On 8 October Turkey lifted its ban on women wearing the Islamic headscarf in state institutions. The new rules were published in the Official Gazette and took immediate effect; but they do not apply to the judiciary or the military. The ban goes back to the early days of the Turkish Republic and the desire of Kemal Atatürk and his associates to create an entirely secularist, modern Turkey; and Article 2 of the Constitution states that

“The Republic of Turkey is a democratic, secular and social [demokratik, lâik ve sosyal] state governed by the rule of law…”.

Reuters reports that Prime Minister Tayyip Erdogan told a meeting of his (Islamist) AK Party that the ban had been hurtful to many young people; on the other hand, his opponents see its abolition as evidence that the Government wants to promote an Islamist agenda at the expense of constitutional secularism.

Comment

No doubt a few readers, at least, will recall the oft-cited Leyla Şahin v Turkey [2004] ECHR 299, in which the Grand Chamber held unanimously that the University of Istanbul’s ban on headscarves was justified in principle, proportionate to its aims and, given the secularist nature of the Turkish Constitution, “necessary in a democratic society” – and did not, therefore, violate Article 9 ECHR (thought, conscience and religion). Some time later, when a devout Muslim woman Member of the Turkish Grand National Assembly was refused permission to wear the hijab in the plenary it led to the dispute in Kavakçi v Turkey [2007] ECHR (No. 71907/01), in which the Court held that the dissolution of Fazilet Partisi (the Virtue Party) had violated Article 3 of Protocol No. 1 (free elections) but declined to examine Ms Kavakçi’s separate complaint of a breach of Article 9 (thought, conscience and religion).

So the result of the lifting of the ban might possibly be that Şahin, one of the leading cases on religious dress and Article 9, now relates to a situation that no longer exists. (What’s the Turkish for “It’s a funny old world”?). But that, of course, assumes that the lifting of the ban will itself not be struck down.

In 1989 President Kenan Evren sought annulment of a law relaxing the ban which had been passed by the Grand National Assembly and in Decision No. 1989/12 of 7 March 1989 the Constitutional Court held that the wearing of headscarves in universities was unconstitutional. In February 2008 the Assembly again passed an amendment to the Constitution which would have allowed women to wear the headscarf in universities, arguing that many women would not seek a university education if they could not wear the hijab – and in Decision No. 2008/116 of 5 June 2008 the Constitutional Court again struck it down as unconstitutional. For a full analysis of the recent history and the Constitutional Court’s decisions, see Valorie K Vojdik: ‘Politics of the Headscarf in Turkey: Masculinities, Feminism, and the Construction of Collective Identities‘ 33 Harvard Journal of Law & Gender (2010).

So, on the assumption that the present attempt to lift the ban will almost certainly be challenged, what are its chances of survival? Not being an expert in Turkish  constitutional law I haven’t the foggiest idea – but previous experience would suggest that it is, at the very least, an open question.