An Unconstitutional Constitutional Amendment — The Turkish Perspective: A Comment on the Turkish Constitutional Court’s Headscarf Decision

10(1) International Journal of Constitutional Law (icon) 175-207 (2012)

33 Pages Posted: 28 Apr 2012 Last revised: 31 Mar 2014

See all articles by Yaniv Roznai

Yaniv Roznai

Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law

Serkan Yolcu

Izmir University of Economics

Date Written: April 28, 2012

Abstract

In June 2008, the Turkish Constitutional Court annulled amendments to the Constitution regarding the principle of equality and the right to education, which had been enacted by parliament in order to abolish the headscarf ban in universities. In an important and controversial decision, the Constitutional Court ruled that the amendments were unconstitutional because they infringed on the constitutional provision mandating a secular state. In this paper, the authors set forth the historical and legal background to the Turkish Constitutional Court headscarf case, review the facts and decision of the case, and analyze it.

The authors accept the Constitutional Court’s conclusion that parliament’s amendment power is distinct from the original constituent power and therefore limited. However, the authors assert that the Constitutional Court’s competence to review constitutional amendments is restricted to a procedural review. Lastly, the authors claim there was no justification for annulling the amendments because they did not infringe on the constitutionally enshrined principle of state’s secularism.

Keywords: Turkey, secularism, unconstitutional constitutional amendments, unamendable provisions, judicial review of constitutional amendments

JEL Classification: K19

Suggested Citation

Roznai, Yaniv and Yolcu, Serkan, An Unconstitutional Constitutional Amendment — The Turkish Perspective: A Comment on the Turkish Constitutional Court’s Headscarf Decision (April 28, 2012). 10(1) International Journal of Constitutional Law (icon) 175-207 (2012). Available at SSRN: https://ssrn.com/abstract=2047334

Yaniv Roznai (Contact Author)

Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

Serkan Yolcu

Izmir University of Economics ( email )

Sakarya Cad. No: 156
Balcova
Izmir, 35330
Turkey

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