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Academic Freedom in Higher Education

Academic freedom depends heavily on the continuity of an independent academic community characterized by respect for varying political, social, and scientific ideas within a context of scholastic excellence. In Turkey, this continuity took a severe blow as a consequence of the military intervention, and the creation of the HEC. Academic freedom in Turkey had already suffered in the late 1970s when universities became caught up in the turbulence of the era. The political violence that spread onto university campuses at that time imposed informal and unofficial but nonetheless severe strains on academic freedom. Various political groups intimidated academics and students, and campus life was disrupted by violent confrontations and even assassinations. After the 1980 military coup the junta punished universities for their part in the upheaval of the previous decade by expelling hundreds of staff and thousands of students for their political activities.

Academic freedom continues to be so severely restricted that commentators of almost every political color have suggested that the HEC should not continue in its current form. It was in this context that the draft law on Higher Education was announced. The Justice Ministry’s July 2003 draft law drew public criticism from academics concerned that the proposed reforms do not fully establish the formal independence of universities, and leave academic institutions exposed to the outside imposition of political orthodoxy.

Some observers expressed fears that the Justice and Development Party (AKP) government, helped to electoral victory in November 2002 by a religiously devout constituency, might follow the common clientelist pattern in Turkey, and try to replace secularists with its own supporters throughout higher education, in retaliation for expulsions of devout academics following the February 1997 fall of the religious-oriented government headed by Prime Minister Necmettin Erbakan.

Academic Freedom Under International Law

Academic freedom is more than just the freedom of professors to speak and write freely in their fields of specialty. It also recognizes the role that academics play as intellectual shapers of society. As such, academic freedom is a sensitive barometer of a government’s respect for human rights. Educational systems in general and universities in particular are public institutions, often dependant on government funding, and viewed by governments as potential instruments of national policy. Governments have considerable power to influence what takes place in schools and on campus, and a powerful incentive to wield that power. In Turkey, as in many other countries, governmental power has been used to force the educational system to reflect the values of state power holders and serve their interests. This has led to violations of international human rights law, and has obstructed the fulfillment of other civil, political, economic, social, and cultural rights.

International law has long recognized the cardinal significance of the right to education and the importance of academic freedom in fulfilling this right. The right to education is enshrined in article 26(1) of the Universal Declaration of Human Rights, which simply states “Everyone has the right to education.” The International Covenant on Economic, Social and Cultural Rights (ICESCR)⁶ echoes this idea in article 13: “The States Parties to the present Covenant recognize the right of everyone to education.” Article 13 sets forth in some detail the right to education, the purpose and content of education, and the critical role of teachers and their associations in establishing and implementing national educational policies. The U.N. Committee on Economic, Social and Cultural Rights (ESCR Committee), responsible for authoritatively interpreting the content of the rights enumerated in the ICESCR, has explained the importance of the right to education thus: “Education is both a human right in itself and an indispensable means of realizing other human rights.”⁷

The ESCR Committee has identified a clear link between academic freedom and fulfillment of the right to education: “the right to education can only be enjoyed if accompanied by the academic freedom of staff and students.”⁸ It is useful here to refer in full to the Committee’s definition of academic freedom:

Members of the academic community, individually or collectively, are free to pursue, develop and transmit knowledge and ideas, through research, teaching, study, discussion, documentation, production, creation or writing. Academic freedom includes the liberty of individuals to express freely opinions about the institution or system in which they work, to fulfill their functions without discrimination or fear of repression by the State or any other actor, to participate in professional or representative academic bodies, and to enjoy all the internationally recognized human rights applicable to other individuals in the same jurisdiction.⁹

As set out by the Committee, academic freedom includes two sets of rights: firstly, the individual rights of educators and their students, in particular the rights to free expression and free association; and secondly, institutional autonomy. Institutional autonomy is the collective right of the academic community to conduct its own affairs in order to fulfill its central mission of transmitting knowledge and information.

In the first category are those fundamental rights, applicable to all individuals under international law, that are particularly relevant in allowing educators and students as individuals to engage in the pursuit and dissemination of knowledge and to participate in the formation of educational policy. The right to hold and freely express opinions is essential to academic freedom but can be seriously prejudiced in a climate of self-censorship when certain ideas are formally or informally outlawed.

