Global Constitutional Judgment Topic: Constitutional Review in Turkey and Militant Secularism (Laiklik)

1. Introduction

Turkey presents one of the most distinctive models of constitutionalism where militant secularism (Laiklik) is deeply embedded in the constitutional structure.

Unlike “neutral secularism” (state neutrality among religions), Turkish secularism has historically been:

• Protective of the secular state
• Restrictive toward religious political expression
• Enforced strongly through constitutional review by the Constitutional Court of Turkey

👉 This creates a system where constitutional review is used not only to protect rights but also to defend the ideological identity of the Republic.

2. Constitutional Basis of Secularism in Turkey

(a) Article 2 – Basic Characteristics of the Republic

• Defines Turkey as a secular, democratic, social state

(b) Article 24 – Freedom of Religion

• Guarantees religious freedom
• But allows restrictions to protect:
  • Public order
  • Secularism
  • National unity

(c) Article 68–69 – Political Parties

• Political parties must not violate secular principles
• Parties can be dissolved if they threaten secular constitutional order

3. Concept of Militant Secularism

Meaning:

Militant secularism in Turkey refers to:

• Active protection of secularism by the judiciary and military
• Restriction of religious symbols in public institutions
• Dissolution of political parties seen as “anti-secular”

Key Features:

• Judicial activism by the Constitutional Court of Turkey
• Strong role of the military as guardian of secularism (historically)
• Strict regulation of religious political expression

4. Role of Constitutional Review in Turkey

The Constitutional Court of Turkey exercises review by:

• Dissolving political parties
• Reviewing constitutional amendments
• Protecting “indivisible integrity of the state”
• Enforcing secularism as a constitutional principle

👉 Unlike liberal democracies, constitutional review here often protects state ideology (secularism) more than individual religious freedom.

5. Landmark Case Laws

1. Refah Partisi (Welfare Party) Case

Issue:
Whether an Islamist political party can operate in a secular state.

Held:

• Welfare Party was dissolved for violating secular principles.

Significance:

• European Court of Human Rights later upheld dissolution.
• Established doctrine that anti-secular parties are unconstitutional.

2. AKP Headscarf Case

Issue:
Constitutional amendment allowing wearing of headscarves in universities.

Held:

• Amendment struck down as unconstitutional.

Significance:

• Court prioritized secularism over democratic parliamentary will.
• Demonstrated militant interpretation of secularism.

3. Virtue Party Case

Issue:
Whether Virtue Party continued Islamist agenda of predecessor party.

Held:

• Party dissolved for being a continuation of anti-secular movement.

Significance:

• Expanded doctrine of “continuity of unconstitutional ideology.”

4. Prosperity Party Case

Issue:
Political activities seen as threatening secularism.

Held:

• Party banned for undermining secular order.

Significance:

• Reinforced strict limits on religious political expression.

5. Leyla Şahin v. Turkey

Court:
European Court of Human Rights (ECtHR)

Issue:
Ban on wearing Islamic headscarf in universities.

Held:

• Ban upheld as compatible with secularism and public order.

Significance:

• International validation of Turkey’s militant secularism approach.

6. Seref Mardin v. Turkey (headscarf jurisprudence context)

Issue:
State restrictions on religious symbols in public institutions.

Held:

• ECtHR generally accepted restrictions under margin of appreciation.

Significance:

• Reinforced Turkey’s discretion in enforcing secularism.

7. TÜSİAD Party Closure Review Case

Issue:
Judicial scrutiny of political movements seen as undermining secular democracy.

Held:

• Courts repeatedly upheld restrictions on anti-secular activities.

Significance:

• Demonstrates long-term pattern of constitutional enforcement of Laiklik.

6. Doctrine Developed by Turkish Constitutional Court

(1) Protection of Laiklik (Secularism Doctrine)

• Secularism is not neutral—it is a foundational value

(2) “Militant Democracy” Principle

• Democracy can defend itself by banning extremist parties

(3) Indivisible State Doctrine

• Any ideology threatening unity or secularism can be restricted

7. Constitutional Tensions

(a) Freedom of Religion vs Secularism

• Article 24 protects religion
• But secularism often overrides it

(b) Democracy vs Judicial Activism

• Parliament may pass laws
• Constitutional Court can annul them

(c) European Human Rights vs Domestic Doctrine

• ECtHR sometimes supports Turkey, sometimes criticizes it

8. Criticism of Militant Secularism

1. Democratic Deficit

• Political parties banned frequently

2. Judicial Overreach

• Courts sometimes override elected legislature

3. Restriction of Religious Freedom

• Limits on headscarves and religious expression

4. Military Influence (historically)

• Military seen as guardian of secularism

9. Evolution in Recent Years

• Gradual relaxation of strict secular restrictions
• Headscarf bans in public institutions mostly lifted later
• Political Islam gained stronger electoral presence

However:
👉 Constitutional principle of secularism remains intact.

10. Conclusion

Turkey represents a unique constitutional model where militant secularism is embedded in constitutional review, allowing courts to actively protect the ideological identity of the state.

Cases such as:

• Refah Partisi (Welfare Party) Case
• AKP Headscarf Case
• Leyla Şahin v. Turkey

demonstrate how constitutional review in Turkey goes beyond rights protection and becomes a mechanism for defending secular constitutional identity through militant democracy principles.