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The headscarf and the constitution (February 2008)

Girls in Istanbul
Girls in Istanbul

Following the 22 July 2007 elections and Abdullah Gul's election as president, the AKP prepared to amend the Constitution in a way that would enshrine freedom of dress at universities. This was easier said than done, as the legal situation in Turkey is far from clear. Banning students to enter university grounds wearing headscarves is a relatively new phenomenon. Until 1998, though with short-lived periods of restriction, girls could attend university with their headscarves.

Ataturk passed a Hat Law in 1925 ordering men to replace the oriental fez with Western looking hats, as a symbol of modernity. Women's clothing was not legislated.

After the military coup in 1982, the Higher Education Board (YOK) issued a written communique prohibiting female students from entering university wearing the headscarf; universities enacted this new regulation within their senates. When the Motherland Party (ANAP) had a majority in Parliament in the late 1980s, an addendum was passed to the YOK law attempting to dent this regulation.

The Constitutional Court annulled the said addendum (Addendum 16) which ANAP introduced to explicitly state girls are permitted to wear headscarves for religious reasons in university. While another Addendum (Addendum 17), calling for general freedom of dress in university, was not annulled, the "rationale" of the Court's decision stated that it could not be applicable for the headscarf.

From 1989 onwards, restrictions on wearing the headscarf first gradually disappeared. However, after the 'post-modern' coup in 1997, the Constitutional Court, in its decision shutting down the Welfare Party, made an 'aside' suggesting that headscarves be banned from universities. This statement became the justification for the renewed vigour to enforce the ban.

The new regime was first implemented on February 23, 1998 at Istanbul University, when girls with headscarves and boys with beards were prohibited from attending classes.

What now constitutes the "ban" is largely based on rulings of the Constitutional Court that interpret the wearing of a headscarf in university to be a violation of secularism and thus unconstitutional. And the legislative has been denied a say in the matter. Paradoxically, the lack of any clear legal basis for the ban has made it difficult for the government to overturn it now.

Two constitutional amendments using careful, non-inflammatory language (BBC news) were passed in parliament in January 2008 with votes of AKP (340 MPs) and the Nationalist Action Party (MHP), which has 70 MPs.

The first amendment was to Article 10 of the Constitution, on equality before the law, which deals with equal rights and non-discrimination. It requires state organs and administrative authorities to treat people equally in all their proceedings, irrespective of religion, political opinion or any other ground. The amendment strengthened this provision by stating that the principle of equality also applied to "the provision of all public services".

"State organs and administrative authorities shall act in compliance with the principle of equality before the law in all their proceedings and in all activities pertaining to the provision of public services." [The amendment is marked bold.]

Article 42, on the Right and Duty of Training and Education, states that no-one shall be deprived of the right of learning and education. The amendments added "for reasons not explicitly mentioned by law", and provided that any limitation must be spelt out in law.

"No one shall be deprived of the right of learning and education for reasons not openly mentioned by laws. The limits of the use of this right will be determined by law."

In its attempt to be sensitive in its use of language and avoid explicit reference to the headscarf, the government has created an ambiguous situation. Sabih Kanadoglu, honorary chief prosecutor of the Supreme Court of Appeals, has argued that the amendments have no impact on the headscarf ban:

"The constitutional amendment is the reiteration of the clauses already existing in Articles 10 and 42 of the Constitution."

However, a retired military judge Umit Kardas has stated the opposite; that even without this amendment, "there is nothing that can prevent the headscarf on campus." (Today's Zaman) In this situation, it appears that even the AKP is unsure of whether further legal changes are needed to lift the ban. Burhan Kuzu, AKP deputy and chairman of Parliament's Constitutional Commission, asserted both that the amendments were sufficient and that the AKP was willing to do more:

"We have made it clear that the right to high education cannot be restricted for any reason unless specified by the law. Currently there is no law that restricts wearing the headscarf at universities. Therefore those arguments are null and in vain."

"We have to wait and see how universities take the amendment. If there emerges some complexity or some reluctance in the implementation, then we can consider revisions to Article 17 (refering to Addendum 17). But I am confident that the amendments on Articles 10 and 42 of the Constitution are very open and will be implemented with no problem."

(Today's Zaman)

Some commentators claim there would have to be a revision of Addendum 17 of the law governing the Board of Higher Education (YOK) in order to lift the ban. The AKP is believed to be planning such an amendment but it has not yet brought the amendment before parliament.

In fact, it appears that so far, the constitutional amendments have had little effect on the ground. Nearly 100 of the 116 universities in Turkey are still enforcing the ban, arguing that an amendment to YOK Addendum 17 and a definition of the shape of the headscarf are needed before the new rule can be applied.

Despite its fairly innocuous language and its ambiguous legal effect, the attempt to lift the headscarf ban has triggered condemnation from some sections of Turkish society, including members of the judiciary, business organizations and academics. Istanbul University (IU)'s rector and faculty have spoken out against lifting the ban. On January 31 2008, Rector Mesut Parlak announced at a faculty meeting that proponents of headscarf reform were endangering Turkey.

After the amendments were accepted at the parliament general assembly, the CHP applied to the Constitutional Court to have the constitutional amendments overturned on the grounds that they violate the principle of secularism enshrined in Article 2. The "characteristics of the Republic" defined in Article 2 cannot be amended or even proposed for amendment. In March 2008 the Court already agreed to take up the case.

"The amendments do not aim to bring freedom but permit wearing the 'turban', a religious symbol, at universities. The amendments would lead to an erosion of the separation of state and religion."

(CHP Petition to Constitutional Court)

On the other side, a number of liberal academics have signed a petition calling for the extension of basic freedoms and democracy. The petition was drafted by Fuat Keyman of Koç University and Cengiz Aktar of Bahcesehir University:

"It holds true, and we assert today, as we have always done, that denying an 18-year-old girl who has successfully graduated from high school and who has done well on the university [entrance] exam entry into universities because of her choice of dress is compatible neither with the principle of the right to education, individual rights and freedoms, the principle of secularism, nor with the democratic system. We see no direct cause and effect relation between freedom for the headscarf and the abrogation of secularism."

(Today's Zaman)

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