Is Secularism Possible in a Majority-Muslim Country?: The Turkish Example

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1 Is Secularism Possible in a Majority-Muslim Country?: The Turkish Example ADRIEN KATHERINE WING AND OZAN O. VAROL SUMMARY I. INTRODUCTION...2 II. SECULARISM GENERALLY AND THE TURKISH VERSION...5 A. Definition and Characteristics of Secularism...5 B. The Turkish Version of Secularism...6 C. The Unique Context of the Republic of Turkey...7 III. THE ROLE OF RELIGION IN THE OTTOMAN EMPIRE...9 IV. THE CHANGE FROM A THEOCRATIC REGIME TO A SECULAR GOVERNMENT...11 A. The Formation of the Turkish Grand National Assembly and the Adoption of the First Constitution...12 B. The Initial Wave of Reform Laws...13 C. The Clothing Reforms...15 D. Reforms Continued...15 E. Women s Rights...17 F. The Final Reform: A Secular Republic...18 V. SECULARISM AND THE TURKISH CONSTITUTION...20 A. The 1961 Constitution...20 B. The Current Constitution The Safeguards of Secularism in the Turkish Constitution...22 Bessie Dutton Murray Distinguished Professor of Law, University of Iowa College of Law. A.B. Princeton 1978; M.A. UCLA 1979; J.D. Stanford Thank you to my co-author and research assistant Ozan Varol and his family for arranging our trip to Istanbul and Ankara during July I would also like to thank the various Turkish officials that we met during our trip to Turkey. We would like to thank the following research assistants for their help with this Article: Cynthia Lockett, Shaun Naidu, Ruben Pagan, Jonathan Stagg, and Andrea Suzuki. J.D. Candidate, University of Iowa College of Law 2007; B.A. Cornell University I am indebted to my parents, Tacettin and Yurdanur, for their encouragement, love, and support, and for introducing me to the importance of secularism in Turkey. Thanks also to Professor Nur Serter of Istanbul University for meeting with us in Turkey to discuss this Article and for her staunch and fearless support of secularism in Turkey. All of the Turkish translations in the Article are mine. 1

2 2 TEXAS INTERNATIONAL LAW JOURNAL VOL. 42:1 2. Secularism and Political Parties Freedom of Religion in the Turkish Constitution Anti-Secularist Provisions in the Turkish Constitution?...28 a. Department of Religious Affairs...28 b. Mandatory Religious Education...30 VI. VII. THE BAN AGAINST THE WEARING OF THE ISLAMIC HEADSCARF IN EDUCATIONAL INSTITUTIONS...31 A. Overview of the Islamic Headscarf Ban in Turkey...31 B. The Early Legal History of the Islamic Headscarf Debate and the First Legislation Lifting the Islamic Headscarf Ban...36 C. The Second Legislation Lifting the Islamic Headscarf Ban...39 D. Headscarf Goes to Europe: Leyla Sahin v. Turkey Background Analysis Under Article 9 of the Convention...42 a. Interference...43 b. Prescribed by Law...43 c. Legitimate Aim...44 d. Necessary in a Democratic Society Analysis Under Article 2 of Protocol No. 1 of the Convention The Dissent s and Ms. Sahin s Arguments Turkish Government s Response to the Decision...48 THE FUTURE OF SECULARISM IN TURKEY...49 A. Background on the Justice and Development Party...49 B. Are Fundamental Changes in the Secular Regime Possible?...50 C. Are Minor Changes in the Secular Regime Possible?...51 D. Implications of a Turkish Membership in the European Union...52 VIII. CONCLUSION...53 I. INTRODUCTION In the post-9/11 world, the Middle East has gained special importance. Unfortunately, given the limited availability of education about international issues in the American education system and media, the nation in general is relatively ignorant about Middle Eastern countries. Undoubtedly, ignorance leads to unjust prejudice and discrimination. Some view all Muslims as terrorists and all countries in the Middle East as fundamentalist regimes and supporters of terrorism. During an interview discussing the role that Shari a law will play in the new government of Iraq, then-secretary of State Colin Powell stated that there would be an Islamic Republic in Iraq as there are other Islamic Republics Turkey and Pakistan. 1 This statement of a high-level U.S. official labeling Turkey, a strictly 1. Interview by Maybritt Illner with Colin L. Powell, Sec y of State, in Berlin, F.R.G. (Apr. 1, 2004), available at (last visited Mar. 3, 2006).

3 2006 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 3 secular and democratic country, an Islamic Republic exemplifies the lack of knowledge in the Western world about Middle Eastern countries. In an attempt to remedy this widespread ignorance, this Article provides a comparative look at secularism in the legal system of one of the most unique countries in the Middle East, the Republic of Turkey. Muslims make up ninety-nine percent of Turkey s population. 2 Contrary to popular Western belief that all majority-muslim 3 states are theocracies, Turkey is a democratic and secular state. Among the fifty-two majority-muslim states, the constitutions of only two countries, Turkey and Senegal, prescribe secularism. 4 Indeed, as this Article discusses in Part II, the Turkish version of secularism is arguably the strictest version of secularism implemented by any nation. 5 Turkey s ability to maintain a secular democratic state in a region of the world with rising Islamic fundamentalism has allowed it to maintain very strong connections to Europe and the United States. 6 In May 2005, during a Capitol Hill Hearing on the state of U.S.-Turkish Relations, Representative Robert Wexler (D- FL) stated: There is no greater friend [in the Middle East] to the United States than Turkey when it comes to defending the values of freedom Europe values the Republic of Turkey not just for where it is but for what it is. 8 Turkey s secular order not only protects the democratic system of the Turkish Republic itself, but also serves as a barrier between the rest of the Western world and the continuously spreading threat of Islamic fundamentalism from the Middle East. Turkey is also of special importance to the United States and Europe because of its strategic geographic location from an economic and military perspective. Turkey is situated at the crossroads between eastern Europe, central Asia and the Middle East. 9 Furthermore, Turkey is the only NATO member state to border Iran, Iraq, Syria, and two former Soviet states. 10 Consequently, [o]nly Turkey lies Subsequently, Secretary Powell corrected himself by stating that Turkey is a secular and democratic Republic. Sedat Ergin, Türkiye Icin Ilimli Islam Teorisi Dogru Degil [Moderate Islam Theory Is Not Right for Turkey], MILLIYET (Turkey), June 19, 2005, at Niyazi Oktem, Religion in Turkey, 2002 BYU L. REV. 371, The phrase majority-muslim was used by the European Court of Human Rights in Leyla Sahin v. Turkey (Sahin I), No /98, para. 99 (Eur. Ct. H.R. June 29, 2004), available at (search by Application Number). This Article uses the phrase majority-muslim to refer to countries with a predominantly Muslim population. This phrase refers only to the demographic makeup of the population and does not mean that the country is an Islamic Republic. 4. Oktem, supra note 2, at See infra Part II.B. 6. Dinesh D. Banani, Note, Reforming History: Turkey s Legal Regime and Its Potential Accession to the European Union, 26 B.C. INT L & COMP. L. REV. 113, 115 (2003). 7. The State of U.S.-Turkish Relations: Hearings Before the Europe and Emerging Threats Subcomm. of the H. International Relations Comm., 109th Cong. (2005). Relations between long-time allies the United States and Turkey were strained after Turkey s refusal to open a northern front into Iraq during the recent Iraq war. Christopher Caldwell, Bordering on What?, N.Y. TIMES, Sept. 25, 2005, 6. Public approval of the United States in Turkey has decreased dramatically, mainly due to the significant impact the Iraqi war had on the Turkish stock market and economy. Id. Thus, Turks are quick to insist that public opinion is not anti-american, only anti-bush. They recall the standing ovation Bill Clinton got when he addressed the [Turkish] National Assembly in November Id. 8. Caldwell, supra note Banani, supra note 6, at Id.

