Unless controversial issues that attract public attention are raised and brought to the fore, we will not be informed about the work of the commission. Due to this, we have even come to the point of forgetting all about the making of a new constitution. One of the recent developments that stresses the need for Turkey to have a new, civilian and democratic constitution was brought to the fore by the recommendations that the Justice and Development Party (AK Party) reportedly referred to Parliament's Reconciliation Commission on the constitution in respect to the right to education.
Based on media reports, I gather that the gist of these recommendations is all about two major issues: freedom of religion and conscience, and the right to education in one's mother tongue. The current constitution regulates the right to education in two separate articles. Article 24 of the 1982 Constitution on freedom of religion and conscience reads: “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.” Article 42 on the right to education says: “No language other than Turkish shall be taught as the mother tongue to Turkish citizens at any institutions of training or education.”
It is my understanding that the AK Party's recommendations suggest that the two separate articles on the right to education should be combined into one single article. This is a proper preference in terms of constitutional structure. However, it should be noted that the aspects of the AK Party recommendations on the details are more important.
Right to education, freedom of religion and conscience
Turkey's constitutional history and practice in the aftermath of the formation of the republic does not have a shining record on the freedom of religion and conscience, one of the most fundamental rights and freedoms. The primary reason was the eagerness of the state to maintain control over religion in an effort to build a new nation-state. In the end, the Kemalist approach, which saw the construction of society as a single-cultured integrated part as one of the fundamental duties of the state, recognized education, one of the most visible aspects in the sphere of religion, as something to be carried out and fulfilled under the supervision and control of the state. This did not remain only a constitutional provision. It was further reinforced by a legal and political culture that saw the state's determinative and authoritarian control as something superior to anything else.
It should be recalled at this stage that this constitutional practice and provision, along with the legal and political culture associated with it, is one of the fundamental paradoxes of Turkey. This paradox is visible between the state's claim to be secular and the practice by which it takes the sphere of religion under its authoritarian control. From one perspective, it could be even viewed as the principles of the republic, as some commentators argue. On the other hand, it is seen as having been created by major international conventions that have had a binding effect upon the state, including the Treaty of Lausanne and the European Convention on Human Rights (ECHR).
We have to admit that the AK Party's recommendations appear to be helpful in resolving these paradoxes through their contribution in respect to freedom of religion and conscience. According to the AK Party's recommendations, the new constitution should not include any reference to the rule that religious training will be performed under the control and supervision of the state. The conclusion to be drawn from this is that if the new constitution is drafted in accordance with these recommendations, there can be no constitutional basis for the state's position and service as a watchdog and supervisor of religious training and education. How this will be reflected in practice is a whole different issue. However, it could be said that if these recommendations are honored, there will some progress towards democratic secularism in state-religion relations. This is further certified and sealed by a statement in the AK Party's proposal indicating that the state shall recognize the right of parents to demand the observance of their religious and philosophical beliefs and inclinations in the implementation of training and education. This statement is extremely similar to the part in the ECHR on the right to education, and in this respect, it makes strong reference to the potential of the new approach to religious education and training for democratic secularism, and the binding effect of the ECHR as a major tool to implement and fulfill this potential.
What makes this aspect stronger and more visible is the reference in the AK Party's proposal to provisions consistent with the content of the ECHR and the Treaty of Lausanne on religious freedom and religious training. The following statements in the proposal referred to the commission by the AK Party representatives are important: “Freedom of religion and belief includes performance of religious rituals in public or in secret, observation of religious duties through training, education and practice, as well as ceremonies, and conversion to another faith or belief. Nobody can be forced to attend religious ceremonies or practices, or to express their religious beliefs and views, nor can they be banned from observing their rituals. Nobody can be condemned or blamed for observing or not observing their religious duties or rituals.” This approach to freedom of religion and conscience is not only consistent with the pluralist structure of Turkey, but also helps to remove the ongoing paradoxes that Turkey has been experiencing in the implementation of crucial international instruments including the Treaty of Lausanne and the ECHR. When these proposals are honored and transformed into law, Turkey will have addressed the contradictions with the Council of Europe and international law in general.
Important step towards resolution of education in the mother tongue
The second aspect of the AK Party's proposal on the right to education is about the right to education in one's mother tongue, one of the crucial parts of the Kurdish issue that serves as the main reason for Turkey's pursuit of a new constitution. Let me reiterate something I have frequently placed emphasis upon: The prohibition in the constitution indicating that no language other than Turkish can be used as a language of instruction is a regulation that serves to justify the inhumane, illegal, anti-democratic and fascist practices of the Sept. 12 regime that exacerbated the Kurdish problem. No political movement or party that argues it has confronted the legacy of Sept. 12 can defend the preservation of this prohibition in the new constitution. For this reason, it should be said that the AK Party's proposal indicating that this prohibition should not be included in the new constitution should be taken into consideration.
In conclusion, it could be said, based on the content of the recommendations that were made public, that the ruling party, unlike its recent nationalist-authoritarian profile, promises a democratic and pro-freedom program again. It is our hope that the democratizing approach in this proposal is expanded to have an impact on the whole text of the constitution and that the implementation of the new constitution will remain consistent with the same pro-freedom content.
*Professor Levent Köker is a lecturer at Gazi University.