In his “Thematic Report on Freedom of Opinion and Expression,” presented at the fifty-sixth session of the U.N. Human Rights Commission in 2000, the United Nations special rapporteur on freedom of expression focused mainly on self-censorship in relation to defamation laws and suppression of women, but also took particular notice of “actions taken by governments in relation to academic freedom.” These actions were found to include:

Suppression of research on such controversial topics as a national independence movement that was active in the past; a ban on campuses of any independent organizations that are considered political; refusal of permission to hold a seminar on human rights; state-supported harassment of independent libraries that were established to provide access to materials to which there is no access in state institutions; charges of having published a play that was considered blasphemous; charges against and conviction of the head of a political science department, who was also a contributor to a student magazine, for having defamed the religion of the state.¹⁰

Knowingly encouraging self-censorship through government policies amounts to a violation of the freedom of opinion, which is considered to be absolute, and is protected as such in the International Covenant on Civil and Political Rights (ICCPR)—as noted in a report by the special rapporteur at the fifty-first session of the U.N. Commission on Human Rights on December 14, 1994:

The freedom to form an opinion was held to be absolute [in the travaux preparatoires of the Covenant] and, in contrast to freedom of expression, not allowed to be restricted by law or any other power. It is for these reasons that the Covenant in article 19 (1) declares an independent right to hold opinions without interference. The absolute character of the protection offered by article 19 (1) is furthermore underlined by article 19 (3), which stipulates that special duties and responsibilities are only carried with the exercise of the rights provided for in paragraph 2 of article 19, i.e. solely the right to freedom of expression and not the right to hold opinions.¹¹

The second category of rights comprising academic freedom is the collective right of the academic community to pursue its mission of teaching and scholarship. Institutional autonomy is essential for fulfillment of this right. UNESCO, in its 1997 declaration on the role of higher-education personnel, described autonomy as “the institutional form of academic freedom and a necessary precondition to guarantee the proper fulfillment of the functions entrusted to higher-education teaching personnel and institutions.”¹² The ESCR Committee expanded on this definition in its discussion of academic freedom: “the enjoyment of academic freedom requires the autonomy of institutions of higher education. Autonomy is that degree of self-governance necessary for effective decision-making by institutions of higher education in relation to their academic work, standards, management and related activities.”¹³

Institutional autonomy does not mean that educational institutions are free to operate as they please. In fact, the ESCR Committee explicitly states that autonomy must be balanced against accountability to the public’s needs and demands.¹⁴ But it has been demonstrated repeatedly that educational institutions can only meet their obligations to society and satisfy the right of all individuals to education if educators, staff, and students are free as a community to “enhance their prospective function, through the ongoing analysis of emergent social, economic, cultural and political trends, acting as a watchtower, able to foresee, anticipate and provide early warning, thereby playing a preventative role.”¹⁵

Regulatory Framework of Academic Freedom Under the Turkish Constitution and Law

Turkey’s current higher education system violates the academic freedom of individual faculty and students, and also the institutional autonomy of universities.

The Turkish constitution explicitly limits the freedom of academics to research and teach. Article 42 of the 1982 Constitution bluntly prescribes tight state control of education at all levels, stating that education shall be “conducted along the lines of the principles and reforms of Atatürk, on the basis of contemporary science and education methods, under the supervision and control of the State.” Article 130, which deals with higher education, states: “Universities, members of the teaching staff and their assistants may freely engage in all kinds of scientific research and publication. However, this shall not include the liberty to engage in activities directed against the existence and independence of the State, and against the integrity and indivisibility of the Nation and the Country.”

The framers of the Turkish constitution proposed a linguistically, ethnically, and culturally monolithic Turkish state, and co-opted education to shore up this identity: article 42(9) states: “No language other than Turkish shall be taught as a mother tongue to Turkish citizens at any institutions of training or education. Foreign languages to be taught in institutions of training and education and the rules to be followed by schools conducting training and education in a foreign language shall be determined by law.”

