There are both domestic and foreign concerns that Turkey is a theocracy in the making or some “attenuated” version thereof.  While most of these concerns are full of extravagant exaggerations, often suggesting Iran as an example Turkey is allegedly headed towards, there is a certain element of truth embedded in these concerns

Tecimer, Cem

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Di 26 Sep2017Rethinking Turkish Secularism: Towards “Unofficial”Islamic Constitutionalism? verfassungsblog.de /rethinking-turkish-secularism-towards-unofficial-islamic-constitutionalism/Cem Tecimer Di 26 Sep 2017This blog post is deliberately provocative—at least its title is.  The basic fact is there are both domestic and foreignconcerns that Turkey is a theocracy in the making or some “attenuated” version thereof.  While most of theseconcerns are full of extravagant exaggerations, often suggesting Iran as an example Turkey is allegedly headedtowards, there is a certain element of truth embedded in these concerns:  For better or worse, Turkish secularismhas been and currently is being renegotiated, to say the very least.  While it is not always easy to distinguish politicalliberalization and the relaxation of stringent laws targeting religion and its social visibility in the public domain fromlegal and political efforts that challenge Turkey’s secular order, there are indications today that point to the latter, thatis, what may be termed an “unofficial” mode of Islamic constitutionalism that operates as a constitutional reality,despite the capital-C Constitution’s text providing otherwise that Turkey is a secular country.Turkey is a peculiar case study when it comes to constitutionalism and religion.  Comparative constitutional lawscholarship orthodoxy treats Turkey as an outlier, possibly along with France—both regarded as assertively secularcountries where most social manifestations of religion are prohibited.  Having been identified thusly, Turkey isusually not even considered as a case study for scholars of Islamic constitutionalism.  Studies on Turkey and Islamicconstitutionalism merely indicate how Turkey—as both state-sponsored and other statistics indicate, a Muslim-majority country—does not have an Islamic constitution.  Polities whose constitutions make some reference to Islamor Sharia are treated by comparative constitutional law scholars as primary cases to study (Egypt, Iraq and Iranbeing prime examples), hence the lively debate surrounding some Islamic constitutions’ references to Sharia asbeing either a or the source of legislation.  I hope to unsettle this orthodoxy by trying to pluralize the notion of Islamicconstitutionalism with a distinct mode, that is, “unofficial” Islamic constitutionalism that can come into being underthe absence of specific constitutional stipulations referencing Islam or Sharia, and even despite constitutionalstipulations making numerous and repeated references to secularism.Liberal But Still SecularWhile the AKP government chose to describe itself using the term “conservative democrat,” foreign referencesalmost always used—and continue to use—labels such as “Islamist,” often followed or preceded by additionalqualifiers such as “moderate” and/or “democrat.”  The change in Turkey’s political landscape throughout more thana decade has unsurprisingly witnessed a complementary change in the judicial landscape, and after the 2010constitutional amendments, which reshuffled the judiciary and reconfigured the composition of the TurkishConstitutional Court, the Turkish judiciary’s stance towards religion and its social manifestations changedsignificantly.  Regulations concerning religious attire were loosened and the ban on wearing headscarves ininstitutions of higher learning was lifted.  In a landmark case in 2012, perhaps best encapsulating this trend towardsrelaxation/liberalization, the Constitutional Court upheld a law instituting optional courses in public schools titled“The Life of Our Prophet” and “The Holy Quran,” and more importantly, in dicta, ruled:“When secularism’s historical development is examined, two interpretations and applications of theconcept emerge, contingent upon the approaches to the phenomenon of religion.  According to thestricter understanding of these two, religion is a phenomenon that only finds place in the individual’sconscience that is prohibited from going beyond this and from manifesting itself socially andpublically.  A more flexible and liberal interpretation of secularism derives from the conclusion that1/4religion is, apart from its personal dimension, a social phenomenon.  