PS:EUROPE Political and Social Research Institute of Europe
From the 1980s onwards, the agenda of Turkish politics was exposed to a huge change and laiklik has become more of an issue in Turkey. Laiklik is generally known as a quality of Republic of Turkey, specified in the 2nd article of the 1982 Turkish Constitution. So, according to it, Republic of Turkey is a laik state. However, neither the constitution nor any law provides a deeper definition of laiklik. It has become a common sense that laiklik refers to the separation of affairs of state from those of religion. But, is it all? If it were so, laiklik would not bring about the most rigid contestations of the history of Turkish politics to the agenda. It is only the Constitutional Court that has come up with defining the laiklik in the related cases brought to it. So I decided to analyze the definitions of laiklik made by the Constitutional Court, because it has a direct effect on the consequences of this principle or a quality of Republic of Turkey on its citizens.
While analyzing the definitions, one realizes a clear shift in the way the court approaches to laiklik in 2013. As a matter of fact, one can find absolutely controversial points between the definition made in 2008 and that made in 2013. I contend that this is mainly because of the change in the composition of constitutional court justices in the 2010 Referendum, which to an important extent increased the number of justices appointed by either Presisent Abdullah Gul or the AKP-dominated Parliament. In 2010, the number of justices was increased to 17 and in 2013, out of 17, 10 were appointed by Abdullah Gul, 2 were appointed by the TBMM and 4 were appointed by the former President Ahmet Necdet Sezer with the Chief Justice of the Court Haşim Kılıç appointed by Turgut Özal. Herein, I barrow Ceren Belge’s argument that ‘the sociopolitical alliances in which high courts and judiciaries participate explain’ the huge changes in approaches.’ Belge maintains that ‘the initial parameters of these alliances are set during constitutional transitions when formerly dominant coalitions are displaced and a new coalition entrenches its own values and takes measures to lock in its power.’[i]
In my narrative, the 2010 Constitutional Amendments Referendum is the transition period and becomes a juncture, in which the change reveals. When we look at the definitions made before 2010, we face a highly statist and exclusionary account of laiklik. However, in 2013, when the Constitutional Court made its first definition of laiklik after the 2010 Referendum, it was only the discourse what changed. Even though, the new interpretation was presented as more flexible and libertarian, the statist and exclusionary aspect of laiklik continued to prevail. So in this paper, I argue that the way the Constitutional Court approached to laiklik has significantly changed after the 2010 Referendum. However, this change does not, in contrary to the common sense, aim at giving up the exclusionary and statist aspects of laiklik but rather reproduces it.
In the following sections, I analyze the court’s definition of laiklik before and after the 2010 Referendum. I begin with the ‘Old Interpretation’ that is the one that prevailed
In the period before the referendum and I call the period after it as the period of new interpretation.
The Old Interpretation
In this section, I deal with the definitions of laiklik made by the Constitutional Court till the 2010 Referendum, which substantially changed the justice composition of the high court. In this period, the definitions of laiklik made by the Constitutional Court are ideologically identical and very similar to each other in terms of its approach to laiklik, its requirements and outcomes.
In this period, I analyze four different rulings, in which the court made some definition of laiklik. In order to make a better analysis, I evaluate the headscarf and party closure cases in different subtitles. Then, I end up providing a summing analysis of the entire period.
The Headscarf Case and the Rulings of 1989 and 1991
Headscarf issue was brought twice to the Constitutional Court. Both cases were opened against the laws passed in the Turkish Assembly that had allowed female students to wear headscarf in the public universities. In its rulings of 1989 and 1991, the Constitutional Court annulled the laws for a variety of complex reasons based on their definition of laiklik in the detailed rulings on the grounds that wearing headscarf in public area is against the principle of laiklik.
