From Militant Democracy to a Rights-Based Paradigm: The Evolution of the Turkish Constitutional Court’s Interpretation of Secularism

Introduction

A key debate in Türkiye is the ideal relationship between religion and state. When the Republic of Türkiye was founded in 1923, it adopted Islam as the official religion, but gradually adopted a secular system. In this context, the caliphate was abolished in 1924, the regulation stating that Islam was the official religion of the state was abolished in 1928 and finally, the “principle of laicism” (adopted from the French “laïcité”) was added to the constitution in 1937. In Türkiye, one of the few states, along with France, to enshrine the principle of secularism in its constitution, there has been a long period of ideologically based assertive secularism practice. Assertive secularism argues that the state should adopt an “assertive” attitude in order to completely remove religion from the public forum and limit it to the private forum.[efn_note]Ahmet T. Kuru, Secularism and State Policies toward Religion: The United States, France, and Turkey (Cambridge University Press 2009).[/efn_note]

After the establishment of the Turkish Constitutional Court (TCC) which was founded by the Constitution of 1961, it has been observed that the TCC has followed an ideologically based assertive secular approach for more than almost 50 years. This approach of the TCC has caused religion-state relations to become one of the most important debates in Turkish public law. After the constitutional amendment of 2010 regarding the acceptance of individual applications, there has been a change in the TCC’s approach to freedom of religion toward passive secularism. Passive secularism is an approach that demands that the state take a more “passive” position by turning a blind eye to the public visibility of religion. ¹ Following the amendments of 2010 allowing individual applications, the TCC replaced its ideology-based approach with a rights-based approach. With the adoption of the individual application route, which represents a paradigm shift, it appears that the militant democracy concept has been largely abandoned. Thus, the TCC’s understanding of secularism gradually shifted from a state-protective and ideology-based model toward a rights-based and pluralistic interpretation.

Acceptance of Individual Application to the TCC

Individual application to the TCC was accepted in 2010. Individual application is a remedy through which anyone can seek legal remedies, claiming that any of the fundamental rights and freedoms guaranteed by the Constitution, within the scope of the European Convention on Human Rights (ECHR) and any of the additional protocols to which Turkey is a party, have been violated by public authority. ² From the day the TCC was founded until the implementation of the individual application in 2012, the TCC acted according to an assertive secularism approach in its decisions on freedom of religion. In one of its decisions during this period, the TCC defined secularism (laicism) as “an ideal of humanity.” ³ In the TCC’s decision on the National Order Party (Millî Nizam Partisi) in 1971, the party’s demand for compulsory religion classes was accepted as one of the grounds for dissolution. ⁴ However, the Constitution of 1982 made such classes compulsory under the name of “Religious Culture and Ethics Courses.” ⁵ This decision is a reflection of the understanding of militant democracy. ⁶ Therefore, it, embodying the TCC’s militant secularism understanding, is part of a whole. In its other cases on the dissolution of political parties, the TCC has preferred the authoritarian ideological paradigm instead of the rights-based paradigm. The TCC’s interpretation of secularism (laicism) has also fed this ideology-based authoritarian paradigm.

Although there was no legal regulation on the prohibition of headscarves in universities, women wearing headscarves were not admitted to universities. That is why a legal regulation was made by the legislature to solve the problem that arose. The TCC annulled this legal regulation in 1989. It characterized the headscarf as an outdated appearance. ⁷ This decision reflects an approach based on the protection of the state against the individual and the rights of the individual. Thus, the court’s 1989 judgment is particularly controversial.

The TCC’s Decisions to Ban Political Parties

Another important decision by the TCC in 1998 regarding the dissolution of political parties was the ruling on the Welfare Party (Refah Partisi). The TCC concluded that the party had become a center of activities contrary to the principle of secularism. Notably, the demand to lift the headscarf ban in universities was among the grounds for its dissolution.⁸ This decision of the TCC shows that a militant approach is preferred for the protection of secularism. Moreover, The European Court of Human Rights (ECtHR) subsequently ruled that the Welfare Party’s demand, especially for a legal pluralism system, was contrary to the European Convention on Human Rights (ECHR).

