This paper was the topic of an interdisciplinary symposium held in March 1999 at Yeshiva University, Cardozo Law School , New York.  The symposium was moderated by David Golove, Professor of Law, Cardozo Law School. Panelists Thomas Christiano, Professor of Philosophy at the University of Arizona and Gregory Fox, Professor of Law at Yale Law School, focused on the philosophical paradox involving the banning political parties to protect democracies; William Pfaff, International Affairs Columnist at International Herald Tribune and Paul Magnarella, Professor of Law and Anthropology at the University of Florida focused on the democratic process and human rights violations in Turkey.
(The commentaries at the symposium are in the next page. Click on the next page number under this page.)

CANNIBAL DEMOCRACIES, THEOCRATIC SECULARISM:

THE TURKISH VERSION

Edip Yuksel*

7 Cardozo Journal of International and Comparative Law, 423 (1999)

I.  Introduction

            Türkiye[1] boasts to be the only Muslim country that is ruled by democracy.[2]  However, the Turkish version of democracy differs greatly from traditional Western notions of democracy and is also further distinguished by its unique and even odd practice of secularism.  During the last half-century, the Turkish Constitutional Court[3] and the military regimes have banned more than thirty political parties.  While there is no sign that their appetite to ban political parties has been quelled, such repressive political actions have become routine practice in “protecting the Turkish democracy.”  Indeed, any argument that such actions are justified to protect the “Turkish democracy” is oxymoronic at best, and has lost credibility with the recent ruling by the Turkish Constitutional Court allowing the abolishment of Turkey’s largest political party, the Refah or Welfare Party.[4]

            In a lengthy draft opinion to the Turkish Constitutional Court, Vural Savas, the Attorney General of the Turkish Republic, attacked the Welfare Party (Refah Partisi) and its members on ideological grounds.[5]  Surprisingly, Savas, as a top official of the so-called “secular” republic,  harshly criticized, blamed and condemned the sacred book of Islam and the religion of ninety-eight percent of the country.  Months after the publication of his aggressive opinion, the Turkish Constitutional Court abolished the Welfare Party for trying to establish a theocratic system in Turkey.

            This paper will address the opinion of the Attorney General, as it reflects the ideology of the Turkish elite, and will evaluate the decision of the Constitutional Court, reported on February 22, 1998 in the T.C. Resmi Gazete.[6]  This paper will conclude with  suggestions and remedies.  The procedural details involved with the workings of the Turkish Constitution are beyond the scope of this paper.[7]

            Attorney General Vural Savas’ opinion suffers five primary flaws:

1. Abolishment of the Welfare Party demonstrates that the oligarchy (consisting of major media, businessmen, and military leaders) uses “democracy” only if and when it serves its interests.

2.  Abolishment of the Welfare Party increases the risk of hurling Turkey into an Algerian-like civil war.  With the Welfare Party no longer intact, opportunities for the dissemination of propaganda from underground organizations and religious orders striving to establish “sharia” (sectarian jurisprudence) by means of force will be created.  Turkey cannot endure the possible civil strife this may bring, especially with the already volatile situations existing in regions heavily populated by the Kurdish minorities who oppose the racist and militarist policies of the Turkish government.  Neither the Turkish economy nor its military can survive such a widespread conflict on two fronts.

3.  The Constitution is procedurally illegitimate and infected with substantial contradictions.  It was imposed upon the people through a non-democratic process, and by non-elected generals.  It contains articles that contradict the principles of “modern democracy,” even though the Turkish judiciary, its legislators, and the members of the military coup often refer to the notion of “modern democracy” when justifying their actions.  The Constitution, infected by hero-worship and cults of personality, resembles the constitutions of communist and theocratic regimes.  It contains dogmas and imposes unnecessary limits to personal and group liberty.

4. The Attorney General’s actions contradict the principles of “secularism.” Aggressive attacks on the Quran[8] by an official of a “secular” state who is paid by the taxes of its citizens is contrary to secularist ideals.  Indeed, secularism is altogether different from atheism, and the actions of governments should follow non-religious legal authority rather than atheistic ideals.

5. The Attorney General’s criticisms of the Quran are based on erroneous interpretations of its text.[9]

II.  The Constitution of the Turkish Republic

            In late 1982, the current Constitution of the Turkish Republic was put on the ballot.[10]  This was the third constitution for the young Republic in sixty years, and much like Turkey’s constitutions of the past, it was drafted under the supervision of its military leaders.[11]  The Constitution, allegedly approved by a super-majority of voters, however falls far behind Ataturk’s[12] dream of being a vehicle by which Turkey would catch up with “modern civilization.” Some learned criticisms of Turkey’s Constitution note that the document lacks political legitimacy and that it was made primarily to preserve the state, not to promote the welfare of its people.

            Ersin Kalaycioglu, Professor of Political Science at Bogazici University, criticizes Turkey’s last two constitutions, the Constitutions of 1961 and 1982, and asserts that they “were both designed without the full participation or cooperation of all the major political forces in the country.  Thus, they contributed mainly to a crisis of political legitimacy.”[13]  Turkey’s current Constitution, however, is more restrictive of individual and group rights than its predecessor.[14]

            Suna Kili, Professor of Political Science at Bogazici University, finds the Constitution of 1982 aimed “fundamentally at the preservation of the state.”[15]

            Professor Kili notes that “under Article Fifteen [of the Turkish Constitution], the declaration of a state of emergency is a reason for the suspension of rights and freedoms. . . . Thus, the Constitution of 1982 allows for the restriction and/or suspension of rights and freedoms by administrative acts.”[16]  Professor Kili also  heavily criticizes a procedural provision in Article 153:

Given this provision, laws and freedoms may remain in force for up to one year after they have been ruled unconstitutional. Moreover, the Constitution of 1982 deprives the Constitutional Court of the power to review those decrees which carry the force of law issued by the cabinet during a state of emergency, martial law, or war.[17]

A.  Theocratic Dogmas and Logical Fallacies in the Turkish Constitution[18]

            Article 1 of the Turkish Constitution very simply and beautifully states that: “The Turkish State is a Republic.”  However, later squeezed among the beautiful words of the Constitution is the name ‘Ataturk,’ the founder general of the Turkish Republic.  Ataturk, the charismatic leader who led a series of revolutions in the 1920s and 1930s that changed the direction of Turkey from a medieval theocratic monarchy to a modern secular republic, was so popular that he succeeded in changing the alphabet of the entire nation.

            However, allusions to national heroes and founding fathers (no matter how popular they may be) in a country’s constitution is a characteristic of a totalitarian and theocratic regimes.  For instance, the names of Marx and Lenin can be found in Article III of Albania’s pre-1991 constitution.  In the preamble to China’s constitution, one can find the name of Mao Tse Tung in addition to the names of Marx and Lenin within its text.  In Saudi Arabia’s constitution, the Saudi family is praised, and in the preamble to Iran’s constitution, Khomeini is praised.  Indeed, no developed country with an established democracy has the names of its founding fathers or heroes in the text of its constitution.[19]

            While official religions and dogmas created in the name of national heroes may not be sufficient to explain why those countries are not among democratically civilized nations, they do provide a clue in that regard.  Turkey, by placing Ataturk’s name in the Constitution, has created a sacred dogma in his name and has thereby made Ataturk’s name a symbolic trademark of the Turkish militarist and racist oligarchy.

            Article 4 poses a logical problem. The article lists the un-amendable articles but fails to include itself among the list.  The required majority of the members of the Congress may change Article 4, however unlikely that may be.  Indeed, publically voicing such an intention under Turkish law could lead to the denial of liberty and personal freedom under Article 27, “Freedom of Science and Art” of the Constitution.  Under the Constitution, such actions would be justifiedby the following clause in the Constitution:  The right to freedom of expression cannot be used to promote amendments to Articles 1, 2 and 3 of the Constitution.[20]

B.  The Prohibited Language

            Articles that supposedly grant the freedom of expression and protect the press against censorship, contain clauses justifying prohibition of speeches, periodicals or literature written in Kurdish.[21]  For example, Article 26 of the Turkish Constitution states:  “No language prohibited by law shall be used in the expression and dissemination of thought.”[22]  Article 28 states that “[p]ublication shall not be made in any language prohibited by law.”[23]

            While no other articles referring to “prohibited languages” in the constitutions of any other country come to mind, ironically, the expression “language prohibited by law” is mentioned under articles which are entitled with the word “freedom.”  The freedom of prohibiting the language of an oppressed minority, as it appears, is what the Turkish Constitution protects.[24]

            Admittedly, all of the prosecutors do not share the same mentality.  There are government attorneys who have digested the principles of democracy and are promoters of freedom and civil rights for individuals.  Nevertheless, a single prosecutor is enough to issue an arrest warrant and drag an author to court.  Similarly, despite many high ranking military officials who are against the military’s intervention in domestic politics, a gang of top generals can flirt with politicians, give orders, and overthrow the government. Turkey has witnessed three military coups d’etat and several military warnings since its formation in 1923.[25]

C.  Other Repressive Articles

            Article 2 of the present Constitution exemplifies the official mentality of the  totalitarian regime and Article 4 exhibits the poor judgment of its drafters.  Surprisingly, the Constitution contains articles explaining the goals and duties of the state and the rights and freedoms of citizens.  However, in the articles where the Constitution details the use of individual rights and freedoms, it takes back the granted rights in the articles or paragraphs that follow.  The Constitution does not use impolite, rude, or unpolished language.  The style of the Constitution does not resemble that of the neighborhood bully.  Rather, the Constitution employs clever and adept linguistic techniques while restricting individual rights and freedoms, techniques that are well-known by copywriters of advertising agencies.  It pours acid on the roots of rights and freedoms while it appears to be showering the citizens with numerous rights and freedoms. Article 13 illustrates how the rights and freedoms given by spoon can be taken away by ladle in a civilized manner.[26]  Articles 26, 27 and 28 define those ladles.  Articles 33 and 34 under the guise of bestowing citizens with rights and freedoms, empower the state with arbitrary censorship and prohibition.[27]

            The states that turn their constitutions to prohibitions grow to be cannibal or vampire democracies.  Political parties are sacrificed on the whims of the oligarchy.  Many totalitarian and theocratic regimes use their constitutions to show off or to fool the international community, and they systematically violate human rights which they had agreed to observe. In states with working democracies, on the other hand, constitutions impose minimum limitations on the individual and group rights and freedoms; they aim to protect minorities from the tyranny of the majorities.[28]  While all constitutions reflect the ideal goal, the constitutions of democratic countries do not enforce taboos and dogmas attributed to their heroes or founding fathers; they provide protection for ideas that are unorthodox or perceived as infidel or unpatriotic.  In this regard, the Turkish Constitution is far behind the constitutions of countries labeled as “Western.” For example, if one were to compare the Turkish constitution to that of Switzerland or even of Mongolia and their practice of democracy, one will find that the Turkish one lacks the color and spice of true democracy.[29]

III.  The Military as the Guardian of the Turkish Democracy

            After the coup in 1980, the generals who drafted the current Constitution inserted themselves into the daily politics of the country.  They cited the Constitution as relevant authority[30] and began participating in weekly cabinet meetings, involving themselves in every decision they deemed related to the security of the secular, Kemalist Republic. [31]

            Al literally “stinking” example of how the National Security Council protects the peace and security of the country has recently become a big issue in Turkey.  During Muslim’s biggest holiday, The Festival of Sacrifice, many families sacrifice farm animals such as sheep and cows.  The skins of these animals are usually donated to religious non-profit organizations or mosques.  However, until recently, Muslims had a choice between donating their skins to a religious organization or to the Turkish Air Foundation (“TAF”), a government organization.  Despite official commercials and declarations promoting the TAF, and legally imposed restrictions on private donation collectors, the TAF was only able to obtain a fraction of the skins donated during the Festival.  To rectify this situation, the Ministry of Justice, upon the advice of the National Security Council, issued an order asking prosecutors to punish any non-TAF organization or individual who collects or accepts the skins of sacrificed animals by placing such individual in prison for six months.[32]

            Additionally, the ‘head-scarves’ of women has long been another ‘peace and security’ issue with the military.[33]  The leading Turkish military generals have publicly declared their opposition to Prime Minister Mesut Yilmaz and given him an ultimatum when he sided with a moderate view allowing university students to wear head-scarves.[34]  Generals publicly attacked and humiliated the previous two Prime Ministers, Necmeddin Erbakan, and his coalition partner, Tansu Ciller.  They did not hesitate to voice their disapproval when Prime Minister Yilmaz gave a speech declaring that protection of democracy and the Republic is the job of Congress, not the military.[35]  The following day, top generals held a meeting and in a brief statement rebuffed the prime minister by reminding him of the military’s constitutional duty to protect the country against domestic elements dangerous for peace and security.  A prominent Turkish newspaper wrote:

The Generals [held] a meeting yesterday, after Yilmaz’s speech in the Parliament as a warning to the military not to meddle in government affairs and gave a harsh answer.  The generals stated, ‘We don’t need anybody to remind us our duties.  Regardless of their political post nobody has a power to force the military to give up its fight against the Islamic fundamentalism for the sake of their political ambition or benefits’ as a response to Yilmaz’ warning. . . . Coalition partner DTP leader Husamettin Cindoruk said . . .:’I want to perceive the declaration as the loyalty of the military regime.’[36]

Prime Minister Yilmaz, who just the day before was a lion of democracy,[37] characterized the military warning as a “democratic reminder.”[38]  This spectacle once again disappointed those who had the dream of a truly democratic Turkey.[39]

            While it is unlikely that all the generals involved in military coups or warnings have bad intentions, their possible good intentions are not sufficient by themselves to save Turkey from chaos, mismanagement and civil unrest.

