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Comparison of Religious Freedom Provisions in Turkey and Israel Codified Law

Introduction

The governments of the west purport to be secular while upholding religious liberty. Many countries of the east have a differing idea of legal foundation, basing their laws in the shadow of a state religion[1]. Yet two countries sit as doors to the east and act as bridges to west: Israel and Turkey. In comparing the two gateways to the east, the question to be considered is to what extent do these countries offer religious liberty? What legal statutes, provisions and constitutional protections do they offer regarding religion? And are these provisions, statutes and protections societally accepted by the people of the countries in question? This analysis compares the legal background regarding religious affairs and the implementation of religious laws and protections in the Türkiye Cumhuriyeti (Republic of Turkey) and the לאֵרָשְׂיִ תנַידִמְ (State of Israel). This study will begin with an evaluation of Turkish law, governance and regulation of religion; followed by an evaluation of Israel’s. It will conclude with a comparison and analysis of the implementation and social culture of both.

The evaluation of religious law, governance and regulation will include an analysis of the following aspects drawn from United States Government reports: constitutions and provisional law, ministries, religious education, official recognition, preaching and proselytizing, and other statutory laws. The justification for the use of these reports as the basis is because the idea of religious liberty originated in, and is promulgated from the west. Because the use of a western definition of religious liberty is the report’s main objective, it is logical to analyze the internal laws from this external perspective.

Defining the Term in Question –Religious Freedom

Michael W. McConnell, writing for the Yale Law Review, defines religious freedom as the following: “the right of individuals and groups to form their own religious beliefs and to practice them to the extent consistent with the rights of others and with fundamental requirements of public order and the common good” (McConnell, 1). For purposes of this analysis, this definition will be used to compare the legal religious statutes, provisions, protections and the implementation thereof in both Turkey and Israel.

Turkey

Turkey claimed independence as a republic on October 29, 1923, adopting its’ own constitution. Historically, it was a part of the Ottoman Empire, the Islamic خلافة (Caliphate), and given this history and geographic location, naturally, it would be predominately Muslim country. The Central Intelligence Agency reports its total population to be 80,274,604 (2016 estimate) (The World Factbook: Turkey), and The United States Department of State in its’ annual International Religious Freedom Report (IRFR) says that although Turkey claims its religious makeup to be 99% Muslim and 1% other, reality is considerably more complex. The majority of Turks are Hanafi Muslims, but the government clumped all branches of Islam in one when giving its population estimate. Although Hanafi Islam constitutes the greater part of the population, this estimate didn’t account for the following numbers of other branches of Islam totaling 20-25 million Alevi Muslims, and three million Shia Ja’fari Muslims. The total population of other religions include Jews, Yazidis and many variations of Christians[2] (“Turkey 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 2).

Constitutional Provisions

In the Turkish Constitution it explicitly states that:

“Everyone has the freedom of conscience, religious belief and conviction. Acts of worship, religious rites and ceremonies shall be conducted freely, as long as they do not violate the provisions of Article 14[3] No one shall be compelled to worship, or to participate in religious rites and ceremonies, or to reveal religious beliefs and convictions, or be blamed or accused because of his religious beliefs and convictions.” (“Turkey – Constitution & Politics”)

The provisions in the constitution and legal code provide for a secular state, and the freedoms of conscience, expression, conviction, belief, and worship. It also prohibits discrimination on the grounds of religion (“Turkey – Constitution & Politics”).

Ministry and Education

Religious affairs are directed and governed by the Directorate of Religious Affairs (Diyanet). Their “mandate is to promote Sunni Islam” as well as “educate the public about religious issues, and administer places of worship” (“Turkey 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 3). This duty to educate the public in matters of religion derives from Article 24 of the Turkish Constitution

“Religious and moral education and instruction shall be conducted under state supervision and control. Instruction in religious culture and morals shall be one of the compulsory lessons in the curricula of primary and secondary schools. Other religious education and instruction shall be subject to the individual’s own desire, and in the case of minors, to the request of their legal representatives” (“Turkey – Constitution & Politics”).

