The last word on the hidjab of the Supreme Court of Turkey: Against The Secularism!

'The hidjab is religious exploitation'

The constitutional amendment instituted by the AKP and the MHP in order to introduce the hidjab into universities was declared as being religious exploitation as well as the misuse of religion for political means by the Supreme Court of Turkey. In its decision, the court declared that: "Since the religious symbol will oppress others and create problems in education as well as disrupt the order in society, the fact that university officials and civil institutions will be unable to intervene will cause the right to equal education to be impeded".

ANKARA - Following an application by CHP and DSP MPs to invalidate the constitutional amendment allowing for hidjabs in universities, the Constitutional Court of Turkey invalidated Sections 1 and 2 in Decision number 5735, dated February 9th 2008 on the basis of sections 2, 4 and 148 of the Constitution. The decision of the High Court was published in the Official Gazette.

In the decision, the fact that the hidjab amendment brought in violation of the secular principle of the Constitution carried political and religious goals was highlighted. It was also stated that this legislation went against the basic principles of the Constitution and that it would encourage the polarization of society.

The decision says the following: "Based on the principle of covering up on a religious basis, this legislation, by using dress as a political tool, could create pressure and even clashes between believers and non-believers, between those who cover up and those who don't, between Muslims and non-Muslims. Individuals may feel forced to wear the hidjab and this is incompatible with freedom of conscience and religion. There can be no link between a system where sovereignty rests with the state and the rule of religious edicts. In the contemporary legal system, sovereignty rests with humanity. This type of legislation is incompatible with the Republic. Legislation is a world matter, not a religious matter, and laws cannot rest on religious principles. It is unfathomable to use the concept of religious freedom to curtail other freedoms. Laws that were passed to protect the separation of state and religion cannot be overlooked. The hidjab is incompatible with the concept of separating state and religion".

While its current decision was an opinion, the high court expressed its conviction that if the constitutional changes that violate the basic principles of the Republic are put into effect, than its opinion could become a decision that is applicable, effectively ending the controversy as to the limits of its jurisdiction.

The following statement was included in the opinion: "The fact that the legislator would attempt to make the kind of changes that would go against sections of the constitution that are normally unchangeable is tantamount to a grave and open violation of the constitution. This type of violation is null and void. The ability to declare this nullity is within the jurisdiction of all legal institutions."

President Hasim Kiliç and member Sacit Adali's opposing opinions stated that The High Court was exceeding its jurisdiction.

They made the following statement: "The fact that the change is contrary to the principle of separating religion and state is a very forced conclusion. Following this opinion of The Court, no changes will be made to The Constitution or even envisaged for fear that The High Court would annul it."

THE CANCELLED LEGISLATION

The change that was annulled by the Constitutional Court consisted of adding to the end of section 10 entitled "Equality under the law" the following phrase "… and for the use of public services".

With this change, the section became "State organizations and decision makers, in all their operations and for the use of public services, must act according to the principle of equality under the law".

The sentence, "Unless it is limited by law, no one's right to high education can be denied. The limits to the use of the right are determined by law." was added to section 42 of the constitution, entitled "Rights and obligations related to education and teaching".

November 2008