In its 1989 ruling on headscarf issue, the Constitutional Court made and used the following explanation of laiklik:
‘’Laiklik is a way of life, which bases nationalization (uluslaşma), independence, national sovereignty and ideal of humanity upon prevalence of reason, freedom and democracy that developed through the scientific enlightenment by destroying the dogmatism of Middle Ages. Contemporary science was born and has developed through the collapse of the scholastic thought. Although, in a narrow sense, is defined as the separation of state affairs from those of religion, it is, indeed, widely accepted in the literature that it signifies the last stage of the intellectual and organizational evolution that the societies have experienced. Laiklik is a social breakthrough based on sovereignty, democracy, freedom and information as well as a contemporary regulator of political, social and cultural life. It is the principle, which guarantees freedom of religion by entailing the separation of politics from conscience and enables the individual who is supposed to preserve his/her dignity, to have personal rights and freedom of thought. In the religious-based societies, where religious thoughts and evaluations prevail, political organization and regulations consist in religious provisions. In the ‘laik devlet’, religion is freed from politicization, is no longer a means of government and left to the consciences of individuals. In this manner, science and law become the bases of political life. The separation of sphere of thought from that of belief is very convenient for the holiness of religion as well. It is one of the fundamentals that worldly affairs are regulated by law and religious affairs are regulated by its own rules, upon which western democracies are based.’’[ii]
And in 1991, the Court does not seem to make a remarkable change in his understanding of laiklik:
…For Turkey the principle of laiklik has a historical particularity and is protected as an obligatory principle, though treated in a different way from the West.
Laiklik cannot be narrowed to separation of affairs of state from those of religion. In a laik regime, religion, as a peculiar social institution, cannot be sovereign in state administration. It is reason and science and not religious rules and requirements that prevail in state administration. Religion is a fact based on belief and remains between God and human being. Religion, which regulates individuals’ internal life of faith cannot be thought to rule state affairs and become source of legal provisions by replacing contemporary values and science.
The law under inspection, which, while regulating the clothing of students, allows female students to wear headscarf for religious and faith-related reasons in the universities counted as public area, bases public regulation upon religious provisions and, thus, is against the principle of laiklik.[iii]
These two definitions that I cited from the detailed rulings of the mentioned cases provide an evidence for how the Constitutional Court might be arbitrary in defining a concept. At the first glance, the definitions seem to be specific enough to underline a particular aspect or meaning that the concept has. However, one can find some inconsistencies even within a definition itself, let alone between two or more definitions.
According to the both definitions, it is clear that the Constitutional Court considered expression of religiosity as a threat to the constitutional order and unity of nation. There are especially two points, which I believe underline this consideration. First, the emphasis made upon the fact that laiklik cannot and should be restricted to the separation between state and religious affairs, seems to aim at making another and a very obvious emphasis that the state has somewhat the authority and capacity to intervene the religious affairs. And, secondly, since the state has that capacity, it may even regulate the clothing of individuals in public area and this regulation, just like anything state accomplishes, cannot be fulfilled in line or linkage with religious requirements. In other words, state does seem to avoid making regulations about religious matters, however, does it already by deciding how and to what extent people can and cannot express their religiosity and experience their belief in the public. It is already an inconsistency. Another controversy can be found in the court’s concerns about the wearing of headscarf in the public universities. According to the court, wearing of headscarf would violate unity of nation and even public security ‘by provoking differences on opinion and religious affiliation among the young people’.[iv] However, it is obvious that not letting a remarkable portion of the female students in the public universities does not do anything but provoke the differences between the young female students.
Last but not least, it is obvious that these rulings of the Constitutional Court reflect the state ideology of the time. There are at least two evidences for it. First, the court considers laiklik in its broadest sense as a ‘philosophy of life’, namely as a Weltanschauung, and also draws the boundaries of that philosophy. Second, and more importantly, the court labels wearing headscarf in the public area as the politicization of religion, namely as a contra-ideology against laiklik, and, therefore, takes automatically a defensive [and often offensive] ideological stand. In that respect, as long as vague concerns like ‘unity of state and nation’ are concerned, it may be argued that the court’s defensive stand has generally been counter-productive.[v]
The Political Party Closures and the Rulings of 1998 and 2008
Another issue that has had very much to do with laiklik in the history of Turkish politics is the issue of party closures. Since its establishment, the Constitutional Court has banned more than 20 political parties. In my work, I focus on the cases of the closures of Welfare Party (the RP) in 1998 and the Justice and Development Party (the AKP) in 2008. Amongst these two cases, even if only RP was shut down by the court, the court made significant references to the definitions of laiklik in both detailed rulings.
