Headscarves, Judicial Activism, and Democracy: The 2007–8 Constitutional Crisis in Turkey

Abstract

How are we to understand and analyse the constitutional tension in Turkey between the judiciary and the political sphere? In this article the issue is mirrored in the political crisis which started in April 2007 with the nomination of Abdullah Gül as presidential candidate by the moderate Islamist Justice and Development Party (AKP). The more detailed empirical background consists primarily of the dress code problematics including the matter of party closure. Theoretically, the “hegemonic preservation” thesis elaborated by Ran Hirschl turned out to be a useful instrument when it comes to explaining this political crisis as well as the origin of the so-called new constitutionalism. This is illustrated by the judicial activism in the headscarf affair as well as by the eagerness of the Republican People's Party (CHP), as the political representative of the secular establishment, to play the ‘Atatürk card’ and to submit the protection of their interest to an independent judiciary and not to the uncertainties of the mechanisms of majoritarian democracy. However, with regard to the current Turkish case my analysis also shows that Hirschl's thesis is too static and should be complemented with a more dynamic perspective of constitutional politics as a repeated game. One example of this is that even if the Turkish Constitutional Court (TCC) had declared the constitutional amendment on the headscarf invalid and voted for economic sanctions against the AKP, it did not close the party down.

Notes

Notes

I would like to thank the following persons for interesting discussions and valuable comments on Turkish politics during my research stay in Ankara (February 2008) and Istanbul (April and May 2008): Mustafa Akyol, Şahin Alpay, Christer Asp, Abdülhamit Bilici, Zeynep Dağı, Ann Dismorr (Stockholm), Yonca Poyraz Doğan, Thomas Gür (Stockholm), Metin Heper, Ingmar Karlsson, Ayhan Kaya, Fuat Keyman, Kemal Kılıçdaroğlu, Nilüfer Narlı, Hakan Yilmaz, Onur Öymen, Ergun Özbudun, Elisabeth Özdalga, and Haluk Özdalga.

1. Throughout the article I use the term secularism and not laicism (laiklik), in accordance with the Turkish interpretation of secularism. Regarding political parties, I use the English name on first mention and thereafter the Turkish acronym: AKP (Adalet ve Kalkınma Partisi), the Justice and Development Party; CHP (Cumhuriyet Halk Partisi), the Republican People's Party; MHP (Milliyetçi Haraket Partisi), the Nationalist Action Party; DP (Demokrat Parti), the Democratic Party; DSP (Demokratik Sol Parti), the Democratic Left Party; DYP (Doğru Yol Partisi), the True Path Party; and RP (Refah Partisi), the Welfare Party. The Turkish Constitutional Court is abbreviated as TCC even though it has no equivalent in Turkish. The daily newspapers in English referred to, Today's Zaman and the Turkish Daily News, are abbreviated as TZ (www.todayszaman.com) and TDN (www.turkishdailynews.com), respectively.

2. Ergun Özbudun, “Why the Crisis over the Presidency?” Private View (TÜSIAD), 12 (autumn 2007): 49.

3. Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004), 1. The discussion is based on Ran Hirschl, ”Constitutionalism, Judicial Review, and Progressive Change: A Rejoinder to McClain and Fleming,” Texas Law Review 84 (2005): 471–507—his reply to Linda C. McClain and James E. Fleming's critique of his book, ”Constitutionalism, Judicial Review, and Progressive Change,” Texas Law Review 84 (2005): 433–70.

4. See Neil Tate and Torbjörn Vallinder, eds., The Global Expansion of Judicial Power (New York: New York University Press, 1995), and Lars Chr. Blichner and Anders Molander, “Mapping Juridification,” European Law Journal 14.1 (January 2008): 36–54, who discuss juridification as an ambiguous term. Gordon Silverstein, “Why Judicial Review Happens: Toward a Theory of the Evolution and Acceptance of Judicial Review,” presented at the 2002 Annual Meeting of the American Political Science Association in Boston, MA) on why a strong judicial review emerges.

5. Hirschl, Towards Juristocracy, 214–15.

6. Ran Hirschl, “Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales,” Texas Law Review 82 (2004): 1847–54.

7. Hirschl, “Constitutionalism, Judicial Review, and Progressive Change,” 478.

8. Hirschl, Towards Juristocracy, 43.

9. Mark Rush, Law and Politics Book Reviews 14.7 (July 2004): 552–57.

10. Ergun Özbudun, “Political Origins of the Turkish Constitutional Court and the Problem of Democratic Legitimacy,” European Public Law 12.2 (2006): 217.

11. Ibid., 217–18.

12. For a thorough exposition of the state tradition in Turkish politics, see Metin Heper, The State Tradition in Turkey (Walkington, UK: The Eothen Press, 1985).