The final clause of this provision provides an insight into the intent of the Turkish constitution to provide for a secular government and equal protection for religious minorities. However, the Diyanet allocates its’ resources solely to Sunni Islam, seemingly a diverting dynamic.

Recognition and Land Ownership

According to the U.S. Department of State, registration is not mandatory but in accordance with Turkish law and administration unrecognized religious groups cannot petition legal recognition for places of worship, failure to worship in a recognized location can be penalized according to the Turkish legal code. So called “Religious community foundations”, or groups recognized as legal religions, are the only religious groups legally allowed to own property. Registration is administered through the principal governor’s office, in coordination with the Ministry of the Interior, depending on any connections to foreign entities the group seeking recognition may have[4] (“Turkey 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 3).

Limits on Preaching and Proselytizing

In Turkey, regarding the practices of groups, few, if any, laws are in place prohibiting manners of preaching or prescribing doctrines to be taught. The penal code does prohibit clergy from “reproaching or vilifying” Turkish laws or the government. Within society, although it is not legally codified, proselytizing is looked upon with suspicion and anti-missionary rhetoric is includes in state funded required textbooks (“Turkey 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 4).

Other Provisions

Although too many to enumerate and thoroughly examine in this piece, there are other examples of legal provisions (or the lack thereof) regarding religion. Military service is mandatory and there is no provision providing for an individual’s conscientious objection. And finally, there are provided in the penal code restrictions and punishments for insulting a recognized religion, defacing the property of a recognized religion or interfering with their services (“Turkey 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 4).

Israel

Israel was established on May 14, 1948 as a Jewish State. It is a parliamentary democracy that in times past and recently has tended to base its laws in the legal interpretation of Orthodox Judaism. While The Declaration of the Establishment of the State of Israel states that it is a Jewish Nation-State, it is far from homogeneous. With a population of approximately 8,174, 527 (“The World Factbook: ISRAEL.”), the U.S. department of State breaks down its’ religious populations as follows: 75% Jewish, 17% Muslim, 2% Christian, and 1.6% Druze. Of the Jewish population 53% are self described secular Jews, 26% are self-described traditional Jews, and 21% consider themselves to be ultra-Orthodox (“Israel 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 2).

Basic Law Provisions

Israel does not have a written document known as a constitution. It does however, have a list of provisions known as the Basic Laws. Resolutions, and statutes passed since the formation of the Jewish State. As the State Department describes, “The Basic Laws describe the country as a “Jewish and democratic state” and reference the Declaration of the Establishment of the State of Israel, which promises freedom of religion and conscience and full social and political equality, regardless of religious affiliation” The various courts of Israel have interpreted these basic laws to ensure a protection of “the freedom of conscience, faith, religion, and worship, regardless of an individual’s religious affiliation[5]” (“Israel – Administrative Law & Procedure.”).

Ministry and Education

There are two Ministries that have jurisdiction of religious affairs in Israel. The Ministry of Religious Services, and the Ministry of the Interior run Department of Non-Jewish Affairs. The Ministry of Religious Services (MRS) has jurisdiction of the 133 Jewish religious councils and provide religious services for all the nations Jews. The Department of Non-Jewish Affairs (DNJA) oversees any matters dealing with Non-Jewish religions. The DNJA orders an interreligious council of recognized religions to facilitate communication between the various religious communities. 40% of the budget for the council is government funded, while local districts fund the remaining 60% (“Israel 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 5).

The Ministry of the Interior funds and provides religious training to Druze and Muslim clerics as employees of the state on the way to work with government agencies. According to the the Israeli government, 50% of Muslim imams in Israel are state contracted employees (“Israel 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 5).

