNA passed in 1922 separating the Sultanate position from that of the caliphate and abolishing the Sultanate position.¹⁰⁵ This reform ensured that religious and executive authority, which both belonged to the Sultan during the reign of the Ottoman Empire, would no longer be in the hands of the same entity.¹⁰⁶ Vahdettin, who was the Sultan of the Empire at the time of this reform, swiftly fled to England following this announcement from the TGNA.¹⁰⁷ After the abolishment of the Sultanate, the Republic of Turkey was officially formed on October 29, 1923.¹⁰⁸

Following the official establishment of the Republic, the TGNA passed two reform laws on March 3, 1924, which proved to be crucial in the establishment of a secular order.¹⁰⁹ The first, and perhaps one of the most important reforms in the secularization process, was the abolishment of the caliphate position.¹¹⁰ Even though the TGNA abolished the position of the Sultanate in 1922, the caliph, whom the TGNA appointed following Vahdettin’s flee to England, still remained in power.¹¹¹ Certain fundamentalists believed that no one, not even the TGNA, had the authority to abolish the position of the caliphate, who had spiritual authority over three hundred million Muslims all around the world.¹¹²

Nevertheless, the risks of allowing the caliph to stay in power, even symbolically, were too big to fathom. The caliph could have tried to exercise legal authority, like it did during the Ottoman Empire, issuing Islamic laws inconsistent with the legislation that the TGNA passed or even rallying fundamentalists in the nation to overthrow the future secular government.¹¹³ Moreover, as the leader of all Muslims, the caliph would have ensured that the rest of the world would view the secular Republic of Turkey as an Islamic Republic and the leader of the Muslim world.¹¹⁴ Thus, on March 3, 1924, to guarantee the total secularization of the Republic, the TGNA abolished the position of the caliphate, which had been a part of the nation for four hundred years.¹¹⁵

The TGNA passed another important law (Tevhid-i Tedrisat Kanunu) on March 3, 1924, which closed religious schools (medrese) and brought all educational institutions “under the strict control of the state.”¹¹⁶ Instead of the old religious schools, which were notorious for promoting the fundamentalist notions of Islam, the TGNA established a Faculty of Divinity¹¹⁷ to provide a secular religious education. The law also made the education system coeducational and primary education compulsory, allowing women to obtain education at least at the elementary level.¹¹⁸

C. The Clothing Reforms

The TGNA also passed a number of reform laws aimed at abolishing the link between religion and clothing¹¹⁹ in an effort to establish a secular and modern regime. In 1925, the TGNA passed the law on “the Wearing of the Hat,” which prohibited the wearing of the fez.¹²⁰ Atatürk believed that the fez was “a symbol of illiteracy and backwardness.”¹²¹ Instead of wearing the fez, the new Turkish nation would wear the modern hat. The TGNA also prohibited certain religious officials, irrespective of their religion, from wearing religious garments outside of religious ceremonies with the 1934 Act on the Prohibition of the Wearing of Certain Garments.¹²²

In addition to regulating the clothing of men and religious officials, reform laws also affected the clothing of Turkish women, which was of particular concern to Atatürk. On this issue, Atatürk noted:

In some places I have seen women who put a piece of cloth or a towel or something like it over their heads to hide their faces, and who turn their backs or huddle themselves on the ground when a man passes by. What is the meaning and sense of this behavior? Gentlemen, can the mothers and daughters of a civilized nation adopt this strange manner, this barbarous posture? It is a spectacle that makes the nation an object of ridicule. It must be remedied at once.¹²³

Thus, under Atatürk’s leadership, women, who were forced to wear the veil in the Ottoman Empire pursuant to Shari’a law, gained the freedom to wear modern clothing.¹²⁴ With the help of the reform laws, Turkish women, who had lost their identities, personalities, and freedoms under Shari’a law,¹²⁵ were gaining a more equal footing with men in the Turkish society.

D. Reforms Continued

The reform laws continued with the abolishment of Shari’a courts, which constituted an important secularization reform in the legal system.¹²⁶ On February 17, 1926, the TGNA abolished Shari’a law replacing it with a civil code based on the Swiss Civil Code.¹²⁷ According to the new civil code, men and women were equal under law,¹²⁸ had equal rights in “divorce, custody, and inheritance,” and polygamy was forbidden.¹²⁹ Finally, civil marriage before a government official, as opposed to marriage conducted in a mosque before an imam, became the only type of marriage recognized by law.¹³⁰ Thus, the replacement of Shari’a with a modern civil code constituted one of the most important steps in enhancing the social and economic development of Turkish women.

Another important reform on the road to a secular order was “the changing of the alphabet from Arabic to Latin script” in 1928.¹³¹ “The most difficult change in any society is probably a language reform. Most nations never attempt it; those who do, usually prefer a gradual approach.”¹³² Atatürk decided, for the reasons stated below, that the Arabic alphabet should be replaced by the Latin alphabet. He consulted several experts to get their opinion on how long the process would take.¹³³ When most of the experts stated that it would take “at least five years,” Atatürk replied: “We shall do it. Within five months.”¹³⁴

Subsequently, the TGNA passed a law abolishing the Arabic script and adopting the Latin alphabet.¹³⁵ When the official alphabet was the hard-to-learn Arabic script, the literacy rate was approximately ten percent among men¹³⁶ and less than five percent among women.¹³⁷ The new Latin alphabet was easier to learn, as exemplified by the dramatic increase in literacy rates following this reform.¹³⁸ Moreover, the change to the Latin script constituted an important step “towards breaking old religious traditions and weakening the link with the past.”¹³⁹

The amendment of the Constitution in 1928 broke another religious tradition that had been a part of the Constitution from its adoption. The TGNA removed the part of Article 2 that stated that the official religion of the Republic was Islam.¹⁴⁰ Moreover, the TGNA replaced the phrase “by God” with “on my honor” in the oaths that the President and members of the Parliament take before assuming office.¹⁴¹ With these amendments, the Constitution of Turkey became neutral with respect to all religions.

The TGNA, under Atatürk’s leadership, also implemented several reforms to help the nation better understand Islam and prevent those who aimed to use religion as a political tool from deceiving innocent believers. For example, for the first time, Qur’an was translated to Turkish¹⁴² so that people could read it and understand what it states, as opposed to blindly believing “religious experts” with hidden political agendas. The call to prayer, which imams make from the minarets of mosques five times a day, was translated to and made in Turkish.¹⁴³ These developments gave the immense power of knowledge about Islam to the nation and marked an important step in preventing fundamentalists from brainwashing innocent believers.

E. Women’s Rights

The TGNA also passed several reform laws that focused on women’s rights in an effort to create a secular and democratic Republic and rectify the damage that Shari’a law had done to Turkish women. Atatürk believed that if “women do not share in the social life in the nation, [the Turkish Republic] shall never attain . . . full development.”¹⁴⁴ Unless women were on an equal footing with men, the Turkish Republic would “remain irremediably backward, incapable of treading on equal terms with the civilizations of the West.”¹⁴⁵ In one of his speeches, Atatürk stated:

A nation is made up of two genders, male and female. Is it possible for a nation to attain the standards of contemporary civilization if one of these genders advances while the other stays behind? Is it possible for half of the nation to be chained to the ground, while the other half rose to the skies? Undoubtedly, a nation’s development is dependent on the advancements made by both genders.¹⁴⁶

Thus, in 1930, under Atatürk’s leadership, the TGNA gave women “the right to vote in municipal elections.”¹⁴⁷ In 1933, the TGNA afforded women “the right to vote in all elections,”¹⁴⁸ long before women obtained the same right in other countries like France, Italy, and Canada.¹⁴⁹ In 1935, eighteen women were elected members of the TGNA, along with 382 men.¹⁵⁰ Hence, women, who were forced to wear veils, remain in the background of all social life, and be second-class citizens only a little more than ten years ago during the reign of the Ottoman Empire, were able to win seats on the National Assembly.

Women’s-rights reforms led to the Turkish Republic giving “the world its first female supreme court judge”¹⁵¹ and its first female fighter pilot.¹⁵² In 1993, the first female Prime Minister of Turkey, Tansu Ciller, took office.¹⁵³ As of 2001, more than thirty percent of the academicians in Turkish universities are women.¹⁵⁴ At the time of this writing, the Presidents of both the Turkish Constitutional Court and the highest administrative court, Council of State, are female.¹⁵⁵ These statistics demonstrate that Atatürk’s efforts were not futile and helped Turkish women greatly in achieving an equal status as men in society.

F. The Final Reform: A Secular Republic

Atatürk’s long-lived dream of creating a secular republic finally became a reality in 1937, one year before he passed away. That year, the word “secular” was added to the Constitution as one of the fundamental characteristics of the Turkish Republic.¹⁵⁶ Through a series of systematic reforms and by making compromises when necessary, Atatürk and his supporters succeeded in transforming arguably the most fundamentalist regime in the world into a secular and democratic Republic.

There are three major reasons why Atatürk’s reforms were so successful and readily accepted by most of the Turkish nation. First, the reforms came from within the nation as opposed to an external force.¹⁵⁷ Today, the United States is trying to do in Iraq what Atatürk did in Turkey less than ninety years ago. Unfortunately, the United States’ attempts are not likely to be as successful, because a nation is more likely to reject reforms imposed on it by outside forces.

