Monday, March 31, 2008

Banning headscarves, banning parties

So, headscarves are back in the courts in Europe, and it’s a bit more complicated this time. Turkey has for some time banned headscarves in universities, in pursuit of its constitutional mandate of secularism. The legislature recently passed a law rescinding the ban, and that law is being challenged before Turkey’s Constitutional Court as violating secularism. Fair enough. But here’s where it gets a bit tricky: The Constitutional Court just agreed to hear a case seeking to ban the governing party and 71 of its members from politics for five years because they are pursuing an anti-secularist agenda. The suit apparently cites the law rescinding the headscarf ban as exhibit A. Turkey’s governing party is the successor to an openly Islamic party previously banned by the Constitutional Court for this reason. It is also the party that won an unpredecented 47% of the vote in the last election.
The first suit sounds like fair play all around. The majority party passes a law changing a longstanding policy, it’s challenged in court as unconstitutional – this is the usual political-legal rough and tumble. The second suit seems rather more extreme. The European Court of Human Rights has apparently upheld Turkey’s banning of other parties in at least some instances, as “necessary in a democratic society.” I can imagine why this might be the finding for parties that are openly terrorist in their means, for example, or oppressive in their ends – judicial review of their individual policies in such instances would not necessarily serve to keep their actions within constitutional bounds. (Note that these are just examples -- I do not know what the justifications were for the prior bans.) But if a party is playing by the democratic rules – winning elections, passing legislation, letting constitutional claims be heard before the courts, and living with the results -- why should there be any need to act against that party directly, even if it were to put forward unconstitutional policies, and even if it were to do so consistently, as this suit claims? Shouldn’t lawsuits aimed at the policies, instead of the party, be a sufficient remedy for any unconstitutional laws it might pass?

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