RENNES ECPR Joint Sessions April 11 th -16 th. Workshop 22: Religion in Europe Religion and Europe. The Judicial Dimension in Turkish Politics

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1 RENNES 2008 ECPR Joint Sessions April 11 th -16 th Workshop 22: Religion in Europe Religion and Europe Chair: François Foret, Université Libre de Bruxelles; Xabier Itçaina, Institut d Etudes politiques de Bordeaux The Judicial Dimension in Turkish Politics The Case of the Headscarf By Stefan Höjelid Associate Professor Växjö University Stefan.Hojelid@svi.vxu.se Phone: Mobile: Fax: School of Social Sciences Political Science Växjö University SE Växjö Sweden

2 Presidential Troubles and Political Crisis An Introduction When Turkey s foreign minister Abdullah Gül in April 2007 was nominated for the post as president by the ruling moderate Islamist Justice and Development Party (AKP) a political crisis followed. The army threatened to intervene due to serious risks to the secular republic. In a famous and powerful statement on the web the e-memorandum of April 27 the military warned that it would intervene if secularism was put at risk. Deniz Baykal, the leader of the secular Republican People s Party (CHP) brought the presidential election as a case to the Constitutional Court arguing that the first round in the voting procedure in the parliament was invalid due to certain formalities. The Constitutional Court made an unprecedented intervention and introduced a new controversial ruling of a one-third blocking majority in the parliament. In mass demonstrations Prime Minister Erdogan and his AK party was accused for having a hidden agenda as well as plans to Islamify Turkey and Prime Minister Erdogan however hit back contesting that the armed forces were attached to the government and called for snap elections during summer. The AK party won a landslide victory with 47 % of the votes and got 441 mandates in the parliament out of 550 in total. Many experts on Turkish politics interpreted this as a snap in the face for the military and at the same time as a victory for Gül as president. In late August Abdullah Gül was finally elected president after support in the first round from the Nationalist Action Party (MHP) and some Kurdish nationalist members. One important dimension of the political crisis after the nomination of Gül for presidency is associated to matters related to secularism as a fundamental element in Kemal Atatürk s political project and consequently in the Turkish constitution. As already mentioned the AK party was accused for having a hidden Islamic agenda and the so called headscarf issue was also highly debated as Hayrunnisa Gül wearing the Islamic-style headscarf as wife to the nominated Gül carried matters to an extreme. Even though it is a highly contested issue whether the fault line in Turkish politics is the one between secularism and Islamism, the starting point in this study is that it makes sense to approach and analyze this issue as a fundamental part of the so called Turkish political problematique. According to Keyman (2007:217) it is neither possible to think of Turkish modernity without reference to Islam or possible to think of Turkish secularism as 1

3 uncontested: In fact, the changing nature of Turkish modernity has been marked, to a large extent, by the crisis of Turkish secularism. 1 Let us now turn to another important dimension of the political crisis the judicial dimension. According to Özbudun the psychological polarization led to manoeuvrings of dubious legal validity and furthermore to a number of constitutional battles and to highly objectionable manipulations and distortions of legal concepts. 2 Özbudun is of the opinion that the bitterness over the crisis can be explained by the concern of the state elites such as the military, the judiciary, and a significant part of the media, universities and intellectuals as well as CHP as the political representative of the so called Kemalist tradition over anti-secular tendencies in the Turkish society. The fear often expressed by the secularist camp was that an Islamist president could gradually Islamize the Constitutional Court and the judiciary in general as well as the universities through his broad appointive powers. The starting point for this paper is to illuminate and explore the problematique in the Turkish political transformation process by focusing secularism and the case of the headscarf. An important question is if there is an identity shift and redefinition taking place in the Turkish society in terms if different state elites with respect to the role of Kemalism in general and secularism in specific. The more narrow and concrete purpose though in this paper is to explore how this could be understood in analytical terms by focusing a judicial-political perspective on the chosen case. Judicial Power and Political Governance According to most academics within the field trends such as the politicisation of the judiciary and the judicialization of politics have affected the relationship between courts and the larger political system. Historically courts have in general adopted a hands-off doctrine, arguing that those questions are best handled by the legislative and executive branches of government. As many political questions though involve legal aspects courts have become more receptive 1 Keyman 2007:24. 2 Özbudun 2007b:49. 2