In 1998, in addition to what was included by the court-made definitions of laiklik in 1989 and 1991, the court defined laiklik as follows:
The application of the principle of laiklik is Turkey is different from that in some western countries. It is natural that the principle of laiklik is inspired by the religions that prevail in the country where its is applied with certain peculiarities and that different qualities and applications reveal in that the (in)compatibilities arising from these peculiarities are reflected on the principle of laiklik itself. Although it is classically defined as the separation of state affairs from religion, owing to characteristic peculiarities of Islam and Christianity, there have been certain differences between the conditions and consequences in Turkey and western countries. If the prevailing religion and religious understandings are different, then principle of laiklik is also expected to be different. This is an ordinary result of the difference between the conditions and consequences. Even in some western countries, in all of which Christianity is prevailing religion, understandings of laiklik vary. As the concept of laiklik is interpreted differently in different countries, it has been also interpreted in a variety of ways in different periods by different groups in line with their own political preferences. Laiklik, which is not only a philosophical concept but also a legal institution that is realized by laws, may be affected by the political, social and religious condition of the country, where it is applied.
Democratic and laik state does not make any discrimination between the individuals with respect to their beliefs. Everyone is free to choose his/her religion, declare his/her beliefs within the frame of freedom of religion and conscience. In a laic society, it is completely outside the sphere of control of the state what religion or belief the individuals choose. Any state preference for any religion is against the principle of equality before law for individuals having different beliefs. The fact that in laik states there is a real freedom of conscience signifies that laiklik is also the guarantee of that freedom.
With the adoption principle of laiklik, dogmatic values were replaced with those values based on reason and science and religious feelings got their untouchable place in their owner’s conscience. Individuals with different beliefs, adopting the necessity of coexistence, have a confidence in state’s equal approach to them. In that manner, the internal peace is achieved and the citizens, with a national consciousness become the members of Turkish Nation, the founder of Republic of Turkey. Rule and supremacy of law were consolidated by the principle of laiklik; the principle of nationalism was complemented by laiklik and Turkish Revolution gained its meaning with laiklik. It is constitutionally guaranteed as an unamendable provision. Laiklik accelerated modernization by preventing religion from replacing science. Laiklik cannot be restricted to separation of state affairs from religion. It is a wider and larger civilization and sphere of modernity and freedom. The philosophy of modernization of Turkey is an ideal of humanity as well as living in line with human dignity. In a laik regime, religion, as a free institution, cannot be sovereign to state institutions and administrations. Religion is a fact based on belief and remains between God and human being. Religion, which regulates individuals’ internal life of faith, cannot be thought to rule state affairs and become source of legal provisions by replacing contemporary values and science.
Laiklik as the means of transition to democracy is the philosophy of life of Turkey.[vi]
And in the case of the AKP, after making some repetitions from its previous definitions the Constitutional Court emphasized upon the following points on laiklik:
Laiklik as the principle of the republic specified in the second article of Turkish Constitution envisages a republic in which sovereignty belongs to the nation; no dogma may orient politics except for national will; legal provisions are based on reason and science and in line with democratic national demands rather than religious rules; freedom of religion and conscience is unconditionally and with no discrimination provided to everyone regardless of whether he/she is the member of majority or minority religion, has philosophical beliefs or worldviews and this freedom is never restricted except for the situations specified in the constitution; it is banned to abuse religion and state, in all its activities, the state is equal and neutral towards all faiths.[vii]
In these rulings, the Constitutional Court seems to have acknowledged the fact that it applies a stricter version of laiklik compared to that in the Western countries in that it needed to attribute it to the peculiarities in the understanding of religion and, particularly, Islam in Turkey. One of these peculiarities may be the way Islam had always been related with politics. In these rulings, the main emphasis is made upon the ‘abuse of religion and religious feelings’ by political parties, which is strictly against laiklik. In that respect, the Constitutional Court decided that both the RP and the AKP ‘encroached and abused religion for their political purposes’.[viii] Besides, the validity of the definitions and references made by the Constitutional Court on laiklik are also to be questioned. According to the court, laiklik ‘does not denote the separation of religion and the state, but it implies separation of religion and worldly affairs.’ That is to say that secularism envisages the separation of social life, economy, family, education, law, manners, dress code etc. from religion implying that laiklik is a philosophy of life.[ix] This philosophy of life and Weltanschauungs are normally expected to be valid for the whole society. However, interesting enough is the fact that both the RP and the AKP were in power, signifying that they had a remarkable popular support, when closure cases were brought to the Constitutional Court in 1998 and 2008, respectively. In other words, it is also vague that the Constitutional Court judges the political parties that are the representatives of the population, at least in theory, with the definitions, which are unlikely to reflect the reality of Turkish society.
