December 13, 2005 Special Dispatch No. 1048

The AKP Government's Attempts to Move Turkey from Secularism to Islamism (Part II): Defying European Human Rights Court Decision on Headscarf Ban; PM Erdogan: ‘Ulema, Not Courts, Have Right to Speak on Headscarf’

December 13, 2005
Turkey | Special Dispatch No. 1048

In a November 10, 2005 decision, a panel of 17 judges of the appellate European Court of Human Rights (ECHR) found the Islamic headscarf ban at Turkish universities "not an infraction of human rights," thus upholding the Turkish law.

On November 16, while on a visit in Denmark, Turkish PM Erdogan told the reporters: "I am amazed at this decision. The court has no right to speak on this issue. That right belongs to the ulema. [1] […] It is wrong that those who have no connection to this field make such a decision without consulting the experts of Islam." [2]

The case was brought before the ECHR by Leyla Sahin, a Turkish student who in 1998 was forced to abandon her medical studies at the Istanbul University because she refused to remove her turban. [3] The court stated, among other reasons for its decision, that "a student who is informed and aware of the stated rules of a secular university and chooses to study there must accept and obey those rules" and that the "turban issue being so politicized in Turkey, triggering widespread protests and political debate all over the country, regulatory decisions had to be made to protect the secular environment and equality of women in educational institutions."

The court's decision was welcomed by secular circles in Turkey, but infuriated the ruling AKP [4] government that has so far been unsuccessful in delivering on its election promise to its Islamic electorate to rescind the ban on headscarves in universities and public government facilities. The ECHR decision reawakened public debate in the Turkish media focusing on two main issues: The attempts of the AKP to move Turkey from secularism to Islamism by promoting Ulema and Shari'a; and the European's court's ruling on the headscarf and Turkey's pursuit of E.U. membership.

The following are excerpts from the public debate in the Turkish media:

A. Criticism of PM Erdogan's Attempt to Promote Ulema and Shari'a in Secular Turkey

All the Turkish newspapers reported the reactions to PM Erdogan's statements that only the ulema, and not the ECHR, had a right to rule on the turban issue.

CHP Opposition Party MP Koc: AKP's Goal is Not Copenhagen Criteria, But Jeddah Criteria

"Haluk Koc, deputy head of the parliamentary group of the opposition party CHP [5], said that PM Erdogan was attempting to create a council of ulema in Turkey, and added that Turkey would never be a state of ayatollahs.[…]

"We have a prime minister who cannot grasp the fact that Turkey is not ruled by shari'a law, and that constitutional and criminal law cannot be interpreted by religious edicts.

"Koc added that [Erdogan's] government was not pursuing the Copenhagen criteria, [6] but its goal is [to implement] the Jeddah criteria." [7]

Fierce Reactions from Secular Opposition, Academe, and Judiciary

ANAP [8] Chairman Erkan Mumcu: "The PM's words are very grave. We have nothing to ask the ulema. This is a democratic, secular, social state of laws […]. This proves that the prime minister either does not understand, or has no loyalty to, the state's regime, its constitutional order, and its laws […]."

DSP [9] Chairman Zeki Sezer: "This attitude of consulting religious authority in matters of the State means the rejection of the secularism principle, a basic characteristic of the Republic of Turkey. I condemn the [words of the] prime minister. Next, affairs of state will be run according to religious law. The prime minister's words were not misspoken; they were used knowingly and intentionally, and show Erdogan's true face. […] The secular, democratic Republic of Turkey, a state of law, cannot and should not be ruled by [people with] this kind of mentality."

ANAP's Istanbul MP Emin Sirin: "People with this kind of mentality should immediately be removed, by democratic means, from ruling Turkey.[…] Asking to consult the ulema in such an issue is asking for shari'a rule. The prime minister is in breach of the constitution."

SHP [10] Deputy Leader Hakki Akalin: "Very worrisome for the future of the country. […] This argument ended on the day that the [modern] Republic of Turkey was established, and that page was closed. PM [Erdogan] and [Parliamentary Speaker] Arinc are trampling the constitution with their statements, and are committing a crime." [11]

Court of Appeals President Judge Ender Cetinkaya said: "This issue is unquestionably a legal matter; therefore, it is under the responsibility of the courts. […] Judicial organs speak through their decisions. We spoke when we decided about the turban. The fact that such regulations are in the realm of law and the courts is not debatable […]." [12]

CHP Chairman Deniz Baykal underlined that Erdogan's interpretation was against the principle of secularism and the constitution that secures this principle, and added that Erdogan's words reflected a longing for a theocratic state.