            Problematically, coup leaders are not held responsible for their bad actions.  Rather, some of the leaders have been rewarded by the intimidated congressmen of the Republic and have been elected president.[40]  The generals who participate in coups often retire with prestige and receive lucrative pensions.  After retirement they usually obtain prominent jobs on the boards of big banks or corporations.  Additionally, the Chief-Prosecutor, one who is adamant about the banning of political parties in the name of democracy, does not show the courage or wisdom to charge or arrest those who abolished the Constitution, banned all political parties, violated human rights, and filled prisons with authors, intellectuals and political dissidents.[41]  Perhaps for the good of Turkey, Turkish attorneys should hold those generals responsible for their actions, and not pay attention to their good intentions.  This would be a more productive use of their resources than attempting to ban a party that received more than twenty percent of the vote.[42]

            Journalist/columnist Mehmet Altan complained that the Attorney General’s draft opinion scarred the legal system with its style, likening it to the biased and aggressive style of a rival politician.  Mr. Altan reminded his readers of the double standard:

There are “colossal differences” between the practice of the modern world of the universal and the practice of Turkish judiciary. Therefore, we are always convicted by the European Human Rights Commission. For example, the Turkish legal system sentenced the major who forced villagers to eat shit to only ten months and released him on probation.  The Turkish Supreme Court of Appeals confirmed the decision of the trial court. The European Human Rights Commission, later re-investigate the trial and penalized the Turkish government to compensate the citizens who were forced to eat shit by paying four billion Turkish lira (equivalent of approximately, fifty thousand dollar).  We are reminded to take justice seriously and do not use double-standard.[43]

            The responsibility of finding a solution to the problems of the crawling Turkish democracy should be left to people, civil organizations, politicians and scholars, not the military.  Democracy cannot be restored by undemocratic or non-democratic institutions and authorities.  Democracy cannot be reformed or improved by military minds.  This is against the nature of things.

            Democracy requires a price. Societies must freely pass through certain experiences to discover and appreciate democracy.  Some of the experiences might be painful, but military intervention slows down and delays this process.  Those who cannot tolerate a political party with religious concerns should take lessons from Algeria.[44]

IV.   Democracy and Freedom of Expression

            The Attorney General’s assessment that the abolition of Articles 141, 142 and 163 of the Turkish Criminal Law was a misfortune accomplished by the coalition of communist and religious parties is flawed.[45]  It is incomprehensible that the Attorney General could talk about human rights, dignity and freedom while trying to reserve them exclusively for those who belong to the Kemalist elite.

            The Attorney General defines democracy pretty well:

Democracy is not a system where only elections are held.  It is a life-style that show itself in every aspect of life requiring free thought, arguments and investigation. In other words, democracy encourages individuals to actively participate in the political process through arguments, criticism, investigation and production of alternatives. This participation can be individual as well as in groups.[46]

            It appears impossible for the Attorney General to be in favor of such a democracy while he defends the former repressive articles 141, 142 and 163 mandating imprisonment for those who question, criticize, argue and seek alternative solutions.  One cannot preach about democracy, freedom and modern civilization while asserting that the truth and alternatives are in his backyard and if you look for the truth and alternatives outside you will be declared a traitor and beaten.

A.  The Value of Freedom of Expression in the Western World

            In the case of Texas v. Johnson,[47] the U.S. Supreme Court extended the freedom of expression to the burning of the American flag.  The Supreme Court defended its decision with the following argument:

The state position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal ‘function of free speech under our system of government is to invite dispute.’ .  .  . If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.[48]

            Since Texas v. Johnson, there has not been an increase in the number of flag burning incidents in America.  Rather, the controversy has since become moot.  At the same time, financial resources of the American government are not spent to prosecute or imprison flag burners, and the energy of the police force has not been allocated to suppress them.  Furthermore, the honor and the identity of the American flag was also rescued from being the subject of a naughty battle between the lawmakers and the militants determined to find loopholes, such as reducing or adding the number of stars and wearing flags on shorts.

            Instead of buying arms from America, Turkey should take lessons from America’s examples.  If there were a working democracy and respect for human rights in Turkey, the country could dramatically reduce the size of its armed forces and imports of arms.  It would also establish a better relationship with its democratic neighbor, Greece, and would not be waging war against its own citizens.  In such an environment the anti-democratic forces would lose power.

            The passionate proponent of freedom, philosopher John Stuart Mill, made the following remark:

The peculiar evil of silencing the expression of the opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.[49]

Indeed, history is full of examples of universally accepted ideas which were first expressed by dissenting minorities.

B.  International Law and Treaties

            The Turkish Constitution incorporates international agreements into the domestic law.  “International agreements duly put into effect carry the force of law.  No appeal to the Constitutional Court can be made with regard to these agreements on the ground that they are unconstitutional.”[50]

            Turkey as a founding member of United Nations has an international obligation to abide by the Universal Declaration of Human Rights (UDHR).[51]  The articles protecting minorities, religious beliefs and political opinions have been violated frequently by the Turkish government.  Since the foundation of the Turkish Republic, Kurdish organizations, authors and parties questioning the militarist approach to the Kurdish problem have been under continuous assault and oppression,[52] as have religious organizations, parties and their members.  Articles 19, 20 and 21 of  the UDHR contain clear and comprehensive language regarding the religious, intellectual and political rights of individuals.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.[53]

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.[54]

Everyone has the right to freedom of peaceful assembly and association.  No one may be compelled to belong to an association.[55]

Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. . . .[56]

            Turkish governments, led by military leaders and the Constitutional Court, have frequently persecuted Turkish citizens for religious beliefs and practices that pose no harm to the principles of democracy and secularism. The Attorney General in his allegations quotes the decision of the Constitutional Court that struck down a statute permitting girls to wear head-scarves for religious reasons:

[C]lasses and related areas must be free of symbols of religious beliefs.  Therefore, wearing head-scarves in the institutions of higher education for religious purposes cannot be reconciled with the secular scientific environment . . . . The issue of dress and attire is limited with the Turkish Revolution and Ataturk’s principles and it is not a subject of freedom of conscience.[57]

            The language of the Turkish Constitutional Court is deceptive because it implies that wearing head-scarves is allowed in institutions other than universities.  However, the ban is not only imposed on government employees but also enforced on students – the real cause of controversy.  Forcing students and citizens to give up their personal or religious choices regarding their dress code is evidence of  a military mentality.  The Turkish government now refuses to issue official papers to citizens who submit pictures with head-scarves.  By imposing “uniforms,” not only on government employees, but also on every citizen who comes in contact with government, the Attorney General and the Turkish Constitutional Court confuse secularism with their atheistic paranoia, and the laws of a nation with the rules of a military school.  Creating a national crisis out of petty prohibitions has nothing to do with secularism and western civilization, the values to which the Turkish elite pretends to adhere.

            The European Convention for the Protection of Human Rights and Fundamental Freedoms (European Human Rights Convention, or EHRC), to which Turkey is a signatory,[58] adopts many of the articles and provisions of the UDHR.  For example, Article 9 of the EHRC repeats Article 18 of the Universal Declaration.[59]  The EHRC, like Article 29 of UDHR, acknowledges that those freedoms will be subject to “such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”[60].

            The word “democracy” appears in both the Universal Declaration and the European Convention as a standard for the application of the articles of the treaties. This language is an implicit acknowledgment of the right to democratic governance.  Furthermore, on March 20, 1952, European countries explicitly mentioned the electoral entitlement in the Article 3 of Protocol 1.

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.[61]

            In fact, democratic governance is an emerging international right. The European Union members (not including Turkey), with the participation of Canada, the United States and Eastern Europe, have officially recognized such a right.  Thomas M. Franck enthusiastically summarizes the new international trend regarding democracy:

At a meeting in Copenhagen in June 1990, they affirmed that ‘democracy is an inherent element of the rule of law’ and recognized ‘the importance of pluralism with regard to political organizations. Among the ‘inalienable rights of all human beings,’ they decided, is the democratic entitlement. . . . participants also linked recognition of the democratic entitlement by governments to the validation of their right to govern.[62]

            Turkey, with its history of military interventions and parties banning, is far from complying with the standards set by the European Convention.  Of  most concern, however, is the American-Turkish relationship.  An editorial in New York Times noted this strange companionship:

Turkey’s politically meddlesome generals seem determined to push their country into crisis by thwarting democratic solutions to its problems. . . . Turkey is a NATO ally and an important American military partner in the Middle East. Hence Washington maintains cordial ties with Turkish generals. But it should reject the generals’ contention that their clumsy interventions in Turkey’s political life defend the causes of secularism and democracy. In fact, the military’s conduct undermines both.

The threat of Iran-style Islamic fundamentalism understandably worries secular Turks, especially women, and concerns Washington. But radicalizing an Islamic electoral movement and driving it underground will only lead its supporters to give up on the peaceful and democratic means they now believe in.[63]

            Although it is not clear whether the editorial implicitly approves a non-clumsy military intervention, its primary reasoning appears sound.  The United States, by supporting the militarist Turkish government, is ‘betting on the wrong horse’ both politically and morally.  Human Rights Watch in its 1995 report demonstrates the inconsistency in U.S. foreign policy.

Despite documenting the fact that Turkey has misused U.S. weapons, the  Clinton administration, which says it supplies Turkey with 80 percent of its foreign military hardware, has consistently refused to link arms sales to improvements in Turkey’s human rights record. . . .

In fact, based on Human Rights Watch interviews with U.S. military personnel, it appears that Pentagon representatives in Ankara are more eager than ever to sell Turkey U.S. weapons, including M-60 tanks, helicopter gunships, cluster bombs, ground-to-ground missiles and small arms.  The U.S. is also involved in co-production agreements with the Turkish defense industry, most notably helping to build the F-16 fighter-bomber, which the U.S. State Department acknowledged may have been used indiscriminately to kill Kurdish civilians, and a new armored personnel carrier.[64]

            In the past, the United States supported Iran’s oppressive king Shah Riza.  Their actions  backfired in the so-called Islamic revolution of 1979.  Similarly, the U.S. supported Saddam Hussein against Iran.  This also backfired in 1990 with Iraq’s invasion of Kuwait.  The American support for Saudi Arabia’s oppressive regime, besides being morally wrong, incubates a social and political volcano in the region. The myopic American foreign policy with its multi-standard approach might serve the short-term interests of multinational corporations, but does not serve the long-term interests of the American people nor those of the people of the world.

