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Minorities and Nationalism in Turkish Law
 140947254X, 9781409472544

Table of contents :
Cover
Contents
List of Abbreviations
Acknowledgements
Introduction
1 The Ottoman Empire and Minorities
1.1 The Millet System
1.2 ‘Organisational Diversity’ as a Source of Plurality in the Empire
1.3 Emergence of New Concepts in the Ottoman Legal System
1.3.1 The Ideal of Egalitarianism
1.3.2 Secularization of the Law
1.3.3 From Corporate Identities to Individual Citizen: Ottomanism and the Transformation of Identity
1.3.4 Emerging Ethno-Religious Boundaries of the Ottoman State and Nation
1.4 The İTC Era and the End of Pluralism
1.4.1 Linguistic Nationalism
1.4.2 Economic Nationalism
1.4.3 Settlement Policies
2 Transition to the Turkish Nation-State
2.1 Muslim and Non-Muslim Minorities in the Discourse of the Independence War
2.1.1 Non-Muslims
2.1.2 Non-Turkish Muslims
2.1.3 Alevis, Nestorians, Chaldeans, Assyrians, Yezidis
2.2 The Lausanne Peace Conference and Treaty 1922–23
2.2.1 Population Exchange
2.2.2 The Return of Armenian Refugees
2.2.3 The Muslim Minorities’ Position at Lausanne
2.2.4 The Kurds and the Mosul Issue
2.2.5 The Lausanne Treaty
3 Management of Diversity in the Turkish Nation-State, 1923–60
3.1 Cultural Nationalism: ‘Turkification from the Cultural Perspective’
3.1.1 Language Policies
3.1.2 Reconstruction of the ‘Turk’ through History
3.1.3 Elimination of Traditional, Religious and Social Structures
3.1.4 End of Legal Plurality
3.2 Turkification of the Economy
3.2.1 Economic Turkification through the Law
3.2.2 Turkification of Economy through Extra-Legal Means
3.3 Assimilation and Turkification Policies
3.3.1 Turkification by Resettlement
3.3.2 The Inspectorate Generals (Umumi Müfettişlikler)
4 The Myth of the Civic State and Turkish Ethnie in Law
4.1 Who is a ‘Turk’?: The Ethnic Boundary of the Concept of ‘Turk’ in Law
4.2 The Concept of ‘Turkish Race’ in Law
4.2.1 Favoured Status of Foreigners of ‘Turkish Race’
4.2.2 Immigration of Türk Soylu People
4.3 The Role of Turkish Language in Legal ‘Othering’
4.3.1 Language in Education
4.3.2 Broadcasting
4.3.3 Politics and Public Life
4.3.4 Private Life
4.4 Exceptions to the Absolute Domination of the Turkish Language
5 Nation and Minority in the Jurisprudence of the Turkish Constitutional Court
5.1 The AYM’s Jurisprudence in the Political Party Closure Cases
5.2 Re-reading the AYM’s Jurisprudence from a Minority Perspective
5.2.1 The Concepts of ‘Nation’ and ‘Turkish Nation’
5.2.2 The AYM’s Approach to the Minority Concept
5.3 Examining Minority Qualities in the Kurdish Case
5.4 Citizenship in the Human Rights and Democracy Context
6 ‘The right to equal concern and respect’: Equality, Anti-Discrimination and
Anti-Racism Laws in Turkey
6.1 Equality before the Law
6.2 Non-Discrimination
6.3 Implementing Non-Discrimination in Law and Jurisprudence
6.3.1 Non-Discrimination in the Exercise of Economic Activities
6.3.2 ‘Hate Crimes’ and ‘Hate Speech’
6.3.3 Inciting Hatred and Animosity
6.3.4 Insulting Turkishness
6.4 Racism in Legislation and Jurisprudence
6.4.1 The Trial of 1944: Türkçülük Davası
6.4.2 ‘Minority Racism’: The AYM, the DDKO and İsmail Beşikçi Cases
Conclusion
List of Cases and Laws
Bibliography
Index

Citation preview

Minorities and Nationalism in Turkish Law

Cultural Diversity and Law Series Editor: Prakash Shah, School of Law, Queen Mary, University of London, UK

Around the world, most states are faced with difficult issues arising out of cultural diversity in their territories. Within the legal field, such issues span across matters of private law through to public and constitutional law. At international level too there is now considerable jurisprudence regarding ethnic, religious and cultural diversity. In addition, there are several layers of legal control – from communal and religious regulation to state and international regulation. This multiplicity of norm setting has been variously termed legal pluralism, inter-legality or internormativity and provides a fascinating lens for academic analysis that links up to cultural diversity in new and interesting ways. The umbrella of cultural diversity encompasses various population groups throughout the world ranging from national, ethnic, religious or indigenous groupings. This series particularly welcomes work that is of comparative interest, concerning various state jurisdictions as well as different population groups. Also in the series Legal Reform and Business Contracts in Developing Economies Trust, Culture, and Law in Dakar Julie Paquin ISBN 978-1-4094-4488-6 Judging in the Islamic, Jewish and Zoroastrian Legal Traditions A Comparison of Theory and Practice Janos Jany ISBN 978-1-4094-3716-1 Socio-Legal Integration Polish Post-2004 EU Enlargement Migrants in the United Kingdom Agnieszka Kubal ISBN 978-1-4094-3699-7 Law, Religious Freedoms and Education in Europe Edited by Myriam Hunter-Henin ISBN 978-1-4094-2730-8

Minorities and Nationalism in Turkish Law

Derya Bayir

© Derya Bayır 2013 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Derya Bayır has asserted her right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Wey Court East 110 Cherry Street Union Road Suite 3-1 Farnham Burlington, VT 05401-3818 Surrey, GU9 7PT USA England www.ashgate.com British Library Cataloguing in Publication Data Bayır, Derya. Minorities and nationalism in Turkish law. – (Cultural diversity and law) 1. Minorities–Legal status, laws, etc.–Turkey–History. 2. Discrimination–Law and legislation–Turkey–History. 3. Nationalism–Turkey–History. I. Title II. Series 342.5’61085-dc23 Library of Congress Cataloging-in-Publication Data Bayır, Derya. Minorities and nationalism in Turkish law / By Derya Bayır. p. cm. – (Cultural diversity and law) Includes bibliographical references and index. ISBN 978-1-4094-2007-1 (hardback : alk. paper) – ISBN 978-1-4094-2008-8 (ebook) 1. Minorities–Legal status, laws, etc.–Turkey–History. 2. Discrimination–Law and legislation–Turkey–History. 3. Nationalism–Turkey. I. Title. KKX2467.M56B39 2012 342.56108’7–dc23  2012026015 ISBN 9781409420071 (hbk) ISBN 9781409420088 (ebk – PDF) ISBN 9781409472544 (ebk – ePUB) IV

Printed and bound in Great Britain by the MPG Books Group, UK.

Contents List of Abbreviations   Acknowledgements  

ix xi

Introduction  

1

1 The Ottoman Empire and Minorities    1.1 The Millet System   1.2 ‘Organisational Diversity’ as a Source of Plurality in the Empire   1.3 Emergence of New Concepts in the Ottoman Legal System   1.3.1 The Ideal of Egalitarianism 1.3.2 Secularization of the Law 1.3.3 From Corporate Identities to Individual Citizen: Ottomanism and the Transformation of Identity 1.3.4 Emerging Ethno-Religious Boundaries of the Ottoman State and Nation 1.4 The İTC Era and the End of Pluralism   1.4.1 Linguistic Nationalism 1.4.2 Economic Nationalism 1.4.3 Settlement Policies 2 Transition to the Turkish Nation-State   2.1 Muslim and Non-Muslim Minorities in the Discourse of the Independence War   2.1.1 Non-Muslims 2.1.2 Non-Turkish Muslims 2.1.3 Alevis, Nestorians, Chaldeans, Assyrians, Yezidis 2.2 The Lausanne Peace Conference and Treaty 1922–23   2.2.1 Population Exchange 2.2.2 The Return of Armenian Refugees 2.2.3 The Muslim Minorities’ Position at Lausanne 2.2.4 The Kurds and the Mosul Issue 2.2.5 The Lausanne Treaty

19 23 28 32 35 38 41 43 49 55 58 60 65 67 68 70 76 79 80 82 83 85 88

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3 Management of Diversity in the Turkish Nation-State, 1923–60   3.1 Cultural Nationalism: ‘Turkification from the Cultural Perspective’   3.1.1 Language Policies 3.1.2 Reconstruction of the ‘Turk’ through History 3.1.3 Elimination of Traditional, Religious and Social Structures 3.1.4 End of Legal Plurality 3.2 Turkification of the Economy   3.2.1 Economic Turkification through the Law 3.2.2 Turkification of Economy through Extra-Legal Means 3.3 Assimilation and Turkification Policies   3.3.1 Turkification by Resettlement 3.3.2 The Inspectorate Generals (Umumi Müfettişlikler) 4 The Myth of the Civic State and Turkish Ethnie in Law   4.1 Who is a ‘Turk’?: The Ethnic Boundary of the Concept of ‘Turk’ in Law   4.2 The Concept of ‘Turkish Race’ in Law   4.2.1 Favoured Status of Foreigners of ‘Turkish Race’ 4.2.2 Immigration of Türk Soylu People 4.3 The Role of Turkish Language in Legal ‘Othering’   4.3.1 Language in Education 4.3.2 Broadcasting 4.3.3 Politics and Public Life 4.3.4 Private Life 4.4 Exceptions to the Absolute Domination of the Turkish Language   5 Nation and Minority in the Jurisprudence of the Turkish Constitutional Court   5.1 The AYM’s Jurisprudence in the Political Party Closure Cases   5.2 Re-reading the AYM’s Jurisprudence from a Minority Perspective   5.2.1 The Concepts of ‘Nation’ and ‘Turkish Nation’ 5.2.2 The AYM’s Approach to the Minority Concept 5.3 Examining Minority Qualities in the Kurdish Case   5.4 Citizenship in the Human Rights and Democracy Context  

95 97 98 109 111 119 120 122 126 130 134 139 143 145 154 157 160 163 166 169 171 174 181 187 188 190 192 202 210 216

Contents

vii

6 ‘The right to equal concern and respect’: Equality, Anti-Discrimination and Anti-Racism Laws in Turkey   219 6.1 Equality before the Law   220 6.2 Non-Discrimination   225 6.3 Implementing Non-Discrimination in Law and Jurisprudence  229 6.3.1 Non-Discrimination in the Exercise of Economic Activities 229 6.3.2 ‘Hate Crimes’ and ‘Hate Speech’ 232 6.3.3 Inciting Hatred and Animosity 237 6.3.4 Insulting Turkishness 243 6.4 Racism in Legislation and Jurisprudence   249 6.4.1 The Trial of 1944: Türkçülük Davası 251 6.4.2 ‘Minority Racism’: The AYM, the DDKO and İsmail Beşikçi Cases 254 Conclusion  

259

List of Cases and Laws   Bibliography   Index  

263 271 293

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List of Abbreviations AKDTYK Atatürk Kültür, Dil ve Tarih Yüksek Kurumu (Atatürk High Institution of Culture, Language and History) AYM Anayasa Mahkemesi (Constitutional Court) CERD Committee on Elimination of All Forms of Racial Discrimination CHP Cumhuriyet Halk Partisi (Republican People’s Party) CRC Convention on the Rights of the Child CSTD Cumhuriyet Senatosu Tutanak Dergisi (Republican Senate Minute Journal) Dan (…) D Danıştay (…) Dairesi (Council of State (…) Chamber) DDP Demokrasi ve Değişim Partisi (Democracy and Change Party) DEHAP Demokratik Halk Partisi (Democratic People’s Party) DEP Demokrasi Partisi (Democracy Party) DKP Demokratik Kitle Partisi (Democratic Mass Party) DMTD Danışma Meclisi Tutanak Dergisi (Journal of the Parliamentary Record) DP Demokrat Parti (Democrat Party) DTP Demokratik Toplum Partisi (Democratic Society Party) ECHR European Convention on Human Rights ECtHR European Court of Human Rights EP Emek Partisi (Labour Party) HADEP Halkın Demokrasi Partisi (People’s Democracy Party) Hak-Par Hak ve Özgürlükler Partisi (Rights and Freedom Party) HEP Halkın Emek Partisi (People’s Labour Party) ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights İTC İttihat ve Terakki Cemiyeti (Committee of Union and Progress) KHK Kanun Hükmünde Kararname (Secondary Law) MBKGKT Milli Birlik Kurulu Genel Kurul Tutanakları (National Unity Committee Plenary Session Minutes) MHP Milliyetçi Hareket Partisi (Nationalist Movement Party) MK Türk Medeni Kanunu (Turkish Civil Code) MM Meclis-i Mebusan (Ottoman Parliament) MMTD Millet Meclisi Tutanak Dergisi (National Assembly Minutes Journal) MMZC Meclisi Mebusan Zabıt Ceridesi (National Assembly Minutes Journal) MoE Ministry of Education (Milli Eğitim Bakanlığı)

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MoEIC Ministry of Education Inspection Committee (Milli Eğitim Bakanlığı Denetleme Kurulu) MoIA Ministry of Internal Affairs (İçişleri Bakanlığı) MoJ Ministry of Justice (Adalet Bakanlığı) OHAL Olağanüstü Hal (State of Emergency) ÖZDEP Özgürlük ve Demokrasi Partisi (Freedom and Democracy Party) PCIJ Permanent Court of International Justice RLC Records of the Lausanne Conference RTÜK Radyo Televizyon Üst Kurulu (Supreme Board of Radio and Television) SP Sosyalist Parti (Socialist Party) SPK Siyasi Partiler Yasası (Political Parties Law) STP Sosyalist Türkiye Partisi (Socialist Party of Turkey) TBKP Türkiye Birleşik Komünist Partisi (United Communist Party) TBMM Türkiye Büyük Millet Meclisi (Turkish National Parliament) TBMMGKT Türkiye Büyük Millet Meclisi Genel Kurul Tutanağı (Turkish Parliament General Plenary Session Minutes) TBMMGZC Türkiye Büyük Millet Meclisi Gizli Zabıt Ceridesi (Turkish Parliament Secret Plenary Session Minutes) TBMMTD Türkiye Büyük Millet Meclisi Tutanak Dergisi (Turkish Parliament Minutes Journal) TBMMZC Türkiye Büyük Millet Meclisi Zabıt Ceridesi (Turkish Parliament Minutes Journal) TCK Türk Ceza Kanunu (Turkish Penal Code) TEP Türkiye Emekçi Partisi (Proletarian Party of Turkey) TİP Türkiye İşçi Partisi (Labour Party of Turkey) TO Türk Ocakları (Turkish Hearths) UM Umumi Müfettiş (Inspector General) UMs Umumi Müfettişlikler (Inspectorates General) VGM Vakıflar Genel Müdürlüğü (General Directorate of Foundations) Y (…) HD Yargıtay (…) Hukuk Dairesi (Supreme Court of Appeal (…) Civil Chamber) Y (…) CD Yargıtay (…) Ceza Dairesi (Supreme Court of Appeal (…) Crime Chamber) YCGK Yargıtay Ceza Genel Kurulu (Supreme Court of Appeal Grand Crime Chamber) YHGK Yargıtay Hukuk Genel Kurulu (Supreme Court of Appeal Grand Civil Chamber) YİBGK Yargıtay İçtihadı Birleştirme Genel Kurulu (Supreme Court of Appeal Joint Grand Chamber) YÖK Yükseköğretim Kurulu (Higher Education Council)

Acknowledgements This book owes a lot to many people who have given their generous unconditional support, time and assistance. I am especially grateful to my dear companion, partner and colleague Mükrime, who continued to send me many books and materials from Turkey not available in the UK. She has also been generous with her friendship and love. I wish to thank my dear friend Cengiz who has always been so supportive and encouraging, often finding himself listening to my endless moaning and confusions, but never losing his faith in me. I also wish to thank Yılmaz, Sinan, Fatma, Levent, Neva and many other friends and colleagues who also provided many cases, books, and articles. Without their dedicated assistance, this book would not be the same. I am also very grateful to my family for their understanding, patience and support throughout this study. My particular thanks go to my dear mother, father, sisters and my mother-in-law who have always been very sweet, tender and caring. I thank my little nieces, Şilan and Lawin, for being wonderful and patient with me, and not complaining about the little time I spared for them in the last few years. Thanks are due to the Department of Law at Queen Mary, University of London for a generous three-year scholarship. This book would not have been completed without this valuable financial assistance. I owe a great debt to my supervisor Prof. Malgosia Fitzmaurice who was encouraging, supportive, approachable and understanding. I also want to thank the Turkish Parliament Library staff who helped me to find many of the old laws and regulations during my research trip to Ankara in 2007. Special thanks are due to the University of London for its Central Research Fund Grant which made the trip to Ankara possible.

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Introduction The management of diversity has been the chief dilemma of the Turkish state to the present day. This book explains the ongoing legal dilemmas regarding the management of diversity since the nineteenth century, prior to the establishment of the modern Turkish Republic. It focuses on the role of the legal system and the judiciary in the management of diversity in Turkey and demonstrates how state policies have been articulated into legislation and embodied in court jurisprudence. It shows how the Turkish legal system has persistently failed to accommodate ethno-religious diversity in the country, a failure attributable to the state’s founding philosophy – Turkish nationalism – and its influence upon legislation and judicial bodies. The concepts of ‘nation’, ‘citizenship’, and ‘minority’, formulated in line with this nationalist perception, are key coordinates of a policy on managing diversity in the Turkish legal system. The ‘civic’ language used in the legal description for citizenship in the Constitutions is misleading if one takes into account the heavily loaded ethno-cultural and religious references in the constitutions, legislation, and, particularly, the jurisprudence of the courts. In fact, the state’s official stance of ‘civic’ and ‘territorial’ nationalism has in practice been used to justify the promotion of ‘Turkishness’ and the ‘Turkification’ of ‘others’ in Turkey. Thus, one of the main concerns of this book is to examine the scope, as well as the ethnic and religious coordinates, of the legal notion of ‘Turk’ which is claimed by the state and judicial bodies to be an ‘umbrella’ identity. Despite the Turkish legal system’s propensity for transplanting foreign, western European legal models since the nineteenth century, legal development in the field of the protection of minorities as an allochthonous concept was and is still very much resisted. Thus, the Turkish state and legal system’s nationalist stance has created a legal discourse which has problems with the very justification for minority protection given in international law. Thus, without a thorough reconstruction of the founding philosophy of the state and the legal system – which would also require a deconstruction of history, education, legislation, jurisprudence, and so on – any solution to the dilemmas of managing diversity would be inadequate. Currently, the state’s position with respect to diversity is in the process of being redefined. Especially since the 1990s, Turkey is under the enormous pressure of international and internal forces demanding protection of diverse communities alongside the changing trends in international law. While the Kurds are the leading force in this regard domestically, in international fora, Turkey’s accession to the European Union (EU) is one of the most important among several other determinants, since the protection of minorities is one of the political criteria with

2

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which Turkey must comply before its accession. On the other hand, the binding judgments of the European Court of Human Rights (ECtHR) are another influence which should be mentioned. Although the European Convention on Human Rights (ECHR) does not have specific provisions for the protection of minorities, the ECtHR’s sometimes more broadminded interpretation of Convention rights and the concept of democracy have created a legitimate space forcing the accommodation of minorities’ demands in law in Turkey. Importantly, the ECtHR’s case law on Turkey provides a clear picture of the most burning problems of minorities in Turkey.1 It has also been influential in so far as it is used by the EU in its action plan.2 In response to this internal and international pressure, there have been important changes in the Turkish state’s political discourse since the 2000s, such as the recognition of the ‘Kurdish reality’,3 and the recent series of workshops (çalıştay) with the aim of determining the problems of Alevis and Roma in Turkey. Moreover, there have even been some legal changes to this end, for example, allowing the establishment of ethno-religious associations to be opened, return of the properties of non-Muslim foundations unlawfully acquired by the state, and accommodating some minority languages since 2000, for instance, allowing the teaching of some minority languages in private courses and broadcasting in these 1  See, for example, Freedom And Democracy Party (ÖZDEP) v. Turkey (no. 23885/94, 08.12.1999, closure of pro-Kurdish political parties), Maraşlı v. Turkey (no. 40077/98, 09.11.2004, criminalization of use of an ancient name of Kurdish region, ‘Kurdistan’), Hasan and Eylem Zengin v. Turkey (no.1448/04, 09.10.2007, imposing compulsory religious classes on Alevi students), Zana v. Turkey (no. 69/1996/688/880, 25.11.1997, prohibition on use of Kurdish before the courts), Güzel Erdagöz v. Turkey (no. 37483/02, 21.10.2008, prohibiting use of a minority name), Fener Rum Patrikligi (Patriarcat Oecumenique) v. Turkey (no. 14340/05, 08.07.2008, preventing acquisition of property by non-Muslim foundation), Irfan Temel and others v. Turkey, (no. 36458/02, 03.03.2009, criminalizing a campaign for optional Kurdish classes in public education), Mehmet Nuri Özen v. Turkey (no. 15672/08, 11.01.2011) preventing prisoners corresponding with their family members in Kurdish). 2  For the EU’s vision on minority protection in Turkey, see Council Decision on the Principles, Priorities and Conditions Contained in the Accession Partnership with the Republic of Turkey (2008/157/EC, 18.02.2008). According to this document, the EU requires Turkey to enhance the legal status of non-Muslim foundations and their religious communities, to ensure that they have their religious education, to take steps towards realization of tolerance, and the ‘full respect of freedom of religion in practice’. The EU also requires Turkey to ‘ensure cultural diversity and promote respect for and protection of minorities’ in accordance with the ECtHR’s case law and the principles laid down in the Framework Convention for the Protection of National Minorities and parallel best practices in other member states. It also requires Turkey to provide ‘effective access to radio and TV broadcasting in languages other than Turkish, in particular by removing remaining legal restrictions’ and ‘adopt appropriate measures to support the teaching of languages other than Turkish’. 3  The ‘Kurdish reality’ was first vocalized by Prime Minister Süleyman Demirel, in a speech during an election campaign in 1991 as part of human rights reforms: Ergil 2000.

Introduction

3

languages. It may be said that after almost 90 years of denial of diversity in the country, Turkish political discourse has reached a stage of selective recognition of the reality of some diverse groups.4 The actual situation is termed ‘selective recognition’ because the reality of only certain groups is entitled to recognition. Thus, while Kurds, Roma, Alevis, and so on, to a certain extent are accorded recognition. Further, recognition of the reality of some groups has been conditioned upon the compatibility of their differences with the majority’s perceptions. For instance, because of presumed incompatibility with Islamic theology, the Alevis’ congregational places are still not recognized as religious places. That is, the political and legal changes in Turkey have not yet reached the stage of protecting the rights of diverse groups with legal guarantees, even for the selected groups mentioned here. Therefore, despite the changing political discourse and political recognition of the existence of some of the non-Turkish-speaking population in Turkey, the political and legal discourse on diversity and protection of minorities has not changed much. Thus, the state’s tendency is to treat differences as ‘folkloric’ particularities, while continuing to push for unity under the umbrella identities of ‘Turkishness’ and Sunni Hanefî Islam. Moreover, the relatively unchanged political mindset towards diversity prevents any viable solutions to Turkey’s burning problems, as illustrated by the Kurdish case. After many years of repression and severe human rights violations against Kurdish civilians5 the ‘Kurdish reality’ was acknowledged from the 1990s. This has since morphed into a ‘Kurdish opening’ (Kürt açılımı)6 by the ruling Justice and Development Party (Adalet ve Kalkınma Partisi, AKP), later into ‘democratization’ (demokratikleşme),7 and finally into the ‘national oneness 4  We can categorize minority groups in Turkey as (1) recognized non-Muslim minorities (Jews, Armenians, Greeks), (2) non-recognized non-Muslim Minorities (Assyrians, Protestants, Chaldeans, Georgians, Maronite Christians, Bahais), (3) nonrecognized ethnic minorities Arabs (Sunni, Alevi, Christian), Laz, Kurds (Sunni, Alevi, Caferi, Yezidi), Circassians, Georgians, Bosnians, Roma, (4) non-recognized religious/ sectarian minorities Alevis (Turks, Kurds), Nusayris (Arab),Caferis, and (5) non-recognized linguistic/ethnic minorities (Zaza). 5  Turkey has been given the highest number of judgments against it by the European Court of Human Rights (2,295, amounting to 18.81 per cent of total judgments) according to statistics issued by that court in 2009. This is despite of the relatively short period since its acceptance of the right of individual petition (Turkey accepted the court’s jurisdiction in 1991). The number of cases pending against Turkey on 1 January 2010 was 13,100, amounting to 11 per cent of total cases pending. See ‘50 Years of Activity, The European Court of Human Rights Some Facts and Figures’ , last accessed 19 July 2011. 6  Somer and Liaras 2010. 7  In 2010, the Minister of Culture and Tourism, Ertuğrul Günay, stated, ‘there is no Kurdish opening but a determined march towards democratization’: ‘Kültür Bakanlığı’ndan ilk Kürtçe Çeviri’, Radikal, 01.12.2010.

4

Minorities and Nationalism in Turkish Law

and brotherhood project’ (milli birlik ve kardeşlik projesi).8 In part a politically instituted response to Kurdish demands, the limited results of the reforms thus instituted reveal the deep stasis on the subject within Turkey’s ruling order. Hopes for solving the long-lasting conflict between the state’s armed forces and the proKurdish armed group Partiya Karkeren Kurdistan (Kurdistan Worker’s Party, PKK), and meeting territorial/non-territorial autonomy demands of the Kurdish minorities have fallen, given the AKP government’s persistence in the use of military methods in attempting to solve the Kurdish conflict, opposing education in Kurdish,9 and the prospect of giving more autonomy to regions where the Kurds comprise the majority. The government’s limited approach to the Kurdish problem has been accompanied by the judiciary’s enduring effort to close the political sphere to pro-Kurdish views and demands, by criminalizing them on the ground of assisting the PKK, or for having political views overlapping with the PKK’s political stance. While the knotty problem of Turkey’s approach to the minority question was set out early on for this study, its current shape was by no means a foregone conclusion. A first attempt to approach the problem was to locate where Turkey was positioned in light of developments and trends in the international law on the protection of minorities. However, as an initial question it proved to be too immature. Then, an answer to the question of the causes of Turkey’s persistent failure to protect its minorities and maintain its diversity was sought. However, it soon became obvious that this question would not be satisfactorily answered without a longer historical analysis tracking Turkey’s relations with its minorities over the last two centuries. In hunting for an answer, the journey through Turkish legal history in the last two centuries has proved that there has been a more or less persisting mindset towards minorities. The core of the problem was not only Turkey’s sour attitude towards minorities because of their separatist desires, which had very traumatic human, territorial and economic costs on the Ottoman Empire and then on Turkey. The Turkish ruling political elite’s image of a modern unitary nation-state structure and of a society based on ‘unity’ in the form of uniformity under ‘Turkishness’, as well as the impact of Turkish nationalism, have been the dominant influences on Turkey’s relations with its minorities and are responsible for this anti-difference and anti-diversity climate. This finding gave rise to a further important question, which was how the legal system accommodated Turkish nationalism and how that was justified, while 8  See the AKP’s official website , last accessed 19.07.2011. 9  The government is pushing the Kurds to the private sphere given that their demands related to the public sphere, such as education at public schools in Kurdish and more autonomy to regions where the Kurds comprise the majority, have been denied by the government. The deputy prime minister and the government spokesperson, Bülent Arınç, in a programme broadcast on the television channel CNN Turk denied the possibility for education in Kurdish, giving the reason that Kurdish is not a ‘language of civilization’ (medeniyet dili), see Taraf, 05.02.2012.