The TCC’s assertive understanding of secularism is also seen in its 2001 decision on the closure of the Virtue Party (Fazilet Partisi). The only justification for the closure of the Virtue Party was the expression of demands for the removal of the headscarf ban.⁹ Demanding the removal of a ban and the expansion of the area of freedom was seen as a reason for party dissolution by the TCC.¹⁰ After this decision of the TCC, the ECtHR ruled that the headscarf ban did not violate the ECHR in the case of Leyla Şahin v. Turkey in 2004.¹¹

The TCC annulled the 2008 constitutional amendment on the grounds of unconstitutionality leading to the continuation of the headscarf ban.¹² The TCC’s approach in this case was to conduct the review of substance under the guise of the review of form, even though the constitution prohibits the review of substance.¹³ Consequently, it can be interpreted that the TCC has declared itself as the absolute and final judge of the constitutional amendment process and a stance that has been criticized as an example of “juristocracy.”¹⁴ Therefore, secularism has become an extra-constitutional principle on which the juristocracy feeds, and the ideological state identity has come to the fore.¹⁵ This decision of the TCC is the culmination of an assertive understanding of secularism.

In 2008, following the TCC’s ruling on this constitutional amendment, a closure case was initiated against the ruling Justice and Development Party (AK Party). The constitutional amendment was both proposed and adopted by the Parliament, leading the TCC to conclude that this party had become a focus of anti-secular activities. However, this constitutional amendment was also proposed and supported by other political parties (e.g. the Nationalist Movement Party – MHP). In this case, for the first time, the TCC did not order the closure of a political party but deprived it of half of the public funding.¹⁶ This decision shows that the headscarf has become “a key point of Turkish secularism”. The Welfare (Refah) Party, the Virtue (Fazilet) Party, and the AK Party cases are particularly significant as examples of judicial activism based on an ideological approach that restricts political freedoms. In fact, there was no evidence that these parties adopted violence as a method; nevertheless, militant democracy was instrumentalized by the Constitutional Court as a ground for their closure.¹⁷

A Turning Point in terms of Freedom of Religion

The transition from a militant approach to a rights-based approach was brought about by an institutional reform. Specifically, adopting the individual application mechanism was a critical development for Turkish constitutional review, directly vesting the TCC with the function of the concrete protection of individual rights. Therefore, adopted in 2010 with the constitutional amendment and put into practice in 2012, the individual application mechanism is “a milestone” for religious liberties. Thus, the year 2012 can be characterized as “a turning point” in terms of freedom of religion. The acceptance of the individual application corresponds to a paradigm shift and leads to the acceptance of a rights-based approach in the field of religious freedoms.¹⁸ In the case in 2012, the TCC stated that it considers secularism as the guarantee of freedom of religion. In this case, the TCC emphasized, in particular, the right of individuals to freely practice religious beliefs.¹⁹ Therefore, the assertive and militant understanding of secularism was abandoned and a passive and liberal understanding of secularism was adopted.²⁰ The approach of the TCC in this period is a rights-based approach.²¹ Consequently, the Court abandoned its ideology-based approach. Another reason for the TCC’s adoption of a passive interpretation of secularism is the change in the structure of the court.

In contrast to its earlier decisions, the TCC adopted a pluralistic approach in its decisions after the constitutional amendments regarding freedom of religion. Thus, the state being neutral and inclusive and acting in accordance with the principle of equality allows individuals to participate in professional and public life without compromising their religious identities. A clear illustration of this shift can be seen in the Tuğba Arslan case. The Constitutional Court ruled that the freedom of religion and conscience and the principle of non-discrimination were violated in this case, where a lawyer wearing a headscarf was prevented from attending hearings.²² Similarly, in the case of Sara Akgül in 2015, the TCC concluded that recognizing one lifestyle as wrong is incompatible with pluralism, which is an indispensable element of a democratic state. The TCC, which ruled in line with the libertarian understanding of secularism, emphasized the need to allow for the coexistence of differences. According to the TCC, it is a mistake to perceive secularism as a guarantee of a certain way of life; rather, secularism is a guarantee of freedom of religion.²³ The TCC ruled that the demand to study at universities while wearing headscarves represents a joint manifestation of both freedom of religion and the right to education. Consequently, the Court emphasized that these two fundamental rights cannot be evaluated separately from one another.²⁴

