Noyan Turunç Turkey nturunc@turunc.av.tr Religion s Role in Turkey Turkey is a parliamentary representative democracy and a secular state; where, the majority (95% or more) of the population is muslim. In Turkish concept, secularism is that the government and other official administration carry out their administration functions independent from religion by allowing individuals to practice their religion freely. The State is obliged to protect religious freedom by constitution. By setting out that individuals are equal without any discrimination before the law, irrespective of language, race, color, sex, political opinion, philosophical belief, religion and sect, or any such considerations, the constitution prevents discrimination, including for religious reasons and protects such rights. With reference to religion, the only issue in Turkey is whether or not wearing headscarf. A distinction should be made with regard to the headscarf issue in Turkey. Traditionally, women have been wearing headscarves for decades, in which their hair and necks could be seen and whenever they wish they could put it on their shoulders; so that heads and necks becomes entirely bare. The headscarf in question is the one that was raised by the current government that leaves only the faces and necks of women with no flexibility, no tolerance to remove it. Therefore, the Islam headscarf became a symbol of controversies causing social and political tensions. In this paper, headscarf will refer to the Islam headscarf. Headscarf issue in Turkey Secularism is a constitutional principle in Turkey as from 1937. The public opinion is twofold; while some see it as a struggle between secularists and fundamentalists; others see it a more authoritarian, government-centered way of organizing a fast-changing society. Article 2 of the Constitution sets out that the Republic of Turkey is a democratic, secular and social State governed by the rule of law. 1
Banning of headscarf With a policy of official secularism, the Turkish government has traditionally banned women who wear headscarves from working in the public sector. The Law on the Prohibition of the Wearing of Certain Garments prohibits religious outfits outside religious places irrespective of religion. For example, a school teacher is not allowed to attend classes in religious outfits. Until 1960's female students or public servants wearing headscarves were not seen in Turkey. Particularly, as from 1970 s, parallel to the rise of the Islamic movement in Turkey, the number of university students wearing headscarves were increased. So called Islamic oriented governments, including the present government, provoked the issue. So that the ban has been highly controversial issue. Since the intervention of the Islamic oriented governments, there has been some flexibility of the ban. In line with this policy, wearing headscarf is banned in public buildings, including government buildings; and also in universities in 1984. However, throughout 1980's and 1990's, the ban was not uniformly enforced and many students were graduated. Headscarf is not allowed in universities. The government is willing to lift the ban in universities. The government argued that if headscarf were banned, this would prevent many women to go the universities. Based on this argument, in 2008, the Turkish Parliament under the control of the present government made an amendment to the constitution to allow women to wear the headscarf covering the hair and neck in universities. Opposition was raised and the amendment was challenged at the Constitutional Court. The amendment was annulled by the Constitutional Court, ruling that removing the ban would be against the principle of secularism; and the ban was reinstated. Now, the government is seeking for to weaken the Constitutional Court's authority. Religious Outfits in Public and Private Workplaces To address this issue, a distinction between state employment and private employment should be made. Religious Outfits in Public Workplaces All Turkish citizens have the right to enter the public service. The only criteria to be taken into consideration for recruitment into public service is the qualifications of applicants. (Constitution, Art. 70). In the public sector, views are twofold: (1) the civil servants have to represent the state neutrality; and wearing the religious outfits may put pressure on those who do not (2) civil servants have to conform with the specific dress codes; and should not have religious outfits. 2
Religious Outfits in Private Workplaces Workers in private workplaces are protected against discrimination on the grounds of religion, disability, age or sexual orientation as regards employment and occupation. The Labor Law, regulating the principle of equal treatment, prohibits discrimination by on the basis of race, sex, language, religion and sect, political opinion, philosophical belief or any such considerations. Protection against Religion Discrimination i. Protection in Selection The Labor Law does not impose a duty of non-discrimination on employers in selection. However, while the Labor Law prohibits discrimination, in private sector, the selection is at employers discretion. Although there is no obligation on employers who to hire; i.e. religious and/or non-religious employees, discriminatory job advertisements are not allowed. ii. Protection during Employment and Termination Any discrimination, including religious discrimination sets out an unjustified cause for termination. A worker who considers himself discriminatorily terminated may claim for compensation. Paying an administrative fine for each discriminated worker shall be an additional burden on the employer by law. If a woman is terminated because of wearing headscarf, the court should investigate whether the termination constitutes religious discrimination or not by seeking the balance between the freedom of woman to wear headscarf and the entrepreneurial freedom. Discriminatory terminations are deemed unjustified and unlawful. If a termination is established as discriminatory, bad-faith pay (thrice the amount of wages corresponding to the notice period -varies between two to eight weeks- based on the length of employment of the worker), discrimination pay, and severance pay (30-day wage for each year of service on the last gross monthly wage of the worker plus the monthly amount of wage supplements continuous in character) have to be paid. Religion s role in politics in a secular country with 90% or more muslim population Turkey is a parliamentary representative democracy. Turkish Republic was founded in 1923. Since then, it is a secular state. With regard to the foreign policy, Turkey is a founding member of the United Nations, the OECD, theg-20 major economies and such. Formal accession negotiations with the EU have been going on. 3
