Laws should be regionally, culturally appropriate

Published 03.05.2019 01:01

Before World War II, a state's violation of the fundamental rights and freedoms of its own citizens was seen as a matter of domestic legal order that concerned only the nation-state and its sovereignty. Indeed, in that period the fundamental rights and freedoms of citizens were viewed essentially as a matter of domestic legal order that concerned primarily the "nation-state" and fell into its national jurisdiction. But the human rights violations committed under fascist and national-socialist regimes during World War II had led to the argument that human rights should be recognized and protected not only at the national but also at the international level.

The European Court of Human Rights (ECtHR) is an international judicial body that was established as part of this process in 1959, under the auspices of the Council of Europe. It is a court where individuals, legal entities and other states can apply in cases of violations by a contracting state or states of fundamental rights and freedoms guaranteed by the European Convention on Human Rights (ECHR) and its additional protocols.

Taking into account all these considerations, it appears that the ECtHR is the product of a partial, local political process and geography. But there are various non-European countries as well, which are both parties to the ECHR and accept the jurisdiction of the ECtHR. And at this point, whether the court's judgments will be influenced by the geography it is based in or will allow for the representation of other cultures was an important question mark.

In other words, will the criteria employed by the ECtHR when evaluating applications from Turkey related to the Islamic headscarf be based only on European secularism or will it also consider Turkey's perspective on secularism, its historical process and, most importantly, Turkey's sociological peculiarities, making its ruling based on the concept of "localness?"

The Turkish case

Sadly, however, as it was in the past, the court is contented with giving its rulings in line with a universalism claim on the basis of the criteria of Western democracy. For example, in its ruling to close down the Welfare Party (RP, or Refah Partisi), the Turkish Constitutional Court (TCC) cited evidence confirming the activities of the party's members, including its chairman, were against the principle of secularism and stated that these activities posed a threat to a democratic society.

The court held that the following activities obviously contravened the principle of secularism: A party member's call to establish a "Fair Order" (Hak Nizamı, a just order or God's order), i.e. to set up a regime based on sharia (Islamic law); a reception given by the prime minister at the prime minister's residence to the leaders of various religious orders, who attended the event in their religious garb banned by the Reform Laws (of the Republic) regulated in Article 174 of the Constitution; various speeches by the party's chairman in which he argued for a plurality of legal systems and encouraged public employees to wear the headscarf and hijab. The TCC also based its verdict to shut down the Virtue Party (FP, or Fazilet Partisi), a successor to the Welfare Party, on similar grounds.

In its ruling on the Welfare Party, the ECtHR stated that political parties can promote a change in the law or the legal and constitutional structures of the state only through legal and democratic means and that the change proposed must itself be compatible with fundamental democratic principles. In other words, to be able to lay claim to the ECtHR's protection against penalties imposed by the TCC, a party's leader should not incite violence or put forward a policy which is aimed at the destruction of democracy.

Again, the ECtHR held that the party holding 158 parliamentary seats and ruling in a coalition government made the possibility of implementing its anti-democratic program more tangible and immediate. The court also judged that the RP's call for a plurality of legal systems is not compatible with democratic principles.

Consequently, the ECtHR observed that while the RP's leaders did not advocate the use of force and violence as a political weapon, they did not take prompt practical steps to distance themselves from those party members who had called for it, and so they can be held responsible for these calls for violence as well.

In a separate ruling, the ECtHR went beyond this and judged that wearing the Islamic headscarf in universities, which was presented or perceived as a compulsory religious duty, may create pressure on those who chose not to wear it, noting that in a country in which the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhered to the Islamic faith, imposing limitations on the freedom to wear the headscarf could be regarded as meeting a "pressing social need."

Also, the court stressed that the headscarf ban in universities was based on the principles of secularism and equality and that it endorsed the case law of the Turkish Constitutional Court. Thus, the ECtHR showed with this judgment, as it did in its verdict on the RP, once again that the protection of secularism is necessary for the maintenance of democratic order in Turkey.

As understood from the above-mentioned rulings, while examining an application before it, the ECtHR ignores the sociological and social structure in the applicant's country of origin and makes its rulings on the basis of European democracy. As in its judgments on the headscarf ban and the RP, the court's rulings represent primarily the European secularism and religious beliefs. However, as we know from Ibn Khaldun, just as humans are a product of their specific geography, laws and judges' verdicts should be also compatible with the related geography.

* Istanbul-based lawyer and a Ph.D. student in Constitutional Law at Istanbul Şehir University

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