Introduction
In
the crises-ridden events that have led to the early general parliamentary
elections in July 2007, the most important topic in Turkey’s public debate has
been the need for a new and democratic constitution[1].
Justice and Development Party (Adalet ve
Kalkınma Partisi, AKP), the party in government then and now, made an
explicit bid in its electoral campaign for a new civilian and democratic
constitution and initiated a process of preparing a draft constitution for
extensive public debate. With the single exception of the main opposition in
the parliament, the Republican People’s Party (Cumhuriyet Halk Partisi, CHP), all other parties including the
ultranationalist Nationalist Action Party (Milliyetçi
Hareket Partisi, MHP) and the party representing predominantly the Kurdish
problem Democratic Society Party (Demokratik
Toplum Partisi, DTP) and most of the independent deputies were supportive
of this idea of a new and democratic constitution.
July 2007
elections produced a parliament with a representative quality unprecedented
since the 1960’s in Turkish history. The electoral participation rate was over
85 percent and despite the existing non-democratic 10 percent national
threshold, more than 87 percent of the total votes cast were represented in the
parliament. All in all, the 2007 TGNA, which is still the existing parliament,
was able to represent almost all political ideas and positions in Turkish
politics. Although the 2007 TGNA had a very strong representative power and a
very strong social legitimacy, the attempt at providing Turkey with a new
constitution failed. If one reason behind this failure was the AKP’s
unjustified majoritarian attitude that contributed to the already existing
polarization between its supporters and diehard secularist state elites, the
other is the equally unjustified intervention of the military and civilian
bureaucracy in the political process.
Let me open this
final point briefly. Beginning just before the upcoming presidential elections
in April 2007, the CHP, Ahmet Necdet Sezer, then incumbent president and
General Büyükanıt, then Chief of General Staff, delivered public statements
reflecting concerns about “the hidden Islamist agenda” of the AKP government.
Following a public statement by the main opposition leader claiming that “the
turban –a Turkish term for Islamic headscarf or hijab– cannot make its way to Çankaya (the presidential
residence)”, Sezer, in an inaugural speech he delivered on 11 April in a
ceremony at Warfare Schools (Harp
Akademileri) in Ankara, referred to the article 5 of the Turkish
Constitution stipulating that “the state has the duty to protect the Republic”.
The next day, General Büyükanıt, addressing the journalists in a press
conference and after stating a not very sympathetic attitude against the EU and
the USA, defined in general terms the qualifications he wanted for the next
president: The president of the Republic “should be loyal to the principle of
laicism not in words but in essence”. Two days later, on 14 April, a series of
public demonstrations organized under the banner of “Republican Meetings” (Cumhuriyet Mitingleri) to prove that the
concerns about the AKP’s hidden Islamist threat to the secular Republic enjoy
social support of considerable significance. In 27 April, TGNA convened to
initiate the process of electing the President and Abdullah Gül was the only
candidate. According to the Turkish Constitution, a candidate must garner 367
votes to be elected president in the first and second rounds, whereas an
absolute majority (276 out of 550 total seats) would suffice in the third and
fourth rounds. Manifesting the concerns over the AKP threat to secularism and
assuming that the Presidency of Abdullah Gül with a first lady with hijab in Çankaya is going to be the end
of the Republic, CHP filed immediately a case in Turkish Constitutional Court
(TCC) to halt and annul the presidential election process, arguing that the
convention of the TGNA without the presence of at least 367 deputies is
unconstitutional. In the same day, towards midnight, there appeared a
“memorandum” in the internet web site of the Turkish military (“the
e-memorandum”), with a very strong conclusion that anyone who is not
reiterating Atatürk’s statement, the founding father of the secular Turkish
Republic, “how happy who is who says that he is a Turk” is “the enemy of Turkey
and will remain as so.” Three days later, TCC made one of the swiftest
decisions in its nearly fifty years history and declared the presidential
election process is unconstitutional and therefore must be stopped. The TCC
violated explicitly the limits of its jurisdiction set out in the Constitution,
and thus entered in the process of events as a major political actor, taking
sides with the CHP and the military.
The constitutional crisis thus emerged
has been resolved partly by AKP’s opting for early elections in July, instead
of November and amending the constitution to adopt a new method for electing
the president by a popular vote, leaving untouched the underlying issue of the
role of the military and civilian bureaucracy in Turkish democracy. Any
democratic solution to this issue referred time and again as “bureaucratic
guardianship” requires certainly a constitutional renewal. It should be noted,
however, amending the constitution to favour a more democratic institutional
framework will not suffice, because even though the present Constitution has
been amended several times between 1987-2006, resulting partly in a more prima
facie civilian democratic control over the decision making processes, the
practice of bureaucratic guardianship continues. This has become evident when
TCC turned down in 2008 the constitutional amendments regarding the ban on
women students’ headscarves in higher education and when the same court closed
DTP.
Thus, Turkey’s
constitutional crisis continues. Events suggest that there happens to be a
Schmittian dimension which causes the protraction of the crisis, making
Turkey’s politics vulnerable to a chronic pathology. Based upon his criticism
of purely formal idea of rule of law in a parliamentary democracy, Schmitt
seeks to develop a more substantive understanding of democracy. His conclusion
in this respect is the very idea that constitutions are based upon the will of
a people who define themselves as belonging to a “national” community. [2]
In this sense Carl Schmitt is sometimes regarded as the true theorist of the
modern nation-state[3] in his
conceptualization of the state as the concretization of the “political” will of
a collectivity (the Volk –nation- as
“us”), hence, for Schmitt the existence and legitimacy of nation-state
constitution is dependent upon an underlying political decision reflecting the
“constitutional identity”[4]
of the state. As reflected in the above-mentioned “midnight e-memorandum” of
the Turkish military and in the TCC decisions mentioned above, Turkish
Constitution has an underlying political decision made by the founders of the
Republic in the 1920’s and the 1930’s that Turkey is founded as a nation-state
whose identity is defined by “Turkishness” and “secularism”. Without going into
a detailed account of the historical background of this political decision, it
should suffice here to say that the present crisis and the potential for it to
evolve into a chronic pathology stems from this founding decision on an
idealized homogeneous national identity which is in sharp conflict not only
with the existing heterogeneity of Turkish society, but also with the idea of a
multicultural democracy.