Second, Atatürk’s reforms occurred as part of a national uprising. After Atatürk managed to defeat the Allies with militia that he gathered from around the country, the Turkish nation believed in him and trusted him as a leader. Thus, when he started implementing his reforms, the nation followed his lead, knowing that he was striving for the advancement of the country.

Finally, the national struggle was also against the Sultan and the caliph, who had sided with the Allies throughout the Turkish War of Independence.¹⁵⁸ The caliph even issued a fatwa stating that Atatürk should be killed.¹⁵⁹ The Sultan called the militia fighting the war against the Allies a “herd of gangsters.”¹⁶⁰ Therefore, when Atatürk decided to implement important reforms in the secularization process, like abolishing the position of the Sultan and the caliph, most of the Turkish nation was more than willing to support him.

Continuing efforts are needed to ensure that these reforms are permanent.¹⁶¹ Secularism in the modern-day Republic of Turkey, which is discussed in further detail in the next Part, is one of the most important protectors of Atatürk’s reforms. In 1927, talking about his reforms, Atatürk stated:

Friends, our reforms are new. We shall see whether they will stand the test of time, grow stronger, and become deeply rooted in our society. But, mark my words, the minds of certain people who now wear the new hat, shave their [long] beards, wear tuxes, and participate in public life, are still covered with veils, turbans, and beards.¹⁶²

This statement continues to hold true in the modern-day Republic of Turkey.

In order to ensure the permanence of Atatürk’s reforms, a provision was added to the current Constitution of Turkey that gave certain reform laws special constitutional status. Pursuant to Article 174 of the Turkish Constitution, “[n]o 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 civilisation and to safeguard the secular character of the Republic.” These reform laws include the Acts on the Unification of the Educational System; “civil marriage according to which the marriage act shall be concluded in the presence of the competent official, adopted with the Turkish Civil Code”; the Adoption of International Numerals; the Adoption and Application of the Turkish Alphabet; and the Prohibition of the Wearing of Certain Garments.¹⁶³ Even though none of these reform laws can be interpreted as being unconstitutional, there is no provision in the Constitution that would prevent their repeal through legislation. Nonetheless, the special status the Constitution affords to the reform laws demonstrates the important role they continue to play in Turkish society.

Atatürk and his supporters accomplished in less than twenty years what would have normally taken “more than five to six hundred years.”¹⁶⁴ British Prime Minister David Lloyd George said the following about Atatürk: “The centuries rarely produce a genius. It is our bad luck that the great genius of our era was granted to the Turkish nation.”¹⁶⁵ Likewise, in 1963, John F. Kennedy stated: “Atatürk’s name reminds us the historical achievements of one of the greatest men of this century, his inspirational leadership for the Turkish nation, his vision in understanding the modern world, and his power and courage as a military leader.”¹⁶⁶ Pictures and statues of Atatürk can be seen all across Turkey, everywhere from classrooms to offices, from government buildings to restaurants. His legacy still continues to affect everyday life in the modern Republic of Turkey.

This Part outlined the reforms that the TGNA adopted in order to form a secular and democratic Republic following the collapse of the Ottoman Empire. The next Part examines the current state of secularism in the Turkish Constitution and how the legal system has responded to Atatürk’s reforms.
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V. Secularism and the Turkish Constitution

This Part provides an overview of the principle of secularism in the Constitution of Turkey. Subpart A examines the amendments implemented in the Constitution of 1961 with respect to secularism. Subpart B analyzes the principle of secularism in the current Turkish Constitution.

A. The 1961 Constitution

The 1924 Constitution of the Republic of Turkey was replaced by the 1961 Constitution¹⁶⁷ following a takeover of the government by the Turkish Armed Forces on May 27, 1960.¹⁶⁸ The reason for this extreme measure was the Democrat Party’s, which was the majority party in the TGNA, use of “religious activism to distract the people from hard economic times” along with its use of “the army and police to suppress opposition.”¹⁶⁹ The military rule lasted until 1961, at which time democratic elections resulted in the return to civilian government.¹⁷⁰

There were several changes in the 1961 Constitution with respect to secularism and freedom of religion. Article 12 of the new Constitution declared that everyone is equal under the law regardless of his or her religion or sect.¹⁷¹ Article 19 provided for the freedom of religion and conscience, while prohibiting the abuse of religion or other things sacred.¹⁷² It further stated that any political party that violated the principles in Article 19¹⁷³ or tried to base, even partially, the legal, political, social, or administrative system of the nation on religious laws would be permanently dissolved.¹⁷⁴ Article 57 required the programs and regulations of political parties to conform to, among other things, the secularist characteristics of the government and authorized the dissolution of political parties that failed to adhere to these principles.¹⁷⁵ Article 153 of the new Constitution gave certain reform laws special constitutional status.¹⁷⁶ The new Constitution also formed the Constitutional Court, giving it the power to annul unconstitutional laws and regulations passed by the TGNA.¹⁷⁷ Finally, Article 154 placed the Department of Religious Affairs (Diyanet Isleri Baskanligi) within the general administration of the government.¹⁷⁸

Consistent with the reasons behind the military takeover, the new Constitution sought to prevent the use of religion as a political tool. Through institutions like the Constitutional Court, as well as stiff penalties like permanent dissolution of political parties, the drafters of the new Constitution wanted to protect firmly the secular order of the Republic. At the same time, however, the Constitution guaranteed the freedom of religion and conscience, as long as that freedom was not exercised to gain political capital. In short, the overarching goal of the new Constitution was to ensure that the secularist reforms of Atatürk maintained their status in the Turkish government.

B. The Current Constitution

The Constitution of Turkey was redrafted in 1982 after another military takeover. This military coup, which occurred on September 12, 1980, resulted from widespread terrorism and political violence¹⁷⁹ due to the clash between the right-wing nationalists and the liberal left. Between 1978 and 1979, an estimated number of two thousand people died as a result of the increasing violence in the nation.¹⁸⁰ Thus, most of the Turkish people, who had been suffering gravely from this violence and the practices of corrupt politicians, welcomed the military takeover.¹⁸¹ Indeed, ninety-two percent of the voters approved the 1982 Constitution drafted by the military regime when it was submitted for referendum.¹⁸² Moreover, the Turkish voters elected Kenan Evren, the commander who was among the leaders of the coup, as Turkey’s next President.¹⁸³

Undoubtedly, any military coup imposes severe damage on the democratic process and is an extreme measure by most standards. A military takeover forcefully substitutes the judgment of unelected military leaders for that of a democratically elected legislature. It must be noted, however, that in this specific context, the military succeeded in “effectively decreas[ing] the number of casualties from terrorist activities.”¹⁸⁴ Additionally, the military coup “had no affinity with the bureaucratic-authoritarianism of the South American type. It was certainly a move to clear up the mess made of it all by immoderate, self-seeking and short-sighted politicians.”¹⁸⁵ Nevertheless, it may not be appropriate to judge the propriety of a military coup ex post. Notwithstanding how “short-sighted” or “self-seeking” these politicians may be, they were elected to their seats by the Turkish people.¹⁸⁶

The 1982 Constitution is still in force today, although the TGNA has amended it significantly in 2001 to fulfill the requirements for membership in the European Union.¹⁸⁷ The rest of this subpart examines the various parts of the current Constitution as they relate to secularism. This subpart also analyzes the provisions in the Constitution that certain commentators have criticized as being anti-secular.

1. The Safeguards of Secularism in the Turkish Constitution

The Preamble of the Turkish Constitution starts by declaring that the Constitution is “in line with . . . the reforms and principles introduced by the founder of the Republic of Turkey, Atatürk.”¹⁸⁸ As discussed in Part IV of this Article, Atatürk’s reforms are centered on the principle of secularism.¹⁸⁹ The Preamble continues by emphasizing “[t]he understanding of the absolute supremacy of the will of the nation and of the fact that sovereignty is vested fully and unconditionally in the Turkish nation.”¹⁹⁰ As such, repeating Atatürk’s famous words, the Constitution reiterates that sovereignty belongs to the Turkish nation, not to God, like it did in the Ottoman Empire. The Preamble dedicates itself to “[t]he principle of the separation of powers . . . which accepts the supremacy of the Constitution and the law.”¹⁹¹ Thus, the laws of the country, not God’s word, are supreme in the Turkish Republic.

The Preamble makes a drastic statement by declaring that “no protection shall be accorded to an activity contrary to . . . principles, reforms and modernism of Atatürk and that, as required by the principle of secularism, there shall be no interference whatsoever by sacred religious feelings in state affairs and politics.”¹⁹² Hence, according to the Preamble, no activity has constitutional protection if it contradicts the principle of secularism or uses religion as a political tool. The Preamble continues by stressing “the desire for and belief in ‘Peace at home, peace in the world.’”¹⁹³ Thus, quoting Atatürk, the Preamble stresses the importance of a peaceful state of affairs with other nations, unlike in the Ottoman Empire where jihad was the main purpose of the nation.