13. Özbudun, “Political Origins of the Turkish Constitutional Court and the Problem of Democratic Legitimacy,” 218–19.

14. For an evaluation of the independence of the judiciary, see the EU Commission's Progress Report 2007 on Turkey (SEC, 2007, 1436, Brussels 6.11.2007). See also Senem Aydın and Fuat Keyman, “European Integration and the Transformation of Turkish Democracy,” Centre for European Policy Studies: EU-Turkey Working Papers, no. 2 (August 2004).

15. See the discussions in Ergun Özbudun, “Political Origins of the Turkish Constitutional Court and the Problem of Democratic Legitimacy,” European Public Law 12.2 (2006): 213–23. It is however an open question these days, especially after the serious threat of a dissolution of the AKP, whether Özbudun's prognosis will come true when he writes that “the whole problem may lose its current importance, if AKP's project for an entirely new constitution becomes a reality” (Özbudun, “Why the Crisis Over the Presidency?” 51). The draft that Özbudun and his academic colleagues prepared during the autumn of 2007 envisaged substantial reductions in the current power of the president. On the other hand, if we are to believe Robert Dahl and his observation regarding the U.S. Supreme Court, it is “unrealistic to suppose that a Court whose members are recruited in the fashion of Supreme Court Justices would long hold norms of Right or Justice substantially at odds with the rest of the political elite” (cited in Hirschl, “Constitutionalism, Judicial Review, and Progressive Change,” 481). My understanding of this is that the deep elite divide on religious-secular issues will in a short time express itself in tensions between the existing institutions at the state level. In the long run, however, it is possible that their relations will become more relaxed if a new constitution becomes a reality and provided that parliament acquires a stronger role in the elections of the members of the TCC.

16. Ergun Özbudun, “European Criteria for Party Closure,” TZ 4.5.2008. The European Commission for Democracy through Law, the ‘Venice Commission,’ was set up in 1990 as an advisory organ to forward recommendations for the institutions of the Council of Europe and for preparing reports on constitutional matters. Accordingly, the “Guidelines on Prohibition and Dissolution of Political Parties and Analogue Measures” are of great importance for party closure cases in Turkey. In Europe three political parties have been closed since WWII— two in Germany and one in Spain—while in Turkey 25 political parties have been dissolved since 1962—six during the 1961 Constitutional era and the remaining ones under the 1982 Constitution. Under Guideline 3 of the above-mentioned report, the rules of the game in party closure cases are quite clear: “Prohibition or enforced dissolution of political parties may only be justified in the case of parties which advocate the use of violence as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution.” The attached explanatory report emphasizes that “if relevant state bodies take a decision to seize the judicial body on the question of prohibition of a political party they should have sufficient evidence that there is a real threat to the constitutional order or citizens’ fundamental rights and freedoms” (cited in Özbudun, “European Criteria for Party Closure”).

17. The other guiding principles, apart from secularism, often called “the six arrows,” for CHP of that time, were republicanism, nationalism, étatism, populism, and reformism. Already in 1931 the statutes of the party stated that it stood for the principle of secularism “defined as a condition in which the state took no role in religious life since religion was a ‘matter of conscience’” (Şerif Mardin, “Religion and Secularism in Turkey,” in Ali Kazancıgil and Ergun Özbudun, eds., Atatürk–Founder of a Modern State [London: C. Hurst & Co., 2006], 191–219). For a detailed overview of Kemal Atatürk and the importance of Kemalism for the modern Turkish republic, see also Perry Anderson, “Kemalism,” London Review of Books, 30.17 (11 September 2008); Perry Anderson, “After Kemal,” London Review of Books, 30.18 (25 September 2008); Sylvia Kedourie, ed., Turkey before and after Atatürk: Internal and External Affairs (London: Frank Cass, 1999); Andrew Mango, Atatürk: The Biography of the Founder of Modern Turkey (New York: Overlook Press, 1999); Taha Parla and Andrew Davison, Corporatist Ideology in Kemalist Turkey: Progress or Order? (New York: Syracuse University Press, 2004).

18. For the English version of the current 1982 Constitution of the Turkish Republic, see Wikipedia online: http://en.wikisource.org/wiki/Constitution_of_the_Republic_of_Turkey.

19. Özbudun, “Why the Crisis Over the Presidency?”.

20. Elisabeth Özdalga, The Veiling Issue, Official Secularism and Popular Islam in Modern Turkey (Richmond, UK: Curzon Press, 1998), 40. See also Ergun Özbudun, “State and Religion in Turkey,” in Kulturen und Konflikte in Vergleich (Comparing Cultures and Conflicts), ed. P. Molt and H. Dickow, Festschrift für Theodore Hanf (Baden Baden: Nomos, 2007), 339–46. Notice also the ESI Briefing, “Turkey's Dark Side: Party Closures, Conspiracies and the Future of Democracy,” Berlin-Istanbul (April 2008).