V.  The Paradox: Should Democracies Allow Anti-Democratic Parties to Grab Power?

            Should democracies allow a political party whose members contemplate ideas of getting rid of democracy to exist, or should democracies require the abolition of such a party?  Issues concerning the priority of democracy over political tolerance, reconciliation of political party banning with principles of democracy, and the role of the military in such a regime are key to the debate.

            Gregory H. Fox, Professor of Law at New York University and Georg Nolte of the Max Planck Institute, evaluated the cancellation of the Algerian election and abolition of the winning party, FIS, by the military by asking the question, “how can a democracy protect itself against its enemies and still remain democratic?”[65]  The authors, after distinguishing two categories of democracies according to their form and content, concluded that the struggle of democracy for survival is more important than the short-term rights of anti-democratic elements.  If it is true that the FIS party in Algeria declared that it would put an end to democracy after winning the elections, then by voting for FIS, the majority of the Algerian population chose to deprive themselves of democratic freedom.  Using Hitler’s rise to power through the democratic process as an example, the authors do not find the arguments raising worries about the abuse of this  justification.[66]  The authors list England, Botsawana and Japan as procedurally tolerant democracies, the U.S. as the militant substantive democracy, and France, Canada and India as tolerant substantive democracies.  The authors find the substantive democracies more realistic:

In this view, democratic procedure is not an end in itself but a means of creating a society in which citizens enjoy certain essential rights, primary among them the right to vote for their leaders.

None of these rights, however, is absolute in the sense that it may be used to abolish the right itself or other basic rights.[67]

            The authors argue that whenever the procedure shows diversion from the goal, the procedure should be sacrificed temporarily to save the goal.  John Stuart Mill, in his book, On Liberty, appears to provide some support for the authors of “Intolerant Democracies.”  Mill believed that in a civilized country a person cannot be free to sell himself as a slave since giving up one’s own freedom permanently creates a contradiction:

But by selling himself for a slave, he abdicates his liberty; he foregoes any future use of it beyond single act. He therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself. . . .The principle of freedom cannot require that he should be free not to be free. It is not freedom to be allowed to alienate his freedom.[68]

            There is a difference between not allowing a person to give up his own freedom and not allowing the majority to accept a “potential” totalitarian regime.  Forbidding an individual from selling himself does not contradict the principle of democracy, or the majority rule, but banning a party which is playing according to the rules of democracy contradicts with the core of the system.

            In the past, the United States has not always been very tolerant of anti-democratic parties. For instance, during the McCarthy era where communist paranoia was epidemic, fifty members of the Communist Party were charged in accordance with the Smith Act of 1940.  They were sentenced to prison for attempting to change the state and government through force.[69]  In 1969, twenty-eight years after the Dennis decision, when the anti-communist hysteria subsided, the Supreme Court started to apply a stricter standard.  The state was required not only to prove that the speaker tried to entice people, it had to show that the speech would cause a serious and immediate danger.[70]

            The Algeria example demonstrates the danger of “temporarily” suspending the democratic process to protect democracy.  The cancellation of the election in Algeria caused a  civil war resulting in thousands of deaths.[71]

            Would Turkey be better if the military did not intervene?  There should not be an absolute abstinence from banning political parties.  Political activities that pose great and immediate danger for the survival of democracy might be controlled by the judiciary.  Nevertheless, this solution should be the last resort.  The justification by the judiciary of a bayonet/stock democracy for banning political parties in the name of democracy is not credible, especially if banning political parties has become a judicial habit.  Numerous political parties have been banned by the Turkish Constitutional Court since a multiparty system was adopted in 1946, twenty-three years after the foundation of the Republic.[72]  The Library of National Congress of Turkey recently published a list of all political parties and their fate since the beginning of the Turkish Republic.  The list is a graveyard of political parties.  Many were banned or forced to dissolve by the  the Turkish Constitutional Court or by the so-called legislators who were controlled by military juntas.  The political parties that were either banned or forced to resolve are listed below under their Turkish names in order of their chronological foundation:

1. Cumhuriyet Halk Partisi, 1923, BANNED in 1981 by Law Nu: 2533.
2. Demokrat Parti, 1946, BANNED in 1960 by Martial Court.
3. Millet Partisi, 1948, BANNED in 1953 by Court.
4. Ufak Parti, 1957, BANNED in 1957 by Court.
5. Adalet Partisi, 1961, BANNED in 1981 by the Law Nu: 2533.
6. Turkiye Isci Partisi, 1961, BANNED in 1971 by the Constitutional Court.
7. Turkiye Isci Ciftci Partisi, 1961, BANNED in 1968 by the Constitutional Court.
8. Turkiye Ileri Ulku Partisi, 1969, BANNED in 1971 by the Constitutional Court.
9. Milliyetci Hareket Partisi, 1969, BANNED in 1993 by the Law Nu: 2533.
10. Milli Nizam Partisi, 1970, BANNED in 1971 by the Constitutional Court.
11. Milli Selamet Partisi, 1972, BANNED in 1981 by the Law Nu: 2533.
12. Turkiye Sosyalist Isci Partisi, 1974, BANNED in 1981 by the Law Nu: 2533.
13. Turkiye Isci Koylu Partisi, 1978, BANNED in 1981 by the Law Nu: 2533.
14. Sosyalist Devrim Partisi, ?, BANNED in 1981 by the Law Nu: 2533.
15. Buyuk Turkiye Partisi, 1983, BANNED in 1983 by the National Security Council
16. Yuce Gorev Partisi, 1983, BANNED in 1983 by the Constitutional Court.
17. Refah Partisi, 1983, BANNED in 1998 by the Constitutional Court.
18. Turkiye Huzur Partisi, 1983, BANNED in 1983 by the Constitutional Court.
19. Fazilet Partisi, 1983, BANNED in 1984 by the Constitutional Court.
20. Sosyalist Parti, 1988, BANNED in 1992 by the Constitutional Court.
21. Yesiller Partisi, 1988, BANNED in 1994 by the Constitutional Court.
22. Cumhuriyet Halk Partisi, 1989, BANNED in 1991 by the Constitutional Court.
23. Halk Partisi, 1989, BANNED in 1991 by the Constitutional Court.
24. Turkiye Birlesik Komunist Partisi, 1990, BANNED in 1991 by the Const. Court.
25. Halkin Emek Partisi, 1990, BANNED in 1993 by the Constitutional Court.
26. Sosyalist Birlik Partisi, 1991, BANNED in 1995 by the Constitutional Court.
27. Sosyalist Turkiye Partisi, 1992, BANNED in 1993 by the Constitutional Court.
28. Demokrat Partisi, 1993, BANNED in 1994 by the Constitutional Court.
29. Demokrasi ve Degisim Partisi, 1995, BANNED in 1996 by the Constitutional Court.
30. Demokrat Parti, 1992, BANNED in 1994 by the Constitutional Court.
31. Sosyalist Turkiye Partisi, 1992, BANNED in 1993 by the Constitutional Court.
32. Demokratik Baris Partis, 1996, DISSOLVED after a law suit filed at Const. Court.
33. Ozgurluk ve Demokrasi Partisi, 1992, BANNED in 1993 by the Const. Court.
34. Dirilis Partisi, 1996, BANNED in 1996 by the Constitutional Court.
35. Emegin Partisi, 1996, DISSOLVED after the suit was filed at Constitutional Court.
36. Emek Partisi, 1996, DISSOLVED after the suit was filed at Constitutional Court. [73]

            Journalist Robin Wright, the author of the book Sacred Rage: The Wrath of Militant Islam, evaluates the Turkish version of democracy in a different light:

The real danger in Turkey today, however, is not Refah [Party]. Rather, it is that either the military or the constitutional court will act on the pretext of preserving Turkey as a secular state. Because the price will be democracy. And in the end, Turkey will be no safer or more stable. Probably opposite.

Indeed, just how much of a “threat” Refah really represents for Turkey is seriously debatable. By standards in the United States, a land of personal freedoms and parochial schools, the majority of items on Refah’s agenda are petty or non-issues: allowing girls to wear head scarves to school if they prefer; permitting children to go to religious schools through middle school; allowing those with Islamists beliefs to remain or rise in the military.[74]

            Returning to the argument based on Hitler’s rise to power through a democratic process, there is no evidence that Hitler would not have risen to power even if his party had been banned by the court.[75]  Taking into consideration the extraordinary conditions of the time and region, one can assert that the rise of fascism was inevitable with or without democracy or Hitler. Condemning democracy to eternal paranoia and submitting the democratic process to the supervision and control of non-elected powers cannot be justified by speculating about a historical mishap, such as the example of Nazi Germany.  Democracies can easily be turned on their sides when banning parties in the name of democracy is justified.  The Turkish and Algerian examples are two recent examples of this slippery slope.  They show that the real and most common suicide of democracies is not due to their tolerance but due to their deterioration to authoritarian and militarist regimes by groups who purport to save it from the harm of “evil” political parties.

VI. Factors Turning Turkish Democracy into an Oligarchy

            Ersin Kalaycioglu, a professor of Social Sciences at the Bogazici University argues that the Turkish democracy has complex problems and lists several reasons for these problems.[76] Professor Kalaycioglu’s argument can be summarized in five main points:

(1) Transition to democracy did not immediately follow the fall of the authoritarian and totalitarian Ottoman regime. There were many Turks who admired and longed for the authoritarian past.  The transition to democracy did not happen with the consensus of the political powers over the constitution and democratic rules and procedures.

(2) The Turkish political elite could not reach a compromise on a fair electoral system that woukd erase doubts regarding election results.

(3) Military interventions prevented the institutionalization of a party system in Turkey.  Rapid urbanization and industrialization, combined with the banning of political parties and the division of the voting electorate caused a democratic crisis.

(4) Turkish interest groups are weak and ignored by statist politicians.  The elite class of the State still looks suspiciously at civil organizations run by volunteers whose members make up only six percent of the entire voting population.

(5) The Turkish Grand National Assembly, and especially those who occupy ministerial seats and participate in clientelism, tends to please the short-term demands of their constituents through corruptive means.

            While  Kalaycioglu’s assessment is a valid starting point, there are  other crucial factors that contribute to the malformation and degeneration of Turkish democracy.  These factors include:

(1) Turkey’s population boom.  Rapid increases in population bring many serious problems.  Turkey, having doubled its population in thirty-two years,[77] will need resources to improve schools and universities, factories, hospitals, housing facilities, bridges and highways.  If politicians continue to ignore the rapid growth of the population and do not mobilize families to use birth control, the population problem will continue to worsen, and will eventually shake the social, political and economic structure of Turkey.

(2) Several of Turkey’s official policies are  racially motivated.[78]  In the early days of the Turkish Republic, the founding father Mustafa Kemal Ataturk, sought to replace the Arabized Ottoman identity with a new national identity.  He promoted the Turkish nationalism that is expressed in his most famous slogan “ne mutlu Turkum diyene” (Happy is he who can call himself a Turk).  In those days, Turkish nationalism could be justified as a unifying symbol and a substitute of Ottoman identity against eastern and western cultural imperialism.  The slogan, “Happy is he who can call himself a Turk” became the most repeated and visible official slogan.  It was inscribed on government buildings, classrooms, monuments, highways, mountains, and textbooks.  This slogan, however, soon became the motto of racists who attempted to deny the Kurds of their identity and prevent them from assimilating their culture into Turkey.  While there are still those who claim that the word “Turk” defines a nation and not a race,[79] the problem caused by using the name of an ethnic majority as the name of a nation has caused racial division and civil war in modern Turkey.[80]

            Turkey is paying a hefty price for its racial discriminations.  Forcing elementary and middle school children who speak Kurdish at home to chant and declare “Happy is he who can call himself a Turk” and “I am a Turk, I am honest, I am hard-working” every morning has caused both psychological and sociological reactions among the Kurds.  Economic deprivation and the military’s inhuman treatment and humiliation of Kurds for decades continue to ignite and fuel the current civil war in southeast Turkey.[81]

(3) Turkey suffers from a corrupt bureaucracy and a state policy that causes an unjust income distribution.  This issue will be discussed briefly in the next section.

