The irony here is that freedom of
religion is interpreted as freedom of the government from religion which they
outright regulate. Considering the
history of Islam, that is likely a good thing.
That the constitution is again on
the way to being redrafted merely suggests that a balanced constitution remains
unwanted.
Yet Turkey
An Islamist party is in power in Turkey ,
a NATO ally of the US
Wednesday, November 30, 2011
By Mine Yildirim
Known as Haghia Sophia, the Basilica of Holy Wisdom was once a
Christian church. It is now a museum.
Recent developments on conscientious objection and ongoing problems
resulting from legislation and practice suggest that, unless these issues are
addressed, there may not be significant improvement in the constitutional
protection of freedom of religion or belief for all.
The process of drafting
These include: Will the Diyanet, or Presidency of Religious
Affairs under the Prime Minister, continue to be identified as a constitutional
body? Will manifestations of religion or belief in worship, practice, teaching
and observance be explicitly protected? Will "laiklik", often perhaps
misleadingly translated as secularism, be maintained in the new Constitution?
Will Article 174 ("Preservation of Reform Laws") of the current 1982
Constitution be deleted or re-interpreted?
It is vital that the new Constitution enshrines full guarantees of
freedom of religion or belief for all including agnostics and atheists, fully
in line with Turkey
But on its own - without good laws, regulations and state actions - a
Constitution can have only a limited impact in generating practical change in
the daily lives of people belonging to minority religious and belief
communities (see F18News 27 June 2011
The Process
The Constitutional Reconciliation Commission (AUK), which is chaired by
the Grand National Assembly [parliament] Speaker Cemil Cicek, has
been assigned the task of constitution drafting. The members of the AUK are
from the ruling Justice and Development Party (AKP) and the main opposition
party the Republican People's Party (CHP), with other members from the
opposition Nationalist Movement Party (MHP) and Peace and Democracy Party
(BDP). That AUK decisions will only be made unanimously is very significant,
and raises hopes that the new Constitution may enjoy a broad basis of
consensus. Topics where no unanimous decision can be reached will be
re-evaluated at a time the AUK deems appropriate.-+
The AUK seems eager to make this process open to submissions from all
sectors of society, including political parties, constitutional organisations,
professional organisations, trade unions, NGOs, foundations, and religious
communities. The AUK's work will be in three phases. The first phase consists
of public participation including receiving submissions, data collecting and
assessment. This phase is intended to finish by the end of April 2012
Following this the Constitution's principles and a draft text will be
produced, followed by a third phase of public debate on this and changes
following public discussion. The AUK aims to finish its work by the end of
2012, when it will be considered by the General Assembly of the Turkish
parliament, the Grand National Assembly.
Although it is highly unlikely that the new Constitution will solve all
of Turkey
Firstly, the process may help create a mentality change in thinking
about Turkish identity. Contemporary nationalist attitudes – a powerful force
in state and society - see "threats" from "others" who do
not fit the nationalist stereotype of who is Turkish, including non-Sunni
Muslim communities (see F18News 29 November 2007
Secondly, the process may open up for public debate the provisions of
the current Constitution and laws which prevent people in Turkey from fully
enjoying the right to freedom of religion or belief.
Mentality Change?
Possibly the greatest contribution of the new Constitution process may
be encouraging public acceptance of a pluralist approach to state policies, and
relationships between citizens and the state.
The current Constitution glorifies the state, as against enshrining
respect for the individual person, and privileges Turkish nationalism. This does
not set out a framework which encourages the development of the pluralistic
democracy Turkey
Public discussions on a new Constitution, including negotiations
between political parties, and the contributions of NGOs and minorities are
contributing to the development of an open society – a Turkey Turkey
"Laiklik", or "Turkish secularism"
"Laiklik", or "Turkish secularism", has a great
impact on the protection of freedom of religion or belief. Its meaning is very
different from either the French concept of "laicité", or what many
outside Turkey
The greatest problem of laiklik is that there is not one
meaning of it; there are several, with for example different meanings used by
different political parties.