The 1982 constitution also provides the basis for the HEC’s highly centralized overriding authority “to direct the teaching … and steer the scientific research in Higher Education Institutions” as a permanent fixture within the education system.¹⁶ These constitutional prescriptions grew out of the military junta’s Law on Higher Education of November 1981. This law expressly imposes ideological controls on Turkish higher education. “The aims of higher education” in Article 4 of this law include: “To educate students so that they … will be loyal to Atatürkist nationalism and to Atatürk’s reforms and principles.” Article 5 explains that “Higher education is organized, planned, and programmed in accordance with the following basic principles … To ensure that students develop a sense of duty in line with Atatürk’s reforms and principles, loyal to Atatürkist nationalism. …. In the course of education in the institutions of higher education, Atatürk’s Principles and the History of the Turkish Reforms, the Turkish language and a foreign language are all compulsory courses.”

The problem with the ideological preconditions imposed by the constitution and the law is not only that they conflict with the free social and political inquiry that are traditionally essential functions of a university, but that they permit university or state authorities to use such restrictive (but vague) prescriptions to persecute staff for their supposed ideological orientation. The HEC provides the administrative apparatus for such control.

The HEC conducts and controls administrative decisions at all levels of higher education. Faculty appointment, budgets, curricula, and research priorities are all subject to the HEC’s political controls. The HEC also imposes disciplinary procedures at all levels of higher education. Article 7(l) of Law 2547 empowers the HEC “[t]o conduct and decide upon disciplinary proceedings concerning rectors,¹⁷ to initiate regular proceedings for the dismissal or transfer on a probationary status to another institution of higher education of those faculty members who fail to carry out in a satisfactory manner their duties as specified in this law or who act in a manner incompatible with the aims, fundamental principles and prescribed order as indicated in this law, upon the proposal of the rector or directly.”

Law 2547 eroded the independence of academics and academic institutions, while simultaneously furnishing the HEC with immunity from prosecution and enabling it to authorize or halt prosecutions against academics.¹⁸ In 1999, the Turkish parliament formed a commission to investigate the HEC’s activities. The thirteen-member commission worked for nearly six months, conducting hundreds of interviews and researching thousands of documents. The commission’s report never emerged, but it did submit evidence to prosecutors in Ankara and Istanbul. No prosecutions were initiated against the HEC because the president of the HEC withheld permission for them to go forward.¹⁹

More than two decades after the military coup, higher education in Turkey still stands in the long shadow of the military. Law 2547, passed in 1981 when Turkey was still under martial law, gave the armed forces substantial influence over the HEC, and enabled them to exercise direct influence over its deliberations at nearly every level. Under Law 2547 and the 1982 constitution, the Turkish military appointed one representative on the 22-person HEC supervisory board. This representative, always an active or retired military officer, was also by law a member of the HEC’s nine-member Executive Council. In May 7, 2004 constitutional changes removed military representation from the HEC. The package of constitutional changes was proposed by the government and passed with substantial opposition support. The reforms, part of an ongoing series of legislative and constitutional changes aimed at fulfilling the European Union’s political criteria for Turkey’s candidacy, included removal of the death penalty from the constitution and enhancement of the applicability of international law in Turkish courts.

The removal of the military representative from the HEC board is a landmark reform, for which the government and parliament deserve much credit. It is the latest step in a long process that many hope will end in the complete elimination of military influence in academic life, and in civilian affairs more generally, in Turkey.²⁰

Military influence has not been limited to representation on the HEC board, however. For example, military officers, often with no academic training, also sit on the HEC’s disciplinary committees and staff the oversight teams that evaluate the conformity of Turkey’s private universities with the strict political strictures established by the HEC.

In addition, the military has used its extensive network of informal power to play a central role in appointments, including that of the all-powerful president of the HEC. In 1999, for instance, the Turkish military successfully secured the reappointment of Professor Kemal Gürüz to a second five-year term as HEC president, despite considerable criticism from some of Turkey’s academics, politicians, and journalists who saw his appointment as a sign that there was to be no change from the system of tight state and military control of the universities.²¹ It is essential that the implementing legislation for this constitutional change should ensure an end to the remaining forms of military influence.

