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Lawfare and Wearfare in Turkey
With war on its eastern borders, and renewed turmoil inside them, Turkey is transfixed by something else entirely: the desire of university-age women to wear the Muslim headscarf on campus, a seemingly innocent sartorial choice that has been forbidden by the courts, off and on, since 1980. At public meetings and street demonstrations, in art exhibits, TV ads, and dance and music performances, headscarf opponents argue vociferously that removing the ban will be the first step backward to the musty old days of the Ottoman Empire. A quieter majority of 70 percent, according to a recent poll, thinks that pious students should be allowed to cover their heads, perhaps because approximately 64 percent of Turkish women do so in daily life. There is almost no middle ground between the two poles: Even completely apolitical Turks have gravitated one way or another.
Headscarf opponents see themselves as following in the footsteps of founding father Mustafa Kemal Atatürk, who launched an ambitious program, beginning in the 1920s, to remake the heartland of the longest-lasting Islamic empire into a modern, Westernized nation-state. In the Kemalist camp are the majority of the officers in Turkey’s powerful army, as well as high court judges, opposition party leaders in Parliament, secular women’s organizations, business associations, many university presidents and professors, and the bulk of the mainstream media. They will stop at little to prevent what they perceive as the downfall of secular Turkey.
Proponents of lifting the ban also claim the mantle of history. In July 2007 elections, the Justice and Development Party (or AKP), made up of politicians with roots in a series of outlawed Islamist parties, retained its healthy parliamentary majority in one of the most decisive victories in the history of the Turkish multi-party system. The landslide came despite the disappointment felt by the AKP’s core constituency, the devout middle class, in the party’s failure to lift the headscarf ban at universities during its first term in office. To the surprise and perhaps the dismay of the secular opposition, Prime Minister Recep Tayyip Erdoğan carefully avoided the headscarf issue from 2002-2007, so as not to be seen as defying the will of the outspoken generals. Now that the Turkish public has endorsed its rule, and implicitly rebuked the army, the AKP feels justified in pleasing its electoral base.
The proscription of the headscarf is not black-letter law, but rather the Constitutional Court’s interpretation of the provisions for secularism and equality in the Turkish constitution. To lift the ban, Turkish politicians have tried multiple times to pass more specific laws or to amend the constitution, as the AKP succeeded in doing on February 9. Opponents of the headscarf have long relied on the courts to block such efforts. This time around, both sides have waged such “lawfare” with unprecedented vigor, bombarding not just the Constitutional Court, but also a host of lower courts, with claims and counter-claims. The chief prosecutor of Turkey, a staunch Kemalist, drastically upped the ante by asking the Constitutional Court to consider the extreme measures of closing down the AKP and banning Prime Minister Erdoğan and his top 69 colleagues, including President Abdullah Gül, from politics. On March 31, the judges agreed to hear the case, raising the prospect of a second “postmodern” coup in Turkey. Unlike the first of these in 1997, this coup would take place without the army’s direct involvement and would depose a party that, not even one year ago, was reelected by a significant margin.
The lawfare over the headscarf commenced promptly after the July 2007 elections, when the AKP set about trying to fulfill its campaign promise to prepare a “civilian constitution.” Such a document was long overdue: The constitution promulgated by the military after toppling a democratically elected government in 1982 contains so many limitations on human rights that it is a major stumbling block to the initiation of membership talks with the European Union. EU membership, until recently, was the ultimate prize for Turkey’s political class, and was once seen as the logical end of the Kemalist project. Since taking control of Parliament in 2002, ironically, the AKP has made greater strides toward meeting the EU’s “Copenhagen criteria” for accession talks than any of its secular predecessors.
As soon as the AKP’s chosen constitutional law scholars submitted a draft of a “civilian constitution,” furious criticism erupted. Critics objected not only to the provision for a free dress code applicable to university students, but also to new formulations of the concepts of secularism, freedom of religion and religious education. Paradoxically, the working document was moderately liberal in content, following closely the principles of the European Convention on Human Rights, to which Turkey has been a party since 1954.
