Hijab ban is back in Turkey 

Top court overrules legislative power  

With a vote of nine to two, Turkey's top court decided yesterday to annul constitutional amendments that would allow women to wear the Muslim headscarf at Turkish universities.

The amendments were adopted in Parliament in February with overwhelming support from 411 deputies, 80 percent of the legislature. Analysts argue the decision to overthrow the changes will inflame already tense discussions on whether the Constitutional Court overstepped its authority by striking down a popular legislative act and in effect turning itself into a lawmaker.

Top leaders of the ruling Justice and Development Party (AK Party) reacted strongly to the court's decision. The deputy head of the AK Party parliamentary group, Bekir Bozdağ, slammed the ruling, saying the top court had violated the Constitution and overstepped its legitimate authority. "The court overstepped the limits set out in Article 148 of the Constitution and violated the constitutional principle that no state institution can use powers not derived from the Constitution," Bozdağ told reporters.

He said the Constitutional Court acted as if it were Parliament and, by restricting Parliament's authority, undermined the principles of democracy and national sovereignty. "This decision means any parliamentary activity concerning constitutional changes will be subject to review by the Constitutional Court ," he said.

Constitutional law expert Dr. Mustafa ?entop said the court had undermined its own legitimacy. "As of today, the top court became the most important legal problem in this country," he added. He pointed out that there is no authority to check the court's judicial activism, saying, "The legislature can regard the decision as nonexistent and keep the amendment in effect." He argued that, according to Article 148 of the Constitution, the court has no jurisdiction to overrule the amendment.

Another law professor, Serap Yazıcı, said, "It was not a legal decision but a political one." Speaking to CNN Türk, she explained that there are three articles in the Constitution that, according to the Constitution itself, cannot be changed. However, she said, the court is extending this principle of inalterability to the entire Constitution, which, she argued, will lead to "very bizarre cases."

On the other hand, Deniz Baykal, the leader of the main opposition Republican People's Party (CHP), which had originally appealed the amendments to the court, said, "This will have important legal and political repercussions." CHP Deputy Chairman Onur Öymen said the party was "pleased" with the court's decision.

Faruk Bal, deputy chairman of the Nationalist Movement Party (MHP), which had supported the amendment along with the AK Party, said the party did not agree with the verdict, but that "everybody should respect the court's decision."

The decision did not come as a surprise to many. In the past the court has overruled any attempts to allow women to wear the headscarf in institutions of higher learning. In 1989, the court annulled similar legislation aimed at lifting the ban. This was the first time; however, such an amendment had gained tremendous support from Parliament. In a short statement released by the court, it said it was upholding the appeal by the opposition party. The court found the constitutional changes in conflict with Articles 2, 4, and 148 of the Constitution.

The court decided the amendment would be null and void, claiming that the legislature had overstepped its authority by violating unchangeable laws of the Constitution, most importantly Article 2, describing the characteristics of the republic, including secularism. Therefore, the ban on the headscarf will stay in effect and a closure case against AK Party has been strengthened. The controversy is far from over though, many argue, pointing to discussions focusing on the country's democratic track record.

Constitutional Court Rapporteur Osman Can had recommended last month that the case be thrown out, arguing that while the tribunal had the right to examine whether the passage of a constitutional amendment was procedurally flawed, it could not pass judgment on its substance. The report was non-binding on the court members. The decision to annul the amendment is likely to spark another round of controversy about judicial activism.

According to Article 148 of the 1982 Constitution, unlike laws, the top court has no authority to review constitutional amendments on substantive grounds, but may review on procedural grounds only. It states that the Constitutional Court shall examine constitutionality "in respect of both form and substance of laws, law-amending ordinances and the standing orders of the Turkish Parliament." The Constitutional Court also has the authority to review whether procedural rules concerning constitutional amendments are observed.

Can argued in his 100-page report that a constitutional amendment could only be annulled in the event of a "severe breach of the law." He wrote: "We can talk about a severe breach of the law if there is an amendment that occurs in the articles of the Constitution that cannot be amended or even proposed to be amended [the first three articles]. In the headscarf case, Articles 10 and 42 of the Constitution had been amended, so we cannot speak of a severe breach of the law."

The Constitutional Court took up the case after the opposition Republican People's Party (CHP) and Democratic Left Party (DSP) challenged the amendment on the grounds it violated the provisions of the Constitution. The AK Party and the Nationalist Movement Party (MHP) defended the amendment, saying it ensured the basic individual right of freedom for women to equal educational opportunity.

Parliament approved the amendment on Feb. 9, and President Abdullah Gül ratified the legislation on Feb. 22. The law amended Articles 10 (equality before the law) and 42 (right to education) of the Constitution. The CHP and DSP appealed to the Constitutional Court on Feb. 27, and in March the court agreed to hear the case.

Many had predicted that the court would rule to annul the amendment, in part because eight members of the 11-judge tribunal were appointed by former President Ahmed Necdet Sezer, a staunch secularist. The votes of only seven of the judges were needed to annul the amendment.

By scrapping the amendment, the court has sent a strong signal that it might also decide against the ruling AK Party when it rules later this year on whether the party should be banned. The indictment filed against the party is full of references to the headscarf issue, cited as evidence of the AK Party's anti-secular leanings. The AK Party, however, rejects the charges and says the case is politically motivated.

Many commentators describe the court challenge as judicial activism, and some even portray it as a coup attempt against a democratically elected government. They claim a staunchly secular establishment, stung by its defeat in general elections, is attempting to overthrow the government. If the case goes forward, they say, it threatens to erase years of progress toward modernization and greater engagement with the West in a country that stands almost alone in its embrace of both democracy and its Muslim heritage.

The AK Party has the most pro-European Union stance of Turkey 's political parties and has made moves to pass democratic reform packages in Parliament to bring Turkish legislation in line with European norms. The AK Party, along with the opposition MHP, defends the right to wear headscarves at universities as a matter of religious and personal freedom and says some two-thirds of Turkish women cover their heads. Polls conducted over the past few years have consistently suggested the majority of the public wants the headscarf ban lifted.

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