TURKEY: CONSTITUTIONAL COURT FLEXES MUSCLE IN

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 001853

SIPDIS

E.O. 12958: DECL: 10/23/2018
TAGS: PGOV PHUM PREL OSCE TU
SUBJECT: TURKEY: CONSTITUTIONAL COURT FLEXES MUSCLE IN
DETAILED HEADSCARF VERDICT

REF: A. ANKARA 1051

B. ANKARA 1451

Classified By: POL Counselor Daniel O'Grady, reasons 1.4 (b,d)


1. (C) Summary and comment: Turkey's Constitution Court
October 22 issued its "detailed verdict" fleshing out its
June 5 annulment of constitutional amendments designed to
lift the headscarf ban at Turkish universities. The Court
ruled that the proposed amendments were an attempt to
manipulate religion for political goals; violated the
"immutable" principle of secularism; and could be used to
pressure those holding differing political views and beliefs.
In dissent, two appointees of President Ozal, including
Court President Hasim Kilic, argued the Court had gone beyond
its legal mandate to review only the procedural aspect of the
amendments. The ruling Justice and Development Party (AKP),
joined by some legal scholars and analysts, lambasted the
Court for "usurping" Parliament's legislative power. Main
opposition Republican People's Party (CHP) and other AKP
critics welcomed the ruling as a warning to AKP against
pursuing its own single-minded political agenda without
regard for constitutional limits and the rights of others.
Several women's rights groups believe AKP's "clumsy" strategy
created unnecessary societal tension that quashed chances of
ending the ban and passing necessary constitutional reform in
the coming years. The Court's decision revived a debate on
the appropriate scope of parliamentary and judicial power and
demonstrates continuing political tension in Turkey that does
not bode well for renewed EU-related reforms in the
near-term. End summary and comment.

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Constitutional Court Issues Detailed Verdict
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2. (U) Turkey's Constitutional Court October 22 issued a
20-page written opinion explaining its June 5 annulment of
two constitutional amendments designed to lift the headscarf
ban at universities (ref A). The Court wrote that the
proposed amendments to Constitution Articles 10 and 42 were
an attempt to manipulate religion for political goals and
amounted to a violation of the "immutable" principle of
secularism. According to the Court, the amendments, even if
designed to grant freedom to those who wear the headscarf,
could be used to put pressure on people with different life
styles, political views, and beliefs. The Court stressed
that the Constitution does not allow use of religion,
religious feelings or sacred ideas to be exploited to solve
societal problems. The Court also emphasized that a
numerical majority in Parliament cannot be used to pass
legally invalid regulations; respect for constitutional
values is vital for the validity of legislative actions.


3. (U) Constitutional Court President Hasim Kilic and Justice
Sacit Adali objected to the ruling. In conversations with
reporters, Kilic argued that the clothing restrictions in
universities contradict academic freedom, stating,
"universities are not army barracks." Kilic said the
majority's opinion was based on fear instead of sound legal
principles. In his view, the Court exceeded the scope of its
authority by ruling on substance of a constitutional
amendment. Adali agreed with Kilic, calling the ruling an
"expression of mistrust of Parliament."

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Verdict Engenders Strong Reactions
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4. (C) Justice Minister Mehmet Ali Sahin told reporters that
verdict raised the question of whether Parliament retains the
power to amend the Constitution. AKP whip and constitutional
law expert Bekir Bozdag said the Court had imposed new red
lines on Parliament's legislative authority. He believes
that following the ruling, "there is no possibility to make a
change in the Constitution." AKP Diyarkabir MP Ihsan Arslan
told us the detailed verdict had, "shaken the separation of
powers system." By ignoring Constitutional Article 148, he
said, the judiciary "usurped the authority of the
legislature" and a handful of judges had "castrated
Parliament." Arslan believes that even with a large majority

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in Parliament, AKP not be able to overcome judicial
opposition to any important EU-related reforms.