In the light of
the foregoing, this paper aims at focusing on the ongoing process of
transition from a “homogeneous national identity” which has produced an
accompanying notion of “equality as sameness” to a “multiculturalist democracy”
that requires a new constitutional-legal system adaptive of a new conception of
“equality in difference”[5].
The main line of argument is as follows: First a brief evaluation of the
Kemalist foundations of the Republic would be provided to establish how the
"official ideology" in Turkey conceives of the state-society
relations in Turkey. An evaluation of the persistence of this official ideology
under the facet of a multiparty politics denying any form of genuine social and
cultural pluralism in politics is provided in the second part. The third and
concluding part of the paper focuses on the rising public presence of the
Kurdish problem, forcing Turkish politics to change its constitutional
(legal-normative) identity, aided most notably with the process of change to
become a full member of the EU. To conclude, the paper argues for the inevitability
of a radical change in Turkish constitutional identity to include a public recognition
of muliculturalism through acceptance of linguistic and other cultural rights,
but leaves open the question how this change in constitutional identity will be
realized.
The Foundations of the Kemalist Constitution: From the
Predominance of Religion (Islam) to a Predominantly “Ethnic” (Turkish)
Nation-State
The word Kemalist was used
first in the days of “National Struggle” (early 1920’S) to denote the followers
of Mustafa Kemal, later to refer to those deputies in the TGNA known as the
members of the “first group”. Before 1930’s the term did not have much
ideological content. After a series of reforms beginning with the abolishment
of the sultanate in 1922, and the proclamation of the Republic in 1923,
abolishment of the Caliphate, banning of Islamic brotherhoods, tarikats,
medresehs, unification of education, abolishment of the Ofiice of
Sheikh-al-Islam and the foundation of the Presidency of Religious Affairs, all
in 1924, and culminating in the adoption of the Civil Code (1926), abrogation
in 1928 of the constitutional provision promulgating that the religion of the
state is the religion of Islam, adoption of Latin scripts in the same year, a
single –party regime was consolidated.
In an overt rejection of
social and political pluralism and with the adoption of a Durkheimian notion of
social solidarity, the single-party regime aimed to justify its rule by
defining itself as the “(republican) people’s party” (CHP) which regarded the
people as a unity of different occupational groups who are attached to one
another on the basis of mutual need. What ensued from this practice was an
ideology with historically rooted elements refashioned according to the
requisites of a single-party rule and the ideology was named in the official
documents of the CHP as “Kemalism”. In the official party programme of 1935, it
had been written that “the outline of our ideals not only for a couple of years
but also comprising the future” was labelled Kemalism as made up of “six
principles” symbolized with six arrows in the party emblem (still retained by
today’s CHP, albeit with modified definitions of the principles).
The essential aim of the
Kemalist ideology and practice was to create a unified nation-state, and the
important principles to that end were the principles of nationalism, populism
and secularism. The principle of nationalism as defined in the official CHP
documents of the 1930’s reflects a clear emphasis on the aim of creating a
“modern nation-state” whose fundamental purpose is to “walk on equal footing
and in harmony with other civilized nations on the road to progress and
development albeit preserving the specificities of Turkish society and its
thoroughly independent identity.”
A very crucial point here is
reflected by the phrase “preserving the specificities of Turkish society and
its thoroughly independent identity.” This phrase gains meaning if we consult
other documents like the civic education textbooks of the 1930’s authored by
Atatürk himself. According to this secondary school textbook definition the
nation meant “unity” in “political existence, language, origin and race,
history and morality”.
This definition of nation as
a unity does not reflect certainly the socio-historical reality, but rather
designed to function as a basis of legitimacy for the new “republican” state. A
new form of polity that emerged out of the ashes of a multi-ethnic and
multi-religious empire, the Turkish republic tried to forge a new national
identity by using the relatively powerful state apparatus. From the perspective
of Ernest Gellner’s analysis of nationalism as a type of “marriage” between the
nation (culture) and the state, Kemalism remains to be seen as a form of
nationalism that falls under that category where a state apparatus exists in
the absence of a national culture. Hence the need for building up a national
culture that would provide for the grounds of legitimacy of the new political
order.
The dilemma here is that, in
contrast to the Ottoman efforts to prevent the process of dismemberment by
creating the idea of Ottomanism (Ottoman citizenship) and under the historical
determination of the war, the new republican establishment had to opt for Islam
or Turkishness, or both as the fundamentals of the new identity. In the early
1920’s Islam has been picked as the most powerful pillar of the newly emerging
political organization while the Kemalists emphasized Turkishness from the
1930’s onwards. During the troubled days of the national struggle, Islam was
the dominant ideological element. The Ottoman-Turkish term “millet” meaning “religious community” as
in the “millet system” has been used
widely and “millî mücadele” (national
struggle) meant to be a struggle to liberate the office of the Caliphate and
the Sultanate from the invasion of the infidels. The national borders in the
“national pact” (misak-ı millî) made
first by the Ottoman parliament and adopted later by the Grand National
Assembly in Ankara, were also determined according to the criterion of
religion. In the Lausanne Treaty the majority-minority distinction was made
according to religious belief and linguistic, religious, educational and other
cultural and civil rights of “non-Muslim minorities” were guaranteed. In conformity
with the Lausanne Treaty, an agreement with Greece to exchange populations was
made in 1924, which resulted in further Islamization of Anatolia, a process
that had had a tragic beginning with the Armenian “Great Catastrophe” of 1915.
