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subordinate courts’ case law. Because the headscarf ban – as stressed by its opponents
– violates the right to religious freedom and because the limitation on the exercise of human
rights and fundamental freedoms may only be prescribed by a law, there have been
a few attempts over time to introduce a higher-ranking source of law expressly allowing
the use of the Islamic headscarf. Both the legislative amendments in the Özal era and
the 2008 constitutional amendment had in fact the purpose to guarantee the right to
wear the Islamic headscarf by prevailing over lower-ranking sources of law and case law,
which prohibit it.
2.1. e Özal era
Turgut Özal, leader of the Motherland Party, was Prime Minister (1983-1989) and
President of the Republic of Turkey (1989-1993). His era was characterised by a deviation
from Kemalist orthodoxy. In 1988, the parliament led by the Motherland Party,
which was supported by the religious segments of the middle class, approved an
amendment to Law no. 2547/1981 on higher education, in order to allow the wearing
of the Islamic headscarf at universities. e reform did not enter into force, because of
the veto by the President of the Republic Kenan Evren (the general who had led the
1980 coup d’état), on the grounds that it was a breach of Kemalist reforms and principles,
including secularism, modernisation and equality. e same year, the parliament
approved another amendment which, while prescribing modern dress and appearance,
‘did not prohibit’ the covering of the neck and hair for reasons of religious belief. Özal
maintained that this reform was linked to the application for full membership in the
European Community, which had been formally requested on 14 April 1987, and to
the need to prove the country’s democratic credentials. However, Evren warned against
the Islamic revival and applied to the Constitutional Court 14 .
In the judgment of 7 March 1989 15 , the Constitutional Court declared the illegitimacy
of the amendment, as inconsistent with the principles of secularism, State unity,
public security and order, and went as far as to maintain that dress is an issue concerning
not only physical appearance but also mentality; it does not regard only the body, but
also the spirit, sentiments and thoughts 16 . e judges further provided a denition of
secularism, which has been later quoted by the European Court of Human Rights. is
principle has acquired «constitutional status by reason of the historical experience of
14 A. Kuru, cit., 188-189; Human Rights Watch, Memorandum to the Turkish Government on Human
Right’s Watch Concerns with Regard to Academic Freedom in Higher Education, and Access to Higher
Education for Women who Wear the Headscarf, 29 June 2004, in http://www.hrw.org/sites/default/
les/related_material/headscarf_memo.pdf, p. 27; I.D. Daği, Human Rights, Democratization and the
European Community in Turkish Politics: the Özal Years, 1983-87, in Middle Eastern Studies, 37, 2001,
p. 36.
15 e judgment was published in the Ocial Gazette no. 20216 of 5 July 1989.
16 A. Kuru, cit., p. 189.
e Constitutional Court and the Principle of Secularism
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