Baykal further said: "These words should not have come out of the mouth of a prime minister of the democratic, secular Turkish Republic. That we should ask the ulema! What kind of mentality is that? What else should we ask the ulema? Should we consult them on having four wives [as permitted by Islam]? About the inheritance law? Maybe on women's rights? And who shall we ask? The Shi'ite ulema in Iran? Or the Wahhabi ulema of Saudi Arabia?"

Baykal said that Erdogan's words had once again proved that he has not changed. "First, Erdogan used to say, 'My reference is my religion.' Then he said that he had changed. Earlier he had said, 'Democracy for me is not the goal but a vehicle.' […]" [13]

Professor of constitutional law Necmi Yuzbasioglu said: "Asking to consult the religious ulema is rejection of secularism. In a secular country, you cannot make laws based on religious rulings of the ulema. Turkey has won a rare victory at the ECHR, but Turkey's prime minister, foreign minister, and parliamentary speaker are saddened by this. This is a deep conflict. It shows [the AKP's] conflict with the secular regime […]."

Professor Nur Vergin: "The ECHR did not decide on religion, and has not issued a fatwa.[…] The issue was whether or not the turban ban breached human rights. The court decided that the turban was a symbol that may potentially create pressure on others. This decision is clear and is not open to interpretations." [14]

What Will Happen to Turkey if the Ulema Decide?

Columnist Hasan Cemal of the centrist, mainstream daily Milliyet wrote: [15] "[…] According to [Prime Minister] Erdogan, the right to decide on the turban or the headscarf belongs to the 'religious ulema' and not the 'courts'...

"[Erdogan said,] 'If there is a religious commandment, then the matter should be brought to the Islamic scholars for them to decide'… Erdogan believes this to be [the right thing to do] according to the religion… This may be true. But then, what happens to secularism?

"According to Erdogan [women wearing the] turban is clearly a religious commandment that must be obeyed. In fact, the ulema said so as well … Now let us continue: What if tomorrow, the ulema ban [banks charging] interest … or ban civil marriage… What if the ulema decide that there can be no equality between men and women for giving testimony in court, or in matters of inheritance, or in family law… What shall we do [then]? As in the case of the turban, if the ulema want it, shall we abolish equal rights for the sexes in our country?

"Let's continue: What if tomorrow the ulema say that Islam, because it is a comprehensive system, cannot be lived only between man and Allah but must guide all aspects of public life - and thus all parliamentary legislation must be in accordance with Islam… What shall we do then? If we do what the ulema say we should do, what will happen to the secular state? If the ulema direct the state and society, what will happen to our secular democratic regime?

"[…] And which ulema will it be? Will it be Erdogan's ulema, or other ulema that will decide? Will Turkey be ruled by fatwas?

"Does Erdogan consider uncovered Turkish women to be non-Muslims? Is this any different than when, in the past, Erbakan considered those who did not belong to his [Islamist] Party to be non-Muslims?

"[…] Every individual lives according to his or her own belief - or lack of belief, for that matter. Nobody can dictate otherwise. This is how it is in a secular society and state. But when you are in the public arena, there may be limitations on living according to religion.[...]"

B. Criticism of PM Erdogan's Rejection of the ECHR Headscarf Ruling

The ECHR decision on the Islamic headscarf brings forth once again the ongoing conflict between the strictly secular President of the Republic of Turkey, Ahmet Necdet Sezer and the AKP on the Government's Islamic agenda:

President Sezer: Decision is Binding; The Turban Issue is Now Over

Following the ECHR ruling, Turkish President Sezer told reporters: "There is no doubt whatsoever that this [turban] matter is over. […] It was over when [Turkey's] Constitutional Court rendered its decision, which was based on the irreversible Article 2 of our constitution. […] The European Court of Human Rights decided in accordance with our Constitutional Court, and this [decision] is binding. There is no doubt that, legally, the matter is closed." President Sezer reiterated that the [Turkish] Constitution has irreversible articles, including the article on secularism, saying "Nobody can change these articles." [16]

The deputy chair of the main opposition party CHP, MP Ali Topuz, said: "This decision demonstrated the validity of prior decisions by Turkish courts. Prime Minister [Erdogan] and Parliamentary Speaker [Bulent Arinc] can no longer implement their different agenda on the turban issue. This matter is resolved. […] If they continue with their claims, they will have to choose between the 'headscarf' and [membership in] the European Union." [17]

Turkish High Education Council (YOK) President Professor Tezic said: "The ECHR confirmed its earlier decision. And it is binding. It is binding also according to our internal laws. I now expect the debate to end. The decision was taken on an international platform, thereby precluding any attempts to make changes to the contrary […]." [18]

The deputy chairman of the ANAP opposition party, Edip Gaydali, said: "Judiciary decisions and laws must be obeyed by all. [Court] decisions on the subject [of the Islamic headscarf] are not up for debate." [19]

AK Party: The Decision is Not Binding; Our Government is Determined to Lift the Ban

