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TURKEY: Headscarves Ruling Leading to Bigger Confrontation

Analysis by Hilmi Toros

ISTANBUL, Jun 11 2008 (IPS) - In Phase One of what has been called a "judicial coup", Turkey's Constitutional Court has ruled against amendments spearheaded by the Islamic-rooted ruling party to allow headscarves at universities. Headscarves are considered an expression of political Islam by opponents, and an expression of freedom by their proponents.

The high court held in a 9-2 ruling, that split the country, that the constitutional changes violate untouchable secularism enshrined in the Constitution – and do not advance individual freedoms as claimed by the governing Justice and Development Party (AKP).

And now, Phase Two looms in the do-or-die battle pitting the popular AKP against entrenched secularists such as the judiciary, academia and the military. The latter lot want to close down the AKP altogether on the charge that it plans to replace the secular republic with an Islamic regime.

The ruling party is hitting back. Deputy AKP Chairman Dengir Mehmet Firat called the ruling "a violation of the Constitution." Senior party official Bekir Bozdag said the judiciary was usurping legislative powers.

Professor of Constitutional Law Ergun Ozbudun, who advises the AKP on the issue, said the court had abused its authority since an article in the Constitution says it can act on the constitutionality of simple legislation, but cannot rule on constitutional amendments.

"All this makes it very hard to say that the Turkish Republic is a democratic political entity," Mustafa Akyol wrote in pro-government daily Zaman. "It is rather a revolutionary republic, which respects and upholds the 'revolutionary principle' above everything."

As seen by supporters of the ruling party, the constitutional amendments voted by 411 elected members in the 550-seat parliament have been annulled by nine non-elected judges.

But the court has its defenders, too. The powerful and ever watchful military, which has overturned four elected governments since 1960, welcomed the decision as "normal". Also, the ruling party is being taken to task for pushing the headscarves issue alone as a sign of freedom of expression, while lagging behind in demands by the European Union that it should progress in human rights on a broader scale. Turkey is looking to join the EU. Istanbul attorney Sanem Yunusoglu doubts that the high court overstepped its authority. "While we still don't know the motivation of the court, it certainly has a say on the substance and merits of this case," she told IPS. "If the Constitution says secularism is not up for debate, it could also mean that introducing a change is unconstitutional."

Meanwhile, girls wearing headscarves stand barred from higher education. Some circumvent the ban by donning wigs over their headscarves, as did the daughter of President Abdullah Gul. Others go abroad, as the daughter of Prime Minister Recep Tayyip Erdogan did. A few are admitted to private universities; still others just skip higher education. Two-thirds of Turkish women cover their heads.

In scattered protests against the Constitutional Court's ruling, small groups of women protested in various parts of Turkey, carrying placards with slogans such as "No to judicial despotism" and "Headscarves are God's orders".

But the bigger issue is shutting down the AKP, which won a landslide victory in general elections last year – getting 47 percent of the vote. The same Constitutional Court is now considering, in a separate case, another prosecution demand to finish off the party that has become a "cove for anti-secular activities" bent on introducing Islamic laws at the expense of a secularism in force since 1923.

The AKP, which labels itself "conservative" rather than "Islamic", denies such charges. The party says it upholds a secularism that has room also for religious values.

But the fact that the high court ruled against headscarves is seen as a sign that an order to close the AKP is likely, since the mainstay of the prosecution argument to close the party is based on claims that headscarves undermine the secular regime.

"With this ruling, the chances that the party will be closed are more likely than before," Istanbul attorney Argun Koray told IPS. Since its inception in 1962, the high tribunal has closed down 24 parties.

If the party is shut down, it has options that range from taking the issue to a referendum, to new elections it could easily win again, or disbanding itself to form a new party, as did two previous Islamic-oriented partied that were closed down. Or, it could attempt to draw up a new "civilian" constitution to replace the present one drawn up after a military coup 1981.

That would leave open the future of Erdogan, the charismatic leader of the party who claims to uphold secularism but who also served a prison term for Islamic sedition in the 1990s. In addition to banning the party, the prosecution has demanded that Erdogan, President Gul (both of their wives wear headscarves) and 69 party functionaries be barred from party politics for five years.

The eventual question is, what if the majority of people become more 'conservative', and want to end the present rigid concept of secularism. Is secularism above democracy, or a part of it?