Introduction

5

it was persistently claimed that the state system was based on ‘the principle of constitutional/territorial nationalism’.10 More precisely, how was the state’s antidiversity discourse articulated into the law and legal discourse? On the way to finding answers to these questions, legislation and their explanatory notes, parliamentary discussions, and the jurisprudence of the Turkish higher courts11 and the Constitutional Court (Anayasa Mahkemesi, AYM) have been examined. Our search leads us to the conclusion that the legal system and jurisprudence has eased in Turkish nationalist discourse and, moreover, has participated in creating a legal discourse of Turkish nationalism. In so doing, the legal system does not acknowledge the biases involved in associating the state and country’s interests with the interests of the Turkish ethnie. Thus, the legal system has treated any identities other than the Turks’ language, culture, religious affiliation, and so on, as a threat to the official order. This study also reveals that the ‘Turkish nation’ is theorized as static, occurring sometime in the past with unchanged characteristics, not as an ‘ongoing project’.12 This ‘discourse of nationalism’13 is problematic to the extent that it embraces neither the changing demands of the minorities nor the changing demographic character of the country. Theorizing the ‘Turkish nation’ in legislation and through the courts’ case law has been important also because of its link to theorizing the ‘other’, in other words, the ‘minority’. The relationship between nation and minority also demonstrates the problematic nature of the concept of ‘citizen’, since the latter overlaps with the concept of the Turkish nation, with its ethnoreligious characteristics, while minority rights are conceptualized as rights beyond citizenship rights. Paradoxically, minority rights are seen by judges as both privileging those holding them and as inadequate to the superior citizenship rights conferred by the Turkish Constitution and legal system. This study also finds that the blatant legal defence of Turkish nationalism is justified and legitimized by the concept of ‘equality before the law’, ‘nondistinction’ on grounds of ethnicity, language, religion, and so on, and the legal myth of the ‘difference-blind state’ in relation to minorities. The scope of equality before the law’, ‘non-distinction’, and the state’s neutrality has been then tested through an examination of the higher courts’ and the AYM’s case law on discrimination, inciting hatred, hate speech and racism. It was found that this jurisprudence almost totally, albeit with some exceptional cases, protects the interests of the majority ‘Turkish ethnie’ or the state, while failing to protect nonTurkish, non-Sunni Muslim minorities. Further, in its failure to accommodate minorities, one of the most important principles the judiciary has relied on is equality before the law. This egalitarianism has developed a language justifying 10  Turkey Report 2007 to the CERD, para. 17. 11  The Yargıtay (Supreme Court of Appeal), the Danıştay (Council of State), and the

Military Yargıtay. 12  Bhamra 2011: 47–8. 13  Özkırımlı 2008.

6

Minorities and Nationalism in Turkish Law

state policies negating diversity in the country, since everybody has been assumed to be equal and no differences were seen as existing. There is consequently no discrimination, it is claimed. Moreover, the legislation has also failed to create an adequate system to protect Turkey’s diverse groups against assaults or against direct and indirect discrimination. Turkey’s official allegiance to ‘civic’ and ‘territorial’ nationalism is one of the most important factors for the dramatic failure of its legal system to protect minorities. The deficiency of ‘civic nationalism’ in relation to the protection and accommodation of minorities has been criticized by many scholars.14 They have mainly criticized civic nationalism for its reference to the majority’s identity, culture, history and language as the founding element and ‘umbrella’ identity for all, while it marginalizes minorities in the public as well as the private sphere. The role of civic nationalism in the failure of the legal system has been a doubleedged sword in Turkey. On the one hand, it has shielded the shortcomings of the legal system while, on the other hand, it has been used to resist any demands for minority protection. First, claims to Turkey’s nationalist, neutral state have been used as a pretext to escape from its obligations of minority protection under the Lausanne Treaty of 1923, since the principle of equal application of a uniform law for all was used to undermine the scheme of special rights for minorities. Secondly, this discourse also has been used to provide legal legitimacy for the removal of the languages, cultures, histories and identities of non-Turkish groups from the public sphere and to ensure their forced assimilation into the national language, culture, identity, and so on, determined by reference to those of the Turkish ethnie. Given the vague line between these two spheres, the attempt to remove non-Turkish languages, cultures and identities from the public sphere in effect also amounted to an intervention in the private spheres of minority communities. Assimilation is described as ‘based on an idea of superiority of the dominant culture, [aiming] to produce a homogenous society by getting groups to discard their culture in favour of the dominant one’.15 According to this definition, assimilation would amount to the elimination of non-mainstream cultures and differences. Kymlicka and Norman mention two types of assimilation which are distinguished from each other by their coerciveness.16 However, they further state that regardless of its coerciveness, assimilation ‘compels or pressures all citizens to see themselves as members of a single, common national culture that merges all pre-existing ethnic differences’.17 The more coercive assimilation would include the attempt to ‘ban associations and publications that seek to foster or reproduce a minority identity, or compel all citizens to stop using surnames that reflect a minority background … [while the state] rewrote history in the attempt 14  Smith 1998: 210–13; see also Kymlicka 1996, Kuzio 2002. 15  UN study on ‘Racial Discrimination in the Political, Economic, Social, and

Cultural Spheres’ (UN Sales No. 71. XIV.2): cited by Thornberry 1991: 4. 16  Kymlicka and Norman 2000: 14. 17  Ibid.

Introduction

7

to assimilate minority groups into the larger nation’.18 The less coercive kind of assimilation is where states ‘respect the individual civic rights of citizens, but refuse to accord any recognition or support to minority languages and cultures, and insist that all public schools, government institutions, street signs, and public holidays reflect the dominant language and culture’.19 As this book shows, the Turkish state’s policy on the management of diversity has always entailed assimilation and this has not changed significantly even though some recent developments since the 1990s (mentioned above), especially towards non-Turkish Muslim minority groups in Turkey, may indicate a switch in policy from ‘more coercive’ to ‘less coercive’ assimilation. Although Turkey also exists in a changing international legal environment, with the latter’s developing principles of minority protection, Turkey’s own position with respect to the minority issue appears to have remained static and quite defensive. Revisiting the initial question and assessing the Turkish legal system in light of current international law trends on the justification for protection of minorities also demonstrates that Turkey has not only fallen very much behind the contemporary trends regarding the protection of minorities, but also has problems with the very justification for minority protection given in international law. This book therefore demonstrates that the failure of the Turkish legal system to protect minorities is at least partly attributable to its problem with the very idea and nature of the protection of minorities and/or differences. For instance, the Turkish legal system has persistently refrained from granting rights specifically designed for protecting minorities’ differences other than invoking the legal assurance of formal equality and the proclaiming the benefits of uniform laws. During the last century, minority protection has witnessed two different approaches. The first trend was initiated under the League of Nations when minority protection was designed with the aim of eliminating ‘the potentially destabilizing impact of assimilation policies’.20 Under this scheme, minority protection was secured through some special rights, requiring states to take positive actions in order to protect minorities’ linguistic, religious and ethnic particularities, while assuring their enjoyment of the same civil and political rights as other nationals, as well as non-discrimination, which ultimately aimed to provide ‘substantive equality’ for minorities.21 The second trend began after the Second World War when the protection of minorities was seen as realizable through the ‘prevention of discrimination’ and the application of universal, individual human rights.22 This trend diluted the importance of the need for special rights for the protection of

18  19  20  21 

Ibid. Ibid. LNOJ, July 1928, p. 942, Minutes of the 50th Council cited in Vrdoljak 2008: 46. Ibid. For a more detailed study on the League of Nations protection of minorities scheme, see Thio 2005: 27–99. 22  Thornberry 1991: 121-123, Henrard 2000: 219.

Minorities and Nationalism in Turkish Law

8

minorities since human rights, with its universal, individual application for all, was assumed to provide adequate protection. However, today, it is agreed that this main tendency of the post-Second World War approach is not ‘sustainable’,23 since protection of individual and universal civil and political rights ‘are not sufficient for the effective implementation of the rights of members of minority groups to preserve and develop their own culture’.24 It is thus stated that even ‘mere abstention from forced assimilation would not be sufficient for states to fulfil their international law obligations regarding minority protection’.25 Thus, besides recognition and the granting of some special rights which are considered as the remedy for ‘disadvantages’ suffered by minorities, and assurances of ‘substantive equality’,26 ensuring the realization of their rights to preserve their distinctive identity and culture is also required. Furthermore, minority protection today also requires positive actions and intervention by a state since the adequate achievement of ‘cultural development’ of minority groups in most situations necessitates state resources.27 More importantly, in contemporary international law, the scope of minority protection is now built upon four pillars: ‘protection of the existence, non-exclusion, non-discrimination and nonassimilation of the groups concerned’.28 As may be observed throughout this book, the Turkish legal system has also used four pillars in its treatment of minorities which can be summarized as: denial of existence, exclusion, discrimination, and assimilation.29 The protection of minorities in international law is mainly contemplated as an individual right enjoyed by the members of minorities, but not as a group. However, a group dimension in this protection is being increasingly emphasized since it is considered that the exercise of these rights can only be meaningfully enjoyed by individuals ‘in community with other members of their group’.30 Thus, although the rights bearers are individuals, the obligations attributed to states are

23  24  25  26  27  28 

Vrdoljak 2008: 56. Thornberry 1991: 180. Henrard 2000: 221. Wheatley 2005: 22. Thornberry 1991: 180, and also see Henrard 2000: 221. Commentary of the Working Group on Minorities to the United Nations on Rights of Persons Belonging to National Ethnic, Religious and Linguistic Minorities, 04.04.2005, UN Doc. E/CN/4/Sub.2/AC.5/2005/2, para. 23. Also see Fleiner 2009 and Vrdoljak 2008: 65, fn. 140. 29  Yeğen 2006: 23 also argues that the Turkish state has used ethnic cleansing, mass expulsion, assimilation, discrimination (for non-Muslims), and so on, when dealing with ethno-political issues. 30  Human Rights Committee (HRC) General Comment no. 23: Article 27 (Rights of Minorities), 08.04.1994, para. 5.2 (CCPR/C/21/Rev.1/Add.5).

Introduction

9

considered ‘collective in nature’.31 As argued here, the Turkish higher courts and the AYM’s legal discourse stands against ‘group’ dimension of the minority rights. Today, international law points to two important rationalizations for minority protection. First is the right to self-determination and, secondly, the protection of minorities as an essential part of democratic governance. The right to selfdetermination is considered a ‘foundational right’,32 or a ‘condition’33 for the enjoyment of individual human rights.34 The right to self-determination is not only considered in its external aspect, allowing its exercise under certain circumstances and by a certain group of ‘people’35 to determine the international status of their territories. Some argue its relevance for minorities in extreme cases,36 where a minority is under a ‘racist regime’, or there is a ‘denial of their physical and cultural existence’,37 where they ‘are treated in a grossly discriminatory fashion by an unrepresentative government’.38 However, it is accepted that the right to selfdetermination also has an internal aspect, allowing ‘peoples to pursue freely their economic, social and cultural development without outside interference’.39 It is the internal aspect of the right to self-determination which transcends its application beyond a certain ‘people’ to minorities who are also considered as the ‘beneficiary’ of that right.40 31  Vrdoljak 2008: 61. The Commentary of the Working Group on Minorities to the United Nations on Rights of Persons Belonging to National Ethnic, Religious and Linguistic Minorities also stated that ‘While the rights are consistently set out as rights of individuals, the duties of States are in part formulated as duties the state cannot fully implement without ensuring adequate conditions for the existence and identity of group as a whole’ (UN Doc. E/CN/4/Sub.2/AC.5/2005/2, para. 14). 32  Vrdoljak 2008: 42. 33  Henrard 2000: 317. 34  HRC, General Comment no. 12, para. 1 states that the ‘right of self determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights.’ 35  Wheatley 2005: 124–5. 36  The International Commission of Jurists, in its opinion in the case of the Åland Islands Question, later also adopted by the Council of League of Nations, referred to the application of the external aspect of the right to self-determination to minorities as an ‘exceptional solution, a last resort when the state lacks either the will or the power to enact and apply just and effective guarantees [of religious, linguistic and social freedom]’: cited in Raič 2002: 329, and also see 330. 37  Henrard 2000: 315, Wheatley 2005: 94. 38  Thornberry 1991: 108; also see Xanthaki 2005: 24. 39  HRC, General Recommendation no. 21, on the right to self-determination, 23.08.1996, para. 4. Moore 1997: 900 is ‘in favour of a conception of national selfdetermination which involves the equal recognition of different national identities’. 40  Thornberry 1991: 14 and Henrard 2000: 292. Interestingly, the minority protection regime had also been contemplated as the ‘alternative’ to the non-exercise of the right to selfdetermination under the League of Nations regime: Henrard 2000: 282, Vrdoljak 2008: 46.

10

Minorities and Nationalism in Turkish Law

Moreover, it is accepted today that there is a link between the internal right to self-determination and democracy, since they both ensure the population’s involvement in the determination of a government and participation in decision making,41 and a democratic regime is considered to be a condition for the realization of self-determination.42 Even though it has been considered ‘that minority protection is inherent to democracy and not the latter’s counterpole’,43 it should be emphasized that a democratic system does not automatically guarantee protection of minorities or accommodate their needs and concerns.44 Thus, the protection of minorities requires special measures, diversity sensitive polices, different laws, and so on, which goes beyond the general democratization endeavours of a country. The current endeavours of the Turkish state today, as well as arguments made by some scholars, who see the solution to the problems of minorities as being the ‘democratization’ of the political system,45 seem to fall somewhat short. Thus, any solution to the minorities’ problem in Turkey must be additional to any radical democratization of the political system and enhancing the democratic culture; it also requires a reconstruction of the system in line with a pro-diversity philosophy and where people’s right to self-determination will be respected. Turkey’s political and legal stance in domestic and international fora in this regard needs to be addressed, since it has always denied the relevance of the protection of minorities to the right to self-determination and the necessity for democratic governance. This approach is evident in the position taken by the Turkish state in international fora. Aral’s study on Turkey’s voting pattern before the UN General Assembly up to 1997 observes that the Turkish government persistently either ‘denied relevance of self-determination to groups within sovereign states’,46 or opposed or abstained ‘when General Assembly drew attention to the linkage between the right of peoples to self-determination and effective protection of human rights’.47 Parallel to the Turkish government’s persistent position in international fora, the AYM’s jurisprudence has also denied As later repeated by the International Commission of Jurists in the case of Åland Islands, the right to self-determination and the protection of minorities was considered as having ‘a common object to assure to some national Group the maintenance and free development of its social, ethnical or religious characteristics’: cited in Raič 2002: 198, fn. 118. 41  Henrard 2000: 299. 42  Wheatley 2005: 136. 43  Henrard 2000: 307. 44  Eide 1993: 155, and also see Åkermark 1997: 31–2. 45  See Kirisçi and Winrow 1997, Oran 2006. 46  Aral 2004: 143. 47  Ibid. 144. The same approach is evident in the Turkish state’s reservations to article 1(1) of the ICESCR and ICCPR in which Turkey has stated that it will implement its obligations under those Covenants in accordance with the obligations under the Charter of the United Nations, which means Turkey accepts ‘self-determination’ as a ‘principle’ but not as a ‘right’, and it only recognizes its applicability to colonial territories. On ‘selfdetermination’ with reference to the UN Charter, see Thornberry 1993: 107–9.

Introduction

11

the relevance of the right to self-determination to the protection of minorities since it has only perceived the right to self-determination in its external aspect, while ignoring its internal aspect (see Chapter 5.2.2). Furthermore, the AYM has viewed the right to self-determination as a ‘one-off’ application, not as ‘continuing process’,48 thus debilitating its contemporary relevance. Turkey’s problematic relationship to the protection of minorities also becomes obvious in its attitude of declining to adopt internationally binding instruments which include rights of people to self-determination or which reaffirm the rights of minorities as a distinct legal category,49 or any international document primarily concerned about minority rights.50 Turkey has remained quite reluctant about or opposed to any resolution promoting the protection of cultural rights or collective aspects of human rights before the UN General Assembly. Turkey’s persistent cold-shouldering of minority protection also continues through reservations to internationally binding documents to which Turkey is a state party.51 By those reservations, Turkey claims the right to interpret and apply these provisions in accordance with the related provisions and rules of the Constitution of the Republic of Turkey and the Treaty of Lausanne of 24 July 1923. The role of ‘culture’52 in state-minority relations is also one of main concerns in this book, in particular, how this concept has been used as an effective tool to suppress minority cultures and identity. Thus this book also shows that the Turkish state’s policies on ‘culture’ under its adherence to ‘cultural nationalism’ (kültür milliyetçiliği)53 have been used as a pretext for making cultural assimilation of

48  Xanthaki 2005: 18. 49  Aral 2004: 144. 50  Turkey is not a State Party to the European Charter for Regional or Minority

Languages (1992), the Framework Convention on National Minorities (1995), or the ECHR’s Optional Protocol 12. 51  See Turkey’s reservation to article 27 of the ICCPR, article 13(3) and (4) and article 15 of the ICESCR, and articles 17, 29 and 30 of the Convention on the Rights of the Child. Turkey has signed and ratified Protocol 1 to the ECHR, but put a reservation to article 2 that it interprets this provision in line with the Law on Unity and Teaching of 1924. Turkey is also one of the few countries which has not ratified the UN Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005. The treaty framers ‘presuppose the recognition of equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples’, and require state parties ‘to adopt measures and policies to protect and promote the diversity of cultural expressions within their territory’. 52  Åkermark 1997: 31 sets out ‘the preservation of cultures’ as one of the three justifications for the protection of minorities in international law, besides the protection of human dignity of individual members of minorities and the maintenance of peace. 53  Neilsen 1999: 127 argues that ‘All nationalisms are cultural nationalism of one kind of another’. For criticism on how cultural nationalism falls into danger of ethnic nationalism see Abizadeh 2005.

12

Minorities and Nationalism in Turkish Law

non-Turkish groups possible, and amounted to ‘cultural genocide’.54 As we see in detail in Chapter 3, the Turkish state’s deliberate policies of ‘cultural nationalism’ entailing the obligatory use of the Turkish language, the prohibition of minority languages and names, the closure of Alevi religious shrines, the prohibition of their religious leaders from providing services, and so on, its measures for ‘economic nationalism’, and the ‘forced assimilation’ applied to different minority groups potentially amount to forms of ‘cultural genocide’.55 Although the physical destruction of a minority group is prohibited by the Genocide Convention of 1948, it makes no mention of cultural genocide.56 However, it is contemplated by article 27 of the International Covenant on Civil and Political Rights (ICCPR) which is considered as the first legal prohibition on ‘cultural genocide’,57 by recognizing a right not to be denied cultural differences and requiring ‘the state parties to establish an effective legal regime for the protection of minority cultures’.58 Turkey has placed a reservation to this article. As argued in Chapter 4 in detail, the notion of ‘national culture’ has also played a significant role in the Turkish state’s prolonged attempts at the destruction of the minorities’ distinct identity and culture and its imposition of the ‘national culture’, used interchangeably with ‘Turkish culture’ and the Turkish ethnie. The right to participate in ‘cultural life’ is interpreted as everybody’s participation in the national culture. The national culture, with reference to the adaptability and acceptability of others into it, later became the core of official political and legal claims emphasizing its inclusiveness. Thus, the state failed to interpret the right ‘to take part in cultural life’59 as a ‘safeguard of cultural diversity’, requiring states to be equal to all cultures with ‘non-discrimination between cultures, since no hierarchy of cultures exists, all being equal and therefore having an equal right 54  Wheatley 2005: 38 defines ‘cultural genocide’ as ‘Measures deliberately aimed at the destruction of the distinctive culture of a minority group’. Cultural genocide was described in a rejected proposal during discussion of the Genocide Convention of 1948 before the UN as a ‘deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin or religious belief such as: 1. Prohibiting the use of the language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group; 2. Destroying, or preventing the use of, libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the groups’ (emphasis added): cited in Morsink 1999: 1023. 55  Cengiz Çandar, ‘The So-Called Akdamar Museum’, Turkish Daily News, 30.03.2007. 56  However, article 2(5) of the Genocide Convention is considered as providing a limited ‘cultural genocide provision’ because it prohibits the forcible transfer of the children of one group to another Schabas 2005: 176. Morsink 1999: 1023. 57  Schabas 2000: 187; Wheatley 2005: 35. 58  Wheatley 2005: 35 and 38. 59  Article 15(1), (a) of the ICESCR. Also see article 5(e)(vi) of CERD, article 27(1) of the ICCPR, and article 31 of the CRC.

Introduction

13

to protection’.60 Instead, one culture has been imposed over the other cultures by granting the former a privileged and protected status, which is not only discriminatory, but also results in the elimination of these unprotected cultures. As demonstrated in this book, the ‘national culture’ or Turkish culture obtains constitutional protection. The Turkish state’s approach in regard to ‘culture’ and the right ‘to take part in cultural life’ is evident in its report to the Committee on Elimination of All Forms of Racial Discrimination (CERD).61 For the protection of cultures, the Turkish state cites its 9th Development Plan.62 However, an examination of this development plan demonstrates that the state’s culture policies are merely confined to the promotion of the ‘national culture’; ‘to take part in cultural life’ is contemplated as assuring people’s contribution and access to the national culture and by strengthening cultural relations with other, Turkic countries with which Turkey has ‘common history’, and the protection of Turkish languages, described as the ‘carrier of our culture’.63 Turkey also claims in its submission to the CERD that it ‘adheres with great dedication to the legacy of multi-faith tolerance and cultural pluralism’.64 Indeed, the scope of ‘cultural pluralism’ referred to in Turkey’s submission seems limited to the ‘religious tolerance’ rhetoric of Turkey,65 since the text does not carry any reference to the maintenance of unique cultures and practices of ethnically, linguistically and religiously diverse groups.66 The protection of minorities and their rights in Turkey has recently gained the increasing attention of scholars. Previously, the limited number of studies was mainly confined to the Ottoman period,67 and were interested only in the legal status of ‘recognized minorities’ – Greek, Armenian and Jewish.68 Alexis Alexandris’ study of Greek minorities in Turkey, covering the period until the 1980s, stands 60  Committee on Economic, Social, and Cultural Rights Report, 09.05.2008, para. 2 (E/C.12/40/12). 61  Turkey Report 2007 to the CERD, paras. 231–9. 62  See 9. Development Plan (2007–13), RG: 26215/01.07.2006. 63  The same emphasis on Turkish language and culture and improvement of relations with other Turkic countries and protection of Turko-Islamic cultural heritage, and so on. It characterizes the state’s cultural plan, and can be also seen in other developments plans especially since 1980. They are available on , last accessed on 10.02.2012. 64  Turkey Report (2007) to the CERD; see para. 127. 65  Turkey claims to be a land which ‘has traditionally been a home to those fleeing religious persecution throughout history’ and to have a society which traditionally is alien to anti-Semitism: see Turkey Report 2007 to the CERD, paras 127 and 137 respectively. 66  See UN study on Racial Discrimination in the Political, Economic, Social, and Cultural Spheres which described concept of pluralism as a policy ‘which aims at uniting different ethnic groups in a relationship of mutual interdependence, respect and equality, while permitting them to maintain and cultivate their distinctive ways’: cited in Thornberry 1991: 4. 67  Davison 1977, Shaw and Shaw 1997, Lewis 2002. 68  Bozkurt 1989, 1993 and Kaya 2004.

Minorities and Nationalism in Turkish Law

14

out as an exception. Since the 1990s, however, there are a considerable number of studies which examine the situation especially of ‘recognized’ minority groups (Greeks and Jews), and they are mostly dedicated to the single-party period (1925–45).69 However, these books deal with the issue from politico-historical perspectives, without specifically analysing and problematizing the role of the Turkish legal system. Thus, except for some useful accounts of a few laws, there are no specific discussions on the legal aspects of the minority issue in Turkey. The studies on non-Turkish Muslim minorities, and especially studies on the Kurdish minority, are also rapidly increasing, while other Muslim minorities are still under-studied. The existing studies nevertheless examine the Kurdish issue from socio-political points of view, mainly centre on the PKK–state conflict, and contain limited references to the Kurdish issue from the minority rights or legal perspective.70 With its more holistic approach to the Turkish legal system and all the different minorities, this book fills an important gap in the theorization of state-minority relations in law. The reason for the lack of a holistic approach lies in the prominent assumption that the legal system does not take into account non-recognized minority groups (Kurds, Laz, Alevi, Chaldeans, Assyrians, and so on). As we see in this book, however, those unrecognized minority groups have always been a concern of the legislative bodies as well as the Turkish judiciary. Oran’s study is worthy of mention because it points to the most problematic areas of law in the protection of minorities. However, Oran himself states that his is the first work on the topic and refers to his own work as a mere ‘introduction’ or ‘handbook’.71 Moreover, his approach to the minority issue remains problematic in many ways, since he opposes the protection of minorities through special laws because this results in ‘making minorities to be target of the majority’; instead, he offers ‘expanded and deepened democracy’ as a model for overcoming the shortcomings of ‘multiculturalism and minority protection through special rights’.72 Although the influence of Turkish ethnic nationalism on the conceptualization of the nation, citizenship, and so on, has been noted by many writers,73 it has been written about mainly with respect to the single-party regime. This study takes a critical position regarding this period-limited problematization of the management of diversity. Instead, it claims that the philosophy of the one-party period was in fact very much alive and relevant throughout the Turkish Republic and, even today, ethnicity remains one of the most important criteria for obtaining Turkish citizenship. This book argues that the nationalist political discourse has configured every aspect of the law. It also argues that Turkey’s deep-seated anxieties regarding the 69  70  71  72  73 

Okutan 2004, Çagaptay 2005, Aktar, 2004 and 2006, Bali 2005. Romano 2006, Özcan 2006, Taşpınar 2004, Kirisçi and Winrow 1997. Oran 2004. Oran 2006. Özbudun 1997, Gözler 2001, Parla 1995.