The Overall Analysis of the Old Interpretation
As was underlined earlier, by old interpretations I mean those, who had been made before the change in power balances within the Constitutional Court, namely, the 2010 Referendum. The ideological aspect of the rulings, which I analyzed were characterized by old interpretation seems to be identical. I will mention of three overall points that are identical and almost similar for all rulings in the old interpretation.
First of all, the old interpretation is not a libertarian, but a statist and exclusionary interpretation. It is not only its non-tolerance for the public visibility of religion or headscarved women in the public sphere, what makes it exclusionary. But it is also clearly stated that laiklik is seen as complementary for nationalism, which is a pro-homogeneity ideology and, thus, is quite intolerant for diversity. In this interpretation, the diversity and differences are considered as a danger and should, therefore, be assimilated and anything that would be labeled as putting forward these diversities are seen as a threat to public order and security, unity of state and nation etc.[x] Furthermore, though not mentioned in these definitions, the Directorate of Religious Affairs (DRA) is the fundamental institution of Turkish understanding of laiklik and we know that this institution is established on the basis on ‘exclusiveness’ because of the domination of Sunni-Islam within it.[xi] Therefore, even if separation and neutrality are often mentioned in the definitions, as principles that guarantee the non-exclusion of any group or individual, it is obvious that Turkish laiklik, also institutionally, is based on exclusion of certain groups.
Second, there is a modernist-positivist understanding in the definition of laiklik, which emphasizes on the prevalence of reason and science in the government and administration of the state.[xii] In the definitions, there is often a mention of the fact that laiklik is the way out of dogmatism of Middle Ages. However, it is not very clear whether the concepts or values that had replaced the religious ones in the government and administration of state are sometimes of dogmatism, such as national sovereignty, unity of nation etc. Indeed, in its ruling in 2008 the Constitutional Court says that ‘…no dogma may orient politics except for national will.’[xiii] Even if I am not sure if we should understand from that piece of sentence, that the concept of ‘national will’ is also considered as a dogma or not, I believe that based on such vague concepts and values, many arbitrary steps have been taken so far by the state, which delimited people’s freedom and exclude a certain portion of the society.
Third, there are many controversies and inconsistencies within and between the definitions. For example, laiklik was often evaluated as indispensable for democracy. However, especially the exclusionary aspect of laiklik seems to have nothing to with democracy whatsoever. The ruling of 1998 mentions about the internal peace, which is to be established and maintained by laiklik itself.[xiv] However, the long-lasting exclusion of headscarved women as well as Alevis from the mainstream institutions can be taken to falsify the claims about so-called maintained internal peace. Similarly, in its interpretation of laiklik, the Constitutional Court often referred to the Western political culture, prevalence of reason, modern values etc. However, in the case of clear incompatibility with the Western interpretation, the court did not retain from underlining that the difference in conditions naturally bring about difference in the interpretation. In my understanding, it is also an inconsistency, which is derived from the court’s double standards and ‘selective modernism’.
The New Interpretation
In my classification the new interpretation reflects the first definition of laiklik made by the Constitutional Court after the change in the justice composition of the court in the 2010 Referendum. In 2013, after a couple of years, the Constitutional Court in case concerning the law on the educational system (the law on 4+4+4) defined the laiklik again and we observe that this was the first big review after the tens of ideologically identical definitions that have been made since 1980s.
In 2013, the Constitutional Court reviewed its understanding of laiklik and made the following definition:
In historical development of laiklik, based on different approaches to the fact of religion, there are two interpretations and, accordingly, applications of the principle. According to the strict understanding of laiklik, religion has its place in individual conscience and should not go out of it to get reflected in public and social life. A more flexible and libertarian interpretation of laiklik, on the other hand, consists in the fact that religion, in addition its individual dimension, has a social dimension. This understanding of laiklik does not imprison religion to the individual’s internal world but considers it as an important element of individual and collective identity and makes its public visibility possible. In a laik political system, individual preferences with respect to religious matters and according lifestyles cannot be intervened but protected by the state. In this respect, laiklik is the guarantee of the freedom of religion and conscience.
