Featured Hagia Sophia: A Legal Analysis

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Hagia Sophia; A Legal Analysis

Recently the Turkish top court had announced its verdict where it declared the conversion of the Hagia Sophia mosque into the museum in 1935 by President Kemal Ataturk. The verdict has seen both condemnation as well as condonation and some have even declared it as the death of secularism in Turkey. This article will not indulge into discussions of such nor as to whether there existed political motives behind Hagia Sophia decision or not. What it will look to analyze is the legal standing of the decision and what legal mindset did the Turkish court utilized when they announced the decision. The history of the Hagia Sohpia is no secret. It was part of the Byzantine Empire’s central city Constantinople and built as a Church and this was as such till 1453 (ignoring the small periods of interruptions such as the Latin occupation of Constantinople). From a period of 1453 to 1935, the Church was converted into a Mosque and Hagia Sohpia became the Mosque of Ayasofia and became the central symbol of Ottoman rule which worked as a religious congregation as well as religious school for a period of time. This was until 1935 when Kemal Ataturk and his cabinet passed a decree declaring Ayasofia to be a museum and it remained such till 2020 when Erdogan declared efforts to bring back the mosque. This has been going on since 2018 and by 2020 the matter was resolved with a court decision that declared in its judgment two major points.

1. That the Cabinet decision in 1934 that ended its usage as a mosque and defined it as a museum did not comply with laws.
   
   
2. That the settlement deed had allocated it as a mosque and its usage outside of such character is not legal.

These two were the major reasons behind the decision to declare the 1934 decision of the Cabinet and Ataturk as void. Now let us take a look into the first reasoning of such.

In 1934, the country was not home to the current constitutional structure nor was it home to the 1961 Constitution which was considered the most secular form of Constitution the country had. The country was home to the 1924 Constitution which had replaced the 1921 Constitution and it was this famous constitution, drawn after the Treaty of Louisiana 1923, which ended the Ottoman Caliphate and gave rise to the Republic of Turkey. It granted powers to the President and the Grand National Assembly, attempting to strike a balance between the two. According to the 1924 Constitution Article 26 stipulated the powers of the Grand National Assembly which included ‘holy law’. The term ‘holy law’ cannot be described as law in general since immediately after the next powers is the creation, amendment and abrogation of law. This highlights that within the power sphere of the Grand National Assembly, there existed the duty to manage ‘holy law’ and there existed the capability to legislate law. The conversion of the Hagia Sophia as a museum was done through a cabinet decision yet such conversion would have meant that the status of a religious site would have changed which the Article had given to the Grand National Assembly. The doctrine of Laicism was adopted into the Constitutional framework in 1937. It must also be stated that the Courts most likely took into account the Section 5 of the Constitution as well which took into account Freedom of Religion and it is a said principle that the Fundamental Rights and Freedoms are the rights which neither the state can abrogate nor set aside besides the procedure given within the Constitutional setup. The freedoms shall always exist and these freedoms are not just for the minority but for the majority as well and these freedoms are protected by courts all over the world and the state cannot interfere in them.

The protection of religious places is something Turkey has enshrined in several Constitutions that have come to pass and this freedom has been allotted to all its citizens. The decree of converting a frequented mosque where religious practice was common and religious studies were common as well, to any other form would be considered as a breakage of Turkey’s own freedom of religion law which is enshrined in the Constitution of Turkey be it 1924, be it 1961 or be it 2010.

The two most likely reasons the court looked into were the Freedom of Religion and the fact that Holy law was placed under the Grand National Assembly and the establishment of the ‘Diyanet isleri Baskanligi’ which in English is the directorate of religious affairs through the Grand National Assembly, under whom came the management of all mosques of the country which included the AyaSofia. The GNA could not have provided nor created such a department if it did not have the legislative authority over the religion and all things concerning the religion.