The Preamble concludes by emphasizing the need for “commanding respect . . . and absolute loyalty to [the Constitution’s] letter and spirit,”¹⁹⁴ reiterating that the Constitution is the supreme law of the land. The notion of the “spirit” of the Constitution mentioned in the Preamble was reiterated in several Turkish Constitutional Court cases, where the Court declared that “secularism” was not only within the “letter” of the Constitution but also within its “spirit” as one of the driving principles behind the Republic’s existence.¹⁹⁵ Finally, the Preamble has an important place in the Constitution pursuant to Article 176, which declares that the “Preamble, which states the basic views and principles underlying the Constitution, shall form an integral part of the Constitution.”¹⁹⁶

Article 2, titled “Characteristics of the Republic,” declares that “[t]he Republic of Turkey is a democratic, secular and social state governed by the rule of law . . . and based on the fundamental tenets set forth in the Preamble.”¹⁹⁷ Therefore, secularism is one of the three major defining characteristics of the Turkish Republic. Moreover, since secularism is one of the “fundamental tenets” in the Preamble,¹⁹⁸ the Republic is based on its principles. Nonetheless, the word “secularism” is subject to different interpretations as exemplified by the different versions of secularism other nations have implemented.¹⁹⁹ As such, even though the Constitutional Court has always interpreted “secularism” in Article 2 narrowly and consistent with the strict understanding of secularism in Turkey, the Court may choose to interpret secularism differently in the future.

Article 2 gained even more importance after the inclusion of Article 4 in the Constitution, which lists the irrevocable provisions of the Constitution. Article 4 declares that “the provisions in Article 2 on the characteristics of the Republic . . . shall not be amended, nor shall their amendment be proposed.”²⁰⁰ Added to the Constitution following the military coup in 1980,²⁰¹ Article 4 prohibits even proposing an amendment to Article 2, which lists secularism as one of the “[c]haracteristics of the Republic.”²⁰² Ironically, the drafters of the Constitution did not include Article 4 itself as one of the non-amendable articles of the Constitution.²⁰³ Thus, it is technically possible to amend Article 2, after repealing Article 4.

Article 6 reiterates the famous words of Atatürk by declaring that “[s]overeignty is vested fully and unconditionally in the nation.”²⁰⁴ Article 6 also states that “[t]he right to exercise sovereignty shall not be delegated to any individual, group or class. No person or agency shall exercise any state authority which does not emanate from the Constitution.”²⁰⁵ One of the purposes of this provision is to prevent religious officials, like the caliph in the Ottoman Empire, from exercising authority over the affairs of the state. Moreover, Article 6 implies that all state authority under the law emanates from the Constitution and not from God like it did in the Ottoman Empire.

Likewise, Article 7 states that “[l]egislative power is vested in the Turkish Grand National Assembly on behalf of the Turkish Nation” and that this power “cannot be delegated.”²⁰⁶ One of the purposes of this Article, similar to Article 6, is to ensure that an entity like the caliph, whose words had the full force and effect of law in the Ottoman Empire, does not exercise legislative power over the nation. This provision also reiterates that the will of the Turkish nation as articulated by the representatives it elects, not the Qur’an, determines how the country will be governed.

Article 10 states that “[a]ll individuals are equal without any discrimination before the law, irrespective of . . . religion and sect.”²⁰⁷ As this Article discussed in Part II.A, a secular government does not have an official religion and does not favor one religion over the other.²⁰⁸ Thus, discrimination based on religion is contrary to the principle of secularism. Accordingly, Article 10 establishes this important principle of secularism in the Turkish legal system.

Article 11, titled “Supremacy and Binding Force of the Constitution,” states: “The provisions of the Constitution are fundamental legal rules binding upon legislative, executive and judicial organs, and administrative authorities and other institutions and individuals. Laws shall not be in conflict with the Constitution.”²⁰⁹ Thus, this Article makes the principles of secularism prevalent throughout the Turkish Constitution binding on all branches of the government. Likewise, in accordance with this Article, no legislation can contradict the numerous provisions of the Constitution on secularism.

The Turkish Constitutional Court is vested with the authority to annul laws that are in conflict with the Constitution²¹⁰ and thus, it is an important protector of the Republic’s secular regime. In fact, a commentator has labeled the Court as “rigidly ultra-secular.”²¹¹ Pursuant to Article 146 of the Constitution, the Court is made up of eleven Justices, appointed by the President of the Republic.²¹² Article 148 gives the Court the authority to “examine the constitutionality, in respect of both form and substance, of laws, decrees having the force of law, and the Rules of Procedure of the Turkish Grand National Assembly.”²¹³

Moreover, in accordance with Article 153, the “decisions of the Constitutional Court are final” and “binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies.”²¹⁴ Furthermore, all of the judges in Turkey, including the judges on the Constitutional Court, are “independent in the discharge of their duties” and give their judgments “in accordance with the Constitution.”²¹⁵ Finally, “[l]egislative and executive organs and the administration . . . shall neither alter [court decisions] in any respect, nor delay their execution.”²¹⁶ Most importantly, as Part VI.B of this Article demonstrates, the authority the Constitution affords to the Court is not simply on paper, because the Court has proven its independence and the binding effects of its judgments in practice.²¹⁷ In short, the Constitutional Court, armed with the authority provided by the Constitution, is a crucial safeguard of the principle of secularism.

Pursuant to Article 13 on the “Restriction of Fundamental Rights and Freedoms,” any restrictions imposed by law cannot be “in conflict with the letter and spirit of the Constitution and the requirements of . . . the secular Republic . . . .”²¹⁸ The phrase “secular Republic” was added to this Article in 2001.²¹⁹ The addition of this phrase “signifies the importance of [secularism] in Turkish society . . . both at mass and elite levels,” particularly in response to the latest Islamist movements all over the Middle East, including in Turkey.²²⁰

Article 14 on the “Prohibition of Abuse of Fundamental Rights and Freedoms” is another important safeguard of secularism in the Turkish society. It states: “None of the rights and freedoms embodied in the Constitution shall be exercised with the aim of . . . endangering the existence of the democratic and secular order of the Turkish Republic . . . .”²²¹ All of the rights and freedoms afforded by the Constitution, from rights of individuals to those of the press and political parties, are subject to this broad restriction pursuant to which even “endangering” the secular order of the Republic is prohibited.²²²

Secularism also appears in the oath of office for TGNA members. Article 81 states the oath as follows:

I swear upon my honour and integrity, before the great Turkish Nation, to safeguard 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 . . . loyalty to the Constitution.²²³

Instead of members of the Parliament swearing on the Qur’an or by Allah, they swear on their “honour and integrity.” Likewise, instead of taking an oath “before God,” they swear “before the great Turkish Nation.” Moreover, members vow to abide by some of the most important principles of the government, including secularism and Atatürk’s reforms. The President of the Republic has to take a similar oath as well.²²⁴

2. Secularism and Political Parties

The Turkish Constitution also has various provisions that regulate political parties to ensure the conformity of their agendas with the principles of secularism. Article 68 declares that “[t]he statutes and programmes, as well as the activities of political parties shall not be in conflict with . . . the principles of the democratic and secular republic . . . .”²²⁵ Article 69 authorizes the Turkish Constitutional Court to dissolve a political party “after the filing of a suit by the office of the Chief Public Prosecutor of the Republic” if “the statute and programme of the political party violate” the foregoing provision of Article 68.²²⁶

Likewise, Article 84 authorizes the termination of the “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.”²²⁷ To date, the Constitutional Court has dissolved four political parties for violating the secularist principles of the Constitution.²²⁸ As a result of the foregoing constitutional provisions and the history of political-party dissolutions, parties that advocate the replacement of the secular order of the Turkish Republic are likely to face severe penalties, including permanent dissolution.²²⁹

Turkey’s bid for membership in the European Union resulted in the TGNA amending the Constitution in 2001 to narrow the criteria for dissolving a political party.²³⁰ The 2001 amendments to the Constitution have also authorized the Constitutional Court, instead of permanently dissolving a political party, to deprive that party “of State aid wholly or in part with respect to intensity of the actions brought before the court.”²³¹ Additionally, the 2001 amendments require the Constitutional Court to have a three-fifths majority to dissolve a political party,²³² as opposed to an absolute majority. Thus, the 2001 amendments have made it more difficult to dissolve political parties and have attempted to remedy some of the harsh consequences of a Constitutional Court finding that a political party is in violation of the principles of secularism.

In addition to providing for the dissolution of political parties that advocate the overthrow of the secular Turkish regime, the Constitution also expresses the strong historical attitude against the use of religion as a political tool. Article 24 states:

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.²³³

Because sultans in the Ottoman Empire, as well as political parties in Turkey, have frequently used religion to gain political capital,²³⁴ this provision is of special importance in the historical context of the Turkish secular order.

3. Freedom of Religion in the Turkish Constitution

While the foregoing provisions establish safeguards and restrictions to protect the secular system of Turkey, the Constitution also includes important provisions to ensure an individual’s right to freedom of religion. Article 24 states that “[e]veryone has the right to freedom of conscience, religious belief and conviction.”²³⁵ Moreover, “[a]cts of worship, religious services, and ceremonies shall be conducted freely, provided that they do not violate the provisions of Article 14.”²³⁶ Pursuant to Article 14, the rights that Article 24 affords can be restricted if they endanger “the existence of the . . . secular order of the Turkish Republic . . . .”²³⁷ Even though there are certain laws that regulate the expression of religion in the public sphere in accordance with Article 14,²³⁸ people can freely practice religion in the private sphere, as well as in churches, mosques, and synagogues. Finally, the constitutional provisions on freedom of religion “provide for a certain conformity with Article 18 of the Universal Declaration of Human Rights . . . .”²³⁹

Further protections of freedom of religion appear in other provisions of the Turkish Constitution. Article 15 on the “Suspension of the Exercise of Fundamental Rights and Freedoms,” declares that even “in times of war, mobilization, martial law, or state of emergency . . . no one may be compelled to reveal his or her religion, conscience . . . nor be accused on account of them.”²⁴⁰ Article 24 expresses a similar notion by stating that “[n]o one shall be compelled to worship, or to participate in religious ceremonies and rites, to reveal religious beliefs and convictions, or be blamed or accused because of his religious beliefs and convictions.”²⁴¹ Accordingly, in a system of secularism considered militant by some standards, an individual’s right to not disclose his or her religion and not be accused for religious beliefs is protected by the Constitution, even under extreme circumstances.