(4) Turkey’s political system makes it impossible to check and control the governments.  Indeed,  the military is the only exceptional power in Turkey.  Also, the government has excessive powers which ultimately lead to corruption and abuse.  Perhaps a presidential system like that the United States or France would prove to be a better alternative for Turkey.[82]

(5) Local governments in Turkey are not empowered to be more independent from the central government.  Turkey would benefit enormously from a federal system. The Federal System should be considered, without listening to those who want to manufacture “uniform” citizens.[83]  The federal systems successfully practiced in the US and Switzerland may provide valuable examples.

(6) The dogmas which are inherited from the Umayyad, the Abbasyd and the Ottomans era are promoted by powerful clergymen, and have turned a significant segment of the population into anti-democratic zealots.[84]  Unless intellectuals seriously question the traditional religion and start a reformation movement, sects and orders will continue to mold medieval minds.[85]

(7) Women do not participate in the social and political life of Turkey:  Women, who constitute half of the population, are left far behind men because of prevalent male chauvinistic attitudes in Turkey.[86]  Even having a female prime minister, is not enough to change the long-held social attitudes.[87]

(8) Gross Human Rights violations are ongoing in Turkey.  Turkey, with its criminal procedures, police and prisons has been violating the human rights of its citizens.  To protect citizens against the aggression of law enforcement officials, Turkish criminal procedure should be reformed.

            Anthropology professor Paul J. Magnarella, a consultant for the Third World Research Association, finds the human rights situation in Turkey appalling.[88]  He lists four factors contributing to this situation: statism and authoritarianism; military involvement in government, the economy and society; Ataturk’s principle of populism; and legalism. Below is a lengthy excerpt from his analysis which is an impressively accurate diagnosis of the political, economic and social problems in Turkey.  Any opposition that threatens the power of the ruling elite, be it religious, ethnic, or socialist, has always been crushed by the Kemalist oligarchy.

1) Statism and authoritarianism. The state, through the government in power, closely directs the country’s economy, society and culture. “In Kemalist Turkey, reform and centralization by a cohesive center was the ideal aim of stagecraft, as it had been in Ottoman Turkey. In the multiparty period [from 1946] this tradition persisted in the form of ‘bureaucratic paternalism’ and military imposition of reform.” The Turkish political scientist, Metin Tamkoc, has written: “Modernization of Turkey was initiated under the authoritarian regime of Ataturk. His authoritarian political system was the product of the traditional political culture and patrimonial infrastructure. . . . [In] Turkey there is no room for an ‘opposition group.’ The governing elite do not tolerate opposition to their authority or their policies.” The ruling elites have also shown little tolerance for criticism. For example, in her statement to the U.S. Commission on Security and Cooperation in Europe, Lois Whitman, Deputy Director of Helsinki Watch, said police had harassed, detained, interrogated, and beaten scores of journalists for their writings. Some have been tried and sentenced, having been convicted under the very broad anti-terror law of such offenses as criticizing or insulting the president, public officials, Ataturk, or the military, or of printing anti-military propaganda.

2) Military involvement in government, the economy and society.  The military elite, seeing themselves as the guardians of the state and Ataturk’s heritage, intervene frequently in the economy and government, either through authoritarian advice or coups. The noted Turkish political journalist, Mehmet Ali Birand, has written that the Turkish armed forces are perceived to have the legitimate right and duty to intervene in politics and government in the name of the nation. He adds that through coups and military rule, the generals “have stamped their imprint on every aspect of Turkish society for the foreseeable future.”

3) Ataturk’s principle of populism.  Populism stands against class-based politics and for an indivisible, unified state based on one people and one language. A component of populism is Turkification; the state, through ruling governments from Ataturk to the present, has tried to convert ethnically heterogeneous peoples into a homogeneous population of Turks. The process has involved rewriting history (e.g., the sun-language theory, which maintains that Turkish is the origin of all other languages) and suppressing the cultural identity and expression of non-Turkish peoples within Turkey.

4) Legalism.  The practice by both civilian and military governments to legalize all the above, so as to legitimize the state’s often intimate involvement in the economy, society and culture; the political and legal consequences of military intervention; and the related processes of Turkification and suppression of non-Turkish culture.[89]

VII. Oligarchy and Economic Corruption

            The Attorney General of the Turkish Republic complained about the extremely low educational level of the majority of the Turkish population.[90]  Considering that Kemalism rules every aspect of life in Turkey, from education to the media, from the banks to the armed forces, this is a surprising admission by a respected officer of the Turkish ruling class.  Nevertheless, the  Attorney General’s remarks appear to be more of a criticism of  the population rather than of the system which governs the population.

            The Attorney General, in his charge, attempted to explain the rise of the Refah Party: “Erbakan and his friends have found many supporters because the majority of the population has low level of education and the idea of democracy has not matured in the minds of our intellectuals.”[91] The implication of this complaint exposes the mindset of the Turkish oligarchy: democracy is a luxury for our people since they are not educated and intelligent enough to vote for the best party.  I disagree.  Even if we consider the majority of Turkish population as “uneducated,” they are still “self-interested, rational utility maximizers.”[92]   People have been disappointed for decades by the practice of politicians who preach about Ataturk, secularism, democracy, western standards, science and the level of modern civilization. Turkey’s limited budget has beengenerously spent on an unnecessarily large military.[93]  Prominent businessmen are favored through corrupt state auctions and protective tariffs that have turned Turkey into a gold mine, ready to be pillaged.  The gap between the majority and the richest segment of the population has grown wider because of corruption in the political system. Cetin Altan, awell-known Turkish journalist,[94] frequently brings up this disturbing idea of economic corruption:

Thanks, the annual inflation finally reached to 90%.  God willing, it will reach to 100% by the next year, of course, due to the indivisible unity of our country… The fortunate top 20% of population is devouring the 54% of the national income.  The condemned bottom 20% of the population, on the other hand, is left with only 4% of the national income. . . .These are the data of a kettle steaming with “domestic troubles. . . .The kettle has already started bubbling.  Can water be prevented from being boiled at 100° Celsius by formulas of shooting and getting shot in the cause of the State?[95]

            Ziya Onis, a professor of economy at the Bogazici University, warns about the dangerous gap between the rich and poor:

Compared with its respectable growth performance, Turkey has a poor income distribution record. With a gini coefficient of slightly over 0.5 for the past three decades, the Turkish record compares favorably only with the worst cases of income inequality in the developing world: Brazil and Mexico. Its distributional record is considerably inferior to the hyper-growth cases of Taiwan and South Korea, both of which have substantially lower gini coefficients.[96]

            The author blames unfair taxation as the cause of this dangerous income gap.  While public and private sector employees earn only 20% of national income, they contribute to 80% of tax revenue.[97]

            The Turkish oligarchy, or a small group of influential families, benefit from government auctions, slanted tax laws and the official economic policy.  Unfortunately, the members of the Turkish Armed Forces have been attracted to this insensate pillage and plunder.

            The Military Mutual Assistance Association (OYAK) that was formed in the 1960’s has invested heavily in industries such as automobiles, trucks, tires, petrochemicals, cement, food production, retail sales and service.  This economic interest creates enormous incentives for military personnel, either retired or on-duty, to follow the domestic economy and politics a little too closely.

The Turkish military, through OYAK, became partners with foreign and domestic firms and shared with them the same concerns for profits, political stability, and labor compliance. Consequently, the military’s corporate interests expanded into the areas of labor law, trade unionism, monetary policy, corporate taxation, investment banking, the media, and other related matters.[98]

            The descendants of pashas and feudal landlords who exploited the name of Turkey’s national hero Mustafa Kemal Ataturk for their petty interests have pushed Turkey into chaos. They have pushed Turkey far away from being a democratic state, and its people will not forever stand idly by.  The majority of people might be ignorant but they are by no means stupid.  Fed up with the corruption and mismanagement, the people searched for hope in the Welfare Party.[99]  The Attorney General, instead of accusing the Welfare Party and insulting the intelligence of the people, should have questioned the ruling class.

            There is no need to guess what topics are discussed by the Turkish National Security Committee. Who can question the glorious generals who are the defenders of the country, defenders of what they claim to be a democracy?  Any political changes that challenge their interests are automatically labeled a danger for the country and regime. That danger is then exposed through the highly controlled media.[100]

            Journalist William Pfaff made a correlation between the endemic economic corruption of governments and the rise of the Refah Party:

The political society of Turkey has been extremely but imperfectly Westernized. The modern party system has shallow roots and tends to produce governments closely, and sometimes corruptly, linked to the major commercial and banking groups of the nation, cut off from the peasantry of what remains a poor if rapidly and erratically developing country. . . . The Islamist party, the Refah or Welfare Party, is paradoxically the only modern political organization in Turkey. It has deep roots in countryside and village, offering a program of religio-political reform to a population disoriented by the forces of modernization.[101]

            Pfaff’s assessment is precisely accurate.  Many Turkish authors acknowledged the economic component as the cause of the Welfare Party’s unexpected popularity.  For instance, Ali Riza Karduz, a Turkish columnist, wrote: “Refah Party, did not accomplish just by exploiting religious beliefs for their political ends, but it also managed to establish a dialogue with people, especially the poor.”[102]  Ironically, there is no hope looming on the horizon that the oligarchy, whose responsibility is to solve the economic disparity in the country, has any intent of doing so.

VIII. Theocratic Secularism

A. Religious orders, faith-brokers and their followers

            The Attorney General confuses the teaching of religious orders with the teachings of the Quran.  In fact, these teachings can be very different and even opposite from one another.  This misconception is a result of the distortions of religion caused by Muslim clergymen.

            The Attorney General rightly believes that religious orders, in general, are institutions where faith-brokers enter as a median between believers and God and exploit them economically, politically and mentally.  However, one cannot disregard some of the good aspects of orders that attract many.  Orders provide for their members psychological support and a social environment as well as economic cooperation networks. Religious orders fill a vacuum that Masonic clubs and secular institutions do not reach.  Nevertheless, many of those who struggle to preserve their culture and identity against atheism and modernism fail.  Those who are deprived of economic opportunities, after falling into the web of religious orders, give up monotheism and become worshipers of their religious leaders.  They soon lose their identity and freedom.

The following question is relevant to this discussion:

World religions give hundreds of different answers for a single question. Dogmas attract the highest rate of conformists. Conformity, sooner or later, causes the private acceptance or justification of the dogma. Some people become fanatics, dedicating themselves to the dogma. The old conformists cause the newcomers to conform. This chain attraction goes on. Why is the percentage of religious conformists and their private acceptance so high?[103]

            While there are many possible answers to this question, economic, social and psychological biases may offer valuable guidance:

Third world countries that are inflicted with economic, politic and ethnic diseases a minority enjoys the resources through government subsidies, nepotism, monopolies and high interests while the majority struggles in the quagmire of unemployment and poverty. Those countries where injustice and corruption is epidemic, a leadership that provides religious identity for the oppressed class through radical opposition to the establishment attracts masses. The religious causes are no more philosophical or personal, but are political tools, energizing drugs, and symbols of rebellion. The anger and dissent that has been accumulated against the ruling class throughout generations are finally released through sacred volcanic eruptions with hot slogans hurled in the name of God. In such an environment religions and religious orders represent mixed and complex emotions created by social and economic trepidation.[104]

            Those who join religious parties and orders merely to protest political, social and economic injustices are similar to gang members who use gangs to escape from family troubles.

            A private confession of Prof. Esad Cosan, the leader of a powerful religious order called Iskender Pasha Community, exposes the dimension of the ugly and “holy” economic exploitation. Prof. Nejmeddin Erbakan, the leader of Welfare Party, was affiliated with the order until 1990.  In the following secretly-recorded private speech, Mr. Cosan complains about Erbakan to his elite followers:

“The Prophet, our lord, says: ‘Those who break their promises have no religion.” Where is loyalty? Where is the 20, 30, 40 years-old friendship? Where is reciprocating goodness with goodness? I have supported you until 1990, then why do you not support my foundation? What did you see in my book contrary to Islam? He has adapted a cause of his own by saying, “I am the commander of jihad.” What jihad? This is not a struggle in the cause of God. We know each other for 40 years, we have supported him for 40 years, we have fed him, we have allied with him with all our might, he is someone whose budget has swelled by the financial contribution of our brothers, fattened, became rich by the Marks sent from Germany filled in bags, he is the one who did things with the money came from Saudi and Kuwait.[105]

            Religious orders and their leaders advocate blind faith which is in contradiction to the Quranic principles advocating empirical and rational methods in acquiring knowledge.[106] Religious organizations and orders tends to create polytheists. The members of orders are discouraged from studying the Quran; they are told it can be understood only by clerics. Instead of focusing on the Quran, members are fed with miraculous stories of the leaders of the orders, thereby brainwashing them into obedient servents.