The Kemalist opposition, such as the Republican People’s Party (CHP), played on the fears of many Turks that the government’s real goal is to eliminate, or at least enervate, the strict secularism established by Atatürk. In the words of columnist Mustafa Akyol, “The suspicion ranges from extravagant conspiracy theories about the ‘hidden Taliban-like face of the AKP’ or ‘the gradual Islamization of our daily lives’ to more reasonable concerns about the rise of moral conservatism in public life.”  The AKP, for its part, tried to convince the opposition, and, more importantly, the military, that their true intention was to make secularism stronger than before. There was no reason, they said, to touch that “non-derogable” principle of the constitution. In practice, state secularism has served to keep religious affairs under official control, allowing Turkish governments since the foundation of the state to promote a particular version of Sunni Islam (the Hanafi legal school) at the expense of other religious traditions. Why would the (Sunni) AKP weaken its prerogative just for the sake of headscarves?
Surprisingly, given the salience of other elements of the reform package, the headscarf controversy brought the whole “civilian constitution” undertaking to a standstill. Any draft constitution would have required extensive discussion to gain the backing of the widest possible array of social and political forces, but public debate was preempted. Among the long anticipated reforms that were not discussed and are now on indefinite hold are those concerning comprehensive cultural rights for Kurdish citizens and a more robust concept of freedom of speech. Important shortcomings of the draft document, like its vagueness about legislative checks on executive power, the role of the judiciary and academic freedom, also got short shrift. Even more importantly, such items as the “right to a live in a healthy, balanced environment” (Article 56 of the present charter) had disappeared from the draft revision in deference to free-market economics. All of this went barely noted thanks to secularists’ obsession with covered female heads.
Key AKP constituents -- in particular, students who want to wear the headscarf and their families -- let the party hear their disgruntlement with the deadlock. The startling result was that the AKP took up an offer from the far-right Nationalist Action Party (MHP) to find an ad hoc solution to “the headscarf problem.” It was an unlikely alliance, to say the least. The MHP is implacably opposed to Turkey’s European aspirations and routinely blasted the AKP’s efforts from 2002-2007 to bring the country’s legal and political system into line with the Copenhagen criteria. MHP activists organized many an angry demonstration against the government’s tentative overtures toward Kurdish rights and softening of the traditional Turkish hard line on Cyprus, among other issues. But together, the two parties command a super-majority in Parliament, and amidst the clamor from the AKP faithful over the headscarf, the right-wing nationalists’ olive branch was too tempting to spurn. Rumor has it that this offer traded MHP backing for lifting the headscarf ban for the government’s agreement to postpone or even forego other important human rights reforms. It is perhaps no accident, for instance, that the AKP’s promise to get rid of the notorious Article 301 of the penal code, which allows citizens to be prosecuted for “insulting Turkishness,” has vanished from the party’s agenda.
On February 9, by an overwhelming margin, the AKP-MHP coalition passed amendments to two constitutional articles, Article 10 concerning equality and Article 42 concerning the right to education. The wording in Article 42 is as follows: “Except as otherwise stated in the laws of the Republic, no one can be prevented from pursuing the right to university education. The limit to the ways in which this right is pursued is specified by law.” It was a quick fix that satisfied no one: For headscarf-wearing women, it was too narrowly worded, while for secularists, it was too broad. Far from being resolved, the battle was rejoined.
A few university administrators heeded the decree implementing the amendment from Yusuf Ziya Özcan, the AKP-appointed president of the Higher Education Council, and allowed headscarf-wearing students on campus. Most refused, however, expecting that a judge would soon strike the amendment down, as has happened to numerous similar laws since the 1980s. The Kemalist CHP, unwilling to acquiesce in the 411-103 vote for the amendment, took their case to the Constitutional Court.
The chief prosecutor’s 162-page complaint against the AKP reveals how far interpretations of secularism and the principle of “rule of law” can stray from accepted meanings in Turkey’s present political climate. Among the actions and statements of Erdoğan and Gül deemed contrary to the secular order, and so, criminal: employing headscarved doctors in public hospitals, allowing a local administrator to say, “May God have mercy on the souls of our colleagues who have passed away,” promoting the Universal Declaration of Human Rights, declaring that the headscarf ban is against international human rights standards, respecting all religions equally and advocating freedom of religion for all. Erdoğan was also scored for complaining that his two daughters cannot attend universities in Turkey.