4. Anti-Secularist Provisions in the Turkish Constitution?

Even though the constitutional provisions this Article has discussed so far lay out a strict secularism system in the Turkish government, there are two provisions in the Turkish Constitution that some commentators view as inconsistent with the principle of secularism. The first subsection discusses the establishment of a Department of Religious Affairs in the Constitution. The second subsection analyzes whether the constitutional provision mandating religious education is against the principles of secularism.

a. Department of Religious Affairs

The first controversial provision is Article 136 of the Constitution, which establishes a Department of Religious Affairs (Diyanet Isleri Baskanligi) “within the general administration.”²⁴² The employees of the Department are civil servants,²⁴³ and its funds are appropriated from the administration’s budget.²⁴⁴ The Department is responsible for the “regulation of the religious life of all Muslims living within the country.”²⁴⁵ Among other things, the Department of Religious Affairs “appoints religious officials, including imams, pays the stipends of religious officials, and directs the administration of more than 70,000 mosques.”²⁴⁶ According to Article 136 of the Constitution, the Department of Religious Affairs has to exercise its duties “in accordance with the principles of secularism, removed from all political views and ideas . . . .”²⁴⁷

Since the common definition of secularism is the separation of state and religion, a Department of Religious Affairs in the administration of the state may, at first glance, seem anti-secular. Nevertheless, when the Department was first formed in 1924, its purpose was to regulate religion in the country and ensure that religion would not overstep its boundaries and enter the political sphere.²⁴⁸ Since the Department had control over all religious officials and the administration of mosques,²⁴⁹ it also ensured that religious officials and imams did not instill fundamentalist ideas into the population. At least initially, the Department of Religious Affairs acted, not as an anti-secular institution, but as an important safeguard designed to protect the secular order of the Republic.

Even though the Department of Religious Affairs still exists today and operates, in theory, pursuant to the principle of secularism, it has deteriorated significantly since its establishment.²⁵⁰ In certain instances, it has crossed the fine line between the regulation of religion and the political use of religion, the latter being extremely inconsistent with the principle of secularism.²⁵¹ Unfortunately, the Turkish government cannot afford to abolish this Department. The government still needs a method to regulate religion in the country to ensure that fundamentalists, under the disguise of religious officials or imams, do not brainwash innocent people and rally them in support of fundamentalist terrorism and against the secular order of the Republic. Thus, the Turkish government needs to take steps to improve the condition of the Department of Religious Affairs and ensure that it does not deviate from a secular administration.

Certain commentators also criticize the existence of a Department of Religious Affairs because its jurisdiction extends only to Muslims, and not to non-Muslims. Non-Muslims in Turkey are “regulated by a separate government agency, the Office of Foundations (Vakiflar Genel Müdürlügü) (VGM).”²⁵² The VGM is responsible for overseeing the “operations of churches, monasteries, synagogues, religious hospitals, schools, orphanages, and other similar organizations.”²⁵³

Nonetheless, the fact that there are two separate government agencies regulating different religions in and of itself does not violate the equality provisions of the Constitution—as long as the state does not discriminate against any religion. Since the Turkish government is under a constant threat of Islamic fundamentalism, it very well may have seen it appropriate to create a department solely in charge of the regulation of Islam and delegate the responsibility for regulating other religions to a separate agency. Concededly, Turkey has been accused of discriminatorily treating its religious minorities. The truth and extent of these allegations, however, are somewhat dubious.

It must not be forgotten that during World War II, Turkey provided a safe haven for over 100,000 Jews fleeing Nazi Germany.²⁵⁴ Jews in Turkey, like other religious minorities, enjoy the same rights as the country’s Muslim citizens.²⁵⁵ With respect to Turkey’s respect for religious minorities, Rabbi Cenk Misraji, the “highest-ranking Jewish leader in Asian Turkey,” stated: “From the moment of our arrival more than 500 years ago, there has been great religious tolerance in Turkey. We have been able to follow our religion, and open our synagogues wherever we desired. We were free to follow our traditions, practices and Jewish customs.”²⁵⁶

Similarly, Priest Mehmet Biraz in Turkey remarks that “[t]here is no difference” between the Muslims and Christians in Turkey.²⁵⁷ He says that he happily serves “the faithful” in his church in Istanbul and stresses that the “faithful” includes Christians as well as Jews and Muslims who go to his church to pray.²⁵⁸ Indeed, Kuzguncuk, a town in Istanbul, Turkey, is one of the few places in the world where one can see a church, a mosque, and a synagogue adjacent to each other.²⁵⁹ A woman who lives in this particular part of Kuzguncuk stated: “Everybody loves each other. This mosque on this side, and the synagogue on the other, being so close to each other, shows that Turks really accept different religions and cultures.”²⁶⁰

Although some commentators have argued that the government has acted somewhat discriminatorily against religious minorities in certain instances in the past,²⁶¹ it is also noted that the government has “undertaken a new, friendlier dialogue with its non-Muslim citizens.”²⁶² For example, in 1999, the President of Turkey “congratulated Christians on Christmas Eve.”²⁶³ Moreover, the Department of Religious Affairs conducted celebrations “to mark the completion of the second millennium since the birth of Jesus Christ.”²⁶⁴ Because “the state’s perspective on interreligious dialogue [has] fundamentally changed,”²⁶⁵ the existence of two separate departments for the regulation of different religions in the country does not appear to have any discriminatory effects on the population at the present time.

b. Mandatory Religious Education

Another controversial provision in the Turkish Constitution deals with mandatory religious education. Article 24 states: “Education and instruction in religion and ethics shall be conducted under state supervision and control. Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools.”²⁶⁶ Some commentators view the requirement of compulsory religious education as inconsistent with the principle of secularism.²⁶⁷

Nevertheless, this provision, which was added to the Constitution in 1982 following the military coup,²⁶⁸ ensures that students receive a secular religious education under government supervision. If there was no compulsory religious education, many parents who want their children to obtain an education on Islam would send them to private religion courses, some of which are known to have ties to Islamic fundamentalist organizations.²⁶⁹ Accordingly, the need to prevent fundamentalists from brainwashing the Turkish youth necessitates the inclusion of this provision in the Turkish Constitution.

In conclusion, this Part summarized the provisions of the Turkish Constitution that relate to the principle of secularism. As this Part demonstrated, the Turkish Constitution is designed to affirm some of the most fundamental protections of the Turkish democracy, Atatürk’s reforms, and the principle of secularism. The next Part analyzes the application of these principles in modern-day Turkey by examining the ban against the wearing of the Islamic headscarf in educational institutions.
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VI. The Ban Against the Wearing of the Islamic Headscarf in Educational Institutions

First, this Part provides an overview of the issues surrounding the ban on the wearing of the Islamic headscarf in educational institutions and analyzes the advantages and the disadvantages of the ban in light of the unique context of Turkey. Second, it outlines and analyzes the legislation the TGNA passed regarding Islamic headscarves, as well as the decisions of the Turkish Constitutional Court that have addressed the constitutionality of the same. Finally, it examines the decision of the Grand Chamber of the European Court of Human Rights in Leyla Sahin v. Turkey, which analyzed the conformity of the Islamic headscarf ban in Turkish educational institutions with the Convention for the Protection of Human Rights and Fundamental Freedoms.²⁷⁰

A. Overview of the Islamic Headscarf Ban in Turkey

Bans against the wearing of religious symbols in educational institutions have sparked in several countries across Europe within the past few years. For example, France implemented a law banning the wearing of conspicuous religious symbols in K–12 institutions.²⁷¹ Turkey also has a similar ban in place, which prohibits the wearing of the Islamic headscarf in educational institutions.²⁷² Unlike the French law, the Islamic headscarf ban in Turkey also applies to universities in addition to K–12 institutions. Yet, women and men are free to wear religious clothing in private or communal premises,²⁷³ which includes homes, streets, grocery stores, movie theaters, malls, etc.²⁷⁴

Before the Article discusses the various aspects of the Islamic headscarf debate in Turkey, the authors want to stress the importance of context in this heated debate. It is entirely possible for an individual to support the ban against the wearing of the Islamic headscarf in Turkish educational institutions due to Turkey’s unique context,²⁷⁵ and at the same time, disapprove of the ban in France, a country with no threat or history of religious extremism. As the rest of this subpart demonstrates, the ban against the wearing of the Islamic headscarf in universities is, for the present time, a necessary concession in the context of Turkey to ensure that the democratic regime of the country stands strong.

