il libro - Silvio Riondato

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of the Council of Europe – of which Turkey is a member State – as well as of the
European Union – to which Turkey has applied for membership. e fact that the
attempts to lift the headscarf ban were (and still are) inconsistent with the Kemalist
notion of democracy does not mean that they are necessarily inconsistent also with
the contemporary European standards of democracy.
It should be further noted that this conict is not only ideological, but also institutional.
As stated by Ataman, «Özal wanted to restrict the Constitutional Court
to basic human rights and freedom issues. is would break the superiority of the
Kemalist elite in legislation, since by controlling the Constitutional Court Kemalist
leaders were able to prevent a non-Kemalist parliament from making anti-Kemalist
laws.» 20 . With the growing success of religiously oriented political parties, this con-
ict has become more and more an institutional struggle between the legislative and
the judiciary powers.
2.2. e 2008 constitutional amendment
On 9 February 2008, the Justice and Development Party, the Nationalist Movement
Party and some members of the Democratic Society Party approved an
amendment to Articles 10 and 42 of the Constitution, in order – according to their
declarations – to allow the wearing of the Islamic headscarf at universities and restore
female students’ rights to religious freedom and education. However, when reading
the text of the constitutional amendment, one realises that no mention is made of
this garment or religious dress or symbols.
e phrase «in using all forms of public service» was added to Article 10 § 4, so
that it became «State organs and administrative authorities shall act in compliance
with the principle of equality before the law in all their procedures and in using all
forms of public service.». A seventh paragraph was added to Article 42, according
to which «No one shall be deprived of the right to higher education for any reason
not explicitly written in the law. Limitations on the exercise of this right shall be
determined by the law.».
us, the direct aim of this reform was not to guarantee the right of female
students to wear the Islamic headscarf at universities, but rather to rearm the supremacy
of law over the judges’ continuous interferences in the parliament’s areas
of competence, and to reduce their opposition to non-Kemalist parties and to the
attempts to revise Atatürk’s ideological tenets. e amendment to Article 42, in particular,
was meant to stress that it does not belong to courts to prohibit or limit practices
carried out in the exercise of human rights and fundamental freedoms. Such
limitations may be prescribed only by a law, approved by a parliament that is truly
20 M. Ataman, Özal Leadership and Restructuring of Turkish Ethnic Policy in the 1980s, in Middle Eastern
Studies, 38, 2002, p. 135.
e Constitutional Court and the Principle of Secularism
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