In February the Justice and Development Party (AKP) teamed up with the Nationalist Movement Party (MHP) and amended Articles 10 and 42 of the Constitution to lift the ban on headscarves on university campuses. The Republican Peoples Party CHP appealed to the Constitutional Court to have the amendment annulled, which the court did in June. The decision about a ruling to reverse a constitutional amendment was published in the Official Gazette on October 22, which has sparked widespread criticism that the court had overstepped its powers and moved into parliament’s territory.
The criticism concentrates on the debate about whether the court can reverse a constitutional amendment when it has only the power to examine the procedural flaws of amendments. Nine of the top 11 judges interpreted the amendments that lifted the headscarf ban at universities as contrary to the principles of secularism, which can neither be changed nor proposed to be changed, according to the fourth article. The court said that it remained loyal to its authorities in the reasoning. Court President Hasim Kilic and panel member Sacit Adalı dissented, however, and claimed, “The court does not have the authority to interpret whether amendments conformed to unalterable articles or not. The court exceeded its powers and unconstitutionally substituted its will for that of the legislative branch (Turkish Daily News, October 23).
The significance of the ruling is that the court interpreted principles of secularism to the extreme, which limited parliament’s power to amend any article in the constitution that may be related to secularism. As law professor Sultan Uzerturk of Yeditepea University pointed out:
“If there are unalterable articles in the Constitution and you try to negate them by introducing amendments, the Constitutional Court will put forward defense mechanisms. The AKP government’s attempt to lift the headscarf ban in universities is not likely to succeed as long as concerns over security threats persist. Technically, the lawmaker may try to pass similar legislation [on headscarves] anytime, but the result will not be different unless a perception of threat persists” (Turkish Daily News, October 23).
Now the headscarf debate has to go to the next level: whether the Turkish system is a democracy or a “juristocracy” in which “the jurists arrogate to themselves a monopoly on interpreting law and see themselves as the ultimate protectors of the regime against the democratic wishes of their people” (Today’s Zaman, March 26). Intellectuals are divided into two camps on this question. The first group, which consists of Kemalists, state elitists, and some liberals, argues that “the headscarf debate is buried forever” (Milliyet, October 24). The second group, which consists of pro-AKP intellectuals, most of the liberals, and the MHP, argues that the court exceeded its power and brought the democratic regime into a deadlock. Within the second camp, one group argues that parliament should limit the Constitutional Court’s power (Hurriyet, October 24). A counterargument is made by liberals who maintain that parliament’s power is stripped away.
Even if parliament tried to limit the court’s power, the Court, in turn, would interpret this as an attempt to weaken the safeguards of secularism and would annul it anyway. Thus the parliament cannot do anything about it (Radikal, October 24). Another group argues that “with the recent interpretation of the Constitutional Court, the existence of parliament became useless. Therefore either the parliament should shut its door and not make any law or write a new democratic constitution” (Taraf, October 23).
Unlike the state elites’ argument that the headscarf issue is buried permanently, the recent ruling has made the established system more vulnerable then ever. Before the ruling, public calls to lift the ban on headscarves was limited to the “headscarf demand.” Now, however, the nature of the debate has shifted from a simple demand for headscarves to a demand for a new democratic constitution that would overrule the “juristocracy.” At this stage it is not clear whether the ruling AKP would want to become involved in such a debate. In order to exploit these public demands as public pressure against the AKP, however, the MHP would want to highlight a need for new constitutional amendments, if not a new constitution. The AKP also has an opportunity to make the demand for the headscarf part of a larger demand for a democratic constitution in order to avoid direct confrontation with the secularist state. If this happens, Kemalist elites would have difficulty in finding persuasive arguments against calls for a democratic constitution to reestablish parliamentary power.