---

by
MÜMTAZ"ER TÜRKÖNE

Constitutional Court President Haşim Kılıç said the reasoning behind the closure case against the ruling Justice and Development Party (AK Party) will be made public in early October.

In addition to the decision, which did not close the AK Party down but instead cut Treasury funds to the party, another important justification will be announced on the same date.

This decision was the one that canceled constitutional amendments drafted jointly by the AK Party and the Nationalist Movement Party (MHP) to lift a ban on wearing headscarves on university campuses. These two decisions, which caused much debate in Turkey, are directly related to the principle of secularism. Both decisions rely on an original interpretation of secularism. For this reason, by declaring its reasoning for these decisions, the court will explain how it defines offenses concerning secularism and anti-secularism.

One can correctly assert that the “reasoning” behind the decision is more important than the decision itself. Actually, by announcing its decisions without the reasoning behind them, the Constitutional Court is violating the provisions of the Constitution. This delay in making the reasoning behind the decisions public can be expected to trigger new debates.

What acts of the AK Party were against secularism?

The reasoning for the ruling that “the AK Party is a focal point of anti-secular acts” should be based on two factors: The first is a clear definition of secularism, the second a list of acts carried out by the AK Party that run against this clear-cut definition of secularism. Then, the reasoning for the offense of “being a focal point” should be described based on the evidence concerning the number and frequency of these acts.

The key issue in this “reasoning” will be whether secularism will be accepted as a “lifestyle,” as defined in the indictment prepared by the chief prosecutor. Is secularism a lifestyle? If the court says “yes” to this question, other questions and problems will emerge. A “philosophical belief” will be derived from this “lifestyle” as was done in the indictment. Everyone will be forced to be loyal to this philosophical belief.

This debate has critical aspects that relate not only to the AK Party but also to individuals. Defining an inviolable constitutional principle as a “lifestyle” is a serious threat to our choices that define our own lifestyles as everyone will be obliged to lead a life that conforms to this lifestyle.

Turkey has been badly tattered. Law does not flourish in a country where some groups regards themselves as entitled to overthrow the government, relying purely on force that derives from the weapons they have. And if law cannot flourish in a country, that country cannot become a civilized, modern and advanced country. Law is the outcome of critical reason, sound reasoning and logic. A court that says, “I said it, so it happened,” cannot take the place of coup implementers who boast similar statements. Then, if the Constitutional Court is to define secularism as a “lifestyle” in the justification section of its decision in the AK Party case, then it has to establish law, not arbitrariness. To do this, it has to answer the following questions: How can secularism be a lifestyle? What is the legal basis of a secular lifestyle? What sanctions are imposed on those who do not adopt secularism as a lifestyle?

How can individuals be secular?

These questions, which will be answered by the justification of the Constitutional Court, have a concrete answer that governs the AK Party case. This concrete answer was brought to the agenda by the indictment and was discussed at length in the defense of the AK Party. For a “secular lifestyle” to exist, one must assume that individuals can be secular. Only “secular individuals” can adopt a “secular lifestyle.” Can secularism be a characteristic of individuals in addition to being a characteristic of states? Can individuals be secular? In this debate, the leader of the AK Party was tried for his statements. The AK Party leader argues that only states can be secular while individuals cannot be secular. On the other hand, the indictment describes this statement as “an act of anti-secularism.” If these statements are included in the justification of the Constitutional Court as “acts of anti-secularism,” this will mean that “individuals are supposed to be secular as well.”

Will we find the following sentences belonging to the leader of the AK Party, included in the indictment, also in the justification? “Individuals cannot be secular. Secularism is in essence a system and the secularism of states, not of individuals, can be suggested. As a human being, I am not secular, but the state is secular. Yet, I am liable to protect the secular system,” Erdoğan had said. As a citizen, I agree with these words. I also think that this approach is vital to maintaining a secular system for the state. I believe that a political party that advocates this brand of secularism is a guarantee for my freedoms. If these words of the AK Party leader are “acts of anti-secularism,” then we all have to agree with the proposition that “individuals must be secular.” Only then can we can ask the following questions about these “secular individuals”:

How can individuals be secular? What are the characteristics of a secular individual? Which legal sanction can be applied in connection with the requirement of being a secular individual? If the justification of the court deems the above-mentioned words of the AK Party leader as an offense, should it not then offer at least a brief explanation on how individuals can be secular?

The judiciary s definition of secularism

While there are disputes about secularism as a lifestyle, there are also attempts to reinterpret the essence of religion for the sake of secularism. This attempt is being made by the top judiciary. The speech delivered by Supreme Court of Appeals President Hasan Gerçeker in the opening ceremony of the judicial term was overall a guiding one, but it was mind-boggling with respect to secularism.

Gerçeker defines secularism as follows: “Religion is a conscientious belief in the private life of an individual. The state is neutral toward all religious beliefs.” If this definition, which combines the freedom of religion and conscience and the neutrality of the state toward religions, is traced to its logical conclusion, then there will not be much of a problem. Based on this definition, you cannot impose secularism as a “lifestyle” that is making forays into private life. If religion can exist freely in the private lives of individuals, then you cannot require individuals to be secular. Even Gerçeker s brief discussion of the ethics on which law and religions rely can be regarded as correct as he sees the system of ethnics, which is based on reason, as compulsory for law. On the other hand, every religion is essentially an ethical system. To believe in a religion means to be bound by this ethical system.

Gerçeker s definition or interpretation of secularism based on Article 24 of the Constitution reinforces the “respect for beliefs.” However, the following question deals a fatal blow to Gerçeker s consistency: If the rules imposed by a secular state are not compatible with religious beliefs, what happens? This question invites another: Does the answer to this question interest the secular law? If the secular law attempts to interpret religious rules, as proposed by Gerçeker, does this not mean the end of secularism? Indeed, a legal system, by trying to answer this question, intervenes in the essence of religion. The legal outcome is the emergence of a state religion. The actual outcome is that religion defends itself against this external intervention. As a matter of fact, the Supreme Court of Appeals implicitly argues that the religious provisions that are against secularism can be reinterpreted to make them compatible with secular arrangements.

Conclusion

Secularism cannot be defined. Debates on secularism that go to extremes and the failure by the judiciary to make a clear-cut interpretation of secularism are making the legal system dysfunctional. On the one hand is a definition of secularism that sees secularism as a faith, ideology or lifestyle and that forces individuals to be secular, while on the other is the right to meddle with religion and change its rules on behalf of secularism. It is hard to live in these labyrinths, alienated from the true purpose of secularism. It is for this reason that secularism serves as a never-ending source of debate.

The justification of the Constitution Court will make it clear whether any progress has been made in this respect.

http://www.todayszaman.com/tz-web/detaylar.do?load=detay&link=152940&bolum=109

---