            Religious orders are institutions of ignorance. They advocate superstitions and commentaries on dreams instead of rational thinking: they prefer amulets and miraculous healings to medical treatments based on research and experiments; they teach mythologies exalting their dead “saints” instead of a falsifiable and verifiable thesis; they promote intercession through dead or live clergymen instead of asking help from God alone; and they promote medieval cleric-made teachings such as Hadith, Sunnah and sectarian jurisprudence instead of the Quran alone.[107]

            The fight against these social and religious cancers must be fought through reason, science and education. The fight will be successful in a democratic environment, in an environment where all ideas and beliefs, including those of religious orders, and the right of free association, are protected. A secular government should not be involved in such a fight, and should not get involved by banning religious orders, since it incurs more harm than good.

            A state with frowned eyebrows and steel fists trying to teach religion and morality to its citizens creates negative reactions and only increases the number of followers and their level of fanaticism. The Turkish state should sincerely adhere to democratic principles, observe international treaties, stop subsidizing the wealthy and stop imposing official dogmas and religion onto its citizens.  Otherwise, the war between the interest groups who fight in the name of a deformed democracy and the interest groups who fight in the name of a deformed religion will only escalate.

            Aping the practices of Mustafa Kemal Ataturk contradicts the principles of modern civilization.  Ataturk’s era was an extraordinary era and had its idiosyncrasies and limitations. The transition from monarchy to republicanism required certain bold and dramatic actions. Therefore, adopting democracy was delayed until after Ataturk’s death in 1938.[108]

            Freedom and democracy protect the ideas and institutions that we may not approve of. Abolishing the institutions that we do not like, denouncing the politicians that we disagree with as traitors and putting them in prisons is a contradiction to the “standards of progressive modern civilization,” a phrase frequently used by the Attorney General and the Turkish elite.

            Our century is the era of freedom and respect for personal beliefs.   In the “civilized” world, secularism is not a machete to rive and carve religious beliefs and orders.  On the contrary, secularism protects them from the oppression of states and majorities.  Religions and orders which are not disturbed by democratic regimes usually do not choose to fight against the state, rather, they choose to compromise and live together.  In fact, radical elements of organized religions and orders will lose power over the minds of people if ideas and beliefs are discussed with minimal prohibitions and taboos.  The quality of societies increases dramatically when ideas are freely and publicly argued.  They become more productive, creative and successful.  In the open market of ideas, a minority that could be influenced by amulets, charlatan healers, and cults can hardly pose danger to the well-being of the entire society.  If it is the majority who is fooled by these elements then the problem is not the suppliers of such ideas, but the causes of such a mass demand.

B.  Asking Help from the Shrines

            Under the title, “The Principle of Secularism” the General Attorney quotes from Ataturk: “imploring the dead for help is shame for a civilized society.”[109]  Nevertheless, the Attorney General is not following the advice of Ataturk.  In his draft opinion, the Attorney General proudly quotes the first paragraph of the Preamble of the Turkish Constitution where Ataturk is described as an “immortal leader and matchless hero” and referred to by the capital He, implying divinity.

             The difference between the members of the religious orders and the members of Kemalist oligarchy is only in labels and their power base. The Attorney General, the members of the Constitutional court and military leaders have betrayed Ataturk by turning his grave into a house of worship. The Kemalist elite is obsessed with erecting busts of Ataturk everywhere. Every school and every government office has a corner where his brass or stone bust appears and rooms are filled with Ataturk’s sullen pictures looking down on those who enter them. Inscribing “words of wisdom” attributed to Ataturk is another national and official obsession. One may find a quotation from Ataturk where the word airplane or sky is mentioned on the gates of airports, or another quotation adorning the most visible walls of railroad stations, on the gate of a park, or in a police station. A Turkish author who was fed up with this idolization and exploitation of Ataturk wrote: “Turkey, for long time, has afflicted with three disasters: terror, inflation, traffic. Unfortunately, we cannot find a single word from Ataturk on these issues. If Ataturkism is merely all about his words, then we should watch these 3 monsters demolishing the Republic…”[110]

            The mindset and attitude of those who claim to be Kemalist are no different than  members of a religious sect.  This can be observed by those that do not belong to the circle.  For instance, the observation of an American anthropologist is very accurate:

Ataturk as “father of the Turks” is symbolically allied with both God and the Prophet. He has been referred to as Tek Adam, “A Singular Man” (Aydemir 1969). Tek means single, alone, unique, solitary, without a partner, an attribute that we have seen belongs only to God. Even in official documents “He” is always capitalized when it refers to Ataturk.

Like the Prophet, he brought the Turks the message of their origin and orientations, to recall them to their true heritage. They were to make the land a place where his laws and customs would prevail. The national bayrams (holidays) compare with the religious ones. For example, May 19 commemorates the date Ataturk arrived at Samsun in 1919 from the capital, Istanbul, where he would surely have been arrested. This movement could be considered his hicret (hijra, hegira), analogous to Muhammed’s exodus from Mecca to Median; alternatively, it might be imagined as the time he received his “call” to begin a cihat (holy war) to cast off the yoke of the infidels (the Allied Powers). October 29 commemorates the proclamation of the Republic (1923), the beginning of the new nation living under new laws. April 23, Children’s Holiday, commemorates the opening of Parliament, which might be inversely comparable to Seker Bayrami, the Candy Holiday, which closes the period of fasting.

In addition, statues and pictures of him are ubiquitous, an obvious contrast with Islam’s aniconic tendency and the invisibility of God. His death date (November 10, 1938) is remembered every year by several minutes of silence at 9:04 a.m., but all children must learn a song that begins “Ataturk is not dead, he still lives.” General Evren, after the military intervention in 1980, placed a wreath at his tomb, Anitkabir, a large square structure dominating Ankara that is referred to even by taxi drivers as “our kabe'” (Ka’ba), implying that Ankara is a new Mecca. Like its Meccan counterpart, Anitkabir is also a place of pilgrimage. Many children are taken there on finishing primary school; others go whenever means and opportunity allow. It was the first place I, as a Fulbright grantee, was taken.

The symbolics of political geography reinforce the belief that secularism in Turkey cannot mean merely a separation of religion and state. Rather, the state has taken over the symbols and the structure of the authority of Islam but changed the referents. The secularism Turks are confronted with is a mirror image of the religious worldview reflected back to this world. But is the nation a sacred state or a secular religion?[111]

            The oxymoron “secular religion” provides a critical insight into the nature of the troubles that Turkish society has been experiencing since the transformation from a theocratic monarchy to a secular republic.  The transformation, or more accurately, mutation, did not result in a different species, but rather a bizarre hybrid creature.  The suppressed and condemned characteristics of the Ottoman Empire somehow survived and became the alter ego of the new nation. Donald E. Smith of Yeshiva University provides another example of such complex national personalities:

. . . particularly in the Soviet case, something else was also at work: the gradual elaboration of an official cult, complete with sacred books, revered prophets, holy shrines, unquestioned creeds, moral imperatives, and a promised utopia. From the point of view, revolution brought not secularization but establishment of a new secular religion.[112]

            If the Turkish state wants to rise to the “level of modern civilization,” instead of replacing a religion with another religion it should start practicing real secularism.  The Attorney General, in his charges before the Constitutional Court, subscribed to a tyrannical definition of secularism: “This word does not merely mean the separation of worldly and religious authorities in the state, but it also means the determination of social life in the area of education, family, economy, law, manners, attire, etc., according to the time and requirements of the time.”[113]  The understanding and practice of secularism as an officially mandated lifestyle for individuals explains the root of most of the social and political problems that Turkey is struggling with.

            The United States, with its well-calculated tolerance towards religions, is a good model for Turkey to follow.  For example, in Wisconsin v. Yoder, a suit brought by the state against members of the Amish Church who did not send their children to public schools, the U.S. Supreme Court held that the state has no authority for compulsory education.[114]  Worried that compulsory education would be a threat to the rural lifestyle of Amish community, the Supreme Court balanced the First Amendment right with the state’s interest.

            The United States Supreme Court, in another case found prayers at high school graduation exercises unconstitutional since the supervision of prayers by teachers could create psychological pressure on students and therefore violate the separation of church and state.[115]  The First Amendment of the American Constitution aims to protect religion from the intrusion of the state and prohibits the state from supporting any particular religion.[116]  The United States Supreme Court, despite occasional staggering, has drawn a functioning line by balancing the delicate tensions inherent in the First Amendment.

            Turkish secularism on the one hand is antagonistic to religion, on the other hand, it  continues the Ottoman tradition of discrimination based on religion.  While there exist a small minority of Christians and Jews within the Turkish population,[117] in the history of Turkish Republic, with the exception of Jefi Kamhi,[118] there has not been a single congressman from these religious minorities  Nor has any Turkish citizen belonging to a religious minority been placed in the cabinet or in the ranks of lieutenants of the Turkish Armed Forces.

            Turkey is the only “secular” state that imposes compulsory religious education in its high schools.  Article 24 of the Turkish Constitution is a monument of contradiction.  The first three paragraphs are filled with freedoms and rights:

                        Everyone has the right to freedom of conscience, religious belief and conviction.

Acts of worship, religious services, and ceremonies shall be conducted freely, provided that they do not violate the provisions of Article 14.[119]

No one shall be compelled to worship, or to participate in religious ceremonies and rites, reveal religious beliefs and convictions, or be blamed or accused because of religious beliefs and convictions. [120]

            The following paragraph, however, is unique to the Turkish version of secularism:

Education and instruction in religion and ethics shall be conducted under State supervision and control. Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools. Other religious education and instruction shall be subject to the individual’s own desire, and in the case of minors, to the request of their legal representatives.[121]

            Turkey is perhaps the only “secular” government that does not accommodate the religious needs of the majority.  In Turkey, while the Christian minority can go to church on Sundays and the Jewish minority can observe Sabbath on Saturdays without risking their jobs, the Muslim majority are deprived of a two hour break during Friday at noon.[122]   The Muslim majority in Turkey has fewer rights than the Muslim minority in the U.S.  The backward official policy that considers waging war against the head-scarves of women citizens as a progressive act and as a craft of governance germinates and augments another similarly  backward alternative.  Turkey has been transformed into a war zone between the followers of secular religion and the traditional religion with their multiplying silly symbols, such as neckties versus beards, hair versus turbans, wineglasses versus rosaries.  The occasionally emerging bayonets and gunfire accompanied by nationalistic or religious slogans promises a dark future for Turkey.  Turkish democrats and intellectuals cannot watch this ridiculous fight continue.

