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Professor Ali Khan
Washburn University School of Law
JURIST Contributing Editor

The European Court of Human Rights, sitting in Strasbourg, faces a troubling question about Turkish democracy. The question is posed by an Islamic political party, known as Refah (The Welfare Party). The Turkish Constitutional Court has banned Refah for advocating the introduction of sharia, i.e., Islamic law, and for challenging the non-amendable provisions of the Turkish Constitution, designed to keep Turkey, for ever, as a secular, liberal democracy. Since Turkey has signed the European Convention on Human Rights, Refah brought the case before the Strasbourg Court.

In July 2001, a Chamber of the Court, by four votes to three, upheld the ban on Refah. The case is now on appeal before the Grand Chamber. It is hoped that the Grand Chamber will lift the ban and save Turkey from Algeria-type chaos and political instability, which is most likely to simmer in the months to come.

The Chamber judgment in the Refah case is shocking, provocative and, unfortunately, appears to be anti-Islamic. The most shocking part involves the statement that sharia is incompatible with democracy and human rights prescribed in the European Convention. Rejecting the argument that Refah has a right to exist under Article 11 of the Convention, which protects the right of association, the Chamber majority opines, 殿 political party whose actions seem to be aimed at introducing sharia in a State party to the Convention can hardly be regarded as an association complying with democratic ideal that underlies the whole of the Convention.

What is most disturbing is the fact that a Grand Chamber of the Strasbourg Court has previously ruled that Turkey cannot ban the Communist Party. It was argued before the Grand Chamber that 菟olitical parties, should be able to campaign for a change in the law or the legal and constitutional structures of the state... The Court unanimously held that the ban on the Turkish Communist Party was a violation of Article 11 of the Convention.

When the two cases, Communist and Refah, are studied together, the new holding is both coherent and incoherent. It is coherent for those who paint West as the enemy of Islam. For them, it is perfectly understandable that the European Court would legalize the Godless Communist Party but ban the God-fearing Refah. It is incoherent for those who expect from the Court a consistent jurisprudence regarding Article 11. The right to association lies at the heart of democracy. If the people have no democratic option but to submit to official ideology---communist, theocratic or secular--- the right to association is meaningless.

It is hoped that the Grand Chamber will overrule the lower Chamber and uphold the right of Islamic parties to exist and contest elections in Turkey. For otherwise, the Court痴 message, loud and clear, would infuriate Turkish Muslims, asked to abandon their religion in order to embrace democracy. The difficult task for the learned and the wise is to create new harmonies. That is what the Court should do. It should create ways for Islam to peacefully embrace democracy in Turkey. Islam has interacted with the Western civilization for many centuries. So have the Turks. That interaction must be preserved, and not stifled in the name of democracy. For if Turkey is pushed toward extreme secularism, its internal turmoil will affect the entire region.

Ali Khan is Professor of International Law and Human Rights, Washburn University. The argument presented here is examined in more detail in the author痴 forthcoming book, A Theory of Universal Democracy (Kluwer, 2002).

September 9, 2002


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