HEADSCARF PASSIONS

Everything falls back into place. It was 26 years ago exactly that Turkey's Constitutional Court last revoked corrections and amendments to the country's Constitution. Since then many people in Ankara have forgotten that this is even possible. However, on the morning of 5 June the domestic political balance of forces changed radically, disappointing supporters of the ruling Justice and Development Party (AK Party) whose election victory last year inspired confidence in the unshakeable course of Prime Minister Recep Tayyip Erdogan. Another argument in favour of the prime minister's supporters was the Constitutional Court's decision to reject the 2007 lawsuit of the opposition People's Party that called for the changes to the procedure for electing the head of state to be revoked. Preferring to avoid confrontation with the ruling party, the court gave the go-ahead once again to changes in the text of the Constitution. As a result, for the first time in the history of Turkey presidents were not elected by parliament but directly by the voters. It looked as though the country's supreme judicial body was not going to use its powers to affect changes to the Constitution on lifting the ban on women wearing head coverings either. However, the year 1982 was repeated in 2008. By nine votes in favour and two against the Constitutional Court revoked the amendments to the 10th and 42nd articles of the Constitution passed by parliament and confirmed by the president, which proposed lifting the ban on wearing the headscarf in higher education institutions. The court's verdict says clearly that the amendments contradict the second article of the Constitution (which is one of the inviolate articles) on the secular foundation of the state.

The decision on the headscarf by Turkey's Constitutional Court is highly debatable, as, under legislation, the Constitutional Court has the right to revoke constitutional amendments only if they are found to be "wrongly formulated" or "parliament has followed the wrong procedure for adoption". Neither applied in this case. But the court went further, analysing the formulation of the amendments made and their correspondence with the articles of the Constitution. 

Whoever has visited Turkey, even if only once, will have seen the important place of religion in the country's social structure. In the 1990s no-one believed that any party in Turkey could form a government on its own. However, Recep Tayyip Erdogan, who began his political career in pro-Islamic parties, later banned by the same Constitutional Court, managed to gather around himself a reforming wing of politicians who favoured respect for Islamic values. And the result was that they came to power in 2002 and gained the support of almost 47 per cent of the electorate at the last elections. Erdogan's last election campaign was memorable for his promise to lift the ban on the hijab (or headscarf) which he tried to keep. It did not work out. It didn't even help that the head of state is a former member of the ruling party and close friend of Erdogan - Abdullah Gul. The Constitutional Court has done what the shattered opposition could not. 

Analysis of the latest statements shows clearly that the conflict over the hijab between the judicial and legislative branches of power will be long drawn out and the ruling party, which has a majority in parliament, will not give up easily. This is confirmed by the very negative reaction of the representatives of the legislative and executive authorities. 

Meanwhile, the Constitutional Court, which is considered the supreme judicial body in Turkey, whose decisions are not open to discussion and certainly not revocation, has one more ace up its sleeve - the continuing legal process to close the ruling party and place a five-year ban on dozens of AK Party officials being involved in politics, including the cabinet chief Recep Tayyip Erdogan. Under the Turkish Constitution, decisions of the Constitutional Court can be revoked only by the court itself. This means that the fate of a repeat initiative to lift the headscarf ban is practically already decided.

As a result female students who cover their heads cannot enter university campuses. Turkey's first lady, Hayrunnisa Gul, falls into this category. In her time she has even appealed to the European Court for Human Rights in an attempt to lift the ban. Vice-chancellors, of whom there are a fair few, who allow students wearing headscarves to enter university campuses will be held criminally responsible and lose their jobs.

One of the scenarios for the development of the situation most actively discussed in the political corridors of Ankara is passing a new Turkish Constitution at referendum which would allow the ban on the hijab to be cut off at the root. However, it is now clear that the Constitutional Court would interfere in the process of adopting a third constitution.

The first comment for several months from Turkey's prosecutor general, Abdurrahman Yalcinkaya, is interesting in this regard. It is on the basis of his lawsuit that the ban on the activity of the AK Party is being considered at present. Abdurrahman Yalcinkaya indirectly admitted that he initiated the case against Prime Minister Recep Tayyip Erdogan and his party in response to the AK Party initiative to lift the headscarf ban. According to the prosecutor general, lifting the ban on the headscarf will be the starting point for the differentiation of students and will create a chaotic atmosphere, while the weakening of state control over religious issues in turn does not fit with the democratic foundations and legal regime of the state.

