domingo, 22 de março de 2009

Benhabib e o processo constitucional turco

O Professor Farley envia para ser postada essa importante matéria de Benhabig

Dissent Magazine
Winter 2009
Turkey's Constitutional Zigzags
By Seyla Benhabib
Turkey is unique among contemporary Muslim societies. Modern Turkey emerged
as a nation-state after the collapse of the Ottoman Empire and the abolition
of the Caliphate in 1924 and has been a republic since 1923. Discarding the
theological trappings of the Ottoman state, where the sultan was also the
caliph, Turkey opted for the privatization of the Muslim faith, along the
lines of liberalism and republican secularism (laiklik). The revolutionary
ideology of the founders of the modern Turkish republic, Kemalism, was also
a dirigiste ideology, granting the state a great deal of control over
religious affairs and, for that matter, over the economy and civil society.
Religion became a matter of private faith, and the state removed the
theological vocabulary from its own proceedings, all the while acknowledging
that Islam was the official religion of this society. The Turkish model of
laïcité is unique in that the state continues to direct religious affairs:
the thousands of Muslim clerics who serve in mosques are educated in
state-sponsored institutions of higher learning. In the last three decades,
however, this peculiar Turkish model has become destabilized, and the
sociological firewalls that the Turkish republic tried to erect between
state and religion have turned out not to be as thick as the Kemalist
revolutionaries imagined.

The ensuing difficulties are nicely suggested by a question recently posed
by Jürgen Habermas: “How should we see ourselves as members of a
post-secular society and what must we reciprocally expect from one another
in order to ensure that in firmly entrenched nation states, social relations
remain civil despite the growth of a plurality of cultures and religious
world views?” Habermas asks this question with an eye to the conflict
between European societies and their Muslim residents and citizens. In
Turkey, where the majority of the population is Muslim but where a modern
constitutional understanding of citizenship and civil rights is
institutionalized, the question requires a nuanced response. I will try to
respond by reexamining the “headscarf ban” and the legislative struggles
surrounding it.

In February of 2008, the ruling Turkish party, the AKP (Justice and
Development Party), decided to reform the law that banned the wearing of
headscarves and turbans in institutions of higher learning in Turkey. In
June of 2008, the Turkish Constitutional Court overturned the new
legislation, arguing that it was subversive of the secular nature of the
Turkish state. [1]
As sociologist Faruk Birtek points out, the parliamentary vote to reverse
the ban on the wearing of the headscarf, strictu sensu, contradicts the
Supplement 17 to the Legislation known as YOK Kanunu, that is, the Law of
the Council of Higher Education. It is this clause that must be rescinded in
order for the wearing of the headscarf to become fully legal, and this was
never the case. So from a legal point of view, there was a lot of confusion
about the meaning of the AKP-sponsored new law. See Interview with Faruk
Birtek in TARAF by Nese Duzel.,
accessed June 29, 2008.
Opponents of the AKP tried to have the party at large banned for attempting
to subvert the secular nature of the Turkish state as well. Contrary to many
fears and expectations, the Court declared in August 2008 that the AKP would
not be shut down, but would be fined for actions contrary to the laik
(secular) constitutional order. Despite this delicate compromise, it is
worth looking at the legislative decision to permit the wearing of the

Initially, the decision to reform Articles 10 and 42 of Turkey’s Basic Law
(Anayasa) or Constitution included another motion to reform the notorious
Article 301, which prohibits “insulting Turkishness,” and which was used by
many nationalist and ultranationalist prosecutors to bring charges against
liberal writers and intellectuals. This proposal was dropped, which means
that one of the most antidemocratic and antiliberal articles of the Turkish
Constitution remains in place. At the legislative level, the alterations
introduced into Articles 10 and 42 seemed quite minor. But they were not.

Article 10 concerns “Equality Before the Law” and proclaims, “Everyone,
regardless of distinctions of language, race, color, gender, political
belief, philosophical conviction, religion, ethnicity and like grounds, is
equal in the eyes of the law.” In addition, “Women and men possess equal
rights. The state is responsible to ensure that this equality becomes
effective.” The changes come in the fourth paragraph of the Article, which
in its older version read, “Organs of the state and administrative
authorities are obliged to act according to the principles of equality
before the law in all their transactions.” The new version reads, “Organs of
the state and administrative authorities are obliged to act according to the
principle of equality before the law in all their transactions and in all
activities pertaining to the provision of public services” (my emphasis).
The Turkish Parliament thus upheld the principle of nondiscrimination,
reaffirming that gender discrimination was against the law and also that
discrimination on the basis of language and ethnicity as well was illegal.
The state should not deny girls and women wearing headscarves (the hijab)
access to universities since these are public institutions. Within the
Turkish context, where approximately fifteen million Kurds live in the
country and speak their own languages as well as Turkish, this parliamentary
re-affirmation had multiple meanings. If some deputies of the AKP and others
hoped that Turkey one day would adopt Sharia law, introducing the inequality
of the sexes, they would now have their own legislative actions to contend
with. Ironically, the egalitarian and civic-republican legacies of the
Turkish Kemalist tradition led the Parliament, with its AKP majority, to
formulate a resounding restatement of the principle of nondiscrimination for
all Turkish citizens in the eyes of the law and in the procurement of public

