Why and how will the ‘headscarf problem’ be solved?
by
LEVENT KÖKER*

Please forgive me, but this is a tragic comedy. For several reasons: Firstly, if the main opposition party leader was asked, “What should be done in order to not solve the headscarf problem?” the answer would be the same. It is the famous “if you do not want to solve a problem in politics, leave it to a commission” example. Besides, wouldn’t it occur to someone to ask, “What is the headscarf problem; what have we done about this matter in the past?” The response to that question might be “that was in the past, now we have changed. In fact now we accept that there is a headscarf problem. We even think it’s necessary to learn the views of religious leaders. This is not a small change. Why don’t you show us a little understanding and patience?”

OK, let’s show some understanding and let’s hope that an unusual new libertarian wind is forming in the main opposition front. Besides, my purpose is not to criticize the main opposition party by way of the headscarf problem, which is back on the agenda just shortly before the referendum. The recent focus on the headscarf problem draws our attention to an aspect of the debates on the constitutional amendments that have been overlooked: Constitutions and legal texts can change just like how judges, administrators and deputies, in other words, just like how tangible people change. But what about culture, understanding and mentality? Can they change at the same pace laws or tangible people change?

Breaking down the ‘headscarf problem’

First let us recall what the “headscarf problem” is. The history of the problem dates back to the days of the Sept. 12 coup and the days when İhsan Doğramacı was the president of the Higher Education Board (YÖK), which abolished the autonomy of universities in Turkey, and is so detailed that it would exceed the limits of this article. For this reason, let’s not delve into the details. The “headscarf problem” is the polite term for a “dress ban” that causes women, which the Constitution guarantees are equal to men, to be disgraced in every sense of the word at the doors of higher education institutions.

But is there really this kind of a ban? Additional Article 17 of the YÖK Law, which is directly related to the matter, states “All attire is allowed at higher education institutions as long as it does not go against the laws in force.” So are there any other laws or provisions that prohibit wearing the headscarf in higher education institutions? There is no such prohibition even in the famous “Laws of the Revolution” which regulates the way men should dress.

In that case, what is this ban based on? It is based on a decision the Constitutional Court made in 1991. (Let me point out that the Constitutional Court made this decision as a result of an annulment case that was filed by the Social Democratic People’s Party [SHP], whose political line was very similar to the line the CHP currently represents.) The decision does not find the provision “is allowed” against the Constitution but it excludes the headscarf, or as the Constitution Court preferred to say the “türban,” from the scope of that provision. What does the Constitutional Court’s determination mean? Article 13 of the Constitution, states that “fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution.” Since the headscarf ban concerns the right of education, we look at Article 42, which regulates the right of education, to see if there is any statement that could justify the ban. There is none. Does the Constitutional Court have the authority to act like a lawmaker? No, it doesn’t. In that case, does the headscarf ban have any legal basis? Clearly, it does not. In that case, the Constitutional Court’s decision does not make a ban necessary. But that is not the way it works.

A break in the 1990s

The headscarf ban, which began as a practice that tutelary institutions imposed on higher education institutions by way of YÖK after Sept. 12, was relaxed a little bit in the 1990s but then turned into a long-term problem after the Feb. 28, 1997, interventions and finally became rooted in 2008 when the Constitutional Court annulled a constitutional amendment that 411 well-intentioned deputies approved to solve the problem. In other words, the Constitutional Court’s decision, which rejected the will of Parliament, replicated a decision it took 20 years ago and ensured the continuation of the ban.

There is no need to beat around the bush, conduct research or suggest organizing quasi “workshops” on solving the headscarf ban, which does not have any legal base, and the ensuing “headscarf problem.” A solution could be found if the Turkish Parliament maintained that the Constitutional Court’s decision about the subject does not mean a ban. The decision could also state that the Constitutional Court’s 2008 decision on the matter is unacceptable because it exceeds the limits of its authority as stated in the constitution and if the CHP claims it will “solve the headscarf problem” then it can spearhead efforts to have this kind of a decision pass in Parliament. Another option is to insert a provision that clearly states that wearing a headscarf is allowed in the Constitution and YÖK law. Again, if the CHP wants to lead efforts to find a solution it can prepare proposals to make amendments to the Constitution and laws and present it to the Turkish Parliament and it can announce that if the changes go into effect it will not file a petition with the Constitutional Court. A much easier solution could be for the administrators of higher education institutions to remove the ban.

Regardless of which one of these solutions is tried, the problem won’t be solved permanently. That is so because even if constitutional and legal amendments are made and college administrators lift the ban the issue can always be made the subject of the claim that it violates the Constitution and it can be taken to the Constitutional Court for annulment. In such a case, despite major changes to the composition, the Constitutional Court, which stood behind its 1989 and 1991 decisions in 2008 as well, will probably have the same attitude in the coming years as well.

This may make someone raise the following question. If the constitutional amendments that are being put up for a referendum are accepted, the number of members on the court will increase from 11 to 17. As a result the organization and composition of the court will change. So if the referendum is in the affirmative we will have a new Constitutional Court that will make more liberal assessments and reach better decisions. As a result, all critical problems like the “headscarf problem” that stem from the Constitutional Court’s tutelary stance will come to an end.

Isn’t that being a little too optimistic? The court has always ruled the same way about the headscarf issue even when its members have changed. As another example, the court has maintained the same attitude on the review of constitutional amendments for nearly 50 years even though provisions clearly limiting it were placed in the Constitution in both 1971 and 1982. The only way we can be optimistic about this matter is if steps can be taken to provide the court with a new libertarian and democratic judicial culture. As for if the outcome of the referendum will present this kind of opportunity for Turkey is the subject of another article.