Top prosecutor should withdraw anti-scarf remarks, apologize to nation, says Şahin

Mehmet Ali Şahin

October 22, 2010, Friday/ 17:33:00
Arrows of criticism have rained down upon Supreme Court of Appeals Chief Prosecutor Abdurrahman Yalçınkaya after an anti-headscarf statement he made, with Parliament Speaker Mehmet Ali Şahin urging the top prosecutor to withdraw his statement and offer apologies to Parliament and the Turkish nation for attempting to place himself above national and parliamentary will.

"I am expecting the office that released the statement in question to immediately withdraw the statement and offer apologies to the Turkish nation and its representative, the Turkish Parliament," stated the parliament speaker on Thursday in Japan where he is paying a formal visit.

Şahin was referring to a much-criticized statement by Yalçınkaya that he posted on the website of the Supreme Court of Appeals Chief Prosecutor's Office on Wednesday. In the statement, the top prosecutor argued that the free use of the headscarf at universities would damage secularism. He also said the Supreme Court of Appeals Chief Prosecutor's Office is entitled to investigate whether the actions of political parties are in violation of the independence of the state, sovereignty of the nation, democratic and secular republican principles, human rights and the principle of equality, implicitly threatening the ruling Justice and Development Party (AK Party) with a “closure case.”

Multiple fronts condemn Supreme Court of Appeals Chief Prosecutor Yalçınkaya for his hostile attitude to headscarf freedom and attempt to place himself above Parliament and downplay national will

The chief prosecutor’s statement came as representatives from the AK Party paid a visit to the main opposition Republican People’s Party (CHP) parliamentary office in an attempt to seek a compromise for the lifting of the headscarf ban at universities. The use of the headscarf was banned in universities after the 1997 post-modern coup d’état. Turkey’s military and higher judiciary believe that the headscarf poses a danger to the secular identity of the Republic.

According to Şahin, the chief prosecutor attempted to “issue a memorandum” to Parliament, reminiscent of the e-memo released by the former Chief of General Staff Gen.Yaşar Büyükanıt in 2007. The e-memo influenced the presidential election process and threatened action if the government did not do more to preserve the Republic’s secular tradition.

“Parliament is the single body that enjoys legislative power in the name of the Turkish nation. This power is inalienable and cannot be shared with another individual or institution. The Supreme Court of Appeals Chief Prosecutor’s Office is not entitled to investigate the actions of Parliament. There is as of yet no parliamentary bill [concerning the headscarf]. There is no legal amendment, either. Esteemed members of Parliament are loyal to the constitutional order and regime at least as much as the Supreme Court of Appeals chief prosecutor,” the parliament speaker maintained.

Nationalist Movement Party (MHP) leader Devlet Bahçeli also voiced criticism of the anti-headscarf statement from Yalçınkaya. The leader said the boundaries of judicial bodies are defined in the Constitution and laws and attempts to set siege upon Parliament are by no means acceptable.

Supreme Court of Appeals Chief Prosecutor Abdurrahman Yalçınkaya

Bahçeli also expressed loyalty to a past parliamentary attempt to lift the headscarf ban at universities, adding that the MHP will support any initiative launched by the ruling party under the roof of Parliament against the ban. “The headscarf ban is a bleeding wound in Turkey. Recent developments have shown the reasons behind the deadlock surrounding the ban,” he noted.

Yalçınkaya also drew harsh reactions from civil society representatives and jurists, too. Most observers drew attention to the “timing” of the statement as it came at a critical time when political parties were hoping to reach a consensus on parliamentary steps to lift the headscarf ban at universities.

According to Adem Sözüer, a law professor at İstanbul University, Yalçınkaya ignored the parliamentary will with his statement.

In the statement, the top prosecutor argued that the free use of the headscarf at universities would damage secularism. However, according to Sözüer:

“The parliamentary will has been ignored. A statement coming from a state institution does not give the top prosecutor the right to intervene in the parliamentary will. Parliament is the authorized body to make amendments concerning the [headscarf] issue. There is no law that bans the use of the headscarf on university campuses. The Constitutional Court cannot place itself in lieu of Parliament and ‘make up’ a ban.” He added that Yalçınkaya’s statement reflects the pro-status quo that lags behind today’s democratic legal system.

Yalçınkaya filed a closure case against the AK Party in 2008 after the ruling party passed a constitutional amendment package to lift the headscarf ban. The Constitutional Court, however, refused to shut down the party.

Taha Akyol, a Milliyet daily columnist, said the chief prosecutor acts with a legal philosophy that belongs to the past -- a quarter of a century ago. “The chief prosecutor has no idea about the philosophical dimensions of secularism. His remarks reflect an understanding of ‘archaic’ law. He probably did not watch the wife of the president speaking at a session of the Parliamentary Assembly of the Council of Europe [PACE] with her headscarf,” Akyol stated.

First lady Hayrünnisa Gül addressed a PACE session in Strasbourg, France, in early October, becoming the first Turkish first lady to address such a session. Mrs. Gül wears the Muslim headscarf.

However, according to CHP parliamentary deputy group chairman Akif Hamzaçebi, the chief prosecutor did not hope to intervene in politics with his statement; he only sought to fulfill his responsibilities as a member of the high judiciary.

‘Yalçınkaya did not “read” referendum results well’

Ahmet Gündel, a former prosecutor of the Supreme Court of Appeals, argued that the chief prosecutor’s statement shows that he has failed to receive “necessary lessons” from the Sept. 12 referendum on a constitutional amendment package.

Despite opposition from the higher judiciary and opposition parties, the Turkish nation gave a go-ahead to the government’s plans to make partial amendments to the Constitution, with “yes” votes reaching 58 percent in the referendum.

“A statement that comes at a time when political parties convene for an exchange of ideas regarding Turkey’s problems is interference in politics and a threat to political parties. The prosecutor is not authorized to make such a statement. I believe that he did not read the referendum results well. He represents a mindset that sidelines rights and freedoms and follows developments in Turkey from far behind,” Gündel noted.

According to constitutional law expert Professor Ergun Özbudun, attempts to stop the transformation of Turkey into a more democratic country are doomed to fail. “There is no European Court of Human Rights ruling to ban the use of the headscarf. The Council of Europe has 47 members, but none of those members but for Turkey bans the use of headscarves at universities. … I consider Yalçınkaya’s statement as a reflection of the disappointment caused among pro-status quo circles by Turkey’s democratic transformation,” he added.

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