For the moment, it seems unlikely that the departure of the military nominee to the Higher Education Council will be the Turkish military’s final performance on the educational stage. On the day that the constitutional reforms were put before parliament for debate, the Office of the Chief of General Staff issued a statement indicating that it had “good reason to express its opposition to items in the latest Constitutional changes that closely concerned this institution,”²² but had remained silent in view of the European Union accession process. The statement went on strongly to criticize the Justice Ministry’s Draft Law Concerning Amendments to the Higher Education Law and to the Law on Higher Education Personnel. The Office of the Chief of General Staff sharply criticized the draft for permitting the Higher Education Council to devolve responsibilities other than that of coordination and supervision to individual universities if it so decides. In fact, the draft left the power to devolve or not to devolve these “other responsibilities” (which included the direction and guidance of education, learning and scientific research, planning for the development of universities, the effective use of allocated funds and the training of teaching staff) very much in the HEC’s hands. If the intention of the reform were genuinely to safeguard institutional autonomy and academic freedom, then these responsibilities should have been firmly and formally devolved.

The Office of the Chief of General Staff also asserted that a measure allowing graduates of clerical training schools to apply to university on an equal footing with students from conventional high schools²³ would “obviously damage the principles of the unity of education and the principles of secular education. For this reason sectors and institutions whose attachment to the fundamental characteristics of the Republic cannot be expected to accept this draft law.”²⁴ The Chief of General Staff’s statement looks like a reassertion of the military’s right to interfere in educational matters, and an attempt to preserve the HEC as a tool in this interference.

The Turkish parliament passed the law on May 13, 2004 as Law no 5171 Amending the Higher Education Law and the Higher Education Personnel Law, but at the time of writing it was expected that President Necdet Sezer would veto the law as contrary to the constitutional principle of secularism. If parliament passes the law once again, the President is entitled to ask for an adjudication from the Constitutional Court.

Impact on free expression and opinion

Since the 1980s, the threat of investigation or discipline by HEC tribunals has imposed strict self-censorship on the academic community. Academics whose opinions deviate from the political orthodoxy laid down for higher education in the constitution are subject to legal or administrative disciplinary proceedings—even when those opinions constitute protected expression under the European Human Rights Convention.

For example, on September 27, 2000 an HEC academic tribunal found Alev Erkilet Başer, lecturer at Kırıkkale University, guilty of acting contrary to Atatürk’s reforms by producing a Ph.D. thesis regarded by the tribunal as anti-secularist and Islamist. The ruling, replete with procedural and substantive errors and shortcomings, was based on a report prepared by a three-person board which included a retired navy lieutenant.²⁵ On the basis of that ruling, Alev Erkilet Başer was dismissed from her job in April 2001. Her published dissertation, a comparison of Islamist movements in Turkey, Iran, and Egypt, included a frontispiece bearing the words Bismillah alrahman alrahim, [in the name of God, the gracious, the merciful] and included two pictures of Iran’s Ayatollah Khomeini.

On December 7, 1999 Dr B of Ankara University responded to a poem urging a carpe diem approach to life posted on an internet discussion group with a parodic story suggesting what might have happened if Atatürk had adopted such an irresponsible approach during the War of Independence. He was immediately subjected to a gruelling investigation by the HEC in which he was accused of “publicly insulting Atatürk’s glorious memory through electronic mail.”²⁶ In the course of the HEC tribunal proceedings, the university authorities even wrote to the Office of the Chief of Staff²⁷ asking for their opinion on the email. The Office of the Chief of Staff replied that the expressions were “unsuitable” and “belittling of Atatürk’s memory.”²⁸ However, after a hearing in which all witnesses testified that the email was a simple parody and that the author was an expert on Turkish history who had shown knowledge and appreciation of Atatürk’s life in his other writings, the charges against Dr B were dropped in mid-2000.