Introduction

15

acknowledgement and full recognition and protection of its minorities and their rights has deep historical roots. However, it challenges the tendency to examine Turkey’s policy on diversity with mere reference to religion, and more specifically to the millet legacy.74 This book asserts that such claims reduce Ottoman pluralism to the millet system, and deny and fail to understand dynamics of pluralism during the Ottoman period. The book argues that such views are the result of an ideological choice, which considers that Muslims were subject to the same laws and treatment under a single Muslim status, thus establishing the justification for imposing uniform legal treatment during the Republican period. However, as shown in Chapter 1, due to the special administrative configuration of the Ottoman Empire, many non-Turkish Muslim groups also kept their linguistic and ethnic characteristics as well as their distinct laws and legal systems. Thus, many parallel legal systems and laws functioned at the same time, and the various Muslim communities had never been under same legal status. This book shows that the roots of the minority dilemmas of the Republic cannot be understood without taking account of the transition from the imperial-state structure to the modern, nation-state structure, and the ruling elite’s perception of the mutual incompatibility of diversity and the modern nation-state. This book is also critical of the prominent academic discourse on the reasons for Turkey’s persistent failure to protect differences, which mainly concentrates on Turkey’s trauma caused by the minorities’ nationalisms and secessionist desires during the last century of the Ottoman Empire. This ‘trauma discourse’, often crystallizing around the notion of the ‘Sèvres Syndrome’,75 is problematic since it only tells the story from the Turkish ruling elite’s point of view. This posits the Turks as the ‘victim’ of untrustworthy minorities, legitimizes the Turkish political elite’s discourse of nationalism by portraying their nationalism as a mere reaction to separatist minority nationalisms, and proves to be a convenient psychological explanation for the state’s security-driven policies in the management of diversity. Turkish nationalism thereby comes to be read as a ‘defensive’ and ‘compelled’ nationalism and, ultimately, a ‘positive’ nationalism,76 non-aggressive and nonthreatening to the well-being of non-Turkish groups. This book revisits this discourse by highlighting the Ottoman elite’s vision of the future of the state and accommodation to its plural society as evident particularly from a study of the parliamentary records. These records are also important in demonstrating the effect of this vision on the non-Turkish elements, their frustration and disappointment

74  İçduygu and Soner 2006. 75  Oran 2003. For the role of Sèvres Syndrome in Turkish foreign policy, see Jung

2001.

76  The Prime Minister Tayyip Erdoğan has also referred to Turkish nationalism as ‘positive nationalism’. Bora 2010: 19 argues that the ‘positive’ aspect of Turkish nationalism comes from Turkish politicians’ enthusiasm to achieve the economic development and welfare of the country.

16

Minorities and Nationalism in Turkish Law

with it, as well as their own ideas of the future of the Empire, in order to understand the role of the state policies on their position. This study also significantly extends the existing scholarly work on minorities and the Turkish legal system by examining the jurisprudence of the higher courts and the AYM from the perspective of the protection of minorities. There are few studies on the Turkish courts’ views and jurisprudence on minorities. Only few short articles77 and a chapter of a book,78 specifically examine the AYM’s jurisprudence on the minority issue and their content remains very limited. This study therefore offers an unprecedented examination of the attitudes and role of the judiciary. This book makes extensive use of primary sources including legislation, jurisprudence (case law), parliamentary discussions and explanatory notes to legislation. It makes use of the records of the Ottoman Parliament (Meclis-i Mebusan, MM), as well as the Turkish National Parliament (Türkiye Büyük Millet Meclisi, TBMM). These are invaluable sources not only for the parliamentary discussions on the proposed laws but also for the texts of draft and actual legislation. The Lausanne Conference Records have also been used for an analysis of the background to the Lausanne Treaty. As with the other materials used, the case law of the higher courts and the AYM has been re-read from a minority perspective. To access the Turkish higher courts’ and the AYM’s case law, electronic legal databases as well as the TBMM library and Official Gazette (Resmi Gazette, RG) were used. The private libraries and collections belonging to the author’s lawyer colleagues were also used in this study, including material from the archives of various courts.79 Breakdown of the Book The book is divided into two main parts. The first part is concerned with historical legal developments regarding minority policies in Turkey, while the second part concentrates on legal and conceptual problems occurring in the Turkish legal system regarding protection of minorities in recent decades. In Chapter 1, the Ottoman Empire’s system of diversity management is considered. A study of this period is also significant for establishing that the politico-legal dilemmas of the nineteenth-century Ottoman Empire remained significant in the new Turkish Republic. Thus, the dilemmas of minority-state relations occurred as a result of the impairment of the conventional pluralistic configuration in the nineteenth century. 77  Çavuşoğlu 1995, Kaboğlu 1999, Akbulut 2005. 78  Bozdağ 2004. 79  The referencing style to the case law requires some explanation. The Turkish

higher courts’ judgments generally do not contain page numbering when published. In referencing these cases therefore I have only used a case number and date. However, in referencing to the AYM’s jurisprudence in the political party cases, we only give the abbreviation of the name of the political party and closure year. However, the full reference to these cases is shown in the ‘List of Judgments’ at the beginning of this volume.

Introduction

17

We examine the status of ethnic and religious minorities during the period of the Ottoman Empire, and the legal changes the Ottoman state went through in the last century of the Empire, to establish how the conventional status of diverse communities came to be diminished by the increasing influence of the modern state concepts of egalitarianism, secularization and citizenship. The effect of increasing Turkish nationalism on the demographic aspects, and the economic and social life, of the Empire’s diverse communities is also examined and discussed. Chapter 2 is about the Independence War period 1919–23, when the new nation-state’s founding will was disclosed. The main question for this chapter is to examine how the multi-cultural, multi-ethnic, multi-religious population of Anatolia and the Ottoman Empire came to be transformed through the Turkish national struggle into a Turkish nation-state, while non-Muslims and non-Turkish Muslims became the ‘other’ in that state. It is important to focus on this period since it is used in political, intellectual and legal discussions on identity and the management of diversity as a foundational moment to legitimate the present situation in Turkey. The period also gave rise to key foundational documents, including the Lausanne Treaty of 1923, where the legal status of ‘minorities’ was designed in a dialectic with the foundational documents adopted at domestic level. Chapter 3 examines the policies during the nation-state period with special emphasis on the period 1923–60s regarding diversity management. The footprints of the policy of Turkification from a legal perspective are tracked, with the discussion mostly confined to the laws, regulations, parliamentary discussions and jurisprudence demonstrating how the law was utilized to achieve Turkification. The Turkification policy is scrutinized under three headings: Turkification in culture and language in the name of ‘cultural nationalism’ which targeted non-Turks and non-Turkish-speaking minorities regardless of their religion; Turkification of the economy which mainly targeted non-Muslims, and, finally, Turkification by forced assimilation with its civilizing mission in the case of the Kurds. Chapter 4 examines how Turkish legislation has defined the ‘nation’ and ‘citizenship’ and evaluates how inclusive that legislation has been. To what extent have Turkish ethno-nationalist tendencies been adopted in the legislation and to what extent has the legislation reflected diversity and accommodated minorities? Who is a ‘Turk’ according to Turkish law? The role and relevance of the concept of Turkish race in Turkish law is also examined. In answering these questions, not only are the currently valid Constitution and legislation examined but, for a properly historicized perspective, their historical antecedents are also traced back. In Chapters 5 and 6, there is a more specific examination of the extent to which minorities have been accommodated within the Turkish legal system. Chapter 5 analyses the jurisprudence of the AYM, as the highest court of the land, which has the authority to interpret the Constitution. More specifically, by examining the cases concerning the closure of ‘minority’ political parties dealt with by the AYM, it becomes clearer how the concept of ‘civic/territorial state’, which has been officially defended by the state, is understood by that court. Through the case law of the AYM, more is discovered about how the concepts of ‘nation’, ‘minority’

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and ‘citizenship’ are legally conceptualized. While it should be clearer from the discussion thus far that the Turkish ethnic group’s culture, language, identity and history have been emphasized within political settings, Chapter 5 casts further light on the senior judiciary’s approach to the pressures for recognition and change brought by minority groups in light of the official ideology. In Chapter 6, the provisions on equality, non-discrimination and the prohibition of racism in Turkish legislation, which are claimed to be maintaining social peace and order, are tracked alongside the Turkish higher courts’ jurisprudence on these provisions. An assessment is made of how issues of diversity have been handled in Turkish jurisprudence in practice, how these laws have been utilized, and how adequately they have been used in order to protect minorities either as individuals or as groups. In so doing, we witness the reconstruction of official nationalism by the judicial bodies within the legal system and the judicial bodies’ role and effectiveness in preventing nationalist-inspired violence.

Chapter 1

The Ottoman Empire and Minorities The Ottoman Empire is famous for its functioning pluralist society over vast territories and through several centuries. However, it was this very plurality which is blamed by many for having paved the way to its collapse. The question of what went wrong with something that was functioning earlier therefore needs addressing. Moreover, since the legacy of the Ottoman Empire continued in many post-Ottoman states, including the Turkish Republic, it is arguable that the politicolegal dilemmas of the Empire remain significant even today. It would not be wrong to say that the dilemmas of managing of diversity in Turkey actually find their roots much earlier, in the reforms of the nineteenth century. We therefore attempt to trace the roots of Turkey’s failure by exploring the historical setting that gave rise to it and establishing the continuity of the Ottoman state’s legacy in Turkey. Karen Barkey attributes the Ottoman Empire’s successful management of plurality to two factors. First, it had an intrinsic flexibility and ability to adapt to ever-evolving conditions.1 Secondly, it was a ‘negotiated enterprise’,2 where imperial power was negotiated between the state and diverse communities, and where dissent paved the way for the creation of various intermediate agencies and diverse rules in the service of establishing order and stability in the Empire. However, it is important to note that not all groups were entitled to enter into such negotiation, and the ‘amorphous and unorganized network’3 of non-Sunni Muslims and other heterodox/heretical religious and sectarian dissentients were not only left out; they were also subject to ‘persecution, assimilation and exclusion’.4 Since ‘flexibility’ and ‘negotiation’ were key pillars of the imperfect plurality of the Ottomans, their loss, especially through the reforms of nineteenth century which were designed to chart a path to a modern nation-state, would not only mark the end of this plurality but also the Empire itself. In this context, it is important to examine the transformation of the Ottoman Empire’s socio-legal structure in relation to the management of diversity in its latter phases. The mainstream view is that the Empire’s classical diversity management system failed chiefly because of the influence of nationalist ideas among nonMuslim and non-Turkish groups, aided by the economic and political interventions 1  Barkey 2009: 7, and also see Karpat 2000: 4. Barkey 2009: 21 also attributes the longevity and success of empires more generally to their ‘openness and their ability to accept different peoples into their polities, even though they changed these people in the process’. 2  Barkey 2009: 68. Also see Barkey 1994. 3  Barkey 2009: 190. 4  Ibid.: 155 and 160, and also see Ortaylı 2005: 177.

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of some western powers. This book problematizes this dominant perspective by adding into the equation the role of the Ottoman leaders’ changing vision of transformed statehood – from an empire to a modern nation-state – which would require a reformulation of classical state-society and intercommunal relations. An interdisciplinary approach is adopted here, taking into account the history and the politics of managing diversity with a focus on the Tanzimat legal reforms. The role of nationalist ideas’ influence on the political elite and changes in the sociolegal and political system is taken into account as possible causes in the Empire’s collapse and the end of its pluralism. The reception of these changes by, and their impact upon, the diverse communities will also be examined as another factor in the collapse of the pro-diversity structure of the Empire. There is a general acceptance that the state-subject relationship in the Empire was premised on the population’s religious affiliations as Muslims and nonMuslims under the so-called millet system (the millet system is discussed in section 1.1 below). However, this dominant reading of Ottoman plurality through the prism of the Muslim/non-Muslim dichotomy does not do justice to the pluralist Ottoman structure: cultural, ethnic, linguistic, economic, regional and other factors also had a place in conditioning the state’s relations with its subjects and its various communities. I claim that, as well as the so-called millet system, another distinguishing feature played a significant role in this plurality and that was its flexible and pragmatic organizational and political system, whereby the peripheries enjoyed a certain degree of autonomy outside of the control and administration of the centre. This distinctive, decentralized and flexible organizational system created a framework for negotiating the pluralist reality of the peripheries beyond the millet system, thereby accommodating their traditional social, legal and other differences within the Empire. Studies of Ottoman pluralism which depend on the Muslim/non-Muslim distinction5 can also be critiqued because of their implicit portrayal of the Muslim population as a single entity, having the same legal status, being subject to same legal system and laws, and without significant internal differences.6 Since there was no general law or uniform legal system in the Ottoman Empire, like the nonMuslim communities, Muslims also dealt with their legal matters according to their traditional, customary, cultural and denominational codes or practices, rather than through a singular application of the sharia from the Hanefî viewpoint. For instance, in many provinces, Shâfi’i, Mâliki, and Hânbalî kadıs (judges) operated

5  For such a view, see İçduygu and Soner 2006: 449, who claim that ‘It was doctrinally believed that Muslim subjects constituted a compact religious brotherhood of umma community within which there would be no legal sub-division. Not only ethnic and linguistic but also sectarian differentiation was strongly denied among Muslim people.’ For a study on the importance of ethno-regional solidarity in Ottoman society in the seventeenth century, see Kunt 1974. 6  For opposing view, see Kenanoğlu 2004: 395–6.

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alongside the centre-appointed Hanefîkadıs.7 Further, application of tribal laws by sharia courts and, perhaps more importantly, the existence of tribal courts (mahâkim al-aşahâir) 8 tells us more about diverse legal status of Muslims in the Empire. Legal pluralism in this context should be considered as another aspect of Ottoman pluralism and state-subject relations, whereby various groups negotiated their rights and created spaces for their differences, customs and identities, and acquired recognition in the Ottoman legal system. As Tamdoğan suggests, the ‘mutual recognition of, and interaction between, the court and other sociolegal arenas indicates that neither venue operated in isolation’; rather sharia, örf (local customs) and kanun (state legislation) interacted and were recognized in Ottoman legal culture.9 Sugar also describes the law in the Ottoman Empire as ‘not centralized-territorial but practically territorial-individual, because every individual’s religion, occupation, place of residence, status in society, and sex determined the law that was applicable to him or her’.10 Thus, it is not possible to assert a uniform legal status for the multi-ethnic Muslim communities of the Empire, since no uniform laws and legal procedures were applied for everybody or everywhere. Further, the life and the legal status of distinct groups – Alevi, Yezidi, Druzes, and so on – who did not fall neatly onto either side of the Muslim/ non-Muslim dichotomy, remains as yet underexplored. The nineteenth-century reforms marked the end of these conventional configurations as the state was being centralized by the modernizing of its organizational structure, and it shifted from the traditional millet structure premised upon self-regulated, diverse, autonomous societies, to the modernist European emphasis on a centralized state and a nation with a common secular sense of territorial loyalty with uniform legal and education systems.11 While transforming itself into a modern state, it became more associated with Muslim-Turks, thereby also creating its ‘others’. These changes were seen by non-Turkish Muslims and non-Muslims alike as a threat to their existence. As we see in this chapter, to a certain extent, the idea of a modern state with its ‘civic’ qualities emerged under the ideal of Ottomanism (Osmanlılık) in the state’s official discourse and legal system. Karpat defines Ottomanism ‘as an attempt by the Ottoman government to use single citizenship as a common political identity in order to achieve equality and unity among all Ottoman subjects and supersede 7  See Singer 1994: 28, who refers to kadıs from four different Islamic schools of law in Jerusalem. Findley 1986: 3 mentions a ferman confirming Mâlikikadıs in Trablus al Gharb (Libya) and Shâfi’i kadıs in Hatay, Diyarbakir, Iraq and other locations. Also see Sonbol 2003 for the situation in Jordan. 8  Layish 1986: 28. Also see Sonbol 2003: 20. 9  Tamdoğan 2008: 83. 10  Sugar 1996: 7. 11  Karpat 2000: 5 and 26 argues that modernity and reaching the level of ‘contemporary civilization’ were part of the ‘supreme ideology’ espoused by the Ottoman elites, regardless of their ideological adherence to Ottomanism, Islamism, or Turkism.

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differences of faith, ethnicity and language’.12 The ultimate aim of this project was to achieve a transformation of the subjects of the Sultan into a ‘nation’ (millet), where people would identify themselves with the fatherland (vatan) and not with their ethno-religious or tribal identities; traditional fragmented loyalties were to be replaced by loyalty solely to the state.13 The desire for ‘homogeneity and a uniform political culture’ in the ideology of Ottomanism posed a threat to conventional Ottoman state-society relations under which the plural reality of locality had been recognized and accommodated, and that would soon create a counter-reaction from the periphery.14 Although the aims of Ottomanism could not be completely accomplished, given that Ottoman statesmen were so conditioned by the Empire’s traditional structures and presuppositions, the millet system’s legacy of inequality and hierarchy, as well as the role of emerging nationalisms and particularly Turkish nationalism and the Orientalist tendencies of Ottoman modernity, with ‘a reformist and modern centre pitted against conservative and traditional regional actors’, can also be highlighted here.15 In addition, Ottoman pluralism which paved the way to the differentiated treatment of diverse communities on various grounds cannot be explained along the lines of a minority protection regime.16 This is because Ottoman pluralism was a way of dealing with the reality of diversity through various methods developed over time, and through many negotiations between the state and communities, as way of ensuring peaceful coexistence and the viability and durability of the political establishment, rather than being the state’s one-sided concessions to distinct non-dominant communities. In an imperial setting, pluralism was the raison d’être of a state where difference and diversity were tolerated because it had something to contribute to ‘imperial welfare’;17 that is, it was an internal component of statehood. It can be distinguished from the version of pluralism which has emerged in nation-states taking the form of minority protection regimes in an environment where unification and standardization through nation building, with a unified legal system and education, have been considered to be the raison d’être of statehood. By comparison to the imperial model, minority protection appears like a flimsy attachment to the nation-state system, deemed to be posing an obstacle to the desired uniformity, a burden to be borne. In this chapter, we examine the status of ethnic and religious communities during the period of the Ottoman Empire. In doing so, we look at the millet system (1.1), which regulated the relations between non-Muslims and the state, and also, the Ottoman semi-autonomous administrative system as it 12  13  14  15 

Ibid.: 6. Ibid.: 6. Ibid.: 17. Barkey 2009: 195. For more detailed studies on Ottoman Orientalism see Makdisi 2000 and Deringil 2003. 16  Jung 2002/2003: 135 and see İçduygu and Soner 2006. 17  Barkey 2009: 110.

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accommodated ethno-religious differences (1.2). We then turn to examining how these essentially pluralistic systems of governance changed during the Tanzimat period from 1839, and how the conventional status of diverse communities came to be diminished by the increasing influence of the modern state concept of egalitarianism, secularization and citizenship, as well as increasing ethnicization and standardization of the imagined nation (1.3). We go on to examine the İttihat ve Terakki Cemiyeti (Committee of Union and Progress, İTC) era from 1908 to the end of the Empire, and the effect of Turkish nationalism on its demographic aspects, and the economic and social life of the Empire’s diverse communities (1.4). During this research on Ottoman plurality, I found the Ottoman parliamentary records to be a fascinating source of information, since they provide an insight into Ottoman socio-political life in the process of the Empire’s eventual collapse. The records also tell us important stories about non-Turkish and non-Muslim members of the Ottoman Empire, and their views about the idea of Ottomanism. These records are valuable for appreciating the level of sophistication during that period in discussions about the functioning of a ‘super-diverse’ society.18 They also offer a fascinating window into exploring how, once the Ottoman state lost its culture of flexibility and negotiation, diverse communities struggled to express their positions. They reveal, for instance, those diverse communities’ desire and tendency for negotiation, while the ruling party, the İTC, imposed its view upon others. Those records therefore deepen our understanding of the reasons for the collapse of the Empire which cannot be attributable solely to the so-assumed ‘nonMuslim, non-Turkish traitors’. They tell us a lot about the role and influence of Turkish nationalism on the ruling elite and their implementation of Ottomanism, with its negative impacts on the diverse communities of the Empire. 1.1 The Millet System The Ottoman traditional millet system was an administrative structure in which the management of certain communities was organized with reference to their religious affiliations. Thus, in line with Islamic law, non-Muslim ‘People of the Book’ were organized under the millet structure and subjected to dhimmi status (zimmi in Turkish) where their lives, honour, property, cemeteries and corpses, and the free practice of their religion were protected on condition of their loyalty to the state and acceptance of their inequality and subordinate status. There were some other restrictions on them, for instance, non-Muslim men could not marry

18  The term ‘super-diversity’ is now fashionable in social science circles since its coining by Vertovec 2007.

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Muslim women, testify against a Muslim,19 or inherit from a Muslim.20 They were also liable to a poll tax,21 and prohibited from riding horses and building new places of worship,22 only being allowed to repair existing ones. They also had to wear distinctive clothing and other signs.23 None of these restrictions were strictly applied. The millets were organized upon the Porte’s (Sultan’s) unilateral declaration (berat).24 Rights and freedoms were granted without being subject to ‘renewal, abolition, or limitation’.25 In this system, the state continued to regulate the social and economic life of the community while not involving itself in the cultural and religious life of the communities.26 The millet communities, as quasi-autonomous civil units, were administered by the clergy, who were considered the representatives of their co-believers, and had functions over church organization, educational, judicial and civic matters, and the administration of charitable properties. They were allowed to collect taxes for these functions under the scrutiny of the state, which ensured against abuses.27 Except in the political sphere, where Muslims were considered superior to other communities, the ethno-religious communities were arranged as ‘in vertical

19  Some recent studies conducted on kadı court records (sicilleri) show that the ‘rule’ was not applied without exceptions. For instance, in cases where a state official was accused of misconduct, the courts allowed a non-Muslim to testify against a Muslim: see Joseph 2009: 345–6. Also Ekinci 2010: 48 states that the testimony of non-Muslims against Muslims was accepted by the Ottoman courts in some cases, and mentions a fetvâ in this regard by Şeyhülislâm Ebussuud Efendi. 20  Bozkurt 1989: 8, Taştan 2001: 137–59. 21  Mostly thought of as a tax collected from all non-Muslims, in reality, it was obtained from certain people. Karpat 1982: 150 states that only one-third of the nonMuslim population paid the poll tax since non-Muslim females, children, infirm males, the aged and slaves as well as members of prominent families in government services were exempt. As Özcoşar and Güneş 2006 write, there were two types of tax, fixed (maktu) and individual (alerruüs). The former was determined at the time of peace negotiations (sulh) after conquest (this type of tax was collected, for example, from Eflak (Wallachia), Boğdan (Moldavia) and Dubrovnik (Croatia)). The latter sort was collected according to an individual’s economic situation. Over time this tax was transformed as land-use tax (haraç), then poll tax (cizye), and then conscription tax (bedel-i askeriyye), and it was ultimately abolished by law in 1909, when compulsory conscription was introduced for everybody regardless of religion. 22  In the classical age of the Empire, non-Muslims were in principle not permitted to build new places of worship. However, recent studies have shown that this was not strictly applied and the building of many churches, synagogues, and so on, had been permitted and restrictions were loosened especially after the Tanzimat: Demirel 2005: 211–22. 23  Faroqhi 2000: 25; Levy 1991: 16. 24  Bozkurt 1989: 29. 25  Karpat 1982: 145. 26  Ibid.: 143. 27  Bozkurt 1989: 30, Davison 1954: 845.

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parallel “columns”’.28 Although inter-communal tension and crisis exploded from time to time, in general, the various communities ‘lived in peace and even mutual respect’,29 in close proximity, and traded, went into partnership, and developed many relationships with each other. This meant that in many incipient ways the various communities were influencing each other’s cultures, tastes, mores and even languages.30 The sizeable flows of Greek immigrants into the Ottoman west coast for economic reasons, even after the establishment of an independent Greece,31 might be a significant indicator of this relatively peaceful coexistence and of the relative insignificance of nationalist currents over the masses at the beginning of the nineteenth century. The legal basis of the millet system is generally explained by reference to the ‘Constitution of Medina’32 and by the role of tolerance in Islam.33 However, Karpat 28  Faroqhi 2000: 12. 29  Levy 1991: 16, who also refers to the Ottoman Empire as the ‘most tolerant

Muslim state ever to exist’. The Ottoman Empire’s pluralistic position in its relations with non-Muslim minorities was accounted for by the Ottoman rulers’ pragmatism and the state’s affiliation to the Hanefî school of Islam, the most liberal denomination of Islam, as well as the participation of non-Muslim converts in the state’s administration through the devşirme system, which facilitated the recruitment of non-Muslim boys, who rose by ability and talent after going through special education and training in high-ranking military and civil posts: Brown 1996: 14. Çelik 2004: 7 states that this prospect was not open to all non-Muslims; Jews, non-Muslim Roma, Wallachians, Romanians, Moldovians, and so on, were not recruited as devşirme. Throughout its history, almost half of the 215 grand vezirs of the Ottoman Empire were non-Turkish and non-Muslim: Davison 1977: 393. The devşirme method of recruitment was gradually abandoned after the sixteenth century, when the Muslim identity of the state began to be dominant and that may well be a contributory factor in the alienation of non-Muslims from the state: Kunt 1982: 63–4. 30  Levy 1991: 17, and see Davison 1954: 845 for a similar view. 31  Clogg 1982: 195. 32  The Constitution provided Jews protected minority status in Medina where the followers of the Prophet Mohammad was numerically dominant: Taştan 2001: 137. 33  Barkey 2009: 110 argues that ‘emphasis on a religious and cultural rationale for toleration leads us away from the political, economic and mainly administrative functions of toleration in a multiethnic, multireligious empire.’ She further argues that the organizational basis for toleration developed as ‘a way to qualify and maintain the diversity of the empire, to reorganize the different communities, to establish peace and order, and to ensure the loyalty of these communities, and had little to do with ideals or with a culture of toleration. Toleration is neither equality nor a modern form of “multiculturalism” in the imperial setting. Rather, it is means of rule, of extending, consolidating, and enforcing state power. Toleration is therefore one among many policies of incorporation such as persecution, assimilation, conversion, or expulsion.’ She thus defines toleration as ‘more or less the absence of persecution of people but not their acceptance into society as full and welcomed members. Toleration refers to the relations among different religious (and ethnic) communities and secular authorities, and is the outcome of networked, negotiated, and pragmatic forms of rule.’