Turkish Parliament (TBMM) Speaker Arinc stated: "The ECHR decision […] does not legally bind Turkey. It does not defend the bans, and in the event that the Turkish government lifts the bans, it [the ECHR] will not impose restrictions […] There is no headscarf ban in European and American universities. I don't think that a similar ban will now be instated in those countries because of this decision by the ECHR. […]." [20]

Turkish Foreign Minister Abdullah Gul said: "This is Turkey's own problem and we will solve it. […] Nobody should defend the bans. The [AKP] government is determined to lift them." [21]

Prime Minister Erdogan reacted to the ECHR decision: "It is wrong to [regard] the decision of the court as general. The decision is not a general but specific to one case [i.e. that of Leyla Sahin]. […] People's rights are one thing and laws are another. You can never eliminate people's rights with wrong laws. You may [be able to] eliminate them temporarily but the day will come when the desired resolution is reached. […] This issue [of headscarves] will be solved in Turkey by our own people, and when the matter is resolved, all these tensions will dissipate." [22]

E.U. Membership - Only a Stepping Stone for the Ruling AKP

Columnist Mustafa Mutlu of the centrist, secular daily Vatan wrote: [23] "Yesterday's ruling by the ECHR on the 'turban issue' was clear - the turban ban in Turkish universities is not an infraction of human rights. So is this the end? Will this matter be put to rest? Do you think that the [AKP politicians] who came to power by holding on to the 'headscarf' will be deterred by this decision from seeking so-called 'democracy'? I don't think so!

"On the contrary: From now on they will start marching directly towards their goals. They will begin by changing the YOK [Council for Higher Education] Law.

"As the Turkish parliamentary speaker announced, after the 2007 [presidential election], the 'headscarf' will reach the presidential quarters: 'At the end of President Sezer's term, the present era will end!'

"[…] The turban exploiters [i.e. the AKP] couldn't care less about the European Court for Human Rights or [membership in] the European Union. Both are [only] 'stepping stones' for them! "[...] The real fight over the turban is only beginning."

The AKP Government is Undermining the Public's Confidence in the Rule of Law

Columnist Abbas Guclu of the mainstream, high circulation Turkish daily Milliyet wrote: [24] "Beginning with Prime Minister Erdogan, almost all government ministers rejected the ECHR decision on Leyla Sahin's [case]. Some say the decision is political, while others say it is unjust. If the decision had been the opposite, and Leyla Sahin had won, would Erdogan and his friends still think the way they do now? I don't think so.

"On the one hand, they claim to be in eager pursuit of European membership; on the other hand, they defy the ruling of one of Europe's major legal institutions.

"Criticizing the judiciary and ignoring judicial rulings, especially those by the higher courts [of appeal], means dynamiting the very foundations of the rule of law. One cannot defend the rule of law while disrespecting the law - and undermining the public confidence in law is a grave mistake.

"Foreign Minister Abdullah Gul says that this matter is a [domestic] Turkish issue - one in which Europe must not meddle. Wasn't it the same Abdullah Gul who appealed to the same [European] court about his wife's turban when he was in the opposition?"

The AKP Government is Using the E.U. as a Tool in its Attempts at Islamization

Haluk Sahin, columnist for the center-left, liberal daily Radikal, wrote: [25] "With the ECHR's recent and clear decision about the [Islamic headscarf], the AKP government's project of legitimizing the turban with Europe's 'blessing' hit the wall at the end of a dead-end street. From the perspective of international law, there is nowhere to go from here. This decision may bring along some political consequences in terms of the relations between AKP and the European Union.

"From what Turkish Parliamentary Speaker Bulent Arinc asserted two days ago ('Turkey's next president will allow the turban in presidential quarters!'), and Foreign Minister Abdullah Gul's reaction to the ECHR decision ('Bans do not bring honor to anyone!'), it is clear that AKP will not give up its turban project. […] In fact, the wall that the AKP hit hard also helped to demonstrate the inner conflict that AKP has with the E.U. project - and it is not only on the turban issue.

"Let me explain: As local and foreign observers are all aware, [the ruling] AKP, which was born out of the [Islamist] anti-West and anti-E.U. Milli Gorus [movement], [26] became an eager and adamant participant in the E.U. project due to its long-term goals of changing the domestic political balance.

"The AKP leadership, which had experienced the downfall of the Refah-Yol [27] government, concluded that the transformation [i.e. Islamization] that they were seeking - but were unable to carry out on their own - could only be realized by using Europe as a tool. The AKP based its long-term strategy on this assumption and worked hard at it […]. To solve the turban problem - which has become an open wound in Turkish society - by using Europe's leverage has been one of the underlying goals of the AKP's E.U. project.