4 to controversial matters of social policy. 3 Other manifestations of a politicized judiciary are to be found in the appointment process and the role of courts as a kind of policy-making institutions: Although courts cannot themselves make law, they can and do make policy by striking down laws, establishing procedures for complying with the law, and imposing a sense of what can and cannot lawfully be done by citizens and political officials. 4 Judicialization of politics is the other trend including among other things legal principles and procedures into areas of political and administrative policy making. As people are no longer willing to accept abuses of their rights they have often turned to courts to seek a remedy and thereby have enhanced the power of the courts in many countries. 5 Courts are often said to be the only political institution accessible to those people with less power as for instance groups claiming minority rights thereby pursuing what in political science jargon is often called identity politics. Consequently great faith has been placed in courts to protect individual citizens from unenlightened majorities and conspiratorial minorities. 6 Özbudun (2006) writes about the constitutional review and its consequences in terms of important academic and practical problems. One question is how we are to explain this global expansion of constitutional review, in other words what factors have led the political elite to transfer decision-making powers to the judiciary. Another important question refers to the implications of this trend for democratic theory and practice. Özbudun is of the opinion that two theories seem to have the greatest explanatory power. The first one is the so called social contract theory holding that the judicial review of the constitutionality of laws has become the best means to achieve the protection of fundamental rights and liberties. According to Özbudun the post-war constitutions in that sense reflect a new social contract, namely a conscious choice of the constituent peoples in favour of a pluralist model of democracy and against a majoritarian conception of democracy. In this 3 For a brief overview of Global trends in judicial power see article by Karlen, Gibson, and Smentkowski: court. (2008). In Encyclopaedia Britannica. Retrieved March 20, 2008, from Encyclopaedia Britannica Online: For literature on The Judicialization of politics and Judicial review and its practice in various regimes, see articles ( constitutional law ) by C. Neal Tate: as well as Ibid. 6 Ibid. 3

5 view, democracy is not synonymous with the power of the majority; in real democracy, minorities must have legal guarantees protected by a constitution that can not be easily changed even by a majority vote. 7 Özbudun though contends that the theory of hegemonic preservation, put forward by Ran Hirschl (2004), is more convincing regarding Turkey. The theory is based on a detailed study of four countries (Canada, Israel, New Zeeland and South Africa) that until recently remained under strong influence of the British legal system and thus avoided constitutional review. During the last decades detailed bill of rights have been included in the constitutions of those countries and as a consequence of this constitutional review has been adopted and even expanded. According to Hirschl the fundamental reason behind this trend is not a sudden emerging idealist thought to provide a better protection of human rights, but the desire of once dominant and now threatened political elites to protect their status by means of constitutional guarantees. 8 Those political elites perceiving their declining electoral support do not wish to submit their fundamental values and interests to the uncertainties of the mechanisms of majoritarian democracy have preferred to leave the protection of such interests to an independent judiciary whom they hoped nonetheless to influence more easily. 9 Such efforts by the political elites were joined by economic elites and finally by judicial elites who wanted to expand their influence within the political system. * * * The Constitution of 1924, strongly influenced ideologically by Italian Fascist ideology, and the period of Kemal Atatürk was very much a product of the dominance of the power of the centre military-bureaucratic elites. It concentrated all powers in the legislative assembly, which was dominated by the single party Republican People s Party (RPP). Consequently the dominant elites did not want the independence of the judiciary as the dominant actors the military-bureaucratic elites together with RPP by themselves could implement their interests as long as political elections was about single-party elections. The elections in 1950 meant a 7 Özbudun 2006b: Ibid. 9 Ibid. 4

6 real challenge to the old system. The Democratic Party (DP), mobilizing the peripheral forces, won a sweeping victory and consequently starting from 1950, the RPP, as the representative of the military-bureaucratic elites, strongly insisted on the adoption of constitutional review and the independence of the judiciary. 10 According to Özbudun one of the factors preparing the political climate for the 1960 military intervention was the fact that many laws with very dubious constitutionality were passed. 11 The Constitution of 1961 reflected a conscious choice regarding the so called traditional state elites who had been suffering a great deal under majoritarian democracy of the 1950s. The constitution strengthened the independence of the judiciary and the basic philosophy [ ] was to replace majoritarian democracy with a pluralist democracy where fundamental rights and liberties were put under effective judicial guarantees [ ] The 1961 Constitution limited the unconditional sovereignty of the majority through its principles of constitutional supremacy, constitutional review, separation of powers, and the independence of the judiciary. 12 According to the overthrown President of the republic, Celal Bayar, the new constitution brought new partners such as the military and the intellectuals into the exercise of national sovereignty. 13 The 1982 Constitution was like the 1962 Constitution a product of the state elites and it was more or less conceived as a tool that would protect the fundamental interests and values of the state elites. The Kemalist belief system was also reflected in many provisions safeguarding the main characteristics of the Republic Atatürk reforms, secularism as well as the national and territorial integrity of the state: Similarly, the 1982 Constitution contains many provisions that reflect a deep distrust for political elites representing the majority of the population. It can be argued that in the 23 year practice of the 1982 Constitution, the Constitutional Court has behaved essentially in the direction of the expectations of the state elites that created and empowered it. This attitude can most clearly be observed in the party prohibition cases Özbudun 2006b: Ibid. p Ibid. p Ibid. p Ibid. p