The second argument the court took concerned whether the State had the authority to change the nature of AyaSofia from a mosque and into a museum. To understand this we must first understand how the Hagia Sophia became the mosque of AyaSofia. After Sultan Mehmet conquered Constantinople in 1453, he looked to take possession of the Hagia Sophia and while had made the royal decree that post the three days of the fall of the city, the entirety of the city would come under state property however this did not mean that he became the owner of all religious places since he had also allowed for the protection of religious places. Post his Azan at the Hagia Sophia, he wished to convert it into a mosque and to do that, he purchased the property from his personal wealth and then converted it into a mosque. Now this act made it that the Sultan had become the legal owner of the property and as such he could anything he desired to it in accordance to personal property law. His conversion of the Church into a Mosque thus gained legitimacy in the eye of the law. Now we must understand that many would argue based on morals but in law a person has absolute right to do what he wants with his personal property and his decision to convert his personal property was legal and this has been highlighted in this decision. The court did not look into concepts of religion or Right and Left wings but upon the legal standing of such acts. Now in the ‘Treaty of Louisiana’ the Republic of Turkey was declared as the successor state to the Ottoman Empire which means that the Republic of Turkey is the rightful inheritor of all treaties that the Ottoman Empire partook in be it internal business or external which means that the purchase of the land was recognized by the Republic of Turkey. The court took this into cognizance as well. One of the most interested aspects that the judges could have taken into consideration was the easement right that the Muslims had enjoyed all these years. The sultan had bought the Church and turned it into a Mosque thus no easement right could be claimed by those that frequented the Church since the Sultan had claimed the area with the desire to build a mosque and immediately did so thus the doctrine of Easements by Estoppel could not be applied here since both party perfectly knew that the Church would no longer function as a Church but would function as a Mosque. From 1453 to 1935, the Muslims have used that place as a mosque and such a duration of usage creates certain rights upon the land as easement and such uninterrupted easement could not be so easily removed since neither was there any abandonment nor was there any expiration nor was there any release. Easement rights are recognized in the Turkish civil code most importantly in Article 786 of the civil code. The Turkish administrative court did not look into easement rights but did mention that for a long period of time, the area had been a mosque and as such its conversion could not be so easily done.

While the Treaty of Louisiana did indeed state that Turkey must allow freedom and protection for its non-muslim citizens however the Treaty of Sevres and Treaty of Louisiana did declare Constantinople as Turkish territory and none of them especially the Treaty of Louisiana, mentioned the Hagia Sophia which means that they provided their approval to the conversion as well as recognized the sovereignty of Turkey upon Hagia Sophia thus neither Greece nor the other signatories nor the states that recognized Turkey post the Treaty have any locus standi upon the matter since they have recognized the sovereignty of Turkey on this issue.

The events that are unfolding in Turkey, do indeed create cause for concern for many and it is a very controversial issue however to those that are dissatisfied by the courts decision, it must be conveyed that whether in 1961 or in 2020, the court would have passed the same judgment. The legality of the conversion was not based soundly on law and had it went through proper procedures by an act of the GNA where it would have stipulated that as Mehmet had purchased the land, the Republic of Turkey has purchased the AyaSofia and through this ownership of state, does the GNA through the constitutional authority given in the Constitution of 1924, convert it into a museum, then perhaps the case for its status as a museum would have been stronger. If the courts had taken a contrary opinion then they would have had to answer to as to why the Purchase was illegal and the conversion into mosque illegal as well and if AyaSofia was illegally converted then what about other areas in Turkey which had seen similar conversions? Then ofcourse the question would have been about whether state can interfere into Waqf land or into other religious places as well and where would that come under Freedom of Religion and lastly does the Cabinet and the President hold such powers where they can declare Religious places and lands into such enterprises and should the state be given such powers of conversion? The courts took a legal stand.

The battle between religious Turkey and secular Turkey based on Kemalism and Laicism is entirely the argument between the people of Turkey and in these times any step would be seen through this lens yet blaming the courts for a legal decision is not fruitful. It is highly doubtful that the courts would have given any decision to the contrary whenever such would have been challenged.