Yalova
Ways of expressing freedom of
conscience and religion - national facts
FREEDOM OF CONSCIENCE AND RELIGION IN TURKEY
Freedom of religion is among the freedoms
introduced by the constitutionalist movements of the 18 th and 19 th century.
In fact, the Bill of Rights of Virginia dated 1776, refers to the freedom of
religion in its article 16. According to this article: “That Religion, or the duty which we owe to our Creator, and the manner
of discharging it, can be directed only by reason and conviction, not by force
or violence; and, therefore, all men are equally entitled to the free exercise
of religion, according to the dictates of conscience; (Volume 5, Page 4) and
that it is the mutual duty of all to practise Christian forbearance, love, and
charity, towards each other.” Similarly article 10 of the 1791 French
Constitution recognized this freedom. According to article 10: “No one shall be disquieted on account of
his opinions, including his religious views, provided their manifestation does
not disturb the public order established by law.”
Moreover, the constitutionalist movements of
these centuries based the political order and its legitimacy on rational
concepts and values such as national sovereignty rather than religious norms.
Thus, the adoption of constitutions did not only recognize fundamental rights
and freedoms of citizens, but also paved the way for modernization,
democratization and secularization.
The founders of the Turkish Republic, who were
inspired by Western constitutionalism and its philosophy, aimed at establishing
a modern state based on secularism. Therefore, the freedom of religion was
recognized by the 1924 Constitution in its article 75 in order to fullfil one
of the basic requirements of this principle. According to this article: “No one shall be criticised because of
his/her philosophical belief, religion and sect. All religious ceremonies are
free provided that they are not in conflict with security, moral traditions and
norms of laws.” The Constitution of 1924 recognized the freedom of religion
among other classical rights; however, it did not mention secularism in its
original text as a basic characteristic of the Republic.
Contrary to the ultimate aims of the Founders
to establish secularism, the Constitution of 1924 contained certain provisions
–in article 2, article 26 and article 75-which were not compatible with this
principle.
According to Article 2: “The religion of the State of Turkey is the religion of Islam”
Article 26 referred to the implementation of sharia laws among the powers of
Turkish Grand National Assembly. Article 75 regulating the oath of the
President contained religious terms.
These provisions were abolished in 1928, and
in 1937 secularism was adopted as one of the six basic characteristics of
Turkish Republic. Thus, the constitutional order of the Turkish Republic was
entirely secularised.
The 1961 Constitution maintained the
secularist character of the Turkish Republic in its various articles. Article 2
of the 1961 Constitution mentioned secularism among the basic characteristics
of Turkish Republic as its predecessor did. Article 19 of this constitution
recognized freedom of religion and defined its scope in detail. According to
this article:
“All individuals
shall have freedom of conscience, religious belief and conviction.
All
worships, religious rituals and ceremonies, which are not in conflict with
public order, general morals or laws adopted for these purposes are free.
No one
shall be forced to worship, participate in religious rituals and ceremonies and
to declare his/her religious beliefs and convictions. No one shall be
criticised because of his/her religious beliefs or convictions.
Religious
education and instruction are subject to the individual’s own desire, and, in
the case of minors, to the request of their legal representatives.
No one
shall abuse or exploit religion or religious feelings or things held sacred by
religion for the purpose of even the partial establishment of the fundamental
social, economic, political or legal order of the State upon religious
principles, or obtaining political or personal benefit in any manner
whatsoever.
The
persons who violate this prohibition or encourage others for this purpose shall
be punished in accordance with criminal law. Associations shall be closed down
by competent courts, and political parties shall be closed down by the
Constitutional Court.”
In addition, article 57 of the 1961
Constitution on the restrictions over the activities of political parties
provided an effective safeguard for the secularist character of the Republic.
According to this article: “The
statutes, programs and activities of political parties shall be in accordance
with the principle of democratic and secular republic which is based on human
rights and basic principle of indivisibility of the state with its territory
and nation. Parties that violate this provisions shall be permanently closed
down.”