The headscarf controversy dates back to 1980, following the Islamic Revolution in Iran. Since that time, Turkish women, particularly the pious among them, have been caught in the middle as Turkish governments and judicial institutions have swung in favor of and against the headscarf with the political winds.
On the dark day of September 12, 1980, the Turkish army staged its third coup, with the aim of smashing the campus left, limiting civil rights and establishing a military-dominated constitutional order. As elsewhere in the Cold War-era Middle East, the communist left was then considered a much greater threat to the state than Islamist students, especially women. Universities were thus quite relaxed about the headscarf. In this period, indeed, İhsan Doğramacı, first president of the Higher Education Council founded to purge campuses of leftist ideology, added the word “turban” to Turks’ political vocabulary. Turban was a foreign word, used to designate the trendy headgear on the catwalks of contemporary France. Doğramacı called the Muslim headscarf a “turban” to indicate that it was a voluntary means of covering a woman’s hair, a fashion statement, and not a religious duty or a political symbol. 
In the second half of the 1980s, with the headscarf increasingly in evidence at universities, there was deepening uncertainty about its status. It was not socially accepted, but neither was it legally banned. There were several attempts to enshrine the right to wear the headscarf in law. In 1989, however, the notoriously Kemalist Constitutional Court annulled the decade’s last such legal provision. The judges argued in their decision that secularism has a unique history in Turkey and that a secular state cannot introduce legal measures that take religious convictions into account.  The reasoning was more political than legal. The Court also wrote of the need to protect students who do not wear the headscarf from social pressure. In 1990, still another law was passed stating that “dress is not subject to any prohibition in higher education, provided that it is not forbidden by law.” Again an appeal was made to the Constitutional Court. This time, instead of ruling the law unconstitutional, the Court simply refused to take the case, opining that freedom of dress did not include wearing a headscarf. This sort of “interpretative refusal” has not normally been recognized in the Turkish constitutional system.
In the 1990s, more and more young women were showing up for classes wearing the headscarf. It was an index of the growing clout of religion-friendly parties, and it made the Kemalist establishment nervous. In February 1997, the military carried out its “post-modern” or “e-coup” against the Islamist Welfare Party, warning in a communiqué that Deputy Prime Minister Necmettin Erbakan’s statements were threatening to secularism. The communiqué makes clear the headscarf connection: “Clothing practices that have emerged against the law and will direct Turkey to an outdated appearance must be prevented.” Erbakan’s cabinet stepped down.
Amidst the hostility toward Islamism, in 1998 the Constitutional Court abolished the Welfare Party entirely. In this ruling, the unconstitutionality of the “turban” was affirmed, though there was no specific law against it, and Welfare’s support of the freedom to wear it was adduced as a reason to outlaw the party.  Days after publication of the Court’s decision, a retired general staff colonel gave a briefing to judges and presidents of universities, suggesting that the headscarf should be formally banned. Soon, the committee of university presidents issued a declaration titled, “The Relevant Legislation on Clothing in Higher Education Institutions and Legal Appraisals,” which applied a ban on headscarves across the board. Protesting the lack of an actual law, students applied to administrative courts for relief, and met with some success. The judges who concluded that the headscarf ban is against the law were disciplined, however, and stripped of their pending cases. At the end, these judges became “convinced” that the headscarf ban was correct after all. 
During the last decade, while the number of headscarf-wearing university students continued to increase, the ambiguity of the law literally left the question of whether to admit these women to campus to the individual discretion of university administrators. Some were less tolerant than others, leading to what might be dubbed “wearfare.” “Persuasion rooms,” wherein students were enjoined to shed their headscarves if they wanted to attend class, appeared at the gates of several institutions. Some women agreed, while others creatively replaced or disguised their headscarves with wigs or hats.
Meanwhile, the sides in the legal struggle dug in. For the Kemalists, the ban rests on the solid ground of the decisions of the Constitutional Court. According to them, the headscarf is not a matter of personal freedoms, but rather one of disallowing symbols of political Islam. The headscarf advocates claim that the freedom to wear it is connected to freedom of religion. Since that principle is protected in the Turkish constitution, the 1989 decision of the Constitutional Court cannot contravene it. Moreover, they challenge that decision, which went unenforced until 1998, as the illegitimate issue of an extralegal military intervention in Turkish affairs. Others argue that there is no legal ground for such a ban, given that many practicing Muslim women consider wearing the headscarf to be a religious necessity.
