Özersay: Danger Is Not Over Yet

He noted that the struggle for secularism remains valuable and that today’s ruling represents a gain in terms of modernity. However, he cautioned against celebrating the decision prematurely, calling for a calm and measured assessment.

Full statement from Özersay:

ÖZERSAY: DANGER IS NOT OVER YET

It appears that the Constitutional Court annulled the regulation on headscarves not because it violated the secularism principle in the Constitution, but because the Council of Ministers overstepped its authority in issuing it. The struggle for secularism is extremely important, and today’s ruling is a gain in terms of modernity and progress. However, instead of raising victory cries over the decision, it requires a calm and rational assessment.

According to our Constitution (as in many other continental European constitutions), fundamental rights can only be restricted by law. From what the lawyers argued, this regulation attempted to limit fundamental rights through the Council of Ministers via a regulation, which is not legally permissible. Technically, only a law passed through Parliament can limit fundamental rights.

In other words, a similar regulation—or even the same one—could technically be enacted by the government through Parliament as a law, which would be constitutional. The critical point is this: if tomorrow the same regulation is passed as a law by this illegitimate government, a lawsuit could be filed to ask the Constitutional Court to review whether the regulation violates the principle of secularism. At that point, it is impossible to predict the Court’s decision.

While it is too early to comment extensively without seeing the reasoning of the ruling, it should not be overlooked that the Court’s decision concerns which body can issue such a regulation, not the scope or meaning of the secularism principle itself.

Until a new parliamentary initiative is made, the annulment of this regulation will temporarily resolve the tension and difficulties it caused in schools. However, as long as this illegitimate government remains in power, the danger has not passed. That is clear.