Public schools operated in Hebrew are secular in nature. They teach Jewish history and religious texts but they predominantly study Jewish heritage and culture rather than beliefs. By law, the state provides public funding for two systems of ultra-Orthodox Judaic schools – The Independent Education system and the Fountain of Torah Education system. Arabic speaking public schools are home to Arab student bodies and teach the Quran and the Bible to Muslim and Christian students. Minors are legally given the right to choose a secular education without the consent of guardians (“Israel 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 6).

Formal Recognition

According to laws in place before the British Mandate era, there are two ways to gain formal recognition of a religion in Israel. The first is by means of declaration in response to the office of the Prime Minister. The second is by way of petition to the Ministry of Interior. Rejections can be appealed to the Supreme Court (“Israel 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 5).

Preaching and Proselytizing

Israeli law protects the ability for religious groups to proselytize, penalizing any monetary compensation as use of persuasion. The law prohibits preaching that calls for, condones or supports acts of violence or terrorism targeting any specified religious group (“Israel 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 4).

Protection of Religious Sites

Two Ministries have Jurisdiction over the protection of holy sites. The Ministry of Religious Affairs secures and provides upkeep of Jewish sites, and The Ministry of Tourism is mandated to do the same for non-Jewish sites. Laws prohibit desecration and obstruction of access of worshipers to the sites. Others are protected under Antiquities Acts (“Israel 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 6).

The government and not the courts are given the power to decide who has a right to worship at the various sites. Examples are subsequently given in subsection “Other Provisions” and the reasoning for the government Jurisdiction will be plain after a discussion of the nature of Jewish courts (“Israel 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 7).

Civil and Religious Courts

Much of the legal jurisdiction of the judicial branch is given to religious courts. This jurisdiction entails any “personal status issues”, or in other words “marriage, divorce, and burial. Members of the various religions may request personal status cases (such as “alimony, child custody, guardianship, domestic violence, paternity, and property division”) to be adjudicated in religious or civil courts. The juridical scope of civil courts is largely in regards to questions of inheritance (“Israel 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 6).

Other Provisions

Under the Legal code, passed by a cooperative arrangement, non-Muslim prayer is banned at the Haram al-Sharif/Temple Mount site. At the same time, the government protects non-Jews (specifically Christians and Muslims) ability to pray at the Western Wall, however, mixed-gender prayer services are prohibited. The government tends to implement policies based on Orthodox Jewish interpretations of religious law. Finally, military service is mandatory for Jewish citizens (both male and female), male Druze citizens, and male Circassians. Exemptions are potentially available provided for women who receive a hardship exemption, and Arab Christians and Muslims (“Israel 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 7).

Comparison

In accordance with our original definition of religious freedom, neither country allows for total freedom fitting perfectly our definition. Yet both countries display elements of religious freedom, that are steps in the right direction toward a total freedom, and are good examples of crossroad countries who by and large respect the rights of minorities. In order to properly compare, implementation and provisions must be carefully juxtaposed.

Turkish President Recap Tayyip Erdogan has been quoted as saying that Turkey is “a secular state where all religions are equal” (Gusten, 1), and to an extent this is true, and Turkish Scholar Ilhan Yildiz argues that this is to an extent correct,

“The most recent set of challenges facing Turkey, stemming from its desire to join the EU, have shown Turkey’s willingness to reform as it moves towards its goal [of religious freedom]. The government has implemented sweeping changes and improvements, many of which have provided greater freedoms for religious adherents, and especially for minority communities. Although significant work remains, Turkey stands as an example to the world that a peaceful democracy can exist among an Islamic majority” (Yildiz, 812).

Obviously growing pains are a part of any democracy. Israel has had continual rough patches with the Palestinian Authority, but based on domestic law, dating back to the original declaration of Israeli independence, largely respects the rights of minority religions. Yet in Turkey the respect has been largely made evident, with provisions such as its’ allowance of recognition of minority religions, and allowance of proselytizing. Although societally the Turks may not accept differing opinions, before the law, they are held relatively equal –as is evident with the societal skepticism of proselyting missionaries (a societal issue, not a legal issue).