IX. The Reasoning of the Constitutional Court and the Defense

            The Constitutional Court, with two justices dissenting,[123]  found Professor Nejmeddin Erbakan, the leader of Welfare Party, inter alia, guilty of violating secularism on four counts. The court described the first “crime” with these words:

Nejmeddin Erbakan, the Leader of the Party, ignored the Constitutional rules and the opinion of the Constitutional Court by his speeches encouraging the use of head-scarves and turbans in the universities. His speeches became a message for those who are against the secular system. Therefore, in various universities and in front of mosques demonstrations were held, disrupting the public order.[124]

            Though none of the demonstrations were organized by the Welfare Party, the Constitutional Court assumed a nexus between Erbakan’s speech defending “real” secularism and the demonstrations.[125]  In the list of crimes committed by Nejmeddin Erbakan, the Constitutional Court lists his speech asking for a pluralistic legal system, similar to the American federal system.[126]  The defense again claimed that the speech was protected and also quoted from other party leaders praising Erbakan’s speech as “very informative.”[127]  The defense also interpreted the speech as being about the “freedom of contract,” meant to promote the goals of international institutions such as, the Universal Declaration of Human Rights, European Human Rights, Helsinki and Paris conditions.[128]  The defense quoted a part of Erbakan’s speech that was not mentioned by the Court.  In the same speech that the Court found criminal because of its anti-secular message, Nejmeddin Erbakan, is ironically an ardent defender of secularism:

The entire world is expecting three things from secularism: the state should not blame anyone because of his or her belief; should not oppress anyone because of his or her religious conviction; and every person should be free in choosing his or her faith. When we say ‘a state that stops all kinds of oppression’ we mean that the state itself should not be a tyrant, the state should be there to serve the citizens, and it should be concerned about human rights. . . . it will be democratic . . . What is the meaning of this? It means that the state should get the support of the people when it makes legislation, the state should not act with a SCHOLASTIC reasoning and claim that ‘our religion dictates this, so the law should be this way.’ We do not approve such a compulsion; the law should be based on scientific inquiry.”[129]

            The defense rightly questioned the logic of accusing the orator of such a speech with a violation of secularism.  The defense, knowing that the Turkish establishment has a very different concept of secularism, also resorted to the International Treaties and Article 25 of the Turkish Constitution which reads:  “No one shall be compelled to disclose his thoughts and opinion for any reason or purpose; nor shall anyone be blamed or accused on account of his thoughts and opinions.”

            The Constitutional Court lists Erbakan’s speech in the Welfare or Refah Party’s group meeting at the Great National Assembly as another reason for the abolishment of the Welfare Party.  The “criminal act”, according to the Court, was the following words:  “Refah Party will bring a just system, this is a must.  Sixty million of Turkish population will decide whether the transition will be soft, hard, or bloody.”[130]  The defense accused the media and the Attorney General of distorting the speech and taking it out of context.  The defense provided faxes and media accounts of the speech to demonstrate its context and purpose.  After the Refah Party won the municipality election in major cities, the Party received many threats from various sources, including the military.  For instance, one threatening fax read, “Ankara will be a grave for Melih Gokcek [the mayor from the Refah Party] . . . We will fight until the last drop of our blood.”[131]  Nevertheless, the Constitutional Court tried to read more into Erbakan’s speech, and interpreted his words “just system” to mean “religious system,” one  reasons cited for  abolishing the Rafah party.[132]

            The last “crime” attributed to Erbakan is no more persuasive than the previous ones.  His invitation of some religious leaders to a dinner during the month of Ramadan to the House of Prime Minister was found to be criminal.  Erbakan, both as a party leader and a Prime Minister, according to the Court, violated the Article 174 of the Constitution by inviting people with illegal attire to an official dinner, whereby implying the consent of the state to such illegal attire.

            The lengthy Article 174 to which the Court refers, starts with “no provision of the Constitution shall be construed or interpreted as rendering unconstitutional the Reform Laws indicated below” and lists eight of Ataturk’s reforms, such as uniform education system, the wearing of hats, the closure of dervish convents and tombs, civil marriage, the adoption of International numerals and the Latin Alphabet, abolishing of titles and appellations such as Efendi (Lord), Bey and Pasa, and finally the wearing of certain garments.

            Most of these reforms are dead in the daily life of modern Turkey.  Virtually no one is wearing hats, and the prohibited titles Efendi, Bey and Pasa are widely used among the people and in the media causing no legal problems.  The reasons for these reforms evaporated a long time ago and these reforms are inserted into the Constitution solely to revere Mustafa Kemal Ataturk.  But it is impossible to understand how the Attorney General and the Justices of the Constitutional Court, who themselves do not wear hats and who address one another with titles such as “bey efendi,” are able to accuse a party leader for inviting some people wearing “illegal attire” to a dinner of violating the Constitution.  Besides, Article 174 has nothing to do with those who wear or do not wear certain attire, nor has it anything to do with inviting such people to an official dinner. Article 174 is about misinterpreting the Constitution contrary to the reforms, which Erbakan apparently never did.

X.  CONCLUSION

            This paper cannot respond to every claim made by the Attorney General.  His non-traditional opinion boldly demonstrates the ever increasing polarization between the Turkish ruling class and the traditional population.  It also exposes the true nature of the “secularism” and “democracy” intended by the ruling class.

            The proponents of this bizarre secular ideology have been controlling, manipulating and exploiting religious beliefs while aggressively attacking those who are not converted to the official version.  Under the pretext of protecting democracy, they have been inviting and applauding militarist interventions and have been banning political parties ad nauseam.  But their end is near.  They should show the wisdom of studying the international trend.  In an information age where the Berlin Wall has crumbled and the Chinese Wall is shaking it is not possible to keep Turkey as a land of dogmas and dinosaurs.  The future of Turkey is not open to totalitarian oligarchy.  Turkey, God willing, will become a democratic secular land in a real sense, where Kurds and Turks, Muslims and non-Muslims will live together peacefully and respect rights of one another.

            A poem by Turkish poet Nazim Hikmet[133] is a perfect invitation:

Galloping and leaping from far Asia

Stretching out the Mediterranean like a head of a mare

                        this land is ours.

Wrists soaked in blood, teeth that are locked, feet that are bare

and this ground akin to a silk carpet,

                        this hell, this heaven is ours.

Close the doors that are foreign, let it not open again

Abolish slavery of humans to humans

                        this invitation is ours.

Living like a tree, individual and free

and like a forest that is friendly,

                        this aspiration is ours…

---

[1]           *Author, human rights activist.  J.D., University of Arizona College of Law, 1998.  I wish to thank Professor David Golove for his enthusiastic feedback and the editors of this Journal, especially Alexandra K. Zois and Heidi Joy Schmid, for their input.  My ultimate thanks go to God for enabling me to immigrate to America, the land of freedom.  The author may be reached through his website, <http://www.yuksel.org>.

Spelled “Turkey” in English, the English spelling is used throughout this article for convenience.

[2]  Paul J. Magnarella, The Legal, Political and Cultural Structures of Human Rights Protections and Abuses in Turkey, 3  Det. C.L  J. Int’l L.  &  Prac. 439 (1994).  In the introductory paragraph Professor  Magnerella describes Turkey with the following words: “Turkey stands as the only democratic state with a predominantly Muslim population. Although most of Turkey’s territory lies in the Middle East, its political leaders created a West European-style constitutional republic with a pro-Western foreign policy.  Turkey boasts a democratically elected parliament and an independent judiciary.  It is a member of the North Atlantic Treaty Organization, the Council of Europe, the European Community (associate member), and the Conference on Security and Cooperation in Europe. Turkey is also an American ally and the third largest recipient of United States foreign aid.”

[3]  The Turkish Constitutional Court is the Turkish equivalent of the US Supreme Court.

[4]  “[The] Welfare Party has more than 4 million members among the total 35 million vote[r]s and received 22% of votes in [the] 1995 elections.” Resmi Gazete [Official Reporter], Feb. 22, 1998, at 68.  It is the progeny of the National Salvation Party (Milli Selamet Partisi) and the National Order Party (Milli Nizam Partisi) which were both abolished in 1973 by the Constitutional court, and in 1980 by the generals.  For the role of the military in Turkish politics see Feruz Ahmad, The Making of Modern Turkey (1993).

[5]  Bassavci Savas’in Mutalasinin Tam Metni [The Text of the Attorney General Savas’ Opinion], Sabah [Morning] Aug. 1-12, 1997.  Sabah is a major Turkish daily newspaper, with a searchable archive at its website, <http://www.sabah.com.tr>.

[6]  Resmi Gazete, supra note 4, at 13.

[7]  I do not endorse the ideology of the Welfare Party, which is now on the lengthy list of abolished political parties in Turkey.  However, I do have many friends and relatives among the members of the Turkish National Congress (TNC) from the Welfare Party (including my uncles who have been in the Congress and affiliated with the same party for decades, and my cousin, whom I consider a democrat and humanist, who is a member of the Congress elected from the Welfare Party).  I therefore cannot deny that there are some elements in the party that advocate the establishment of “shariat,” the medieval sectarian jurisprudence attributed to God and Muhammad.

            As a researcher who has written scores of books and articles on Islam, I denounce the traditional Islam since it has nothing to do with the teaching of Muhammad and the only book delivered by him, the Quran.  I have discussed this issue in several books.  See, e.g.,  Edip Yuksel, 19 Questions For  Muslim Scholars (1996).  For further analysis, see also Kassim Ahmad, Hadith: A Re-evaluation (1997) and  Rashad Khalifa, Quran, Hadith and Islam (1982).  These three books can be downloaded from the Internet at <http://www.moslem.org> or <http://www.yuksel.org>.  The Islam that is prevalent in Muslim countries, be it Sunni or Shiite or other sects, is the product of Muslim scholars introducing the medieval Arab culture and some other teachings in the name of God and Muhammad.  Those who fanatically adhere to those teachings cannot be honest in their claims regarding democracy and freedom since the sectarian jurisprudence and their holy sources besides the Quran, such as Hadith and Sunnah, justify and even encourage oppression and terror against those who do not uphold those teachings.  Id.  The orthodox religion of the clergymen teaches religious zealots to kill apostates, issue harsh penalties for personal sins that have no direct connection to society, and subordinates women and discriminates against them.  Id.

[8]  The Quran is considered sacred by the majority of Turkey’s population.

[9]  I will discuss the first four points in more detail.  I will not elaborate on the fifth point in this paper.  For more information of the fifth point, see Edip Yuksel, Devlet/Demokrasi/Oligarsi/Teokrasi (1997) where I have dealt with the Attorney General’s argument against the Quran extensively.

[10]  In 1982, I was a 25 year-old political prisoner in a military dungeon when the current Constitution was put on the ballot.  During my prison term, I was allowed to read newspapers and magazines, but only after they were censored by the prison authorities.  At that time, newspapers were writing about the coming ballot on the proposed new Constitution prepared under the supervision of the members of the military coup.  (Interestingly, the previous Constitution was also a “new” Constitution drafted by a military junta after the 1960 coup.)  However, the military junta prohibited newspapers from publishing opinions and propaganda against the proposal.  Criticism of the proposal was against the Turkish version of “democracy of modern civilization.”  Those who dared to declare “NO” would be grabbed by their ears and put in prison. Therefore, some “enemies of the country” who defied the ban ended up in Turkey’s already crowded jails and prisons.  Though the ballot was to be a secret ballot in theory, the “NO” or “YES” voters to the proposal would wink to the officials attending the ballot boxes. An insidious ballot scheme that is rarely seen in the history of democracy would be employed. The “No” votes were printed on blue paper while the “Yes” votes on white. Those who wanted to vote “No” would insert one of the blue papers into a translucent envelope in a private cubicle or room.  Nevertheless, this secrecy would last until the ballot box. The ballots of opponents would wink blue to the attending officials!

                Meanwhile, opponents of the proposal tried creative ways to undermine the ban on the “public no.” For instance, in a cartoon in Cumhuriyet Gazetesi (Republic Newspaper) a cute character enters his room in suspicion and fear; he searches the room. He looks under the couch, looks out the window, checks the closets and drawers and he even looks under the carpet. When he finally feels that he is alone and no surveillance equipment is around, he takes out his guitar and starts reciting the Turkish translation of “ooh mammy, ooh mammy blues, oooh blues…” Another creative protest that I still remember was published on the back cover of Sizinti, a religious monthly magazine. The Turkish word “hayir” means both “no” and “good luck.” The magazine used the double meaning of the Turkish word cleverly: “Anayasa oylamasi HAYIRLI olsun” (We wish that the vote on the Constitution will end with good luck/no).  But the results were not lucky; according to the official claims, more than 90% of the votes were “Yes.” (“. . . the Constitution was submitted to a referendum on November 7, 1982.  It was officially reported that 91.27% of the eligible voters cast their votes.  Of these, 91.37% voted for. 8.63% cast negative votes.”   Gisbert H. Flanz, Constitution of The Countries of the World: Turkey 2 (Albert P. Blaustein & Gisbert H. Flanz eds., 1994).  See also Turkey’s de Gaulle, Economist, Nov. 13, 1982, at 7.).