4 4 TEXAS INTERNATIONAL LAW JOURNAL VOL. 42:1 either close to or at the center of most of the gravest threats to Europe s peace and well-being. 11 As a result, Turkey s strict secular legal system, in a region filled with fundamentalist regimes and Islamic terrorism, is an essential protector of one of the United States and Europe s greatest allies. Additionally, Turkey, as a secular and democratic majority-muslim state, provides answers to many of the questions Americans ask as the United States is striving to instill democracy into Middle Eastern nations like Iraq. 12 Can a majority- Muslim state also be democratic? 13 Can women stand on equal footing with men in the legal system of a majority-muslim state? Can democracy, even if forcefully implemented, stand the test of time? As this Article demonstrates, the history and the legal system of the Turkish Republic provide an affirmative answer to all of the foregoing questions. Even though Turkey has accomplished the difficult task of maintaining a democracy in a majority-muslim state, it is widely criticized in U.S. law review articles for a number of reasons. 14 Most of these criticisms are outside the scope of this Article. Nonetheless, it is important, when reading or writing about Turkey, to base one s conclusions on justified and objective observations, and to take what has been written with a grain of salt. In 1923, an American student wrote to Mustafa Kemal Atatürk, 15 the founder of the Republic of Turkey, and asked for an autographed picture and reply. 16 Atatürk wrote back and stated: My advice to intelligent and studious American children is not to believe as true anything they hear about Turks, but to carefully base their views on scientific and substantive 11. Id. 12. But see infra text accompanying notes (noting the differences between the democratic movement in Turkey and Iraq). 13. See Talip Kucukcan, State, Islam, and Religious Liberty in Modern Turkey: Reconfiguration of Religion in the Public Sphere, 2003 BYU L. REV. 475, See generally Chante Lasco, Virginity Testing in Turkey: A Violation of Women s Rights, 9 HUM. RTS. BRIEF 10, 10 (2002) (alleging that women are subject to virginity testing throughout their lives in Turkey); Report of the Joseph R. Crowley Program/Lawyers Committee for Human Rights: Joint 1998 Mission to Turkey, Special Report: Justice on Trial: State Security Courts, Police Impunity, and the Intimidation of Human Rights Defenders in Turkey, 22 FORDHAM INT L L.J (1999) (criticizing Turkey s human-rights record); Richard J. Wilson, Can U.S. Courts Learn From Failed Terrorist Trials by Military Commission in Turkey and Peru?, 1 HUM. RTS. BRIEF 11, (2003) (criticizing the trial of Abdullah Ocalan, the leader of the terrorist organization, Kurdish Worker s Party (PKK)); Dilek Kurban, Note, Confronting Equality: The Need for Constitutional Protection of Minorities on Turkey s Path to the European Union, 35 COLUM. HUM. RTS. L. REV. 151 (2003) (discussing the lack of legislation and constitutional safeguards for the protection of minorities in Turkey); Marcia L. Pearson, Comment, A Blemish on the Modern Face of Turkey: The Historical Background and Social, Legal, and International Implications of Virginity Testing in Turkey, 28 N.C. J. INT L L. & COM. REG. 663 (2003); Steven Stavros Skenderis, Note, The Ethnic Greeks of Turkey: The Present Situation of the Greek Minority and Turkey s Human Rights Obligations Under International Law, 16 ST. THOMAS L. REV. 551 (2004) (alleging humanrights abuses against the Greek minorities in Turkey); Irum Taqi, Note, Adjudicating Disappearance Cases in Turkey: An Argument for Adopting the Inter-American Court of Human Rights Approach, 24 FORDHAM INT L L.J. 940, 943 (2001) (discussing the problem of disappearances in Turkey ); Meishya Yang, Note, The Court System on Trial in Turkey, 26 LOY. L.A. INT L & COMP. L. REV. 517 (2004). 15. The surname Atatürk was given to Mustafa Kemal by the Turkish Grand National Assembly after it passed the Surname Law. It means The Father of All Turks. DAVID L. PHILLIPS, FOREIGN AFFAIRS, TURKEY S DREAMS OF ACCESSION (Sept.-Oct. 2004), available at 16. Abigail Bowman, Address at the Youth Day Celebration at the Turkish Embassy in Wash., D.C. (May 19, 2004), available at

5 2006 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 5 research. 17 Thus, our goal in this Article, following Atatürk s words, is to provide observations into the secular legal system of Turkey, basing all of our conclusions on, not myths, but legal documents, facts, and interviews we conducted in Turkey. This Article examines, in six major parts, the past, present, and future of secularism in the Republic of Turkey. Part II of the Article provides an overview of the principle of secularism generally, and in Turkey specifically, and describes how Turkish secularism differs from the Western notion of secularism. Part III discusses the role of religion in the Ottoman Empire, the predecessor to the modern day Turkey, in order to provide a background for the legal developments that occurred after the Empire s collapse. Part IV outlines the reforms that Atatürk and his supporters implemented following the downfall of the Ottoman Empire and demonstrates how a fundamentalist empire became a strictly secular government in less than twenty years. Part V provides a thorough examination of the various provisions of the Turkish Constitution that relate to secularism. Part VI demonstrates the application of the principle of secularism in Turkey by discussing the legal history of the ban against the wearing of the Islamic headscarf in Turkish educational institutions. This Part also analyzes the November 10, 2005 decision of the Grand Chamber of the European Court of Human Rights in Leyla Sahin v. Turkey. 18 Finally, Part VII speculates on the future of secularism in Turkey and discusses whether it is possible to implement any fundamental changes in the regime. II. SECULARISM GENERALLY AND THE TURKISH VERSION First, this Part defines secularism and describes the characteristics of a secular government. Second, it analyzes the Turkish version of secularism. Finally, it examines, by focusing on Turkey s unique context, the reasons behind the strict version of secularism that Turkey has implemented. A. Definition and Characteristics of Secularism The most common definition of secularism is the separation of religion and state. 19 Nonetheless, this narrow definition does not encompass many important characteristics of a secular government. First, in secular regimes, sovereignty belongs to the nation and not to a divine body. 20 Since sovereignty belongs to a divine power in theocratic regimes, like the former Ottoman Empire, going against the government is equivalent to going against God. 21 Second, religion is separate from state in a secular government. 22 Religion does not affect the government s affairs, meaning that laws and regulations are not based on religion. 23 Third, a 17. Id. 18. Leyla Sahin v. Turkey (Sahin II), No /98 (Eur. Ct. H.R. Nov. 10, 2005), available at (search by Application Number). 19. Yilmaz Aliefendioglu, Laiklik ve Laik Devlet [Secularism and Secularist Government], in LAIKLIK VE DEMOKRASI [SECULARISM AND DEMOCRACY] 74 (Ibrahim O. Kaboglu ed., 2001). 20. Id. at Id. at Id. at Id.