In January 2000, the HEC ordered Istanbul University to start a disciplinary investigation against law faculty Professor Bülent Tanör for authoring the landmark report Perspectives on Democratization in Turkey published by the Turkish Businessmen and Employers’ Association (TÜSİAD). The investigation focussed on alleged irregularities in Professor Tanör’s efforts to notify the university of this work, but was widely perceived as politically motivated. The report was critical of Turkish law, the constitution, and the education system. It made many recommendations that at the time were deeply offensive to the then-government, but have since been adopted in legislative and constitutional changes.²⁹ Professor Tanör died in February 2002.

The HEC has also kept a strict rein on any academic activity relating to Turkey’s ethnic minority groups. The HEC has punished academics for researching issues related to Kurdish language or history, and punished students for demanding education in minority languages.

Constitutional amendments adopted in October 2001 removed mention of “language forbidden by law” from legal provisions concerning restriction of free expression. Thereafter, university students began a campaign for optional courses in Kurdish to be put on the university curriculum, triggering thousands of detentions throughout Turkey between January and August 2002. Scores of students reported that police tortured or otherwise ill-treated them during incommunicado detention. According to the Turkish Human Rights Association, a non-governmental organization, from January to August 2002, police detained 3,621 students or parents who submitted petitions for Kurdish language courses, and of those detained 446 were charged with aiding an illegal armed organization.³⁰

Law 4771 of August 3, 2003 amended Law 2923 on Foreign Language Education and Teaching of October 1983 to provide that students at private schools could take courses in “various languages and dialects used by Turkish citizens in daily life”—code for minority languages such as Kurdish and Laz, the teaching of which were previously prohibited.

Following this step, students detained for submitting petitions began to be released, and many cases that went to trial resulted in acquittal. However, some students who submitted petitions were convicted and sentenced to up to more than three years’ imprisonment. Students who took part in organizing the petition action received more severe sentences. Many others were suspended or expelled from university. Appeals against prison sentences for submitting petitions were in some cases successful, and the majority of the suspensions from university were struck down in actions in the administrative courts.

The new attitude of the judiciary is welcome, but some students continue to face criminal charges for the petitions they submitted, and many students remain subject to university disciplinary proceedings. Kocatepe University in Afyon, western Turkey, suspended twenty-four students in January 2002 for two terms for submitting petitions. The students’ objected to their suspension at Denizli Administrative Court, but on December 23, 2002, the court rejected their case.

In April 2002, the Dicle University Disciplinary Board suspended Ahmet Turhan, a student of the Law Faculty of Dicle University in Diyarbakır from the university for one year for submitting petitions calling for optional Kurdish courses. Turhan had earlier been sentenced to three years and nine months of imprisonment for “supporting an armed organization” for submitting the petitions. In January 2003, Diyarbakır Administrative Court ruled the expulsion unlawful, and Turhan returned to his course, pending his appeal against the prison sentence. In May 2003, however, Turhan was expelled from the university on the grounds of his criminal conviction at first instance. The HEC disciplinary regulation requires that any person who has committed “crimes against the state” be dismissed. Turhan successfully appealed against the prison sentence and is now on trial in a local criminal court under article 312 of the Turkish criminal code, on the pretext that the petition amounted to incitement to racial hatred. If he is again sentenced, Turhan will be permanently barred from registering at any higher education institution.

In January 2003, Abdurrahim Demir was expelled from Dicle University following his conviction and sentence to three years and nine months of imprisonment for “supporting an armed organization” allegedly evidenced by his submission of 1,540 petitions for the addition of Kurdish courses to the curriculum in January 2002. Demir’s appeal was also successful, and he is also on trial under article 312 of the Turkish criminal code.

Law 4771 of August 3, 2003, and the subsequent reforms that moved toward permitting broadcasting in minority languages and easing the constraints on non-Turkish names were driven by the so-called Copenhagen Criteria for Turkey’s accession to the European Union (E.U.). The criteria require Turkey to demonstrate “stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities,” before proceeding further with its E.U. candidacy.³¹ Whether or not Kurdish is ever taught in universities in Turkey is a matter that universities should be free to decide in line with the interests of their students and staff and the availability of resources. But the HEC has been left far behind by the changes of the past two years, and remains entrenched in attitudes far from the “respect for minorities” required by the E.U. When the constitutional changes of October 2001 removed the concept of “languages forbidden by law,” the HEC engineered a resolution by the rectors of Turkish universities which repudiated this reform.³² The rectors condemned any activity that affirmed Kurdish identity, including “submitting petitions for instruction in and of Kurdish, reading and writing Kurdish in class, replying in Kurdish to exam questions, organizing panels, conferences and theatrical plays in Kurdish as well as hanging placards and posters.” The resolution asserted that such activities were “not innocent, but planned and organized either directly by the PKK³³ or indirectly through the support of its comrades and supporters.”³⁴

