TURKEY’S CONSTITUTIONAL CHANGES: MUCH ADO ABOUT NOTHING?

On February 9, Turkey’s ruling Justice and Development Party (AKP), supported by the opposition ultranationalist Nationalist Action Party (MHP), amended the Turkish constitution in an attempt to create the legal framework for lifting the ban that currently prevents women wearing headscarves from attending university.

The move made headlines both in Turkey and the rest of the world. As the MPs in Ankara voted to amend the constitution, an estimated 200,000 secular Turks staged a huge rally just a few hundred yards from the parliament building, noisily protesting the change and vowing to defend the principle of secularism enshrined in Article 2 of the Turkish constitution as one of the defining and unchangeable characteristics of the republic. Many in the international media described the amendments as revolutionary, with the Washington Post headlining, “Ban on Head Scarves Voted Out in Turkey: Parliament Lifts 80-Year-Old Restriction on University Attire” (Washington Post, February 9). However, not only is the Post’s claim wrong, but it is debatable whether the recent constitutional amendments will have any impact whatsoever on the legal status of the headscarf ban.

In the 1920s and 1930s, Mustafa Kemal Ataturk (1881-1938), who founded the modern republic in 1923, passed a battery of reforms to try to transform the rump of the Ottoman Empire into a modern, nation state. However, although he actively encouraged women to adopt Western modes of dress, he made no attempt to pass any laws that regulated female attire. For the first 40 years of the Turkish Republic, the headscarf was simply not an issue. It was only from the 1960s onwards, as urbanization and increased access to education resulted in the children of the conservative masses going on to higher education, that the first headscarfed students began to appear at universities. But it was not until December 1981, when Turkey was under military rule following the coup of September 1980, that the first attempt was made to prevent these students from attending university for fear that their presence would undermine secularism.

Following the return to civilian rule in 1983, Prime Minister Turgut Ozal (1927-1993) made several attempts to lift the headscarf ban. On March 7, 1989, the Constitutional Court annulled a law passed by parliament that allowed female university students to cover their heads “for reasons of religious belief,” ruling that it violated the principle of secularism enshrined in Article 2 of the constitution. However, during the early 1990s, many universities chose to ignore the ban and allowed headscarfed students to attend classes. It was only during the 1997-98 academic year, as part of a military-inspired crackdown on all Islamist activity in Turkey, that the ban was once again enforced; with the result that thousands of female students were forced to abandon their studies literally overnight.

The amendments passed by parliament on February 9 change two articles of the constitution. Article 10, which guarantees equality before the law irrespective of language, race, color, sex, political opinion, philosophical belief, religion, or sect, has been amended to include a commitment to ensuring that all citizens have equal access to all public services; something that would have appeared to be already covered by the principle of equality before the law. Article 42 on the right to education has been changed to include a phrase preventing anyone being denied access to education except for a reason openly stated in law.

The AKP is also believed to be planning to amend Article 17 of the law governing the Board of Higher Education (YOK), which oversees tertiary education, to allow students wearing headscarves to attend university. However, it has yet to bring the amendment before parliament.

Once the constitutional amendments passed on February 9 have been ratified by President Abdullah Gul and published in the Official Gazette, the main opposition Republican People’s Party (CHP) is expected to apply to the Constitutional Court for their annulment; a process that could take several months.

The Turkish judiciary often appears to follow a logic of its own. For example, in spring 2007 the Turkish Constitutional Court cancelled the presidential election in parliament on the grounds that there was a constitutional requirement that two-thirds of the MPs needed to participate in the vote in order for it to be valid. In fact, there is no such requirement in the constitution.

Logically, the Constitutional Court would appear to have no grounds for annulling the amendments to Articles 10 and 42. Neither provides for the lifting of the headscarf ban. In fact, the AKP’s amendment to Article 42 would appear to reinforce the ban as it was “openly stated in law” by the Constitutional Court ruling of March 7, 1989, that wearing the headscarf violated the principle of secularism enshrined in Article 2 of the constitution. Any attempt to amend the YOK law to allow the headscarf is also likely to founder on the ruling of March 7, 1989.

However, it is very possible that, encouraged by the AKP’s attempts to lift the ban, some of the more conservative universities in Anatolia will begin to allow students in headscarves to attend classes. It is equally likely that, even if the headscarf ban is somehow lifted, some of the secularist universities will continue to apply it.

Privately, some members of the AKP admit that they are more concerned with being seen to be trying to lift the headscarf ban than actually lifting it. The AKP is aware that many of its conservative supporters were infuriated when the party failed to address the headscarf ban after first coming to power in November 2002. Extraordinarily, given the AKP’s landslide victory in the July 22, 2007, general election, they say that the party is now primarily focused on ensuring an even larger triumph in the next local elections, which are not due until March 2009.

However, the AKP’s confrontational approach to the headscarf issue has not only alienated a substantial proportion – albeit a numerical minority – of the population but, over the months ahead, looks set to consume time and energy that could have been spent on tackling a mounting number of urgent problems facing Turkey, not least the country’s stalled bid to join the EU and increasing signs of an economic slowdown.

(Radikal, Hurriyet, Zaman, Vatan, Hurriyet, Milliyet, Sabah, Yeni Safak, February 9-11)