7 Islamist and ethnic Kurdish political parties have time after time been closed down by the Constitutional Court giving priority to the protection of the national and unitary state and the principle of secularism. Referring to Arslan (1996) Özbudun argues that this attitude very much represents an ideology based paradigm contrary to a rights based paradigm. He is also of the opinion that many decisions of the Court are reflections of distrust in the mechanisms of majoritarian democracy parallel to that of the state elites that empowered it. 15 Let me just say a few words on the uniqueness of Turkish secularism before focusing on the legal aspect of it. The Turkish Tradition of Secularism To understand the ongoing crisis one has to pay attention to the importance of the Kemalist legacy on issues related to religion. In Turkey there has been a strong stance on secularism since the days of Kemal Atatürk and Sunni Islam as the majority religion is strongly controlled by the state by a lot of institutional arrangements foremost through the Department of Religious Affairs. This means in practice that Turks are free to worship and to be devout Muslims as long as they keep it private: The result is that the Turkish state adopts both a hands-off policy towards religious worship, as would a modern liberal democracy, and a suffocating hands-on policy, fuelled by abiding suspicions of imams as obscurantists and counter-revolutionaries, to keep religion out of the political arena. 16 Berger is of the opinion that secularization manifests itself both as an objective socialstructural process and as a subjective cultural process. 17 Keyman argues, referring to Berger, that when analyzing the secularization process it is of great importance to differentiate its objective and subjective dimensions. He also underlines that the tendency toward sacralization rather than secularization has become an important characteristic of the late modern era. For this reason he argues that an adequate analysis of secularism should take as its starting point the recognition of the complex, dynamic, reciprocal and conflictual interplay between objective and subjetive secularization processes Ibid. p Boland Ibid. 18 Keyman 2007:219. 6

8 According to Roy (2007) in his essay Secularism Confronts Islam laïcité extends far beyond the setting of institutional boundaries. It is a full blown statist ideology and must not be confused with secularization. With secularization a society emancipates itself from a sense of the sacred that it does not necessarily deny, with laïcité the state actively expels religious life beyond a border that the state itself has defined by law. 19 Ruthven argues that it fosters religion by making it a separate category and reinforces religious identities rather than allowing them to dissolve into more diversified social practices. 20 Çolak notes that secularism above all else for the ruling cadre determined the parameters of the formation of modern society and referring to Davisson (1998) secularism (laiklik) implies lay control over religion. In other words it was an attempt for the Kemalists to control and domesticate Islam by an institutionalizing process under state control, and here is the uniqueness of Turkish secularism to be found: The structures and intentions exist to use religion in politics (in what elites believe is the interest of the state) as well as to disengage it (for the same reason). 21 Turkish secularism, he says, has been rather successful with respect to the so called objective secularization both institutionally and constitutionally, but weak in creating a secular social ethos strong enough to achieve subjective secularization. Thus, instead of secularization, the Turkish society has been witnessing processes of sacralization and de-privatization. The conclusion is that Turkish secularism has not been successful in creating an abstract idea of a laicist national identity and the result is a paradox embedded in a complex relationship between objective and subjective secularization: Turkish secularism has presented a paradox of a Muslim country being at least constitutionally more secularist than the European ones it wants to emulate, with the possible exception of France, and at the same time, confronted by a societal (group) will to traditional community and cultural identity based on Islam Quotation from Ruthven Ibid. 21 Davisson (1998) quoted in Çolak Casanova 2001:1064 quoted in Keyman 2007:224. 7