Likewise, Atatürk’s personal speeches on several occasions emphasized also the
unifying power of Islam. In an oft-quoted speech in the GNA he said:
“Gentlemen, with the request of not bringing the matter
[of the problem whether Turkishness or Islam is going to be the principle in
government -LK] to the fore once again, I would like to present on or two
points. The persons who are purposefully present here to make up the sublime
Assembly of yours are composed of not only Turks, not only Circassians, not
only Kurds, not only Laz. But they are a combination of elements of Islam, a
genuine convention. Thus, the purposes which this sublime delegation represents
and which we try to save the rights, lives, honour and glory does not only
pertain to one element of Islam. They belong to a mass composed of elements of
Islam. All of us know that this is so. One of the principles and probably the
first principle that we have always adopted is that as regards the problem of
the determination and fixation of borders, we said that our national borders
pass through the south of Iskenderun leads to the east and comprises Mosul,
Sulaymaniyah and Kirkuk! In fact, in the
north of Kirkuk there are Turks as well as Kurds. We did not differentiate
them. Accordingly, the nation whose
protection and defence we are endeavouring for is composed not of course by one
element. It is a combination of various elements of Islam”[6]
(emphases added).
This important statement shows
very explicitly that in the formation of the new nation-state, Turks and Kurds
had been treated as equally valued ethnicities within the same cultural (i.e.,
religious) framework. This had been the case even when the debates over the
constitutional definition of the citizenship were taking place in the TGNA.
Article 88 of the first (1924) constitution of the Republic stipulated “the
people of Turkey, regardless of religion and race, as regards citizenship are
called Turks.” Although the wording of the article might seem at first sight to
support the interpretation of the Kemalist idea of Turkish citizenship as a
“civic” and “legal” bond devoid of ethnic and religious undertones between the
individual and the state, the real meaning behind the scenes is very different.
The debates in the TGNA
regarding the wording of this article are quite revealing in this respect. A
deputy, Hamdullah Suphi, objecting the provision initially proposed as “the
people of Turkey, regardless of religion and race are called Turks” argues that
there are “non-Muslim minorities” in society and it is inadequate, if not false
altogether, to call them Turks. For him and those sharing his views, there had
to be a way to define Turkish citizenship without including these “non-Muslims”
as Turks. The final solution was to add three words “as regards citizenship” to
the provision.[7] It is
interesting that during the debates, only the status of non-Muslims was
discussed, leaving aside other, most notably Kurdish ethnicities. Even though
this may be taken to mean as if the Kurds have not been excluded from
citizenship, it is certainly problematic in that there is now a distinction
between “Turkishness as citizenship” and “Turkishness as a status more than
citizenship”[8].
This distinction, as Yeğen shows persuasively, functions on the one hand to
exclude non-Muslim minorities from the actual practice of citizenship[9]
and paves the way for the forceful assimilation policies on the other.[10]
Not only the normative
framework of the constitutional-legal system adopted after the Republic, but
also the policies implemented by the single-party (CHP) government from the
second half of the 1920’s until the late 1940s, unfold the intentions of the
Republican establishment to bring about a homogeneous ethnic nation-state. In
the words of Michael Gunter,
“[f]ollowing the nationalist victory, a series of steps
were taken in an attempt to eliminate the Kurdish presence in the new Republic
of Turkey through legal fiat and gradual assimilation. On March 3, 1924, for
example, a decree banned all Kurdish schools, organizations, and publications,
as well as religious fraternities and medresehs,
which were the last source of education for most Kurds. Deportation of Kurds to
the West began after the Sheikh Sait rebellion was crushed in 1925. The purpose
was to dilute the Kurdish population in order to facilitate its assimilation.
The Kurdish areas were declared a military zone forbidden to foreigners until
1965. In 1928, the entire civil and military administration of the Kurdish
provinces in the east placed under an ‘inspector General of the East’.”[11]
The historical account
of the Republican Turkey’s policies regarding the issue of ethnicity and
religiosity as “exclusion” for non-Muslims and “forceful assimilation” for the
Kurds refutes the official (predominantly Kemalist) narrative of history and
thus challenges the constitutional identity of the state. According to the
Kemalist narrative, “Turkishness as citizenship” provides equal rights and
liberties to every Turkish citizen and does not discriminate against any ethnic
or religious identity in Turkish society. As far as the presence of Kurds as a
people with distinct national identity and culture is concerned, the official
ideology has always taken pains at proving the argument that Turks and Kurds
have been so inseparably mixed that it is impossible to distinguish one from
the other. Leaving aside the extreme “Turkist” absurdity that “Kurds are, in
fact, mountain Turks”, this idea of “inseparable mixture” depends on an
interpretation of “Anatolian culture” as one and the same in its basics that,
in spite of linguistic differences, Turks and Kurds share the same “national
(traditional) culture”.
In a similar vein, Metin
Heper’s recent study proposes an “alternative paradigm”. For Heper,
“The [Turkish] state has not
resorted to forceful assimilation of the Kurds, because the founders of the
state had been of the opinion that for long centuries, both Turks and Kurds in
Turkey, particularly the latter, had gone through a process of acculturation,
or steady disappearance of cultural distinctiveness as a consequence of a
process of voluntary, or rather unconscious, assimilation.”[12]
Having subscribed to the official narrative, Heper’s
alternative paradigm reiterates “that due to the centuries
old mutual acculturation on the part of Turks and Kurds, . . . ethnicity would
not be considered as the primary cause of troubles.”[13]
As Gunter has already pointed out, Heper’s attempt at rejecting the forceful
assimilation thesis fails itself, because Heper simply replaces “forceful
assimilation” with “prevention of de-acculturation”, which in the end means
“assimilation”.[14] All in all,
in the formative years of the Republic, Kemalist policies with the aim of
creating a new national identity as in the form of “Turkishness” required the
suppression of all non-Turkish identities to make “Turkishness” as a kind of
overarching identity or a “metaidentity”[15].