6 6 TEXAS INTERNATIONAL LAW JOURNAL VOL. 42:1 secular government is neutral towards all religions. 24 As such, the regime cannot have an official religion and does not protect one religion over another. 25 Likewise, all individuals, irrespective of their religion, are equal before the law. 26 Fourth, a secular regime requires the education and the legal systems to be secular. 27 The legal system does not contain laws based on religion, and the education system is based on logic and science, not religion or dogmas. 28 Fifth, a secular government requires freedom of religion and conscience. 29 Thus, secularism does not mean the absence of religion from society. Individuals are free to exercise their religions and manifest their religious beliefs in both the private and the public sphere. 30 Finally, a secular regime is based on pluralism, which requires the government s respect for all religions and religious beliefs. 31 It is important to note that the foregoing characteristics describe a theoretically perfect secular government, which, to our knowledge, does not exist. B. The Turkish Version of Secularism The Turkish version of secularism implements most of the foregoing characteristics of a secular government, while, due to Turkey s unique context, 32 restricts some of the freedoms that a perfectly secular government would normally afford. The Turkish word for secularism (laik) and the concept of Turkish secularism were adopted from the French principle of secularism (laïcité). 33 France and Turkey apply a version of secularism that is stricter than the version that most Western nations, including the United States, have implemented. 34 If one thinks of secularism as two adjacent but separate fenced-off areas, the Western notion of secularism as a general matter allows neither the state nor religion to violate the territory of the other. In contrast, in the Turkish version of secularism, the state can access and regulate the fenced-off area of religion, whereas religion does not have the same reciprocal right. One example of such an action on the part of the state is the ban against the wearing of the Islamic headscarf in Turkish educational institutions. 35 The purpose of this system is to ensure that religion does not completely dominate the state like it did less than ninety years ago. Because of the differences between the Western and Turkish principles of secularism, the role that religion plays in most Western governments may seem appalling to those not accustomed to it. One of the authors of this Article, Ozan O. 24. Aliefendioglu, supra note 19, at Id. 26. Id. at Id. at Id. at 76, Aliefendioglu, supra note 19, at Id. 31. Id. at See infra Part II.C (discussing the unique historical, geographical, and demographical context of Turkey). 33. Aliefendioglu, supra note 19, at See Bulent Tanor, Laiklik, Cumhuriyet ve Demokrasi [Secularism, Republic and Democracy], in LAIKLIK VE DEMOKRASI [SECULARISM AND DEMOCRACY] (Ibrahim O. Kaboglu ed., 2001). 35. See infra Part VI (discussing the ban against the wearing of the Islamic headscarf in Turkish educational institutions).

7 2006 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 7 Varol, is a native of Turkey who lived in Turkey for seventeen years. Being accustomed to the Turkish version of secularism, it was, at first, very bizarre for him to hear the President of the United States say God bless America at the end of his addresses to the nation; see In God We Trust on American currency; see Congressmen and Supreme Court Justices take oaths while placing their hands on the Bible; hear one nation under God in the Pledge of Allegiance; and see the Justices of the Supreme Court attend the Red Mass annually before the first day the Court is in session. 36 As the rest of this Article illustrates, none of the foregoing American traditions can be implemented under the Turkish version of secularism. C. The Unique Context of the Republic of Turkey The strict version of secularism in Turkey is necessary due to its historical, geographical, and demographical context. First, and foremost, Turkey s fundamentalist history has necessitated the implementation of certain safeguards, like secularism, to protect the democratic order of the Republic. In one of its decisions regarding secularism, the Turkish Constitutional Court stated that secularism ha[s] acquired constitutional status by reason of the historical experience of the country and the particularities of Islam compared to other religions; secularism [is] an essential condition for democracy and act[s] as a guarantor of freedom of religion and of equality before the law. 37 Less than ninety years ago during the reign of the Ottoman Empire, the predecessor to the modern-day Turkey, the country was home to arguably the most fundamentalist regime in the world. 38 When the Republic of Turkey was formed, the founders implemented a number of precautions, the most important of which is secularism, to prevent Islamic fundamentalism from ever dominating the governmental system again. Similar restrictions appear in other nations around the world whose histories have required the adoption of certain protections to safeguard their regimes. For example, Germany has taken legal precautions that restrict certain rights and freedoms to ensure that totalitarian Nazis will never rule the country again. 39 Italy 36. See Elaine Spencer, Red Mass Highlights Importance of Supreme Court as New Term Begins, THE CHRISTIAN POST, Oct. 3, 2005, available at red.mass.highlights.importance.of.supreme.court.as.new.term.begins/1.htm (discussing the attendance of President George W. Bush and five Supreme Court Justices at the Red Mass held at St. Matthews Cathedral prior to the commencement of the Supreme Court s new term). Rob Schenck, President of the National Clergy Council, described the Red Mass in the following manner: You had the heads of the executive and judicial branches and representatives from the legislative branch fully participating in the prayers, hymn singing and even in a clear profession of Christian faith.... There was no separation of church and state today. Id. 37. Leyla Sahin v. Turkey (Sahin I), No /98, para. 36 (Eur. Ct. H.R. June 29, 2004), available at (search by Application Number). 38. See infra Part III (discussing the role of religion in the Ottoman Empire). 39. See Turkan Saylan, Laiklik ve Demokrasi Kolokyumu [Colloquium on Secularism and Democracy], in LAIKLIK VE DEMOKRASI [SECULARISM AND DEMOCRACY] 12 (Ibrahim O. Kaboglu ed., 2001). For example, Austria, Belgium, Canada, the Czech Republic, France, Germany, Israel, Lithuania, Poland, Romania, Slovakia, and Switzerland have restricted freedom of speech by criminalizing the denial of the Holocaust. Jeff Jacoby, Op-Ed., Freedom of Hate Speech, BOSTON GLOBE, Mar. 1, 2006, at A11. In fact, an Austrian court sentenced David Irving, a British author who denied that the Holocaust ever occurred, to three years in prison. Id.