The current Islamic headscarf debate in Turkey centers on university students. As such, not only the context of Turkey, due to its fundamentalist history, geographic location, and demographic makeup,²⁷⁶ is of great importance, but also the context of Turkish universities is critical to this debate. Unlike universities in the United States, Turkish universities are political arenas, the breeding grounds for political extremism, and stages to violent confrontations between political groups, as exemplified by the hostility between the leftists and the right-wing nationalists in the 1970s.²⁷⁷

In the late 1970s, thousands of university students were killed due to violence between these political groups.²⁷⁸ Yurdanur and Tacettin Varol, the parents of the co-author of this Article, Ozan O. Varol, remember that at least one university student was killed every day during the late 1970s.²⁷⁹ Indeed, Yurdanur Varol was stuck in a classroom in her university when right-wing extremists raided her left-oriented campus and started shooting guns randomly through classroom windows.²⁸⁰ Universities were continuously shut down, and many students were unable to graduate in four years.²⁸¹ In fact, the political violence on university campuses was one of the main reasons for the military coup on September 12, 1980.²⁸²

Because of the unique context of Turkey and Turkish universities, allowing a conspicuous religious symbol in Turkish universities may lead to discrimination and violence,²⁸³ similar to the events that occurred in universities during the late 1970s. In fact, “violent confrontations between opposing radical groups” was the reason that Istanbul University implemented strict controls on the wearing of Islamic headscarves on the university premises.²⁸⁴ The likelihood of discrimination resulting from the acceptance of the Islamic headscarf in universities was exemplified by the statement of Ramazan Yenidede, a former pro-Islamist member of the Turkish Parliament.²⁸⁵ He stated that if the Islamic headscarf is a political symbol, then “some other clothes” students wear in universities are symbols of “immorality and prostitution.”²⁸⁶

Additionally, lifting the headscarf ban may also lead to discrimination among women who wear the Islamic headscarf, since there are different methods of wearing the headscarf that demonstrate to which sect of Islam that individual belongs.²⁸⁷ Especially in light of the ongoing violence between the Shiites and Sunnis in Iraq,²⁸⁸ the potential for discrimination between members of the same religion is not illusory. As such, the ban is necessary to prevent discrimination and violence in Turkish universities.²⁸⁹

Furthermore, the wearing of the Islamic headscarf in educational institutions has become a symbol of Islamic fundamentalism and a threat to the secular order of the Turkish Republic and Turkish women’s rights.²⁹⁰ The Islamic headscarf is constantly being used by “religious fundamentalist movements for political ends.”²⁹¹ For example, in protests advocating the lifting of the Islamic headscarf ban in universities, the headscarf was tied to the Turkish flag and protestors carried banners that read: “The headscarf is our flag.”²⁹² Some fundamentalists also state: “We have declared jihad against the government [of Turkey] and the headscarf is the flag of our jihad.”²⁹³ Thus, the Islamic headscarf has become a symbol for the advocates of overthrowing the secular order in Turkey.

The wearing of the Islamic headscarf in universities has also become a symbol of the threat against Turkish women’s rights. Islamic fundamentalists, in an attempt to turn innocent female students against the government, tell them: “Allah commands you to cover yourself. Your cover is our flag, your cover is our ammo against the enemy. Who is the enemy? The government of the Republic of Turkey.”²⁹⁴ Young and innocent Muslim women have become agents of propaganda,²⁹⁵ while their beliefs are being abused for political and religious extremism.

Professor Nur Serter, an Economics professor and former Vice Chancellor of Istanbul University whom the authors interviewed in Turkey, explained the magnitude of the situation in the following manner: “Some [extremist] groups are forcing [women] to use the headscarf [in universities], helping them, giving them some money.”²⁹⁶ In fact, Professor Serter stated some of these women were “very happy to hear from [university officials] that they would not get an education from the university if they [wear the Islamic headscarf,]” since this would let them take their headscarves off, at least on the university campus.²⁹⁷ At least in some instances, the Islamic headscarf ban in universities allows women to have a legitimate explanation for not wearing the headscarf when confronting the individuals who force them to wear it.

Turkish women are not the only ones who suffer from the effects of fundamentalism in the context of the Islamic headscarf debate. Administrators and government officials who support the Islamic headscarf ban in educational institutions have been put on death lists by extremist terrorist organizations.²⁹⁸ For example, Professor Nur Serter, who publicly supported the Islamic headscarf ban in her university, has been put on the death list of terrorist organizations that advocate the violent overthrow of the secular Turkish government.²⁹⁹ According to Professor Serter, Islamist terrorist groups have murdered many important people in Turkey, including professors, journalists, and writers, for advocating the protection of the secular regime.³⁰⁰ Recently, a gunman shot five judges in the highest administrative court of Turkey after the court rendered a decision against a school teacher who wore the Islamic headscarf.³⁰¹ When asked how she dealt with the death threats she has been receiving, she replied: “I am not afraid of them. They may kill me whenever they want to, but I have always been a person who is very direct with her beliefs. I believe in secularist Turkey. I believe in modern Turkey and in Atatürk’s reforms.”³⁰² She still continues to voice her opinion in the media, believing that the Islamic headscarf ban in universities is necessary for the security of the secular order of the Turkish Republic.

Inevitably, there are disadvantages to a ban against the wearing of the Islamic headscarf in educational institutions. First, the focus on the Islamic headscarf gives Islamist parties an opportunity to use religion as a political tool by continuously bringing the Islamic headscarf debate to the public’s attention.³⁰³ In the 1999 elections, one political party used slogans like, “Your votes are for the headscarf” and “Vote for us for the headscarf.”³⁰⁴ Necmettin Erbakan, who was the leader of the now-dissolved Welfare Party and who was banned from political service after his party’s dissolution, stated: “When our party wins the elections, the university rectors [who support the Islamic headscarf ban] will salute our covered women.”³⁰⁵

Likewise, four million Islamic headscarves were distributed to those attending political rallies for the moderate True Path Party (Dogru Yol Partisi).³⁰⁶ The leader of the True Path Party, Tansu Ciller, who later became the first female Prime Minister of Turkey and who does not wear the Islamic headscarf herself, explained her actions against the Islamic headscarf ban in the following manner: “If I do not defend the [headscarf,] then the votes will go to [Islamist parties.] We will be better able to control the situation if [the votes] come to us.”³⁰⁷ As such, the focus on the Islamic headscarf ban allows political parties to abuse religion to gain political capital.

Additionally, the Islamic headscarf ban in universities may be aligning certain Muslim women who wear the Islamic headscarf simply because of their beliefs along the same lines as those who wear it as a symbol of the fight against secularism.³⁰⁸ Women who wear the Islamic headscarf out of religious conviction may feel that the ban specifically targets them as well and join Islamic fundamentalists in their protests against the ban. Moreover, extremists try to take advantage of the headscarf ban by targeting, among others, the rural population, a majority of whom wear the traditional headscarf. Unlike the Islamic headscarf, the traditional headscarf does not cover the entire head and is not a symbol or an alleged mandate of Islam.³⁰⁹ An Islamist sheikh in Turkey stated: “The headscarf ban was the best thing that ever happened to us. This will allow us to get the support of the rural population. One drop of Muslim blood spilled over this debate will give us thousands of supporters.”³¹⁰ Accordingly, the Islamic headscarf ban may be paving the way for fundamentalists to push innocent women to extremism.

Finally, it is important to provide a secular education to women who choose to wear the Islamic headscarf. The ban excludes such women from universities, where they can learn about the importance of democracy, secularism, and women’s rights. Instead, they remain uneducated and continue to be prone to brainwashing by fundamentalists.

Nevertheless, weighing the reasons for and against the Islamic headscarf ban shows that, for the present time, the ban is necessary in the Turkish society to protect the stability of the country. Perhaps, in the future, when fundamentalism is not such an imminent threat, political parties do not use religion as a tool, and universities do not serve as breeding grounds for political fanaticism, the Islamic headscarf ban may be lifted. Until then, the ban against the wearing of the Islamic headscarf in educational institutions will continue to be an important safeguard of the principle of secularism in Turkey.

B. The Early Legal History of the Islamic Headscarf Debate and the First Legislation Lifting the Islamic Headscarf Ban

The wearing of the Islamic headscarf at Turkish universities is a relatively recent phenomenon, which started in the 1980s and subsequently led to the adoption of various regulations and legislation related to the issue.³¹¹ The Cabinet issued the first regulation addressing the wearing of Islamic headscarves in universities in 1981. The regulation “required staff working for public organizations and institutions and personnel and students at State institutions to wear ordinary, sober, modern dress. The regulations also provided that female members of staff and students should not wear veils in educational institutions.”³¹² The Cabinet’s action most likely resulted from the increasing number of students who wore the Islamic headscarf in educational institutions.

In 1982, under the authority of the foregoing regulation, the Higher Education Council (Yuksek Ogretim Kurulu) issued a circular prohibiting students who wear the Islamic headscarf from attending university classes.³¹³ The Council of State, the highest administrative court of Turkey, upheld this circular, noting: “Beyond being a mere innocent practice, wearing the headscarf is in the process of becoming the symbol of a vision that is contrary to the freedoms of women and the fundamental principles of the Republic.”³¹⁴ As a result of this initial wave of legal activity, the Islamic headscarf ban started to garner more attention from the public, which brought the issue to the attention of the TGNA.