Furthermore, article 153 of this Constitution
provided judicial immunity for the revolutionary laws establishing secularism
in the social life of Turkey. According to article 153: “No provision of the Constitution shall be construed or interpreted as
rendering unconstitutional the Reform Laws indicated below, which aim to raise
Turkish society above the level of contemporary civilisation and to safeguard
the secular character of the Republic, and which were in force on the date of
the adoption by referendum of the Constitution of Turkey.” This article
enumarated these laws and the date of their adoption as well.
Although the most significant innovation of
the 1961 Constitution was to establish a pluralist democracy including the
strenghtening of the supremacy of the constitution through
the establishment of Constitutional Court,
these reform laws were excepted from the review of constitutionality because of
their historical and political importance.
The Constitution of 1982 maintains secularism
as one of the fundamental characteristics of Turkish Republic in its article 2
and recognized the freedom of religion in its article 24. According to article
24: “All individuals shall have freedom
of conciense, religious beliefs, and, conviction.
All
worship, religious rituals and ceremonies are free provided that they are not
in conflict with the provisions of Article 14.
No one
shall be forced to worship, to participate in religious rituals and ceremonies,
and to declare his/her religious belief or conviction, and, criticise or
accused because of his/her religious belief or conviction.
Education
and instruction of religion and morals shall be conducted under the supervision
and control of the State. Religious culture and moral instruction are among the
compulsory courses which are instructed in elementary and high schools. Other
religious education and instruction are subject to the individual’s own desire,
and in the case of minors, to the request of their legal representatives.
No one
shall abuse or exploit religion or religious feelings or things held sacred by
religion for the purpose of even the partial establishment of the fundamental
social, economic, political or legal order of the State upon religious
principles, or obtaining political or personal benefit in any manner
whatsoever.”
In addition, the Constitution of 1982
protected the secularist nature of the Turkish Republic by its articles 68 and
69 regulating the freedom to establish political parties and the restrictions
over their activities as its predecessor did. According to paragraph 4 of
article 68 -amended in 2001-
“The
statutes, programs and activities of political parties shall not be in conflict
with the independence of the State, its indivisibility with its territory and
nation, human rights, the principle of equality and the rule of law, national
sovereignty, the principles of democratic and secular Republic; and shall not
aim at establishing or defending a class or group dictatorship, or a
dictatorship of any kind; shall not encourage the commitment of crimes.”
Article 69 of the Constitution contains
sanctions of the unconstitutional behavior mentioned in article 68. According
to the fifth paragraph of article 69 –amended in 2001- “If the statutes and program of a political party are found in conflict
with the fourth paragraph of article 68, a prohibition ruling shall be made.”
The amended article 69 authorizes the Constitutional Court to make such
decisions concerning a political party which becomes the focus of
unconstitutional activities. According to the gravity of the
unconstitutionality the Court is also authorized to deprive a political party
partially or entirely from State funding.
Moreover, the 1982 Constitution maintains the
special protection for the Reform Laws in its article 174 as just as its
predecessor did. According to this provision, the Reform Laws shall not be
subject to the judicial review of the Constitutional Court.
At present, Turkey has undoubtedly a secular
constitutional and legal order. However, the scope of the freedom of religion
and its restrictions is one of the most important issues facing Turkish
democracy as in Western democracies. In fact, it is not easy to resolve this
problem especially under the present circumstances of the world. Obviously,
democracy requires the recognition of fundamental rights and freedoms of
citizens including the freedom of religion; this does not mean, however, that
such rights and liberties shall be unlimited. The fundamental question is how
to balance the freedom of religion and its necessary restrictions in a
democratic society? In other words, what is the proper scope of the freedom of
religion and what are the legitimate restrictions? When are the restrictions
compatible with a
democratic social order? and when do they
violate the essence of the freedom of religion? The answer is not easy.
Undoubtedly, the freedom of religion is one of
the oldest and most important fundamental rights. On the other hand, it must
not be abused to create a theocratic political order or to violate the
fundamental rights and freedoms of people who belong to different religious
creeds or hold no religious beliefs.
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