9 Contrary to expectations of Turkish secularism Islam has, with the words of Keyman, remained an effective symbolic force and a strong cultural reference for the formation of Turkish identity. Even though secularism with its Turkish laicist dimension has been defined as a key element in defining Turkish modernity, constructing a secular nation state from above has had obvious problems and is according to Casanova (2001) likely to fail because it is too secular for the Islamists, too Sunni for the Alevis and too Turkish for the Kurds and according to Keyman (2007) too Muslim for non-muslims. 23 Legal Aspects on Secularism and Veiling The constitutional provision in the Turkish constitution of 1924 that declared Islam as the state religion was removed by an amendment in 1928 and less than a decade later, 1937, secularism was incorporated into the constitution as one of the fundamental principles of the republican regime. The constitutions of 1961 and 1982 were no exceptions in this respect, but declared secularism as one of the fundamental characteristics of the state. Article 2 of the 1982 Constitution states that the Republic of Turkey is a democratic, secular and social state Furthermore the provisions in Article 2, as well as in Article 1 and Article 3, shall not be amended, nor shall their amendment be proposed according to Article 4. According to Article 24, paragraph four, no one shall be allowed to exploit or abuse religion or religious feelings, or things held sacred by religion, in any manner whatsoever [ ] or for even partially basing the fundamental, social, economic, political, and legal order of the state on religious tenets. 24 Similarly Article 68, paragraph four, states that the statutes and programmes as well as the activities of the political parties shall not be in conflict with [ ] the principles of the secular and democratic Republic. If the provisions in this paragraph are violated the Constitutional Court may decide on a dissolution of a political party after the filing of a suit by the office of the Chief Public Prosecutor of the Republic. Under the headline of Miscellaneous Provisions Article 174 provides a special protection for the so called secularizing reform laws from the 1920s and 1930s according to which no provision of the Constitution shall be construed or interpreted as rendering unconstitutional the Reform Laws indicated below, which aim [ ] to safeguard the secular character of the 23 See Keyman 2007: Özbudun 2007a. For an English version of the current 1982 Constitution of the Turkish Republic, see for instance Wikipedia online: or a version from University of Bern: 8

10 Republic [ ]. Among the laws enumerated is among others that on unification of the educational system, i.e. the abolition of the religious schools, on the wearing of the hats and on the prohibition of the wearing of certain garments. In other words, these laws, even though they can be changed or repealed by the legislature, cannot be found unconstitutional by the Constitutional Court. Özbudun (2007a) distinguishes between different aspects of secularism in terms of on the one hand separation between state and religion and on the other hand full and equal freedom of religion for all citizens of the state regardless of differences in faith of which the latter is also recognized by the Turkish Constitution. Article 24 stipulates that everyone has the right to freedom of conscience, religious belief and conviction. Acts of worship, religious services and ceremonies shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to worship or to participate in religious ceremonies and rites to reveal religious beliefs and convictions, or be blamed or accused because of his religious beliefs and convictions. 25 The reference to Article 14 regards the abuse of fundamental rights and freedoms and it reads as follows: None of the rights and freedoms embodied in the Constitution shall be exercised with the aim of violating the indivisible integrity of the state with its territory and nation, and endangering the existence of the democratic and secular order of the Turkish Republic based upon human rights. No provision of this Constitution shall be interpreted in a manner that enables the State or individuals to destroy the fundamental rights and freedoms embodied in the Constitution or to stage an activity with the aim of restricting them more extensively than stated in the Constitution. The sanctions to be applied against those who perpetrate these activities in conflict with these provisions shall be determined by law. 26 In other words, freedom of religious belief and conscience is more or less absolute, while freedom of worship is limited by the frame of Article 14 and thus conditional. It sounds reasonable, as Özbudun remarks, that a truly secular state is one that is impartial towards all religions and sects och that it does not discriminate among its citizens on these grounds Ibid. 9

11 Özbudun though is of the opinion, let alone Turkey s strong commitment to secularism since the days of Kemal Atatürk, that some aspects of Turkish secularism are open to question. Firstly, separation between state institutions and religious institutions is not complete, as the Directorate of Religious Affairs, is part of the public administration. According to Article 136 the Directorate which is within the general administration, shall exercise its duties prescribed in its particular law, in accordance with the principles of secularism, removed from all political views and ideas, and aiming at national solidarity and integrity. 27 It is a well known fact that the Directorate s providing of religious service to the Sunni majority has created frictions with the Alevi minority among others. The other point, according to Özbudun, that creates religious frictions with the Alevi community is the stipulation of compulsory religious education. Article 21, paragraph three, says that education and instruction in religion and ethics shall be conducted under state supervision and control. Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools. Other religious education and instruction shall be subject to the individual s own desire, and in the case of minors, to the request of their legal representatives. 28 A third constitutional aspect, finally, to have the status of an important political question, concerns the degree to which freedoms, specifically religious freedoms, can be exercised in Turkey of today. One contested issue concerns the ban on wearing headscarves by female students at the universities upheld twice by the Constitutional Court with reference to secular reasons. In a broader perspective the headscarf issue touches upon secularism as one of the sine qua non parameters in Turkish political life. One could argue that the crisis of the headscarf also encapsulates the crisis of secularism, the defining parameter during decades for radical modernization. Many experts have seen the banning of the headscarf in the public arena including universities as one of the reasons for the increased search for democracy among followers of Islamic politics. While many people over the years have been defending the right to wear the headscarf everywhere, others have been arguing that it should be outlawed in order to protect the secular basis of society. * * * Ibid. 10