[11]           Turkey’s Constitution of 1924 was drafted under the supervision of Ataturk, the founding father of the Turkish Republic; The 1961 Constitution was supervised by General Cemal Gursel, the leader of the 1960 coup; and the present Constitution was supervised by General Kenan Evren, the leader of the 1980 coup.   Metin Tamkoc, Inconsistency between the Form and Essence of the Turkish Political System  (1983).

[12] Mustafa Kemal Ataturk is considered the founding father of the Turkish Republic.

[13]  Ersin Kalaycio_lu, Constitutional Viability and Political Institutions in Turkish Democracy, in Designs For Democratic Stability: Studies in Viable Constitutionalism, 179, 180 (1997).

[14]  “The 1961 Constitution emphasized fundamental liberties while the present Constitution seeks to assure the authority of the state.” Flanz, supra note 10, at 2.

[15]  Suna Kili, Turkish Constitutional Developments, 21 Cap. U.  L. Rev. 1059, 1068 (1992).

[16]  Id. at 1069-70.

[17]  Id. at 1070.

[18] In 1996, I first became interested in studying the Turkish Constitution.  Prior to immigrating to the United States I had no desire to read the Constitution of a country which had alienated me for my religious convictions (Islam), my ethnicity (Kurdish) and my unorthodox socio-economic (anti-capitalistic) ideals.  The constitution would not protect the liberty and dignity of dissidents against the steel fist of the state and therefore had no meaning for me as a young university student.  I was sentenced to a six-year prison term for violating Article 163 of Criminal Code and for showing the courage and dignity to defend my position in front of the judges of the martial court.  I was released from the prison after 3.5 arduous years which included nearly one year of physical torture, verbal abuse, malnourishment and many other indignities.  After a coerced military service as a “dangerous foot soldier,” I was again detained for my book “Interesting Questions 1” for 6 months, this time ending with an acquittal with no compensation.  As an interesting quirk of fate, the number 163, the “legal” number that I hated throughout my political activities, was assigned to me in law school as my locker and mailbox number.

[19]  I have examined the constitution of the countries that are members of the European Union, Canada and the United States.

[20]  Turk. Const. art. 27.

[21]  For a more detailed argument on the Kurdish issue, see Edip Yuksel, Yes, I Am A Kurd, 7.3 Det. C. L. J. Int’l. & Prac. 359 (1999).

[22]  Turk. Const. art. 26.

[23]  Turk. Const. art. 28.

[24]  “No language other than Turkish shall be taught as a mother tongue to Turkish citizens in teaching and learning institutions.”  Turk. Const. art. 42.9.

[25]  See,  Kalaycio_lu, supra note 13, at 179-192.

[26]  “Fundamental rights and freedoms my be restricted by law, in conformity with the letter and spirit of the Constitution, with the aim of safeguarding the indivisible integrity of the State, its territory and nation, national sovereignty, the Republic, national security, public order, general peace, the public interest, public morals and public health, and also for specific reasons set forth in the relevant articles of the Constitution. . . . ” Turk. Const. art. 13.

[27]  “Every individual has the right to form associations without prior authorization. . . . Associations shall not contravene the general grounds of restriction in Article 13, nor shall they pursue political aims, engage in political activities, receive support from or give support to political parties, or take joint action with labor unions, with public professional organizations or with foundations. Associations deviating from their original aims or conditions of establishment, or failing to fulfill the obligations stipulated by law shall be considered dissolved. . . . ” Turk. Const. art. 33.

                “Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission. . . . The competent administrative authority may determine a site and route for the demonstration march in order to prevent disruption of order in urban life. . . . The competent authority designated by law may prohibit a particular meeting and demonstration march, or postpone it for not more than two months in situations where there is a strong possibility that disturbances may arise which would seriously threaten public order . . . . In cases where the law forbids all meetings or demonstration marches in districts of a province for the same reasons, the postponement may not exceed three months. . . . Associations, foundations, labor unions, and public professional organizations shall not hold meetings or demonstration marches exceeding their own scope and objectives.” Turk. Const. art 34.

[28]  See e.g., Texas v. Johnson, 491 U.S. 397 (1989), discussed infra note 47.

[29]  Flanz, supra note 10.

[30]  For instance, Article 118 of the Turkish Constitution “The National Security Council” gives the armed forces the duty to protect the “integrity and indivisibility of the country, and the peace and security of society.”  Turk. Const. art. 118.

[31]  However, this militaristic intervention in Turkish domestic policy is not only a modern conundrum. The military has always been in the middle of political affairs since the decline of the Ottoman Empire.  During the Ottoman Empire, “[t]he Janissary army became the scourge of Europe.  But during the centuries of decline, this same army, now actively engaged in palace politics, became a greater threat to the ruling sultan than to his enemies. The Janissaries, in alliance with the men of religion, the ulema, became a formidable obstacle to reform.” Feroz Ahmad, supra note 4, at 2.  Today, the modern Turkish army has changed its alliances; instead of clergymen, the military has established strong alliances with Kemalist businessmen, bureaucrats and journalists.

[32]  Cemal Dogan, Savcilara Deri Talimati [Skin Order to Prosecutors], Sabah,  Apr. 3, 1998, at 18.

[33]  See, Burton Bollag, A Ban on Islamic Head Scarves Unsettles Turkey’s Universities, Chron. Higher Ed., Apr. 24, 1998, at A59.  See also,  Philip G. Smucker, The Meaning of a Scarf: Turkish Students Fight to Wear Islamic Head Coverings, U.S. News & World Rep., Mar. 16, 1998, at 31. “The secular Turkish media and elite deliberately misuse the word “turban” for headscarf, in an attempt to hide their unpopular crusade against the attire of a considerable number of Turkish women. This silly and oppressive official war against the head-scarves, especially of university students has backfired and made the “head-scarf” a symbol of freedom for many women!” Id.

[34]  Haber Merkezi [News Center], Askerlerden Sert Bildiri,[Harsh Declaration From the Military], Milliyet, Mar. 21, 1998, at 11. The Milliyet Newspaper has an archive on its web site: www.millyet.com.

[35]  Id.

[36]  Id.

[37]  In a lengthy and courageous speech to the Turkish  Grand  National Congress, the Prime minister Mesut Yilmaz  warned the Turkish  military.  For the complete text of the speech see, Shamil Tayyar, “Askere Gorev Vermedim” [“I Did Not Delegate The Military”], Sabah, Mar. 19, 1998, at 20.

[38]  Krizden  Cikis, [Exit From Crisis],  Milliyet, Mar. 21, 1998, at 1.  Derya Sazak, Artik Guven, & Bunalimi Asildi, [The Trust Crisis Is Over Now], Milliyet, Mar. 21, 1998, at 16.

[39]  A columnist described the conflict as a power struggle framed by a corrupt system.  Mehmet Altan, Huysuz, [Bad-tempered], Sabah, Mar. 23, 1998.  Another columnist likened it to the quarrel between Gurcu Mehmet Pasa and Lame Recep Pasa of the 1630’s.  Cetin Altan, Ah Su Siyasal Patronluk Didismeleri, [Ahh These Political Power Struggles!], Sabah, Mar. 22, 1998.  One columnist asked, “can’t the un-armed forces keep the soldiers in their barracks?” and reminded the Prime Minister of the impossibility of riding two horses together.  Hasan Cemal, Nerede Silahsiz Kuvvetler, [Where Are The Un-armed Forces?], Sabah, Mar. 22, 1998, at 23.

[40]  General Cemal Gursel, the leader of the 1960 coup was elected as president and remained in the office until his death in 1965.  General Kenan Evren, the leader of the 1980 coup was elected as president and remained in the office until 1987.  General Evren is now a respected and privileged “former President.”

[41]  See, Political Parties and Democracy in Turkey (Metin Heper and Jacob M. Landau eds., 1991).

[42]  Resmi Gazete, supra note 4, at 68.

[43]  Mehmet Altan, Serefli… [Honorable…], Sabah, Aug. 11, 1997, at 17.

[44]  See, Washington Post, infra note 71.

[45]  The former Articles 141 and 142 of Turkish Penal Code.  As a political activist who in his youth was convicted by Article 163 of the TCL for merely publishing two articles critical of the secular militarist regime I can not agree with the Attorney General.  As a young university student, I was one of the many who was subjected to brutal and inhuman treatment by the military government.  Besides years in prison, I also suffered other penalties, such as, a two-year probation, a one year mandated exile in another city, a ban from continuing the university, a ban from getting passport, a permanent ban from holding public offices, being treated as a “dangerous foot soldier” during the mandatory 18-month military service, and ostracization from the establishment.

[46]  Sabah, supra note 5, Aug. 6, 1997, at 11.

[47]  Texas v. Johnson, 491 U.S. 397, 408, 414  (1989).

[48]  Id.

[49]  John Stuart Mill, Utilitarianism, On Liberty, Essay on Bentham 142-143 (Meridian 2d ed. 1974) (1962).

[50]  Turk. Const. art. 90.

[51]  G.A. Res. 217A, 3 GAOR, at 71, U.N. Doc. A/810 (1948).  GAOR, Dec. 10, 1948.  See Frederic L. Kirgis, Jr.,  International Organizations in Their Legal Setting 261 (1993).

[52]  See Michael M. Gunter, The Kurds and the Future of Turkey  (1997).  See also A People Without a Country (Gerard Challiand ed., 1993) and Yuksel, supra note 21.

[53]   G.A. Res. 217A, art. 18.  See Kirgis, supra note 51, at 264.

[54]    G.A. Res. 217A, art. 19.  See Kirgis, supra note 51, at 264.

[55]    G.A. Res. 217A, art. 20.  See Kirgis, supra note 51, at 264.

[56]    G.A. Res. 217A, art. 21.  See Kirgis, supra note 51, at 264.

[57]  Resmi Gazete, supra note 4, at 36.

[58]  European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter ECHR}.  The ECHR was signed by 15 European countries, including Turkey.  See Kirgis, supra note 53, at 349.

[59]  ECHR, supra note 58, art. 9. See Kirgis, supra note 53, at 353.

[60]  ECHR, supra note 58, art. 9. See Kirgis, supra note 53, at 353.

[61]  European Convention for the Protection of Human Rights and Fundamental Freedoms, Mar. 20, 1952, Protocol No. 1, 213 U.N.T.S. 222.  See Kirgis, supra note 53, at 364.

[62]  Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int’l L. 46, 66-67 (1992).

[63]  Editorial, Turkey’s Destructive Generals, N.Y. Times, Apr. 27, 1998, at A14.

[64]  Human Rights Watch, Weapons Transfers and Violations of the Laws of War in Turkey 3 (1995).

[65]  Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36 Harv. Int’l L.J. 1, 9 (1995).  (Please note that this article was published before the recent Algerian civil unrest started).

[66]  Id. at 13.

[67]  Id. at 16.

[68]  Mill, supra note 49, at 236.

[69]  Dennis v. United States, 341 U.S. 494 (1941).

[70]  Brandenburg v. Ohio, 395 U.S. 444 (1969).

[71]  See, More Killings in Algeria, Wash. Post, Mar. 29, 1998.   (More than 70,000 people have lost their lives in the civil war since the military-backed Algerian government canceled the1992 elections the Islamic Salvation Front was expected to win).

[72]  See Mehmet Y.Geyikdagi, Political Parties in Turkey: the Role of Islam,  69 (1984).  See also Political Parties and Democracy in Turkey (Metin Heper & Jacob M. Landau eds., 1991).

[73]  The list is posted on the Turkish National Congress’ web site, <www.tbmm.gov.tr/partiler>.

[74]  Robin Wright, Democracy Vital, Even at Secularism’s Expense, The Record (Northern New Jersey), June 20, 1997.

[75]  Id. at 13.

[76]  Kalaycio_lu, supra note 13, at 179-210.

[77]  Ustun Erguder, The Turkish Party System and the Future of Turkish Democracy, in Turkey: Political, Social and Economic Challenges in the 1990’s, 65 (Cigdem Balim et al. eds,  1997).  According to the statistics provided in this book, Germany doubles its population in 139 years, Japan in 174, Spain in 231, Greece in 347, Italy in 347, and Bulgaria in 1000 years.  On the other hand, Iran doubles its population in 20, Syria 18, and Saudi Arabia in 17 years.

