Comparison of German and Turkish Constitutional Law In The Eye of The Freedom of Faith and Conscience*
I. Introduction
A s it is well known, both of these great nations have an important role in the stage of history. After World War II, it was started to unfold civil rights movements in many countries; thus, the new intellection reverberated to legislative efforts over the contemporary civilizations. In conjunction with the law reform on human rights, Turkish and German constitutional law got their’s share. Doubtlessly, universal human rights law’s progress has influenced primarily the constitutional convention of countries. Undoubtedly, these constitutions have differences and similarities. Especially, the differences arise from their cultural unity, social relation, and historical backgrounds. Within the aspects of this article, it will be discussed certain aspects of Turkish and German constitutional law. Before touching upon the main comparison, it could be benignant to give some background information about aspects.
II. Freedom of Faith and Conscience
Nowadays it is discussed the de jure boundary of the freedom of faith. The notion of faith can be interpreted in different perspectives but mostly it is associated with religion and personal preferences. Furthermore, the freedom of thought and conscience are protected equally with the freedom of religion and belief. In other words, every individual has the right to keep their religion or belief an exclusively private matter in all situations. Within this scope, the right to conscientious objection should be tackled. Traditionally, not all countries have accepted the right to conscientious objection, and it causes tragical violations of rights. For this reason, afterward, the freedom of faith and conscience is going to be considered on a preferential basis within the perspective of the right to conscientious objection. Especially the similarities and differences on the constitutional basis between Turkish and German constitutional law draws attention.
A. Right to Conscientious Objection
A conscientious objector is an “individual who has claimed the right to refuse to perform military service” [1] on the grounds of freedom of thought, conscience, or religion [2]. In some countries, conscientious objectors are assigned to an alternative civilian service as a substitute for conscription or military service. In this stage of history, conscientious objectors became the targets of abuse. They were made to feel guilty for not supporting their country in wartime or peacetime. Propaganda attempted to make them feel ashamed while one of the most noted methods of abuse was to attach white feathers to their clothes[3]. Mostly they have witnessed condemnation and also strained to continue their military obligation. Concordantly, the right to conscientious objection is a personal right, which the states must esteem and provide the protection, in contradistinction for several countries’ implementations. Both of the countries (Turkey and Germany) have regulations in their constitutions regarding freedom of faith and conscience; despite that, there is a critical difference apropos right to conscientious objection.
1. Regulations
a) German Constitutional Provisions
Article 4 of Basic Law for the Federal Republic of Germany includes freedom of faith and conscience. This article shows that Germany guarantees to create a free environment to express citizens’ remarks on their belief or philosophical perspective, and also this article provides a free environment for citizens to behave in the direction of their political, philosophical, or religious beliefs. Most importantly, Germany vests the citizens to refuse to be part of the military services. Germany paves a fair way for conscientious objectors, they cannot be compelled to be part of the military forces.
With this provision all of the citizens has a right to refuse or accept to be conscripted, that situation brings freedom of choice. In addition to this, freedom guides becoming a constitutional state. Especially, the German constitution regulates compulsory military and alternative civilian service in Article 12a:
“(…) (2) Any person who, on grounds of conscience, refuses to render military service involving the use of arms may be required to perform alternative service. (…)”
This regulation gives citizens, who are conscientious objectors, different options. Within this context, citizens do theirs share of a task for their country and also, they are not forced to join the military services heretically. Alternative services provide an environment for citizens, who are conscientious objectors and non-conscientious objectors, equitably. For that matter, even during wartime, the state has not had the authority to conscript the conscientious objectors, but instead of this, they tasked on civilian services for defense purposes.
b) Turkish Constitutional Provisions
Article 24 of the Turkish Constitution includes freedom of faith and conscience too. With this article, Turkey restricts the limitation over the right to freedom of conscience. After Mustafa Kemal Atatürk’s era, authorities tried to affect citizens with ecclesiastic orations and governments provided their legitimacy under the cloak of religion. After several constitutional amendment packages [1961,1982, 2017] it is tried to wipe the marks of abuse of religion. Especially, secularism in politics, religion in education, and restrictions of these types of rights have been regulated separately and detailed. But there is a necessity with the culture of religion and knowledge of ethics lessons for Turkish citizens.
On the other hand, Article 72 regulates the national service as follows: “National service is the right and duty of every Turk. The manner in which this service shall be performed, or considered as performed, either in the Armed Forces or in the public service, shall be regulated by law.”
That article can seem like an alternate option instead of national service in the armed forces, and also it provides an equal way to serve national service whatsoever. Details could be regulated by law, however, there is no regulation in Turkish domestic law instead of national service with armed forces. In other words, there are no public services for national service.
2. Similarities
Both the constitutions protect the citizens from straining different kinds of actions that inconsistently with their religious beliefs. For good measure, both strictly deal with freedom of faith and conscience under religious aspects. In this connection, Turkish and German Constitutions render aforesaid rights inviolable and protect the essence of right. Despite that, these provisions have differences with systematical interpretation and relation with military services.
3. Differences
Firstly, it can be seen differences in systematic allocation, a necessity in education, and implementation of national services. Easily recognized that the Turkish constitution associated secularism with the right of freedom of faith and conscience. Despite that, the German constitution regulates that in a different systematic order.
