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Turkey’s ‘secular’ constitution in flux

Turkey's President Tayyip Erdogan attends the first Friday prayers at Hagia Sophia in Istanbul

By Jason Krentos

Turkish Prime Minister Tayyip Erdogan’s Justice and Development Party (AKP) has been closely monitored due to its promotion of a theocratisation of Turkey, a Republic founded upon rigorous secular principles. However, have changes to Turkish state infrastructure been merely cosmetic such as the recent repurposing of Hagia Sophia as a Mosque? Or has there been a deeper process of Islamification taking place?

The observation made by this article is that while there has been no overt attempt to de-secularise the Turkish constitution as of yet, changes in the institutional context in which it operates has allowed political Islam to grow as an aspect of the state.

Nominally Turkish law is based upon Civil Roman Law with a source of legitimacy grounded in the Kemalist Constitution of 1924 and its underlying principles of Secularism, Republicanism, Equality before the Law, and Social Equality.

This differentiates it from arguably almost all other states with a Muslim majority population which can be placed on a spectrum between states that apply a form of Islamic Sharia directly (eg Saudi Arabia), and states which apply Islamic Sharia more loosely as an interpretive constitutional tool and at least as a ‘’source’’ of law (eg. See Article 2 of the Egyptian Constitution ‘’Islamic Sharia is the principle source of legislation’’).  In other words, Turkey unlike other Muslim majority states has no underlying mechanism allowing judges to interpret Islamic values into the law.

Despite the conceptual character of the Turkish legal system, the secular foundation of the Turkish State has an Achilles heel, which at first glance would seem to be an asset for an institutional state apparatus whose ethos is irreligious.

The model of secularism adopted in Turkey, referred to as Laiklik, denotes the state regulation of religion as opposed to the separation of the state from religion. In its inception the concept was used as a basis to diminish religious influence within the public square in Turkey.

However, some of the same institutions and constitutional rational that were used to regulate religion out of the public square to fulfil the proactive goals of Laiklik are now potentially being used to develop the AKP’s version of Sunni Islam as a source of legitimacy.

To enforce Turkey’s secularisation project under Kemalist leaning governments the Presidency of Religious Affairs (Hereafter the Diyanet) was established as an administrative unit charged with the regulation of religion in particular the majority Sunni Islamic faith.

This extended to regularising what legitimate religious practice, education and other activities could be.  It ‘nationalised’ the role Imams of the dominant Sunni Faith as civil servants working towards the secular aims of the Turkish State repurposing much of the old institutional infrastructure under the former Ottoman Caliphate.

In a paradoxical change in format the Diyanet has now been increasingly staffed by AKP-leaning theocrats such as Mehmet Gormez and Ali Erbas, who have shifted the role of the state institution from one which regulates Islam for secular goals to an entity which regulates Islam for religious-political goals.  Following the coup attempt in 2016 Erdogan was able to purge the ranks of the Diyanet, further adjusting its membership to the priorities of the AKP.

Islam, provides a highly developed theological and jurisprudential basis (known as – Fiqh), developed from the first Islamic Caliphate until the present day, for involvement in a comprehensive scope of human activity from commerce to public rights and obligations. It has therefore become possible for a theocratically minded Diyanet to use its regulatory mandate to enter a policy space beyond what would typically be considered the domain of religion – At least as understood within secular constitutionalism and more specifically within Kemalist ideology which had previously attempted to relegate religion to the private personal sphere.

Since 2011 the Diyanet has been issuing halal certificates for food products, in 2015 it declared; celebrating western New Years, tattoos and feeding dogs at home, haram-prohibited

Overall, it has been involving itself with concerns that are relevant to Islam but which spill over to areas that had previously been considered within the secular realm, by the Turkish political class. This includes the provision of Fatwa’s on demand which while not legally binding have been shaping public behaviour.

The President of the Diyanet Ali Erbas said shortly after the repurposing of Hagia Sophia – ‘’Mosques also function as schools. Just as our prophet was able to raise his companions in mosques, we are trying to raise our youth and children in mosques,” Such statements from the Diyanet would have been thought unthinkable from an organisation that originally been an instrument used among other institutions to secularise the approach to education under the concept of Tevhid-i Tedrisat (unity of education) an essential component of Ataturk’s revolution.

What has been happening within the Diyanet and its outward functions should not be seen isolation with the broader policy objectives of the AKP.

The government has set a goal to increase Islamic banking in the country to 15 per cent by 2025. This has provided yet more political space for the Diyanet to operate within. The Diyanet as a source of legitimacy for what is correct under Islam has not shied away from shaping policy in finance. Recently the organisation said with regard to bitcoin and other cryptocurrencies that: Virtual money, although used by some sectors as a means of exchange, can not be regarded as money because it does not have the prestige and credibility that the state provides, and because there is no central financial institution behind it and it is not under government guarantee.

The regulatory reach of Islamic policy areas allows the symbiotic relationship between the AKP led government and the Diyanet to become more and more entrenched.

In 2010 Erdogan placed significant emphasis on the importance of the Diyanet as a consultative body in a legislative reform initiative to abolish the ban on the Islamic headscarf.

There are multiple ways to interpret and implement Quranic verses such as Surah 24:31 (which calls on women to dress modestly) and in a secular state one would think that no one of these interpretations would be able to establish governmental primacy. Using the Diyanet as a consultative body on that matter necessarily establishes a specific state sanctioned conception of the meaning of specific religious texts.

The religious authority of the Diyanet was previously used to secularise meaning, it is now being used as an instrumental tool to supply social and religious legislation which according to Dr A Erdi Öztürk is being weaved into the fabric of the AKP’s political manoeuvres. This has turned the concept of Laiklik on its face.

Although the 2017 constitutional referendum did not explicitly change the constitutional principle of Laiklik the reach of political Islam has been incrementally increasing, arguably Erdogan did not need to modify the concept of Laiklik given how policy mechanisms have been operating de facto.

De jure change however cannot be ruled out as a potential future development.  In his article titled “The Value of Islamic Law: Could Islamic Law Pose an Alternative to Western Law?” Gözler said that the faculty of theology has increased five-fold from 2010 to 2019, from 6,252 students to 33,202. He also pointed out that Universities employing 24 faculty members for Roman law, the theoretical basis of the current Turkish legal system, while employing 407 for Islamic law, which does not have constitutional relevance, commenting that “There must be another underlying idea.”

This may be part of a pattern of increasing the theological training of Diyanet employees and potentially linked to a continued practice of developing an alternative base of legitimacy outside the secular legal system. However, with the proliferation of more and more religious based policy goals one cannot rule out plans for incremental legal change in Turkey through legislation or even the possibility for bolder constitutional change in future.

 

  • Jason Krentos is a Phd Candidate at the University of Manchester whose research concerns the rule of law and the theoretical position of religion in the UK constitution.


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