The drafting process offers the AKP an opportunity to
enshrine in the new Constitution its own version of laiklik, as the ruling
party will be the major actor in formulating the Constitution. Prime
Minister Recep Tayyip Erdogan, in speeches he gave during his
Arab Spring tour, said that laiklik to him means that the state keeps
an equal distance to all religion. At the same time he acknowledged his
religious identity by stating that he himself is a Muslim. Yet when one
compares these statements with AKP policies on freedom of religion or
belief in recent years, there is a lack of clarity as to what
the AKP really thinks (see F18News 27 June 2011
In defining what the new Constitution means by laiklik, the AKP will
have to find a balance between the demands of "conservatives",
"nationalists" and "secularists" - all of whom have
differing understandings. The AKP will also have to take account of
the normative demands of international law, for example judgments of the
European Court of Human Rights (ECtHR) in Strasbourg
These issues include but are not limited to:
the Diyanet (see F18News 4 May 2011
compulsory school religion classes (see F18News 23 August
2011
obligatory recording of religious identity in national identity cards
(see F18News 8 October 2010
accommodation of manifestations of religion, particularly
the headscarf in the public school and workplace (see the commentary
by T. Jeremy Gunn on the European Court of Human Rights' judgment in
the Sahin case
and the lack of an adequate legal entity status for religious or belief
communities (see F18News 7 February 2011
The main opposition party, the CHP - through which the Republic's
founder, Mustafa Kemal Atatürk, led Turkey
Whatever concept of laiklik makes its way into the new
Constitution, it will find its meaning in related laws and their
interpretation. And the important point is that the state's role and actions
must come into line with its obligations under international human rights
standards.
Preservation of Reform Laws
Article 174 ("Preservation of Reform Laws") of the current
Turkish Constitution states: "No provision of the Constitution shall be construed
or interpreted as rendering unconstitutional the Reform Laws indicated below,
which aim (..) to safeguard the secular [laik] character of the
Republic.."
There is no indication on whether or not this Article will be preserved
in the new Constitution. The Reform Laws are directly or indirectly linked to
the active protection of laiklik (as constructed by the founders of
the Republic). They include: Act No. 430 of 3 March 1340 (1924)
("Unification of the Educational System"), which keeps all religious
education under state control (see F18News 5 January 2011
Act No. 2596 of 3 December 1934 ("Prohibition of the Wearing of
Certain [Muslim religious] Garments"); and Act No. 677 of 30 November 1341
(1925) ("Closure of Dervish Convents and Tombs, the Abolition of the
Office of Keeper of Tombs and the Abolition and Prohibition of Certain
Titles") (LADLS). This Act, among other things, closed Alevi places
of worship (see F18News 2 March 2011
and prevents their leaders from using their religious titles
(see F18News Turkey
Whether the Reform Laws will be preserved in the new Constitution, and
if so to what extent, will be a contentious issue. It is possible that the laws
will be debated individually, rather than as a package. The CHP, the natural
defender of the Reform Laws, has said that they have no "red lines"
in negotiations. But only time will tell what this means. Some of the Reform Laws
are not applied in practice; it has been many years since a fine has been
imposed under Act No. 671 of 25 November 1341 (1925) ("Wearing of
Hats") for failing to wear a hat. The prohibition on the use
of Alevi titles also seems to be no longer enforced. But other Reform
Laws, such as Act 677 (LADLS) and Act 430 ("Unification of the Educational
System"), will be fiercely debated.
Under LADLS Dervish Lodges, used mostly by Sufi orders, are
still closed. Most have been turned into museums where believers cannot meet
for worship, and can visit only by purchasing tickets. Some argue that one of
the greatest obstacles to recognising cemevi (places of worship
of Alevis, who may be around one third of the population) is LADLS,
while other do not see it as an obstacle. This issue will need to be addressed
in the Constitution drafting process.
If LADLS is abolished, many complex issues will immediately
arise. For example: Will the Dervish lodges and shrines be given to whichever
religious communities have a link with them? The properties of the lodges and
shrines were transferred to the Directorate-General of Foundations. This
transfer is likely to be a source of problems if there are attempts to recover
the property. Under the government's recent Restitution Decree, it is
impossible to recover similar property which belonged to Christian community
foundations which no longer exist (seeF18News 6 October 2011
But it is highly unlikely that LADLS will be abolished.
Instead, recognition of cemevi as places of worship may be allowed
through an addition to LADLS, stating that the cemevi will not
be regarded as a "tekke" (place of worship) within the meaning
of LADLS - or indeed through another formula.
But even this will not remove all obstacles to dealing with this one
issue. In legal cases, the state has relied on an opinion of
the Diyanet thatcemevis are not places of worship, as Muslims
worship in mosques – even though the Diyanet has no legal authority
in this matter (seeF18News 2 March 2011
Senol Kilic, of the Association of Liberal Thinking, argued in the
Star newspaper on 14 November that even though the LADLS provision is
problematic for Sunni Sufi movements, it is in practice not applied to them.