[78]  During my mandatory military service in 1986 as a “dangerous foot soldier” at the 56th Regiment in Samsun, I witnessed what for me defines the culmination of racial discrimination against the Kurdish people.  One day before our company assembled, two rankless soldiers from the East of Turkey committed the mistake of talking with each other in Kurdish, their mother tongue.  These two foot soldiers, who had not had more than an elementary school education, had no ideological or political predilections.  When the commander of the company overheard their conversation in Kurdish, he grabbed both of them and punched and kicked them in front of the entire battalion until, as Turks say, “donkeys came from water!”  I would not be surprised if those two foot soldiers later had joined the PKK.    Partiya Karkera Kurdistan (Kurdish Workers Party) is a Kurdish guerrilla group lead by Abdullah Ocalan (aka, Apo) and trained in guerrilla camps at Baka Valley, Syria.  The PKK orchestrated many insurgencies against the Turkish military and underground police force.  See Yuksel, supra note 21

[79]  Every day, Hurriyet [Freedom], Turkey’s largest newspaper, and one of the oldest Turkish newspapers, carries a flag on the left side of its title with a caption declaring: “Turkey is for Turks.”  This is not similar to saying “America is for Americans,” but, rather, is similar to saying “England is for Anglos.”

[80]  “About 35,000 Kurds and Turks have died since the Kurdish insurgency began in 1984.”  Kurdish PKK Pledges More Violence Against Turkey, Reuters, Apr. 30, 1998.  See also CONG. REC. (Nov. 7, 1997).

[81]  See Edip Yuksel, Yes, I am a Kurd, 7 D.C. L. J. Int’l L. & Prac. 359 (1999).  This racist official policy temporarily softened during the presidency of Turgut Ozal, who was the first top official in decades that dared to utter the word Kurd and suggested lifting the ban on Kurdish.  Unfortunately, after his departure from office, official racism returned with full force.  Trying to eradicate the Kurdish problem through rifles and bombs, instead of democratic and political solutions, is an expression of a horrible racism.

[82] See Altay Unaltay, Bir Ejderha Masali ya da Yeni Turkiye Anayasasi [A Dragon Story or The New Turkish Constitution], Ulke, July 1997, at 42.  Sedat Aloglu, congressman from Istanbul and a proponent of open society and human rights, suggested 12 reforms in the political system and demanded more power for the President via direct elections.  Can Atakli, Secim Neyi Degistirir? [What Change The Election  Will Make?], Sabah, Aug. 8, 1998.

[83]  President Suleyman Demirel in a public speech expressed his desire for “uniform” or “monotype” Turkish citizens.  See Ali Ozluer & Zuhal Erguzel, Birakin Turkiye Yoluna Devam Etsin [Let the Turkey Continue its Journey], Sabah, July 27, 1997, at 19.

[84] See Yuksel, supra note 9.

[85]  I do not suggest that the government contribute or even support such a reformation movement.  Brave Muslim reformers are needed who can say to the government,  “Leave us alone!”

[86]  “You act like a woman” is considered a great insult in Turkish culture.  A business almanac cautions foreign traders about Turkey with the following remark: “Despite modern changes, many Turks think of the three legs of their culture as, “I am Turk, a Muslim and a man.” Mlly E. Thurmond, J.D. et al., World Trade Almanac: 1997-1998 (1996).

[87]  Professor Tansu Ciller, the leader of DYP (Straight Path Party), became the first woman prime minister of Turkey on June 25, 1993.

[88]  Human Rights in Turkey: Briefing of the [U.S.] Commission on Security and Cooperation in Europe 20 (Apr. 5, 1993), quoted in Magnarella, supra note 2, at 461. “Since the Demirel Government took office [November 1991], more people have been killed in house raids, more non-violent demonstrators have been shot and killed by security forces, authorities have failed to investigate hundreds of assassinations in the southeast, brutal torture continues to be used as a standard interrogation technique, the Kurdish minority continues to suffer grave abuses, and there are continued violations of the freedom of the press, association, and assembly.”

[89]  Id. at 447-449 (citations omitted).

[90]  Sabah, supra note 5, Aug. 5, 1997,  at 17.

[91]  Ersin Bal, Bassavci: Refah Bolucu [Attorney General: Erbakan is a Divider], Sabah, Aug. 5, 1997, at 17.

[92]  See Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory, 2 Yale  J.L. & Human. 37, 41-42 (1990).

[93]  As of 1987 the total personnel on active duty was 654,000, including 576,000 draftees serving for 18 months. Reserves total 951,000. As of 1986 the total military budget was 18.4% of the total government budget. This was equal to 4.5% of GNP in 1984, among highest in NATO. Statistics miss one important point, however. This budget does not include the cost of draftees to the economy. Draftees are not paid and if the loss of workforce and opportunity is added then Turkey’s military buget would be close to 8% of GNP.  According to “World Military Expenditures and Arms Transfers 1993-1994,” Turkey imported $975 million worth of arms in 1993 alone, becoming the fifth largest arms importer in the world.  The other leading countries were Saudi Arabia which spent $5.1 billion on arms imports followed by U.S. with $1.4 billion (The U.S. is the leading arms supplier with about $10.3 billion in official sales in 1993), Egypt $1.1 billion and Iran $1 billion.  Defense News, Apr. 1995.  See also <www.mfa.gov.tr>, <infomanage.com> and <lcweb2.loc.gov> for updated information on military expenses.

[94]  Cetin Altan, a moderate leftist author, was former member of Turkish National Assembly and the controversial leader of the Turkish Workers Party. Altan’s political activities led to his imprisonment.

[95]  Cetin Altan, Suyun 100 Derecede Kaynamasi Zorla Degistirilebilir mi? [Can the Boiling Point of the Water Be Changed From 100° C. by Force?], Sabah, Oct. 5, 1997, at 4  (The author chose the wrong metaphor because the boiling point of water can be changed by force or pressure.  The boiling point rises proportionally to the pressure. )

[96]  Ziya Onis, The Political Economy of Export-Oriented Industrialization in Turkey, in Balim, at 125.

[97]  Id.

[98]  Magnarella, supra note 2, at 444.  See also, Feroz Ahmed, The Turkish Experiment in Democracy 1950-1975, 280-81 (1977); Dogu Ergil, Class Conflict and Turkish Transformation (1950-1975), 41 Studia Islamica 148 (1975).

[99]  A poll conducted by Professor Bahri Ozturk of Dokuz Eylul University, who interviewed 7,657 Turkish citizens, demonstrated an acute distrust to the regime. According to the poll completed  April 22, 1998, only 15.12% of the interviewees believed democracy existed in Turkey, 47.82% believed that Turkey has a partial democracy, and 31.57% believed that democracy is nonexistent in Turkey. According to the same poll, 34.63% of the population held politicians responsible for the military interventions, and only 25.82% approved military interventions.  Forty-one and two hundredths of a percent of those polled believed secularism was in danger, while 47.54% did not believe such danger existed.  This outcome was in sharp contrast to the view of the majority of the Turkish media that frequently publicize paranoid headlines about the eminent danger to secularism. Worst of all, only 9.95% believed that Turkey was a state of law. See, Birol Aydin, Adalet Yargilaniyor [Justice is Judged], Zaman [Time], Apr. 30, 1998, at 14.

[100]  I would like to congratulate several columnists who have been brave voices of democracy and freedom. Intellectuals such as Mehmet Altan, Mehmet Barlas, Cengiz Candar, Guler Goktan, Murat Belge, Umut Kivanc and Yildirim Turker are the honor of Turkey.

[101]  William Pfaff, Turkey’s Painful Struggle Between Old and New, Int’l Herald Trib., May 19, 1997.

[102]  Ali Riza Karduz, Refah/Fazilet”Fakirin Umudu,” [Welfare/Virtue “The Hope of the Poor”], Sabah, Mar. 26, 1998, at 11.

[103]  Edip Yuksel, Uzerinde Ondokuz Var [Over it is Nineteen] 21 (1997).

[104]  Id. at 23.

[105]  Rusen Cakir, Ayet ve Slogan [Verse and Slogan] 52 (1990).

[106]  “You shall not accept any information, unless you verify it for yourself. I have given you the hearing, the eyesight, and the brain, and you are responsible for using them.” The Quran 17:36. “Most of them follow nothing but conjecture or hearsay. Surely, conjecture is no substitute for the truth. God is fully aware of everything they do.”  The Quran 10:36.

[107]  “As a result, Monotheism is redefined as a ‘Limited Partnership’, in which the recognition and submission to God alone becomes an oxymoron; a contradiction in terms in which other ‘partners’ are submitted to and accepted by these ‘believers.’ The most common set-up for Sunni shirk is: the Quran (God) + hadiths and sunnah (messenger) + the practice of the Prophet’s companions + the practice of the companions of the Prophet’s companions + the opinions of emams (qiyas and ijtihad) + consensus of ‘ulama’ in a particular sect (‘ijma’) + the comments and opinions of their students + the comments and opinions of early ‘ulama’ + the comments and opinions of later ‘ulama’ + the fatwas of living ‘ulama.’  Edip Yuksel, Kuran Cevirilerindeki Hatalar [Errors in Translations of the Quran]108 (1998).

[108]  C. H. Dodd, a professor at the Middle East Studies of London University, evaluates Ataturk’s view of democracy.  See C. H. Dodd, Ataturk and Political Parties, in  Political Parties and Democracy in Turkey 24-42 (Metin Heper et al. eds., 1992).

[109]  Sabah, supra note 5, at 17.  As a monotheist, I am aware of all kinds of intellectual, social and economic exploitations associated with hero or saint-worship and agree with the Attorney General’s statement in that regard.

[110]  Ahmet Tan, Vecizesi Yok Diye [Because He Didn’t Have a Saying], Sabah, Nov. 10, 1997, at 23.

[111]  Carol Delane,, The Seed and Soil: Gender and Cosmology in Turkish Village Society 281-282 (1991).

[112]  Donald E. Smith, Religion and the Good Polity, 4 Cardozo J. Int’l & Comp. L. 277, 283 (1996).

[113]  Resmi Gazete, supra note 4, at 34.

[114]  Wisconsin v. Yoder, 406 U.S. 205 (1972).

[115]  Lee v. Weisman, 505 U.S. 577 (1992).

[116]  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition to Government for a redress of grievances.”  U.S. Const. amend. I.

[117]  According to census, approximately 2% of the population are Christians and Jews.

[118]  Jefi Kamhi is a Congressman elected from the Dogru Yol Partisi [Straight Path Party].

[119]  Turk. Const. art 14 (takes all the granted rights and freedoms back and leaves them to the arbitrary discretion of the state).

[120]  Turk. Const. art 24.

[121]  Id.

[122]  Congregational prayer on Fridays at noon is the only obligatory mass prayer in Islam and it can be fulfilled within an hour.  The Quran does not require believers to stay idle on Fridays, but on the contrary advises them to go back to work after the prayer.  See The Qu’ran 62:10.  Turkish work hours can be rearranged and a two-hour break during Friday noon time can be recognized for every employee.

[123]  The Turkish justices Hasim Kilic and Sacit Adali wrote extensive dissents.

[124]  Resmi Gazete, supra note 4, at 261.

[125]  In its defense the Welfare Party claimed that those speeches were not against secularism and they were protected by the Article 83/1 of the Constitution which gives immunity to the speeches made in the Great National Assembly. The defense claimed that Erbakan’s speeches defending the head-scarves were just repetition of his speeches in the Assembly. See, Resmi Gazete, supra note 4, at 140-141.

[126]  Id. at 261.

[127]  Id. at 141-142.

[128]  Id. at 142.

[129]  Id. at 143.

[130]  Id. at 263.

[131]  Id. at 146.

[132]  Id. at 263.

[133]  Nazim Hikmet, considered to be one of the great Turkish poets, promoted a socialistic revolution in Turkey and as a result spent years in a Turkish prisons.  He finally immigrated to Russia and died there with great longing for his homeland.  This translation does not reflect the true literary power of the original poem.

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