In response to these developments, the TGNA passed a law in 1988 which in part provided: “Modern dress or appearance shall be compulsory in the rooms and corridors of higher-education institutions, preparatory schools, laboratories, clinics and multidisciplinary clinics. A veil or headscarf covering the neck and hair may be worn out of religious conviction.”³¹⁵ Then-President of the Republic Kenan Evren applied to the Constitutional Court to annul the foregoing provision.³¹⁶ In 1989, the Turkish Constitutional Court, in a 10–1 decision,³¹⁷ struck down the provision, holding that it violated the Preamble,³¹⁸ Article 2 (secularism), Article 10 (equality before the law), Article 24 (freedom of religion),³¹⁹ and Article 174 (protection of Atatürk’s reforms) of the Constitution.³²⁰ Among the signatory Justices to this controversial decision was Ahmet Necdet Sezer,³²¹ the current President of the Republic of Turkey.

In its judgment, the Court stated that secularism is the most important among all of Atatürk’s reforms and held that the legislation was inconsistent with a secular legal system.³²² Initially, the Court emphasized that the legislation concerned universities, which it defined as “public institutions.”³²³ The legislation, according to the Court, “undoubtedly” attempted to allow a religion-based rule in public institutions and “formed a direct relationship between clothing and religion.”³²⁴

The Court noted that laws are not derived from religion in a secular legal system.³²⁵ Laws that are based on religion mandate different laws for different religions and do not encompass the principle of freedom of religion, violating the fundamental principles of a secular legal system.³²⁶ Since the law at issue was based on religion, the Court held that it was contrary to the principle of secularism, which requires the separation of religion and state.³²⁷ The Court further held that even if the legislation did not state that women can wear the headscarf “out of religious conviction,” the law still would have been contrary to the principle of secularism since the underlying purpose of the law, according to its legislative history, was to allow the wearing of Islamic headscarves in universities.³²⁸ The Court also noted that religion-based legislation, such as the law at issue, eliminated the neutrality that a secular government is supposed to have towards all religions.³²⁹

Moreover, the Court held that the legislation was contrary to the principles of a secular education system. It noted that a secular education system formed an integral part of a secular government.³³⁰ In secular education, there cannot be any discrimination based on religious beliefs.³³¹ The Court reasoned that the law at issue would have the effect of segregating students based on their religious beliefs with a symbol that manifested religious affiliation, potentially resulting in discrimination and violence.³³²

In addition to finding the law inconsistent with the principles of secularism, the Court found the law to be in violation of Article 10 of the Constitution on equality before the law, since the law made a special exception for Islamic clothing.³³³ The Court also emphasized that a law allowing the wearing of Islamic headscarves “out of religious conviction” may constitute an assertion on the part of the legislature that Islam mandates that women wear the headscarf.³³⁴ Thus, the Court believed that while the law may be seen as promoting freedom of religion on its surface, it may, on a certain level, amount to coercion.³³⁵ The Court also noted that even if the law had provided the freedom to wear religious symbols for people of all religions, it still would have been inconsistent with the various provisions of the Constitution on secularism.³³⁶

In finding the law in violation of Article 24 of the Constitution on freedom of religion, the Court emphasized that even though a secular regime requires freedom of religion and conscience, the use of discriminatory religious symbols in educational institutions may result in the loss of the very freedoms that secularism is trying to protect.³³⁷ The wearing of religious symbols in universities would not only lead to discrimination between people from different religions, but also between people from the same religion.³³⁸ According to the Court, women who chose not to wear the headscarf or the veil would inevitably be labeled as faithless or irreligious.³³⁹ Thus, following the recurring theme in the Turkish secularism debate of not allowing the exercise of freedoms to restrict other freedoms, the Court found it appropriate in the instant case to annul the provision that allowed the wearing of the Islamic headscarf in universities.

Finally, the Court found the legislation contrary to Article 174 on the Preservation of Reform Laws.³⁴⁰ It reasoned that Atatürk’s reforms sought to abolish the link between religion and clothing, whereas the law at issue did the opposite by reestablishing a link.³⁴¹ The religion-based legislation at issue was especially inconsistent with the reform law on the Unification of the Education System, which created an education system based on logic and science, free of all dogmas.³⁴²

The Court could have used another provision of the Constitution to support its reasoning. Article 24 states: “Acts of worship, religious services, and ceremonies shall be conducted freely, provided that they do not violate the provisions of Article 14.”³⁴³ The Court may have interpreted the wearing of an Islamic headscarf as an “act of worship” subject to restriction pursuant to Article 14, which allows the limitation of all rights and freedoms afforded by the Constitution if they are used to endanger the secular order of the Republic.³⁴⁴ Thus, even if Article 24 protects the freedom to wear the Islamic headscarf, this freedom can be restricted pursuant to Article 14 since the Court interpreted the wearing of the Islamic headscarf in universities as endangering the secular order of the Republic.

The only dissenter argued that the various provisions of the Constitution that addressed freedom of religion allowed the wearing of clothing mandated by an individual’s religion.³⁴⁵ He also addressed the potential negative implications of this decision, one being that the ban would push innocent believers onto the same side as extremists who wanted to abuse religion.³⁴⁶ Thus, the dissent believed, unlike the majority, that the ban’s disadvantages outweighed any potential advantages that it may have.

This subpart examined the first legislation lifting the Islamic headscarf ban and the Constitutional Court’s decision to annul the same. Because the Turkish Constitution does not specifically address the wearing of religious clothing in educational institutions, the outcome of the case depended on the Court’s subjective assessment of what the principles of secularism required. The future members of the Court could disagree with the definition of secularism that this Court adopted and overturn the Islamic headscarf ban in educational institutions. Indeed, as the next subpart demonstrates, the TGNA attempted, alas only one year after this decision of the Court, to lift the Islamic headscarf ban in educational institutions. The next subpart analyzes this legislation and the Constitutional Court decision that examined its constitutionality.

C. The Second Legislation Lifting the Islamic Headscarf Ban

On October 25, 1990, only one year after the decision of the Constitutional Court on the Islamic headscarf ban in educational institutions, the TGNA passed the following law: “Choice of dress shall be free in higher-education institutions, provided that it does not contravene the laws in force.”³⁴⁷ The legislation at issue tried to remedy some of the defects of the previously annulled legislation on the Islamic headscarf ban. The new provision, unlike the previous one, did not specifically protect the Islamic headscarf, but allowed all types of clothing in universities. Furthermore, the new legislation did not contain the phrase “out of religious conviction” or make any other reference to religion, in an attempt to avoid, at least on its face, religion-based legislation that the previous Court decision found to be unconstitutional. Thus, it was clear that the TGNA was trying to bypass the decision of the Court by avoiding some of the shortcomings of the previously annulled legislation.

This time, Erdal Inonu, the leader of the opposition party in the TGNA, applied to the Constitutional Court for the annulment of the foregoing provision. The Court entered judgment on this case in 1991, holding, in a 7–4 decision, that the legislation was constitutional.³⁴⁸ Nevertheless, this did not mean that women would be allowed to wear the Islamic headscarf in universities. To the contrary, the Court held that, “[I]n light of the principles established in its judgment of 7 March 1989, the [provision at issue] did not allow headscarves to be worn in higher-education institutions on religious grounds and so was consistent with the Constitution.”³⁴⁹

The decision of the Court depended on the meaning of the word “law” in the provision at issue since the legislation allowed freedom of clothing in universities “provided that it does not contravene the laws in force.”³⁵⁰ The annulment application conceded that there was no “law” at the time that prevented Islamic headscarves from being worn in universities, and thus, the phrase “provided that it does not contravene the laws in force” had no practical effect. Nevertheless, the Court noted that the Constitution, as the supreme law of the land, was undoubtedly a “law” within the meaning of the provision.³⁵¹ Because the 1989 decision of the Court annulling the legislation that allowed the wearing of headscarves in educational institutions was an interpretation of the Constitution, “the laws in force” did not allow Islamic headscarves to be worn in higher-education institutions.³⁵² Since the provision at issue was conditioned on its not being inconsistent with “the laws in force,” this, in turn, meant that it did not allow Islamic headscarves to be worn in universities.³⁵³

The Court also based its reasoning on its interpretation of another provision of the legislation, which afforded amnesty to those students disciplined for wearing prohibited clothing in universities.³⁵⁴ The Court stated that if the provision at issue in fact allowed religious clothing to be worn in universities, an amnesty would have been automatically instituted, notwithstanding the inclusion of a separate amnesty provision.³⁵⁵ This, in turn, would have rendered the amnesty provision in the legislation superfluous.³⁵⁶ Stating that courts should interpret legislation to give meaning to all of its parts, the Court concluded that the TGNA could not have intended to allow religious clothing in higher-education institutions.³⁵⁷ In short, the Court found the law to be constitutional, but sent a clear message that the legislation legally did not allow Islamic headscarves in higher-education institutions.³⁵⁸

The Constitutional Court’s decision on this matter was flawed for a number of reasons. First, the Court ignored the heart of the matter by convincing itself that the TGNA did not intend the legislation to allow religious clothing in universities. As Mustafa Sahin, one of the dissenting Justices, pointed out, the legislative history of the provision demonstrated that its proponents clearly intended to undermine the 1989 decision of the Court on the same issue and allow the wearing of Islamic headscarves in universities.³⁵⁹

Moreover, the Court should have sent a clear message to the TGNA that its decisions are binding on all branches of the government by holding that this legislation, just like its 1989 counterpart, was unconstitutional. For the same reason, the application for annulment noted that the legislation at issue violated the principle of separation of powers, Article 153 on the binding effect of the Court’s judgments, and Article 11 on the supremacy of the Constitution, since the law tried to undermine the 1989 decision of the Court on the same subject.³⁶⁰ Nevertheless, the Constitutional Court did not strike down the legislation, which, on its face and without the interpretation of the Court, permits all types of clothing in higher-education institutions. In short, the Court avoided the important questions underlying the debate, focused on technicalities, and created bad precedent.