On the other hand, the Turkish constitution indicates the restrictions on Article 24 regarding religious activities. In any case, German constitution is not regulated restrictions of freedom in the context of Article 4. It can be seen from here German constitution only attach to the flesh importance to issue borders of the right specifically. And also, in relevant articles, there is a small difference in the explanation of intangibleness. In the Turkish Constitution borders of intangibleness have been explained detailed in Article 24, despite that, Article 4 declares them only literal way [But it is also regulated in other articles]. Education and instruction in religion and ethics are also regulated in the systematic order with Article 24.
German Constitution regulates religion education in another article. In Turkish Constitution, being compulsory of religion education on primary and secondary education provision draws attention. It differs from the German constitution, obligation in German law about religious education is lighter, both theoretically and practically. This necessity is the same article (Art. 24) both freedom and obligation provisions arouse no interest and seemed conflicted. Consequently, Turkish constitutional provisions draw apart from German constitutional provisions in the direction of necessity on religious education and its systematical order.
First and foremost, the formation of military services has respectable differences between Turkish and German provisions. German constitutional law incorporated it into the freedom of faith and conscience separately and also the assembly regulated a detailed provision about it. Articles 4 and 12a of the constitution demonstrate a guarantee to alternate services even in wartime. Even in extraordinary conditions, citizens couldn’t be forced to serve as a soldier, in case of a war these people can be called for public services. In Turkish constitution it is not issued military service and alternate services over extraordinary conditions. Additively, Turkish constitution regulates military service apart from the right of freedom of faith and conscience. Scope of military service regulated under the title of national service in Article 72, based on this provision, the constitution mentions the public services, but it highlights that it could be arranged by law. In conjunction with the situation, Turkey has no regulation regarding alternate service instead of military service in domestic law, which results in all men in Turkey must carry out the national service by joining military services.
German constitution specifies the borders of alternate services in Article 12a, it says: “Details shall be regulated by a law, which shall not interfere with the freedom to make a decision.”, hereat there has been created an equitable solution for all citizens. Also, a detailed regulation unlike the Turkish constitution guides domestic law, whereof interest of justice will be satisfied. Eventually, the Turkish constitution gathers different notions related to the right of freedom of faith and conscience and approaches from different disciplines in the sole article. But it can be seen easily that there is no regulation, unlike the German constitution, about the right to conscientious objection. Additionally, the German constitution has regulated the provision in an elaborative way, and it has protected the essence of rights on military and public services. In any case, it can be said that the Turkish constitution has not regulated per de lege ferenda.
III. Conclusion
For many years, Turkey is convicted of indemnity by the European Court of Human Rights because of the lack of regulation for conscientious objectors. And also, within this period there are sighed harsh penalties and cruel treatment against people, who refuse to join military service, by authorities and the social community. Despite its international obligations, the Republic of Turkey does not recognize the right to conscientious objection, nor does it allow alternative civilian service [4]. Furthermore, Turkish conscientious objectors and their supporters are subjected to periods of up to ten years imprisonment for their beliefs. Since Turkey has no domestic legal provision regarding the right to conscientious objection, objectors face what the European Court of Human Rights has termed civil death [5], meaning that they become trapped in a vicious cycle of the military unit–military court and military prison without any prospect of closure.
Examination of the relationship between the Turkish military system, the state, and Turkish society, in general, will throw light on Turkey’s failure to recognize the right to conscientious objection. In the early 20th century, Turkey underwent a process of nation-building, largely undertaken by military elements; the significance of compulsory military service within the concept of the military nation is therefore of prime importance. The resulting strong influence of the militarist elements within the legal system has allowed the permanence of the statute book of provisions that flout international standards regarding military service and the right to conscientious objection [6].
Finally, Germany paints a consistent picture with regulations on military services since 1966 [7]. Besides Turkey has a provision about alternate public service in Article 72 but never regulates any public service provision in domestic law. On top of it, Article 63(1)(a) of the Turkish Military Penal Code, conscientious objectors can face up to three years imprisonment, depending on the circumstances [8]. At this juncture, Turkey could benefit from the German constitution’s provisions. Nevertheless, authorities should stop the infringements of law before coming to a situation that has no return to tolerate. Undoubtedly, bestowing the right to conscientious objection would be a substantial step on the way to de lege ferenda.
Bibliography
[1]On July 30, 2001, www.ohchr.org, Office of the United Nations High Commissioner for Human Rights, retrieved on 05.07.2012
[2] “International Covenant on Civil and Political Rights; of the United Nations High Commissioner for Human Rights” Retrieved 2008–05–15, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx
[3] https://www.bbc.co.uk/bitesize/guides/ztx66sg/revision/2
[4] Çınar (2009), p. 191; Brett, D. (2013), “Annual Report: Conscientious Objection to Military Service in Europe 2013”, European Bureau for Conscientious Objection: Brussels, pp. 45 and 47
[5] European Court of Human Rights (ECtHR) used the phrase ‘civil death’ for the first time in the case of Ülke v. Turkey, Application no. 39437/98
[6] Çınar H., The Right to Conscientious Objection to Military Service and Turkeys Obligations under International Human Rights Law, July 2014, Springer, p. 66–68
[7] As concerns regional human rights protection, Çınar addresses the landmark cases on the right to conscientious objection decided by the European Court of Human Rights (ECtHR), the first case being Grandrath v. Federal Republic of Germany (1966) [addressed in book reviews of Oxford]
[8] Çınar H., The Right to Conscientious Objection to Military Service and Turkey’s Obligations under International Human Rights Law, book review by Oxford University Press, p. 327–337
* Ömer Batuhan Uçmak, Senior Law Student at MEF University