In 1999, the Turkish judicial system again resorted to highly dubious reasoning to settle a headscarf confrontation in the Turkish parliament. Newly elected Merve Kavakçı, of the Virtue Party that had arisen from the ashes of Welfare, petitioned to assume her seat with her head covered. Her fellow parliamentarians accused her of a political attack on secularism and Turkish democracy. The Constitutional Court dissolved the Virtue Party, on the grounds of anti-secular activities, among them tolerance of the headscarf, and Kavakçı lost her Turkish citizenship. Subsequently, public institutions were much more strictly policed for the headscarf, as more than 100,000 students, over 1,000 civil servants and more than 300 primary and secondary school teachers were forced to leave their positions. The minister of education declared: “[Wearing the headscarf] is a crime, and the punishment is dismissal from the civil service. Everybody must comply with this rule. If they don’t, they have no place among us.”  Thousands of university students again filed suit against the ban. Some of the applications were settled in favor of the students in lower courts, only to be turned down on appeal.
Concurrently, the headscarf dispute was playing out in Europe. In the 1990s, the European Human Rights Commission (now the European Court of Human Rights) agreed to be tribunal of last resort for the member countries’ domestic courts. (In 1987, when Turkey formally applied for EU membership, it accepted the principle that Turkish citizens could file complaints against the state in Europe; two years later, Turkey recognized the jurisdiction of the European Court of Human Rights.) As early as 1993, when a Turkish university refused to award diplomas to headscarf-wearing female students, the Commission declined to hear the students’ appeal, on the Turkish Constitutional Court’s own grounds that the secular state has the right to restrict religious practices consistent with citizens’ rights to equal treatment and religious freedom.  The Turkish educational establishment happily cited this decision as European validation of the ban.
The 1993 decision, questionable as it was in human rights terms, was consistent with a later ruling on the abolition of the Welfare Party. Turkey is the world champion of political party banning -- no fewer than 24, communist, socialist, Kurdish and Islamist, have been shuttered since 1963. One by one, the parties sued in the European Court of Human Rights. In every case, except that of Welfare, the court ruled that Turkey had to pay compensation to the party, emphasizing the importance of protecting political rights, freedom of association and freedom of expression. Upon the negative judgment for Welfare, the Virtue Party withdrew its own case. As a result of this decision, a swath of Turkish public opinion is convinced that that the European Court of Human Rights is biased against Islamic values, and that it has acted politically, not legally.
When the Commission became the Court, headscarf ban victims again sought relief (including the wife of current President Abdullah Gül, though she withdrew her petition when her husband became foreign minister in 2002). In its first, and most recent, decision, the Court ruled in 2005 that medical school student Leyla Şahin’s education could indeed be obstructed in Turkish universities because she wears the headscarf. The decision came as a surprise to many liberal legal scholars and human rights organizations in Turkey, Europe and the United States. The Court’s basic argument was that the headscarf ban is not necessarily against freedom of religion and could be justified on grounds of “protecting the rights and freedoms of others and maintaining public order.” Legally speaking, the decision conflicts with the Court’s mandate to redress individual injustices as laid out in the European Convention on Human Rights. The decision suggests a double standard, particularly since the Court raised the specter of Islamic extremism, when there was absolutely no evidence that Leyla Şahin was part of any political movement, and since the Court accepted the claim that she wears the headscarf because of religious belief. The Court even disclosed a value judgment about Turkish democracy, that it is “fragile.”
Secular Turks of the old Kemalist persuasion hailed the Şahin decision, and again called for curtailment of discussion of the headscarf ban, there being no higher legal authority than the European Court of Human Rights. In 2008, when the AKP signaled its desire to overturn the ban through legislation, Kemalists drew upon the European Court’s prestige to make a baroque legal argument: “The headscarf ban rests on the decision of supreme courts, and as a judicial decision, it can only be changed through another judicial decision. The decisions cannot be altered by a new legal provision by the AKP government.”
