Turkish opposition CHP's incomprehensible bill

The CHP recently submitted a draft law consisting of three articles to the Presidency of the Turkish Grand National Assembly. On the one hand, the proposal is seen as a concrete step in the "reconciliation" that CHP leader Kilicdaroglu has been talking about for some time, and on the other hand, it has received acclaim as an attempt to thwart anti-CHP propaganda by providing "legal security for the headscarf." Nevertheless, the proposal is not without its critics.

The first criticism is related to the timing of the proposal. Accordingly, the proposal is perceived as a move that will distract public opinion from the process of passing a censorship measure in the Turkish Grand National Assembly called the "disinformation law" which has the potential to almost completely crush freedom of expression. Apart from the inaccuracy of the timing, it is considered to be uncalled for. The headscarf issue had disappeared in Turkey; no one was bringing up such an issue. What then is the point of reviving a non-existent issue?

Moreover, putting the headscarf issue back on the agenda could have given the AKP and Erdogan the opportunity to turn it into a polemic in order to use it as a tool to stop the erosion of AKP's voter base and even win back renegade voters. In fact, Erdogan immediately made a counter move and proposed to address the issue through a constitutional amendment as well as making regulations concerning the family and LGBTIQ+ individuals and groups.

Opponents of the critical remarks pointed out that those who do not support the ruling party have a personal allergy to Kilicdaroglu. They pointed out that Kilicdaroglu was taking the right steps, that prolonging the issue with such criticism would wear down the opposition front, that the priority was to get rid of the current authoritarian regime, and that such attitudes that wear down the opposition would benefit the government.

I would like to begin by granting that I see a greater or lesser amount of truth in each of these remarks. The proposal is indeed a concrete example of the discourse of "reconciliation," it is hard to disagree with that. Again, the proposal aims to prevent the propaganda of "if the CHP comes to power, it will ban the headscarf again" and remove an obstacle to reluctant voters turning to the CHP. It is hard to object to that, too. The timing is wrong, that is also true. However, there are still many problems with the proposal.

The first problematic aspect of the proposal concerns the context of "reconciliation." As is well known, the CHP was one of the leading political proponents of the headscarf ban in the past. This advocacy was not limited to advocating violations of the right to education in universities, but also played a role in the crisis that erupted during the 2007 presidential elections, which was summed up in the phrase "The headscarf cannot enter Cankaya!"

At present, the CHP associates the headscarf with freedom of "religious belief and conviction" and claims that this freedom should not be subject to any restrictions in democratic and secular constitutional states. This is problematic, because this claim is not true. The "freedom of religious belief and conviction" may be restricted by law, for the reasons stated in the relevant article of the Constitution, which may be considered necessary in a democratic society, observing the principle of proportionality. It is a fact that such restrictions exist in democratic and secular constitutional states. It is important to fully understand the nature of these restrictions, and this requires an understanding of the relationship between the rules of law and freedom.

Modern law rests on a foundation that recognizes the autonomy of the individual. Today, fundamental rights and freedoms guarantee that individuals are free to determine the rules of their own lives in an inviolable sphere. The rights and freedoms of the individual in this autonomous sphere of life may be restricted for reasons of public health, public morality, etc., in the national and international context, but the principle is that freedom is the rule, restriction is the exception, and the exception should be kept narrow and interpreted narrowly.

Clothing in general, and the headscarf in particular, is a matter on which individuals are free to decide within the autonomous space granted to them, according to their preferences in life. Therefore, restrictions on clothing and, in this context, the headscarf, must be "exceptions." Hence, the rule is that the headscarf should be free depending on the autonomous and free decision of the individual. Exceptionally, it may be regulated in which cases the headscarf can be prohibited or prescribed. However, these regulations must be made by law in accordance with the constitution, the requirements of the democratic social order and the principle of proportionality.