The TCC’s Paradigm Shift and Its Potential Implications for Southeastern European Constitutional Courts

Türkiye’s historical past, its ties to the Ottoman hinterland, and its relations with Southeastern European countries (specifically Balkan states, e.g. Bosnia and Herzegovina, North Macedonia, and Kosovo) are noteworthy. Similar structural problems are likely to emerge within the framework of militant democracy, particularly in countries with a divided society structure. Achieving social peace in multicultural Southeastern European countries depends on judicial organs, particularly constitutional courts, prioritizing individual freedoms over militant democracy. In this regard, this paradigm shift of the TCC provides significant insights for Constitutional Courts in Southeastern Europe. Striking a delicate balance between liberty and authority is in a way that ensures democratic stability is contingent upon the adoption of a rights-based approach. Therefore, the paradigm shift of the TCC holds significant critical value. This allows the TCC’s shift to be recognized as a reference model on a regional scale.

1. Ibid.
2. Art. 148, para. 3. Available at: https://www.constituteproject.org/constitution/Turkey_2017
3. TCC, E. 1989/1, K. 1989/12, 07/03/1989.
4. TCC, E. 1971/1 (Political Party Dissolution), K. 1971/1, 20/05/1971.
5. Ergun Özbudun, ‘Laiklik ve Din Hürriyeti (Laicism and Freedom of Religion)’, in E Göztepe and A Çelebi (eds), Demokratik Anayasa (Metis 2012) 192.
6. See Yusuf Şevki Hakyemez, ‘Militan Demokrasi ve Anayasa Mahkemesi (Militant Democracy and the Constitutional Court)’, in F Öztürk (ed), Yeni Anayasa İçin Yol Haritası (Adalet 2020) 234.
7. TCC, E. 1989/1, K. 1989/12, 07/03/1989.
8. TCC, E. 1997/1 (Political Party Dissolution), K. 1998/1, 16/01/1998.
9. TCC, E. 1999/2 (Political Party Dissolution), K. 2001/2, 22/06/2001.
10. Özbudun, ‘Laiklik ve Din Hürriyeti’, 197.
11. Case of Leyla Şahin/Turkey, App. no: 44774/98, 10/11/2005.
12. TCC, E. 2008/16, K. 2008/116, 05/06/2008.
13. Özbudun, ‘Laiklik ve Din Hürriyeti’, 203.
14. Ibid, 204.
15. Zühtü Arslan, ‘Jüristokratik Demokrasi ve Laiklik: Türk Laikliğinin Siyasal İşlevi Üzerine’, Liberal Düşünce Dergisi, Vol. 10, No. 38-39, 2005, 46-47.
16. TCC, E. 2008/1 (Political Party Dissolution), K. 2008/2, 30.07.2008.
17. Hakyemez, ‘Militan Demokrasi ve Anayasa Mahkemesi (Militant Democracy and the Constitutional Court)’, 241.
18. See Zühtü Arslan’s speech, the former President of the TCC https://www.anayasa.gov.tr/media/8302/yildonumu_konusmalari.pdf 442-443.
19. TCC, E. 2012/65, K. 2012/128, 20/09/2012.
20. Ergun Özbudun, Türk Anayasa Hukuku (Turkish Constitutional Law) (Yetkin Yayınları 2019) 85.
21. Selçuk Abdullah Evliyaoğlu, ‘Geçmişten Günümüze Türk Anayasa Mahkemesinin Cumhuriyetin Laik Devlet Niteliğine İlişkin Yorumu (The Turkish Constitutional Court’s Interpretation of the Secular State Character of the Republic from the Past to the Present)’, Anayasa Yargısı, Vol. 40, No. 1, 2023, 134.
22. Tuğba Arslan, App. no: 2014/256, 25/06/2014
23. Sara Akgül, App. no: 2015/269, 22/11/2018
24. Muhammed Göçgün and Saliha Merve Kaya, ‘Yükseköğretim Kurumlarında Uygulanan Başörtüsü Yasağı: Hukuki Süreç ve Mevcut Durum (The Headscarf Ban in Higher Education Institutions: Legal Process and Current Situation)’, Ankara Sosyal Bilimler Üniversitesi Hukuk Fakültesi Dergisi, Vol. 5, No. 1, 2023, 326.