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attributes the development of the millet system in the Ottoman Empire to the socio-political conditions in the Balkans, where religiously and ethnically diverse communities came under the Islamic Ottoman state.34 Further, he distinguishes the millet system, which recognized the ethnic and linguistic particularities of various communities, from the classical dhimmi concept of Islamic law, which considers all non-Muslims as part of one uniform dhimmi group on the basis of faith.35 İnalcık also takes the view that the Ottoman system went beyond the limits of Islamic law.36 He claims that it was intended to reconcile diverse communities and gain their support by recognizing their religious and cultural freedoms and giving them the autonomy to regulate their private sphere. A general reading of the millet system suggests that religion was the only legitimate criterion determining legal status in Ottoman Empire. However, to categorize the state-subject and state-community relations solely along religious lines does not do justice to the Ottoman social structure, since cultural, ethnic, linguistic, economic, regional and other differences had a place in the determination of the state’s relations with subjects or various groups. The evidence runs contrary to the general acceptance that the state-subject relationship or their legal status in the Empire was solely premised on the religious affiliations of people. Karpat claims that ‘it is extremely difficult to claim that the mere fact of being non-Muslim conferred automatically a dhimmi status upon an individual’.37 Other factors came in to condition the status of subjects beyond the division based on religion. For instance, İnalcık states that tax obligations were the most important factor in determining the subjects’ status.38 The fiscal structure of the Ottoman Empire, which divided society according to the rulers (askeriye) and the governed (reaya), gave the millet system a characteristic beyond the classical dhimmi division. Indeed, the reaya, which comprised peoples of all languages and creeds, were the main tax bearers. Meanwhile, the askeriye class, consisting of the ruling elite, military personnel, and those non-Muslims performing certain administrative duties within the millets or in the state,39 were exempted from liability to taxation because of their service to the state.40 This functional division 34  35  36  37  38 

Karpat 1982: 148. Ibid.: 149. See similarly Bozkurt 1989: 8. İnalcık 1998: 196. Karpat 1982: 150. İnalcık 1964: 44. Karpat 1982: 150 states that ‘tax status among Ottoman subjects was determined chiefly by service to state rather then religion.’ 39  Poş 2008: 595 notes that Armenians living in the Tales of Külek in the Tarsus region were exempted not only from the poll tax but also the tobacco-use tax (resm-i duhân). Likewise, Akgündüz 1994, on the Yavuz Sultan Selim and Kanuni Sultan Süleyman period, shows Kanunnames (legislations) containing these kinds of tax exemptions for nonMuslims in various regions. 40  Karpat 1982: 150, Davison 1977: 393–4. Meanwhile, Barkey 2009: 70 compares askeri status to citizenship in the Roman Empire since ‘Both were structurally similar and performed a comparable task for the imperial institutions: assimilation’. In line with

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incorporated members of non-Muslim communities into the Ottoman ruling class (askeri) without expecting them to convert to Islam.41 Recent studies of kadı court sicilleri (records) in Greece, Cyprus, Tarsus and other places have demonstrated that inter-communal relations or the relations between the state and non-Muslim communities were not regulated strictly by reference to the rights, obligations and restrictions drawn by the classical millet system and Islamic law. For instance, these records illustrate that the kadı courts were used widely by non-Muslims, and not only for criminal law matters, but also for personal law matters involving only non-Muslim parties, even though in such cases they could have used their own community courts. They also show that not only did Muslims testify in support of non-Muslims in many cases, but also that Muslims were represented by non-Muslims before the kadı courts because of their extensive knowledge of the law. These records also show that some Islamic rules found to be beneficial to them, such as demands for mehir (dower), securing a divorce, or registering a marriage, were claimed by non-Muslims through the kadı courts.42 The ‘atypical’ legal status of the Roma in the Ottoman Empire is also interesting to mention here, since their status counters the general perception that the legal status of the subjects in Ottoman Empire was determined by the religious affiliation.43 With the Kanunname-i Kiptiyan-i Vilayet-i (the Law on Counties of Roma) from the sixteenth century onwards, the Roma in Rumelia were administered under a unit called liva-i çingane/çinganesancağı (province of Roma), which was not a geographical entity, but rather an administrative unit based on ethnicity.44 Ethnicity was the main determinant of their administration regardless of their being Muslim or non-Muslim.45 However, while religious affiliation had importance for taxation, it was not the only determinant since exemptions from certain taxes could be authorized on account services to the state especially for provision of expertise on iron production and auxiliary service in the army.46 More importantly, the millet order was not a minority protection system in the modern sense, but an organizational structure for dealing with non-Muslim diversity within a plural society. Thus, to picture Ottoman society along the this, İnalcık 1954: 115–16 states that giving askeri status to Christian cavalrymen, local notables, and those individuals who performed certain duties for the state paved the way for their later ‘assimilation’ through conversion to Islam. 41  Kunt 1982: 59. 42  For detailed accounts of these sorts of cases, see among others, Joseph 2009, Çıçek 2002 and Poş 2008. 43  Çelik 2004: 5–6. 44  Ibid.: 6, who also states at p. 7 that with an imperial decree of 1517 the Copts (Kipti) were put under the Armenian millet as were the Ethiopians and Syriac Christians. 45  Ibid.: 6. 46  Ibid.: 10.

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lines of a Muslim versus non-Muslim or majority–minority dichotomies is too simplistic, and is in fact loaded with political agendas which are a by-product of later developments in the nineteenth and twentieth centuries.47 More importantly, they are a product of a modernist reading of Ottoman social reality, occluding the scope of Ottoman plurality by negating differences among various Muslim communities, pushing them into universalizing categories by asserting their Muslim unity, and undermining its parochialism. 1.2 ‘Organisational Diversity’ as a Source of Plurality in the Empire The traditional millet system is widely cited as having marked the limits of Ottoman pluralism. However, besides the millet system, the Ottoman state’s distinctive decentralized administrative system also acknowledged the pluralist, multi-ethnic, multi-religious and legal pluralist reality of its peripheries and, to a certain extent, accommodated their political, traditional and ethno-social differences within the state. The Ottoman Empire did not have a single, uniform, organizational structure applied in all imperial territories. Rather, the Empire’s organizational structure, which was in most cases determined at the time of annexation to the Empire, varied from area to area, according to their habitual, customary, social and economic circumstances.48 Hence, negotiation at the time of annexation to the state also determined the rights, obligations and legal status of the groups in the Empire while making it possible for the religiously, linguistically and ethnically assorted communities to live autonomously and to keep their diverse characteristics. Barkey describes the Ottoman state’s institutional and organizational structure as ‘flexible’ and ‘diverse’, accommodating ‘multiple systems of rule, multiple negotiated frontiers, laws and courts, forms of revenue management, and religious diversity’.49 Due to the Ottoman Empire’s pragmatic organizational diversity it is not easy to give its full picture, but a rough description could be given. The Ottoman Empire’s organizational system was geographically divided into eyalets, the largest administrative divisions, which were further divided into sancaks, kaza, nahiye and karye (village). While some areas (sancaks) were registered for taxes (under the tımar system) and governed mostly by centre-appointed local notables and kadıs, the others enjoyed provincial autonomy in their internal matters and had an autonomous fiscal organization.50 This administrative feature of the Empire had an important outcome, especially for the legal status of non-Turkish Muslim groups, 47  48  49  50 

See Karpat 2000: 17. Kodaman 1986: 10. Barkey 2009: 70. Ortaylı 1979: 52 states that sancaks were the main administrative units under the timar system. However, the Ottoman tımar system örfî laws was not applied in Egypt, Baghdad, Ethiopia, Basra, Láhsa (this territory is now divided between Kuwait and Qatar), since they had some sort of autonomy. Besides this, there were some ‘privileged province

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even though they were later considered as unified under the universal, single Muslim millet. Since this study restricts itself to minorities currently existing in Turkey, we only discuss the impact of this administrative structure over the southeastern part of Turkey, which is still at the borders of contemporary Turkey, and is largely populated by Kurds who are the biggest minority group in Turkey.51 The Ottoman Empire conquered the south-eastern part of Anatolia with the help of the Sunni Kurdish tribes following the Çaldıran War of 1514 against the Shia Safavid state of Iran. In return for the Kurds’ assistance, the Empire acknowledged the autonomy of the Kurdish tribes in the region. The administrative system in the region was drawn up by the Kanunname-i Osmani (Ottoman legislation) with negotiations of İdris-i Bitlisi, a well-known Kurdish notable and statesman in the Ottoman Empire.52 Kodaman classifies the status of the Kurdish areas using three different administrative configurations.53 The first was the classical Ottoman Sancaks administration, which was applied mostly in urbanized areas where the Kurdish tribal (aşiret) order was not especially strong. Although the local governor (sancak beyi) was appointed by the centre from among the local notables of the region, they were granted their domains as family properties (ocaklık or yurtluk) with the right to pass them onto their descendants.54 At the same time, these areas were considered as coming within the scope of the state’s central administration. The governors had military and administrative duties and taxes were collected by the state. There were not many of these sancaks in the region. The second type of administrative unit was the Ekrad Sancaks.55 The governance of these sancaks was given over to the local dynasty or beys due to their assistance to the Ottomans in the conquest of the area. The authority of the local notables could not be taken away by the centre and it passed from father to son unless they betrayed the Empire. These areas were registered for tax, and the centre also sent kadıs (judges) who had financial and legal authority. The third type was the Hükümet (government) Sancaks. These areas were not registered for tax by the centre and their governance was absolutely left to local notables. They were thus outside of the Ottoman administration since they were ‘mefrûzülkalem’and‘maktuül-kadem’. These areas were not subject to the powers of state (eyalets)’ – of Eflak, Boğdan, Erdel (Transylvania), Dubrovnik, Crimean, Algeria, Tunisia, Libya, and so on – which had greater autonomy. 51  For the similar autonomous status of Albanians and how that changed through the policies of Ottomanism and centralization, see Sönmez 2007: 135–44. Also for its effect on Transjordan and other Arab territories, see Rogan 1999: 70–95, 160–84. 52  Akgündüz 1994, Vol. III: 216–17 asserts that the legal source of the status of the Kurdish tribes in the region has its roots in the predecessor state of Akkoyunlu, which had a similar administrative system in the region for the Kurds. 53  Kodaman 1986: 15–25. Also see Akgündüz 1994: Vol. III, 213–14 and Özoğlu 2004: 53–63. 54  See also Barkey 2009: 92. 55  ‘Ekrad’ is a name used in Arabic for the Kurds.

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servants and they could not collect taxes there.56 The local notables obtained their power from an ‘ahidnâme’ (contract, treaty) due to their assistance to the Ottoman army during the conquest of the region. They had absolute financial and judicial authority over their areas, although they still had the responsibility of providing soldiers to the centre during wartime. The Ottoman Empire’s flexible and diverse administration also paved the way for diverse legalities in its various parts.57 For instance, with the exception of the reign of Süleyman I, where there was an attempt to standardize the administration of the courts under the Hanefî school of law, in many provinces kadıs of the Hanefî, Shâfi’i and other schools of law operated at the same time.58 As a result of this flexible administration and autonomy, in Diyarbakir, the local Kurdish tribal leaders were authorized by a hükm of 928/1522 to appoint kadıs who used the Shâfi’i school of Islamic law.59 Moreover, because of the importance of tribal laws, local customs and traditions in many areas, the kadıs not only applied these in their judgments but, besides sharia rules, there were also tribal courts60 in many Ottoman domains, making possible the recognition and accommodation of diverse people’s law by the state. In the light of the lack of studies on the operation of Ottoman laws and courts in Kurdish areas, it is hard to imagine the role of Kurdish traditional and tribal laws. This area remains untouched by research, the conduct of which would be very important for understanding the life of Kurds under Ottoman rule. It is generally considered that for the sake of ensuring the ‘supremacy and the unity of the Muslim community’, the Islamic tradition does not support the Muslim umma’s division along ethnic and linguistic lines.61 Pointing to the lack of any imperative rules on this matter in Islamic law, Karpat states that the rulers of many Muslim states recognized ‘ethnic and social differences’ of the Muslim communities under their rule. He illustrates this argument with reference to the Boz Ulus Kanunnamesi enacted in 1540 which characterizes the Turkmen nomadic tribes as Boz Ulus (Grey Nation) and the Kurdish nomadic tribes as Kara Ulus 56  Beyter and Ekinci 2012: 27. 57  Barkey 2009: 70 argues that the Empire’s pragmatic organizational flexibility paved the way for the acceptance of the incorporated peripheries with their cultural and systematic peculiarities, changing the Empire itself. She also argues that the Ottoman advancement to the east and the Kurdish areas in the sixteenth century, changed the Empire from open and multi-vocal with a candidly Islamo-Christian orientation, in which multiple groups of Islamic, orthodox Sunnî, heterodox Sufi, Christians and Jews coexisted and had a participatory voice, to one in which Islamic religiosity with a Sunnî orthodox character gained ground. 58  Findley 1986: 3. 59  Ibid. 60  Layish 1986 mentions the existence of tribal courts operating among Bedouin Arabs enforcing tribal laws in Iraq, Palestine, Jordan, and so on. Sonbol 2003: 20 refers to tribal courts in East Jordan where tribes relied on their own legal traditions. 61  Karpat 1982: 149.

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(Black Nation).62 It is, however, possible to view the differentiated status of the Kurds as an outcome of the Kurdish leaders’ negotiation with the Ottoman ruler at the time of their incorporation to the Empire, rather than as an exception to the rule of the unity of Muslim umma. Because of the administrative autonomy of most areas populated by Kurds, they also enjoyed a degree of self-regulation outside of the Ottoman administrative and legal system. The privileged autonomous status of the Kurdish areas continued in operation until the Tanzimat reforms (1839–76), the fundamental principles of which were the renovation, modernization and centralization of the state structure.63 The centralizing ambitions of the Ottoman elite caused disturbances and a revolt by a Kurdish emir, Bedirhan Pasha, who was the ruler of the Botan region up to 1847, when he was defeated.64 The autonomous status of the Kurdish areas was annulled by a series of laws from 1858 onwards. Finally, with the Idare-i Ummumiye-i Vilayet Nizamnâmesi of 1870, inspired from the French administrative system, the eyalets were divided into smaller provincial vilayet units (counties). The Porte-appointed governors then exercised direct control over them, resulting in further centralization at the expense of the autonomy of local leaders. These changes brought an end to the traditional privileged legal status of the Kurdish tribes.65 Although article 108 of the 1876 Constitution (Kanun-i Esasi) would later state that the administration of those counties would be based on the principle of decentralization, in practice, the strong centralizing policy of the Tanzimat era continued and was implemented even after the Constitution was adopted. Hence, the different autonomous position of the Kurds was impaired by annulling the conventional contract between the Empire and the Kurdish tribal 62  Ibid.: 149, 459–65. For the text of these Kanunname (regulations), see Akgündüz 1994, Vol. V. 63  The centralization tendencies of the Ottoman rulers can also be considered as continuous with the classic Ottoman’s method of conquest; as İnalcık 1954: 104 states: ‘in the Ottoman conquests there were two distinct stages that were applied almost systematically. The Ottomans first sought to establish some sort of suzerainty over the neighbouring states. They then sought direct control over these countries by elimination of the native dynasties. Direct control by the Ottomans meant basically the application of the timar system which was based upon a methodical recording of the population and resources of the countries in the defters (official registers). The establishment of the timar system did not necessarily mean a revolutionary change in the former social and economic order. It was in fact a conservative reconciliation of local conditions and classes with Ottoman institutions which aimed at gradual assimilation.’ 64  Özoğlu 2004: 71. Also see Ortaylı 1979: 303. Özoğlu 2004: 60–63 refers to an imperial order of 1846 which established a new administrative unit called the ‘Province of Kurdistan’ (Kürdistan eyaleti) encompassing the areas of Diyarbekir province, and the Van, Muş and Hakkari districts which then expanded over Dersim and Mardin. 65  Contrary to the pattern of centralization in Anatolia, some Arab and Balkan regions, there was a trend of decentralization in Lebanon, Egypt, Syria, Tunisia and Bulgaria, among other places.

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leaders. The state would thenceforth reconstruct its relations with the Kurds with reference to Islamic unity. The assumption which lay behind moves to erode Kurdish autonomy was that having a centralized authority would result in a better-functioning state administration and prevent territorial losses. The erosion of local leaders’ authority would also ensure the Kurds’ loyalty to the central state. In any case, centralization was inescapable for the Empire, which aimed for a modern state requiring uniformity in many areas, including within its administrative, legal and education systems, language and so on. This would in turn have serious consequences for the diverse communities of the Empire. As Karpat argues, the policy of centralization ‘altered the social structure by calling upon the government to assume regulatory functions rather than being the centre of equilibrium as had been the case in the past … and changed the very meaning of government as known until then’.66 The scope of governmental functions and control at local level was limited in the traditional Ottoman administrative system, and most functions were performed by either the millets67 or local leaders. Centralization would impose a direct threat not only to the peripheries’ conventional quasi-autonomous status but also to the millet order. This threat then paved the way for further unrest among various ethnic and religious communities and the rise of nationalisms.68 1.3 Emergence of New Concepts in the Ottoman Legal System Throughout the nineteenth century, saving the Empire and becoming a modern state were the main objectives of the Ottoman statesmen.69 It was in light of these two objectives that society-state relations were reformulated.70 Many legal and socio-political changes and reforms were carried out to this end. Hence, the reforms were designed to impede the loss of power and territory, and to prevent European states’ interventions under the pretext of removing inequalities embedded in the millet system. They were also intended to further the Ottoman statesmen’s desire to modernize and westernize the Empire by changing the status of the millets and introducing the modern idea of equality in law for all compatriots,71 secularizing laws, creating a common political Ottoman identity, forming a modern centralized

66  67  68  69 

Karpat 1972: 253. Shaw and Shaw 1997: 47. Somel 1997: 74, Taşpınar 2004: 69. Barkey 2009: 3 argues, ‘It is in this contradictory duality that the Ottomans lost their empire and the best of what they possessed: … [its] diversity, ingenious flexibility, and resiliency’ which were the keys to its long survival. 70  For the factors in the transformation of the Ottoman state and the role and impact of internal forces well before the immense European influence, see Karpat 1972: 245–62. 71  Shaw and Shaw 1997: 132; Bozkurt 1989: 41.

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state at the expense of the periphery, and to make the Ottoman legal system compatible with the commercial demands of the time. Nevertheless, these reforms and centralization involved a change in the paradigm of state-society relations. In Barkey’s view, this shift meant embarking … in the direction of nonempire, suspending negotiated forms of rule and the diversity of bargaining between state and society. They instituted standardized forms that signified a different idiom of rule with changing legitimacy and a new understanding of diversity that would accelerate the path to nationhood.72

Consequently, these reforms also involved a radical shift in socio-political reordering – from imperial state-community relations to modernist state-individual relations. The importance of the communities (millets) consequently diminished and individual citizens as right and duty bearers appeared in the legal system, and this involved the emergence of new ties, legitimacy and loyalties in state-society relations under the idea of Ottomanism. Hence, the state took important legal steps to peel back its imperial appearance and to become a modern state based on a civic, secular concept of citizenship. The Ottoman rulers, as early as the Islahat Fermanı of 1856, had expressed the state’s desire to re-regulate and restructure the traditional millet system by means of regulations (nizamname) to be applied to each community’s internal affairs.73 The aim was to reaffirm the non-Muslims’ traditional immunities and privileges in light of changing circumstances, and to institutionalize empowering of lay councils in the management of the millets, while eliminating the corruption of the clergies. In this way, the state meant to spread out the idea of Ottomanism in the millet communities while thwarting nationalist ideas, and concurrently secularizing the religion-based millet structure by … promoting the separation of the political and religious fields (comparable to the separation of church and state in Western Europe) by means of separation of spiritual and material duties and consequently by the reduction of the jurisdictions of the highest-ranking members of clergy.74

The Islahat Fermanı changed the source of millet rights and freedoms, which, it will be recalled, were conventionally not subject to ‘renewal, abolition, or limitation’.75 From then on, millet rights and freedoms were subject to the approval and supervision of the Porte.76 The millet order thus changed from being part of a 72  Barkey 2009: 265. 73  Bozkurt 1989: 171. Between 1862 and 1865, regulations were issued with respect

to all millets. 74  Stamatopoulos 2006: 259–60. Also see Reyhan 2006: 44. 75  Bozkurt 1989: 29, Karpat 1982: 145. 76  Karpat 1982: 164.

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social contract for the peaceful coexistence of diverse groups to something closer to minority status, subject to the state’s unilateral wishes and changing social, economic and political conditions. Karpat considers these regulations to have been the last step in the liquidation of the millet system.77 The establishment of elected lay councils, the decision by the state to pay the non-Muslim clergy’s salaries, and preventing millets from collecting tax from their communities under the Islahat Fermanı, can be seen as further steps in the same direction. The territorial losses caused by the military defeats and ethno-nationalist movements during the nineteenth century directed the Ottomans to prioritize territorial unity above everything else and we see the emergence of the main paradoxes of a modern nation-state, which are the existence of one integral, unified ‘nation’ and its indivisible territory.78 With the egalitarianism ideal and its inclusive outlook, the state had supposedly placed all the varied ethno-religious population groups of the Empire within the framework of the nation. Logically, the territories where these people lived determined the territorial boundaries of the ‘Ottoman nation’. The Kanun-i Esasi (1876), the first Ottoman Constitution, lucidly illustrated the emergence of the paradoxes of creating one Ottoman nation out of many Ottoman subjects,79 when it reaffirmed the unity of the imperial territories in article 1 and non-separation (siyaseten tefrik etmek) of ‘the various Ottoman elements’ (anasırı osmaniye) in article 120, which entered into the revived Kanun-i Esasi in 1909. Conferring a duty upon all deputies of the first Ottoman Parliament (Meclis-i Mebusan, MM) of 1876 to ‘act like true representatives of the entire Ottoman nation’ and not of their individual ethnic, religious, and linguistic communities (article 71) seems to bear out this argument.80 The emphasis on a unified Ottoman nation also becomes visible in the 1876 Constitution’s reference to ‘the general customs/observances’ (adab-ı ummumiye). For instance, article 64 of the 1876 Constitution empowered the Senate to review any bill from the perspective of ‘the territorial integrity of the country’ and ‘the general customs/observances’ (adab-ı ummumiye). Also, article 11 of the Kanun-i Esasi upheld the religious privileges of the millets on condition of the non-violation of public order and adab-ı ummumiye. The question as to whose adab-ı ummumiye the Constitution referred to, in an empire whose borders stretched from North Africa to the Balkans, Anatolia and the Middle East, remained unanswered by the text of the Constitution. The concept of ‘territorial’ and ‘national’ unity set out in the Kanun-i Esasi remained in subsequent Constitutions right up to the present day. The concept of ‘national’ unity in the official state discourse of Ottomanism, which purportedly covered the Muslim and non-Muslim populations, and the areas where they lived, would however contract significantly from the Independence War onwards to the 77  78  79  80 

Ibid. Davison 1989: 453. Karal 1982: 399. Devereux 1963: 217.

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unity of the Muslim population who lived in Anatolia (see Chapters 2 and 5). Although the ruler Abdülhamit II (reigned 1876–1909) abrogated the Kanun-i Esasi and constitutional government by 1878, a few months after it was issued, its articles were, in effect, codifying the reaction of the Ottoman ruler to separatist nationalist uprisings. The importance of emerging modern nation-state concepts in the imperial legal system should not be underestimated, since the more profoundly felt need for unity and integrity which they indicated, signalled the rise of the nation, and of modernist state ideas, in the minds of Ottoman statesmen. In the following sections, we analyse these reforms, the emerging new concepts, and their effects on the conventional status of ethnically and religiously diverse communities. The ideal of egalitarianism was at the heart of the reforms and marked the termination of the millet system, which based its legitimacy on ‘inegalitarianism’.81 It was followed by secularization and westernization of the legal system, and was concluded by attempts to engineer modern citizens to replace the traditional reaya concept of the Empire. Karpat criticizes the methodology of the modernization and westernization policies of the Ottoman elite, arguing that: The Ottoman government, instead of following the logical direction of these developments, say, by recognizing the emerging ethnic-religious units as autonomous bodies and incorporating them into some sort of federal or similar structure, imposed upon them, under the impact of pressure of the European powers, a common Ottoman nationality or citizenship without considering whether this nationality could represent and express satisfactorily the religious, ethnic and regional aspirations and rising national consciousness of the various ethnic groups.82

Indeed, the modernist, secularist and egalitarian reforms not only failed to engender a sense of loyalty to the Ottomans among non-Muslim minorities, they also alienated Muslims because of the reforms’ centralizing ethos and westernized orientation, and hastened the partition of the Empire. 1.3.1 The Ideal of Egalitarianism As explained earlier, the classical Ottoman system was founded on a balance of hierarchical order within the communities, and inequality between Muslims and 81  İçduygu and Soner 2006: 450. 82  Karpat 1982: 144. For a similar view, see Davison 1977: 405. Strikingly, one of the

main dilemmas of the Turkish Republic in relation to recognition of the Kurdish minorities could be said to recall precisely such a problem. While denying the Kurds’ right to selfgovernance, Turkey forces them to operate under the framework of citizenship and some individual cultural and linguistic rights after a long period of denial and assimilation policies. Such policies not only repeat the historical mistakes which had devastating consequences. They also continue the failure to deal with plurality or manage diversity adequately.