12 It is maybe a kind of truism underlining that a law system is built up on certain hierarchical principles. The constitution providing the most general principles, laws in principle pertaining to all citizens and regulations restricted to certain defined areas. This being said, it is important to note that there have never been any Turkish laws prohibiting the use of the headscarf in universities or elsewhere. According to Özdalga (1998:40) one of the most complicated and controversial questions of attire is related to the fact that the present constitution from 1982 on the one hand contains the well-known principles of liberty, namely freedom of thought and belief, and on the other hand, the principle of secularism. These principles are not necessary contradictory, on the contrary; but in the conflict over the veil, they have come to clash. The Islamist women have on the principles of liberty invoked the right to veil themselves, while anti-islamist groups have referred to the principle of secularism when justifying the ban. Until the 1960s there was a kind of a general consensus that the secularist principle in the constitution should be interpreted in such a way that Islamic attire, both the fez and the scarf, should be banned from public offices like universities. When it came to the crunch, and this consensus later on was challenged by different Islamic groups, it was obvious that the secularist defenders of the ban had to find a legal base for this. The first prohibition against the headscarf was regulated in 1982 by the Turkish Council of Higher Education (YÖK) even though it soon became clear to everybody that the regulation was difficult to implement as many students refused to stick to it. For many of them it was a question of belief and they simply preferred to undergo punishment or to be expelled instead of changing their belief. In May 1984 the regulation was softened and the students were allowed to cover their heads in a way that was in line with so called contemporary clothing. 29 As more and more female students were using the headscarf, groups defending a public sphere free from religious influence increased. In 1986 the President, General Kenan Evren, sent out a warning to the Council of Higher Education, calling attention upon reactionary tendencies in the Turkish society. The 29 This meant that a headscarf covering the shoulders was forbidden, while a kind of turban tied at the back of the neck was permitted. On legal aspects of veiling from a modern historic perspective, see Özdalga (1998) pp See also pp for a longer historical perspective. 11

13 moderating rule of two years earlier was withdrawn and a new and more stringent regulation was issued. However, even the new formulation was difficult to interpret and in practice the use of the headscarf would be allowed at some universities, departments or faculties, while strictly supervised at others. From this followed that the board of university presidents decided that the prohibition gradually should be lifted. Özdalga (1998:45) argues that the lines of division on this issue cut across the established political parties. It also became a controversial question in very different social contexts. Close friends and even members of the family were easily split by this issue. Many remained ambivalent. In November 1987 a law proposal lifting the ban from the governing Motherland Party (ANAP) was accepted by the parliament, but vetoed by President Kenan Evren. In spite of the fact that another law in favour av lifting the ban was issued by ANAP in 1988 and the Council of Higher Education in 1989 repealed the regulation of 1982, the Constitutional Court withheld its stance in two rulings in 1989 and It should be noted though that decisions taken by the Constitutional Court and the Council of State contradicted each other the first one referring to the articles of secularism, the other one to the articles on basic individual liberties. According to Özdalga (1998:46) the question turned into a true impasse: neither a clear yes, nor a clear no, but bifurcation and ambivalence. Attempts aiming at lifting the ban by the Islamist Welfare Party and its coalition partner, the liberal-conservative True Path Party, during the second part of the 1990s, did not succeed. The final decision on either accepting the headscarf or not was in practice delegated to each university. Consequently the issue was unsolved when the moderate Islamist Justice and Development party (AKP) came to power in * * * As already noticed the landslide victory of AKP in July 2007 brought about a renewed political discussion on the secularist-islamist dimension in Turkish society. In late January 2008 the headscarf issue came to dominate the political agenda again when Prime Minister Erdoğan, President Gül, Parliament Speaker Köksal and the leader of the Nationalist Movement Party (MHP), among others, voiced that the headscarf should not be banned. The main opposition party, the Republican People s Party, as well as important actors within the 12