8 8 TEXAS INTERNATIONAL LAW JOURNAL VOL. 42:1 has laws to prevent fascism from dominating their regime. 40 Rwanda has provisions in its Constitution to prevent genocide. 41 The United States has affirmative-action laws, which attempt to remedy the effects of past and present discrimination against racial minorities. 42 Likewise, the strict secular system of Turkey protects freedom and democracy, both of which used to be myths under the rule of the Ottoman Empire less than ninety years ago. Geographically, Turkey is surrounded by some of the most fundamentalist regimes in the world, like Saudi Arabia and the Islamic Republic of Iran. In countries bordering Turkey, women are stoned to death for having sexual intercourse out of wedlock, people s hands are cut off for committing burglary, and mass killings occur based on religion. 43 One of the main reasons why Turkey has not been a part of the inhumanity that dominates most of the Middle East is its strict secular regime. Because secularism does not allow religion-based laws in the legal system, criminal punishments based on Islam cannot be a part of Turkish law. Demographically, ninety-nine percent of Turkey s population is Muslim, 44 making the country prone to the use of religion as a tool by political parties. Indeed, so far in Turkey s legal history, the Turkish Constitutional Court has dissolved four political parties for violating the principles of secularism and/or advocating the violent overthrow of the secular regime. 45 For example, in 2003, the European Court of Human Rights (ECHR), sitting in Grand Chamber, or en banc, unanimously (18-0) held that Turkey did not violate Article 11 on Freedom of Association of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) when the Turkish Constitutional Court dissolved the Islamist Welfare Party (Refah Partisi). 46 The ECHR outlined a great amount of evidence demonstrating the credible and pending threat that the Welfare Party posed to the secular and democratic order of the Republic. For example, while advocating a change in the Republic s regime, the leader of the Welfare Party, Necmettin Erbakan, stated: [But] will the transition be peaceful or violent; will it be achieved harmoniously or by bloodshed? 47 Mr. Erbakan also advocated the implementation of a plurality of legal systems based on an individual s religion. 48 Likewise, Hasan Huseyin Ceylan, a member of the Welfare Party, stated: If you want the solution, it s sharia. 49 Sevki Yilmaz, another member of the Welfare Party, had issued a clear call to wage a jihad [holy war] and had argued for the introduction of Islamic law. 50 Finally, in one 40. Saylan, supra note 39, at See RWANDA CONST. arts. 13, 14 (2003), available at 42. See generally Dan Froomkin, Affirmative Action Under Attack, WASHINGTONPOST.COM, Oct. 1998, ( Affirmative action is the [United States ] most ambitious attempt to redress its long history of racial and sexual discrimination. ). 43. See Saylan, supra note 39, at Oktem, supra note 2, at Kucukcan, supra note 13, at See Refah Partisi (Welfare Party) and Others v. Turkey (Refah Partisi), No /98, paras (Eur. Ct. H.R. Feb. 13, 2003), available at (search by Application Number). 47. Id. para Id. para Id. para Id. para. 33.

9 2006 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 9 of his speeches in the Parliament, Ibrahim Halil Celik, another Welfare Party member, declared: I too would like blood to flow.... I will fight to the end to introduce sharia. 51 The foregoing is only a small sample of the statements that Welfare Party members made, calling for a replacement of the secular order with Shari a. These statements demonstrate that certain political parties in Turkey have used and will continue to use religion in their agendas to deceive and gain the support of the majority-muslim population. Thus, the strict secular system of Turkey is a safeguard that protects the democratic order of the Republic against political parties that want to take advantage of sacred religious beliefs. The reasons behind the strict secular system in Turkey are important to keep in mind throughout this Article. Everything from the reforms that led to the foundation of the Republic 52 to the reasons behind the current ban on the wearing of Islamic headscarves in all educational institutions 53 should be viewed in connection with the unique context of Turkey. Even though certain legal restrictions this Article discusses may seem excessive from a Western point of view, they are, for the most part, necessary safeguards to protect the secular and democratic order of the Turkish Republic. Indeed, in light of the unique context of Turkey, the Grand Chamber of the ECHR, in a 16-1 decision, approved the Turkish notion of secularism and found it to be consistent with the values underpinning the Convention. 54 This Part provided a general overview of the principle of secularism and of the Turkish version of secularism in the unique context of Turkey. The rest of the Article traces the development of secularism throughout Turkey s history. To that effect, the next Part examines the role of religion in the Ottoman Empire, the predecessor to the modern-day Republic of Turkey, in order to provide a background for the secular reforms that followed the collapse of the Ottoman Empire. III. THE ROLE OF RELIGION IN THE OTTOMAN EMPIRE The Ottoman Empire, the predecessor to the modern-day Republic of Turkey, was a theocratic regime 55 with Islam comprising a central part of the governmental affairs. From the early days of the Empire, Islam was the Empire s official state religion. 56 The Sultan of the Empire also served as the caliph, a position that has both temporal and spiritual authority 57 over all Muslims, including those that resided in other nations. The caliph was to Muslims as the Pope is for Roman Catholics, except that the orders of the caliph had the full force and effect of law. 51. Refah Partisi, No /98, para See infra Part IV. 53. See infra Part VI. 54. See Leyla Sahin v. Turkey (Sahin II), No /98, paras (Eur. Ct. H.R. Nov. 10, 2005), available at (search by Application Number). 55. Saylan, supra note 39, at M. Iskender Ozturanli, Birkac Soz [A Few Words], in ATATURK VE DIN [ATATURK AND RELIGION] 9 (2004). 57. Kucukcan, supra note 13, at 477.