"However, the atmosphere in Europe began to change in the aftermath of 9/11 […]. Due to this factor, the closer the AKP got to its near [short-term] target [i.e. E.U. membership], the farther it got from its real [long-term] target [i.e. moving Turkey towards Islamization] […] Disgruntled voices in the [AKP] party started to say: 'Europe is not proving to be what we thought it was! Anyhow, Turkey is independent!'[...]

"The recent decision on the turban issue will increase this dissatisfaction, and will strengthen the hands of certain [anti-Western] elements within the AKP that were hesitant about the E.U. all along […]"

Yeni Safak Daily: No "Human Rights" for Those Who Don't Have "Crusader Blood!"

Columnist Mehmet Ocaktan of Yeni Safak, the Islamic Turkish daily known to be the unofficial mouthpiece of the AKP government, wrote: [28] "[…] There were those who thought that this [turban] issue should not be taken to the European Court for Human Rights. They held that the ECHR is not an institution where those with a Muslim identity can seek justice - because to Muslims, the ECHR is still a 'Crusaders' institution.' […] This opinion was confirmed once again by the court's recent decision. But this case had to be taken to the ECHR.

"While Turkey's adventure [in quest] of European membership continues, Europe, which is acting on reflexes of a 'Christian Club' with Crusader roots, had to be tested again. It is evident that the Europeans are still grazing in the same pastures they inherited from their fathers, who launched the Crusades. It is evident that for Europe, the concepts of 'liberty,' 'human rights,' multiculturalism,' 'democracy,' and 'dialogue between civilizations' are nothing but fairy tales. It is evident that the ECHR is not a universal institution of justice that will secure the 'human rights' of the Muslim world. […] [The ECHR] conveyed a clear message. It said: 'Those with a Muslim identity cannot benefit from the 'natural human rights' that the 'European family' enjoys.[...]

"Principles such as democracy, freedom, [and] human rights are invented only for those with 'European blood' who live in Paris, London, Berlin, Brussels, Rome, [and] Vienna, and are not for the 'children of the other world.'

"We shall see whether this 'racist' mentality will save Europe from the flames of the anger that it created."

[1] Ulema - Muslim religious scholars who issue fatwas. There has been no such Islamic religious authority in Turkey since the abolishment of the shari'a and the caliphate in the 1920s, when M.K. Ataturk founded Turkey's secular, Western, modern republic.

[2] Due to the heated debate in the Turkish media over Erdogan's words on ulema, Prime Minister's Spokesman Akif Beki explained in a written statement dated November 17 that the PM's words had been misunderstood, and that Erdogan was criticizing the ECHR for failing to consult Islamic experts when dealing with the headscarf issue.

[3] "Turban" here refers to the head covering for Muslim women which covers the head, throat, and neck, so that no hair is visible.

[4] AKP - Acronym for Turkey's ruling Justice and Development Party.

[5] CHP - Acronym for Republican People's Party, the first political party, that was founded by M.K. Ataturk.

[6] The Copenhagen criteria are the rules that define whether a country is eligible to join the European Union.

[7] Milliyet (Turkey), November 16, 2005.

[8] ANAP - Anavatan (Homeland) Party.

[9] DSP - Democratic Left Party.

[10] SHP - Turkish acronym for 'Social-democrat People's Party'.

[11] Hurriyet (Turkey), November 17, 2005.

[12] Fikret Bila (Turkey), Milliyet, November 17, 2005.

[13] Fikret Bila, Milliyet (Turkey), November 17, 2005.

[14] Milliyet, (Turkey), November 17, 2005.

[15] Milliyet (Turkey), November 17, 2005.

[16] Aksam (Turkey), November 11, 2005.

[17] Aksam (Turkey), November 11, 2005.

[18] Aksam(Turkey), November 11, 2005.

[19] Aksam (Turkey), November 11, 2005.

[20] Hurriyet (Turkey), November 13, 2005.

[21] Aksam (Turkey), November 11, 2005.

[22] Radikal (Turkey), November 12, 2005.

[23] Vatan (Turkey), November 11, 2005.

[24] Milliyet (Turkey), November 13, 2005.

[25] Radikal (Turkey), November 11, 2005.

[26] Milli Gorus ("National View") is a non-nationalist and pan-Islamic movement of political Islam. The father of the movement was former Turkish prime minister Necmettin Erbakan, who was ousted by the military. Erbakan's three subsequent political parties (Nizam, Fazilet and Refah) were all outlawed. Prime Minister Erdogan and the AKP are the offspring of this political Islamist movement.

[27] The short-lived coalition government of the Refah and Dogru Yol parties was headed by the Islamist former prime minister Necmettin Erbakan and was ousted by military. At that time, the ECHR also ruled in favor of the Turkish Republic and the ban.

[28] Yeni Safak (Turkey), November 13, 2005.

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