This understanding ofsecularism does not imprison religion to one’s conscience, but views it as an important element ofindividual and collective identity, and allows for its social visibility.”The Court’s espousal of what it called the “liberal interpretation of secularism,” some scholars have argued, was acommendable jurisprudential change that marked a significant shift from the Court’s earlier jurisprudence that wasarguably motivated by anti-Islamic sentiments, as partly evidenced by a case dating back to 1989, where in dicta theCourt had ruled:“Secularism, which has accelerated modernity and which is the foundation of the Turkish Revolution,ensures that society is saved from irrational and unscientific notions …  [Our] Republic anddemocracy are the opposite of Sharia rule.”Given the Court’s earlier jurisprudence, the change was welcomed by many, and regarded as constituting a part ofthe broader legal and political trend towards liberalizing restrictions on religion and its social visibility.“Unofficial” Islamic Constitutionalism: The Political LandscapeWhile one legal and political strand in recent Turkish history has been to liberalize restrictions on religion and itssocial visibility, some phenomena simply go beyond that and indicate a political and—to a certain extent—legalwillingness to promote Islam in general and to have it penetrate Turkey’s legal system, despite the TurkishConstitution’s unequivocal and repeated references to secularism, which is why I dub this whole transformation“unofficial.”The most (in)famous and futile attempt came from the Turkish Parliament speaker—also an AKP MP.  Hecommented on the discussions surrounding the recent referendum in April 2017 that amended the Constitution,seriously altering the Turkish democracy’s separation of powers arrangements.  Commenting on the need for “a newand religious constitution,” and noting further the absence of the word “Allah” in the current Turkish Constitution, thespeaker went on and proposed to erase all references to secularism in the text.  His party quickly responded,arguing that the speaker was speaking on his behalf only, and that his remarks did not reflect the AKP’s views onsecularism.  President Erdogan, in a similar vein, noting that his own views on secularism were clear, said: “Thereality is that the state should have an equal distance from all religious faiths.”  The debate around “Islamizing” theConstitution provided Turkish constitutional lawyers with yet another opportunity to reflect on the timeless“parchment barriers” problem, given the eternity clause in Article 2 of the Turkish Constitution, which, in theory (orsimply put, “in parchment”) declares secularism to be an irrevocable and unamendable pillar of the Turkishconstitutional order.  Despite this strong stipulation of irrevocability, a high profile politician such as the Parliamentspeaker did not feel hesitant to propose adding religious references to the text and erasing references to secularism.To give another example dating back to 2013, then Prime Minister Erdogan supported a legislative bill restricting thesale of alcoholic beverages in certain locations (mainly due to their proximity to schools and places of worship) andafter certain hours, partly relying on the express constitutional stipulation in Article 58(2) of the Constitution, grantingthe government the power to “take necessary measures to protect youth from addiction to alcohol and drugs…” Among other reasons in support of the bill, however, then Prime Minister Erdogan also noted that the legislation inquestion was in line with what religion commanded.  Erdogan’s reference to religion in support of the bill, whichindeed ended up being enacted into law, raised questions about whether the bill had violated the principle ofsecularism by virtue of being partly motivated by religious sentiments, arguably violative of Article 24(4) of theConstitution, stating that “No one shall be allowed to exploit or abuse religion or religious feelings … for evenpartially basing the fundamental, social, economic, political, and legal order of the State on religious tenets.”2/4“Unofficial” Islamic Constitutionalism: The Legal LandscapeJudicial opinions of the Constitutional Court, too, seem to indicate more than mere liberalization in terms of how thejudiciary interprets secularism vis-à-vis Islam.  I will give two examples to demonstrate this phenomenon.First, in a fairly recent individual application case last year (2016), in reaching the conclusion that the Islamic call toprayer (also known as azan) did not violate petitioner’s right to improve his physical and spiritual existence protectedby Article 17 of the Turkish Constitution, the Court reasoned as follows:“In this context, it should be noted that the call to prayer is a religious practice of the Islamic faith,dating back to the foundational years of Islam, that aims to call people to daily prayer and to informthose who are unable to go to worship places of the prayer time, and that it has gained culturalsignificance among society.”The Court did not seem to exercise any caution in making judicial statements about how central the call to prayerwas to Islam, and further, it did not hesitate to deem the call to prayer a religious ritual that, at least within the Turkishcontext, had gained cultural significance.  