10 10 TEXAS INTERNATIONAL LAW JOURNAL VOL. 42:1 The Empire s primary purpose was jihad, which entailed endless battle with other nations with the purpose of spreading Islam across the world. 58 Wars [in the Ottoman Empire] started, ended, and started again in accordance with the orders of the Qu ran. 59 When the Empire lost a war, the defeat would be deemed a punishment from Allah. 60 In short, the functioning of the government was intricately intertwined with religion. The legal system of the Empire was based on Islamic Shari a law and customary law (örf). 61 There were Shari a courts in the Empire s legal system, 62 with religious experts as judges, who interpreted and applied Shari a law. 63 All new legislation the government passed had to conform to Shari a law. 64 As such, Shari a was like a modern-day constitution, supreme to all of the laws in the Empire. In fact, the Ottoman Empire had no constitution until 1876, almost six hundred years after its formation. 65 Even then, the Constitution of the Empire was not the supreme law of the land, since it declared that sovereignty was given to the Emperor by God, 66 reiterating that God s word was supreme. Women in the Ottoman Empire were, at best, second-class citizens under religious law. For example, women had minimal inheritance rights; whereas, men had the right to polygamy and the unilateral right to divorce their wives by simply uttering bos ol (divorce). 67 According to custom and religion, women had to stay home, acting as caregivers and nurturers. 68 Women were servants to their husbands, staying in the background of all aspects of family life. 69 Furthermore, the Empire obligated its citizens to dress in accordance with their religion, 70 which required all women to wear veils. In sum, the Islamic regime deprived women of their basic human rights in the Ottoman Empire. The corruption of the religious institutions in the government was one of the main causes of the collapse of the Ottoman Empire. 71 The Ottomans prevented any of the modern developments in Europe from penetrating their strict Shari a system. 72 For example, the newspaper press machine, one of the most important inventions of contemporary civilization, was not allowed in the Empire for two hundred years. 73 In a critical period of the Ottoman Empire, Islamists in the government refused to make alliances with foreign nations, interpreting such allegiances as being against 58. ILHAN ARSEL, SERIAT DEVLETI NDEN LAIK CUMHURIYET E [FROM SHARI A TO A SECULAR REPUBLIC] 721, 723 (5th ed. 2004). 59. Id. 60. See id. 61. See Aliefendioglu, supra note 19, at Ozturanli, supra note 56, at Susanna Dokupil, The Separation of Mosque and State: Islam and Democracy in Modern Turkey, 105 W. VA. L. REV. 53, 58 (2002). 64. Ozturanli, supra note 56, at ARSEL, supra note 58, at Id. 67. See Saylan, supra note 39, at See id. 69. See id. 70. See Leyla Sahin v. Turkey (Sahin I), No /98, para. 29 (Eur. Ct. H.R. June 29, 2004), available at (search by Application Number). 71. SADI BORAK, ATATURK VE DIN [ATATURK AND RELIGION] 28 (2004). 72. See id. 73. See id. at 29.

11 2006 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 11 Shari a. 74 Every reform or new invention that originated in Europe was labeled a Western intrusion and was swiftly rejected. 75 This fundamentalist approach to Islam eventually led to the downfall of the Ottoman Empire, one of the longest-lived empires in the world s history. 76 This Part provided an overview of the fundamentalist regime of the Ottoman Empire. The next Part discusses the formation of the Republic of Turkey and the reforms of its founder, Mustafa Kemal Atatürk, and his supporters. In light of the strict theocratic foundations of the Ottoman Empire, one can better understand the importance of Atatürk s reforms, which transformed one of the most fundamentalist governments in the world to a strictly secular and democratic regime. IV. THE CHANGE FROM A THEOCRATIC REGIME TO A SECULAR GOVERNMENT It is without a doubt that another example can t be shown indicating greater successes than the birth of the Turkish Republic.... John F. Kennedy (1963). 77 World War I marked the virtual end of the Ottoman Empire and the beginning of the Republic of Turkey. After the Empire lost the War alongside Germany, it signed the Treaty of Sèvres in 1920 with the Allied Forces. 78 Pursuant to the terms of the Treaty, the Ottoman Empire lost most of its land to the Allies. 79 Mustafa Kemal Atatürk, who was a commander in the Ottoman Empire, 80 found the Treaty of Sèvres unacceptable. 81 He gathered militia from all around the country and started a nationalist movement against the Allies, as well as the Ottoman Empire, which had accepted the terms of the Treaty. 82 After almost three years of battle, 83 Atatürk and his militia defeated the Allied forces carv[ing] out a modern republic from the ruins of [the Ottoman Empire,] the sick man of Europe. 84 Nonetheless, winning back most of the landmass was not all that Atatürk did. Perhaps of far more importance was the establishment of a secular government through a series of reforms. Atatürk found the establishment of a secular regime to 74. See id. 75. See id. 76. The Ottoman Empire existed for six-hundred years. Sally MacDonald, The History from the Mongols to Independence, SEATTLE TIMES, Jan. 26, 2003, at S Baki Ilkin, Deputy Undersecretary of the Turkish Foreign Ministry, Remarks at the Atatürk Society of America: Mustafa Kemal Atatürk: The Liberator, The Nation-Builder and The Statesman (May 18, 2003), available at 78. Dicle Kogacioglu, Progress, Unity, and Democracy: Dissolving Political Parties in Turkey, 38 LAW & SOC Y REV. 433, 444 n.31 (2004). 79. Id. 80. Mustafa Kemal Atatürk - His Life, &task=view&id=13&itemid=31 (last visited Mar. 4, 2006). 81. Kogacioglu, supra note 78, at 444 n See David A. Kanarek, Note, Turkey and the European Union: The Path to Accession, 9 COLUM. J. EUR. L. 457, 460 (2003). 83. See Mustafa Kemal Atatürk - His Life, supra note See Dokupil, supra note 63, at 65.

12 12 TEXAS INTERNATIONAL LAW JOURNAL VOL. 42:1 be critical in the development of the newly founded Republic of Turkey. He said: Look at our history. Those who hid their real beliefs under the disguise of religion deceived our innocent nation with big words like Shari a. You will see that what destroyed this nation, what caused its collapse, was always the deception hidden under the curtain of religion. 85 Accordingly, most of Atatürk s reforms were aimed at the separation of religion from state. Even though Atatürk wanted to form a secular regime, he was not an enemy of religion. 86 He was an enemy of extremists and those who wanted to use religion as a political tool. 87 According to Ernest Jackh, a German thinker, Atatürk also did not want to paint a Western face on Islam. 88 Similarly, Andrew Mango, who authored a biography on Atatürk, noted: Atatürk s aim was not imitation but participation in a universal civilization Indeed, it would have been ironic for Atatürk to instill Western cultural values into a society that he had just rescued from Western occupation. Inevitably, the separation of state and religion required the implementation of fundamental changes in a society that had been under the rule of Shari a law for hundreds of years. As the rest of this Part illustrates, everything from clothing to the alphabet, from education to women s rights, all of which had been intricately intertwined with religion under the Ottoman Empire s rule, had to be separated from religion to establish a secular regime. In doing so, Atatürk and his supporters aimed to return the Turkish nation to its roots when the society did not suffer under a regime dominated by religion, and raise the nation to the level of contemporary civilizations. By implementing a series of modernization reforms, Atatürk and his supporters distanced the nation from the fundamentalist notions of Islam, which had plagued the nation for centuries, and recreated the Turkish nation, not as Westerners, but as Turks. 90 A. The Formation of the Turkish Grand National Assembly and the Adoption of the First Constitution The formation of the Turkish Grand National Assembly (TGNA) on April 23, 1920, was the first important step in changing the theocratic regime of the Ottoman Empire to a democratic government 91 where sovereignty belonged to the people. The TGNA, which was formed when the country was still under the occupation of the Allied forces, 92 was based on the principle of equality of all citizens irrespective of their religion, 93 in strict contrast to the governmental system of the Ottoman Empire. In fact, the first TGNA had one Jewish, one Roman Orthodox, and one Armenian member BORAK, supra note 71, at Id. at See id. 88. See id. at Ilkin, supra note See BORAK, supra note 71, at See Saylan, supra note 39, at ARSEL, supra note 58, at BORAK, supra note 71, at Id.