In comparing the aforementioned secular focus of Turkey and the Jewish focus of Israel, we are presented with an interesting dichotomy. As a religiously based nation, Israel is largely theocentric, whereas a democracy is anthropocentric (Cohn, 1). However, Israel makes this point clear. The interesting factor in our current analysis is the lack of anthropocentrism in Turkey, although it claims to be a secular democracy it openly funds and supports Sunni Islam over other sects of Islam and minority religions. However, in the shift towards joining the EU, these shifts towards freedom, provided in the evolving legal system, the shift to anthropocentrism and a human rights respecting democracy is underway.

The Turkish state provides training for Sunni Muslim clerics through the Diyanet, while restricting the training of other religious groups. No such restriction of training exists in Israel. In fact, Muslim clerics are trained in government relations in the Israeli state. In Israel, religious affairs, as heretofore mentioned, are relegated to two separate Ministries: The Ministry of Religious Services (Charged with jurisdiction of Jewish religious councils) ad the Ministry of Interior Department of Non-Jewish Affairs (charged with jurisdiction of all other religions). This specific contrast in the two countries is important, because if the existence of a Ministry is necessary (and I submit in a fully religiously free state, they are not), a Ministry based exclusively for the protection and propagation of one religion constitutes the establishment of a state sponsored religion. In fairness, Israel is explicit in defining itself as a Jewish State, yet it provides for the facilitation of protection to minority religions through the establishment of a separate ministry for non-Jewish religions. Whereas Turkey, in sponsoring only one religion through its’ Diyanet, violates both the Preamble and Article II of its’ own constitution that states that “sacred religious feelings shall absolutely not be involved in state affairs and politics as required by the principle of secularism (Preamble),” and “The Republic of Turkey is a democratic, secular and social state governed by rule of law, (Article II)” (“Turkey – Constitution & Politics.”).

Education is also something that raises concern for the minority religions, Israel’s laws allow for exemptions and provide for Arabic minority schools that teach from both the Quran and the Bible. Turkey on the other hand only teaches Sunni Islam and allows for exemptions, but in some cases makes it hard for some exemptions to be granted, as is the case with the Alevi Muslims seeking exemptions. Although the constitution states that “religious education and instruction shall be subject to the individual’s own desire”, providing in written statute for an exemption, this is only allowed for some. “Students who are part of a recognized religious minority may apply for an exemption. Members of recognized non-Muslim religious groups are legally allowed an exemption from religious instruction. No exemptions are allowed for atheists, agnostics, Alevis or non-Sunni Muslims, Bahais, or Yezidis” (“Turkey 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 4).

Official recognition of religions is similar in the two countries. While it is not required in Turkey, it is requisite to own land. And in Israel, once recognized religious property becomes tax exempt. In both countries members of non-recognized religions may still practice their beliefs.

Conclusion

Both countries are on the right path to the allowance of the full and free practice of religion. They are examples to countries looking for models of how to progressively obtain religious freedom in both a state that claims secularism and a state that claims a state religion. While I believe that if governed responsibly and fairly, a government with a state religion can respect rights, as is evident in Israel. I believe the best hope is to embed into a legal system the foundation found in Turkey. A country upholding secularism and working towards equal rights for all religions is more likely to achieve that goal. It will take cultural change, but through democracy it can be attained.

Notes

[1] Countries such as Saudi Arabic and Iran that state in their governing documents that they are ruled by the principles of Islam, thus establishing the state as subservient to the religion.

[2] According to the United States Department of State International Religious Freedom Report for 2015: “90,000 Armenian Apostolic Orthodox Christians; 5,000 Roman Catholics; 17,000 Jews; 20,000 Syrian Orthodox Christians; 15,000 Russian Orthodox Christians, 10,000 Bahais; 22,000 Yezidis; 5,000 Jehovah’s Witnesses; 7,000 members of Protestant denominations; 3,000 Chaldean Christians; and up to 2,000 Greek Orthodox Christians. 300 Mormons, and small, undetermined numbers of Bulgarian Orthodox, Nestorian, Georgian Orthodox, Ukrainian Orthodox, Syriac Catholic, Armenian Catholic, Anglican, and Maronite Christians” (“Turkey 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 2).