But for the Alevis, Bektashi and Nusayri it still
poses a problem as they cannot use the dervish lodges for worship and similar
purposes. LADLS seems to function - for many - as a security "on
paper" against the influence of Islamic religious communities. It should
be remembered that no religious community in Turkey
Constitutional protection of freedom of religion or belief
Article 24 ("Freedom of Religion and Conscience") of the
existing Constitution protects the freedom to have a religion or belief and
freedom to worship, and regulates the teaching of religion. But it does not
explicitly recognise either the right to change one's religion or
belief, or to manifest one's religion or belief "in worship, teaching,
practice and observance" as international human rights standards put it.
So a good step forward would be the incorporation of Article 9 ("Freedom
of thought, conscience and religion") of the European Convention on Human
Rights and Fundamental Freedoms (ECHR) which Turkey
Explicit protection of manifestations of religion may reinforce the
acceptance of normal religious activity that may go unprotected under a narrow
interpretation of the right to "have a religion or belief" and
"worship". Use of religious symbols by individuals in various walks
of life may in this way be given stronger protection. For example, Minister of
Family and Social Policies Ayse Sahin on 4 November stated that
the head scarf problem should be solved through the Constitution.
A broader scope for manifestation may also open the way for the
recognition of the right to conscientious objection to military service.
Currently, Turkey
But on 22 November the ECtHR in Strasbourg found in the case
of Jehovah's Witness conscientious objector Yunus Ercep v.
Turkey (Application 43965/04) that denying the right to conscientious objection
to military service breaks Article 9
Prime Minister Erdogan, however, said on 22 November that
"what is called 'conscientious objection' has never been in our
agenda".
It has been reported in the Turkish media that the draft of a new law
defines conscientious objection as a crime, the punishment for which will be to
do public service for around twice as long as military service. After this, the
"criminal" will be considered to have fulfilled their duty. On 27
November Muslim conscientious
objector Muhammed Serdar Delice was arrested, as War
Resisters International reported the following day.
Permissible Restrictions
The 1982 Constitution contains several clauses that may be used to
restrict manifestations of religion or belief. Article 24 (5) states that
"no one shall be allowed to exploit or abuse religion or religious
feelings or things held sacred by religion", a vague clause that leaves
unclear what is banned. Article 11 ("Supremacy and Binding Force of the
Constitution") states that "laws shall not be in conflict with the
Constitution" - but the lack of clarity of Article 24 makes it difficult
to apply Article 11.
Article 14 ("Prohibition of Abuse of Fundamental Rights and
Freedom") includes a clause stating that: "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". Yet again, this is an unclear
formulation which may be broadly interpreted to unnecessarily restrict rights.
The limitations clause of Article 9 of the ECHR could be
adopted instead. This states that: "Freedom to manifest one's religion or
beliefs shall be subject only to such limitations as are prescribed by law and
are necessary in a democratic society in the interests of public safety, for
the protection of public order, health or morals, or for the protection of the
rights and freedoms of others."
It is important that the new Constitution does not permit restrictions
which exceed those found in Article 9 of the ECHR.
Teaching of Religion
Article 24 ("Freedom of religion and conscience") of the 1982
Constitution states 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". This has led to numerous problems in
exercising freedom of religion or belief, including a judgment against Turkey
Currently, formal teaching of religion is carried out in universities
(Islamic theology) and in Diyanet Koran courses. There is teaching of
religion in places of worship or under the umbrella of associations or
foundations, but these do not provide any formal qualifications. The explicit
recognition of the right to manifest one's religion or belief in teaching may
allow schools that teach religion outside the state establishment to be set up.
This does not imply that the state will not have any regulatory role in this
process, but it does mean that the state must guarantee this right for all and
create the necessary legal and administrative framework.
The Diyanet
Turkish legal experts, religious minorities, and NGOs have all pointed
to the obstacles that the Diyanet – a constitutional public
institution - places in the way of Turkey
Some in Turkey argue that the state should neither interfere in nor
support any religious group or activity, while others argue that the state
should support religious services as a tradition and make financial
contributions to non-Sunni religious groups as well. This relates to how the
Constitution will see relations between the state and religious or belief
groups. Perhaps the best one can hope for at present is both that
theDiyanet may have a more pluralistic structure, and tax exemption for
those who do not want to support or benefit from Diyanet services.
What can be expected from the new Constitution?
With all the possibilities a new Constitution drafting process offers
for the protection of freedom of religion or belief in Turkey Turkey
Mine Yildirim writes for Forum18.
For more background, see Forum 18's Turkey
No comments:
Post a Comment