Although this process of
neglecting the existence of a Kurdish identity continued during and after the
transition to a multi-party politics in 1945, Kurdish rebellions of the
single-party era have been stalled thanks to partially at least a chance the
Kurds have been able to find to feel more at ease with the Democrat Party (DP)
government. As Martin van Bruinessen has written,
“The Menderes [DP -LK]
years (1950-60) brought a certain measure of liberalization and relaxation of
the policy of forced assimilation. Most of the village police posts were
abolished. The government tried to keep the area under control by co-opting
Kurdish tribal and religious leaders and landlords. Through the party system,
these local authorities allied themselves with political forces in the
capital.”[16]
The
relative liberalization of the political situation under DP rule between
1950-1960, however, did not alter the legal framework that endorsed the
Kemalist idea of establishing a homogeneous nation defined exclusively
“Turkish”. It will be illustrative at this point to emphasize two aspects of
the Kurdish problem in Turkey. First is the fact that the relative
liberalization Kurds enjoyed under DP rule seems to be restoration under new
circumstances of the relative autonomy the Kurdish tribes used to have under
Ottoman rule. So, this was not liberalization in the true sense of the term
meaning the recognition of the fundamental human rights including the cultural
rights of an ethnic identity. Liberalization in this period meant the formation
of an alliance albeit a loose one between the DP leadership and the local
(mostly tribal) leaders of the eastern and southeastern provinces. The second
point related to the first is that in order that a true liberalization takes
place, there had to be a fundamental change in the constitution of the
Republican state. Here I refer not only to an inevitable change in the
definition of citizenship, but also a mutation in the fundamental idea of
conceiving the state as the expression of a unitary will of the nation. It
should be noted that neither the DP had any intentions to modify the Kemalist
constitution, nor any demand in that direction was made from the side of the
society, most notably the Kurds.[17]
When the DP period ended with
a military putsch in 1960, the first in Republican history, the authors of the
new Turkish Constitution (the 1961 Constitution) redefined the new nation-state
identity in stronger terms reflecting this time a more explicit commitment to
“Turkishness”. According to the 1961 Constitution, “Anyone who is attached to
the Turkish State with bonds of citizenship is Turkish.” It is worth noting
here that the same definition retained in the current 1982 Constitution (Art.
66) written once again by the generals after the second military takeover in
1980.
We have to point out that,
between the two military interventions of 1960 and 1980, the Kurdish problem in
Turkey gained a new momentum with substantial sociological modifications.
Having begun with tribal revolts in the Ottoman era, the Kurdish movement
started to represent a “nationalist” ideology with the Sheikh Sait rebellion in
1925. If the 1925 rebellion was the historical breakpoint between the tribalism
of the earlier period and the modern nationalism of the latter[18],
then the 1960-1980 period should be seen as the period of change in the
sociological bases upon which a nationalist movement could be built. Based on
the increasing pace and magnitude of urbanization, the Kurdish movement has
adopted a kind of nationalism with heavy and simultaneous emphases on the
exploitation of the Kurdish people and their struggle for recognition and
liberation.
In due course, the Kurdish
movement relegated the socialistic dimension in its ideology to the background
and emphasized more strongly the dimensions of identity politics defined in its
most compact form as a demand for the public recognition of Kurdish identity.
Leaving aside whether this identity politics requires the establishment of an
independent Kurdish nation-state or not, we can now turn to the ways in which
the Turkish state reacted to the increasing regional popular strength of the
Kurdish movement in its various ramifications in Turkish politics. Needless to
say that the immediate reaction of the Turkish state to the Kurdish uprisings
before the 1980 military coup has taken the form of a struggle against street
violence, within which clashes between various groups on the left and
ultranationalist right had taken place. From within that experience of the
1970s, PKK emerged as the bearer of a Kurdish nationalism which meant a Kurdish
separatism from the eyes of the Turkish state. It is certainly true that the
PKK movement gained societal support not so insignificant that after a
protracted armed struggle against the Turkish military and security forces for
a period of more than twenty-five years, and despite its leader imprisoned in
Imrali (a prisoner island near Istanbul), it still has a considerable power to
influence the public political debate regarding the Kurdish issue.
So far as the Kurdish problem
is not unidimensional, that is not represented by the PKK alone, and thus not
limited with the problem of “terror” and, on top of that, since it is admitted
even by the higher ranks of the Turkish army that “the struggle against
terrorism” must be supported by social and economic measures, we can now turn
to the still existing reasons in the Turkish legal system that prevent a
permanent and democratic solution to this aggravated problem in Turkey.
The
Endurance of Kemalism as Reflected in the Turkish Constitution and in the
“Internal Legal Culture” of the Guardians
The Constitutions
of 1961 and 1982 have followed the Kemalist project in establishing a modern
state based on the principle of nationalism. As noted earlier in this paper,
Kemalist nationalism follows typically the line of reasoning that the state as
a complex of political and administrative institutions must be legitimized in
its ties with the society-as-nation, that is a society as the bearer of a
homogeneous cultural identity.[19]
From within this perspective, two principles, the principle of nationalism and
secularism strike out as the most durable thus essential elements constitutive
of the Kemalist official ideology of the Turkish nation state. Accordingly,
first the 1961 and bater and probably in more accentuated ways the 1982 Constitution refashioned the
constitutional expressions of these ideological pillars of Turkish
nation-state.
What the two
constitutions share in common can be summarized as follows: (1) First
commonality is the new definition of citizen identity. (2) Secondly, both
constitutions endorsed immutable articles in the Constitution and established
guardian institutions that protect the immutables of the Constitution, like the
Constitutional Court, the National Security Council and in the 1982
Constitution a strong presidency. (3) Both constitutions recognized a
constitutional status for the Presidency of Religious Affairs, the 1982
provided this specific institution an extended role in its normative function
as one of the core state organs in
the maintenance of national integrity and solidarity.
First, the
definition of citizen identity. In a rather different phrase from the article
88 of the 1924 Constitution, the 1961 and 1982 constitutions define Turkish
citizenship as “Everyone bound to the Turkish state through the bond of
citizenship is a Turk” (1961 Constitution, Art. 54; 1982 Constitution, Art.