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non-Muslims. Further, the principle of adalet (justice) was so conceived as ‘to secure to each of the communal groupings legal status no less and no more than they deserved’,83 while the idea of ‘good governance’ (nizam-i âlem) was aimed at keeping each community separately in its place and preventing inter-communal conflicts.84 In such a setting, the state’s legitimacy was linked to its unbiased approach in the distribution of justice to its subjects and to their contentment.85 The concepts of ‘equality’, ‘non-discrimination’, or ‘rights and freedom’ were alien to this mindset.86 That would change, however, as the endurance of the state became the main aim of the Ottoman rulers under the dream of modernization.87 The concept of equality among all people regardless of their religion first penetrated into the Ottoman legal system through the Tanzimat Fermanı of 3 November 1839.88 Here equality was contemplated in various ways: equality before the law, in conscription and taxation which was foreseen as direct taxation. This edict, while heralding new laws (kavanin-i cedide) for good governance (hüsn-ü idare), also declared modernization to be the official policy of the Empire. The Tanzimat Fermanı pledged equality in the protection of life, honour and property of all Ottoman subjects regardless of their religion. Another important development in terms of equality, a few years earlier, was the abolition of the discriminatory obligation upon non-Muslims to wear distinct clothing manifesting their religious difference by a law of 1829, which also made wearing the fez and modern dress compulsory for soldiers and bureaucrats.89 This law was designed to modernize the state and to remove visual differences from the public sphere in order to prevent discrimination against non-Muslims in daily life. In this manner, the idea of equality seems to have emerged concurrently with the concept of non-discrimination. However, in the Kemalist Republic, these policies would be taken one step further, and the wearing of one type of western clothing was made compulsory not only as an index of modernization but also to homogenize the society and the private sphere by removing the disclosure of the distinct identities of various ethnic and religious groups. The Islahat Fermanı (1856), which mainly regulated the situation of nonMuslims, extended the concept of equality to ‘equality before the law’. The Islahat Fermanı declared that discrimination on the basis of religion would be banned and that equality between Muslim and non-Muslim should be established in the areas 83  84  85  86 

İçduygu and Soner 2006: 449. Also see İnalcık 1964: 44. Davison 1977: 394. Barkey 2009: 100–101. Also see Karpat 2000: 26. İçduygu and Soner 2006: 449, Tanör 2000: 25–6. Also see Davison 1989 for an interesting study of how these concepts first emerged in the early nineteenth-century ‘constitutional’ documents and then continued to find a place in the subsequent constitutions of Turkey. 87  Karpat 2000: 26. 88  The Tanzimat Fermanı is also referred to as Gülhane Hatt-i Hümayunu. 89  Shaw and Shaw 1997: 49.

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of taxation, military service, justice, education and recruitment to public offices, while it confirmed and maintained all the privileges and spiritual immunities given to non-Muslims in the past. Thus, while undertaking measures to secure equality, the state also promised to protect the non-Muslims’ differences. The Islahat pledged that laws would be put into place against the use of any injurious or offensive term, either among private individuals or on the part of the authorities. It also stated that ‘Every distinction or designation tending to make any class whatever of the subjects … [of the] Empire inferior to another class, on account of their religion, language, or race, shall be forever obliterated from the Administrative Protocol.’ The Islahat secured two fundamental principles of modern citizenship – equality and non-discrimination – on the basis of language, religion and race (soy, cins). If one considers that until a few years ago there was no law in modern Turkey forbidding the use of discriminatory and offensive terms against minorities, the Islahat, at least in theory, was more advanced than the present legal system of Turkey. Translating the promise of equality into practice, the heads of each community were invited by the Porte to take part in the deliberations of the Supreme Council of Justice (Meclis-i Vala) on those occasions of interest to the generality of the subjects of the communities. Representation of non-Muslims on an equal footing in the provincial administrative councils was provided for by the Vilayet Nizamnâmesi of 1864 and 1867, and the Dersaâdet ve Vilayat Belediye Kanunu of 1878 extended the same rights for the municipalities.90 Through these fora, non-Muslims formally obtained the chance to participate in the politics and administration of the Ottoman Empire. Thus, the religious communities gained political recognition, while the state aimed to promote a sense of loyalty and solidarity among non-Muslims by unifying them under secular laws and the state system, thereby also severing their ties with the millet communities. With the Kanun-i Esasi (1876), equality was inscribed as a fundamental principle of the state and placed under constitutional protection. By referring to all subjects without exception as Ottomans, regardless of their religion and denomination (article 8), the Constitution attempted to encode the principle of civic nationalist equality.91 The Constitution codified equality, along with duties, by stating that, ‘All Ottomans are equal in the eyes of the law. They have the same rights, and owe the same duties towards their country, without prejudice to religion’ (article 17). The Constitution also opened public offices to all, according to the fitness, merit and ability of the person (article 19). However, eligibility for 90  Ortaylı 1974: 58–62. For a study of the role of minorities in the establishment of the first municipality in Istanbul, see Rosenthal 1980. 91  The lack of mention of linguistic and ethnic differences, unlike in the İslahat Fermanı, should not go unnoticed. It indicates that, while the Ottoman statesman’s understanding of society was conditioned by the millet legacy, it did not quite reflect the rise of multiple nationalisms of the era. It might be also interpreted as a result of an increasing tendency at the time to think in terms of Islamic unity.

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public office was made conditional on knowledge of Turkish, which was declared as the official language of the state (article 18), thereby reflecting the fact that the Constitution was drawing an ethno-linguistic line across the principle of equality. The idea of equality among all Ottoman subjects was thought of as being a solution to the separatist desires of the Empire’s ethnic communities. However, it was perceived differently among Muslims and non-Muslims. Since egalitarianism meant the loss of conventional pluralistic, self-regulated, millet-system rights, it provoked a reaction, especially from the ecclesiastical hierarchies. Neither did it satisfy the nationalist desires of the millets’ intellectuals and bourgeoisie who sought national independence.92 This new and more favourable status of non-Muslims who now had the right of being treated equally, while being able to maintain their historical privileges, created resentment among the Muslim majority and increased antagonism against non-Muslims, paving the way for the growing emphasis on the Muslim characteristics of the state. The emergence of Turkish nationalism and the ever-greater definition of the state’s identity along Islamic-Turkish lines would deepen the problems. 1.3.2 Secularization of the Law The Tanzimat reforms, especially in the field of law and the judicial system, have been mostly interpreted as indicative of the Ottoman modernist elite’s secularist desires.93 The Ottoman modernist elite hoped that secularization of the law, the judicial system and the administration, together with the pledging of equal rights to Ottoman non-Muslims, would appease the nationalist movements and prevent territorial losses by bringing non-Muslims closer to the state.94 Up to the Tanzimat era, the sharia (şeriye) was the official state law,95 and the sharia courts were the main courts having jurisdiction over disputes between Muslim subjects, as well as their disputes with non-Muslims. Nevertheless, as already explained, the Ottoman Empire had a pluralist legal system. Under the traditional structure of the millets, non-Muslims enjoyed autonomous judicial authority and applied their religious laws over disputes between members of their communities. Besides these, there were consulates’ courts dealing with disputes of the citizens of those countries that benefited from capitulations in the Empire.96 92  93  94  95 

Davison 1954: 853–4. Ortaylı 2005: 180, Davison 1989: 447. Taşpınar 2004: 40. The sharia provided a framework and guiding principles for the entire legal system although it was not the only source of law. The Sultan’s regulations, kanun (state laws) in the form of ferman (edicts), took into consideration prevailing conditions, practices, customs and traditions, thereby producing a complementary legal system with a more secular character: Kunt 1982: 58. 96  For detailed work on these courts, see Pamir 2002, Özkorkut and Kaynak 2004 and, on capitulations, see İnalcık and Quataert 1995.

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After the Tanzimat reforms, the sharia courts’ jurisdiction was gradually confined to the Muslim subjects’ family, contract, inheritance, property and criminal law disputes.97 Some special courts were established which applied newly transplanted European laws98 instead of the sharia.99 As result of the equality pledge of the Islahat (1856), the first secular courts, the Nizamiye Mahkemesi, dealt with disputes where one of the parties was non-Muslim, and became especially widespread from 1870 onwards. In classical Islamic law, being Muslim was one of the conditions for holding a judicial position. However, with the establishment of the Nizamiye courts as part of the Tanzimat reforms, non-Muslims was also appointed as judges to these new secular courts.100 Further, in these courts, the testimony by non-Muslims against Muslims was accepted as part of the procedural rules. In 1879, the Teşkilât-ı Mehakim Kanunu (Procedure Law) brought into play many new legal institutions which were alien to the Ottoman legal system and in contradiction with Islamic law. For instance, the introduction of public prosecutors and notaries and, more importantly, the system of having multiple judges in courts and appeal procedures were considered to contradict Islamic law, according to which judges stood on their own capacity, and were only accountable to God.101 The establishment of professional attorneys in 1875 was another advance towards the modernization of the legal system. All these also constituted important steps towards the secularization of the legal system.102 The Mecelle-i Ahkâm-i Adliyye, which mainly contained provisions on the law of obligations, jus rerum (eşya hukuku), as well as procedural rules, relying on fıkıh rules of the Hanefî school of Islam, which had entered into force in 1877. It had jurisdiction over everyone regardless of religion and ethnicity. Jews and Christians 97  After some changes in 1917 by the Usul-i Muhakeme-i Şer‘iye Kararnamesi, the sharia courts continued to function into the Republican period and were finally abolished by the Mehâkim-i Şer‘iyenin İlgasına ve Mehâkim Teşkilatına Ait Ahkam-ı Muaddil Kanun in 1924. 98  Prominent examples include: the Penal Code (Ceza Kanunnamesi) of 1843 which was a translation of the French Criminal Code; the Codes of Procedure for Criminal Courts, inspired by the French model adopted in 1880; the translated fourth section of the French Commercial Law was adopted in 1860 as the new Commercial Law (Ticaret Kanunname-i Humayunu’na Zel) of the Empire: Bingöl 2005: 24. The Code of Commercial Procedure was adopted in 1861 from Italy. Thus, the transplantation of secular and western laws had started well before the establishment of the Turkish Republic as part of the state’s modernization strategy. 99  The Meclis-i Valay-ı Ahkam-ı Adliye for administrative law matters from 1837, and the Meclis-i Ticaret from the 1850s for commercial disputes. 100  Ekinci 2010: 48. In the bidayet mahkemeleri (first-instance courts), there was one Muslim and one non-Muslim and in the istinaf mahkemeleri (appellate courts) there were two Muslims and two non-Muslims. Yetişkin 2007 mentions two non-Muslim judges in the criminal and assize courts in Maraş province in 1908. 101  Ortaylı 2005: 182. Also see Jackson 2006: 167. 102  Ortaylı 2005: 182. Also see Ekinci 2010: 41.

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were for the first time subjected to Islamic law, instead of their own laws. Islamic law was thus enforced through the Nizamiye Mahkemesi as well as in the sharia courts. The Mecelle was considered an important step towards the creation of a unified legal system for all.103 As part of the İTC’s mission to create a nation-state of unified laws (see 1.4 below), a single, secular legal system was considered essential.104 The sharia and Nizamiye courts were eventually placed under the authority of the Ministry of Justice with a law of 1917,105 thus ending the Muslim and non-Muslim religious clerics’ authority within the legal system. The Hukuk-ı Aile Kararnamesi of 1917 was another important step toward legal unification. It introduced a single family law, while retaining different rules for Christians, Jews and Muslims regarding marriage, divorce and rights of maintenance. While this law removed the religious courts’ jurisdiction, it required sharia courts to deal with the family law disputes of non-Muslims as well.106 Behind the passing of this law lay criticism of the continued exercise of jurisdiction by non-Muslim clerics. In fact, it also laid the foundation for the Republican Civil Code of 1926.107 In the late nineteenth century, the Ottoman ruling elite’s effort to ensure mandatory registration of marriages and divorces by Muslims and non-Muslims with the Civic Registrar Office (Nüfus Dairesi) should be mentioned. For instance, the Sicilli Nüfus Nizamnamesi (Regulation on the Civic Registry) of 2 September 1881 put the religious leaders of the communities in charge of registering all marriages with the Civic Registry Office and made the religious leaders as well as male heads of household responsible for informing the office of any death or divorce.108 Ortaylı interprets these arrangements as the state’s endeavour ‘to prevent the occurrence of marriages solely performed in the traditional fashion’ outside of the realm of the state and official legal system.109 He also states that despite the Ottoman modernist elite failure to create ‘a general and secular family code’, they tried to interfere with family affairs through many imperial edicts (ferman), for example, by ensuring that young girls consented to marriage, fixing Islamic dower (mehir), or encouraging moderate spending on weddings, abolishing bride price, banning marriages by method of female abduction (kız kaçırma), and so on. Even though Ortaylı does not say much about the implementation of these edicts, he notes that at the time of dispute these edicts were to be enforced by the legal system.110 The most ‘standardized and secularized’ area of law in the nineteenth-century Ottoman legal system was the inheritance law. The first step in the standardization of this law was the introduction of private ownership with 103  104  105  106  107  108  109  110 

Akyol 1998: 61, cited in Osmanağaoğlu 2004: 326. For details about the laws enacted to this end, see Osmanağaoğlu 2004: 326–8. Osmanağaoğlu 2004: 327. Ibid.: 321. Ortaylı 1994: 158. Ortaylı 2007: 177–8. Ibid.: 178. Ibid.: 179.

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the Land Law of 1858, which assured men and women equal shares in inheritance of land. Secondly, except for Jews, all other communities were to seek the application of these standardized rules from the same legal institutions, that is, the kadı courts.111 These changes signify the transition to a ‘modern state and society, one based on a single universalistic legal code’,112 applicable to all regardless of their distinctiveness. However, they also contradicted the very nature of the Ottoman conventional legal system in that the laws changed from millet, community, area, tribe, and so on, since there had never been a homogenized, single legal system for all. The Ottoman legal system was not based on the idea of the enforcement of a single common value or law upon the population. As noted, each community, at the time of its joining the Ottoman state, had had its legal status and legal relationship with the state determined differently. Thus, the legal status of the people in the Empire, like its human diversity, was eclectic. The only common law valid for all was the protection of the sultan. The secularization policies were, meanwhile, intended to ensure equality by removing religious references in the legal and judicial system. They also legitimized the state’s interference over the communities by reforming the millet structure, secularizing the community courts, introducing a single procedure, and allowing members of millets to appeal to state courts, even in cases involving inheritance and wills. In this way, the state signalled its aim of circumscribing millet functions to strictly religious affairs, and thus positioned itself as the chief regulator of society by reducing the power of the grassroots corporatist social structure. 1.3.3 From Corporate Identities to Individual Citizen: Ottomanism and the Transformation of Identity The emerging concept of egalitarianism in the legal system would also mark a transformation from the classical millet system, based on the ideas of tefrik-i anasır (separation of elements) and adalet (justice), where the state was a protector and observer, to a system based on the idea of itihad-ı anasır (union of elements), which anticipated the constitution of an Ottoman nation on the basis of civic and political equality granted universally, regardless of one’s religious, sectarian and ethno-linguistic affiliation, and required a neutral and regulator state.113 In this political setting, the main actor of society would be anticipated as the individual citizen, but not communities, that is, the millets. As noted, the idea of Ottomanism (Osmanlılık) was an attempt to replace the fragmented identities and loyalties of the populace with the concept of citizenship as a common secular political identity, and was aimed at creating loyalty to the joint territory (vatan) by achieving equality and unity among all Ottoman subjects, regardless of differences of faith, ethnicity 111  Ibid.: 182. 112  Ibid.: 149. 113  İçduygu and Soner 2006: 451.

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and language.114 By producing the idea of Ottomanism, the state increased its distance from the imperial order and moved towards a modern state with a civicnationalist ideology, at least in the official legal sphere, if not in practice. With the declaration of the Kanun-i Esasi (1876), Ottomanism became the official ideology of the state.115 The Constitution referred to all the subjects/ citizens (tabiyet) of the Empire as ‘Ottoman’ without distinction as to the faith they professed (article 8); that is, acquisition of citizenship was not preconditioned on religion. Thus, the Ottoman nation could be described as having a bond to the state through citizenship. However, the importance given to the Turkish language in the Kanun-i Esasi, and the declaration of the state religion as Islam, made manifest the ‘critical threshold’ of Ottomanism.116 Moreover, the idea of citizenship was not an innovation of the 1876 Constitution – it had first appeared in the Tanzimat Fermanı where the Porte referred to Ottoman subjects as tabaayi saltanati seniye (subjects of the High Majesty), which included ehli islam ve milleti saire (Muslims and other millets) as citizens as well. The concept of ‘citizenship’ became more visible with the Nationality Law (Tabiiyet-i Osmaniye Kanunnamesi) of 1869,117 which had been inspired by the French Nationality Law of 1851, and reflected the modern concept of nationality and state. Article 1 of the Nationality Law stipulated that ‘every individual born of an Ottoman father and Ottoman mother or only of an Ottoman father is an Ottoman subject’. The reasons for passing a nationality law as early as the 1860s was to avoid interference from European states on the pretext of their guaranteeing protection to non-Muslim subjects by means of issuing official patents or foreign passports. A second reason was to prevent abuse of the capitulatory system by non-Muslims who obtained European states’ nationality in order to benefit from the capitulations, thereby creating unfair competition at the expense of Muslim traders.118 Hence, besides setting up modern secular criteria for acquiring nationality, the Ottoman ruler, in seeking to prevent those interventions and abuses, conditioned the obtaining of foreign citizenship upon the Porte’s consent.119 While religion was not 114  Karpat 1982: 162. 115  Ottomanism was also one of the basic tenets of the ‘Young Ottomans’, a group of

dissident intellectuals who played a prominent role in the proclamation of the Constitution: Davison 1977: 397; Zürcher 2000: 153. They considered that the proclamation of a constitution and the establishment of a parliament, where all the ethnic and religious communities would have a chance to be represented and participate in the policy-making process, would weaken the separatist ethno-nationalist ideals among non-Muslim subjects and that the different elements would be ‘bound by common interest to the common fatherland (vatan)’: Shaw and Shaw 1997: 132. Thus, non-Muslims were also invited to participate in the Cemiyet-i Mahsusa, a committee that prepared the Kanun-u Esasî: Tanör 2000: 111. For detailed information about the first constitutional period, see Devereux 1963. 116  Üstel 2005: 27. 117  The Nationality Law remained in force until 01.01.1929: Osmanağaoğlu 2004: 195. 118  Davison 1977: 399, Üstel 2005: 26. 119  Davison 1977: 400.

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a condition in the ‘normal acquisition’ of citizenship, in the practice of acquisition, Muslims or converts were advantaged by being able to rely on ‘fevkalade telsik’ (extraordinary acquisition) which required a simpler procedure.120 Despite these efforts to create citizens, until 1878, the government continued to deal with the millets through the Department of Non-Muslim Religious Affairs (Mezahib-i Gayr-i Müslim Dairesi), which was divided into sections for each millet, under the auspices of the Ministry of Foreign Affairs (Nezare-t-i Hariciye), as if they were foreign nations.121 This demonstrates the confusion of the Ottoman rulers’ attempts to reconcile the millet experience with European idea of citizenship.122 This confusion would be carried on by the new Republic also and, while non-Muslims were considered ‘citizens’, they would not be perceived as part of the nation. 1.3.4 Emerging Ethno-Religious Boundaries of the Ottoman State and Nation Despite the rhetoric of Ottomanism in public debates since the Tanzimat Fermanı, which asserted the embracing of all subjects regardless of their religion, the ethnoreligious contours of Ottomanism with reference to Islam and Turks were also becoming more visible. Despite its Turkish dynasty, and the use of Turkish in the administration, it was not a state of the ‘Turks’ until the nineteenth century.123 Ortaylı asserts that the domination of the Turkish ethnic element in the Empire’s administrative and cultural life had commenced especially after the removal of the devşirme system in the seventeenth century.124 Under that system of recruiting non-Muslims into its administration, the state had to take a liberal view of its relations with non-Muslim minorities. In the following centuries, the domination of Turks in the Empire caused the loss of the Empire’s cosmopolitan life and administrative system, and would also constitute the basis for producing Turkish nationalism in the nineteenth century.125 Barkey emphasizes the increasing Islamic character of the state following the Empire’s extension into the Islamic eastern areas in the sixteenth century and conquests in the Arab provinces.126 Meanwhile, Somel claims that among the state’s elite, the Turkish ethno-political identity, with its reference to the Sunni Muslim faith, had already been shaped as early as 1821–28.127 Whatever the origins and exact provenance of the Turkish ethnoreligious identity, it remains the case that Pan-Islamism was the predominant policy 120  Osmanağaoğlu 2004: 209–14. The same advantages carried on in the Republican legal system when Turkish race (soy) people were advantaged over others. 121  Shaw and Shaw 1997: 73. 122  Karpat 1982: 163. 123  Davison 1977: 393. 124  Barkey 2009: 70. 125  Ortaylı 2005: 72–3. 126  Barkey 2009: 86. 127  Somel 1997: 78.

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of Abdülhamit II, with a touch of Turkish linguistic nationalist tendencies. Later, with the İTC regime’s party programme of 1913 (see 1.4), Turkish nationalism became a state policy.128 It found a place in almost all subsequent Constitutions in the Turkish Republic up to the present. Here, we mainly focus on the changes with respect to language and education occurring under the reign of Abdülhamit II. Developments during Abdülhamit II’s reign showed that while the Ottoman state was already being shaped along ethno-religious lines, a new perception of a fundamental core (unsur-i asli), a ‘purist Ottoman’ nation, mainly Muslim and Turk, also emerged during this time, despite the proclaimed ideological affiliation to the ‘civic’ idea of Ottomanism. Traditionally, although all Muslims had theoretically been considered as coming under the Muslim millet, as noted above (1.2), they were not all treated identically but rather as a confederation of different entities. Thus, many marginal, heterodox Muslim and non-Muslim groups (for example, Shiites, the Yezidis, Nusayris, Druzes, Alevis, and so on) were forced to convert into this official denomination (mezhep-i resmiyye).129 Further, in order to create the desired unity among the Muslim population, the state tried to standardize sharia under the Hanefî school of Islam and also aimed to eliminate diverse local traditions and tribal laws.130 Thus, while ‘Islamization’ marked a radical break from the earlier conventional accommodation of ethnically, linguistically, socially and religiously diverse groups of people within the state, it would alienate the nonMuslims and the diverse Muslim communities alike. During Abdülhamit II’s reign, the Pan-Islamism pursued by the state offered a paramount opportunity to reconstruct an identity that could repair the supposed broken pride of the Muslims; it was used as an ideology that would unify the remaining Muslim Arabs, Kurds, Albanians, and so on, who had also begun to show separatist tendencies.131 It was thus important that the 1876 Constitution stipulated Islam as the Empire’s official religion (article 11) and the superiority of Islam was proclaimed by the principle that the law would not contradict Islamic rules (article 64). The establishment, in 1892, of the aşiret mektebi (tribal school) 132 in Istanbul was important for ‘unifying’ and ‘civilizing’ the rebellious Muslim tribes. The children of tribal leaders received a standard and simple education at the aşiret mektebi in an attempt to redefine their relations with the state and create loyalty to the political authority of the Porte.133 In other words, the goal was to use the idea of the ‘Muslim nation’ as a sacred and unifying umbrella identity in an age of divisive ethnic identities. The school only accepted Arabs at its inception 128  Taşpınar 2004: 47, Dündar 2001: 22. 129  See Deringil 1998: 44–91. Also see Karpat 2000: 18. 130  See Deringil 1998: 44, who refers to this policy as the ‘Ottomanization of Şeriat’

and as part of the civilizing mission of the Ottoman state. He considers the preparation of famous Mecelle as part of this standardization effort. 131  Alkan 2000: 69. 132  For more details on the aşiret mektebi, see Deringil 1998 and Akpınar 1997. 133  Alkan 2000: 69 and 72.

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but, later, Kurds and Albanians were also admitted. It was shut down in 1907 after a boycott.134 Thus, in the late Ottoman Empire, education became a ‘centrepiece of their rethinking of state-society relations, the creed of official nationalism and their own particular “mission civilizatrice”’.135 Makdisi argues that ‘In an age of Westerndominated modernity, every nation creates its own Orient’.136 He further argues that the Ottoman Empire’s modernization reforms of the nineteenth century also betrayed the desire to create a modern Ottoman Turkish nation, which created its own Orientalist representational logic to lead ‘the empire’s other putatively stagnant ethnic and national groups into an Ottoman modernity’.137 Makdisi further shows that Islam served to signify the Empire’s commonality with its Muslim majority population, and the civilizational and temporal discourse it entailed ultimately justified Ottoman Turkish rule over Muslim and non-Muslim subjects.138 Arabs, Kurds, Bedouin and other non-Turkish Muslim communities thereby became subject to this ‘Orientalism’.139 It was contemplated that ‘Ottomanization’ would civilize them.140 As Zeydanlioğlu demonstrates, following the establishment of the Turkish state, the Kurds continued to be represented as the ‘Orient’ of the Turkish nation, and subjected to the nation-state’s mission of civilization and progress, particularly via Turkification.141 Despite the emphasis on Pan-Islamism and the alleged suppression of Turkish nationalist views during Abdülhamit II’s reign, Turkism in its cultural forms was becoming more visible, especially in the media and literature, and this would grow into the Turkish movement of later years.142 The word ‘Turk’ began to be used with pride. The connection of the Ottomans with the ancient Turkish nomads of Central Asia began to appear in civilian and military history schoolbooks.143 The origins of official historiography also lie in this era, with the establishment of special commissions to determine the topics of history books.144 If Ottomanism was the ideology to inculcate a new identity for all subjects, so that they would think of themselves as Ottoman first and would owe their civic allegiance and loyalty to the state rather than to their ethno-religious communities 134  135  136  137 

Ibid.: 74. Barkey 2009: 292. Makdisi 2002: 768. Ibid.: 769. Deringil 2003: 318 meanwhile refers to the Ottomans’ ‘civilizing mission’ over some Muslim nomads and provincial populations as ‘borrowed colonialism’ or ‘Ottoman colonialism’. 138  Makdisi 2002. 139  See also Deringil 1998: 41 and Eldem 2010: 26–31. 140  Deringil 1998: 83. 141  Zeydanlıoğlu 2008. 142  Kushner 1977: 15. 143  Ibid.: 25–40, Alkan 2000: 76. 144  Alkan 2000: 81.