14 so called deep state, foremost the judiciary, were not slow to take a stance on this issue. In a statement released by the Chief Prosecutor of the Supreme Court of Appeals it was noted that the headscarf is against the secular and unitary structure of Turkey, as well as to the gains of the republic. 30 Even the Council of State released a statement opposing the discussions over the possible removal of the ban on headscarves on university campuses. On the 6 th of February 2008 the Parliament (TGNA) approved by majority the two constitutional amendments regarding Article 10 (Equality before the law) and Article 42 (Right to education). The added paragraph to Article 10 reads that State organs and administrative posts have to abide by the rule of equality before the law in all public procedures and public services. 31 The new version of Article 42 reads that Nobody can be deprived of exercising their right to higher education for a reason not specified in the law. Restrictions that apply to this right are to be stated by law. 32 Former head of the Higher Education Board (YÖK) and professor in constitutional law, Erdoğan Tesiç, underlined in a comment that no juridical change took effect by the amendments [ ] the ban will continue. He was referring to Article 17 of the YÖK law which says that students can dress the way they want unless it runs counter to laws in effect. 33 His successor though, YÖK President Özcan, released a statement on February 24 calling on rectors to allow covered students on university campuses, which started a turmoil among university rectors opponents as well as proponents of the constitutional amendments lifting the ban. At a meeting with the Inter-university Board (ÜAK), bringing together senior university administrators, a clear majority called on President Özcan to resign claiming that he is far from representative of Turkey s universities. At the same time a deputy chairman of the AK Party asked prosecutors to take action against pro-ban rectors. On the other hand, the Ankara Public Prosecutor s Office launched an investigation into Özcan. On the 11 th of March the Council of State, Turkey s top administrative court, annulled the circular by President Özcan (YÖK) instructing the university rectors to comply with the constitutional amendments lifting the headscarf ban Today s Zaman Today s Zaman Today s Zaman Turkish Daily News See Today s Zaman

15 Meantime the main opposition Republican People s Party had petitioned the Constitutional Court to annul the recently approved constitutional amendments. In a 50-page-long petition the CHP claimed that the constitutional changes adopted contravene secularism as a founding principle of the republic. The amendments, they argued, appear to contradict the principle enshrined in the Constitution that states the sacred feelings of religions must absolutely not be mixed up with state affairs and policy. 35 Some days later real shockwaves were sent through Turkey when the Chief Prosecutor at the Supreme Court of Appeals applied to the Constitutional Court demanding that the ruling AK Party together with som 70 party officials including President Gül and Prime Minister Erdoğan should be disbanded for five years. The AK party was foremost accused of being a hotbed of anti-secular activities, in other words of trying to build an Islamic state. 36 Even though protests and statements were made by politicians, academics, civil society organisations and foreign diplomats, the President of the High Court of Appeals told critics in a statement not to push the boundaries too hard, underlining that the evaluation and the final decision on this issue lie with the Constitutional Court : The boundaries of criticism should not be pushed too far and making or writing comments, articles and news that fall slightly short of insult should be avoided. The duty of the media is to inform the society without crossing legal or ethical boundaries. We believe the Turkish press will show the utmost care in this issue. 37 Concluding Remarks Even with respect to the political development and the AKP success story during the 21 st century it seems obvious that there is still a divide in Turkish politics regarding secularism and Islamism. The headscarf problematique is a telling illustration of this. As stated earlier, even though it is a highly contested issue whether the major divide in Turkish politics is the one between secularism and Islamism, it makes sense to approach and analyze this issue as a fundamental part of the so called Turkish political problematique. In the words of Keyman (2007) it is neither possible to think of Turkish modernity without reference to Islam or possible to think of Turkish secularism as uncontested. 35 Today s Zaman Today s Zaman Today s Zaman

