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Turkey: Constitutional Court Ruling Upholds Headscarf Ban

Religion and Expression Rights Denied, Broader Reform Agenda Endangered

The decision by Turkey’s Constitutional Court to cancel constitutional amendments that would have opened the way for women to wear a headscarf in universities is a blow to freedom of religion and other fundamental rights, Human Rights Watch said today. The court ruled on June 5 that the Turkish parliament had violated the constitutionally enshrined principle of secularism when it passed amendments to lift the headscarf ban on university campuses. The amendments were adopted by an overwhelming majority of parliament.

“This decision means that women who choose to wear a headscarf in Turkey will be forced to choose between their religion and their education,” said Holly Cartner, Europe and Central Asia director at Human Rights Watch. “This is a truly disappointing decision and does not bode well for the reform process.”

In early February 2008, the governing Justice and Development Party (AKP), supported by the opposition Nationalist Action Party (MHP), passed changes to the constitution concerning the principle of equality and the right to education. The headscarf is not specifically mentioned in either of these amendments, but the parliament’s intention was to end its ban in universities.

The Constitutional Court’s decision to annul these amendments will have a dire impact on women university students who wish to wear a headscarf for reasons of conscience and as an expression of their Muslim faith. Human Rights Watch has long supported lifting the current restrictions on headscarves in university on the grounds that the prohibition is an unwarranted infringement on the right to religious practice. Moreover, this restriction of dress, which only applies to women, is discriminatory and violates their right to education, freedom of thought, conscience, religion, and privacy.

In a 2004 report, “Memorandum to the Turkish Government on Human Rights Watch’s Concerns with Regard to Academic Freedom in Higher Education, and Access to Higher Education for Women who Wear the Headscarf ”, Human Rights Watch urged the government to lift the headscarf ban as part of a broader strategy for remedying shortcomings in the protection of women and improving their access to education and employment. A similar approach was suggested by the United Nations Committee on the Elimination of Discrimination against Women.

“The failed attempt by the AKP government to change the constitution on the headscarf issue only highlights its failure to redraft the constitution in its entirety, despite having promised to do so when it was re-elected,” Cartner said. “The 1982 constitution fails to protect human rights and should have been done away with already.”

The current constitution was drawn up in 1982 under the then-military regime brought to power by the September 12, 1980 military coup. This constitution severely restricts the fundamental freedoms and human rights enshrined in Turkey’s international human rights obligations, including limitations on freedom of expression, which have had a particularly negative impact on Turkey’s minorities.

After being re-elected with 47 percent of the vote in the July 2007 general election, the government promised to revise the 1982 Constitution entirely. However, instead of producing a new draft constitution that would address the broad range of rights concerns, the government controversially promoted only the amendments to lift the headscarf ban that prompted the June 5 Constitutional Court decision.

The constitutional changes were drawn up by the government with the support of the opposition MHP on January 29, 2008 and passed by the Turkish Parliament on February 6 and 9. On February 22, President Abdullah Gül approved the changes. In response, the opposition CHP (Republican People’s Party) and the DSP (Democratic Left Party) applied to the Constitutional Court for the annulment of these changes on the grounds that they violated the principle of secularism in Article 2 of the Constitution.

On May 17, Osman Can, the rapporteur appointed by the Constitutional Court, submitted a report to the court advising that the case should be dismissed on the grounds that the court’s authority could not extend to monitoring substantive constitutional changes introduced by a parliament. Osman Can’s report, which had no binding power on the court, focused on the limitations on the court’s powers and argued on the basis of the court’s previous decisions and the 1982 Constitution that its focus should be on monitoring constitutional reforms on a procedural basis.

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