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Turkey’s constitutional court reverses government ruling permitting hijab in universities

Hajira Qureshi

Hopes that the persecution of hijabi women in Turkey – a substantial majority of the population – might soon be eased were dashed on June 5, when the Turkish constitutional court overturned the decision announced by the government February to relax the hijab ban in universities. The Court ruled that the government decision was unlawful because it was anti-secularist and unconstitutional.

There has never actually been any law in the Turkish constitution forbidding women to wear the hijab – only a series of regulations passed since the military coup in 1980. When on February 9, Turkey’s government voted overwhelmingly to relax the hijab ban, articles 10 and 42 of the Turkish constitution were amended so that the effects of such regulations were removed and women in head-scarves were allowed to pursue higher education; the amendments were approved by 433 members of the 550-seat parliament. One amendment read that the state will treat everyone equally when it provides services such as university courses, and that no one can be barred from education for reasons not clearly laid down by law. Under a compromise deal between the ruling Justice and Development Party (AKP) and the nationalist MH Party, the third largest party in Turkey’s parliament, women in universities were allowed to tie their scarves under the chin in the traditional way; however, hijab for working women, women and girls in schools, the niqab and wrap-around scarves covering the neck were still banned. The MH Party has long backed relaxing the headscarf ban because, like the AK Party, it counts among its supporters many religiously conservative small businessmen and farmers; an increasingly wealthy but pious middle class is emerging in Turkey who want to practise their religion more freely.

Tens of thousands of secularist Turks took to the streets in protest after the parliamentary vote, with cries of “Turkey is secular and will remain secular” and “Tayyip, take your headscarf and stuff it”. The Republican People’s Party (CHP), the secularist opposition party, immediately took the ruling to the Constitutional Court on the grounds that the amendments contradicted the secularist principles of the constitution. On June 5 the Court annulled the constitutional reform bill that had eased the hijab ban on campuses, confirming that the amendments passed by the government violated the principles of secularism set in Turkey’s constitution. The Court’s eleven judges voted 9-2 against the amendments, saying that they contradicted some articles in the constitution, including “the Turkish republic is a secular state” and one that says that altering the secular nature of the state “cannot even be proposed”.

It does not end there; the ruling has other implications. Turkey’s secularist establishment – the military, judiciary and secular political party, who consider the hijab ban vital for the separation of state and religion – consider the government’s campaign to lift the headscarf ban as grounds for outlawing the ruling AK Party because of its alleged “Islamicising” agenda. A ban is being sought not just against the party but also against 71 party members, including prime minister Erdogan, who face being barred from all political activity for five years. The same court is considering this case; a decision is expected in the summer. At least seven votes, from eleven judges, will be needed to disband the party.

The ruling by the High Court is expected to exacerbate the Turkish republic’s divide over religion. The AK Party deny an Islamicist agenda and insist that, in a country where two thirds of women and girls cover their heads, wearing the headscarf is a matter of personal freedom. Mr Erdogan has justified the amendments by saying that everyone in Turkey has the right to education and government services. Besides, the AK Party point out, the hijab ban was lifted only in universities. Mr Erdogan has assured his secular opponents that he will defend secularism in Turkey. However, the secular opposition maintain that the relaxation of the hijab ban came abruptly, with little discussion, and was not followed by enough reassurances by Mr Erdogan that he will defend secularism. After the February amendments, Toptan, parliamentary speaker, said, “I hope this will be for the best for Turkey and hope it is done in a spirit of tolerance and reconciliation.” Since the High Court’s decision, members of the AK Party have expressed frustration at the inability of the main political parties to reach a consensus and bring about peace in the country.

Meanwhile, going by the outcry of the Turkish secularists, one would think the lifting of the hijab ban might be the end of Turkey itself. Secularists claim that the lifting of the hijab ban would result on a ban on uncovered hair, and that it would put pressure on women to wear the headscarf against their will. They insist that the amendments contradict the secular constitution of Turkey and fear an Islamist agenda, alleging that the lifting of the hijab ban would be the first step in a trend towards “religious dictatorship”. They accuse the AK Party of not heeding the concerns of women or religious minorities and listening to the liberals as and when it suits them. As far as the opposition is concerned, the AK Party have not done enough to allay secularists’ fears about the role of Islam in modern Turkey. Secularists see the headscarf as a threat to the modernising pro-Western reforms of Mustafa Kemal Ataturk in the 1920s and 30s. They say any relaxation of the ban could turn Turkey into “another Iran”.

In the showdown between the government and the secular institutions in Turkey, the Turkish Muslims have been all but forgotten. Young Muslim women are having to either leave Turkey to pursue a further education or not get an education at all; young people are holding classes outside the universities and, even with the relaxation of the hijab ban in universities, Muslim women will still face the same problems once they leave further education and wish to join the workforce. Ordinary Turkish Muslims insist that people’s rights should not be withheld because of fears and prejudices. Dengir Firat, a senior member of Mr. Erdogan’s party, has said that “You can’t limit someone’s liberties on the basis of people’s fears”.

While the government and the secularist opposition fight, and Turkish Muslims face hardship and discrimination, analysts look on and shake their heads at the situation. They fear neither side realise the danger of the ongoing clashes between Islam and the secularists: the irrevocable undermining of Turkey’s democratic institutions. Turkey’s 70 million people are predominantly Muslim, with 30 percent of the population (21 million) being non-Muslim. Opinion polls show strong public support for lifting the headscarf ban. The AK Party party are a democratically elected party, having won 47 percent of the votes cast last July. The vote on February 9 was overwhelmingly for the amendments, which would result in relaxing the hijab ban. However, three weeks ago the secularist minorities in Turkey overturned this democratic decision. The summer will show whether a democratically elected party and prime minister can be banned; most analysts agree that the decision will be in favour of the secularists. In the last 50 years, Turkey’s powerful and secular military has toppled four democratically elected governments; most recently in 1997, when it drove out a cabinet it viewed as “too Islamist”. In total, the authorities have closed 20 parties in the past.

The high court’s ruling also drew criticism for being a violation of the Turkish constitution. Since the decision of the high court in early June, the AK Party has accused it of openly violating the principle of separation of powers and of directly interfering in parliament’s legislative power. The constitution states clearly that the court can only carry out procedural examinations. In any case, many universities defied the law and forbade Muslim women from wearing the hijab in universities after the February governmental ruling. Human Rights Watch has denounced the verdict as a violation of religious freedom, saying that women who choose to wear a headscarf will have to choose between their education and their religion. Muslim women have taken to the streets demanding curtailment of the powers of Turkey’s constitutional court. The AK party have expressed concern for democracy in Turkey and there have been suggestions of a new constitution and establishing a senate in addition to a parliament to curtail the powers of the constitutional court.

Turkey is locked in a battle of wills between the Muslim masses, the wealthy but pious middle class, the governing AK Party and the nationalist MH Party on one side and the CH Party, the secular and powerful establishment (the military, judiciary and secular institutions) on the other, and democracy nowhere to be seen. The secular opposition have made it perfectly clear to everyone that they will not allow any move on the government’s part to meet the needs or rights of the Muslim majority. If the AK Party move in this direction, their very existence as a party will be threatened and members of the party will live in fear of being barred from politics – democracy notwithstanding. Turkey is being ruled by the minority and they are going to fight to the bitter end to impose their will on the Muslim majority. Two Western concepts are at odds with each other in Turkey: secularism and democracy. Which is real and which is merely a facade is being proved by demonstration beyond any denial.

Article from

Crescent International Vol. 37, No. 5

Jumada' al-Akhirah 27, 14292008-07-01

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