16 I also argue that Hirschl s theory of hegemonic preservation is rather convincing when it comes to understand and explain the activism of the judiciary in the headscarf affair as well as the eagerness of the CHP as the political representative of the so called secularist elite 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. One can easily see the current turmoil as a political battle fought through the judiciary between parts the secularist establishment and the AK Party and their supporters. At the moment of writing it is an open question whether the Constitutional Court will re-open up the request from a state prosecutor to shut down the ruling Justice and Development Party (AKP) or not. It should not be an overstatement to argue that regime stability in Turkey is at stake which the actors involved probably bear in mind not least the ruling government. One also has to take into account the crucial role of the military in Turkish politics as maybe the most important part of the secularist elite. Even though the military has shown a rather relaxed attitude so far, every political actor knows very well their clear stance on secularist issues. Portales (1998) highlights, with an emphasis on comparative aspects, a series of legal and constitutional mechanisms, so called authoritarian enclaves, left in place by the military regime in Chile constraining a democratic consolidation. He also argues that the literature on the Chile case agrees that the transition to civilian rule was the outcome of a difficult process of negotiation between opposition sectors and the government of the armed forces. From a principled point of view Turkey now faces a similar problem, which means how to reform an undemocratic political regime even though democracy with authoritarian elements is a more appropriate label for Turkey while at the same time preserving governance and stability among other things. One could argue that there are lessons to be learned from the political strategy in the Chilean case where there was a combination of confrontation and persuasion. According to Portales political realism suggested an aggressive political campaign against the judiciary instead of challenging the armed forces. This also appeared rather promising. Why then target the judicial power? The answer, Portales argues, is because it has been endowed with enough constitutional and political powers to be able to guarantee the preservation of the 15

17 authoritarian regime. If the latter was to be over-hauled, why not start by undermining those areas perceived to be more susceptible to change and reform, and less likely to successfully challenge the new government s legitimacy, and for which public support was deemed to be strong? 38 The leadership av the AK Party has so far shown confrontational as well as conciliatory rhetoric and proactive moves. Prime Minister Erdoğan among others has directed harsh criticism against some newspapers and the main opposition CHP for adopting a provocative stance on the headscarf issue. He has also blamed CHP for not being interested in democracy, but dictatorship: No one has the right to create social unrest. Is it only the AK Party s duty to think about the countries future? Even if we are alone, we will continue to fight for Turkish democracy. 39 According to the Prime Minister some people might be missing their long past privileged days: They may be opting for an authoritarian mentality instead of democracy, but we are in politics for the future of our 70 million citizens. Those who attempt to keep politics, democracy and the free will of the Turkish nation under tight control will not attain their illegal, unfair und inhuman goals. 40 On the other hand the ruling government has at the moment of writing also initiated discussions in the parliament on changing the Constitution in order to disable the prosecutor s decision to file for the disbandment of the AKP and some 70 politicians. The purpose in the long run of those constitutional changes would be to make it harder for judicial organs to shut down political parties. * * * Recalling a Turkish proverb the question is: What will now happen to Turkey? Politics is as everybody knows in general rather unpredictable Turkish politics with its emotional and confrontational character even more so. Political culture in the Turkish case the Kemalist legacy has of course a great impact on how politics in general and a political crisis in specific evolve. This does not mean that politics has to be geared by destiny. There is in most cases some space for political action and initiatives. 38 Portales 1998:2. 39 Today s Zaman Today s Zaman

18 As a result of the 2007 elections Turkey has for the first time both a president and a Prime Minister with an Islamist background and in both cases their spouses wear Islamic headscarves. The ruling AK Party holds the power on its own and with much more legitimacy than earlier parties with an Islamist orientation. The current crisis has on the other hand made it clear that there is still a polarization in Turkey. How to overcome this? In the 2007 election campaign, the AK Party promised a new civil and democratic constitution in order, to among other things, reorganize the governmental structure in line with parliamentary principles. A draft constitution has also been prepared for the ruling AKP by a group of academics headed by professor Özbudun. While many people wanted to see a new civilian constitution replacing the military one from the 1980 military coup the problem was that, with the words of Baran, the timing and the process caused concern among those who feared the AKP s so called real agenda. 41 The decision in the parliament to ease the ban on female students wearing the Muslim headscarf by constitutional amendments gave the secularists the crucial ammunition they wanted and probably had been waiting for. It also seems to have been more imperative due to tactical reasons than a deliberative and strategic move on the overall constitutional issue. However, one should bear in mind that constitutional processes are complex and it is a kind of multistage phenomenon where the constitutional will is tested. During the different stages of a constitutional process the public opinion as well as different and often well articulated political actors is normally intervening. There is no way for AKP to quit the game and withdraw from the promises. The die is cast and regarding the constitutional issue the ball is with the AK Party provided that the party will not be closed down. We are after all maybe witnessing another and hopefully promising step in the process of consolidating democracy in Turkey. 41 Baran 2008:67. 17

