Turkey Constitution Watch 21.1.2013
Two topics of utmost importance for Turkey’s continued democratization and efforts to improve the protection of human rights include, first, the way the freedom of religion and belief will be protected in the new constitution and, second, the framing of the state’s relationship with religion.
One of the most lively debates held by the Constitutional Reconciliation Commission centered on the Republican People’s Party’s (CHP) proposal to include a provision guaranteeing “the freedom not to believe” under the general framework of the freedom of religion and belief. When the CHP and the Peace and Democracy Party (BDP) stood firm on promoting the guarantee of nonbelievers’ rights, the Justice and Development Party (AKP) delegate stated that the “freedom of religion and conscience” had actually been intended to protect believers only, but was later convinced of the CHP and BDP’s stance. When the Nationalist Action Party (MHP) gave its support, the article took on its final wording, accepted by all four parties in the Commission: “Every person enjoys the freedom of religion and conscience. This freedom includes the freedom to believe, not to believe, or to change one’s beliefs.”
There may be some people who believe that the freedom of religion and belief should only protect believers’ rights, not the right not to believe. Yet such thinking points to an inadequate understanding of the freedom of religion and belief. At the heart of the right to the freedom of religion and conscience lies the protection of free will. The building blocks of free will, meanwhile, consist of the rights to believe, not to believe, to change one’s belief, and to openly express one’s religion or beliefs. Without the freedom not to believe it would be impossible to speak of a “freedom” to believe. Thus, any constitutional protection of the freedom of thought, religion, or belief would have protected the right not to believe, even if this were not expressed explicitly in this way. At the same time, the open expression of such a right serves both to strengthen the position of nonbelievers and as a reminder to those who legislate and enforce our laws. In sum, such a provision would improve the protection of the freedom of religion and conscience in turkey. According to the established precedent of the European Court on Human Rights, the freedom of thought, conscience, and religion enshrined in Article 9 of the European Convention on Human Rights is one of the “foundations of democratic society.” This may be one of the most critical protections in the lives of believers striving to understand their identities and ways of life, but it is also an important victory for atheists, agnostics, skeptics, and the disinterested. Pluralism, an indispensable part of democratic society, depends on this freedom (Kokkinakis v. Greece, Application No. 14307/88, 25 May 1993).
Certainly, the right not to believe is currently protected in Turkey under the constitutional freedom of religion and conscience, albeit merely tacitly. Yet there are a variety of regulations and practices that conflict with the right not to believe. The most obvious example of this is the mandatory class on religious culture and ethics. Looking at the content of this course, one sees that the textbooks assume the students are Muslims. Yet the children of atheist and agnostic families are also required to sit in on these classes. Not only is the right not to believe not being respected in this case, it also means that individuals are being required to act in ways that go against what they believe. Another example is the existence of a box for “religion” on national ID cards. Even though it is now possible to leave this box blank in theory, in practice, individuals choose not to leave this box blank because they believe doing so will subject them to discrimination or make others believe they are atheists. There are many people, in fact, who fill in “Islam” as their religion even though they are nonbelievers. Prosecution of and restrictions on atheists’ freedom of speech represent another important problem. Article 216(3) of the Turkish Criminal Code, which states that “Any person who openly disrespects the religious belief of group is to be punished with imprisonment from six months to one year if such act causes potential risk for public peace,” has been used quite frequently, despite a lack of specific legal basis, in cases against nonbelievers.
What, then, is the significance of the right not to believe—usually seen as a “constitutional protection for atheists”—and how should this right be protected in practice? Considering the duties of the state in this respect, it is useful to remember that the freedom of conscience and belief is not a “gift” granted by the state, but a “right.” States do not “grant” this right because it is a one that every individual is already born with and that cannot be taken away. At the same time, states are required to “respect” and “ensure” this right. According to this principle, states have the obligation not only to refrain from preventing the exercise of such rights, but also to foster the necessary environment for their expression.
The freedom not to believe is a necessity for the proper daily functioning of both the relationship between individuals and the state and in relationships between third parties. First, from the perspective of the individual-state relationship, the freedom not to believe is incompatible with state attempts at indoctrination or the imposition of religious or philosophical beliefs or ideologies. The state cannot assume the religious identity of its citizens nor can it compel them to join a religion. The lack of religion cannot be considered a crime. For example, on national ID cards, being required to select a religion, or one of several religions, contradicts the freedom not to believe. During oaths at court, when an individual is required to swear on a particular text, this oath cannot be the expression of a particular belief. For example, in a European Court of Human Rights trial originating from San Marino, the preparation of an oath of office to be a member of parliament on the basis of the Christian Bible was found to be in contravention of Article 9 of the European Convention on Human Rights (Buscarini et al. v. San Marino, Application No. 24645/94, 18 Feb. 1999).
Is it sufficient, then, for the state not to consider nonbelief a crime? No, because individuals who do not profess a belief may face pressure or discrimination in their familial or social circles, including their schools, neighborhoods, and workplaces. In such cases, it is impossible to exercise the right not to believe. Therefore, the state must actively ensure individuals’ exercise of the right not to believe and protect their ability to live without facing pressure and discrimination from third parties.
All parties’ agreement on the explicit inclusion in the constitution of the “right not to believe” as a one to be respected and protected is a positive step. On the basis of this requirement, it is now necessary to look without delay at how we can change the aspects of law and practice that contradict the full expression of this right.
* Institute for Human Rights, Åbo Akademi University