66). Here, we encounter a difficulty in translation. In English there happens
to be a distinction between Turkish and Turk and the distinction is important
because the word Turkish, like words of similar structure, e.g. English,
Scottish, Spanish, German, French, Italian, etc., refer predominantly to the
land and its inhabitants without a predominantly ethnic denomination whereas
Turk includes the same territorial reference only secondarily, putting the
emphasis more on membership in ethnic and thus linguistic community. This shows
quite clearly that the somewhat vague reference to ethnicity in the 1924
Constitution has been made quite visible in 1961 and 1982 Constitutions. This
predominantly ethnonationalist emphasis in the definition of ciziten (i.e.
national) identity has been supported further by specific statutes prohibiting
the public use of Kurdish language enacted by the 1980-1983 military regime. We
have to note that the basic statute prohibiting Kurdish language remained in
force between 1983 to 1991 and final “statute law” residues of this overtly
illegitimate ban on Kurdish has been eradicated only recently.
Although the ban on the public use of Kurdish language
does not exist anymore, thanks in great part to the constitutional amendments
and statute law reforms under EU conditionality, the role of guardianship as
reflected most notably in the upper echelons of military and civilian
bureaucracy remains in force. This brings us to discuss the second dimension of
the Turkish legal and political system established after 1960. I have already
mentioned the reinforced role of guardianship institutions in the Turkish
Constitution of 1982. If one such institution is the National Security Council,
the other is the Constitutional Court. For the purposes of this paper and as a
result of reforms which reduced not only the role of the high ranks of the
military but also the overall significance of the National Security Council in
Turkish politics, I will dwell upon basically the TCC.
Without going into a prolonged discussion about the
role of the judiciary in democracies, we might say that the importance of the
constitutional review of the legislature for “democratic rule of law” is
justified in many undeniable ways. This is true partly also for the TCC,
especially in some of its decisions that endeavoured to enhance the
possibilities of a well-established democratic rule of law in Turkey. In some
and mostly recent decisions, however, the TCC portrays the image of an
institution which does not pay attention much to the universal values and
principles of law as mentioned in international legal instruments like the UN
Universal Declaration of Human Rights, the twin international covenants of 1966
on social, economic, cultural, civil and political rights and the European
Convention on Human Rights. Turkey has signed and ratified all of these legal
documents and more importantly perhaps is that Turkey, a member of the Council
of Europe, also recognized the individual right to appeal to and the
jurisdiction of the European Court of Human Rights (ECtHR).[20]
Although this is the case, Turkey has been a leading
country in having probably the worst record in the history of ECtHR judgements.
Most human rights violations committed by Turkey pertain to those of right to
freedom of thought, conscience and religion and the right to form
associations (Arts. 10 and 11 of
the ECHR). Among these violations party closures have a specific status. TCC
has closed down 26 political parties since its inception in 1962, and 19 of
these closure cases have taken place under the 1982 regime. Among the political
parties closed by the TCC, only the Welfare Pary closure has not been judged by
the ECtHR as a violation of the European Convention. All other who have
recoursed their cases to the ECtHR have been judged as violations of freedom to
form associations and with the exception of the United Communist Party of
Turkey, all these cases included the political albeit partial of course,
representations of the Kurdish problem. All of these political parties were
closed because either their programmes or bylaws or their public political
actions violate and attack against the constitutional principle of “the unity
of the state together with its territory and its nation”.[21]
Without going into a detailed legal and technical argumentation
of the cases mentioned, I wish to stress several points regarding the closure
of political parties representing at least partially certain important
dimensions of Kurdish problem in Turkey. The first point worth mentioning that
all of the parties closed, including the most recent (2009) case of the
Democratic Society Party (DTP)[22],
render impossible a democratic representation of that part of Turkish citizens
with a Kurdish ethnic identity. This is especially true if we take into account
that almost all of the parties have had such a considerable number of seats in
the parliament that they cannot be treated as marginal formations in Turkish
politics. Second point, related with the first, is that in the European system
of party closure, it is emphasized that party closure must be the last resort
and it shall not target parties with relatively strong representative power. A
third and final point is that, according to a 2004 amendment in the Turkish
Constitution, international legal instruments in the field of human rights have
precedence over statute laws if there happens to be a conflict. Even though the
TCC’s record clearly unfolds that such a conflict has been taking place for
sometime now, party closures continue. This contradictory legal practice of the
TCC reflects the fact that the TCC is more concerned with its role as a
guardian institution of the Turkish Constitution than with its rather
“abstract” role as an important safeguard for democratic rule of law.
The role of the TCC as a guardian institute of the
Turkish Constitution gains more visibility when we look into its decisions made
especially in cases regarding freedom of religion and secularism and the
Kurdish problem. Reflection a strong commitment to the Kemalist principles of
secularism and nationalism, the Court rejects all demands including women
students demand to be free to wear headscarves in institutions of higher
education and public political representations of the Kurdish problem.
It is not only the TCC that is haunted by this overstated
concern about the protection of “the indivisible integrity of the state
together with its territory and the nation”[23].
Turkish Court of Cassation (Yargıtay)
is another case in point. In a very important decision made in 2005 by one of
its grand chambers (Hukuk Genel Kurulu-HGK-Grand
Chamber in Civil Law), the Court found an article in the bylaw of a trade union
in the education sector as “illegal”. Article 26 of the Trade Union in
Education (Eğitim-Sen) stipulated
that the trade union “defends the right to education in mother language.” The
decision of the HGK bears significance in at least two respects, one pertaining
to the constitutional and legal order of Turkey, the other regarding the
mentality or what I wish to call, following Friedman, as the “internal legal
culture”[24]
of the Turkish judiciary.
The decision of the HGK evaluates the bylaw of the
trade union mentioned above as violating the unity of the state. The
interesting point here is that HGK reaches this verdict through a series of
references to several articles in the Constitution, in the Law of Public
Servant Trade Unions and rather inadequate reading of the articles 10 and 11 of
the ECHR.
To begin with, the court mentions Turkey’s
“constitutional identity” as “Turkish Republic is a unitary state with a
monolithic structure”. Mentioning Article 3 of the Constitution that
promulgates “the Turkish State is an indivisible whole with its territory and
nation”, the Court argues that this provision is supported further by Article
42, providing that “No language other than Turkish shall be taught as a mother
tongue to Turkish citizens at any institutions of training or education”.