Impact on institutional autonomy

Institutional autonomy is built from many different elements including a system of tenure, whereby educators are protected from politically motivated meddling in university staffing and administration. In the absence of the effective protection that tenure (or a comparable system) can provide, Turkish academics have sometimes been summarily dismissed for political or trade union activities. The Turkish government’s use of administrative appraisals and short-term contracts for university faculty perpetuates uncertainty, decreases institutional autonomy, and chills academic activity.

Articles 7/l and 13/b-4 of Law 2547 give rectors and HEC broad authority to transfer faculty members and administrative staff, and to initiate dismissal proceedings against staff and students, but rules and objective criteria for their implementation are not built into the provisions which allocate these powers. Expulsions and transfers may be carried out directly by the HEC or through university rectors who are themselves under pressure from the HEC. Under current HEC rules, academics who lose their jobs due to political infractions may be banned from holding any position in the public sector—whether related to education or not.³⁵ This has resulted not only in a teaching body cowed by the threat of punitive transfer, which can amount to a sort of internal exile, but also in the expulsion of academics who refuse to toe the line laid down by the military-influenced state.

The HEC has on occasion stepped beyond its authorized powers in order to manipulate universities and secure obedience. For example, in the late 1990s Mersin University, which had a young staff with a reputation of leaning toward social democratic ideas, publicly challenged an attempt by the HEC to influence the appointment of faculty deans. In late 1997, the university senate passed a resolution that indicated in detail in which areas of the university the HEC had interfered outside its mandate, registered a formal protest against HEC's attitude, and issued a press release indicating its concerns. The HEC initiated an investigation against the rector, but failed to have him taken from his post. The HEC also took action against four members of staff who were perceived to be behind the “uprising.” Economic and Administrative Sciences Faculty professor Zafer Üskül was one of those targeted. He told Human Rights Watch:

In September 1999 my friends phoned me and said that my university staff performance record had been “blotted.” My record for 1997 and 1998 were ranked as “bad” by the Office of the President of the HEC. This was a completely illegal act so I opened a case in the Adana administrative court for cancellation of both records and won on both counts. The HEC appealed to the council of state but I won both cases. Two other professors had their record marked as “bad” for 1998 and 1999. The authorities tried to mark the records as “very bad.” After receiving two “very bads,” people are supposed to be moved to another university. These professors also protested and won both cases. An assistant rector [also suspected of participation in the challenge to the HEC] was sent against his will to Firat University in Elazığ. He opened a case against this and won. So the HEC lost all their cases against us. The decision of a court should be implemented within a month but it has been longer than that and still [the assistant rector] was not moved back.³⁶

In documents submitted to the court the Mersin University professors were accused of “weakness in Atatürkism,” and being favorably disposed to extreme political movements. Professor Üskül stated that the court decisions in all cases had reported that the performance records were not based on objective facts. Since this apparently constituted an abuse of office and therefore an offence under article 240 of the Turkish Criminal Code, Professor Üskül made a complaint to the public prosecutor. The prosecutor is not entitled to open a case without approval of the HEC general council under the presidency of the National Education Minister, however, and therefore no investigation was initiated.