D. Headscarf Goes to Europe: Leyla Sahin v. Turkey

1. Background

Most recently, a case involving the Islamic headscarf ban in Turkish higher-education institutions, Leyla Sahin v. Turkey, made its way to the Grand Chamber of the ECHR.³⁶¹ Leyla Sahin, who “consider[ed] it her religious duty to wear the Islamic headscarf,” was a student at the University of Istanbul Department of Medicine since August 26, 1997.³⁶² In 1994, long before Ms. Sahin’s enrollment at the University of Istanbul, the University executives adopted a resolution regarding the dress code on the university premises.³⁶³ The resolution stated, in part, that “[t]he Constitutional Court has delivered a judgment which prevents religious attire [from] being worn in universities.”³⁶⁴ The Vice Chancellor of Istanbul University “was concerned that the campaign for permission to wear the Islamic headscarf on all university premises had reached the point where there was a risk of its undermining order and causing unrest at the University [and] called on the students to comply with the rules on dress . . . .”³⁶⁵

On February 23, 1998, the Vice Chancellor issued a circular that stated: “[S]tudents whose ‘heads are covered’ (who wear the Islamic headscarf) and students . . . with beards must not be admitted to lectures, courses or tutorials.”³⁶⁶ In accordance with this circular, Ms. Sahin was denied access to a neurology lecture as well as written examinations on public health and oncology because she was wearing the Islamic headscarf.³⁶⁷ Ms. Sahin was thereafter suspended from the university for one semester because she had shown that she intended to continue to wear the Islamic headscarf to lectures and/or tutorials.³⁶⁸

Subsequently, Ms. Sahin filed suit in the Istanbul Administrative Court to set aside the circular issued by the Vice Chancellor.³⁶⁹ On March 19, 1999, the Istanbul Administrative Court dismissed the suit holding that the Vice Chancellor had the authority to regulate students’ clothing in the manner provided for in the circular based on the previous decisions of the Constitutional Court³⁷⁰ and the Council of State.³⁷¹ On April 19, 2001, the Council of State affirmed the judgment of the Administrative Court.³⁷²

Ms. Sahin also applied to the ECHR alleging that Turkey, by instituting a ban against the wearing of the Islamic headscarf in universities violated Article 9 (Freedom of Religion) and Article 2 of Protocol No. 1 (Freedom of Education) of the Convention.³⁷³ The following two subsections analyze, respectively, the ECHR’s decision on both of these claims.

2. Analysis Under Article 9 of the Convention

Ms. Sahin argued that the ban against the wearing of the Islamic headscarf in Turkish higher-education institutions “constituted an unjustified interference with her right to freedom of religion, and, in particular, her right to manifest her religion” under Article 9.³⁷⁴ Article 9 states:

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 in 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.³⁷⁵

Article 9 cases before the ECHR involve a two-layered analysis. The first issue is whether there was an interference by a member state with the applicant’s right to freedom of religion within the meaning of Article 9, section 1 of the Convention.³⁷⁶ If there was no interference, there is no violation of Article 9. If there was an interference, the Court may still find no violation if it decides that the interference with the freedom to manifest one’s religious beliefs was “prescribed by law, pursued a legitimate aim and was necessary in a democratic society” within the meaning of Article 9, section 2 of the Convention.³⁷⁷

On June 29, 2004, the ECHR Chamber unanimously held that Turkey had not violated Article 9 of the Convention by instituting the headscarf ban.³⁷⁸ Subsequently, Ms. Sahin applied to the Grand Chamber of the ECHR, which accepted her request to hear her case en banc.³⁷⁹ The Grand Chamber also held, in a 16–1 decision, that the Islamic headscarf ban in Turkish educational institutions did not violate Article 9 of the Convention.³⁸⁰

a. Interference

In the first part of its analysis, the Court held that there was “an interference with the applicant’s right to manifest her religion.”³⁸¹ Ms. Sahin alleged that she was wearing the Islamic headscarf to comply with what she believed were her religious duties.³⁸² Accordingly, the regulations at the University of Istanbul, “which placed restrictions of place and manner on the right to wear the Islamic headscarf,” amounted to an interference within the meaning of Article 9, section 1 of the Convention.³⁸³

b. “Prescribed by Law”

Therefore, the Court proceeded to an analysis under Article 9, section 2. First, the Court had to determine whether or not the interference with the applicant’s right to manifest her religion was “prescribed by law.”³⁸⁴ For an interference to meet this standard, it has to (1) have “a basis in domestic law,” (2) “be accessible to the person concerned,” and (3) be foreseeable “to a degree that is reasonable in the circumstances.”³⁸⁵ The word “law” within the context of this test refers to both statutes and the interpretation of those statutes by the courts.³⁸⁶

First, the Court held that the interference with Ms. Sahin’s right to manifest her religion was based on a valid source of law—a 1991 decision of the Turkish Constitutional Court that interpreted a statute regarding the wearing of religious clothing in higher-education institutions.³⁸⁷ Second, the decision of the Constitutional Court, which was published in the Official Gazette on July 31, 1991, was accessible to Ms. Sahin.³⁸⁸ Finally, the interference was “foreseeable” because the University of Istanbul had regulations banning the wearing of the Islamic headscarf since 1994—“well before” Ms. Sahin’s enrollment at the University.³⁸⁹ Thus, the government’s interference with Ms. Sahin’s right to manifest her religion satisfied the “prescribed by law” standard.³⁹⁰

c. “Legitimate Aim”

Second, the Court held that the government’s interference also satisfied the “legitimate aim” standard.³⁹¹ Indeed, Ms. Sahin herself conceded before the Chamber that this standard was met “in view of the importance of upholding the principle of secularism and ensuring the neutrality of universities.”³⁹² Specifically, the Court held that the interference “pursued the legitimate aims of protecting the rights and freedoms of others and of protecting public order”³⁹³ within the meaning of Article 9, section 2.

d. “Necessary in a Democratic Society”

Finally, the Court had to determine whether the government’s interference was “necessary in a democratic society” within the meaning of Article 9, section 2. The Court noted that regulations intended to “prevent certain fundamentalist religious movements from exerting pressure on students,” ensure “peaceful co-existence between students,” and protect “public order and the beliefs of others” may fall within the protection afforded to the states by Article 9, section 2 of the Convention.³⁹⁴ It observed that the interference with the applicant’s right to manifest her religion was based on the principles of equality and secularism,³⁹⁵ the latter being “one of the fundamental principles of the Turkish State.”³⁹⁶ The Court further emphasized that the Islamic headscarf, as a “powerful external symbol,” may be forcefully imposed on women by a “religious precept” and may thus violate the principles of gender equality, non-discrimination, and tolerance.³⁹⁷

The Court also stressed that, in applying the principles of the Convention, there is a “margin of appreciation,” or deference, accorded to the member states.³⁹⁸ The Court noted that this margin was especially necessary in this case because opinions with respect to the relationship between the state and religion varied widely among democratic societies.³⁹⁹ The “margin of appreciation” was particularly important in cases involving the wearing of religious symbols in educational institutions, an issue on which democratic societies had not reached a consensus, and rules varied greatly from one nation to another.⁴⁰⁰

In emphasizing the “margin of appreciation” left to the member states, the Court also noted the importance of the unique context of Turkey.⁴⁰¹ The Court explained that it cannot lose “sight of the fact 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 . . . .”⁴⁰² The Court added that, in compliance with the standards of the Convention, member states, based on their context and historical experience, had the right to prevent such political movements.⁴⁰³ Consequently, the Turkish Islamic headscarf ban in higher-education institutions met a “pressing social need” by maintaining public order and protecting the freedoms of others—especially those who chose not to wear the headscarf, “which is presented or perceived as a compulsory religious duty.”⁴⁰⁴

After concluding that the Islamic headscarf ban in Turkish educational institutions served legitimate objectives, the Court asked whether there was a reasonable relationship between those objectives and the means employed to achieve them.⁴⁰⁵ In this context, the Court noted that Muslim students in Turkish universities had the right to practice their religion in universities “within the limits imposed by educational organisational constraints.”⁴⁰⁶ The Court afforded a great amount of deference to the university authorities with respect to the means employed, noting that they are “better placed than an international court to evaluate local needs and conditions.”⁴⁰⁷ Moreover, the Court praised the decision-making process that led to the adoption of the ban, noting that it weighed all of the interests at stake.⁴⁰⁸ Finally, it emphasized that the process of regulating the Islamic headscarves protected the students’ interests since the regulations had to be in conformity with statutes and be subject to judicial review.⁴⁰⁹

In light of the margin of appreciation accorded to the member states, as well as Turkey’s historical and religious context, the Islamic headscarf ban in higher-education institutions was justified and proportionate to the government’s legitimate objectives.⁴¹⁰ Thus, the ban fulfilled the “necessary in a democratic society” requirement under Article 9, section 2. Accordingly, having satisfied all of the criteria under Article 9, section 2, the Court held that Turkey had not breached Article 9 of the Convention.⁴¹¹