Relying primarily on these articles of the Constitution, the Court also
mentions Art.26 saying that the trade unions cannot involve in acts against the
constitutional order of the state and following a line of reasoning that sees
advocating education in a mother language other than Turkish implies at least
the existence of different mother languages in Turkey, and judging that this
would amount in the end to argue even tacitly that there are different peoples
on Turkish territory. On these ground, the Court, taking account of the fact
that the ECHR does not prohibit limitations on human rights and freedoms, and
for the Court, protection of the state is a reasonable purpose for the
limitation of the freedom of expression and freedom of association, hence
enabling its final verdict that the trade union will be closed unless it gets
rid of the bylaw.[25]
All this shows how well the Kemalist idea of a unitary
nation-state has been entrenched in the Constitution and the statute law of
Turkey. But more than that, this decision gives us an important clue about the
“inner legal culture” now prevailing in Turkey. Upon a closer look, even if
this decision has been made in 2005, after the 2004 constitutional amendment
mentioned above and thus even if it takes account of the possibility of a
violation of the ECHR only from the perspective of the question regarding the
ways in which the ECHR may justify a decision of court that closes down a
public organization, not from within a broader perspective of thinking the ways
in which the court may enhance the freedoms of Turkish citizens and thus
promote further democratization of Turkish politics and law.
Bearing mind the data of a relatively recent survey
carried out among the judges and public prosecutors in Turkey which displayed
that more than half answered “yes” to a question if human rights may be a
threat to the security of the state, the already mentioned high court decisions
must be treated as normal.
Concluding Remarks:
Turkey’s Bid for a “Democratic Opening” or Prospects for Further Democratization
Be as it may,
however, Turkey has been coping with a series of societal problems since the
European Union has recognized in 1999 its candidate status for full membership.
Leaving aside the impact of the deep economic crisis of 2001, Turkey has
endorsed very important constitutional and legal reforms. Democratizing an
authoritarian constitution tailored according to the anti-democratic worldview
of the 1980 military regime is no easy task. Turkey embarked upon reforming the
constitution in 1995 and abolished almost all constraints and prohibitions the
military junta imposed upon popular political participation. In 2001 further
amendments have been made to enhance the scope of fundamental rights and
liberties, and these reforms continues in 2004 and after. Although the pace of
constitutional and legal reforms slowed down after accession negotiations with
the EU has begun in 2005, Turkey, now staying in a point of no return in the
process of further democratization, has come to encounter more seriously than
ever perhaps to the need to have a totally new constitution. This need for a
totally new constitution might be seen as an outcome of the recent crisis which
has been triggered by a particular TCC decision in May 2007 that halted the
process of presidential elections in the parliament. This may not be the real
case in point, however, that the increasing visibility of the judiciary as a
guardian institution of the Republican establishment suggests that there
happens to be a deeper current which includes a clash between social and
political forces of change and the forces of the defenders of the status quo.
Neither those who
opt for change nor those who seem to favour the existing state of affairs, on
the other hand, are in a position to support the old and still enduring idea of
a homogeneous nation. Hence, several concessions have been made between these
conflicting forces in Turkish society. For example, fourteen years after
lifting the ban on public use of Kurdish language, a new law was passed in
parliament allowing for private institutions to provide teaching Kurdish
language. Almost a year ago,
Turkish Radio and Television initiated a new channel (TRT Şeş) broadcast in Kurdish.
Taking the risk
of reiterating an already known fact that Turkey’s Kurdish problem is not a
“domestic” problem only but open to international influence and with the impact
of the new Iraqi governmental structure, it should be stressed that Turkey now
has another opportunity to find a properly democratic solution to its own
problems. Turkey’s political problems, however, are not limited to the
situation of the Kurds. In the bigger picture, there are problems that stem
from the straightjacket now unfitting for a pluralistic national and global
milieu. As it has been said quite often these days, “the genie is now out of
the bottle”: Turkey is not a homogeneous society. There are not only
“non-Muslim” minorities, there are Kurds as well with a legitimate power to
demand rights to their identity. There are also Alevis, and in fact Kurdish and
Turkmen Alevis as well as Sunnis. Moreover, there are Hanafis and mostly
Kurdish Shafiis among the Sunnis. To mention the last, but at the least, there
are relatively pious and non-pious or observant and non-observant practices of
religion together with diehard Kemalist secularists.
This picture of
Turkish society as a combination of multiple identities poses serious problems
if seen from within the framework of nationalist ideology which, like Kemalism
or the Turkish-Islamic Synthesis of the ultranationalist right, takes pains to
establish and sustain a unified state. The present government, on the other
hand, has declared publicly its vision of “diversity as richness” and its
willingness to open up Turkish democracy.
Even though the
governmental discourse of “democratic opening” promises further
democratization, what this idea of opening entails and how this is going to be
carried out at the level of policy making remain rather vague. Based on the
discussion of the Turkish nation-state formation and the endurance of Kemalism
to date, we have to point out to the fact that, regardless of what the
governing AKP has in mind, Turkey must find a way to renew its constitutional
identity. Because the problems risen out of a denial of the public presence and
significance of identity and difference cannot be handled with partial reforms
which do not reflect the true will of the parties involved in the political
process.
As for the
Kurdish problem, for example, a modification or a total abolishment of the
constitutional definition of citizenship for a more inclusive and difference
sensitive political identity is inevitable. The acceptance of the existence of
mother languages other than Turkish, is also a requirement, and this would
necessarily go hand in hand with a further public use of different languages in
units of local administration. A change in the organization of the public
administration seems also inevitable that the principle of the unity of state
administration must be loosened to eliminate the centralist tutelary power,
enabling the people of Turkey to more open public and political participation.
Turkey’s current
crisis is a consequence of the failure of the early twentieth century
nationalism which has had the aim of creating a homogeneous cultural entity
called the “nation” and uniting it with the political apparatus in such a way
to produce a legitimate order.
Faced with the reality of societal pluralism of various kinds, and most
notably the Kurdish issue, that coincided with a global resurgence of democracy
and a formation of a supranational European idea of multicultural democracy,
the nationalist project has become unsustainable at least in its earlier terms.