19 References Baran, Zeyno (2008). Turkey Divided, in Journal of Democracy, Volume 19, Number 1, January De Bellaigue, Christopher (2007). Turkey s Turning Point, in The New York Review of Books, Number 17, October 25, Berger, Peter L. and Samuel Huntington (Eds) (2002). Many Globalizations. Cultural Diversity in the Contemporary World. Oxford University Press Boland, Vincent (2007). In Atatürk s Shadow. Financial Times ( Çolak, Yilmaz (2005). Between Secularism and Islamism, in Keyman, Fuat and Ahmet İçduygu (eds.): Citizenship in a Global World. European Questions and Turkish Experiences. Routledge Casanova, José (2001). Civil Society and Religion, in Social Research 68 (4): Casanova, José (2004). Religion, European secular identities, and European Integration ( Dismorr, Ann (2008). Turkey Decoded. Saqi Gönenç, Levent (2005). Recent Developments in the Field of Freedom of Expression in Turkey, in European Public Law, Volume 11, Issue 2, Heper, Metin (1985). The State Tradition in Turkey. The Eothen Press Kadioğlu, Ayşe (1996). The Paradox of Turkish Nationalism and the Construction of Official Identity, in Kedouri, Sylvia: Identity, Democracy and Politics. Frank Cass Kadritzke, Niels (2008). Headscarves, generals, and Turkish democracy ( Kahraman, Hasan Bülent (2007). Turkey since 2002 and beyond Permanent problems temporary answers, in Private View (TÜSIAD), autumn 2007, No.12. Kalaysioğlu, Ersn (2005). The Mystery of the Türban, Participation or Revolt? Turkish Studies, 6:2, Kanra, Bora (2005). Democracy, Islam and Dialogue: The Case of Turkey, in Government and Opposition Ltd Karlsson, Ingmar (2007). Europa och turken. Betraktelser över en komplicerad relation (Europe and the Turk. Reflections on a Complicated Relation). W&W Kedourie, Sylvia (ed.) (1999). Turkey Before and After Atatürk. Internal and External Affairs. Frank Cass Kedourie, Sylvia (ed.) (1996). Turkey Identity, Democracy, Politics. Frank Cass

20 Keyman, Fuat (2007). Modernity, Secularism and Islam. The Case of Turkey, in Theory, Culture and Society, Vol. 24 (2): Keyman, Fuat (2003). A political earthquake in Turkey. An analysis of the prospects of the JDP government in Turkey ( Mango, Andrew (2002). Atatürk: The Biography of the Founder of Modern Turkey. Overlook Press Portales H. Galleguillos, Nibaldo (1998). The Politics of Judicial Reform in the Democratic Transition: An Analysis of the Chilean Case, in Ciencia ergo sum, Volume 5, No. 3, November 1998-February 1999, pp Roy, Olivier (2005). Secularism Confronts Islam. Columbia University Press Ruthven, Malise (2007). How to Understand Islam, in The New York Review of Books, Volume 54, No 17, Tosun, Tanja (2007). The 22 July Elections. A Chart for the Future of Turkish Politics, in Private View (TÜSIAD), autumn 2007, No.12. Today s Zaman ( Turan, Ilter (2007). More Islamic or More Democratic or Both? Uncertainties of Turkish Politics, in Private View (TÜSIAD), autumn 2007, No.12. Wikipedia online ( Özbudun, Ergun (2007a). State and Religion in Turkey, in Peter Molt & Helga Dickow (eds.). Kulturen und Konflikte in Vergleich (Comparing Cultures and Conflicts). Festschrift für Theodore Hanf. Nomos Özbudun, Ergun (2007b). Why the Crisis Over the Presidency? Private View (TÜSIAD), autumn 2007, No.12. Özbudun, Ergun (2006a). From Political Islam to Conservative Democracy: The Case of the Justice and Development Party in Turkey, in South European Society and Politics, Vol. 11, No. 3-4, September-December 2006, pp Özbudun, Ergun (2006b). Political origins of the Turkish Constitutional Court and the Problem of Democratic Legitimacy, in European Public Law, Volume 12, Issue 2, Özdalga, Elisabeth (1998). The Veiling Issue, Official Secularism and Popular Islam in Modern Turkey. Curzon Özdalga, Elisabeth (1978). I Atatürks spår. Det Republikanska folkpartiet och utvecklingsmobilisering i Turkiet från étatism till populism (In Atatürk s footstep. The Republican People s Party and Development Strategies in Turkey From Étatism to Populism). Dialog