3. Analysis Under Article 2 of Protocol No. 1 of the Convention

Ms. Sahin also alleged that the Islamic headscarf ban in Turkish higher-education institutions violated Article 2 of Protocol No. 1, which provides that “[n]o person shall be denied the right to education.”⁴¹² Initially, the Court held that the “right to education” within the meaning of Article 2 of Protocol No. 1 encompasses the right to attend institutions of higher education.⁴¹³ The Court also noted that even though the right to education is an important and fundamental right, it is not absolute and may be limited by the member states in light of the “margin of appreciation” accorded to them.⁴¹⁴ Such limitations would be upheld if they are reasonably related to the legitimate aims sought to be achieved by the limitations.⁴¹⁵ Finally, the Court emphasized that the language of Article 2 of Protocol No. 1 must be read in connection with other provisions of the Convention, and especially in the context of this case, Article 9.⁴¹⁶

In applying these general principles to the facts of the case, the Court found no violation of Article 2 of Protocol No. 1.⁴¹⁷ The Court incorporated by reference many of the statements made in connection with Ms. Sahin’s claim under Article 9, noting that the limitations in this case aimed to “preserve the secular character of educational institutions.”⁴¹⁸ Further, it noted that, for the reasons stated above in the context of Article 9, the limitations on Ms. Sahin’s right to wear the Islamic headscarf had a reasonable relationship to the aims they sought to achieve.⁴¹⁹ Finally, the Court emphasized that it would be unrealistic for Ms. Sahin to be unaware of the regulations in place at Istanbul University and concluded that the disciplinary measures imposed for violating those regulations were foreseeable.⁴²⁰ Thus, the Islamic headscarf ban in Turkish higher-education institutions did not violate Article 2 of Protocol No. 1 of the Convention.⁴²¹

4. The Dissent’s and Ms. Sahin’s Arguments

The dissenting judge and Ms. Sahin raised several arguments that the majority did not specifically rebut, and which the authors find important to address here. First, the dissent argued that there was no evidence that Ms. Sahin had intended to protest against the principles of secularism by wearing the Islamic headscarf.⁴²² Nonetheless, this argument ignores the reality that the wearing of the Islamic headscarf in public institutions itself has become a symbol of the threat against the secular order of the Republic and Turkish women’s rights⁴²³—notwithstanding the individual’s personal beliefs or intentions. Moreover, the wearing of the Islamic headscarf only for religious beliefs does not prevent discrimination between women who wear different types of headscarves due to their particular sect and against women who do not wear the headscarf.⁴²⁴ Thus, the general ban against the wearing of the Islamic headscarf, regardless of the particular individual’s intentions, is necessary to achieve all of the purposes sought to be achieved by the implementation of the ban (e.g., gender equality, non-discrimination, protection of secularism, etc.).

Furthermore, based on the interviews the authors conducted in Turkey, women who wear the Islamic headscarf due to their beliefs, for the most part, do not object to taking off their headscarf before they enter the university premises and putting it back on after they leave.⁴²⁵ Some even wear a wig to conceal their hair,⁴²⁶ thereby leaving a highly conspicuous religious symbol outside of the school premises and at the same time complying with what they believe is a religious mandate to cover their hair. Mostly, the women who want to wear the Islamic headscarf as a symbol of the fight against the secular order of the Republic protest against the regulations implemented in universities. In fact, a commentator has noted that the Islamic headscarves worn by most of the university students who have refused to take them off have the same color and design, leading him to believe that these women are being directed from the same, central organization.⁴²⁷ As this Article discussed in Part VI.A, even though the Islamic headscarf ban will inevitably affect some women who want to wear their Islamic headscarves to universities with no intention of threatening the secular order of the Republic, the advantages of the headscarf ban outweigh its disadvantages.⁴²⁸

Second, Ms. Sahin argued that the wearing of the Islamic headscarf in universities was not inconsistent with the principle of secularism, as exemplified by the lack of an Islamic headscarf ban in universities in various other secular European countries.⁴²⁹ Nonetheless, certain European countries that never had a serious threat or history of religious extremism may be able to uphold their secular order without having to institute such a ban. On the other hand, Turkey has had a long history of fundamentalism under the Ottoman Empire,⁴³⁰ and there are ongoing fundamentalist threats to the Turkish secular order. The fact that the lack of an Islamic headscarf ban in the educational institutions of other European countries has not threatened their secular order is by no means a basis for arguing that the same will be true in the unique context of Turkey.⁴³¹

Finally, the applicant asserted that the Turkish government was not uniformly applying the restrictions on religious symbols since there was no history of a ban against “students of the Jewish faith . . . wearing the skullcap or Christian students the crucifix.”⁴³² To the contrary, and as the majority pointed out, the regulations at the University of Istanbul prohibited the wearing of clothes that symbolize “any religion,” and thus, did not specifically target Islamic headscarves.⁴³³ Even if the regulation had singled out Islamic headscarves, there are a number of reasons that may demonstrate that there would be no discriminatory reasons behind such a regulation. First, Muslims make up ninety-nine percent of Turkey’s population,⁴³⁴ and thus, there are simply not many Christian or Jewish students in Turkish universities to make the wearing of the skullcap or the crucifix in universities a problem. In fact, of the several university students the authors interviewed in Turkey, none of them had ever seen a student wearing a skullcap or a crucifix to campus.⁴³⁵

Moreover, Jewish or Christian fundamentalists are not threatening to overthrow the secular order of the Turkish government. Thus, there is no reason to institute a ban against symbols that have not been or do not threaten to be sources of tension or violence. For example, while there is a ban against the wearing of gang symbols in certain high schools in the United States to prevent violence,⁴³⁶ there is no similar ban against the wearing of marching-band outfits, even though both are symbols of an organization. Finally, if there were an increasing number of students wearing the crucifix or the skullcap to universities, resulting in discrimination and affecting the neutrality of educational institutions, the TGNA would probably implement a ban against the wearing of these religious symbols in universities as well to protect public order.

5. Turkish Government’s Response to the Decision

Ironically, the same government who argued the case on behalf of Turkey and in support of the Islamic headscarf ban before the ECHR, reacted negatively to the outcome of the case.⁴³⁷ Top government officials, including Prime Minister Recep Tayyip Erdogan and Foreign Minister Abdullah Gul, undermined the importance of the ECHR’s verdict and seemed determined in their attempts to lift the ban.⁴³⁸ Concededly, there is nothing in the ECHR’s decision itself that could prevent the Turkish government from lifting the Islamic headscarf ban. The ECHR decided that the ban was consistent with the Convention, but it would be hard to imagine how lifting the ban would be inconsistent with the Convention. Nevertheless, as long as the Turkish Constitutional Court continues to interpret the principle of secularism strictly, any legislation attempting to lift the Islamic headscarf ban in educational institutions is likely to be struck down as unconstitutional.

This Part examined the legal history of the ban against the wearing of the Islamic headscarf in Turkish educational institutions. It analyzed the two pieces of legislation that addressed the ban and the Constitutional Court decisions that reviewed the constitutionality of the same. Finally, it discussed the holding of the Grand Chamber of the ECHR in Leyla Sahin v. Turkey, where the Court held that Turkey was not in violation of Article 9 (Freedom of Religion) or Article 2 of Protocol No. 1 (Freedom of Education) of the Convention for banning the Islamic headscarf in higher-education institutions. The next Part speculates on the prospects of the principle of secularism in Turkey and discusses the future of the Islamic headscarf ban in educational institutions.
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VII. The Future of Secularism in Turkey

A. Background on the Justice and Development Party

This Part discusses the future of the principle of secularism in Turkey, especially in light of the pro-Islamist Justice and Development Party’s (Adalet ve Kalkinma Partisi) (AKP) victory in the last election.⁴³⁹ A great number of AKP’s members used to be a part of the Welfare Party and the Virtue Party, both of which the Turkish Constitutional Court dissolved for advocating a change in the secular order of the Republic.⁴⁴⁰ Accordingly, AKP is seen as a successor to those parties.⁴⁴¹

Indeed, Recep Tayyip Erdogan, the current leader of AKP and the Prime Minister of Turkey, was banned from holding public office in 1998 after he made the following recitation of a poem during a political rally: “Mosques are our barracks, minarets our bayonets, domes our helmets, the believers our soldiers.”⁴⁴² Ironically, Ziya Gokalp, a defender of secularism, wrote the poem in the 1910s;⁴⁴³ however, the Constitutional Court interpreted the speech as “advocating Islamic revolution”⁴⁴⁴ given its political context. Because of Turkey’s history of political-party dissolutions, the members of AKP have been very careful not to make any statements or adopt a public agenda that the Constitutional Court could view as being anti-secular, even though the party may very well have a hidden agenda of its own.⁴⁴⁵

B. Are Fundamental Changes in the Secular Regime Possible?

Can AKP change the democratic and secular order of the Turkish Republic? If AKP attempted to implement any fundamental changes in the regime, they would face intense legal and political opposition. First and foremost, the “ultra-secular”⁴⁴⁶ Turkish Constitutional Court would strike down any anti-secular legislation AKP passes through the Parliament. As such, AKP has reasons for “wanting to curtail the authority of the Constitutional Court.”⁴⁴⁷

AKP could go about implementing a change in its favor in the composition of the Constitutional Court subtly and in conformity with the law. Since the Constitution prescribes a mandatory retirement age of sixty-five for judges⁴⁴⁸ and also gives the authority to appoint the members of the Cou

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