Whether it is going to be sustainable with some not essential concessions to the
demands and requisites of a multicultural democracy is highly doubtful. All in
all, the crisis is a crisis of Turkey’s constitutional identity and there is no
doubt that this identity has to be re-written.
Seyla Benhabib,
writing about Turkey and using her very insightful notion of “democratic
iterations” developed in her “another cosmopolitanism,” said:
“Democratic iterations are linguistic, legal,
cultural, and political repetitions in transformation. They not only change
established understandings but also successively transform what once was the
valid or established view of an authoritative precedent. Democratic iterations
are open ended. Thus, in the Turkish context, the legal reforms, even though
they were overturned, could have led to a heightened debate about the
illegality as well as the immorality of all forms of discrimination in the
public sphere—just as they could have led to increasingly repressive measures
against nonobservant Muslims and, maybe, non-Muslims in general.
Democratic iterations can lead to “jurisgenerative
politics,” which takes place when a democratic people that considers itself
bound by certain guiding norms and principles reappropriates and reinterprets
them to expand the arc of equality and freedom, thus showing itself to be not
only the subject but also the author of the laws. On the one hand, rights
claims such as freedom of conscience and equality before the law, which frame
democratic politics, must be viewed as transcending the specific enactments of
democratic majorities. On the other hand, such democratic majorities re-iterate these principles and
incorporate them into democratic processes through legislation, argument,
contestation, revision, and rejection. Jurisgenerative politics results in the
augmentation of the meaning of rights claims and in the growth of the political
authority of actors who make these rights their own by democratically deploying
them.”[26]
What we are going through in Turkey,
as in many other places across the globe, can be thought of in this terminology.
We may replace Muslim and non-Muslims in the quotation above with Turks and
Kurds, or Turks and non-Turks or even Kurds and non-Kurds. The heart of the
matter is, we are going through a process of generating law without having a
well defined constitutional identity in the sense I tried to develop in this
paper. Now, as the recent failure of AKP initiative for constitutional renewal
might suggest, are we still waiting somewhat desperately for a subject with
constituent power to provide Turkey with a new constitution or are we already
in the process of creating a new one? I gather, if I may, what Benhabib argues
is that a constitution-generic process is already underway through democratic
iterations taking place in the public sphere. Let’s beware that the outcome not
be undemocratic, illegitimate and hence pathologic.
References
Seyla Benhabib, “Turkey’s Constitutional Zigzags,”
Dissent, winter 2009, http://www.dissentmagazine.org/article/?article=1321
(10.01.2010).
Seyla Benhabib and Türküler Isiksel, “Ancient
Battles, New Prejudices, and the Future Perspectives: Turkey and the EU,” Constellations, 13, No 2 (2006), p. 230.
A. Şeref Gözübüyük ve Zekai Sezgin, 1924 Anayasası Hakkında Meclis Görüşmeleri,
Ankara: AÜSBF, 1957.
Metin Heper, The
State and Kurds in Turkey: The Question of Assimilation, Houndmills, UK and
New York: Palgrave Macmillan, 2007.
Michael M. Gunter, The Kurds and the Future of Turkey, New York: St. martin’s Press,
1997.
Michael Gunter, “The State and Kurds in Turkey: The
Question of Assimilation,” (review), The
Middle East Journal, 62(2) (Spring 2008), pp. 344-346.
Fuat Keyman, “Articulating Citizenship and Identity,
the ‘Kurdish Question’ in Turkey,” in F. Keyman and A. Icduygu, Citizenship in a Global World: European
Questions and Turkish Experiences, London: Routledge Global Governance
Series, 2005, p. 272.
Levent Köker, Modernleşme,
Kemalizm ve Demokrasi, Istanbul: Iletişim, 2007.
David Nelken, “Using the Concept of Legal
Culture,”
Robert Olson, The
Emergence of Kurdish Nationalism and the Sheikh Said Rebellion, Austin,
University of Texas Press, 1989.
Baskın Oran, Türkiye’de
Azınlıklar, Kavramlar, Teori, Lozan, İç Mevzuat, İçtihat, Uygulama,
Istanbul: Iletişim, 2008.
Ergun Özbudun and Ömer Faruk Gençkaya, Democratization and the Politics of
Constitution-Making in Turkey, Budapest and New York: Central European
University Press, 2009.
Michel Rosenfeld, “The European Treaty-Constitution
and Constitutional Identity: a View from America,” International Journal of Constitutional Law, 3(2-3), 316-331.
Carl Schmitt, Legality
and Legitimacy, Jeffrey Seitzer, trans. and ed., Durham, NC: Duke
University Press, 2004.
Martin van Bruinessen, “The Kurds in Turkey,” MERIP Reports, No. 121, State Terror in Turkey (Feb., 1984), p.
8 http://www.jstor.org/stable/3011035 (01/01/2010).
Mesut Yeğen, “ ‘Müstakbel Türk’ten ‘Sözde-Vatandaş’a:
Cumhuriyet ve Kürtler,” in Mesut Yeğen, Müstakbel
Türk’ten Sözde Vatandaşa Cumhuriyet ve Kürtler, Istanbul: Iletişim, 2009.
Mesut Yeğen, “ ‘Propective-Turks’ or
‘Pseudo-Citizens:’ Kurds in Turkey,” The
Middle East Journal, 63 (4), Autumn 2009, pp. 597-615.
Mesut Yeğen, “Citizenship and Ethnicity in Turkey,” Middle Eastern
Studies, 40 (6), November 2004, pp. 51-66.
[1] Ergun Özbudun
and Ömer Faruk Gençkaya, Democratization
and the Politics of Constitution-Making in Turkey, Budapest and New York:
Central European University Press, 2009, pp.97-111.
[2] Carl Schmitt, Legality and Legitimacy, Jeffrey Seitzer,
trans. and ed., Durham, NC: Duke University Press, 2004.
[3] Cf. Gianfranco
Poggi, The Development of the Modern
State, a Sociological Introduction, London: Hutchison, 1984.