Here the problem with the concrete experience of Turkey becomes apparent. With the laws enacted after the proclamation of the Republic and preserved in the Constitution under the name of "Revolutionary Laws," the dress code of citizens was regulated, the wearing of religious clothing such as robes and turbans was prohibited, and hats became mandatory. It should be noted, however, that all of these prohibitions and obligations regarding dress and attire refer to "men." There is not a single regulation about women's clothing and especially the headscarf. Even in the period after September 12, 1980, when the headscarf ban was on the agenda and became a social and political issue, there was no legal regulation that formed the basis for this ban.

The headscarf bans were enforced by certain ordinances applicable to women employed in the public sector and practicing a profession as members of professional organizations with the status of a public institution. Similarly, it is common knowledge that the issue arose and spread when a circular, which is a lesser norm than a regulation, attempted to enforce a ban on headscarves for female students. However, these restrictions, one concerning the right to work and the other the right to education, had to be imposed on the grounds stated in the Constitution, by law, and in accordance with the requirements of the democratic social order and in keeping with the principle of proportionality. Therefore, it is clear that a completely illegal process has taken place, which does not correspond to any of the above, and that women's rights to work and education have been violated.

Indeed, in the explanatory note to its "Proposal for Law for Women Not Subject to Coercion Other than Wearing Clothes in the Practice of Their Profession," the CHP attempts to address this injustice: "Certain oppressive practices in the past have left negative traces in our social memory and have also been a means of political exploitation. In the recent past, female students wearing headscarves were denied the right to education, and women wearing headscarves were not allowed to work in the civil service." In my view, two important problems arise here. The first is that rights violations, which are rightly said to have "left negative marks on our social memory," have also become "instruments of political exploitation."

This statement is inconsistent with the notion of "reconciliation" that supposedly underlies the CHP proposal. The resistance and struggle against rights violations regarding wearing headscarf, which began with a regulation issued by the September 12 (1980) junta and a circular issued by the Council of Higher Education (YOK) in 1982, and continued with the regulation that some professional associations with public institution status attempted to introduce, indeed falls within the realm of "political" activity. The culmination of this struggle was the constitutional amendment to legalize the wearing of the headscarf in 2008.

To call this ”exploitation," on the other hand, is in great contradiction to the contention in the same paragraph that "rights violations" were committed. The real exploitation was evident in events such as the Constitutional Court's interference in the parliament's election of the president of the republic, the subsequent attempt to shut down the AKP with an indictment centered on the constitutional amendment for its alleged legal protection of the headscarf, and the ruling that the AKP had become a hotbed of anti-secular activity in the wake of the invalidated amendment. In short, if this proposal is to be placed in the context of reconciliation, it is clear that this is not the path to reconciliation and to confrontation that is required for true reconciliation.

Beyond that, there may be a much bigger problem with the proposal. The explanatory note reads as follows: "This proposal has been drafted to put an end to the coercion of what women should or should not wear through circulars, directives, regulations, or other administrative rules and orders issued by their hierarchical superiors, and to legally guarantee women's freedom to choose what they wear."

In contrast, female university students, who have been much more clearly at the center of the headscarf issue in Turkey than women working in public administration, were excluded from the scope of this proposal. Inexplicably, the proposal specifically refers to women working in professions in public institutions or professional organizations with public institution status. As stated in the explanatory note, the proposal seeks to legally protect the headscarf of "women employed in the exercise of public services in any status" and "women practicing a profession registered with the professional organizations that were established under Article 135 of the Constitution." Why this is so, to be honest, is incomprehensible.

In fact, in today's legal system, the headscarf does not need legal protection. Nor did it need it in the past. It is now widely accepted that past prohibitions and practices were clear violations of rights and even criminal offenses. Moreover, as far as public employees are concerned, the latest rejection by the Council of State of the request for annulment of the regulation allowing the headscarf to be worn in the armed forces has left no issues in any sector. As for universities, the "free dress code" has been in force since 1990.

It should not be forgotten that the real guarantee of rights and freedoms lies rather in the practice of laws, and in the internalization of a notion of law worthy of a constitutional democratic state by all decision-makers, not to mention the judiciary.