13 2006 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 13 The first step that the TGNA took in forming a democratic regime was the adoption of the Constitution of the Republic of Turkey (Teskilat-i Esasiye Kanunu) in The 1921 Constitution was the first to declare, repeating Atatürk s words, that sovereignty is fully and unconditionally vest[ed] in the people. 96 This statement represented a strong departure from the former theocratic regime, 97 where sovereignty was vested in Allah and delegated to the Sultan. 98 With this declaration, the Constitution established that the Republic of Turkey would be a democracy, where the will of the people, as opposed to God s word, would determine the laws and regulations. Even though the first Constitution established a democracy, a secular order was not yet in the works. Article 2 of the Constitution stated that the official religion of the Republic of Turkey would be Islam. 99 Even though a secular government does not have an official state religion, 100 this provision was, at the time, a necessary evil. In explaining why this provision kept its place in the Constitution even after the Constitution was redrafted in 1924, Atatürk stated: After the foundation of our Republic, when the Constitution was being drafted, to prevent those who thought of a secular Republic as antireligious and those who wanted to use religion as a tool from taking advantage of the situation, we had to allow this meaningless part of Article 2 to stay in the Constitution. 101 Thus, Atatürk and his supporters had to make some compromises and avoid, at least initially, overly sweeping reforms in order to establish a secular regime. As one commentator stated: We know that the idea of a secular Republic was Atatürk s best kept secret. When the time was right, he would make it a reality. 102 B. The Initial Wave of Reform Laws As one of the major steps towards secularization, Atatürk abolished the nation s quest for jihad, replacing it with his words: Peace at home, peace in the world. 103 Instead of focusing on endless wars to spread Islam across the world, the new Republic of Turkey would strive towards social and economic development. 104 Accordingly, this reform not only removed the religious concept of jihad from the government system, but also paved the way for the nation s development. The next step in the secularization process was a law that the TGNA passed in 1922 separating the Sultanate position from that of the caliphate and abolishing the 95. Aliefendioglu, supra note 19, at Id. 97. Id. 98. See supra text accompanying note Ozturanli, supra note 56, at 16. The full text of the 1921 Constitution is available at See supra text accompanying notes Ozturanli, supra note 56, at Id. at ARSEL, supra note 58, at Id.

14 14 TEXAS INTERNATIONAL LAW JOURNAL VOL. 42:1 Sultanate position. 105 This reform ensured that religious and executive authority, which both belonged to the Sultan during the reign of the Ottoman Empire, would no longer be in the hands of the same entity. 106 Vahdettin, who was the Sultan of the Empire at the time of this reform, swiftly fled to England following this announcement from the TGNA. 107 After the abolishment of the Sultanate, the Republic of Turkey was officially formed on October 29, Following the official establishment of the Republic, the TGNA passed two reform laws on March 3, 1924, which proved to be crucial in the establishment of a secular order. 109 The first, and perhaps one of the most important reforms in the secularization process, was the abolishment of the caliphate position. 110 Even though the TGNA abolished the position of the Sultanate in 1922, the caliph, whom the TGNA appointed following Vahdettin s flee to England, still remained in power. 111 Certain fundamentalists believed that no one, not even the TGNA, had the authority to abolish the position of the caliphate, who had spiritual authority over threehundred million Muslims all around the world. 112 Nevertheless, the risks of allowing the caliph to stay in power, even symbolically, were too big to fathom. The caliph could have tried to exercise legal authority, like it did during the Ottoman Empire, issuing Islamic laws inconsistent with the legislation that the TGNA passed or even rallying fundamentalists in the nation to overthrow the future secular government. 113 Moreover, as the leader of all Muslims, the caliph would have ensured that the rest of the world would view the secular Republic of Turkey as an Islamic Republic and the leader of the Muslim world. 114 Thus, on March 3, 1924, to guarantee the total secularization of the Republic, the TGNA abolished the position of the caliphate, which had been a part of the nation for four hundred years. 115 The TGNA passed another important law (Tevhid-i Tedrisat Kanunu) on March 3, 1924, which closed religious schools (medrese) and brought all educational institutions under the strict control of the state. 116 Instead of the old religious schools, which were notorious for promoting the fundamentalist notions of Islam, the TGNA established a Faculty of Divinity 117 to provide a secular religious education. The law also made the education system coeducational and primary education compulsory, allowing women to obtain education at least at the elementary level Aliefendioglu, supra note 19, at Id ARSEL, supra note 58, at Aliefendioglu, supra note 19, at See id See id. at ARSEL, supra note 58, at Id. at See Dokupil, supra note 63, at See id BORAK, supra note 71, at Kucukcan, supra note 13, at See Aliefendioglu, supra note 19, at See Saylan, supra note 39, at 10.

15 2006 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 15 C. The Clothing Reforms The TGNA also passed a number of reform laws aimed at abolishing the link between religion and clothing 119 in an effort to establish a secular and modern regime. In 1925, the TGNA passed the law on the Wearing of the Hat, which prohibited the wearing of the fez. 120 Atatürk believed that the fez was a symbol of illiteracy and backwardness. 121 Instead of wearing the fez, the new Turkish nation would wear the modern hat. The TGNA also prohibited certain religious officials, irrespective of their religion, from wearing religious garments outside of religious ceremonies with the 1934 Act on the Prohibition of the Wearing of Certain Garments. 122 In addition to regulating the clothing of men and religious officials, reform laws also affected the clothing of Turkish women, which was of particular concern to Atatürk. On this issue, Atatürk noted: In some places I have seen women who put a piece of cloth or a towel or something like it over their heads to hide their faces, and who turn their backs or huddle themselves on the ground when a man passes by. What is the meaning and sense of this behavior? Gentlemen, can the mothers and daughters of a civilized nation adopt this strange manner, this barbarous posture? It is a spectacle that makes the nation an object of ridicule. It must be remedied at once. 123 Thus, under Atatürk s leadership, women, who were forced to wear the veil in the Ottoman Empire pursuant to Shari a law, gained the freedom to wear modern clothing. 124 With the help of the reform laws, Turkish women, who had lost their identities, personalities, and freedoms under Shari a law, 125 were gaining a more equal footing with men in the Turkish society. D. Reforms Continued The reform laws continued with the abolishment of Shari a courts, which constituted an important secularization reform in the legal system. 126 On February 17, 1926, the TGNA abolished Shari a law replacing it with a civil code based on the Swiss Civil Code. 127 According to the new civil code, men and women were equal 119. See Decision No. 1989/12 (Turk. Const. Ct. 1989), available at Dokupil, supra note 63, at See BORAK, supra note 71, at See TURK. CONST. art. 174 (1982), available at Dokupil, supra note 63, at June Starr, The Role of Turkish Secular Law in Changing the Lives of Rural Muslim Women, 23 LAW & SOC Y REV. 497, (1989) (quoting Atatürk) ARSEL, supra note 58, at Id Aliefendioglu, supra note 19, at See Dokupil, supra note 63, at 68.

