By itself, the now more diluted amendment to Article 42 seems much less clear than the original proposal to amend the article to declare as unconstitutional all discrimination based on apparel. Legal experts quoted in Today's Zaman indicate that it is more difficult to challenge a constitutional amendment than the amendment to Higher Education Law. What I am left wondering is that if it is this: If it is indeed easier to challenge the Higher Education Law provision and since the amendment to Article 42 now rests on this definition, would it not then be made easier for the Constitutional Court to declare the provision unconstitutional under the Turkish Constitution's Article 2 guarantee of secularism? Since interpreting Article 42's equal right to an education unless otherwise "clearly set forth by law" is now dependent on the interpretation of the provision to the Higher Education Law and since the provision is more easily challenged, it seems possible that the Constitutional Court might easily be able to rule the Parliament's definition of the headscarf unconstitutional. Not up to par on my Turkish constitutional law, I hope to better follow such legal analysis in the future, but it does make me wonder if it had not been smarter for AKP to insist on a stronger amendment or table the headscarf issue entirely until presentation of the new constitution.
As to the politicians:
CHP leader Deniz Baykal has long made his antagonism to lifting the headscarf ban well-known, but I thought it might be useful to take part of today's post to discuss his criticism and the thought behind it. In a meeting of CHP's parliamentary group this Tuesday, Baykal declared the move to lift the ban to be motivated by Islamic fundamentalism. Further, he said that this would be the first time in Turkey's history that a law will be passed by Parliament that is in direct contradiction with the secular principles Atatürk laid out at the state's founding.
Both these claims are highly-charged and perhaps a bit difficult to swallow in light of the fact that the headscarf had been more or less allowed in universities prior to the 1997 coup (even if one could argue that the Constitutional Court made it illegal in 1989) and that Iran seemed no closer to Iran than now. If you refer to my first post on the issue, the Higher Education Council (YÖK) had provided that the türban be legalized in 1984. As to Parliament, a historian's view of Turkey might look back to the Parliament during its control by the Democratic Party (Demokrat Parti-DP).
The DP controlled the Turkish Parliament soon after the state allowed opposition parties and controlled Parliament from the time it won 53 percent of the vote (to CHP's 40 percent)in 1950 to the time of Turkey's first military coup in 1960. Although DP was by no means very determined in its opposition to secularism as it had been practiced since the state's founding, it did adopt a religious rhetoric that was much stronger than any AKP might use today. During its time at the parliamentary helm, DP legalized the prayer call to be made in Arabic, expanded religious eduction and actually made it necessary for parents to opt-out of having their children enroll in such classes rather than opt-in, funded the construction of mosques, and increased the number of educational institutions for clerics. At a DP congress in 1958, Prime Minister Adnan Menderes boldly declared: "Without paying heed to the outcry of the zealots of the revolution, we Arabicized the call to prayer. We accepted religious teachings in schools. We had the Koran recited over the radio. Turkey is a Muslim state and t will remain so." Although this rhetoric is largely responsible for its violent exit from Turkish politics, Parliament under its reign undeniably passed a number of reforms that one might view as much more Islamist than the reform currently in question. Notably, a similar argument can be made in terms of CHP during Turkey's transition to multi-party democracy. In this time, the CHP-controlled Parliament re-introduced elective religious education in schools and set up the educational institutions for Islamic clerics that DP later expanded.
I do not bring these arguments up to challenge Baykal or offer my own opinion on the issue, but simply to illustrate the fact that historical memory—as it is in all countries—is selective. In claiming that the legislation was linked to religious fundamentalism, Baykal presented the argument that this would be the first step of turning Turkey into an Islamic state akin to Iran or Saudi Arabia:
“Our state organization, however, can't be based on religious foundations. Religion is for people, not a device for the government. Turkey made its choice independent of the Islamic religion surrounding the country. People's freedom of faith has been protected. Otherwise the pictures observed in Saudi Arabia, Iran and Iraq would have also been here as well.”This sort of slippery slope and fear-based line of argument is not at all unique to Baykal. I am hearing it frequently from many people with whom I am talking and, for most, this seems a real and genuine fear for them. Generally, my interlocutor begins with the current legislation and then, even if he or she is not opposed to it in principle, ends up informing me as to how this is the first step to eventually requiring all women to wear the türban. First, the türban will be legal in universities, and then in primary and secondary schools, then in all public buildings. The inevitable peer pressure and condescension that will be turned against women who do not wear the veil will result in parents forcing their children to wear it. And, perhaps a few years later, there will be ample support to pass a mandate requiring all women wear it. It will take me a while to fully come to terms with this line of thought.
In other responses to the legislation, MHP leader Devlet Bahçeli said that the country had nothing to learn from Baykal. Bahçeli also condemned former Court of Appeals Chief Prosecutor Sabih Kanadoğlu for statement the latter had made about the unconstitutionality of the amendment package as well as the Turkish Industrialists and Businessmen's Association (TÜSİAD) for their expressed opposition to the parliamentary move. He also tried to score some points with religiously-inclined national voters by declaring that Turkey's Parliament will not be held back by the concerns of Europe.
TÜSİAD released a statement today arguing that CHP and MHP had overlooked the Constitution and, in its view, the Copenhagen Criteria for EU entry and a decision by the European Court on Human Rights in 2005 in which the ECHR ruled that Turkey's headscard ban was not a violation of human rights as understood by the Court. In the statement, TÜSİAD further claimed that "the fact that both the AK Party and the MHP seemed to be in a rush to remove the headscarf ban at university campuses proves that they wish to divert Turkey from its objective of full membership in the European Union."
Also, food for thought is a story appearing in yesterday's Turkish Daily News. The story quotes European Parliament member Ria Omen-Ruijten as being opposed to recent legislative moves to settle the headscarf issue. It quotes only one other EPM, but presents the idea that the EU is largely opposed to the new legislation. I should state here that the Turkish Daily News is the country's first English-language newspaper and part of the Doğan Media Group (DMG). DMG also owns Hürriyet and Milliyet, which are both considered to be Kemalist newspapers. Meanwhile, Today's Zaman is not without its own political leanings. It is the English-language extension of Zaman, Turkey's third-largest newspaper. Zaman is considered by some an "Islamist" paper, but is probably more appropriately described as being religiously conservative while opposing the political establishment in the same vain as the growing religious middle class.
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