The Constitution under the Rubble

On 6 February 2023, the century-old Republic of Turkey witnessed the most horrific environmental catastrophe in its history. The sheer magnitude of the series of earthquakes originating from the Çardak-Sürgü and East Anatolian fault zones and the shocking level of unpreparedness of public authorities have claimed the lives of more than forty-five thousand Turkish citizens. Despite the evident responsibility of the central government and local administrations in the exacerbation of the social disaster, a particular state institution and an affluent Sufi cult apparently sought to capitalise on the destitution of young earthquake victims.

Such was the context of the two criminal complaints filed by the lawyer-led NGO “Children and Women First Association” (Önce Çocuklar ve Kadınlar Derneği, hereinafter CWFA). The first of the two complaints (filed on 21 February 2023) targeted the head of the governmental Directorate of Religious Affairs (Diyanet İşleri Başkanlığı, hereinafter Diyanet), Ali Erbaş, as well as “any potential suspects within the organisation” for issuing a religious opinion disallowing the adoption of earthquake victims on the grounds that the adopted children could legitimately marry their stepparents under Islamic law. The second complaint (dated 24 February 2023), on the other hand, accused the members of the Sufi cult “İsmailağa” of kidnapping orphaned children and taking them to the cult’s ritual house in Sakarya province.

At first glance, one may assume that the complaints portray despicable, yet isolated events conceived by the lack of public authority in the earthquake-stricken areas of the country. Unfortunately, such an assumption would lead to the omission of a darker context that connects the two complaints: namely, the erosion of constitutional secularism which allows state institutions like Diyanet to disregard the laws in force and encourages illegal entities like the İsmailağa cult to act with impunity. In other words, theocratic practices in a constitutionally secular country like Turkey do not merely erode the rule of law, but also violate the rights of children as defined under the UN Convention on the Rights of the Child (hereinafter UNCRC).

Before delving into the assessments made by the lawyers of the CWFA and the human rights aspect of the complaints, however, it is important to briefly recall the nature and evolution of constitutional secularism in Turkey.

Secularism, Diyanet and Sufi cults in Turkish constitutionalism

Contrary to the claims of some Islamist authors, the introduction of secularism in Turkish constitutionalism was gradual. The first bold step in that respect was the abolition of the Caliphate and the “Ministry of Sharia and the Foundations”, and the adoption of the Act on the Unification of Education on 3 March 1924, which put an end to a centuries-old theocratic institution and secularised the education system. The second bold step came a year later with the adoption of the Act on the Prohibition of Tekkes (large ritual houses used by Sufi cults), Zaviyes (smaller ritual houses serving the same purpose) and Türbes (or shrines) which outlawed all Sufi cults and banned the very concept of sheikhdom. It is worth noting that this legislative act is protected under Article 174 of the current Turkish Constitution (of 1982) as a “revolutionary legislation” which cannot be abolished on grounds of unconstitutionality.

After the adoption of a new criminal code based on the Italian Codice Zanardelli of 1889 and a new civil code based on the Swiss Zivilgesetzbuch/Code civil of 1907, founding father Mustafa Kemal Atatürk and the progressive lawmakers of the young republic finally abolished state religion on 10 April 1928. This paved the way for putting the final nail in the coffin of the ancien régime in Turkey: the explicit enshrinement of the principle of secularism as a defining quality of the state in the Constitution of 1924 as per the constitutional amendment of 5 February 1937. While this perception of secularism has been anti-clerical in both theory and practice, it also brought about the constitutional recognition of freedom of conscience for the first time in Turkish history; thereby distancing religion from public affairs whilst guaranteeing the right to adhere (or refuse to adhere) to a religion.

Within this framework, Diyanet was meant to (partially) replace the “Ministry of Sharia and the Foundations” and prevent any religious interferences with public affairs by allowing the State to interfere with religious practices. Indeed, as noted by the Constitutional Court in its Judgment no. 1971/76 (merits no. 1970/53) of 21 October 1971:

“In view of the characteristics of the Christian religion, it is possible to infer why the principle of the separation of Church and State has (also) been interpreted as the independence of the Church from the State. This stems from the fact that the abuse of religion does not (always) result in (a threat to public order) in Western countries in contrast to the case in our country; thus, the independence of the Church does not in itself threaten the integrity of the State. Contrarily, Islam does not only regulate individual matters of conscience, but also social relations and functions of the State insofar as it serves as a primary source of law. […] Recent and historical experiences have shown that such an unlimited freedom of religious association poses a grave danger to our society and country. Hence, there can be no doubt that the inclusion of Diyanet in our constitution and the status of Diyanet employees as civil servants constitute […] a necessity rooted in our history and the conditions of our country.”

It follows, prima facie, that the current role of Diyanet is the opposite of the one envisaged by the Constitutional Court: as previously alluded to in reference to the first criminal complaint of the CWFA, instead of settling religious affairs in accordance with the secular constitutional order, Diyanet offers Islamic law as an alternative source of law. Furthermore, as one may infer from Article 174 of the Constitution, Sufi cults like İsmailağa are, in fact, illegal regardless of the accusations made by the CWFA in its second criminal complaint.