Covered by the Headscarf
By the time the AKP acceded to power in 2002, the very terminology of the headscarf debate had become inverted. No longer harmless, the word “turban” became a buzzword signifying the threat of political Islam, and secularists deployed it to cast aspersions. As in France, where opponents of headscarves in schools use the Arabic word hijab rather than the French foulard, secularists use “turban” to emphasize the foreignness and radical “otherness” of the practice. The preference of the practice’s defenders for the Turkish word başörtüsü is also ideological.
The AKP’s second electoral sweep in 2007 raised the stakes of the debate considerably. Under Turkish law, the majority party in Parliament has the right to nominate the president of the republic, and the AKP put forward the name of former Foreign Minister Gül. Secular Turks bluntly proclaimed that while they can accept the headscarves of their pious grandmothers, or those of maids from rural Anatolia, the prospect of a first lady wearing a headscarf was too much to bear. Here, urban secular elites, or “white Turks” as they are sometimes known, hinted that they fear losing power to the emerging Anatolian elite and middle class as much as they fear Islamization. For the first time in modern Turkish history, devout, socially conservative Turks are staking a claim to be equal participants in politics, the economy and society.
As the controversy grew more bitter, secular media outlets run by the Doğan family began publishing the illustrated life stories of the headscarf-wearing wives of AKP ministers and high-level civil servants. Such, the coverage implied, would be the permanent fate of Turkish women if the headscarf ban were not maintained. And not only that: Turkey would become an Islamic state. The conspiracy theories about Islamization, oddly enough, are fueled by strong anti-American sentiment. In such theories, the AKP government plays the role of the “moderate Islam” needed to cloak the imperial ambitions of such projects as the Bush administration’s failed Greater Middle East Initiative. Columnists regularly found American “religion-friendly” secularism wanting in comparison with the state secularism of France and, of course, Atatürk.
More legitimate concerns focused on the rights of gender equality achieved under Atatürk and subsequently. Yet the headscarf is skillfully used to cover up the real social and economic problems of Turkish women. In a recent international study on the status of women in countries around the world, Turkey ranked an embarrassing 105 out of 115.  To improve that figure, it is imperative that rural women have better access to education and that all women have better access to the workplace. But neither the secular media nor many feminist organizations are as interested in these problems as they are in the “neighborhood pressure” that secular women may feel from the headscarved majority if the ban is lifted on campus.
The frenzy over pieces of fabric has also distracted the secular media from the ongoing Turkish raids upon Kurdish guerrillas in northern Iraq, renewed tensions in majority-Kurdish southeastern Turkey and the capture of an ultra-nationalist gang deemed responsible for several assassinations, including that of Armenian-Turkish journalist Hrant Dink in 2007. The gang, which calls itself Ergenekon, is run by retired army generals and prominent lawyers and is alleged to have plotted the extra-judicial murders of Kurdish dissidents at the height of the Kurdistan Workers’ Party insurgency in the early 1990s. The capture of Ergenekon was the most important proof in years of the existence of a “deep state,” a nexus of elites and far-right nationalists willing to kill to preserve its dated and purblind vision of what Turkey should be.
Most of all, the political struggle over the headscarf has overshadowed the fact that two generations of Turkish women have been stymied in their educational and professional pursuits -- simply because they choose to cover their heads. From university administrations and government offices, these young women have heard the same message about their life prospects: Go back home and bear children. The first women to be expelled from universities are now grandmothers. Headscarved women are barred from holding public office. Headscarved lawyers are not allowed to represent their clients in court, and have difficulty entering court buildings. Defendants have been asked to remove their headscarves before they testify.  Women wearing the headscarf were even prosecuted for participating in a workshop on strengthening the penal code’s provisions against discrimination, because it was held in ministerial offices. 
The headscarf ban, lacking a legal rationale, is based in Kemalist conceptions of “public space,” but of course it bleeds into the private sector as well. Women wearing the headscarf face discrimination on the job market, both in finding employment and in wages. A few brave “independent intellectuals” with means, after encountering the hostility of secular feminists, have established their own organizations to study and publicize the problems of headscarved women and advocate for their constitutional rights. But this civil society movement willing remains weak in the face of a judicial establishment long known as dogmatically secular. On a few occasions, judges have been fired, demoted or exiled to far-off districts for deciding in favor of headscarf rights, or even prosecuted themselves because their wives were wearing the headscarf.  These incidents raise serious questions about the independence of the Turkish justice system.