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or millet-nation,145 then education was the means by which to realize this. Thus, a centralized modern education system was considered essential to diffuse the idea of Ottomanism, as well as create new citizens in line with it. However, until the nineteenth century, the state had not been involved with instruction except in the education and training of the administrative and military cadres. Otherwise, education had been run by the different communities, which also determined the curriculum and teaching methods, and how to finance it. However, after the Tanzimat Fermanı, the state started to see education as a public duty, began to interfere with its management, and expanded its control even over non-Muslim schools by examining their textbooks and curricula under the 1869 Maarif-i Ummumiye Nizamnamesi (Ordinance of General Education), despite criticism from the millet representatives.146 The role of education in social engineering was emphasized more during the İTC period (see 1.4) with the view being taken that the state must control ideas by creating a common curriculum for all schools; this was seen as a precondition for the viability of the ‘constitution and Ottoman unity’.147 The state’s enthusiasm for interfering in education became more visible in the first Constitution of 1876. Hence, the Constitution recognized Ottoman subjects’ right to attend public or private schools (article 15). By requiring these educational institutions to be established in conformity with the law (article 15), control was obtained over the establishment of schools. Further, all schools were placed under state supervision and proper means had to be devised for harmonizing and regulating the instruction given to all Ottoman subjects (article 16). Although religious education was exempted from state scrutiny, later, during the İTC period, the medrese/madrasah also came under the supervision of the Ministry of Education and religious foundations were placed under the control of the Ministry of Treasury.148 Making primary education obligatory for all Ottomans (article 114 of the 1876 Constitution), and foreseeing education mainly to be ‘free’ (article 15), further reaffirmed the state’s enthusiasm for educating the masses through a centralized system. However, centralization and harmonization of education also required the coordinates of education to be drawn in line with the dominant state vision, which was Islam. Fortna states that, although much literature of the late Ottoman era suggests that state schools were ‘avowedly secular’, in fact, education in such schools was very much composed with reference to Islam.149 Increasing emphasis on the Turkish language was another factor marking the formation of identity. On the one hand, this emphasis was inevitable since the modernization of the state apparatus, with its increased bureaucracy and

145  146  147  148  149 

Karpat 2000: 7. Vahapoğlu 1990: 72–3. Ahmad 1982: 412–13. Shaw and Shaw 1997: 307, Osmanağaoğlu 2004: 328. Fortna 2000: 370.

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complex administrative system,150 required more civil servants who spoke the same language. Turkish statesmen and intellectuals also considered the Turkish language as a tool to achieve the goals of Ottomanism to create a more cohesive and loyal society.151 This emphasis on Turkish in the creation of new citizens would be especially felt later during the Republican period, and language would be considered as one of the core components of the nation. Meanwhile, for the first time in Ottoman history, Turkish was explicitly declared as the official language of the state by article 18 of the 1876 Constitution. The Constitution also made knowledge of Turkish a condition for employment by the state. The importance given to Turkish becomes more evident when one analyses other articles of the Constitution. For instance, debates in the MM and the Senate (Ayan Meclisi) were to be in the Turkish language (article 57), while ‘understanding Turkish’, the ability to read in Turkish and, as far as possible, to write in Turkish became eligibility criteria for standing for election as a deputy (article 68). Thus, Turkish would be the only language in the public sphere and in state-society relations. The desire for absolute domination of Turkish in the public sphere became apparent during the preparation of the 1876 Constitution, with the rejection of a draft provision proposing that languages spoken in the Empire other than Turkish also become official languages equal to Ottoman Turkish. The reason for rejection was that ‘the Parliament would be a veritable Tower of Babel.’152 As time went on, the state also showed an interest in extending its role in the promotion of Turkish through the education system, which aimed to make Turkish a language of all citizens. The Vilayat-i Şâhâne Maarif Müdürlerinin Vezaifini Mübeyyin Talimat of 1896 (Regulation on the Duties of the County Directorate of Education) introduced compulsory Turkish lessons into the curriculum of nonMuslim schools, while it recommended the use of Turkish in all schools (article 245). This law also established a committee to assess pupils’ fluency in Turkish in the final exams of the non-Muslim schools (article 50).153 Later, the Mekâtib-i Hususiye Talimatnâmesi (Private School Regulatory Statute) of 1915, which regulated non-Muslim and foreign schools, introduced Turkish history and Turkish geography lessons to be taught in Turkish in non-Muslim schools (article 6).154 These decrees were also intended to undermine the immunities enjoyed by foreign schools under the capitulations and non-Muslim schools, as well as to limit the 150  In the classical era, the Ottoman Empire had a ‘light bureaucracy’, because of its pragmatic and flexible organizational structure which allowed maintenance of existing institutions and incorporation of the local elites in the management of conquered areas. However, as Barkey 2009: 70 notes, comparing the Roman and Ottoman institutional structures, ‘Only later, as bureaucratic offices enlarged and as administration become engorged with people expecting positions, did the empires begin to falter’. 151  Kushner 1977: 95–6. 152  Shaw and Shaw 1997: 174. 153  Vahapoğlu 1990: 128–35. 154  Ibid.: 137–40.

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rising nationalist fervour among the non-Turkish communities. The non-Muslim and foreign schools were attacked for ignoring Turkish and promoting foreign languages.155 As result of a campaign promoting Turkish, the Jewish community took steps to teach Turkish.156 Simplification of the Ottoman language by the elimination of Arabic and Persian words was also encouraged by the intellectuals at this time.157 Education was considered the best way to create vahdet-i fikriyat (unity of ideals), while Islam was seen as a way of uniting everybody regardless of their ethnie. Not separating people was also considered a legitimate quest. Thus, it was stated that education had to have a national and religious basis. In the creation of the new identity for citizens, new subjects called Malumat-i Medeniye and Ahlakiye ve Iktisadiye (Knowledge on Civics and Economics and Morals) were added to the curriculum and, during the Republican period, these became Yurt Bilgisi (Homeland Studies), which aimed to produce citizens loyal to state.158 State interference with education also aimed to reduce or eliminate non-state actors’ involvement in it by requiring the approval of the Ministry of Education for opening private schools and, later, by not giving the same standing to these schools as that given to state schools. The latter was greeted with particular concern by the non-Turkish and non-Muslim communities of the Empire, who saw it as threat to the survival of their cultural identity and as being against the equality principle.159 As observed, in the late nineteenth century, Islamic identity and the Turkish language came to be regarded as distinctive of the national character and became ‘synonymous’160 with the Ottoman state, effectively undermining the hopes of the non-Turkish and non-Muslim communities of the Empire for the ideal of Ottomanism as a workable political project.161 The above measures were evidently components of a much larger project which Barkey summarizes aptly as follows:

155  Kushner 1977: 93–4. 156  Ibid.: 94. 157  Shaw and Shaw 1997: 263. For a detailed analysis of this issue see Kushner

1977: 56–86. 158  Üstel 2005: 33, and see pp. 33–126 for details. 159  For example, under a provision of the Ahzi Asker Kanunu (Military Recruitment Law), only students of state schools could suspend their military service (MMZC, 29.12.1910, p. 132). This provision was criticized by non-Muslim deputies on the ground that granting the right to open schools, but to then disadvantage them, was not compatible with the principle of equality (MMZC, 29.12.1910, p. 135). The government defended the law by general application of the law to all the schools, even those established by ‘Turks’ and claiming that if there was inequality it affected all, not a particular community (MMZC, 29.12.1910, p. 135). 160  Karpat 2004: 207. 161  Kayalı 1997: 31.

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The Tanzimat reforms (1839–1876) had inaugurated a new period of centralization and modernization. Ottoman Tanzimat leaders introduced the basics of modern Western statecraft, slowly but surely moving away from negotiated, distributive, flexible, and accommodationist forms of imperial integration and settlement toward rational settlements, uniform rules and regulations, and universal legal principles. The Ottomans enacted reforms in the central administration, law and order, education, the bureaucracy, and the military to remove intermediary groups and institutions between state and society. They had endorsed equality before the law, bringing Muslim and non-Muslim subjects to the same level, stripping each group of its particular set of privileges.162

As we see here, the direction of change initiated during the Tanzimat period remained very much alive even during Abdulhamid’s realm and, as we see below and in following chapters, was then adopted by the coming İTC governments and later by the new Turkish Republic. 1.4 The İTC Era and the End of Pluralism From the late 1880s onwards, young Ottoman bureaucrats and intellectuals – who were educated in the modern, European style, influenced by the French Revolution, and supportive of constitutionalism and secularism – became increasingly critical of Abdülhamit II’s authoritarian regime. In such an environment, the İttihad-ı Osmani Cemiyeti was set up in 1889, and later developed into a dissident political organization called the Committee of Union and Progress (İttihat Terakki Cemiyeti, İTC). Until 1907, the İTC espoused a strong Turkist (Türkçü) and Turkish nationalist line.163 In the wake of the 1908 Revolution,164 they softened their Turkish nationalist rhetoric by shifting to Ottomanism because, for the sake of overthrowing Sultan Abdülhamit, they had to come ‘to terms with many nonTurkish groups that they had previously refused to work with’.165 In the 1908 elections, the İTC candidates gained a bare majority of parliamentary seats, while the Parliament was composed of Turkish, Arab, Albanian, Kurdish, Greek, Armenian, Slavic and Jewish deputies.166 The basic programme of the İTC centred on political reforms, freedom, strengthened national sovereignty and unity.167 162  Barkey 2009: 286. 163  Hanioğlu 2001: 295. 164  Kansu 2006: 4 criticizes naming this event its aftermath as ‘II Meşrutiyet’ (Second

Constitutional Monarchy) and attributes it to the Kemalist regime’s political propaganda which granted to itself the honour of the historic ending of the ‘monarchist regime’. 165  Hanioğlu 2001: 296. 166  Non-Muslims obtained one-third of the seats: Alkan 2006: 141. For a detailed study about the deputies of that parliament, see Kansu 2006: 377–446. 167  Hanioğlu 2001: 278.

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However, they also had a secret programme of establishing a nation-state based on Turkish ethnicity.168 The restoration of the 1876 Constitution in 1908 was welcomed by all the communities of the Empire as a sign of ‘freedom’, ‘equality’ and ‘brotherhood’ for the common good.169 But, as Bayur later commented, ‘there are very few movements in the world that have given rise to such great hopes as the Ottoman Constitutional revolution; there are likewise very few movements whose hopes have been so swiftly and finally disappointed.’170 The idea of Ottomanism was very much defended, especially by the nonMuslim deputies, as a viable project for peaceful coexistence and the creation of a constitutional, democratic and modern state.171 They defined the ideal of Ottomanism with reference to equality, non-discrimination and political affiliation to the state whereby diverse groups would continue to protect their religion, ethnicity, language and identity. They referred to the Ottoman territory as vatan (homeland),172 and the Ottoman state as the state of everybody: ‘Since we took an oath on the Kanun-i Esasi [1876 Constitution], this country (mülk) is not called Türkiye anymore … and from now on it is not only the country of Turks and Arabs but also of non-Muslims and of all residents.’173 In the non-Muslim deputies’ view, the nation was an amalgamation of various equal distinct groups, that is, ittihad-ı anasır. On the one hand, they defined the state-nation relation on the basis of political affiliation and along civic nationalist lines, rather than according to ethnicity, religion, or culture.174 For instance, the 168  Yıldız 2004: 73; Somel 1997: 78. Kieser 2005: 542 states, however, that the nation-state the İTC envisioned was Sunni Muslim-Turk. 169  Shaw and Shaw 1997: 276; Ahmad 1982: 401. For instance, a group of people in Thessaloniki wrote to the MM asking the government not to use the degrading words ‘Kıpti’ and ‘Çingene’ (degrading words for Roma) from then on since they were now in the era of ‘justice and equality’ (MMZC, 23.05.1909, p. 122). In response to this claim, Hafiz İbrahim Efendi (İpek) gave the assurance that no discrimination would be made in the army, school and navy on the basis of race; people would not be recorded on basis of their differences, and everybody would be referred to as Ottoman. He was supported in this by others (MMZCZC, 23.05.1909, pp. 124–5). 170  Bayur 1940: 225, cited in Lewis 2002: 211. 171  Osmanağaoğlu 2004: 312–13. For a similar view see Alkan 2006: 141. For instance, Vartkes Efendi (Erzurum) stated that the core of the 1908 Revolution was freedom, and asked for the British model of rights and freedoms to be adopted, instead of the French model, since the former was more in favour of freedoms and was a constitutional monarchy like the Ottoman Empire (MMZC, 18.02.1908). 172  Yorgi Honeus Efendi (Thessalonica), also stated that ‘to sacrifice a body for the sake of vatan is an honour, there is no honour bigger than this’ (MMZC, 13.06.1909, p. 6). 173  Nazaret Dagavaryan Efendi, MMZC, 03.06.1909, p. 426. 174  For instance, during the discussion regarding the Civic Registration Law, which obliged all Ottomans to register on the ‘Nüfüs Şicil’ (population register) (article 1) and required its records to contain the name, şöhret (reputation), father’s name, place and date of birth, mother’s name, address, and so on, of a person as well as denomination (article 3), Yorgo Efendi suggested the removal of denomination from the records and to refer to all as

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deputy Hristo Dalçef Efendi stated, ‘There is no Ottoman kavmi (race/ethnicity), but the Ottomans are composed of kavims, arising from various elements.’175 The bases of unity (ittihad) in the Ottoman Empire were ‘political conditions (ahvali siyaset), general interest (menafii ummumiye), and what they have in common, but not language and religion’.176 In their minds, language and denomination were not enough for a state’s ‘unity and raison d’être (bekaa)’.177 On the other hand, the type of civic nationalism presupposed by the Ottomans at this time did not involve erasure of ethnic or religious group identities either, but even their affirmation. In this connection, it is interesting to note here that diverse groups of the Empire were referred to as ‘various elements’ (anasır-ı muhtelife), and as Ottoman elements (anasır-ı Osmaniye) in the MM. The latter phrase entered into the 1876 Constitution in article 120 with amendments in 1909, in aftermath of the revolution. Before the 1909 amendment, the right-bearers of the Constitution were the ‘individual’ (efrad), ‘Ottoman subjects’ (tebaai Osmaniye), ‘everybody’ and ‘Ottomans’. This change was an important indication for the inclusion of the idea of a ‘union of elements’ (ittihad-ı anasır) which proclaimed as taking ‘each millet as an equal part of a greater Ottoman nation’178 into the Constitution. Thus, the various diverse groups were not only subjects of the state but their distinct diversity was recognized at the constitutional level, which must have been a result of the equality and brotherhood ideals of the 1908 Revolution. Since all communities were considered as parts of the state and nation, neither the non-Muslim nor the Muslim deputies in the MM referred to any community as a ‘minority’ (ekalliyet in Ottoman). One of the deputies’ expectations from the 1908 Revolution and the government was ‘to generate mutual agreement in the minds of various elements, and to bind them to the Ottomanism ideal, and generate love for Ottomanism as much as for their own element’.179 However, the İTC’s practice would prove the opposite and, in fact, increased the alienation of non-Turkish-Muslims and nonMuslims from the state. For instance, banning or not allowing the establishment of associations based on ‘ethnicity (kavmiyet) and race (cinsiyet)’ in article 3 of the Association Law (Cemiyetler Kanunu) in 1909, was an early generator of scepticism about the İTC’s affiliation to the ideal of Ottomanism. While allowing

just ‘Ottoman’ in order to erase separation from the minds of people (MMZC, 30.01.1909, p. 263). 175  MMZC, 30.01.1909, p.265. He also stated ‘For instance, the name of Kurdistan, Albanians, Greeks, Armenians are all being cited … thus the use of the term kavmiyet does not contradict the unity of Ottomans.’ 176  Hiristo Dalçef Efendi, MMZC, 07.07.1909, p. 449. Also see Pavli Karolidi Efendi (İzmir), p. 453. 177  Ibid.: 448. 178  Demirağ 2005: 153. 179  Ohannes Varteks (Erzurum), MMZC, 24.11.1910, p. 368.

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and further supporting Turkist (Türkçü) associations,180 such as Turkish Hearths (Türk Ocakları)181 and Associations of Turkists (Türkçü Derneği), it banned nonTurkish organizations belonging to non-Turkish-Muslims182 and non-Muslims.183 Only those organizations which were pro-İTC were allowed.184 Article 3 of the Association Law had been proposed by the İTC, causing very heated debate in the MM. The ensuing discussion is very interesting for an understanding of the significance of the ideal of Ottomanism for non-Muslims and other non-Turkish deputies. This proposed article was criticized by nonMuslim deputies as the ‘seed of sedition’, which would prevent various elements from ‘explicitly’ expressing their identity.185 Thus, it was argued, an insistence on that provision would make the unity contemplated in the name of Ottomanism ‘putrid’ (çürük),186 and approving the provision would result in separation rather than unity.187 These concerns were also shared by some Muslim deputies who they considered that the provision was ill-intentioned, since no one would forget their ethnicity (kavmiyet).188 Deputies were also concerned about the introduction of ‘Turkification’ by means of the article.189 It was also criticized on grounds of freedom of expression. Hamparsum Muradyan Efendi stated that the state should leave its subjects to speak freely; only then could their needs and problems be 180  For instance, the Müdafaayi Milliye Cemiyeti, which was a Turkist organization, was exempted from the cost of freight of post and telegraph by law (for details see MMZC, 21.05.1914, p. 149). 181  The Turkish Hearths mainly aimed to substitute the ideas of Islamism and Ottomanism with Turkish nationalism and to promote Turkish nationalism among the people by teaching the Turkish language and history and developing an awareness of Turkish cultural heritage and nationalism through their branches all over the Empire. They were closely linked to the İTC: Zürcher 2000: 154. 182  Kurdish organisations and schools in Istanbul were closed down in 1909: Tunaya 1984, Vol. I: 406. Albanian Societies were closed in 1910: Sönmez 2007: 134. 183  Tunaya 1984, Vol. I: 374, fn.21, Lewis 2002: 349–50. 184  Tunaya 1984, Vol. I: 374. 185  Ohannes Varteks Efendi, MMZC, 07.07.1909, p. 446. 186  Ibid.: 447. 187  Ohannes Varteks Efendi, MMZC, 07.07.1909, p. 448. He also stated ‘you are forcing me to be a nationalist. My primary idea is Ottomanism. I also know very well that especially the Armenian nation (milleti) cannot live anywhere else except in the Ottoman homeland (memleket). You are interpreting my ideas erroneously and perceiving as if I am an old (kart) Armenian who does not think about anything else except Armenianism. Whereas I am more Turk than you and I am more Turk than a Turk.’ For a similar criticism, see Kirkör Zehrap Efendi (Istanbul), MMZC, 07.07.1909, p. 454 and MMZC, 05.04.1910, p. 194. 188  Abdülhamit Zehravi Efendi (Hama), MMZC, 07.07.1909, p. 451. For the same argument, see ibid. Kirkor Zahrep Efendi, p. 455. 189  Hiristo Dalçef Efendi (Siroz), MMZC, 07.07.1909, p. 448 and Pançedoref Effendi (Manastır), another deputy, asked whether the İTC’s real desire was to ‘Turkify non-Turks’ (ibid., p. 449).

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understood and acted upon.190 He also disagreed that allowing organizations based on ethnicity would lead to disintegration: If the government acts in justice, even if we ask Armenians, Greeks, Bulgars to establish secret organisations [against state unity], they would not do that … If you go to America, there are a thousand different nations (millet) but none of them endeavours to work for their own, because there are no restrictions.191

It was also argued that real Ottomanism could only be achieved by allowing different elements to protect their differences. For instance, Pavli Karolidi Efendi stated that being an Ottoman was possible if diverse groups were allowed to have and enjoy their distinctiveness. He stated, ‘If I say I am only an Ottoman, I would betray [my] Greekness and Ottomanism.’192 Establishing Ottoman unity (vahdet-i Osmanlı) was compared to establishing a voluntary company (şirket-i ihtiyari); article 3, however, would prove that the İTC aimed to establish a forced company (şirket-i cebriye).193 Non-Muslims were so sensitive about the realization of equality because of its significance for their being acknowledged as part of the Ottoman nation. Thus, equality was the main principle raised in their objections to the İTC’s proposed Law on Military Recruitment Remuneration (bedeli askeri), which required nonMuslims to continue to pay conscription remuneration once again to enable the

190  Hamparsum Muradyan Efendi, MMZC, 06.06.1909, p. 476. 191  Ibid.: 476–7. 192  Pavli Karolidi Efendi (İzmir), MMZC, 07.07.1909, p. 453. The opposite view is

demonstrated by the response of Ibrahim Hakki Pasa (Sadrazam) to the proposal of some Albanian deputies who had asked for the establishment of a committee without containing Albanian deputies to examine some incidents in Albania (MMZC, 21.04.1910, p. 551). He stated, ‘I desire the ending of remarks about Turkishness, Albanianness, Arabness, and that they should to stop’ (ibid., p. 554). The government policy of forcing people to adopt the Arabic alphabet while banning the use of the traditional Latin script (see also Ahmad 1982: 411), not appointing Albanians as state servants in Albania, and the official prohibition on the establishment of Albanian schools in the region were stated as reasons for Albanian rebellion. The government was also criticized for not making laws which took into account the special conditions and traditions of the region, and not allowing Albanian soldiers to be recruited in their region. For a discussion on these issues, see MMZC, 25.06.1912, pp. 139–40. 193  Kirkor Zöhrep Efendi, MMZC, 07.06.1909, p. 454. The non-Muslim deputies would later hold the Turks responsible for bankrupting the Ottomanism ideal. Emanual Emanueldi Efendi stated that ‘when some came up and declared the bankruptcy of Ottomanist politics, I assure you that they were not Greek people. Only five years ago many newspapers, pamphlets, books, and public orators had declared the bankruptcy of Ottomanist politics. I am sure you have not forgotten this. But you did not even question them: what are you saying?’ (MMZC, 11.12.1918, p. 298).

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state to close its budget deficit.194 The proposed law created resentment among non-Muslim deputies, who demanded ‘equality’ with Muslims on the matter of military service, since it was an ‘honour’ and a ‘service for the homeland (vatan)’, of which non-Muslims should not have been deprived. Although the İTC claimed that paying remuneration was the same as serving the homeland as a conscript,195 non-Muslim deputies considered it ‘degrading’ to be forced to pay money instead of performing military service, since it reminded them that they were not equal citizens but a ‘millet-i mahkume’ (convicted millet).196 Their view was shared by some Muslim deputies as well.197 Remarkably, the arguments and concerns raised about being a member of the nation vis-à-vis protecting a group’s distinct identity resonate very much with contemporary discussions. Indeed, they are valuable and interesting in telling us a lot about the roots of dilemmas in the management of diversity persisting in contemporary Turkey. An examination of the MM’s records of this period demonstrates that the state was trying to follow the fashion of the western modern nation-state, which was bound to be irreconcilable with the ideal of ittihad-i anasır. In any case, the vision of the increasingly dominant İTC was different. They considered that the ‘restoration of the Constitution would create more problems than it would resolve, unless the various nationalities of the empire could be assimilated into a mainstream national culture … and Turkish identity was the obvious and sole candidate for the role.’198 Thus, they drastically failed to accommodate the needs and desires of the religiously, ethnically and linguistically plural Ottoman population. While the İTC continued to use Ottomanism as its ideology, as demonstrated in its party regulations and programmes, its actual practice would prove the opposite.199 They identified the Empire’s multi-ethnic and multi-religious society as the source of the problems of the Empire. They were convinced that it would be impossible to reconcile the different interests to achieve a unified Empire and, hence, they became more ‘ethno-centric’,200 and saw the Turks as the only loyal element, as the chief bulwark and support of the state.201 Thus, the İTC firmly rejected federalism and autonomy and ‘aimed at unification of various Ottoman elements in a melting pot full of Turkish symbols’,202 which was perceived as a Turkification process by the ethnic and religious minorities and 194  Ahmet Müfit Bey, MMZC, 06.06.1909, p. 423. 195  MMZC, 20.06.1909, p. 181. 196  Ibid.: 169. Also see Ohannes Varteks Efendi, MMZC, 03.06.1909, p. 416 and

Muradyan Hamparsum Efendi, ibid., pp. 422–3. 197  İsmail Sıtkı Bey (Aydın), MMZC, 20.06.1909, p. 176, Şükrü Efendi (Sivas), p. 187, and see also MMZC, 02.06.1909, p. 425. 198  Roshwald 2001: 60. 199  Osmanağaoğlu 2004: 317. 200  Ahmad 1969: 154, Shaw and Shaw 1997: 289. 201  Kushner 1977: 5. 202  Hanioğlu 2001: 300. Also see Lewis 2002: 218–19.

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which increased their disappointment and frustration with the state. As we will see in Chapter 6, the essence of this view still survives in the Constitutional Court’s (Anayasa Mahkemesi, AYM) case law. The İTC officers had effectively gained dictatorial control of the government after a coup d’état in 1913. The new regime consisted of the famous triumvirate of Enver, Cemal and Talat Pashas who eventually led the Empire into the First World War as an ally of Germany. The political, demographic and economic situation seemed ripe for the start of a more assertive Turkish nationalism, which found its highest expression during this time, while the ideal of Ottomanism was officially abandoned.203 Turkish nationalism emerged as the political ideology of the government, with its irredentist pan-Turkist/Turanist vision, which aimed at the cultural and political unification of all Turks under a pan-Turkish empire.204 The regime aimed for Turkification and offered very little to the ethnic, linguistic and religious minorities of the Empire. The Young Turks made a drastic departure from the Ottoman strategy of the classical period ‘which was based on brokerage across ethnic and religious groups and centralization by incorporation and negotiation’.205 We examine in more detail below the effect of this ideological climate on the legal changes, and how these changes required a legal culture and laws suitable to achieve the new regime’s idea of the world, which would lead to the eventual break-up of the Ottoman Empire. 1.4.1 Linguistic Nationalism A common language was considered the most important component of unity and so the state focused very much on the development of a common language among the population. However, the İTC’s language policy, based as it was on the promotion of Turkish, would generate a reaction from non-Turkish Muslim groups as well as non-Muslims who had enjoyed linguistic freedom throughout Ottoman history and were free to use their languages in education, daily life, and, to a certain extent, even within the state administration. The idea of linguistic nationalism had indeed been pursued in the Ottoman Empire throughout the nineteenth century.206 However, in the minds of the governing Turkish elites, pursuing a Turkishlanguage policy did not contradict the ideology of Ottomanism but rather was in line with it,207 since it meant melting the hitherto parallel communal lives and characteristics within the framework of common citizenship.208 This vision became stronger during the İTC government’s rule. They gave much more importance to the constitutional provision on the official language, 203  204  205  206  207  208 

Hanioğlu 2001: 299. Taşpınar 2004: 48. Barkey 2009: 279. Üstel 2004: 28, fn. 40. Ibid.: 26. Ibid.: 25.

