Top court decision cripples Parliament

Deciding to overrule constitutional amendments that had been properly passed on procedural grounds is tantamount to blocking Parliament from making any constitutional changes without the court's approval in the future, jurists and politicians said. For a majority of politicians, civil society groups and experts, the decision is a severe blow to the principle of national sovereignty as it will set a precedent for future cases. For many, Parliament's legislative powers were effectively curbed. Turkish lawmakers passed constitutional amendments to lift the headscarf ban on Feb. 9, and President Abdullah Gül approved the legislation on Feb. 22. The law amends Articles 10 (equality before the law) and 42 (right and duty of training and education) of the Constitution. The bill was mainly sponsored by the governing Justice and Development Party (AK Party), but the Nationalist Movement Party (MHP) also voted in favor.

On Feb. 27 the main opposition Republican People's Party (CHP) and the Democratic Left Party (DSP) filed a lawsuit at the Constitutional Court asking the judges to either cancel the amendments or declare them null and void, and halt their implementation until the case is concluded. In June, the court ruled to reverse the law but it waited until yesterday to announce its reasoned opinion.

In the 20-page decision, the court emphasized that the headscarf legislation bore political and religious purposes and noted that the headscarf changes would cause polarization in society to escalate.

"This regulation targeting covering of the body on religious motives might lead to pressure on believers and non-believers, or those who are headscarved or not headscarved in the case of these clothes being used as a political symbol. Persons might feel obliged to wear a headscarf, which goes against freedom of conscience. In a state regime where the nation has sovereignty, there can be no room for divine will based on Godly orders."

The opinion continued, "In modern systems of law, sovereignty is based on the human being. Legislative changes are about mundane affairs, not religious affairs. Laws cannot be based on religious foundations. Using freedoms to destroy them is not acceptable. Freedoms that do not comply with secularism cannot be defended and protected. It is impossible to overlook legislation introduced to protect secularism. The headscarf is not compatible with secular science."

The statement also briefly explained why the court had heard the headscarf case on the basis of substance and not only on the basis of procedure, as is the way it should have been under the law. In cases where legislation passed is against the fundamental principles of the republic, the court has the power to hear appeals against that legislation on the basis of substance and not only procedure, it said.

Objections from two judges

Constitutional Court President Haşim Kılıç and Judge Sacit Adalı voted against the court's reasoned decision. Kılıç and Adalı apparently believe the court exceeded the scope of its authority.

In their objection statement, the two judges wrote: "The interpretation that the amendment runs contrary to the Constitution's principle of secularism is a forced interpretation. With this decision of the court, which has the quality of setting a precedent for future cases, Parliament will never even suggest or even think of proposing or drafting constitutional amendments, fearing that the court might interpret any change in a different manner. The legislator will come up against the three unchangeable provisions of the Constitution in every constitutional amendment planned, let alone when drafting a new constitution." The statement also asserted that the decision was violating students' right to education based on an entirely abstract threat of Islamic fundamentalism.

"The violation of the right to education is being overlooked in favor of an abstract danger that has never come and the time of whose appearance is ever unclear."

The headscarf ban at universities was introduced by a 1989 ruling of the Constitutional Court, which ruled the scarf was against Turkey's secular structure and that it would polarize the society along ideological lines.

Politicians on headscarf decision

Bekir Bozdağ, head of the AK Party's parliamentary group, said the reasoned decision had set a precedent, making any future constitutional amendment difficult. "We respect the decision. The decision is binding but the reasoned decision is crossing into the territory of legislation."

He said the court's reasoned opinion was a step backward, a mistake that would be nearly impossible to correct, asserting that with this opinion, the Constitutional Court has drawn red lines around Parliament's legislative powers.

"With this decision, Parliament's authority to change the Constitution and draft a new constitution will be subject to approval of the Constitutional Court. The decision is an intervention in legislation. Parliament's legislative powers have been dealt a major blow, if not completely taken away," Bozdağ said.

MHP parliamentary group deputy chairman Mehmet Şandır said the reasoned opinion had created a major wound in the conscience of the nation.

"This decision of the Constitutional Court will cause irritation in the conscience of the nation. We respect the decisions of the judiciary but we find this decision to be overwhelming. Secularism has to be the guarantee of our citizens' freedom of religion. Freedom of religion is a fundamental human right. It is guaranteed under international law. We do not find this decision -- which excludes our people who were deprived of their right to education because of their headscarf and that turns them against the state, regime and social order -- useful in any sense," he said, stating that the MHP was against the headscarf being used as a political instrument, but added: "However, saying that the headscarf is a threat against the fundamental values of our republic would be an exaggeration. It would do no good."

The CHP and the DSP, which challenged the headscarf amendment initially, were happy about the decision. "In a democratic country, the legislative [branch] does not have the right to do everything. There is no such thing as the legislature being able to do whatever it wants without boundaries," CHP parliamentary group chairman Hakkı Süha Okay said. The DSP's former Justice Minister Hikmet Sami Türk agreed: "The decision is right and proper. Unfortunately, some people in Turkey tried to exploit religion to serve their political agenda and this was why they made this constitutional change."

Şahin: Decision will cause major discussion

Justice Minister Mehmet Ali Şahin said the reasoned decision rendered Parliament powerless. "The legislative organ has been turned into a position where it cannot make constitutional changes independently."

"The AK Party does not think of changing the Constitution's unamendable articles or giving up on them. To the contrary, we care about how we can strengthen the fundamental principles of the republic, how we can develop sincere commitment of our people to the regime. What are we going to do? Give up all these and do what? Go back to the sultanate?"

Reactions from civil society organizations

Hülya Şekerci, head of the rights' group Freedom Association (Özgür-Der), said the Constitutional Court's headscarf decision was a crime committed against fundamental rights and freedoms.

"The Constitutional Court has turned into an agency that denies social realities and that blocks social demands, particularly regarding Islam. It insists on protecting its position as the violator and guarantor of immense and irreversible rights abuses."

Neslihan Akbulut, the secretary-general of the Women's Rights Association against Discrimination (AK-DER), a religious-minded women's organization, said she did not see what part of the amendment was a violation of the principle of secularism. "Which of these changes violates secularism? Having all citizens make use of state services equally? Or treating headscarved citizens or citizens of other religions equally?" she asked. Akbulut also said the Constitutional Court did not have the authority to hear constitutional amendment appeals on the basis of substance.

Association of Human Rights and Solidarity for Oppressed Peoples (MAZLUM-DER) head Ömer Faruk Gergerlioğlu said the reasoned statement was not a legal declaration but a political one. "They really had to push it to find legal evidence. It is really nearly impossible and a great achievement to refer to this as being against secularism. However, this was what we expected," he said.

Human Rights Association (İHD) President Hüsnü Öndül said his organization did not agree with the Constitutional Court's decision. "We announced our principled stance on the headscarf earlier. This is a decision against human rights. The power to change the Constitution, which is normally held only by the legislative organ, has been taken away from it with this decision of the Constitutional Court."