Laik state is neutral towards religions but not careless about the satisfaction of religious needs of the society. The principle of laiklik did not result in the exclusion of religion from the public and social life in the West, where it was born and has developed, but brought about state policies to satisfy people’s religious needs. Most important of these policies is religious education to be provided in state and private schools.
Consequently, the constitution considers religious services as a social need and assigns the state to satisfy these needs.[xv]
In this new definition, the understanding of laiklik changed in a number of ways. First of all, it is the first time that the Constitutional Court did not make an absolute definition but acknowledged that the definitions may vary and adopted the understanding that is also dominant in the secularism literature that there are fundamentally two kinds of laiklik: strict and libertarian, assertive and passive, exclusionary and inclusionary etc.[xvi] In that regard, based such as broad classification, it is also the first time that the Constitutional Court preferred ‘a more flexible and libertarian interpretation of laiklik’.[xvii] The emphasis on the ‘freedom of religion and conscience’ is not novel at all in that definition. However, interesting enough is the fact that the court’s approach to the law under inspection is very different from those in the past, despite the existence of significant unchanged emphases, such as those upon freedom of religion and conscience, separation of state and religion and state’s neutrality towards religion. Indeed, all these aspects are problematic in Turkish laiklik and there is no change in this respect in the new interpretation.
Nevertheless, some may argue that in the new interpretation the exclusionary aspect of the laiklik is mostly curbed and a more libertarian interpretation is adopted because there are more references to the concepts on human rights and newest rulings of European Court of Human Rights.[xviii] However, I argue that there are still majoritarian and, in some way, exclusionary aspects in the new interpretation of the Constitutional Court on the laiklik. But, to understand it, it is not enough to analyze merely the definition but also the subject of the case and the way the court handled the case. The case poses two main questions: (1) whether the naming of the elective course ‘Hz. Peygamberimizin Hayatı’ (The Life of Our Prophet), namely the word ‘our’ violates the rights of those who take the course but would feel excluded owing not to call the prophet ‘my prophet’ and (2) whether the syllabus of the course, which was organized solely on Sunni-Islam base would violate the rights of non-Sunni Muslims and non-Muslims that would like to take the course.
The court’s take on the case begins with defining the laiklik. Even though court’s detailed ruling sets forth that laiklik should guarantee the freedom of conscience, it will be understood that the court rather makes an emphasis on the relation between the state and Islam: ‘… It would not be right to assert that the understanding of laiklik absolutely ignores the institutional relation between Islam the state.’[xix] In that manner, the court attempted to legitimize state’s responsibility to provide religious courses in state schools. However, the way the courses are organized in terms of its name and syllabus seems to damage the pluralist nature of Turkish society. The court also acknowledges that ‘the state is responsible to organize the necessary atmosphere in which all can experience their beliefs’.[xx] This the state of course should not do by not caring the diversity and plural nature of the society and by recognizing the view of the majority but by enabling an atmosphere in which a peaceful coexistence is possible.[xxi] It is clear that only satisfying the religious needs of the majority does not comply with the freedom of religion and conscience. Likewise, the court’s explanation on the name of the course: ‘… the name aims at expressing respect for the members of that religion’[xxii] does not seem to be satisfactory owing to the big probability that the ones who do not identify themselves with that religion will feel themselves excluded in public schools. Furthermore, according to the court Lausanne Agreement the state is already responsible for providing and maintaining an atmosphere where non-Muslims, too, can live their religions. However, one should not forget that the freedom of religion and conscience does not only include Muslims and non-Muslims but also non-believers. In that respect, the inclusive and libertarian aspect of the new interpretation becomes more doubtful.
