Refah v. Turkey

Refah v. Turkey

The opinion that sharia (Islamic law) is incompatible with democracy and advocates the forcible overthrow of democratic governments has been confirmed by rulings of the Turkish Constitutional Court and the European Court of Human Rights. In 1998, the Turkish court banned the Welfare Party (Refah Partisi) because the rules of sharia promoted by Refah “were incompatible with the democratic regime …Democracy is the antithesis of sharia.” The European Court of Human Rights agreed on appeal in 2001 and 2003.

Noting that the Welfare Party had pledged to set up a regime based on sharia law, the Court found that sharia was incompatible with the fundamental principles of democracy as set forth in the Convention. It considered that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it.
According to the Court, it was difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverged from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervened in all spheres of private and public life in accordance with religious precepts.
Luzius Wildhaber, President, European Court of Human Rights

http://www.echr.coe.int/NR/rdonlyres/29AC6DBD-C3F8-411C-9B97-B42BE466EE7A/0/2004__Wildhaber_Cancado_Trindade_BIL__opening_legal_year.pdf

The convention referred to in Wildhaber’s remarks is the European Convention on Human Rights. The European Court of Human Rights has heard nine cases on banning Turkish political parties. Refah is the only one it has banned. The presently ruling party, AKP, is the Refah party-- renamed and pushing the same Islamist agenda.

The Court’s judgment included the following observations:

• The Refah claim of freedom of association does not overcome the State’s rights to protect its institutions.
• The means to change the State’s institutions must be legal in every respect.
• The final goal of the party must be compatible with fundamental democratic principles.
• Sharia does not exclude the use of force in order to implement its policies.

Sedition is defined in the American Heritage Dictionary as “conduct or language inciting to rebellion against the authority of the state.”

In American criminal law, the Smith Act of 1940, 18 U.S.C. paragraph 2385, says that it is a criminal offense for anyone to “knowingly or willfully advocate, abet, advise or teach the duty, necessity, desirability or propriety of overthrowing the Government of the United States or of any State by force of violence, or for anyone to organize any association which teaches, advises or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association.”

Those who advocate for Islamic law advocate for discrimination against women, gays, non-Muslims, secular government and freedom of conscience. Our freedom of speech makes such advocacy legal. But Islamic law specifically endorses the use of force to implement its goals. As the European Court of Human Rights ruled, the means to change the State’s institutions must be legal in every respect.

The 1940 version of the Smith Act has been revised to allow speech advocating forcible overthrow and to punish only those actions that are taken to implement the overthrow. Those actions must be shown to be clearly connected to an imminent threat to the nation. This revision should be stripped from the law. The possibility of prosecuting those who act to implement Islamic law on charges of incitement to violence is being explored.