BUT THE law was ambiguous as to whether the providers as well as the
receivers of public services would benefit from nondiscrimination. Did the
law intend to protect only religious women against discrimination in
receiving educational, medical, and other services or did it also intend to
protect those who provide such services from discrimination? The difference
between the two is enormous. If the law protects the providers of public
services, then teachers, government officials, doctors, attorneys, and,
indeed, the president’s own wife would be able to wear the headscarf in
their official capacity and in the performance of official functions.

From a moral standpoint, one could argue that any distinction between
receivers and providers of public services is indefensible. What matters is
that the state protect the individual’s freedom of conscience and rightful
claim not to be discriminated against on account of his or her faith. One
may poignantly recall in this context the case of Fereshta Ludin, the
Afghani German history teacher who was banned by the Baden-Wuerttemberg
legislature from teaching with her head covered. [2]
For a discussion of the Fereshta Ludin case, see my The Rights of Others:
Aliens, Citizens and Residents (Cambridge University Press, 2004), ch. 5.
Can such an action be supported with good reasons? In the Turkish case, it
is often asserted that in the public sphere laïcité, understood as the
strict banning of sectarian religious symbols in the provision of state
services, must be upheld. The German legislators reasoned likewise in the
Ludin case: a woman wearing the headscarf, it was said, could not represent
adequately and convey to her students the values of the German republic.

The reformed Article 10 had other ramifications as well: if discrimination
on the grounds of religious belief is against Turkish law, does this mean
that a Jewish student attending a Turkish university wearing a yarmulke or a
Christian student wearing a cross are protected just as Turkish girls
wearing the headscarf are? And if not, why not?

And what about the longstanding practice of barring non-Muslim Turkish
citizens from working in many governmental administrative posts? So far,
such cases have not been brought before Turkish courts, but they could be.
In short, Article 10 permits many unexpected iterations that go well beyond
the sole intention of lifting the ban on the scarf.

The legislative revision of Article 42 of the Basic Law, which pertains to
“The Right of Education and Instruction,” was more straightforward, although
this Article is riven by many clauses of ambivalent, and even repressive,
political import. It reads, “No language other than Turkish can be taught. .
.in any institutions of learning and instruction as a mother tongue.” This
is a militant assertion of the “homogeneity” of the ethnos upon which the
demos, the political nation, is based. It reveals the tension between the
demos of the Turkish republic, which consists of Turkish citizens,
regardless of religion, ethnicity, creed, and color and the imaginary unity
and supposed homogeneity of the ethnos, a nation that is supposed to have no
other mother language than Turkish. The reforms of February 10, 2008, left
the gist of this article untouched. Legislators simply added, “No one can be
denied their right to attain higher learning on the basis of reasons not
clearly formulated in writing by law. The limits of the exercise of this
right are determined by law.” This clause aimed to censure instructors,
professors, and administrators who took it upon themselves to ban women and
girls wearing the headscarf from entering these institutions or sitting for
their exams with their heads covered. But even after the legislation was
passed, such incidents did not stop. Even local officials in public health
care clinics were reported to have refused to take care of women wearing the

WE COULD say that all this is now ancient history, given that both
amendments were rescinded and the status quo ante reestablished by the
Turkish Constitutional Court. But it is important to note that between
February 2008, when the new legislation was passed, and June 2008, when it
was overturned, Turkey missed the chance to create a new demos and a new
political identity for a truly pluralistic society. It missed the chance to
recognize the cleavage between observant and nonobservant Muslims as only
one, and by no means the principal one, among the many differences and
divisions in Turkish society.

Civil society in Turkey today shows unprecedented effervescence and
self-examination. Atrocities committed against the Ottoman Armenians in
1915; repressive measures directed at the non-Muslims with the passing of
the so-called Varlik Vergisi, which redistributed the wealth of Jews,
Greeks, and Armenians primarily to the nascent Turkish bourgeoisie; the
repressive Kemalist ideology of the ruling elites; and the origins of the
Kurdish problem, which goes back to the compromises reached between these
very Kemalist elites and Kurdish feudal landlords—all these topics are being
examined by the media, by newspapers, by works of art and theater, and in
contemporary scholarship. Seen against this background, the headscarf debate
essentially centers around the pluralization of identities in a
postnationalist and democratic society. It is not about regression to an
Islamist republic, as many secularists claim. The Kemalist elites—the army,
the civil bureaucracy, teachers, lawyers, engineers, and doctors—look upon
these developments as failures of the republican experiment. On the
contrary, they are manifestations of its success. Whereas Kemalist
republican ideology, despite its Enlightenment pretensions, equates
citizenship with ethnic Turkish and religious Muslim identity, today we see
not only the proliferation of ethnicities but also the reclaiming of
different ways of being Muslim. It is not only the right to wear the
headscarf that must be defended but also the right of any Muslim girl or
woman not to wear the hijab if she so chooses and, likewise, the right of
any Muslim person who so chooses not to observe mandatory fasting during
Ramadan that must be asserted. But neither the ruling AKP nor the
oppositional Republican People’s Party (CHP) show themselves to be deep
democrats in this sense. It is also quite possible that had the Turkish
Constitutional Court decided to accept the new legislation as
constitutional, the AKP would have seen a green light to ban the public
drinking of alcohol, to impose further restrictions on the dress habits of
nonobservant Muslim Turkish women, and to demand that all Muslims fast
during Ramadan. In other words, the public face of Turkish civil society
could have come to resemble that of Saudi Arabia and Malaysia rather than
that of Israel or Canada, countries in which religious groups enjoy great
freedoms and some degree of self-government in many areas of civil and
political life.