Last but not least, in order to highlight how different the new interpretation is from the old one, I would like to refer to a number of short points. First, in 2008 the court underlined that ‘…no dogma may orient politics except for national will; legal provisions are based on reason and science and in line with democratic national demands rather than religious rules’ whereas in 2013 the court says that ‘…This understanding of laiklik does not imprison religion to the individual’s internal world but considers it as an important element of individual and collective identity and makes its public visibility possible … the constitution considers religious services as a social need and assigns the state to satisfy these needs.’ Second, whereas the court underlined in 2008 that the state is equal and neutral towards all religions and beliefs, in 2013 it asserted that the principle of equality necessitates that the ones in equivalent situation are approached equally and the ones in different situations are approached differently. ‘The constitution is neutral but is not careless about the satisfaction of the religious needs of the people. The Constitution envisages official mechanisms fort he satisfaction of educational and worship-related needs of the religion of the majority.’ Third, in 2008 the court set forth that ‘… in laik societies, laik and democratic values are adopted and political, social and cultural life gained a modern visibility’ where as in 2013 the court underlined that laiklik is not a quality of the society or the individual but of the state. Finally, whereas in 2008 the court clearly asserted that the legal regulations cannot be based religious rules, in 2013 the court said that the course called ‘Hz. Peygamberimizin Hayatı’ is without any problem ‘because it reflects the respect for those who identify themselves with the holy values of that religion.’[xxiii]
Conclusion
The huge difference between the old and new interpretations of Constitutional Court on laiklik is very clear and the most convenient answer to the question ‘why’ seems to rest on the new justices and replacement of some old justices with those, whose sociopolitical alliances are very different from those of previous ones. In this respect, the 2010 Referendum is a constitutional transition period par excellence.
As far as the discourse of the new interpretation is concerned, the change in approach seems to create a shift away from exclusion to inclusion, from arbitrariness to the supremacy of universal law and from a more strictly statist definition to a more flexible and libertarian definition. However, as underlined throughout the study, it was not really the case. In terms of diversity, the new definition cannot be said to provide a more inclusionary atmosphere. Nor can we talk about a remarkable breakthrough about the freedom of religion and conscience. The main change can be said to rest on the conditions of power and the relation between those in power and the principle of laiklik.
Edgar Şar
edgarsar@ps-europe.org
[i] Ceren Belge, “Friends of the Court: The Republican Alliance and Selective Activism of the Constitutional Court of Turkey”, Law and Society Review, September 2006, pp.654
[ii] The Turkish Constitutional Court, no. 1989/12.
[iii] The Turkish Constitutional Court, no. 1991/08.
[iv] Turkish Constitutional Court, no. 1989/12 and 1991/08
[v] Ceren Belge, Ibid., pp.674-675
[vi] Turkish Constitutional Court, no. 1998/01
[vii] Turkish Constitutional Court, no. 2008/02
[viii] Turkish Constitutional Court, no. 1998/01 and no. 2008/02
[ix] Ahmet Kuru, Secularism and State Policies towards Religion: United States, France and Turkey, New York: Cambridge University Press, pp.173
[x] Turkish Constitutional Court no. 1989/12 and 1991/08 and see also Berna Turam, between Islam and State, Stanford: Stanford University, 2006, pp. 15-20
[xi] Markus Dressler, “Public – Private Distinctions, the Alevi Question, and the Headscarf: Turkish Secularism Revisited” in Comparative Secularisms in a Global Age, eds. Linell E. Cady and Elisabeth Shakman, New York: Palgrave Macmillan, 2010, pp.121-123
[xii] Turkish Constitutional Court no. 1989/12, 1991/08, 1998/01 and 2008/02
[xiii] Turkish Constitutional Court no. 2008/02
[xiv] Turkish Constitutional Court, 1998/01
[xv] Turkish Constitutional Court, no.2012/128
[xvi] see also Ahmet Kuru, Ibid., pp.25-55
[xvii] Turkish Constitutional Court, Ibid.
[xviii] Bihterin Vural Dinçkol and Mehmet Akad, Genel Kamu Hukuku, Istanbul: Der Yayınları, 2013, pp. 375-379
[xix] Turkish Constitutional Court, Ibid.
[xx] Turkish Constitutional Court, Ibid.
[xxi] Kerem Altınparmak, ‘Anayasa Mahkemesi ve 4+4+4: Özgürlük Hanesinde Elde Var 0’ [article on-line] available from http://www.bianet.org/bianet/insan-haklari/146095-anayasa-mahkemesi-ve-4-4-4-ozgurluk-hanesinde-elde-var-0
[xxii] Turkish Constitutional Court, Ibid.
[xxiii] Turkish Constitutional Court, no. 2008/02 and 2012/128