The government's response was not long in coming. The first reaction came the same day from Deputy Prime Minister Cemil Cicek who said that the government is waiting for the publication of the full text of the legal ruling on the hijab. Straight after this, an extraordinary sitting of the ruling party was called. Its outcome can be summed up in the phrase, "The Constitutional Court struck a blow not against the ruling party but against parliament which must gives its response." In this way the AK Party deflected the blow onto parliament whose decision had been revoked by the court. 

From this moment the key figure in the headscarf story has been Koksal Toptan, who should have given a harshly negative assessment of the judges' actions, according to Erdogan's supporters' plan. 

Strange as it may seem, the opposition, which includes avowed opponents of Erdogan, has not been loud in its support for the Constitutional Court. For example, the chairman of the Republican People's Party, Deniz Baykal, kept to "a call for calm and respect for the Constitutional Court". He expressed his regret that the ruling party, rejecting cooperation with the opposition, "had gone so far". 

At the same time the head of the parliamentary commission on legal issues, Ahmet Iyimaya, proposed that parliament should have the power "when necessary to veto decisions of the Constitutional Court". According to his plan, decisions of the Constitutional Court could be "frozen or revoked" if one-third of the total number of members of parliament submitted a written request which was then approved by three-fifths of deputies. The decision could not be considered for another five years, Iyimaya proposes. However, this radical initiative has yet to receive support from the government. 

The chairman of the Nationalist Movement Party, Devlet Bahceli, made another original proposal - to clone the ruling party which, he says, would get round the introduction of a political ban on most of Erdogan's supporters. According to Devlet Bahceli, deputies in the Justice and Development Party faction should join the new party which would allow the current government to continue. Just those people against whom political sanctions might be introduced would remain in the old party. And since the new political structure would be created before the pronouncement of the Constitutional Court decision, the party would not be considered the legal successor to Erdogan's party. So, more than 300 members of parliament would start work with a clean slate. Although the prime minister himself cannot avoid "a ban on political activity", his child - the ruling party - will be saved. At the same time, Devlet Bahceli supported the ruling party in accusing the Constitutional Court of taking "political decisions". Speaking in parliament, Bahceli said that "the supreme judicial body has exceeded its constitutional powers and spoken on the side of the opposition". "No judicial body has the right to revoke clauses in the current Constitution. This is illegal and must be stopped."

As for the speaker of the Grand National Assembly (parliament), Koksal Toptan, he has "disappointed" the ruling party which expected him to publish proposals to discuss a new version of the country's Constitution. The AK Party itself, which is "the target of the courts and prosecutor's office", is trying in the current situation not to turn a new wave of dissatisfaction against itself.

Koksal Toptan said political passions could be relieved only by a move to a two-chamber parliamentary system. He said that the institution of a Senate (upper chamber), which existed in Turkey from 1961 to 1980, should be restored. In this way the legislative body would discuss in more detail the decisions taken and the position of all political forces would be taken into account as far as possible. At the same time the Senate would have the function of overseeing that parliament's decisions corresponded to the spirit of the Constitution, which would reduce the importance of the Constitutional Court.

Prime Minister Recep Tayyip Erdogan himself said that the decisions passed by parliament are the position of the people, implying that the country's supreme legislative body is answerable only to the voters, not to the judges. "No-one but the people can hold parliament to account or discuss decisions passed by parliament," Erdogan said, stressing that the headscarf problem should be in the past. As an example, the prime minister cited the fact that Mustafa Kemal Ataturk, founder of the Turkish Republic, "knocked on the doors of parliament" in the darkest days of history.

Finally, on 10 June in parliament Recep Tayyip Erdogan accused the opposition Republican People's Party of stirring up passions in the country and trying to create conflict between the branches of power. The prime minister and his supporters also accused the Constitutional Court of exceeding its authority. "Judges do not have the right to use levers which are not assigned to them by the constitutional order. This violates the democratic foundations of the country," Recep Tayyip Erdogan said. He went on to ask, "If the government or parliament makes an error, they receive the appropriate response at the ballot box or in the courts. Who will respond to the judges when they make an error?" In conclusion the prime minister called on his supporters to show restraint. Several AK Party officials made the same plea, including Deputy Prime Minister Cemil Cicek, who said that "keeping a cool head will allow us to ward off the next blow from the Constitutional Court in the form of a ban on the activity of the ruling party".

This shows that the idea of holding extraordinary parliamentary elections remains on paper only, as Erdogan and his supporters realize that even a greater victory in general elections will have no influence on the judges. On the threshold of municipal elections in 2009, Erdogan's party, supported on the hijab question by some of the opposition, has garnered another point in its favour, while the image of a "wounded party" allows the AK Party to storm the final bulwarks of its political opponents. The Constitutional Court has played into Erdogan's hands and it is now time to make the most of this, which is basically what the prime minister is doing.