The complex spread of religions around the world has often been the core reason behind major disputes. Whether it be the possession of territory or dispute regarding religious monuments, some of the longest and the deadliest conflicts have seen religion as their core perpetrator. On similar lines falls the Hagia Sophia dispute; a well-known dispute that has been a bone of contention for over five centuries between the Christians and Muslims. The historical monument that had the distinct whiff of both a mosque and a church, was declared to be used as a museum in 1934 by the then cabinet under Kamal Ataturk, the founder of the Turkish Republic.
However, in a shocking move as per Turkey’s President Tayyip Erdogan promise, which was to convert Hagia Sophia from a museum to mosque, Istanbul’s Hagia Sophia has been opened to Muslim worship after a top court ruled that the building’s conversion to a museum by modern Turkey’s founding statesman was illegal, thereby taking away its previous status of a museum and converting it to a mosque.
The dispute over Hagia Sophia is one in the chain of many such historical judgments promoting majoritarian religious views, which have become a trend if we go by some recent cases. Whether it be the Ayodhya Dispute of India or the present case of Hagia Sophia, the finer aspects of the Rule of Law, i.e. restriction of the arbitrary exercise of power by subordinating it to established laws, are being compromised or diluted by the authorities around the world in order to satiate the faith of a majority community. What’s common among all these incidents is the essence of majoritarianism that can be seen at the root of all judgments. When we consider the concept of the Rule of Law, we find that it requires people to be governed in a manner that is equal, just, and non-arbitrary in every sense. This objective is generally sought to be realized by turning authorities accountable to law and working towards a fair application and enforcement of such limitations. An equal treatment shall mean that no discrimination is made on the basis of their majority, minority, religious, etc. affiliations.
‘Rule of Law’ as a concept that is not alien to the Turkish Constitution, with it being specifically laid down in Article 10 of the constitution. Therefore, it is very surprising to see such judgments being delivered and acted upon, which are a clear violation of the Shariyat Law and the articles of the Turkish Constitution itself. When we read the laws of Shariyat, it is mentioned that for a building to be declared a mosque, it needs to be either donated or purchased and such a building cannot be occupied by force. But when we consider the historical accounts we find that indeed it was occupied by force, thereby annulling its status of a mosque. Moving from religious laws to constitutional law, as per Article 24 of the Turkish Constitution, every citizen is guaranteed freedom of conscience. But this decision has led to the minority Christians being deprived of their monument, as post-conversion it would loose its secular spirit and would be completely a religious monument.
As per Article 35, the Right to Property is guaranteed by the Turkish constitution. As per the provisions of this right, no one shall be dispossessed of their property except in public interest. But, here the minority Christians have been deprived of their commonly inherited monument of heritage, which is clearly a violation of their rights; as they have been deprived of their ease of visiting Hagia Sophia owing to it change in status to a mosque which places restrictions on visit according to customs. It also becomes pertinent to note that Turkey had declared itself as a Secular state as per Article 2, and for achieving this it had explicitly decided to drop its theocratic nature by adopting a new constitution altogether. Thus, in view of these provisions of the Constitution as well the Shariyat Law of Muslims, conversion of Hagia Sophia into a mosque is prima facie illegal because firstly, it was a complete negation of Secularism that Turkey stands for, and secondly, it clearly violated freedom of conscience and right to property.
In Turkey, as per Article 10 of their Constitution, ‘Rule of Law’ has the same meaning as in accordance with more general international understanding. However, the political situations in Turkey have made it something that exists, but as a mere documented principle and not something concrete in the application. Though, historically Turkey had cemented its image as a secular Muslim Nation, over the years its policies had displayed a stark contradiction to this spirit. The present case is a mere progression of the growing Islamic fervor in the country and is a clear violation of laws and an attempt at advancing the Islamic Propaganda of Erdogan. During this decade-long rule of Erdogan, his majoritarian policies and stances which stand in stark contrast to minority rights have inevitably presented the clearest response to the question, “Is the rule of Majority above the Rule of Law?”. The answer is clearly ‘No’. Rule of Law in its true sense requires a society to be ruled by law alone, and not by the arbitrary and self-interested decisions of the majority. However, with the current issue of conversion of Hagia Sophia, this belief has suffered yet another major blow. Somewhere, the pulse of ‘Rule of Law’ seems to be fading in the backdrop of rising majoritarianism.
Whenever such majoritarian decisions are taken, they are seen as by the international community as decisions that seek to prevent an immediate crisis, and, insofar these have been true, as there has been no outbreak of violence, nor any reports of bloodshed in the aftermath of the decision. In the larger picture, the bigger issue that such judgments involuntarily invite is that of minorities losing their faith in the institution of the Judiciary. The political ramifications of these kinds of majoritarian appeasing judgments are not the ones that will be immediately visible, and won’t lead to an apocalypse altogether. The conversion of Hagia Sophia would be seen as yet another normal day to day affair, but the common sense of the ‘Secularism’ for what Turkey stands will shift altogether. The future generations would see it justified and reasonable, for those counted in the majority have a right to have their sensibilities respected, to have their beliefs deferred to by others.
At a time when the democratic governments around the world have been turning unrestrainedly and hegemonically majoritarian, vulnerable minorities have nowhere to go than repose their faith in the courts. However, looking at the growing menace of such majoritarian fervour even in court judgments, it looks a very daunting task to foster institutional faith in the efficacy of justice delivery, for the actions speak contrary to the words. It’s high time that people raise this concern and take actions to stop future instances of such open mockery of Rule of Law in Court of Majority.
The present case of conversion fails the test of Constitutional Validity under provisions enscribed in the Turkish Constitution, as well as the Rule of Law. The International community continues to remain a silent spectator and refrains from intervening into the ‘Internal Affairs’. But at the same time, it is very important to realize that such violations are never an internal matter but are precedents to something worse. It’s the responsibility of the people to rise against such majoritarianism and protect the rights of minority for as humans we cannot afford to bear another scar of the holocaust. In this venture of ours, a strict application of ‘Rule of Law’ will be a game-changer for as long as we fail to treat everyone equal, we may never be at peace.
* Student (Law); Faculty of Law, Integral University, India.
** Student (Law); National University of Study and Research in Law, India.