Because the headscarf ban is applied inconsistently, it is hard to document, or even estimate, the numbers of women who have been discriminated against. There are no reliable statistics on how many girls have been expelled from universities, because university administrations do not necessarily record the real rationale for expulsion. Indeed, 90 percent of female students who were not permitted to attend classes after the ban were kicked out under the guise of absenteeism.  But one scholar believes that 270,000 of the 677,000 students ejected from higher education institutions since June 2000 are victims of the ban.  There are reports that the number of fired female teachers is approximately 5,000.  Bearing in mind that the informal ban goes back to the 1980s, it seems reasonable to conclude that the number of women who have been deprived of their rights to work and get an education reaches into the hundreds of thousands. The extent of the economic, social and, more importantly, emotional impact of the ban on women and their families, generation after generation, will likely remain unknown.
As the political crisis over the headscarf continues to unfold, it is disturbing that the AKP seems to be searching quietly for ways to neuter their Kemalist opponents, as their precursor parties did before being closed down one after another. The right-wing nationalist MHP seems to play a key role in such parliamentary mathematics, and the AKP may conclude it has no choice but to accept what the MHP offers to survive. A reprise of the “Turco-Islamic synthesis,” the right-wing and particularistic ideology behind the 1980 coup, is one nightmarish scenario. There is a much better way: for liberals to overcome their prejudices, resist the pull of Kemalist fearmongering and stand up for the rights of everyone, even those not like them, in a genuinely free and liberal Turkey. For the obduracy of the Kemalist establishment over the headscarf has not only undermined the prospects for a “civilian constitution,” but has also come to threaten the future of the democratically elected AKP government, and indeed, the future of Turkish democracy.
 Mustafa Akyol, “Islamization of Turkey: Not What You Would Think,” Turkish Daily News, March 15, 2008.
 On July 22, 1981, however, the military enacted a law on the attire of students at elementary and high schools mandating that female students’ heads be uncovered. A subsequent regulation dated July 16, 1982 specified that female civil servants’ heads must be bare, in keeping with several other restrictions on the personal appearance of women and men alike, from hairstyles to the length of nails and skirts, from mustaches to the model of shoes. These regulations are still in force, but are not generally observed. Mustafa Şentop, “The Headscarf Ban: A Quest for Solutions,” SETA Foundation Policy Brief 8 (March 2008).
 E.1989/I, K.1989/12, T.7.3.1989, JCC 1991 at p. 25.
 E.1997/I, K.1998/I, T.1.16.1998, JCC 1999 at p. 31.
 Şentop, p. 3.
 Turkish Daily News, February 11, 2000.
 European Human Rights Commission, Admissibility Decision on Application 18783/91, Lamia Karabulut and Şenay Karaduman v. Turkish Government, May 3, 1993. According to the decision of the Commission: “A student who chooses to attend a secular university should accept the regulations of the university. These regulations provide a system to allow for students of different beliefs to coexist. Particularly in countries where the vast majority of the population belongs to a particular religion, exhibition of the rituals and symbols of this religion without regard to any restrictions of place and form can cause a pressure on students who do not practice this religion or, instead, belong to other religions.” The Commission’s logic is strange, to say the least, considering that pursuant to Article 42 of the Turkish constitution there are no religious universities for students to choose in Turkey. As for social pressure from the “exhibition of the rituals and symbols” of religion, in Turkey, the opposite has long been the case.
 World Economic Forum, The Global Gender Gap 2006, cited in European Stability Initiative, Sex and Power in Turkey: Feminism, Islam and the Maturing of Turkish Democracy (Berlin/Istanbul, June 2, 2007), p. 1.
 Yeni Şafak, November 7, 2003.
 Ministry of Justice circulars 152, T.3.10.2000, 149. For cases where judges lost their jobs for granting visas to headscarf-wearing women, see Vakit, October 20, 1999.
 Ali Bulaç, “AIHM ve Başörtüsü,” Umran Dergisi 129 (May 2005), p. 33.
 Fatma Benli, “Assessment of Women’s Condition in Turkey,” prepared for the Organization for Women’s Rights of Non-Discrimination (AKDER), Istanbul, 2007.
 Zaman, October 1, 2004.