In universities in the mainly Kurdish southeast, political loyalty to the state is considered paramount, and the first two rectors of Dicle University in Diyarbakır, founded in 1982, were retired military men. A member of staff, who asked that his identity be withheld for his own protection, told Human Rights Watch that police and gendarmes were very active on the campus, and that successive rectors had made no secret of the fact that they sent lists of new appointments for vetting by the security services. The close links of the university establishment with the security forces reportedly were used to intimidate staff when it came to election of candidates for rector. University staff who were supporters of certain candidates reportedly approached academics, saying that life would be “difficult” if votes were not cast as required. According to one academic:

Various people, including myself, were informed that the gendarmerie intelligence had supplied a list of people with dubious political orientation, and that people on the list might be transferred out of Dicle University to somewhere less convenient. The election for rector is secret but we have to write the names of our chosen candidates on a card … and of course it is not difficult from them to work out who voted for whom.³⁷

Under the Higher Education Law (Law 2547) currently in force, the Higher Education Council has extensive powers to control and direct appointments and administration in individual universities. The exercise of these powers severely prejudices institutional autonomy. The HEC has used these powers to threaten independent educational establishments including, for example, Fatih University, a private university in Istanbul. The Turkish government encouraged the growth of private universities in the early 1990s to ameliorate the pressure on the state to provide higher education to an increasing number of students. Twenty-one of Turkey’s seventy-one universities are private. The HEC allowed foundations and corporations, not just individuals, to finance universities, paving the way for some of Turkey’s major foundations, including religious foundations, to help answer the growing demand for higher education in Turkey.

Fatih University was established in 1996 by a private foundation led by Fethullah Gülen, a revivalist religious leader. The HEC president, along with the prime minister, attended the founding ceremony for the university, which has faculties for engineering, economics and administrative sciences, liberal arts, and medicine.

By 2000, the HEC had begun to change its attitude toward private universities, which had displayed a degree of independence that the HEC did not welcome, and threatened them with cutting off of aid or closure.³⁸ In 2001 Fatih University authorities learned, initially through newspaper reports, that the HEC was planning to close the university. The Board of Trustees contacted the HEC, and was informed that closure was not on the agenda. But two weeks later they heard (this time through a television news report) that the HEC had ordered the university to close its enrolment. A three-person HEC evaluation team, including a retired military officer with no academic credentials, initially found the university in full conformity with HEC guidelines. The team returned, however, two weeks after the HEC president made public statements critical of the university. This time, the evaluation team found evidence of unacceptable religious influence at the university.³⁹

Following this negative evaluation, the HEC blocked government support payments to Fatih University on February 28, 2001, the only university in Turkey that requested funds but did not receive them.⁴⁰ In March 2001, the HEC ruled that Fatih University should not admit further students for the 2001-2002 educational year, warning that Fatih University would have to close if it did not provide improve “practices and situations.”⁴¹ The ruling placed a strong emphasis on alleged “breaches of the dress code”⁴² that the university authorities interpreted as an order to implement without exception the ban maintained by the Turkish authorities on the wearing of the headscarf. The university appealed to Ankara Administrative Court No 3, and on May 29, 2001, the court overturned the HEC’s decision. The HEC complied with the court’s decision and students were entitled to enroll at Fatih University for the 2001-2002 educational year.

The HEC’s threatening maneuvers appear to have been aimed to bring Fatih University into line on the headscarf ban, which is discussed more fully below. Professor Şerif Ali Tekalan, administrator of Fatih University, told Human Rights Watch: “On the headscarf issue, I can say that our university is no different from the other state universities of Turkey in implementing the decisions. Students with headscarves are first being warned and then if necessary they are given penalties. On January 2001, the HEC declared to all the Universities in Turkey that students with headscarves should not even enter the campuses. We are implementing this decision.”⁴³

Assessment of the Draft Laws on Higher Education

In its present form, the Justice Ministry’s draft law on higher education will perpetuate the HEC as a guardian of political orthodoxy—most importantly because they leave the constitutional restrictions on academic freedom untouched.

In fact, all four drafts commit higher education to national unity, “contemporary” values and secularism—concepts that in the past have provided grounds for persecuting supposedly wayward individuals and institutions. The Inter-University Council’s draft, for example, states that one aim of the education system is to produce “individuals … who accept the Turkish Republic and its people as an individual unity.” All three drafts also bind the higher education system to promote Atatürkist principles. The Justice Ministry’s July 2003 draft makes seats of learning responsible for “establishing in students a service consciousness allied with Ataturkist nationalism in line with Atatürk’s principles and revolutions.”⁴⁴ National unity, secularism, and Atatürkist principles may be very important ideals in Turkish society, but committing an institution of inquiry to any particular set of political views opens the way to political steering, and permits academics to be challenged on the grounds of ideological orthodoxy.