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and used it as a pretext to undermine the status of other languages. For instance, a law which required the use of only Turkish in the publication of legislation, on the grounds that Turkish was declared as the official language of the state by the Constitution, passed through the MM despite disagreement from non-Muslim and non-Turkish deputies.209 This law effectively overturned the state obligation, secured in the Islahat Fermanı, of translating new legislation and publishing it in all the languages current in the Empire. Non-Turkish deputies accepted without question that the state’s official language was Turkish and that all official documents had to be in Turkish, and declared they would endeavour to spread (intişar) the use of Turkish.210 However, they also suggested that translations of legislation in local languages be published together with the Turkish version.211 In their view, protecting the language of each group was essential for the realization of Ottoman unity. For instance, deputy Kirkor stated that … we are all adherents of unity (ittihad-ı Osmani), we will applaud every means regarding it. However, there is no harm in maintaining every element’s own language for the unity of Ottomans. [Further] to maintain one of the languages should not mean not to maintain the others. To say that the language of Turks should be prevalent (tamim etmek) does not mean that, as an Armenian, I should forget my own language, I should never speak Armenian, or a Greek should not speak the Greek language. On the contrary, to say that everybody should speak in their languages certainly does not mean that the language of Turks must be forgotten.212

Opposing such arguments, Turkish deputies insisted on the sole use of Turkish since it was the official language, stating for instance that people should ‘endeavour to learn Turkish; in Europe, even to perform a theatre play in a language other 209  Despite all the discussions, the law (Kavanın ve Nizamatın Suret-i Neşr ve İlâm Hakkında Layiha-ı Kanuniyye) required that legislation would be published and publicized by ‘possible and convenient’ (‘suveri münasibe ve mümkine’) means (article 2), whereas the non-Muslims’ proposal that legislation be published in local languages as well as Turkish was not included (MMZC, 19.02.1910, p. 386). 210  MMZC, 03.02.1910, Sevket Pasha, p. 48. See also Cemil Zehavi Efendi, p. 48, Kozmidi Pandelaki Efendi, Yorgo Boso Efendi, p. 46, and Kirkor Zöhrap Efendi, p. 52. 211  Yorgo Boso Efendi, MMZC, 03.02.1910, p. 46. Some Muslim deputies also supported this point and stated that, in some parts of the country, there was a continuing practice of translating laws and official documents into the local language; see Sevket Pasa (ibid.: p. 48). Further, Taha Efendi (Hakkari) stated that ‘although I am Kurdish, I would not demand translation of legislation into local languages, but I propose that legislation should be explained (tefhim) in local languages’ (ibid.: p. 47). 212  Kirkor Zöhrep Efendi, MMZC, 03.02.1910, p. 52. Yorgo Boso Efendi (ibid.: p. 47) also opposed this law stating that the ‘will of the nation’ (hakimiyeti milliye) could not be achieved only with the Turkish language.

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than the official language is prohibited.’213 It was also argued that since so many languages were spoken in the country, the translation of laws into these languages would impose a heavy financial burden on the state.214 When it was contended that the number of laws passed by the Parliament was very low and would not impose an extra burden on the state, Turkish deputies revealed that the real aim of insisting on publication of laws only in Turkish was to obtain ‘unity’ (birleşmek).215 However, the idea that ‘unity’ should be premised upon the Turkish language created reactions. Ohannes Varteks Efendi asked, ‘what does unity mean? Do you want us to be Turk? We are Ottoman, but not Turk.’216 He further pointed out that if the Parliament wished to project itself as pro-freedom and pro-equality, then it should accept the rights of every element.217 The use of Turkish in other official contexts also began to be a cause of some friction with non-Turkish Muslim communities. For instance, the Ministry of Justice’s order on the compulsory use of Turkish in the courts in Baghdad and Yemen created great resentment in the Arab-speaking areas and created further suspicions about the idea of Ottomanism.218 Such resentment had a heavier impact since a previous proposal asking for the appointment of civil servants to the Hicaz, Yemen and Tripoli provinces who spoke local languages until those areas acquired familiarity with Turkish had already been rejected by the MM.219 The İTC’s Turkish-language policy would create further disturbance among nonMuslim and non-Turkish deputies, with a law enforcing companies and businesses to use Turkish.220 The law required all Ottoman companies in ‘all transactions (kaffe-i ve muamelat), accounts and calculations in writing to use Turkish’ (article 4).221 It also imposed a fine for those who did not comply and, in the case of a repeat offence, required that they be barred from commerce (article 6).222 This created discontent 213  Mehmet Talat Bey, MMZC, 03.02.1910, p. 46. Ahmet Muhip Bey stated that ‘Instead of learning Italian, [people] should learn Turkish’ (ibid.). 214  MMZC, 03.02.1910, Gani Bey, p. 47. 215  Ibid., Cemal Bey, p. 49. For a similar view, see Mustafa Asim Efendi who mentioned the desire to develop a ‘unity (ittihad) of elements with one language, one body’ (MMZC, 13.11.1910, p. 165). 216  MMZC, 03.02.1910, p. 49. 217  Ibid. 218  İleri 2005: 216. Arab deputies brought the issue to the attention of the MMZC and Cemil Zehavi Bey accused the government of causing an ‘Arab-Turkish problem’ (MMZC, 29.06.1914, p. 157). He saw the government’s order as tantamount to forcing courts in ‘Anatolia and Istanbul to use Arabic’. 219  MMZC, 16.02.1908, p. 123. 220  Müessesatı Nafıa ile İmtiyazsiz Şirketler Muhaberat ve Muamelâtında Türkce İsti’mali Hakkinda Kanun, MMZC, 04.02.1915, p. 66. 221  Ibid.: 68. 222  Ibid.: 71. This law also required companies to start using Turkish by 10.07.1918, although that was extended to 1920 in order to allow them enough time to learn Turkish (MMZC, 29.02.1915, p. 480).

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among the deputies who were very much in favour of this article being enforced only for privileged (imtiyazlı) foreign companies. They found it acceptable that the use of Turkish could be imposed for correspondence with the state, but to impose the use of Turkish for all matters was considered against the Constitution.223 The Arab deputies in particular opposed this law and stated that in Arab regions people should be able to use Arabic; to introduce such a law would lead to ‘devastation’ (felaket) for the country.224 The law was defended by the government which stated that people could use their local languages in their private accounts, but they had to use Turkish when dealing with the state. The compulsory use of Turkish was to be extended to education with the İTC’s political programmes. The İTC’s political programme of 1908 anticipated compulsory primary education in Turkish, while at other levels, Turkish was considered to be the main (esas) language.225 Following strong opposition from non-Muslims, the 1909 political programme allowed local languages to be taught at high-school (idadiye) level.226 The 1917 programme also allowed local languages to be taught in primary education, although it would still be compulsory for primary education to be in Turkish.227 These language policy measures proved to be counterproductive. The minorities, who had enjoyed greater linguistic freedoms up until then, reacted against the new rulings because they saw them as a ‘Turkification’ policy. Instead of uniting minorities or peoples, these policies gave rise to language movements that went hand-in-hand with national revolts. The policy also demonstrated that not only were non-Muslims targets, but all non-Turkish groups.228 However, the reaction of these non-Turkish groups would be perceived as a failure of the egalitarian policy of citizenship, with deep resentment against the Turkish political elite, which was later carried over into the new Turkish Republic.229 1.4.2 Economic Nationalism At the start, the İTC had endorsed free market policies in order to enhance the economic situation of the country. However, given growing disillusionment with the liberal countries of Europe, and the strengthening relations of the İTC with Germany, they gave up the free market economy policy and shifted to economic nationalism.230 As a result, the İTC unilaterally abolished the capitulations on 223  MMZC, 04.02.1915, Haralambidi Efendi (Istanbul), p. 69. 224  Ibid., Cemil Zehavi Effendi (Baghdad), p. 69; Fâris El-Hûrî Efendi (Damascus),

p. 69.

225  226  227  228  229  230 

Tunaya 1984, Vol. I: 67. Ibid.: 82. Ibid.: 110. Lewis 2002: 219. Içduygu and Soner 2006: 452. Zürcher 2000: 154.

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1 October 1914 and launched the programme of National Economy (Milli İktisat). Although it has been claimed that the creation of a national economy programme was supported by the state from 1915 onwards,231 in reality, it had started earlier. For instance, a law was passed in 1911 promising state subsidies for entrepreneurs who established a ‘national factory’.232 This policy would later be readopted and renamed Etatism by the Kemalists, and would become one of the founding principles of the Turkish Republic in the 1930s. The creation of a national bourgeoisie was considered a primary goal towards the formation of a nation-state. The İTC planned the creation of a strong national bourgeoisie by forming entrepreneurial cadres among Muslim traders, İTC members and bureaucrats. However, non-Muslims held an incontestable domination over the Ottoman Empire’s economy and the İTC triumvirate considered them as impediments to the formation of a Turkish bourgeoisie. If the existing local non-Muslim bourgeoisie were left out, this would result in the creation of a Turkish bourgeoisie. Thus, an İTC policy of creating a national bourgeoisie was established using the ethno-religious borders of the ‘Ottoman nation’. By using wartime market conditions in favour of new Turkish-Muslim cadres, the İTC led them to accumulate capital at the expense of the Greek and Armenian minority businesspeople who did not have political backing. This tendency was also justified by wartime alliances, according to which non-Muslim groups were assumed to be supporting the Allied powers. The İTC thus passed many laws with the aim of creating a national economy of which it became the regulator.233 The İTC took further drastic measures towards achieving economic nationalism with the help of the Unionist ‘secret army’, Teskilat-i Mahsusa (special organization), managed by Kara Kemal.234 For instance, the use of Turkish become compulsory in business,235 and companies were compelled to take Muslims onto their boards, and were forced to replace non-Muslims with Turks in jobs.236 Boycotts237 were one method used, especially following II Meşrutiyet for the establishment of a ‘national economy’ and the elimination of non-Muslims and foreigners, and they were used later on in the Republican period as well.238 The İTC’s economic nationalism was criticized in the MM, since it was being 231  232  233  234  235  236  237 

Ahmad 1969: 157. MMZC, 31.03.1911, p. 273. For the details of these laws see Osmanağaoğlu 2004: 324–5. Zürcher 2000: 159. Shaw and Shaw 1997: 310. Ahmad 1982: 417. The ‘boycott’ as a mass movement started in 1908 with the boycott against goods from the Austro-Hungarian Empire, following its invasion of Bosnia-Herzegovina. For a detailed work on this boycott, see Çetinkaya 2004. The ‘Greek boycotts’ of 1912–13 in fact targeted all non-Muslims. 238  Çetinkaya 2004: 382.

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promoted with the idea that improving the position of Turks in the economy could only be achieved by assuring Turks would only trade with Turks.239 Muslims who continued to do business with non-Muslims were attacked and the government’s failure to take measures to stop the attacks or to bring the assailants to justice raised questions in the minds of non-Muslims about the real intentions of the İTC’s economic nationalism policy. While supposedly aiming to improve the position of Turkish elements in the economy, it was considered to be a political measure against non-Muslims.240 Organizations established by Turkish workers, artisans and other groups would not permit non-Muslims to be members.241 Consequently, many Greeks from the western coastal zone, as well as Armenians, decided to emigrate, leaving their companies to be bought by the new Muslim businessmen at far below the market value. Such measures were later justified by Celal Bayar, who became president of the Turkish Republic in the 1950s (see 3.2.2), and who had been in charge of the ‘nationalization’ (millileştirme) campaign in İzmir. In his memoirs, he describes those events as ‘the removal of the “internal tumours” whose “treacherous and shameless greed” endangered the country’.242 As we will see in Chapter 3, economic Turkification would continue during the new Republic and right into the 1960s. 1.4.3 Settlement Policies Recent studies by Dündar and Akçam have demonstrated that the İTC had a more determined and complex idea of Turkification of the masses of the country.243 Thus, the İTC’s engineering of a nation through education and linguistic nationalism went hand-in-hand with securing ‘Muslimization’ and ‘Turkification’ of the country’s population through settlement policies in order to secure the Empire’s shrinking territories.244 Concerning Muslims, the İTC applied the method of ‘procuring’ (celp) Turkish and Muslim immigrants into the country in order to increase the

239  240  241  242  243 

MMZC, 23.06.1914, p. 607. Ibid. 609. Tunaya 1984: Vol. III, 409–10. Cited in Zürcher 2000: 159. Dündar 2001, Akçam 2008. For an interesting study on the use of mass deportations earlier in Ottoman history see İnalcık 1954: 122 where he argues that the Ottomans ‘used an elaborated system of colonization and mass deportation (sürgün) … The turbulent nomads or the rebellious population of a village and even a town which had caused or might cause trouble were shifted to a distant part of the Empire. The Ottoman state was also greatly concerned with the settlement of Turkish people in conquered lands’. Thus, he states that ‘mass deportation’ (sürgün) of communities was one of the methods used by the Ottomans ‘in organizing newly conquered lands’ from the early times: İnalcık 1954: 123–4. 244  Dündar 2001: 246. Indeed, this policy was openly defended in the MM for the ‘well being’ of the state, see Mehmet Talat Bey (MMZC, 13.11.1910, p. 165).

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Muslim population.245 The main policy regarding the non-Muslim population was to decrease their number,246 and not allow the immigration of non-Muslims into the country.247 The government settlement policy created much discontent in the Parliament. Hristo Dalçef Efendi stated, ‘We oppose not the fact that the immigrants (muhacirs) are coming into the country, but the government’s efforts to bring them in.’ He considered that ‘this policy would not have been pursued if we considered all elements (anasır) Ottoman, and if we do not want to consider some Ottoman element as ruling (‘milleti hakime’) and others as reaya (ruled or subjects).’248 The policy of population exchange, which was also widely applied by the newly established nation-states of the Balkans, gave the İTC an opportunity to decrease the non-Muslim population of the country. Thus, the İTC agreed the first international population exchange agreement with Bulgaria in 1913.249 A year later, another agreement with Greece concerning the exchange of Greeks of the Aydın region and the Muslims of Eastern Thrace was concluded, but it could not be completed because of the start of the First World War.250 Further, the security concerns of the First World War would give legitimacy to the most drastic method to this end, the ‘Tehcir’ (Deportation) Law of 27 May 1915, which gave the army powers to resettle inhabitants of villages and towns on the basis that ‘their espionage and betrayal has been felt’. This law later became permanent with a circular of 30 May 1915. It affected Greeks, Jews, Nestorians, Chaldeans and Assyrians, who were also subjected to forced resettlement.251 However, there was a special instruction with respect to the resettlement of Armenians,252 effectively a mass deportation towards Syria, which turned into a large-scale regional massacre and ethnic cleansing.253 245  Dündar 2001: 246. 246  In the İTC’s words, ‘the clearing of non-Turkish elements’ (arındırma) in

Anatolia was implemented first in the Aegean and then expanded to other parts of the country: Akçam 2008: 37–8. It was later justified on grounds of the ‘security concerns’ of the First World War and the settlement needs of Muslims immigrating in large numbers. 247  See MMZC, 24.11.1910, p. 378. The government was also criticized for giving financial help to the immigrants (muhacirs) in the Balkans to make sure they settled in that region, but not doing the same for returnee Armenians who had fled the country because of Abdülhamit’s oppressive regime. They could not even re-acquire their lands, and therefore became destitute in the eastern part of the country (see MMZC, 24.11.1910, p. 372 and also see Keygam Efendi, MMZC, 24.11.1910, p. 420). 248  MMZC, 24.11.1910, p. 378. 249  Dündar 2001: 66. 250  Ibid.: 70. 251  Ibid.: 64. 252  FO.371/9158E.5523, cited in Dündar 2001: 63. 253  After the end of the First World War, criminal actions were brought against the İTC leaders thought to be responsible for this massacre. For a detailed study of these hearings, see Dadrian 1991: 549–76. In his speech at the MM, Artin Boşgezenyan Efendi’s

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Although the İTC wanted to increase the Muslim population, it also had a plan to ultimately Turkify them by mixing the non-Turkish Muslim population with the ethnic Turks.254 They first drew up an ethnic map of the population though secret censuses,255 and, for the first time in these censuses, they asked the Muslims to be classified by their ethnic origins.256 These maps would be the basis of the resettlement policy for Muslims. They aimed to ‘mix up’ the various Muslim ethnic groups257 – consisting of Arabs, Circassians, Albanians, Georgians, Roma, Kurds, Laz and Bosnians – by resettling them where they would not compose a concrete majority.258 In an effort to secure their assimilation among Turks, their movement outside of the resettlement areas allocated to them was prohibited and they were scattered among the Turkish population so as to not constitute more than 10 per cent of the population.259 However, the resettlement policy varied from group to group in relation to their adaptability to Turkishness. For instance, in the resettlement of the Bosnian Muslims, the İTC did not apply the same strict rules as for others, although they intended to make sure that they would learn the Turkish language and customs as soon as possible.260 Meanwhile, the İTC resettled the Roma nomadic population and, after 1917, did not accept Roma immigrants into the country even if they were Muslim. In a draft law of 1918, Aşair ve Muhacir Kanunu (Tribe (Aşiret) and Immigrant Law), Roma people were counted among those who would not be accepted into country as immigrants (article 3),261 and this later merged into the Passport Law which is valid up until today (see 4.2.2).

points to the İTC as being solely responsible for the massacre: ‘today, the Turkish nation (Türk milleti) is accused of … an Armenian massacre (Ermeni kıtali), an Armenian cataclysm (facia) … however it is not the Turkish nation who is responsible for this; it was the Turkish government or the former administration (“Bravo” voices). Some might say ‘What is nation (millet), what is government, are these two not the same?’ … I am spelling out that the big murder of which the Turkish nation is being accused was committed by the former administration … the Armenian cataclysm was committed by [them] and their servants in provinces, that is the governors, mutasarrıf, kaymakam, gendarme commanders, police managers, gendarme soldiers, Teskilatı Mahsusa, etc. … Muslim residents of [many Turkish] cities, whole regions opposed the government’s order to protect the wretched Armenians from tehcir. However, they could not stop the cruelty because of the government’s order threatening anyone opposing it with being hung outside their houses, so they had to yield to the order’: MM, 18 November 1918, p. 141. 254  Akçam 2008: 38. 255  Dündar 2001: 84–6. 256  Ibid.: 86. 257  Ibid.: 247. 258  Ibid.: 114. 259  Ibid.: 118, 127. 260  Ibid.: 124, citing Ağanoğlu 1999: 45. 261  Dündar 2001: 129.

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For the resettlement of Kurdish immigrants, the İTC used a different method. According to detailed instructions prepared by the İTC, the Kurds were settled among the Turks, with their rate to not exceed more than 5 per cent of the Turkish population. Furthermore, they had to be separated from their religious and tribal leaders in order to ensure that they lost their nomadic life, language and customs.262 The essence of this policy would be revived during the Republican period in the Settlement Law of 1934, which aimed at the complete Turkification of Anatolia (see Chapter 3). Meanwhile, the events of the First World War and the embroiling of the Ottoman Empire in a fight for its own independence was to lead to a series of foundational events and documents within the space of a few years which were to result in the establishment of Turkey as an independent nation-state. Simultaneously, the ‘minority’ question became a central and defining point for the shape and identity of the new state of Turkey.

262  Ibid.: 141–2.

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Chapter 2

Transition to the Turkish Nation-State The Ottoman Empire found itself on the defeated side at the end of the First World War. Following the Montrose Armistice of 1918, Talat, Cemal and Enver Pashas left the country on a German boat, before the Allied Powers anchored in Istanbul on 13 November 1918. The invasion of İzmir and neighbouring cities by the Greek Army, under the protection of the French and British marines, shocked the Muslim population. Mass meetings and demonstrations took place in Istanbul. The passive attitude of the Ottoman government resulted in the formation of some local civilian resistance movements in Anatolia.1 This was the general picture when Mustafa Atatürk Kemal and his fellow nationalists came onto the scene with a ‘national secret’2 plan to establish an independent Turkish nation-state inherited from the İTC. The new state would also be a republic on the territory drawn by the Montrose Armistice.3 M. Kemal and his cadres organized the local resistance movements into a national independence movement. Besides the Kemalists,4 the members of the İTC cadres who had stayed after their leaders had left the country also played an important role in the national Independence War under the Karakol Cemiyeti organization.5 The latter mobilized in secret, as there was enormous anger and distrust against them among the Muslim and the non-Muslim population. The domination of İTC members in the nationalist movement explains why the İTC’s policies were later revived or adopted by the Kemalists.6 Even after the attempt to eliminate them in 1926, most of the old İTC members continued to govern the state in various positions.7 In any event, there was an organic connection between M. Kemal and the İTC, demonstrated by their political and ideological affiliation with one another. The continuity between the İTC and Kemalist Turkey becomes more visible in the management of ethno-cultural-religious diversity, 1  2  3  4 

Demirel 1995: 55, Alexandris 1983: 65. Rustow 1957: 75, Yıldız 2004: 93. Demirel 1995: 55. The word ‘Kemalist’ is used here in place of M. Kemal and other leaders of the Independence War, but not with the other meaning of ‘Kemalists’ signifying the followers of the ideology of Kemalism as it came to be structured in the 1930s. 5  Demirel 1995: 70–80. 6  Ibid.: 79. 7  Ibid.: 1995: 79. M. Kemal himself also came from the Young Turks tradition. For the correspondence among Enver Pasha, Talat Pasha, M. Kemal and Karabekir, see Karabekir 1967: 3–91.

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with the nuance that the former was less organized and had to deal with a larger number of minorities.8 As shown in this book, the Kemalists consistently reinstated or reapplied the policies and practices which the İTC had only incompletely managed to pursue. In this sense, the İTC period can be seen as a rehearsal for the Kemalist regime.9 Both were deeply stimulated by modernism and secularism (although they did not avoid using religion to further their interests whenever they needed), and by Turkish nationalism. Indeed, both intended to build the Turkish nation-state upon a homogenous population, through forced assimilation and Turkification of all areas of life – via education, immigration, settlement and history.10 In this context, the continuity between the İTC and the founders of the new nation-state is significant. The latter’s policies on the management of ethno-cultural-religious diversity cannot only be explained on the basis of the new Republic’s insecurity complex (the ‘Sèvres syndrome’ as it is often known11), and the fear, inherited from the Ottoman Empire, of losing territory. It also shows that ‘Turkish nationalism’ deeply influenced the Republic from its founding. In this chapter, we examine how the multi-cultural, multi-ethnic, multireligious population of Anatolia came to be transformed, through the Turkish national struggle, to end up in a Turkish nation-state between 1919 and 1923. It is important to focus on this period since it is used in political, intellectual and legal discussions on identity and the management of diversity as a foundational moment to legitimate the present situation in Turkey. For instance, the Constitutional Court (AYM) has come up with a definition of the nation by referring to some important documents of this period, such as the Erzurum and Sivas Congresses, and the National Pact.12 This period witnessed the transformation of the status of non-Muslims – from being part of the multi-ethnic, multi-religious, multicultural Ottoman state to becoming a ‘minority’ in the Turkish nation state (2.1.1). 8  Somel 1997: 82 argues that, despite the Turkish Republic’s refusal to become the heir of the Ottoman Empire, its practice in relation to different communities was a continuation of that of the Empire. 9  Akçam 1997: 144–5 considers the Republican period as the ‘second round’ of the İTC era. 10  Yıldız 2004: 82 divides the İTC’s minority policy under two headings: Turkification of non-Muslims and forced assimilation of Muslim ethnic minorities, both of which would be enforced by the Kemalist regime throughout the Republican period. See also Chapter 3. 11  The Sèvres Treaty signed by Turkey in August 1920 would have meant that Turkey would have remained but a tiny country on the map. The Lausanne Treaty of 1923 revised its provisions as, by that time, Turkey had made many territorial gains. The image of Sèvres remains potent in the Turkish imagination as representing territorial losses and the prospect of being gobbled up. See further 5.2.2 on the influence of this factor on the AYM’s judgments. 12  SP-1992. Also see the TİP judgment of 1971 where the AYM stated: ‘ … the principle of the Turkish state’s integrity with its nation and territory [as set out in all Constitutions] finds its source in the Erzurum and Sivas Congresses and the National Pact.’

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Meanwhile, non-Turkish Muslims were in a state of transition during this period – from being ethnically, linguistically and culturally recognized as co-founders of the state to becoming ‘potential Turks’ (müstakbel Türk).13 Contrary to the nationalists’ subsequent monist discourse on the management of ethno-culturalreligious diversity, during the Independence War they adopted a relatively pluralist political and legal discourse with reference to idea of ittihad-ı anasır-ı İslamiye (union of Islamic elements).14 However, a close examination of the period (2.1.2) demonstrates that this was only a façade. In reality, they did not make significant concessions and instead pursued a Turkish nationalist vision aiming to forge a nation-state of Turks out of the Ottoman Empire, as with their predecessors, the İTC. The period also gave rise to the other key foundational document – the Lausanne Treaty of 1923 – where the legal status of ‘minorities’ was formulated out of a dialectic with the foundational documents adopted at domestic level. An examination of the Lausanne Peace Conference’s records (2.2) is crucial in order to extract the Turkish nationalists’ official view as to the concept of the nation and the tone they set for the prospects for minorities, right up to the present day. The Lausanne Conference also decided, for the decades to come, critical questions relating to the unprecedented population exchange between Greece and Turkey (2.2.1). This included the prospects for the return of the forcibly displaced Armenians (2.2.2), the position of the Muslim minorities (2.2.3), and the status of Mosul which gave occasion to raise the issue of the identity of the Kurds (2.2.4). The Lausanne Treaty itself is also crucial for the way in which it formalized the cleavage between Muslims and non-Muslims. In fact, a closer reading of it (2.2.5) allows us to see the rather nuanced way in which the different levels of protection were expressed for different groups, even though these nuances have been subsequently negated by Turkey’s strongly ethno-nationalist vision. 2.1 Muslim and Non-Muslim Minorities in the Discourse of the Independence War As noted, following the defeat of the Ottoman Empire in the First World War and its subsequent invasion by the Allied powers and the Greek Army, local resistance groups emerged with the aim of protecting their territory along with the Caliphate, Sultanate and the Ottoman state. They organized conferences to combine their strength and to formulate action plans for the future, including their relations with each other and with non-Muslims. The first such conference, with limited participation, was the Erzurum Congress of July 1919.15 The subsequent 13  Yeğen 2006: 73. 14  For this view, see Özbudun 1997: 63, Yıldız 2004: 98–100, Yeğen 2006: 49. 15  Only representatives from Trabzon, Canik (Samsun), Erzurum, Sivas, Diyarbekir,

Mamuretülaziz, Van and Bitlis provinces participated.