5. (U) Far-right Nationalist Action Party (MHP) whip Mehmet
Sandir told reporters the decision will create uneasiness in
the nation's conscious and cause tension in society. In his
view, "Secularism should also guarantee the freedom of
religion and faith of our citizens." CHP welcomed the
reasoning as an important warning for AKP. CHP whip Hakki
Suha Okay told reporters he was satisfied to see the Court
declare that in democratic countries a constitution
determines legislative limits. In his view, "AKP has no
right to change the Turkish Republic's method of management
as it likes."


6. (U) Several legal scholars argued that the Court exceeded
its authority. Bahcesehir University Professor Serap Yazici
said the Court had issued a "political ruling" that strayed
beyond its obligation to determine only whether there was a
procedural violation in passing the amendments. Countering
that view, Yeditepe University constitutional law expert
Sultan Uzerturk said the Court should be able to put forward
"defense mechanisms" against attempts to change unalterable
articles in the Constitution. Uzerturk said European
countries such as Germany give their Constitutional Courts
authority to invalidate constitutional amendments if they are
contrary to overarching legal principles.


7. (U) Mainstream "Hurriyet" highlighted that the Court
declared that wearing a religious symbol could become a tool
used to pressure people with different political or religious
views. "Aksam" wrote that the "historic" decision warned
politicians against manipulating religion for political
goals. Islamist-leaning "Zaman" and "Yeni Safak" wrote that
the Court had usurped the powers of Parliament, and predicted
that the decision would undermine the Court's credibility.
Left-of-center "Taraf" wrote that there are now only two
options for parliament: rewriting the Constitution or
closing the Parliament.

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Headscarf Ban Opponents Criticize AKP's Clumsiness
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8. (C) Hidayet Tuksel, President of the Ankara Women's
Platform, a pious women's rights group that has long
advocated ending the headscarf ban, told us AKP bears fault
for quashing any chance of tackling the headscarf issue in
the next several years. Tuksel described her organization's
tireless efforts lobbying AKP to approach the headscarf issue
as part of a broad package of EU-related human rights
reforms. She said AKP's insistence on pursuing the issue as
the party's first agenda item following July 2007
parliamentary elections had made the issue political, created
societal tension, and ensured the impossibility of resolving
the issue in the near-term.


9. (C) Ayhan Bilgen, Secretary General of the Civil Society
Development Center, agreed that AKP should have worked on the
headscarf issue as part of a larger package of EU-related
reforms. Bilgen believes even Turks opposed to lifting the
headscarf ban would have been able to accept the change if it
had been part of a larger progressive human rights reform
process. Diyanet Women's Auxiliary Foundation President Ayse
Tucul agreed that it will be impossible to address lifting
the headscarf ban for the coming years. Tucul believes that
current societal tension and political divide over the
Ergenekon case and PKK terrorism have undercut the
possibility of political cooperation that is needed to tackle
difficult issues related to the Constitution.

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New Academic Leadership Could Impact the Headscarf Issue
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10. (U) Several University Rectors stated publicly that
their institutions will abide by the verdict. Speaking to
reporters, Akdeniz University Rector Israfil Kurtcebe said,
"Nothing will change. Turkey is not a tribal society but a
state of law. We will abide by the decision." Haceteppe
University Rector Ugur Erdener said there would be "no change

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in attitude and practices." We are obliged to act
meticulously as universities on the issue of protecting the
basic values of the Republic." Mugla University Rector Sener
Oktik said, "We have been exercising the rules of the
Constitution and will continue to do so."


11. (C) Middle East Technical University (METU) Professor
Aykan Erdemir told us AKP's efforts to appoint loyalists to
key positions in the Higher Education Council (YOK) and at
universities (ref B) could be an attempt to make an end-run
around the Court's verdict. He explained that selection of
academic officials flows from the leadership of YOK and
University rectors. Erdemir told us that the composition of
the leadership of Turkish universities was once part of the
"secular establishment" but had "been lost" due to AKP's
successful efforts to appoint its cadres.

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