All four drafts continue the arrangement whereby criminal investigation and prosecution of staff and HEC members for their activities related to education are subject to an initial internal investigation under HEC authority which may withhold permission for the judicial investigation or prosecution to continue. This presents a potential obstacle to the collection and protection of evidence and constitutes an infringement of judicial independence. It offers immunity against scrutiny and prosecution that is unhealthy for a public body. Similar provisions for the protection of security force members against prosecution for ill-treatment, torture, and unlawful killing were recently abolished.

The Justice Ministry’s July 2003 draft actually increased government control over the HEC by increasing the number of members selected by the Council of Ministers from seven to eight, and reducing the number appointed by the President of the Republic from seven to two.⁴⁵ This, combined with measures such as giving the Education Minister the right to call and automatically chair extraordinary meetings of the council⁴⁶ provoked alarm in some academic quarters who fear that such arrangements would further erode the independence of universities and increase the risk of clientelism which has long plagued Turkish institutions.

The Justice Ministry’s May 2004 draft sets the Council of Ministers’ nominations and the President’s nominations at five each, though this may change, as, in its current form, it also includes nominations by the Chief of General Staff. The special right of the Education Minister to call meetings is omitted, but his status as automatic chair of the meetings is retained.⁴⁷

The centralized control of education by a body largely appointed by government authorities with an ideologically prescriptive mandate, compounded by frequent violations of due process and arbitrary decision-making, violates international legal protections for academic freedom. As stated at the outset, the tradition and culture of respect for scholarly independence is the strongest foundation for academic freedom, and legislation alone cannot repair the damage inflicted over the past quarter century. The government must legislate to create appropriate systems and viable safeguards, but it must also use its powers of appointment not to extend its power base but to nurture a varied college of academics who are able to work in an atmosphere of trust to improve and protect the university system in the future. In a public statement on September 26, 2003, the HEC called for “a healthy process of discussion” before moving to legislation. The suggestion was a valuable one, and the Inter-University Council draft and the HEC president’s draft emerged from this discussion. Unfortunately in their current form, they do not remedy the shortcomings of the Justice Ministry’s draft, or secure the future freedom and independence of Turkey’s universities.

Recommendations on Academic Freedom

Human Rights Watch recommends that the Turkish government should:

• Remove constitutional restrictions on academic freedom, particularly those contained in articles 130 and 131 of the Turkish constitution.

• Remove any language from the law on higher education that may permit punitive treatment of academics for the political orientation of their research and teaching.

• Ensure that the legislation on higher education effectively protects the principle of institutional autonomy in Turkey’s universities; that is:

• Limit the HEC’s authority to co-ordinating long-term planning of higher education.

• Allocate tasks other than planning and co-ordination to the jurisdiction of the Inter-University Council and individual university management authorities, which should develop study and research on the basis of academic merit alone.

• Within the framework of strictly academic authority, expand the jurisdictions of university senates, executive boards, faculty boards and faculty executive boards;

• Safeguard the autonomy and scientific independence of universities, enabling them to function as institutions of education and research.

• Encourage universities to respect minority languages and cultures.

• Remove military members from academic oversight committees.

• Abolish HEC academic board tribunals other than for instances of academic infractions such as plagiarism.

• Ensure that future legislation safeguards respect for tenure, and includes fairness procedures that minimize unfair or prohibited criteria (discrimination on grounds of gender, ethnicity, religion, political opinion) in appointments and disciplinary proceedings.

• Not place any reservation on Turkey’s ratification of the ICESCR that might prejudice academic freedom.

• Remove restrictions on entry or employment in higher education from academics and students expelled from higher education since 1980 other than for reasons of gross violations of academic ethical standards or criminal activities.

• Remove HEC authority to block judicial investigations and the prosecution of university employees and HEC members.