In the weeks following the reform of the headscarf ban, a group of nearly
eight hundred women wearing the headscarf signed a petition stating, “If
freedom of expression is at stake, nothing can be considered a detail. We
are not yet free.” These women took aim at what they call “repressive
governmentality”; they demanded the abolition of the Turkish Council on
Higher Education (YOK); they wanted assurances that the rights of Alevis (a
dissident Muslim sect) would be protected, that there would be a solution to
the Kurdish problem, and that Article 301 would be abolished. The right to
wear the headscarf was seen in the context of broadening civil rights for
other groups.

IN ANOTHER Cosmopolitanism, I introduced the term “democratic iterations” to
analyze contentious processes of struggle. Democratic iterations are
linguistic, legal, cultural, and political repetitions in transformation.
They not only change established understandings but also successively
transform what once was the valid or established view of an authoritative
precedent. Democratic iterations are open ended. Thus, in the Turkish
context, the legal reforms, even though they were overturned, could have led
to a heightened debate about the illegality as well as the immorality of all
forms of discrimination in the public sphere—just as they could have led to
increasingly repressive measures against nonobservant Muslims and, maybe,
non-Muslims in general.

Democratic iterations can lead to “jurisgenerative politics,” which takes
place when a democratic people that considers itself bound by certain
guiding norms and principles reappropriates and reinterprets them to expand
the arc of equality and freedom, thus showing itself to be not only the
subject but also the author of the laws. On the one hand, rights claims such
as freedom of conscience and equality before the law, which frame democratic
politics, must be viewed as transcending the specific enactments of
democratic majorities. On the other hand, such democratic majorities
re-iterate these principles and incorporate them into democratic processes
through legislation, argument, contestation, revision, and rejection.
Jurisgenerative politics results in the augmentation of the meaning of
rights claims and in the growth of the political authority of actors who
make these rights their own by democratically deploying them.

In some cases, of course, no normative learning may take place at all, but
only strategic bargaining among the parties; in other cases, the political
process may simply run into the sandbanks of legalism; or a popular majority
may trample upon the rights of minorities in the name of some totalizing
discourse of fear and war.

In contemporary Turkey, the headscarf debate is only the beginning of a
transition heralding the pluralization and flexibility of the repressive
Turkish nationalism that has dominated the country since the founding of the
republic. In this process not only the confrontation with religious Islam
but also the fate of the Armenian, Greek, Jewish, and Assyrian populations
in the Turkish republic have been opened for political discussion.

In conclusion then, and in response to Habermas’s question, the most
significant development in politics today concerns the unsettling of the
identity of the democratic people, the demos, as a result of the rise of
deterritorialized religious movements, including but not restricted to
political Islam. This development calls into question the relation of the
demos to the nation, when understood as an ethnos, and places on the agenda
the transformation of repressive understandings of both ethnicity and
religion so as to allow for a larger, more inclusive democracy.

Seyla Benhabib is Eugene Meyer Professor of Political Science and Philosophy
at Yale University. Her most recent book is Another Cosmopolitanism (Oxford
University Press, 2006). This article is a revised version of the opening
lecture delivered during the Istanbul Seminars, “Dialogues on
Civilizations,” organized by Reset magazine, June 2-8, 2008, at Bilgi
University, Italy.

a.. [1] As sociologist Faruk Birtek points out, the parliamentary vote to
reverse the ban on the wearing of the headscarf, strictu sensu, contradicts
the Supplement 17 to the Legislation known as YOK Kanunu, that is, the Law
of the Council of Higher Education. It is this clause that must be rescinded
in order for the wearing of the headscarf to become fully legal, and this
was never the case. So from a legal point of view, there was a lot of
confusion about the meaning of the AKP-sponsored new law. See Interview with
Faruk Birtek in TARAF by Nese Duzel., accessed June 29, 2008.
b.. [2] For a discussion of the Fereshta Ludin case, see my The Rights of
Others: Aliens, Citizens and Residents (Cambridge University Press, 2004),
ch. 5.

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