Noyan Turunç
Turkey
[email protected]
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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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