16 16 TEXAS INTERNATIONAL LAW JOURNAL VOL. 42:1 under law, 128 had equal rights in divorce, custody, and inheritance, and polygamy was forbidden. 129 Finally, civil marriage before a government official, as opposed to marriage conducted in a mosque before an imam, became the only type of marriage recognized by law. 130 Thus, the replacement of Shari a with a modern civil code constituted one of the most important steps in enhancing the social and economic development of Turkish women. Another important reform on the road to a secular order was the changing of the alphabet from Arabic to Latin script in The most difficult change in any society is probably a language reform. Most nations never attempt it; those who do, usually prefer a gradual approach. 132 Atatürk decided, for the reasons stated below, that the Arabic alphabet should be replaced by the Latin alphabet. He consulted several experts to get their opinion on how long the process would take. 133 When most of the experts stated that it would take at least five years, Atatürk replied: We shall do it. Within five months. 134 Subsequently, the TGNA passed a law abolishing the Arabic script and adopting the Latin alphabet. 135 When the official alphabet was the hard-to-learn Arabic script, the literacy rate was approximately ten percent among men 136 and less than five percent among women. 137 The new Latin alphabet was easier to learn, as exemplified by the dramatic increase in literacy rates following this reform. 138 Moreover, the change to the Latin script constituted an important step towards breaking old religious traditions and weakening the link with the past. 139 The amendment of the Constitution in 1928 broke another religious tradition that had been a part of the Constitution from its adoption. The TGNA removed the part of Article 2 that stated that the official religion of the Republic was Islam. 140 Moreover, the TGNA replaced the phrase by God with on my honor in the oaths that the President and members of the Parliament take before assuming office. 141 With these amendments, the Constitution of Turkey became neutral with respect to all religions. The TGNA, under Atatürk s leadership, also implemented several reforms to help the nation better understand Islam and prevent those who aimed to use religion as a political tool from deceiving innocent believers. For example, for the first time, Qu ran was translated to Turkish 142 so that people could read it and understand what it states, as opposed to blindly believing religious experts with hidden political 128. Saylan, supra note 39, at Women s Rights, (last visited Aug. 3, 2005) See Oktem, supra note 2, at Kucukcan, supra note 13, at The New Language, (last visited Oct. 3, 2006) Id Id Kucukcan, supra note 13, at Saylan, supra note 39, at See Ilkin, supra note See id. (noting that the literacy rate more than doubled in the ten years following the alphabet reform) Kucukcan, supra note 13, at Aliefendioglu, supra note 19, at Id BORAK, supra note 71, at 164.

17 2006 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 17 agendas. The call to prayer, which imams make from the minarets of mosques five times a day, was translated to and made in Turkish. 143 These developments gave the immense power of knowledge about Islam to the nation and marked an important step in preventing fundamentalists from brainwashing innocent believers. E. Women s Rights The TGNA also passed several reform laws that focused on women s rights in an effort to create a secular and democratic Republic and rectify the damage that Shari a law had done to Turkish women. Atatürk believed that if women do not share in the social life in the nation, [the Turkish Republic] shall never attain... full development. 144 Unless women were on an equal footing with men, the Turkish Republic would remain irremediably backward, incapable of treading on equal terms with the civilizations of the West. 145 In one of his speeches, Atatürk stated: A nation is made up of two genders, male and female. Is it possible for a nation to attain the standards of contemporary civilization if one of these genders advances while the other stays behind? Is it possible for half of the nation to be chained to the ground, while the other half rose to the skies? Undoubtedly, a nation s development is dependent on the advancements made by both genders. 146 Thus, in 1930, under Atatürk s leadership, the TGNA gave women the right to vote in municipal elections. 147 In 1933, the TGNA afforded women the right to vote in all elections, 148 long before women obtained the same right in other countries like France, Italy, and Canada. 149 In 1935, eighteen women were elected members of the TGNA, along with 382 men. 150 Hence, women, who were forced to wear veils, remain in the background of all social life, and be second-class citizens only a little more than ten years ago during the reign of the Ottoman Empire, were able to win seats on the National Assembly. Women s-rights reforms led to the Turkish Republic giving the world its first female supreme court judge 151 and its first female fighter pilot. 152 In 1993, the first 143. The TGNA changed the call to prayer back to Arabic in the 1950s. See Kucukcan, supra note 13, at Starr, supra note 123, at Id Decision No. 1989/12 (Turk. Const. Ct. 1989), available at Starr, supra note 123, at Id Bowman, supra note Judy Ayyildiz, Atatürk Soc y of Am., The Contribution of Turkish Women to the Modernization of Turkey, (last visited Oct. 3, 2006). Ironically, the female-to-male ratio in the current Parliament of Turkey is less than what it was in See Metin Camcigil, Atatürk Soc y of Am., Equal Rights for Women, (stating that the ratio was 4.5% in 1935, compared to 4.4% in 2005) Ayyildiz, supra note Bowman, supra note 16.