[3] Article 14 is the Infringement of Rights Article that is as follows in the Turkish Constitution: “III. Prohibition of abuse of fundamental rights and freedoms ARTICLE 14- (As amended on October 3, 2001; Act No. 4709) None of the rights and freedoms embodied in the Constitution shall be exercised in the form of activities aiming to violate the indivisible integrity of the State with its territory and nation, and to endanger the existence of the democratic and secular order of the Republic based on human rights.

No provision of this Constitution shall be interpreted in a manner that enables the State or individuals to destroy the fundamental rights and freedoms recognized by the Constitution or to stage an activity with the aim of restricting them more extensively than stated in the Constitution. The sanctions to be applied against those who perpetrate activities contrary to these provisions shall be determined by law” (“Turkey – Constitution & Politics”).

[4] “To register as an association, a group must submit a registration application to the provincial governor’s office and may immediately begin operating while awaiting confirmation from the governor’s office that its bylaws are constitutional. In addition to its bylaws, a group must submit permission from the Ministry of the Interior if a foreign association or nonprofit organization is listed as a founding member, as well as copies of residence permits of foreigners if they are founding members of the group. If the governorate finds the bylaws unlawful or unconstitutional, the association is asked to change the bylaws to meet the legal requirements, and association officials can be fined or punished by law. Associations may be closed by court order and are bound by the civil code not to discriminate on the grounds of religion, ethnicity, or race. According to the civil code, any association created after 1935 may not restrict membership based on religion” (“Turkey 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 4).

[5] “The law contains an exception for all laws passed prior to the passage of the Basic Law, thus leaving personal status issues such as marriage, divorce, and conversion under the authority of the relevant recognized religious authority” (“Israel 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT”, 7).

Works Cited

Cohn, Haim H. “Religious Freedom and Religious Coercion in the State of Israel.” Human Rights Review, vol. 3, no. 2, Jan. 2002, p. 3. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=aph&AN=6768596&site=ehost-live.

Gusten, Susanne. “Turkey’s Elephant in the Room: Religious Freedom.” The New York Times, The New York Times, 28 Sept. 2011, http://www.nytimes.com/2011/09/29/world/europe/turkeys-elephant-in-the-room-religious-freedom.html

“Israel 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT.” International Religious Freedom Report for 2015, 2015, https://www.state.gov/documents/organization/256481.pdf

“Israel – Administrative Law & Procedure.” Foreign Law Guide, doi:10.1163/2213-2996_flg_com_103003.

McConnell, Michael W. “Why Protect Religious Freedom?” Yale Law Journal, vol. 123, no. 3, Dec. 2013, www.yalelawjournal.org/review/why-protect-religious-freedom.

“Turkey 2015 INTERNATIONAL RELIGIOUS FREEDOM REPORT.” International Religious Freedom Report for 2015, 2015, www.state.gov/documents/organization/256481.pdf.

“Turkey – Constitution & Politics.” Foreign Law Guide, doi:10.1163/2213-2996_flg_com_190034.

“The World Factbook: ISRAEL.” Central Intelligence Agency, Central Intelligence Agency, 12 Jan. 2017, www.cia.gov/library/publications/the-world-factbook/geos/is.html. Accessed 24 Feb. 2017.

“The World Factbook: TURKEY.” Central Intelligence Agency, Central Intelligence Agency, 12 Jan. 2017, www.cia.gov/library/publications/the-world-factbook/geos/tu.html. Accessed 24 Feb. 2017.

Yildiz, Ilhan. “Minority Rights in Turkey.” Brigham Young University Law Review, vol. 2007, no. 3, Apr. 2007, pp. 791-812. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=aph&AN=26927358&site=ehost-live.

 

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