Until the current government was elected, religion did not play a role in politics; but secular principles. Religion s role in economy in a secular country with 90% or more muslim population As mentioned above, Turkey is a founding member of the OECD and the G-20 major economies. As from 1923 to 1983, Turkey was under a government planning covering the budget and limitations over private sector participation, foreign trade, flow of foreign currency, and foreign investment. As of 1983, things have started to change and strict policies started to become liberal. However, recessions and financial crisis followed after those changes in economy. The growth of the economy as from 2002 to 2007 was big (about 7.5%). In 2008, the global crisis hit the economy. Compliance with Key Parts of the EU Directives The EU directive of 2000/78/EC on employment equality (i.e., Employment Equality Directive) regarding a general framework for equal treatment in employment and occupation, protects against discrimination with regard to religion, disability, age and sexual orientation. Turkey is to transpose the Employment Equality Directive into its legal system. As an example, the last paragraph of Article 5 of the Labor Act prescribes prima facie case of discrimination in compliance with the Directive. Furthermore, Turkey is a party to all fundamental conventions. Turkey complies with fundamental principles set out by the International Labor Organization; and bound with the Universal Declaration of Human Rights, European Convention on Human Rights, the European Social Charter and the case law and jurisprudence of the European Court of Human Rigths. However, in spite of the foregoing, when viewed under Article 141 TEC (Treaty on the European Community) and Directives 2002/73/EC and 2000/78/EC, a few shortcomings may be identified in Article 5 of the Labor Law. Article 5 reads as follows: Article 5 of Turkish Labor Law: Article 5 (The principle of equal treatment) No discrimination can be made in an employment relationship, based on [native] language, race, gender, political opinion, philosophical belief, religion and religious sect or similar reasons Unless there are essential reasons, an employer cannot make any discrimination between workers on full-time and part-time working contracts or workers on definite and indefinite term contracts. Except as necessary for biological reasons or reasons related to the nature of the work, an employer cannot make any discrimination, directly or indirectly, between workers in the conclusion, conditions, execution and termination of an employment contract due to a worker's gender or maternity. For similar work or work of equal value, no lower wage can be agreed due to gender. 4
Implementation of special provisions for protection of a worker due to his/her gender does not justify the payment of a lower wage. If the employer violates the above provisions during or upon termination of the employment relationship, the worker may claim compensation up to four months' wages, and any other entitlement he/she has been deprived of. The provisions of Article 31 of he Trade Unions Law are reserved. While the provisions of Article 20 are reserved, the worker is under the burden of proof of the employer s violation of the provisions referred to in the preceding paragraphs. However, if the worker introduces circumstances presenting a strong likelihood of such violation, the burden of proof passes onto the employer who must prove that no such violation has taken place. The shortcomings may be defined as follows: in specify prohibition of discrimination on the basis of age, disability, ethnic origin, sexual orientation and gender reassignment; to provide a more effective level of protection, associations, organizations, and other legal entities should be empowered; to promote dialogue between social partners to address different forms of discrimination based on gender in the workplace and to combat them; and to establish a body for the promotion, analysis, monitoring or support of equal treatment. Foreign Investors Working and Doing Business in Turkey Foreign investors can freely make investment and do business in Turkey. Foreign Investment Law, No. 4875 sets forth provisions regarding foreign direct investment. Foreign investors are subject to equal treatment with Turkish investors. With the exception for a public purpose for which compensation is made, their investment cannot be expropriated or nationalised. They can freely transfer dividends, proceeds of sale or partial or total liquidation of their investment, and such. Residence and work permits are granted to foreign personnel. However, regarding buying property, except in the military, strategic and security zones and any other zones that the government may exclude, foreign direct investors (i.e. their companies), can buy real estate or limited rights in rem in Turkey in line only for with the operational purposes set forth in their articles of associations (i.e. by-laws). In short, foreign direct investors are treated equally as Turkish citizens in principle; and there is no no prohibition from political, economic and religious aspects. 5