18 18 TEXAS INTERNATIONAL LAW JOURNAL VOL. 42:1 female Prime Minister of Turkey, Tansu Ciller, took office. 153 As of 2001, more than thirty percent of the academicians in Turkish universities are women. 154 At the time of this writing, the Presidents of both the Turkish Constitutional Court and the highest administrative court, Council of State, are female. 155 These statistics demonstrate that Atatürk s efforts were not futile and helped Turkish women greatly in achieving an equal status as men in society. F. The Final Reform: A Secular Republic Atatürk s long-lived dream of creating a secular republic finally became a reality in 1937, one year before he passed away. That year, the word secular was added to the Constitution as one of the fundamental characteristics of the Turkish Republic. 156 Through a series of systematic reforms and by making compromises when necessary, Atatürk and his supporters succeeded in transforming arguably the most fundamentalist regime in the world into a secular and democratic Republic. There are three major reasons why Atatürk s reforms were so successful and readily accepted by most of the Turkish nation. First, the reforms came from within the nation as opposed to an external force. 157 Today, the United States is trying to do in Iraq what Atatürk did in Turkey less than ninety years ago. Unfortunately, the United States attempts are not likely to be as successful, because a nation is more likely to reject reforms imposed on it by outside forces. Second, Atatürk s reforms occurred as part of a national uprising. After Atatürk managed to defeat the Allies with militia that he gathered from around the country, the Turkish nation believed in him and trusted him as a leader. Thus, when he started implementing his reforms, the nation followed his lead, knowing that he was striving for the advancement of the country. Finally, the national struggle was also against the Sultan and the caliph, who had sided with the Allies throughout the Turkish War of Independence. 158 The caliph even issued a fatwa stating that Atatürk should be killed. 159 The Sultan called the militia fighting the war against the Allies a herd of gangsters. 160 Therefore, when Atatürk decided to implement important reforms in the secularization process, like abolishing the position of the Sultan and the caliph, most of the Turkish nation was more than willing to support him. Continuing efforts are needed to ensure that these reforms are permanent. 161 Secularism in the modern-day Republic of Turkey, which is discussed in further 153. Int l Women s Democracy Ctr., Women in Politics: A Timeline, timeline.htm (last visited Oct. 3, 2006) Saylan, supra note 39, at Ersan Atar, Yuksek Mahkemeye Kadin Baskan [Female President for the High Court], SABAH, July 26, 2005, available at Danistay Baskanligina Sumru Cortoglu Secildi [Sumru Cortoglu Elected President of Council of State], MILLIYET.COM.TR, May 2, 2006, Saylan, supra note 39, at Thanks to Professor Enrique Carrasco for pointing out this distinction See Aliefendioglu, supra note 19, at See BORAK, supra note 71, at Id. at Id. at 7.

19 2006 IS SECULARISM POSSIBLE IN A MAJORITY-MUSLIM COUNTRY? 19 detail in the next Part, is one of the most important protectors of Atatürk s reforms. In 1927, talking about his reforms, Atatürk stated: Friends, our reforms are new. We shall see whether they will stand the test of time, grow stronger, and become deeply rooted in our society. But, mark my words, the minds of certain people who now wear the new hat, shave their [long] beards, wear tuxes, and participate in public life, are still covered with veils, turbans, and beards. 162 This statement continues to hold true in the modern-day Republic of Turkey. In order to ensure the permanence of Atatürk s reforms, a provision was added to the current Constitution of Turkey that gave certain reform laws special constitutional status. Pursuant to Article 174 of the Turkish Constitution, [n]o provision of the Constitution shall be construed or interpreted as rendering unconstitutional the Reform Laws indicated below, which aim to raise Turkish society above the level of contemporary civilisation and to safeguard the secular character of the Republic. These reform laws include the Acts on the Unification of the Educational System; civil marriage according to which the marriage act shall be concluded in the presence of the competent official, adopted with the Turkish Civil Code ; the Adoption of International Numerals; the Adoption and Application of the Turkish Alphabet; and the Prohibition of the Wearing of Certain Garments. 163 Even though none of these reform laws can be interpreted as being unconstitutional, there is no provision in the Constitution that would prevent their repeal through legislation. Nonetheless, the special status the Constitution affords to the reform laws demonstrates the important role they continue to play in Turkish society. Atatürk and his supporters accomplished in less than twenty years what would have normally taken more than five to six hundred years. 164 British Prime Minister David Lloyd George said the following about Atatürk: The centuries rarely produce a genius. It is our bad luck that the great genius of our era was granted to the Turkish nation. 165 Likewise, in 1963, John F. Kennedy stated: Atatürk s name reminds us the historical achievements of one of the greatest men of this century, his inspirational leadership for the Turkish nation, his vision in understanding the modern world, and his power and courage as a military leader. 166 Pictures and statues of Atatürk can be seen all across Turkey, everywhere from classrooms to offices, from government buildings to restaurants. His legacy still continues to affect everyday life in the modern Republic of Turkey. This Part outlined the reforms that the TGNA adopted in order to form a secular and democratic Republic following the collapse of the Ottoman Empire. The next Part examines the current state of secularism in the Turkish Constitution and how the legal system has responded to Atatürk s reforms Id. at TURK. CONST. art. 174 (1982), available at This is not a complete list of the reform laws that fall under the protection of Article 174. For a full list, see id BORAK, supra note 71, at Ilkin, supra note Atatürk Soc y of Am., (last visited Aug. 3, 2005).

20 20 TEXAS INTERNATIONAL LAW JOURNAL VOL. 42:1 V. SECULARISM AND THE TURKISH CONSTITUTION This Part provides an overview of the principle of secularism in the Constitution of Turkey. Subpart A examines the amendments implemented in the Constitution of 1961 with respect to secularism. Subpart B analyzes the principle of secularism in the current Turkish Constitution. A. The 1961 Constitution The 1924 Constitution of the Republic of Turkey was replaced by the 1961 Constitution 167 following a takeover of the government by the Turkish Armed Forces on May 27, The reason for this extreme measure was the Democrat Party s, which was the majority party in the TGNA, use of religious activism to distract the people from hard economic times along with its use of the army and police to suppress opposition. 169 The military rule lasted until 1961, at which time democratic elections resulted in the return to civilian government. 170 There were several changes in the 1961 Constitution with respect to secularism and freedom of religion. Article 12 of the new Constitution declared that everyone is equal under the law regardless of his or her religion or sect. 171 Article 19 provided for the freedom of religion and conscience, while prohibiting the abuse of religion or other things sacred. 172 It further stated that any political party that violated the principles in Article or tried to base, even partially, the legal, political, social, or administrative system of the nation on religious laws would be permanently dissolved. 174 Article 57 required the programs and regulations of political parties to conform to, among other things, the secularist characteristics of the government and authorized the dissolution of political parties that failed to adhere to these principles. 175 Article 153 of the new Constitution gave certain reform laws special constitutional status. 176 The new Constitution also formed the Constitutional Court, giving it the power to annul unconstitutional laws and regulations passed by the TGNA. 177 Finally, Article 154 placed the Department of Religious Affairs (Diyanet Isleri Baskanligi) within the general administration of the government See Aliefendioglu, supra note 19, at Dokupil, supra note 63, at Id Country Studies Program, Fed. Research Div., Library of Cong., Turkey Political Parties, (last visited Mar. 4, 2006) Aliefendioglu, supra note 19, at 88-89; see also TURK. CONST. art. 12 (1961), available at Aliefendioglu, supra note 19, at 89; see also TURK. CONST. art. 19 (1961) Aliefendioglu, supra note 19, at 89; see also TURK. CONST. art. 19 (1961) TURK. CONST. art. 19 (1961) Aliefendioglu, supra note 19, at 89; see also TURK. CONST. art. 57 (1961) Aliefendioglu, supra note 19, at 89; see supra text accompanying note 163; see also TURK. CONST. art. 153 (1961) Dokupil, supra note 63, at Aliefendioglu, supra note 19, at 89; see also TURK. CONST. art. 154 (1961). For further discussion on the role of the Department of Religious Affairs in the Turkish government, see infra Part V.B.4.a.

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