Legal basis of the criminal complaints

The first criminal complaint of the CWFA is based on Article 217 of the Turkish Criminal Code which defines the offence of “inciting the people to disobey the law”. The object of the complaint, as previously mentioned, is a religious opinion issued by Diyanet (later removed due to public pressure) in relation to the question “is it permissible to adopt children affected by the earthquake?” The crucial part of the opinion is as follows:

“While it is recommended in our religion that children be protected and taken care of, the institution of adoption is not permitted due to certain legal consequences (i.e., under Islamic law): there is no norm that prevents a marriage between the adopted children and their stepparents, and it is not permitted to register the adopted children in the family of their stepparents, which would separate them from the families of their actual (i.e., biological) parents. Furthermore, it is not permitted for adopted children to inherit the property of their stepparents.”

The lawyers of the CWFA thus underscore how Diyanet’s statement clearly contradicted Articles 129.3 and 500 of the Turkish Civil Code, which clearly state that stepparents cannot marry the children they adopted and that adopted children can inherit the property of their stepparents. On this basis, they argue that the public statement made by Diyanetconstituted a blatant incitement to disregard the laws in force and triggered the aggravating circumstance as per Article 218 of the Turkish Criminal Code insofar as the opinion was published on a publicly accessible website.

The second criminal complaint, on the other hand, is based on Articles 234 and 109 of the Turkish Criminal Code, which deal with the offences of “kidnapping and detaining a child” and “unlawfully depriving an individual of their freedom” respectively. In this context, the lawyers of the CWFA allege that nine children from Gaziantep province were kidnapped by the İsmailağa cult and brought to the cult’s ritual house in Sakarya province (which appears as a Quran school affiliated with Diyanet on paper). In this respect, the lawyers demand that the prosecutor summon journalist Alican Uludağ, who covered the story for the Turkish language service of Deutsche Welle, as a witness.

Perhaps the most positive aspect of this second criminal complaint is that the lawyers of the CWFA formulated their legal assessment in light of international human rights law, specifically the provisions of the UNCRC, which require a closer look alongside the case law of the European Court of Human Rights regarding Turkish secularism.

Children’s rights and Turkish secularism under international human rights law

As pointed out by the lawyers of the CWFA in their second criminal complaint, Article 3.2 of the UNCRC envisions a positive obligation for states parties in terms of “ensuring the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.” This is supported by the Committee on the Rights of the Child in its General Comment no. 5 on general measures of implementation:

“The (best interests) principle requires active measures throughout Government, parliament and the judiciary. Every legislative, administrative and judicial body or institution is required to apply the best interests principle by systematically considering how children’s rights and interests are or will be affected by their decisions and actions – by, for example, a proposed or existing law or policy or administrative action or court decision, including those which are not directly concerned with children, but indirectly affect children.”

This immediately brings to mind the Act on the Prohibition of Tekkes, Zaviyes and Türbes and the constitutional role of Diyanet: indeed, even though the existing laws in this context do not directly relate to children, Diyanet’s attempt to replace secular laws in force with Islamic law which regulates the social relations of a bygone era, and the very existence of Sufi cults like İsmailağa which operate beyond the boundaries of the law do not only affect children’s right to development, but also lead to children being unlawfully deprived of their liberty as defined under Article 37(b) of the UNCRC. Thus, the defence of constitutional secularism in Turkey does not only uphold the rule of law, but also safeguards the rights of the child.

It is in this respect that we must also recall the judgments of the European Court of Human Rights (hereinafter ECtHR) regarding Turkish secularism in practice. In the landmark case of The Welfare Party and others v Turkey, for instance, the ECtHR clearly established that:

“[…] the principle of secularism is certainly one of the fundamental principles of the State which are in harmony with the rule of law and respect for human rights and democracy. An attitude which fails to respect that principle will not necessarily be accepted as being covered by the freedom to manifest one’s religion and will not enjoy the protection of Article 9 of the Convention.” (§ 93)

The Fourth Section of the ECtHR also made a similar assessment in Leyla Şahin v Turkey (which was later upheld by the Grand Chamber) as it concurred with the Turkish Constitutional Court in observing that Turkish secularism was intrinsically linked to the promotion of gender equality (§ 107) and that “imposing limitations on (religious) freedom in this sphere may, therefore, be regarded as meeting a pressing social need” (§ 108). Hence, it is obvious that the Strasbourg court regarded Turkish secularism as a bastion of defence in safeguarding human rights.

Concluding remarks

Some liberal scholars have long argued that the ECtHR confers an excessively wide margin of appreciation to Turkey and France vis-à-vis the implementation of “militant secularism”. The criminal complaints filed by the CWFA, however, demonstrate that the erosion of said “militant secularism” brings about the trampling of the rule of law and the abuse of children – especially girls. Unfortunately, it has been this permissive approach to religious fundamentalism that allowed cults like İsmailağa to secure funding from the European Commission as part of the Erasmus+ programme in relation to “combating Islamophobia” – which would have gone unnoticed if it had not been for MEPs Jean-Paul Garraud, Nicolas Bay and Jordan Bardella (regardless of their political leanings).

Hence, in the words of French philosopher and historian Marcel Gauchet, “nous allons devoir revenir à une laïcité de combat” – such is the “pressing need” of our democracies and our children.

Post scriptum: As this post was being written, the “Children and Women First Association” filed another criminal complaint against the members of the Sufi cult “Menzil” for allegedly kidnapping 1100 children in the earthquake-stricken Adıyaman province.