Headscarf or Humanity?

by Sarah Braasch

A few months ago, I visited Addis Ababa, the capital of Ethiopia, to participate in my law school’s human rights clinic. We were studying Ethiopia’s legal and political systems. We were lucky enough to have a chance to speak with the senior legal adviser to the Prime Minister. He also had a hand in drafting Ethiopia’s latest Constitution. He was charming, disarming even. I was rather mesmerized by his eloquence. Then, he told us something chilling, something I’ll never forget. He told us that tyranny is inevitable and unavoidable. Society may only choose either tyranny of the majority or tyranny of the elite few. This was a gentleman responsible, in part, for crafting a document which governs the lives of some 70 million people. Needless to say, I was more than a little disturbed. We were discussing constitutional interpretation and its impact on human rights. The implication was that a society may choose to assign this task to an elected political body, perhaps a parliament (tyranny of the majority), or the judiciary, and, perhaps, some sort of constitutional court (tyranny of the elite few). Ethiopia, for its part, had chosen tyranny of the majority, at least ostensibly. Turkey, it would seem, is in the throes of making its choice.

I am fascinated with Turkey. I’ve never visited, but I am eager to. I can’t get enough of all the media coverage over the constitutional amendments to lift the headscarf ban in universities and the subsequent Constitutional Court case, which threatens to disband the ruling Islamic-oriented party. Now, former military officers are being arrested and accused of staging a plot to overthrow the government. Not to mention the brouhaha over the latest presidential elections. Turkey is the epicenter of everything I am studying in law school: international human rights law, EU enlargement and its neighbors, and women’s rights in Muslim societies. But, I couldn’t understand how a woman’s decision to wear or not wear a headscarf (hijab) could have precipitated such tumult. I did become familiar with the exploitation of women’s rights as a political tool to either subvert or enhance an Islamist agenda while I spent last summer in Morocco, working for a human rights organization.

It seemed to me that there had to be more to the story than had been explored in the media, which is almost entirely enthralled with headscarves to the exclusion of all other concerns. I chose to take a European Human Rights Law course last semester, and I wrote an academic paper on the subject of Turkey’s accession to the EU and its impact on women’s rights legislation.

While Turkey has been recognized as a candidate for full EU membership, and accession negotiations are underway, reasonable estimations predict a full ten or fifteen years before Turkey will have met all accession negotiations agreement criteria. Only then will Turkey be able to join the EU.

I’ve read just about everything I could get my hands on. While I claim no degree of expertise on the subject of Turkish law or politics, and I offer only my personal perspective, I am shocked by the lack of depth in the world-wide media coverage, especially as pertains to the impact of the current crisis on women’s rights. My individual research has changed the way I think about democracy, Islam, women’s rights, and cultural relativism.

The modern, democratic state of Turkey was established by Ataturk in the 1920s, after the fall of the Ottoman Empire. Ataturk, the “Father of the Turks,” embarked on a brazen campaign of secularization. The Turkish military played a key role in Turkish politics throughout the 20th century and sees itself as the guardian of Ataturk’s secular ideals. It staged intermittent coups whenever it felt that those constitutional ideals were threatened by whichever ruling political party.

The Turkish judiciary, and, in particular, the Constitutional Court, is also a potent force in monitoring the constitutionality of the political parties’ activities. The current 1982 Constitution was drafted by the military following a coup. It includes provisions for the separation of religion and state, which may never be amended; however, other constitutional provisions may be amended by either public referendum or a two-thirds majority in the unicameral Parliament. The Constitutional Court may also weigh in on the constitutionality of such amendments, but only as concerns procedure, not substance. Nonetheless, the Constitutional Court views adherence to the secular ideals of the Constitution as a procedural issue. Given these restraints, the current Islamic-oriented ruling party, the AKP, along with Prime Minister Erdogan, have proposed a new civil Constitution, which will marginalize both the military and the judiciary. Erdogan and the AKP claim democratization amidst the EU accession process as a motivating factor in advocating for a revised civil Constitution, as well as in advocating for limiting the political power of both the military and the judiciary.

The AKP is being prosecuted in the Constitutional Court for violating the Turkish Constitution’s secular principles. The AKP and Erdogan are accused of attempting to surreptitiously install an Islamic regime in Turkey and of endeavoring to impose Sharia (Islamic law) on Turkish citizens. Turkish citizens are overwhelmingly Sunni Muslim, and they voted in huge numbers to elect the AKP to power. The AKP claims a majoritarian democratic mandate and views both the military and the judiciary as undemocratic, elitist institutions, which are denying the popular will of the Turkish people. The military and the judiciary see themselves as protecting the secular Turkish state as embodied in the Turkish Constitution, without which secularism and democracy are not possible, and Turkey would succumb to the Islamists.

How do headscarves figure into this equation? Headscarves have been banned for many years in Turkey’s universities. Headscarves are viewed as symbols of political Islam and Sharia (Islamic law). Women who don the headscarf, and refuse to remove it in public, are denied a university education. The fear in allowing headscarves on university campuses is that more and more women will be coerced or pressured, if not actually forced, to wear the headscarf. It is seen as yet another insidious attempt by the Islamists to impose Sharia on Turkish citizens, bit by bit.

The AKP argues that the headscarf ban is a denial of freedom of expression and religious liberty. The AKP claims that, in implementing constitutional amendments to lift the headscarf ban, it is attempting to advance democratization in Turkey, in accord with the EU accession negotiation agreement.

