The constitutional reform package proposed by the ruling Justice and Development Party (AK Party) received 411 "yes" votes on Saturday in the 550-seat legislature. The new legislation, which was backed by the opposition Nationalist Movement Party (MHP), needed 367 votes to pass.
The CHP claims the changes made to the Constitution's Articles 10 and 42 to allow the headscarf on campus contravene secularism, a founding principle of the Republic of Turkey which, under Article 2 of the Constitution, cannot be changed and the amendment of which cannot even be proposed.
If the Constitutional Court interprets the amendment vote in the same vein as the CHP, Turkey is more than likely to be dragged into political chaos. "If the Constitutional Court accepts the CHP's claims, our democracy will be rendered meaningless," explained AK Party parliamentary group deputy chairman Bekir Bozdağ. If the court decides that the CHP's appeal can be reviewed in connection with another constitutional article, this would mean that the court is playing the role of legislator, he explained. In other words, the court's decision on the CHP appeal will be a test for Turkish democracy.
Former head of the Human Rights Association (İHD) Yusuf Alataş agreed, saying, "Constitutional Courts sometimes do see themselves as the protectors of the regime." Alataş added that if the Constitutional Court demands a change to the vote's result in line with the CHP's appeal, it would mean that "no law can go into force in Turkey if the Constitutional Court does not approve of it."
The Constitutional Court has no legal grounds to nullify the vote based on technicalities, as everything about the vote -- such as the number of legislators backing the bill to open it to a vote and the quorum for voting to take place -- is in complete conformity with the procedures set out in law. The AK Party believes that the court will take up the CHP's challenge in a procedural light. However, it might review the appeal based on content -- whether the proposed amendments violate Article 2 or not.
According to Bozdağ, it is unlikely that the Constitutional Court will see the appeal from the CHP's perspective. He explains: "The provisions of the Constitution are equal to each other in terms of influence and value. For this reason, under our Constitution it is impossible to inspect or compare an article of it using another provision.
They are all equal. If you somehow claim that some constitutional articles are superior to others, then you are violating the principle of rule of law. In this case, the CHP is weighing all the Constitution’s articles against Article 2,” adding that Constitutional Court acceptance the CHP’s claims would render democracy in Turkey meaningless.
Many fear that a Constitutional Court nullification of the headscarf change -- based on content -- might risk the government’s plans to adopt an entirely new constitution, one that would place all civil rights and liberties under protection, to replace the current Turkish Constitution drafted some 25 years ago by generals after a military coup d’état. Such a ruling would be tantamount to the Constitutional Court assuming the powers of the legislature, daily Radikal columnist İsmet Berkan commented on Friday. However this happened last year in May when the Constitutional Court, in a dubious ruling, set a new quorum for Parliament to hold a presidential vote. The government and many others accused the court of acting politically to prevent then Foreign Minister Abdullah Gül from becoming president.
Former head of a parliamentary justice committee and former Democratic Society Party (DSP) deputy Emin Kara said the court’s decision is a turning point. “The constitutional amendment [which passed in Saturday’s vote] does not directly allow the headscarf. The changes are meaningless without an additional change that will be made to the Higher Education Board [YÖK] Law. If despite this, the Constitutional Court annuls the constitutional package, it will have annulled amendments based on a law that has not yet been passed. This would give way to a lot of controversy in Turkey.” Kara also expressed hope that Turkey would survive this episode unscathed.
The headscarf amendment changes Article 10 of the Constitution, which regulates equality of all before the law, as well as Article 42 on the right to educational access.
Headscarf not really banned
In fact, the headscarf is not currently banned by any law in Turkey. An earlier ruling of the Constitutional Court, the Council of State and some rulings of the European Court of Human Rights are taken by university rectors as a basis for their prohibition of headscarf-wearing on campuses. True Path Party (DYP) Deputy Chairman Turhan Güven made this point: “In fact this ban does not exist on paper. This is all about how you implement it. Until the ‘90s, we did not have this problem. It is important how this is implemented.”
Haşim Kılıç, the current head of the Constitutional Court, noted in his opinion on a ruling on the headscarf ban in 1990 -- when he was a judge on the court -- that the headscarf was already free under the Turkish law. Kılıç, in his statement about a ruling against the 17th article of the YÖK Law by the Social Democrat People’s Party (SHP), wrote that legal regulations in effect at the time -- which remain today -- and the Constitution did not ban the headscarf, adding that the issue was a mere administrative problem that could easily be solved by the leaders of the agencies involved.
Although the Constitutional Court’s president’s earlier statement suggests that he would not like to interfere with a legislative process, the past behavior of the court is not very encouraging in this regard.
Güven, however, is not that confident. “It is possible, judging by past decisions, that the Constitutional Court might review the appeal on the basis of content. This would most certainly offend the pious Muslim. If it decides to go by a procedural review, then there would be no problem.”
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