Bracketing the question of how well suited the judiciary is in recognizingvalues that have—and by implication, that have not—gained societal acceptance, the Court took a step further fromits earlier jurisprudence of liberalizing restrictions on religion: in this case, the Court made pronouncements onbehalf of majorities, more specifically on behalf of the religion of the majority in the country, despite its reasoning in aprevious paragraph of the very same decision that:“It is outside the purview of the judicial organs to question what individuals’ interpretations of their ownreligions or what “common religious practices” are.  A contrary approach would be tantamount tocourts or public authorities substituting their own values for applicants’ convictions and therebyassessing “the appropriateness” of what they should believe in…”Second, in a very recent decision handed down in 2017, the majority of the Court rejected a libertarian challenge toinvalidate sections of the Civil Code deeming most property interests acquired during marriage part of the maritalassets equally shared by the spouses.  One of the dissenting justices, taking a libertarian stance, reasoned that therelevant sections of the Civil Code indeed violated the Constitution.  While finding the relevant sections of the CivilCode in violation of the right to property recognized by the Constitution in Article 35, the dissenting judge continuedwith a litany of items, which he believed contained norms and principles violated by the relevant parts of the CivilCode:“As explained above, to take someone’s property from them without their consent is a violation ofone’s right to property, personhood, and one’s right as a subject of God [tr. kul hakki].”The dissenting judge, in an unprecedented move, listed “one’s right as a subject of God,” (also known as one’s“rightful due”—a special term in Islamic law discourse) as one of the sources of constitutional adjudication to settlethe question of whether a provision of the Civil Code contravened the Constitution.  While it is true that the quotedterm has an everyday meaning in Turkish that is more or less tantamount to a general notion of justice, it isnevertheless undisputedly a term with deep Islamic connotations that the dissenting judge had no hesitation to makeuse of, which did generate considerable reaction from the secular media, but not so much from Turkishconstitutional law scholars.3/4I should point out three things at the very end:  (1) The aim of this post is not fear mongering, given a significantnumber of Turks’ suspicion that the current government is trying to undermine the secular—for some, the assertivelysecular—constitutional order.  (2) Further, as the title suggests, I am thinking about recent political and legaldevelopments in the Turkish constitutional space that may be indicating a trend towards what I call “unofficial”Islamic constitutionalism, the word “towards” denoting an ongoing transformation as opposed to a process that iscompleted.  (3) Thirdly, this blog post quite consciously avoids discussions of the normative implications of thistrend; it confines its subject to a merely descriptive analysis of an ongoing transformation—not because I think thenormative implications are of no moment, but because I believe they warrant a separate and lengthier treatment.All I am arguing is that recent developments in the Turkish political and legal landscape show a willingness torenegotiate Turkish secularism at a level that cannot merely be described as liberalization and remedying a past fullof animus against Islam and its social visibility.  Thus, what we are witnessing may be a trend towards establishinga secular constitutional order, with a flavor of Islam, whatever that means.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Tecimer, Cem: Rethinking Turkish Secularism: Towards “Unofficial” IslamicConstitutionalism?, VerfBlog, 2017/9/26, http://verfassungsblog.de/rethinking-turkish-secularism-towards-unofficial-islamic-constitutionalism/, DOI: https://dx.doi.org/10.17176/20170926-154108.4/4

Rethinking Turkish Secularism: Towards “Unofficial” Islamic Constitutionalism?

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Rethinking Turkish Secularism: Towards “Unofficial” Islamic Constitutionalism?

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