Islam in Law and Ethics In some nations, while Muslim ethnic groups enjoy autonomy, in some other nations Muslims implement Islamic law. The main forms (schools of jurisprudence) of the Islamic law is five: School Hanafi Hanbali Jaferi (*) Maliki Shafi i Countries Afghanistan, Bangladesh, Bosnia-Herzegovina, Canada, Egypt, India, Iraq, Maldives, Morocco, Pakistan, Spain, Turkey, West Africa Arabia, Qatar France, Iran, Iraq, Lebanon, Pakistan North Africa, West Africa Egypt, Eritrea, Indonesia, Malaysia, Qatar, Somalia, Yemen (*) Members of the group of Shias who believe in twelve Imams (sects differ over the path of succession) According to the majority of Shia, Imams are the rightful successors of Muhammad. With one exception, each Imam was the son of the previous Imam. They are different than Sunni. They are predominant in Iran. In Islamic thought, headscarf means modesty, privacy and morality. In general, Muslim women dress modestly, which is in line with Qur'an. The interpretation of the Islamic law regarding how muslim women should wear differs. Covering of body parts are different when it becomes to the interpretation of Islamic rules. Difference in interpretation gives rise to tension. Qur'an Reference must be made to Qur an. Qur an instructs muslims to dress in a modest way. This is the dress code in Islam: dress modestly. For illustrative purposes, brief references are made to the following two verses in Qur an: [ ] [the believing women] cast down their looks and guard their private parts [even their ornaments] and do not display [ ] except to their husbands or their fathers, or the fathers of their husbands, or their sons, or the sons of their husbands, or their brothers, or their brothers' sons, or their sisters' sons, or their women, or those whom their right hands possess, or the male servants not having need (of women), or the children who have not attained knowledge of what is hidden of women; [ ]. [ ] Enjoin your wives, your daughters, and the wives of true believers that they should cast their outer garments over their persons (when abroad) That is most convenient, that they may be distinguished and not be harassed. As one will note, the verses urge modesty; however, they do not make any reference to specific dress, or covering of head, neck, and other parts of the body. 6
Dress code The issue of cover is not the type of dress, but how much of the body should be covered. Sunni schools say that, except face and hands, the entire body of the woman must be covered during prayer and in public settings. There is no particular cut; and garments are different in style. Alternative viewpoint: A minority viewpoint of scholars considers "head-covering" for women a cherished part of muslim social custom and tradition but not compulsory. Some muslims believe that to maintain modesty must be interpreted with regard to the surrounding society. What is considered modest or daring in one society may not be considered so in another. Along with scriptural arguments, scholars argue that head covering should not be compulsory in Islam because the veil predates the revelation of the Qur'an. Head-covering was introduced into Arabia long before Muhammad, primarily through Arab contacts with Syria and Iran. Governmental enforcement and bans Some governments encourage and even oblige women to wear the hijab (face open, hair and neck covered), whilst others have banned it in at least some public settings. Some muslims believe hijab covering for women should be compulsory as part of muslim law. Wearing of the hijab was enforced in Afghanistan, Iran and Saudi Arabia. Turkey and Tunisia are the only Muslim countries where the law prohibits the wearing of hijab in government buildings, schools, and universities. Head scarf by country Country Afghanistan Bangladesh Egypt Germany Indonesia France Holland Iran Status Face covering clothing is obligatory. No law for women to cover their heads; the government does not encourage. Majority of women wear a headscarf, and some also wear the face veil. Small number wear clothing. The government is secular and does not encourage women to cover. The government restricted headscarf. Banned the wearing of the head scarf in eight states. The Constitution of provides equal protection for five existing religions (Islam, Catholicism, Protestantism, Buddhism and Hinduism). Under Indonesian Law, women head covering is not obligatory; but optional. Banned the wearing of the headscarf in public schools, universities and government buildings. Banned face covering clothing. Iranian law requires women to wear loose-fitting coats or 7
Jordan Lebanon Malaysia Morocco Pakistan Saudi Arabia Tunisia Turkey cloaks in public, as well as a head-scarf that covers the hair. Some women wear a chador and cover their hair almost completely, but most do not. No law requiring the wearing of headscarf; nor banning from public institutions. Rare veils covering the face. Lebanon, with large Christian and secular groups, is generally more liberal than other Middle Eastern countries. Some women wear head scarves, some clothing only hair and body. Muslim women are free whether or not to wear headscarf. Headscarf is not forbidden by law; but it is not encouraged by the government. However, some restrictions are introduced. No law enforcing clothing. However, while the social pressure on women to wear clothing, veil, etc. is strong, some women simply cover their heads. Wearing clothing is enforced. All Saudi Muslim women must wear a full black cloak and a face-veil. If they fail to wear, the religious police can harass. According to the Shariah law, a woman's clothing: must cover the entire body, but they are allowed to expose both eyes in necessity; should be thick enough to conceal what is underneath; should not be bright colored clothes and should not attract the attention of men. Banned the wearing of the head scarf in schools and government buildings. The government refers the headscarf as a sectarian form of dress and claims that it came to Tunis uninvitedly. Banned the wearing of the head scarf in public schools, universities and government buildings. 8