[4] “Constitutional
identity,” according to Michel Rosenfeld, “draws on national, ethnic, cultural,
historical, and political identity, but remains distinct from all of these.
Specifically, constitutional identity is constructed over time through a
dynamic process that involves negation of these other identities accompanied by
a rearrangement and reincorporation of salient features of the latter.” Michel
Rosenfeld, “The European Treaty-Constitution and Constitutional Identity: a
View from America,” International Journal
of Constitutional Law, 3(2-3), 316-317. Differing from this invaluable and
insightful definition of constitutional identity, I use the concept to refer to
the identity of the state as defined and safeguarded as immutable by its
constitution like the Turkish Constitutions immutable articles and also its
preamble. Vulnerability to a chronic pathology, thus, stems from the notion of
crisis that breaks out from the incompatibility of the supposedly homogeneous
collective will of the nation as reflected in the constitutional identity of
the state and the reality of societal multicultural pluralism.
[5] Seyla Benhabib
and Türküler Isiksel, “Ancient Battles, New Prejudices, and the Future
Perspectives: Turkey and the EU,” Constellations,
13, No 2 (2006), p. 230.
[6] Cited in Levent
Köker, Modernleşme, Kemalizm ve Demokrasi,
Istanbul: Iletişim, 2007, p. 150-151.
[7] A. Şeref
Gözübüyük ve Zekai Sezgin, 1924 Anayasası
Hakkında Meclis Görüşmeleri, Ankara: AÜSBF, 1957, p. 436-437.
[8] Mesut Yeğen, “
‘Müstakbel Türk’ten ‘Sözde-Vatandaş’a: Cumhuriyet ve Kürtler,” in Mesut Yeğen, Müstakbel Türk’ten Sözde Vatandaşa
Cumhuriyet ve Kürtler, Istanbul: Iletişim, 2009, p. 72-73. In the English
version of this article Yeğen prefers to translate “Turkishness as citizenship”
as “constitutional Turks” and the latter as “Turks as such”: Mesut Yeğen, “
‘Propective-Turks’ or ‘Pseudo-Citizens:’ Kurds in Turkey,” The Middle East Journal, 63 (4), Autumn 2009, p. 607.
[9] In spite of the
fact that the religious, linguistic, educational and other social and economic
rights of non-Muslim minorities in Turkey are recognized by the Lausanne
Treaty, their legal status as “Turkish citizens” seem far from being a status
of “full citizenship” devoid of any kind of discrimination. Cf. Baskın Oran, Türkiye’de Azınlıklar, Kavramlar, Teori,
Lozan, İç Mevzuat, İçtihat, Uygulama, Istanbul: Iletişim, 2008.
[10] Mesut Yeğen,
“Citizenship and Ethnicity in Turkey,” Middle Eastern Studies, 40 (6), November 2004, p.60.
[11] Michael M.
Gunter, The Kurds and the Future of
Turkey, New York: St. martin’s Press, 1997, pp. 5-6.
[12] Metin Heper, The State and Kurds in Turkey: The Question
of Assimilation, Houndmills, UK and New York: Palgrave Macmillan, 2007, p.
6.
[13] Ibid., p.11.
[14] Cf. Michael
Gunter, “The State and Kurds in Turkey: The Question of Assimilation,”
(review), The Middle East Journal
62(2) (Spring 2008), pp. 344-346.
[15] Fuat Keyman,
“Articulating Citizenship and Identity, the ‘Kurdish Question’ in Turkey,” in
F. Keyman and A. Icduygu, Citizenship in
a Global World: European Questions and Turkish Experiences, London:
Routledge Global Governance Series, 2005, p. 272.
[16] Martin van
Bruinessen, “The Kurds in Turkey,” MERIP
Reports, No. 121, State Terror in
Turkey (Feb., 1984), p. 8 http://www.jstor.org/stable/3011035 (01/01/2010 06:08).
[17] Ibid.
[18] Cf. Robert
Olson, The Emergence of Kurdish
Nationalism and the Sheikh Said Rebellion, Austin, University of Texas
Press, 1989.
[19] Here I rely on
Ernst Gellner’s definition of nationalism as an ideology that foresees the
unity of a political structure with a “national” culture. See Ernest Gellner, Nations and Nationalism, Itacha, NY:
Cornell University Press, 1983.
[20] For a critical
account of the role of the Turkish Constitutional Court see Levent Köker,
“Turkey’s Political-Constitutional Crisis: An Assessment of the Role of the
Constitutional Court,” Constellations,
Volume 17, No 2 (2010-forthcoming).
[21] Osman Can, Anayasa ve Siyasi Partilerin Kapatılması,
Ankara: Seçkin yay., 2005.
[22] For tan
immediate evaluation which is suspicious rightly about the closure decisions
compatibility with the ECtHR jurisprudence see Rıza Türmen, “DTP’nin
Kapatılması ve AİHM,” Milliyet, 30
December 2009.
[23] For an
insightful evaluation of the Turkish Constitutional Court see Ceren Belge,
Friends of the Court: The Republican Alliance and Selective Activism of the
Constitutional Court of Turkey,” Law and
Society Review, 40(3), 653-692.
[24] According to Friedman there is “the classic
distinction between 'internal' and 'external' legal culture. On the one
hand, 'internal legal culture'
refers to the ideas and practices of legal professionals; 'external legal
culture,' on the other hand, is the name given to the opinions, interests, and
pressures brought to bear on law by wider social groups.” Lawrence Friedman, 'The Concept of Legal Culture: A Reply'. Cited by
David Nelken, “Using the Concept of Legal Culture,” http://www.law.berkeley.edu/institutes/csls/nelken%20paper.pdf
(02.01.2010).
[25] Yargıtay Hukuk
Genel Kurulu, E. 2205/9-320, K. 2005/355.
[26] Seyla Benhabib,
“Turkey’s Constitutional Zigzags,” Dissent,
Winter 2009, http://www.dissentmagazine.org/article/?article=1321
(10.01.2010).
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