The legal status of Turkish women has improved considerably since Turkey was recognized as a candidate for EU membership in 1999. Unfortunately, reforms to both Turkey’s civil and criminal codes have done little to effect real change in the lives of millions of Turkish women, especially outside of Turkey’s urban centers. The specter of Sharia looms large in the lives of Turkish women, including rampant domestic violence, virginity tests, honor killings, and widespread forced, polygamous, and child marriages. Additionally, women have little access to employment, property, or politics. The focus of EU criticism of Turkey’s reforms is on civil and political rights, including freedom of expression. Women’s rights receive short shrift in an atmosphere of cultural relativism behind a veil of religious liberty.

The AKP has become savvy to the sensibilities of the EU and the West. Prime Minister Erdogan stumbled in 2004 when he attempted to recriminalize adultery in the midst of Turkey’s criminal code reform process. He was forced to abandon his goal of re-criminalizing female sexuality under EU pressure, which he subsequently decried. He said that the EU had no right to interfere in the religious and cultural affairs of Turkey. Since that aborted attempt to infiltrate Turkey’s criminal code with Sharia, the AKP and Erdogan have learned to couch their Sharia-based principles in the language of democratization, freedom of expression, and religious liberty.

Not only is the AKP’s proposed civil Constitution meant to marginalize both Turkey’s military and judiciary, paving the way for an Islamic theocracy via majoritarian democracy, it also purports to strip Turkish women of their humanity. The AKP’s proposed Constitution eliminates the prohibition on gender discrimination. But, more than that, it denies women equal protection under the law. It relegates women to an infantile status, requiring the protection of men, along with children, the elderly, and the disabled. Women’s rights groups in Turkey have denounced the new Constitution. The AKP knew that they couldn’t muster the political might in Parliament to implement the new civil Constitution, so they settled for the constitutional amendments to lift the headscarf ban. They engaged the support of the leading opposition party by framing the measures as supportive of religious liberty and freedom of expression. And, for the same reasons, the EU and the West have been largely supportive as well.

I am appalled by what I see as a lack of concern over the constitutionalization of the infantilization of some 40 million Turkish women. Where is the international outcry over the prospect of millions of Turkish women being stripped of their humanity? Are we so obsessed with the feminized and sexualized trappings of Islam that we can’t bother with the far more serious concerns of women being stripped of their constitutional and legal protections, of women being murdered, raped and abused with impunity? Are we so mesmerized by headscarves that we are blinded to the fact that the only thing standing between approximately 40 million Turkish women and Sharia is the diminishing threat of a military coup and a beleaguered but stalwart judiciary?

The AKP, Erdogan and his cronies have given us strong indications of how they would choose to “protect” women under their new civil Constitution. The following quotes are readily accessible on the website of one of the leading women’s rights groups in Turkey, Women for Women’s Human Rights, at www.wwhr.org. When women marched in front of Parliament to protest Erdogan’s endeavor to recriminalize adultery, they chanted, “Our bodies and sexuality belong to ourselves.” Erdogan chastised these women as unTurkish. He said, “There were even those who marched to Ankara, carrying placards that do not suit the Turkish woman. I cannot applaud behavior that does not suit our moral values and traditions.”

A marginal group cannot represent the Turkish woman.” An adviser in the Ministry of Justice, Dogan Soyaslan, said, “No man would like to marry a woman who is not a virgin. Marrying the rapist after a rape is a reality of Turkey. The brother and the father of a girl who was raped would like her to marry the rapist. Those who are opposing this here [at this meeting] would also like to marry virgins. Those who claim the opposite are fakers.” More recently, the Turkish Daily News printed a quote from Erdogan, in which he proclaimed that it is the civic duty of each and every Turkish woman to bear at least three children. “[They] want to delete the Turkish nation,” he said. “If you don’t want the population to decrease, a family should have three children.” “This is the perspective the Justice and Development Party (AKP) and their supporters have of women,” said Nur Serter of the Republican People’s Party.

In this context, the Constitutional Court case against the AKP takes on a whole new meaning. The lives of some 40 million women hinge on the outcome. It is not simply about headscarves. It is not only an issue of religious liberty and freedom of expression. It is about the separation of mosque and state. It is about democratization, but it is a struggle over the definition of democracy. Will Turkey choose a majoritarian democracy, in which the popular will rules? What if it’s an Islamist will that subjugates women? Or, will Turkey choose a secular democracy that protects minorities and the dissenting voice via a robust judiciary and an even more robust Constitution, including fundamental rights and freedoms for all? The senior legal adviser to the Ethiopian Prime Minister believes this is a choice between tyranny of the majority or tyranny of the elite few. I disagree. I am often troubled by the implication, even in the United States, that the judiciary is an inherently undemocratic institution. Yes, the judiciary is countermajoritarian, but by design, not deficit. In my mind, the judiciary is often the most democratic of our institutions, protecting the constitutional rights of the individual, providing a forum in which the minority, the dissenting voice may be heard. We don’t protect our individual rights by voting as much as when we appeal to our courts. We should protect and support our judiciary. I hope Turkey decides to do the same. If Turkish women don’t have recourse to the Turkish Constitution and courts, to whom will they appeal? Allah? Is Allah going to protect them? I doubt it.

Sarah Braasch, FFRF’s first legal intern, grew up in Minnesota and Wisconsin. She attended the University of Minnesota, in Minneapolis, where she obtained two engineering degrees, summa cum laude, in aerospace engineering and mechanics and mechanical engineering. She worked in the boutique hotel industry for several years, in both Los Angeles and Miami. Sarah is currently a law student at Fordham University in New York City. She spent a summer in Morocco working for a human rights organization. She recently participated in a human rights clinic in Ethiopia, and she will be studying at the European University Institute in Florence, Italy, this fall.