21. Özdalga, The Veiling Issue, 46.

22. Dilek Kurban, “Strasbourg Court Jurisprudence and Human Rights in Turkey: An Overview of Litigation, Implementation and Domestic Reform,” Report 2007 prepared for JURISTRAS project funded by the European Commission, DG Research, Priority 7, Citizens and Governance in a Knowledge Based Society; T. Lindholm, “The Strasbourg Court Dealing with Turkey and the Human Right to Freedom of Religion or Belief: A Critical Assessment in the Light of Recent Case Law” (Conference paper 2005) at http://www.strasbourgconference.org/papers/Lindholm%20Strasbourg.pdf); Özbudun, “European Criteria for Party Closure”, TZ, 4.5.2008. For references to the ECtHR judgments as well as discussions on these two cases, see, for instance, Hirschl, “Constitutional Courts vs. Religious Fundamentalism,” 1847–54.

23. In late May 2008 the rapporteur Osman Can in a nonbinding recommendation to the TCC, rejected the petition, filed by the CHP and the Democratic Left Party (DSP), seeking the annulment of the amendments allowing female students to wear headscarves. Can's arguments were based on Article 148 of the Turkish Constitution establishing the rules for constitutional review, according to which constitutional amendments can only be reviewed with regard to their form—not their substance (TZ, 20.5.2008). The TCC, however, ruled against Can's recommendation, and on 5 June declared the amendments proposed by the AKP invalid, arguing that the changes were a breach of Article 2 that declares Turkey a secular republic, and that the ruling was based on Article 4 that stipulates that Articles 1–3 cannot be changed (TDN, 6.6.2008); Onur Öymen, Deputy Chairman of the CHP, commented that he was “pleased” (TZ, 7.6.2008).

24. The Economist (31.7.2008). Six out of TCC's eleven judges voted for closing down the AKP, in other words, one vote short of the required number. The TCC however pointed out that the AKP had become a focus for political Islam and voted for economic sanctions against the AKP; TCC president Haşim Kılıç was the only judge who voted against any sanctions, even though he said that the AKP “will get the message it should from the verdict.” He also called upon all political actors in Turkey to avoid further polarization and make necesssary constitutional amendments: “unfortunately Turkey discusses rules of party closure only when a closure case is filed. We would prefer changes to be made before opening closure cases” (TDN,30.7.2008).

25. Fuat Keyman, “Modernity, Secularism and Islam: The Case of Turkey,” Theory, Culture and Society 24.2 (2007): 215–34.

26. Ibid. See also Ergun Özbudun, “From Political Islam to Conservative Democracy: The Case of the Justice and Development Party in Turkey,” South European Society and Politics 11.3–4 (September–December 2006): 543–57. For the center-periphery perspective as a key to understanding Turkish politics, see also Dietrich Jung, “‘Secularism’: A Key to Turkish Politics,” Intellectual Discourse 14.2 (2006): 129–14, with references to Şerif Mardin and Nilüfer Göle, among others, who have tellingly discussed and analyzed this polarization.

27. Joseph Weiler, The Constitution of Europe: ‘Do the clothes have an emperor?’ and other Essays on European Integration (Cambridge: Cambridge University Press, 1999), 21. Weiler discusses the Kompetenz-Kompetenz in the European Union (Community) legal order, which from the point of view of principle should be relevant to the Turkish case. He defines the term as “the body that determines which norms come within the sphere of application of Community law” and thereby give the Court “the ultimate say on the reach of community law.”

28. Hirschl, Towards Juristocracy, 218.

29. Hirschl, “Constitutional Courts vs. Religious Fundamentalism”, 1859–60.

30. See the two interviews with Ergun Özbudun, “We devised a draft constitution that will speak to all,” TZ,13.9.2007 (I), and TZ,14.9.2007 (II); See also the interview with Kazim Berzeg, “Public is ready for new constitution, but elite is not,” TZ, 24.9.2007.

31. Ilan Peleg, Democratizing the Hegemonic State: Political Transformation in the Age of Identity (Cambridge: Cambridge University Press, 2007); see also Hirschl, Towards Juristocracy, and “Constitutional Courts vs. Religious Fundamentalism.”

32. Peleg, Democratizing the Hegemonic State, 15–16.

33. Bora Kanra, “Democracy, Islam and Dialogue: The Case of Turkey,” Government and Opposition Ltd (2005): 515–39.

34. Zeyno Baran, “Turkey Divided,” Journal of Democracy 19.1 (January 2008).

35. Anderson, ”After Kemal,” 23.