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Sivas Congress of September 1919 was organized by a Representative Committee chaired by M. Kemal. The Sivas Congress effectively expanded the reach of the Erzurum Congress Resolutions to the whole country, but without referring back to Erzurum. 2.1.1 Non-Muslims The Erzurum Congress determined the status of the non-Muslim population in article 5 of its final Resolution, which stated that the Eastern (Şarki) and Trabzon local resistance groups shall respect the rights of all Christian elements ‘as acquired from the Ottoman State’s acts and the law’. This was an affirmation of the status quo for non-Muslims as under Ottoman rule. The Sivas Congress Resolution opposed the formation of any ‘Greek and Armenian [entity]’ (Rumluk ve Ermenilik), but reaffirmed that they were ‘entirely respectful of the natural laws of all the non-Muslim elements with whom we have lived together for a long time. The security of their possessions, life, honour is the exigency of our religion, national tradition (an’anat-ı milliye) and the essence of our law’ (article 2(2)). The evidence from these documents of the early period of the Independence War therefore indicates that the relationship of the resistance groups with non-Muslims was defined along conventional lines. Until the 1920s, the non-Muslim elements of the Empire were never referred to as ‘minorities’ in any official documents of the Ottoman state or those of the local resistance groups. This would change, however, with the ‘Ahd-ı Milli Beyannamesi’, the so-called National Pact (Misak-i Milli) passed by the MM on 17 September 1920.16 That document drew new borders of the country on more or less the current territory of modern Turkey, leaving out the Arab lands. Article 5 of the Pact bore some importance for the diverse population of the country. Its relevant part read: … the rights of minorities (akalliyetler) as defined in the treaties concluded between Allied Powers and their enemies and certain of their associates shall be confirmed and assured by us in reliance on the belief that Muslim minorities in neighbouring countries will also have the benefit of the same rights.

While referring to non-Muslims as ‘minorities’, the document also conditioned protection of their rights upon the rights of the Muslims in neighbouring countries. For the first time in Ottoman history, the idea of reciprocity was brought into the protection and management of diversity. Further, minorities’ rights were being defined and legitimated through international ‘treaties’ rather than through their conventional roots. Thus, the conventional rights of these communities, which were observed for many centuries, were being nullified. 16  MM, 17.02.1920, pp. 144–5.

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In this regard, the ‘Ariza-ı Cevabbiye Müsveddesi’ prepared by the MM as a response to Sultan Vahdettin’s speech delivered during the MM’s opening, only a few days after the passing of the National Pact, is interesting. It stated that ‘Meanwhile, it is obvious that the minorities’ real interests are in living with the majority by mutual agreement (vifak) and mutual friendship (muhadenet), while equally (siyanen) benefiting from general laws and conditions.’ 17 It left the door open for any changes that might occur as a result of a peace treaty with the Allied Powers. In the discussion of this document, deputy Abdülaziz Mecdi Effendi (Karesi) referred to the presence of ‘Christian elements’ within the country, and opposed the use of the word ‘nation’ (millet) as a single unified entity; he suggested instead using ‘Millileri Osmaniye’ and ‘people (akvam) inhabiting the Ottoman territory’.18 This is striking because, although non-Muslims were beginning to be called a minority in the wake of Independence War, some still continued to consider them as part of the ‘Ottoman nation’.19 This conventional approach to non-Muslims would change decisively with the establishment of the new Parliament in Ankara following the prorogation of the MM in April 1920. The Turkish National Parliament (Türkiye Büyük Millet Meclisi – TBMM) was opened on 23 April 1920 with the participation of some members of the MM and representatives elected by the local branches of the ‘Defence and Rights Resistance Group’. However, unlike the Ottoman parliaments, no nonMuslim deputy was present in the first TBMM. Even though there was no law preventing non-Muslims being elected, a decision of the Representative Committee prepared by M. Kemal ordered that ‘non-Muslim elements shall not participate in the elections.’20 Thus, the first TBMM was exclusively Muslim but not exclusively Turkish. Interestingly, the opening of the TBMM would be congratulated by many non-Muslims alongside Muslim religious and local leaders, and local artisans.21 The Turkish Republic’s first Constitution of 1921 did not contain any provision which regulated the status of non-Muslims. However, as Çağaptay states, during the years of the Independence War, Turkish nationalists fuelled a vigorous antipathy towards Christians, as evident in the speeches before the TBMM.22 Indeed, the speech by the Izmir deputy, Mahmut Esat (Bozkurt) (later to be Minister of Justice), during the talks on the 1921 Constitution strikingly illustrates how non-Muslims were perceived by the nationalists:

17  18  19  20  21 

MM, 19.02.1920, p. 174. Abdülaziz Mecdi Efendi (Karesi), MM, 19.02.1920, pp. 170–71. Osmanağaoğlu 2004: 320. Tunçay 1989: 30, fn. 28. TBMMZC, 28.04.1920, p. 113. According to this record Maraş Armenian Catholic delegate (Murahhası), Serpiskopos Eriyaryan, the Armenian delegate, Murahhası Serrabip Haçadur Dergazaryan, and the Protestant religious leader Abrahamyan were among them. 22  Çağaptay 2005: 28.

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Probably it would not have been right to speak against the Christians in the [Ottoman] Meclis-i Mebusan … [however] I speak as a person who believes that the Christian group does not have any rights in this country. They have abdicated from citizenship of this country, and [they] abdicated from it by their betrayal and by pulling out a gun. They are the ungrateful (nankör) children of Ottoman history and they do not have any rights left in this country. In this country, which defends its rights, they are the spies of the imperialists and they are the traitorous children of this land, they do not have a place/work in this Assembly.23

It was during this period that non-Muslims, who were now the ‘ungrateful children of Ottoman history’, also became ‘minorities’ of the new Turkish nation-state with the Lausanne Treaty of 1923, while excluded from being part of the ‘nation’ of the Turks’ nation-state. The emerging mutual exclusion between ‘nation’ and ‘minority’ continues to recur as a theme through the history of the Republic. 2.1.2 Non-Turkish Muslims Several writers say that during the Independence War the nationalists adopted a pluralist political discourse, and abandoned it only after the Kurdish Şeyh Said rebellion of 1925 and the oppressive law of Takrir-i Sükun of the same year. However, a closer examination of the period 1919–23 demonstrates that this general acceptance is not completely sound. As is argued by Yıldız, unification and homogenization of the population had always been in the discourse of the nationalist leaders to various degrees throughout the Independence War.24 As seen in Chapter 1, Turkish nationalism was launched as a political project by the İTC, and many of its members were also founders of the independence movement. However, the nationalist leaders would not manifestly defend Turkish nationalism as long as the support of diverse groups was needed for achieving independence.25 Instead, protection of the Caliphate and saving the Sultanate had been declared as the main aims of the national independence movement at the beginning.26 During this period, the relations of non-Turkish Muslim groups with the national independence movement were shaped through Islamic references in the earlier documents of the Erzurum and Sivas Congresses of 1919. Özbudun is ‘without any doubt’ in considering the discourse in the Erzurum and Sivas Congress Resolutions, the National Pact, and so on, as representing ‘pluralism within oneness (birlik)’, which recognized plural cultural identities and protected and guaranteed them by law.27 The texts speak of the territories inhabited by an Ottoman Muslim majority, at the time of the Armistice, as a whole, inseparable 23  24  25  26  27 

TBMMZC, 18.11.1920, p. 437. Yıldız 2004: 124. Also, Güneş 1997: 213. Yıldız 2004: 93, Özbudun 1997: 65. Zürcher 1999: 81–92. Özbudun 1997: 64.

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from each other and from the Ottoman community. Therefore, they considered all Muslim elements as ‘true brothers (öz kardesler) who mutually revere each other, full of feelings of self-sacrifice, and who respect each other’s racial (ırkiye), social, surrounding conditions (şerait-i muhittiye) and position (vaziyet)’.28 These texts implicitly thereby recognized the diversity of the Muslim population in their mentioning of respect for the racial, social and environment conditions of those considered ‘brothers’. However, notably, article 1 of the National Pact of 1920 set a slightly different pattern, mentioning an ‘Ottoman Islamic majority’ who were ‘united in religion, custom (örfen) and aspiration’, regardless of whether they lived within or outside of the National Pact.29 While reiterating respect for the racial, social and surrounding conditions of the Muslim population, the National Pact also emphasized ‘unity’. As we see in the following chapters, this formula would be employed in the official state discourse to deny these various Muslim groups’ cultural, linguistic, or ethnic differences. Meanwhile, an examination of the TBMM records demonstrates that, during this period, a relatively pluralist, legal and political discourse of ‘brotherhood’ was also adopted by the nationalist leaders. Indeed, during the first TBMM period, even the nationalists did not refrain from using the various non-Turkish-Muslim groups’ ethnic and geographical names. In most official documents, TBMM meetings, and so on, these names are used generously.30 Some deputies are even referred to as ‘Lazistan deputy’, ‘Laz’, ‘Circassian’ or ‘Kurdistan’, ‘Kurdish race’, and so on. However, as we will see in Chapter 3, this practice did not last long. In line with the relatively pluralist political and legal discourse, the phrases ‘Turkishness’ (Türklük) and ‘Turkish nationalism’ (Türk milliyetçiliği) were not used in the above-mentioned foundational documents. Rather, traditional criteria were evident in phrases like ‘national group’ (milli topluluk); ‘Ottomans’, and ‘of Islam’. On the one hand, by adopting a pluralist discourse concerning cultural identities and the protection of those identities in law, a message of unity in diversity of the Islamic elements was communicated. On the other hand, Turkish nationalist and Turkist tendencies,31 accompanied by an increasing emphasis on the word ‘Turk’ or ‘Turkishness’, disturbed some deputies who were attached to the idea of the unity of Islamic elements and who desired their distinctiveness to

28  The word ‘position’ (vaziyet) was changed to ‘rights’ (hukuk) later in the National

Pact.

29  See MM İçtima-i Fevkalâde, 17.02.1920, for the text of the National Pact, p.144 and for discussions on it, pp. 143–51. 30  See Çoker 1994. 31  A reading of the TBMM records and proposed laws demonstrates the employment of Turkish nationalist discourse in the first TBMM despite the official political discourse of unity of Islamic elements. See also Çoker 1994: 665–6.

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be recognized.32 For example, Emîr Pasha (Sivas) challenged a speech in which the words ‘Turkishness’ and ‘Turk’ were used generously, stating: I object that [the speaker] confined the necessity of protection of health to the Turks … I kindly request you not only to use the term Turkishness. Because we have not congregated here in the name of Turkishness (noises). I kindly request you not only [to use] the Turks but it is enough to say the Muslims or Ottoman. In this homeland, there are Circassian, Chechen, Kurd, Laz and some other tribes of Islam. We should not say something which would leave them out … .33

M. Kemal immediately responded to Emîr Pasha’s speech and reaffirmed the pluralist official discourse which recognized the distinctiveness of various nonTurkish Muslim ethnic groups: Gentleman, I wish to say two things, with my request that this issue will not repeat again here: Persons who compose this High Assembly are not only Turk, not only Circassian, not only Kurd, not only Laz. However, the Islamic elements (anasırı islâmiye) which are the compound of all are a genuine collection (mecmua). Therefore … our desire of rescuing law, honour, dignity and laurels is not exclusive to one Islamic element … We all know this … the nation we are engaged to protect and defend, of course does not consist of only a single element. It is a compound of Islamic elements. All elements who compose this collection, are our brothers and citizens whose interest is completely common. As it is stated in the first line of the statute we adopted, these various Islamic elements: as we repeated and affirmed, they are citizens, abide by and mutually revere each other and one another’s law, race, social, geographical law (hukuk) and we all genuinely accepted it. Therefore, our interests are common. The unity (vahdet) we are determined to achieve is not only Turk, not only Circassian, but

32  Mardin 1973: 177 asserts that, besides aiming to save the Sultanate and Caliphate, the periphery which had been organized under the TBMM, also represented forces reacting against the Young Turks’ rule and policy of centralization. 33  TBMMZC, 01.05.1920, p. 166. Endeavours to use the word ‘Turk’ as a generic name for ‘various Muslim elements’ had created reactions in the MM. Abdülaziz Efendi (Karesi), spelled this out, stating ‘whoever talks about ‘Turkish History’ in this rostrum, I assume they intend to say various elements of Islam like the Turk, Kurd, Circassian, Laz (by all means! sounds, applause). If the meaning of the word Turk is not that, I request you to use various Muslim elements instead of Turk in your discussions. If the meaning of the word Turk is perceived in the way I explained now and if the lofty Assembly’s considers it in this way, then there is no harm … After the meaning of Turk is interpreted (tefsir) and explained (serh) by the present Assembly to the public, the person who says I am Kurdish, would not misunderstand [the discussions in the Assembly]. In order not to bring the dust of politics into their mind, let’s either use words like Turk, Kurd, Circassian or various elements of Islam.’ See MMZC, İçtima-ı Fevkalade, Abdülaziz Efendi (Karesi), 19.02.1920, pp. 170–71.

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it is a blend (memduç) of all Islamic elements. I request that it be considered like this and not be interpreted in the wrong way.34

It is evident from this discussion that, because of its ethnic connotation, the nonTurkish deputies of the TBMM did not consider the word ‘Turk’ as an umbrella term for all non-Turkish Muslims. Instead, they preferred the more neutral phrases ‘Ottomans’ or ‘various elements of Islam’.35 However, the nationalists would insist on referring to the various Muslim elements as ‘Turk’, something which was later used as ‘proof’ that various Muslim elements had been referred to as ‘Turk’ throughout history and that the word ‘Turk’ was a neutral name adopted by all.36 Towards the end of the Independence War, although respecting racial, social and even territorial rights of the populace continued to be asserted as the basis of policy, the pluralist discourse had already started to crack. For example, M. Kemal asserted that: The populace (halk) of Turkey is a social community which is racially, religiously and culturally united (müttehit), full of feelings of mutual respect and self-sacrifice for each other and having a common fate and interests. In this community respect for racial law, social law and respect for environmental conditions are one of the bases of our domestic politics.37

Interestingly, M. Kemal now referred to a populace who were united in race, religion and culture, something which later formed the main line of discourse in the new Republic of Turkey. However, this idea was not unfamiliar, since the National Pact had already anticipated the ‘unity in religion, customs (örfen) and aspiration’ of a people who lived within the national borders. The Kurds The Kurds were the biggest ethnically distinct Muslim community in Anatolia and their support was crucial for the fate of the independence movement.38 During the 34  TBMMZC, 01.05.1920, p. 166. 35  For instance, during the discussion on the agreement of 1920 between France and

the Ankara government, deputy Yusuf Kemal stated that ‘ … Antakya [Alexandra] is Turk and will stay Turk forever … ’, whereupon his speech was interrupted by other deputies and he was warned that there were not only Turks in Antakya. In response, he explained ‘No! When I say Turk, it was not a mistake (galat), [but] if the lofty assembly accepts, let us use Ottoman instead [of Turk]’: TBMMGCZ, 15.10.1921, p. 328. 36  See AYM STP-1993. See further Chapter 5. 37  TBMMZC, 01.03.1922, p. 3. 38  Besides the common aims of protecting the Caliphate and Sultanate, Kurds supported the Independence War because of the danger of invasion from the east by Armenians. The Kurds feared being deprived of the Armenian lands which they had occupied following the expulsion of Armenians during the First World War. These concerns are evident in M. Kemal’s correspondence with Kurdish tribal leaders: Goloğlu 1968: 113.

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period 1919–23, the nationalists promised more to the Kurds than simple inclusion within the prevailing pluralist discourse. As with other non-Turkish groups, they too were referred to as ‘founding elements’, but the Kurds were also promised autonomy.39 The nationalists’ discourse on the Kurds during this period therefore requires closer examination. During this period, the country’s frontiers were being defined in the second Protocol of Amasya of October 1919,40 with reference to ‘the lands which the Kurds and Turks inhabit’.41 While that document rejected the possibility of the Kurds seceding, it nevertheless suggested ‘facilitating the manifestation of racial and social laws in a way and manner that ensures the Kurds’ free development’, since that was important for neutralizing foreign states’ propaganda concerning Kurdish independence. Local autonomy was therefore contemplated by the nationalist leaders as a way of ensuring the Kurds’ ‘free development’. M. Kemal’s speech of 3 July 1920, during a secret session of the TBMM held in response to the Russian Soviet government’s demand that Turkey hold a plebiscite for the various racial inhabitants of Anatolia, is also instructive in this regard. M. Kemal asserted that the nationalists had already recognized the establishment of independent states in Syria, Iraq and Armenia, but denied that that was the case for ‘Kurdistan, Lazistan and so on’, since they ‘live within the circle drawn by national borders’, had decided to respect each other’s racial, social and moral laws and to ‘work together’ to this end.42 He also defined their solidarity by reference to ‘the consciousness of brotherliness and religious manners’ and their ‘common interests’. This is another indicator that the implication of the pluralist discourse was that the Kurds and other non-Turkish Muslim elements should accept and remain within this ‘unity’ under the terms contemplated by the nationalist leaders and not demand self-determination outside it. Yeğen argues that the articles of the 1921 Constitution, which provided for strong local administration, must have been a result of the ‘idea of local autonomy’ for the Kurds.43 However, local autonomy in the 1921 Constitution did not specifically aim at the Kurds, but anticipated a structure of provincial autonomy for the whole country. Indeed, as Özbudun states, the Constitution of 1921 was prepared with a strong emphasis on ‘devolution’ (yerinden yönetim). He contextualizes this by pointing to the doctrine of ‘Populism’, a dominant idea in the first TBMM.44 Indeed, 13 of the 23 articles of the 1921 Constitution were 39  Oran 1994: 298. 40  The Amasya Protocols were signed between the national independence movement

leaders and Ali Rıza Pasha’s cabinet of Istanbul which had been formed after the overthrow of Damat Ferit’s cabinet. The second Protocol remained secret for long: Unat 1961: 359–65. 41  Also see M. Kemal’s remarks on 18.12.1919: Atatürk’s Discourse and Statements 1989, Vol. II: 12. 42  TBMMGZC, 03.07.1920, p. 73. 43  Yeğen 2006: 52, fn. 6. 44  Özbudun 1992: 43.

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dedicated to a new administrative structure for the country.45 Turkey was divided into provinces, towns and sub-districts; the provinces (vilayet) and sub-districts (nahiye) would have legal status and some degree of autonomy in their local functions and relations.46 Although this structure was considered as ‘a step towards autonomous government’ (ademî merkeziyet) and as a ‘guideline’ (rehber) towards this end, there was doubt whether these constitutional provisions would actually result in such a project, since these abstract provisions required new laws to put them into practice.47 The Special Committee Reporter (Encümen), İsmail Suphi, explained the intention behind the administrative structures envisaged in the 1921 Constitution from a good-governance point of view and stated that ‘the provinces are not a state on their own, as it is the case for the “united governments” of America. Their autonomy (muhtariyet) is limited to its local functions.’48 That is, the aim was not to create decentralized autonomous local governments. If one considers that the 1921 Constitution was a product of the representatives of the various local resistance groups in the TBMM, it is not surprising to see reflected in it claims for more autonomy and for localized administration. However, as the following years and further laws proved, this relatively autonomous structure never came to fruition. The 1924 Constitution left in place the administrative structure of the state while reducing the scope of local powers and autonomy, and centralizing more of them. Meanwhile, the establishment of ‘local administrations’ in areas populated by the Kurds as well as the entire country was explicitly mentioned in the TBMM, and was interpreted as the nationalist leaders’ support for autonomy for the Kurds.49 Indeed, a Ministry of Cabinet instruction sent to the Elcezire line commander ‘concerning Kurdistan’ manifestly mentioned ‘gradually establishing a local administration’ (mahalli bir idare) in areas ‘populated by the Kurds’ (article 1).50 However, from other articles of the instruction, it seems that the establishment of local administrations was thought of as a method to guarantee the loyalty and alliance of the Kurds to the TBMM, while ensuring that they remained antagonistic towards foreign powers. The instruction authorized the Elcezire commander, that is, the army, to govern the region and determine Kurdistan’s internal policy. It further instructed the Elcezire commander to persuade the Kurds to manifest their right to self-determination by opting for the TBMM,51 thereby declaring that they 45  46  47  48  49  50  51 

For the text of the 1921 Constitution, see ibid.: 82–4. Ibid.: 43–4. TBMMZC, 14.12.1920, Musa Kazım Efendi (Konya), p. 368. TBMMZC, 18.11.1920, p. 412. Yeğen 2006: 51. TBMMGCZ, 22.07.1922, p. 551. The latter point has since been used by the AYM to argue that since the Kurds had used their right to self-determination at the time of the independence movement, it cannot be used again: see Chapter 6.

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wish to live under its rule given that the establishment of local administration would take time to be completed. It was also advocated that the Kurds’ loyalty should be guaranteed by entrusting to them some administrative or military duties. A reading of these documents as a whole shows that the real intention was not to provide autonomy for the Kurds but to make sure that the Kurds would not enter into an alliance with the Allied Powers. At the same time, Kurdish support would strengthen the argument at the Lausanne Conference that the Kurds neither desired autonomy nor needed any particular sort of external protection. M. Kemal also mentioned the possibility of autonomy for the Kurds in an interview with a group of journalists on 16–17 January 1923.52 The date of that interview is significant, since it is also the date the Mosul issue was being discussed at the Lausanne Conference, during which Britain was constantly forcing the Turkish delegation to declare its view on what the nationalists would offer to the Kurds in their territory (see 2.2.4). It is evident that the Ankara government wished to reduce the pressure and adverse influence of Britain’s intentions towards the Kurds within Turkey. Thus, M. Kemal’s interview must have been a tactical response to that pressure. Moreover, in the following days, Kurdish representatives would send a protest to the Lausanne Peace Conference in response to remarks by Lord Curzon, who claimed that they were not the real representatives of the Kurds.53 2.1.3 Alevis, Nestorians, Chaldeans, Assyrians, Yezidis Some minority groups, such as the Nestorians, Chaldeans, Assyrians, Yezidis, and so on, were not mentioned at all in any of the texts referred to above, despite the fact that they later represented their case at the Lausanne Conference. The Alevis also did not appear in any of those documents as an element whose laws should be recognized, despite their considerable numbers in the population.54 However, in order to ensure the support of the Alevis for the nationalist movement, some initiatives were taken. First, M. Kemal visited the Hacı Bektash Dergahı (a shrine with special importance to Alevis) on 23 December 1919 and it is claimed that during the visit he made a promise to abolish the Sultanate and the Caliphate and to establish a republic.55 Further, Cemalleddin Çelebi (1862–192256), the guardian 52  Although this meeting was recorded in notes by four civil servants of the TBMM who were under oath, its record was missing for a long time. However, in 1991, the full text was published by Perinçek 1997, and also see Olson 1991. 53  For the discussion in the TBMM on this issue, see TBMMZC, 25.01.1923, pp. 505–11. In order to prove that the Kurds had been freely represented in the TBMM, M. Kemal asked the Kurdish deputies to come to the assembly wearing their Kurdish dress the next day and the deputies subsequently sent a telegraph to the Lausanne Conference in which they stated that they did not want to be separated from the Turks: Dersimi 1992: 169. 54  Kieser 2005: 553; see Küçük 2002: 154 55  Küçük 2002: 164–5. 56  Ibid.: 212 states that Cemaleddin Celebi ‘was the highest ranking leader of most of the Alawis in Anatolia, although some of the Alawi groups (that is, some Kızıl-bash

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and keeper of Hacı Bektash Dergahı was elected as the second vice president of the first TBMM, even though he was unable to attend the meetings on account of illness.57 Despite his non-attendance, his membership at the TBMM remained valid until his death in 1922. His membership was important for the nationalists for preserving the support of the Bektashis and Alevis, even though his and the influence of the Hacı Bektash Dergahı was limited to some Alevis and Bektashis, and could not prevent other Alevi/Kızılbaş groups launching an ‘anti-nationalist uprising’.58 The abolition of the Sultanate and the Caliphate could have been a key ingredient in the strategy of the nationalist leaders’ endeavours to gain influence over the Alevis and Bektashis, since Alevis had been suppressed for centuries in the name of the Caliphate. However, the declaration by nationalists of their aim being to save the Caliphate and the Sultanate, as well as to secure the fatherland and the nation’s independence, became evident in their official oath at the TBMM; this disturbed some Alevis.59 It effectively meant that recognition of Alevis and Bektashis by the nationalists did not amount to more than lip service, given that a restoration of the holy law and the Caliphate would mean the exclusion of Alevis.60 Further, on 28 February 1920, the Men’i Müskirat Kanunu 61 banned the production and consumption of alcohol and was considered as evidence of the increasing influence of Islamists in the TBMM.62 The measure was one of the methods used for ‘othering’ non-Muslims and undermining their commercial power en route to establishing a national economy.63 The survival of aspects of the Caliphate and increasing Islamic tendencies in the nationalist movement’s rhetoric led some Alevi-Kurdish tribes to fight for their self-determination64 and led to the Koçgiri rebellion.65 The Koçgiri uprising took place between 6 March and 17 June 1921.66 According to the TBMM records, it was triggered by a rumour that the Ankara government groups called Purut which recognize only the family lines and, as a natural consequence, are affiliated only with the Dedes, and the Kurdish Alawis) did not recognize him as leader.’ 57  Ibid.: 166. Meanwhile, Mewlawi Seyh Abdal-Halim Çelebi was declared the First Vice President of the TBMM: ibid.: 166–7. As with the İTC, the nationalist leaders tried to maintain the support of the Alevis/Bektashis but priority was given to the Sunni Sufi order of Mevlana, and the former could not obtain official recognition see ibid.: 133 and 235. 58  Ibid.: 216. 59  Demirel 1995: 152. 60  Küçük 2002: 157. 61  Coker 1994: 130–32. The ban was annulled on 22.03.1926 by Law no. 790. 62  Karahanoğulları 2007: 16. 63  Ibid.: 8, and also at p. 16 and pp. 38–40. 64  Keiser 2005: 542. This was not the only Alevi rebellion at that time. There was also the Yozgat Çapanoğlu Turkish Alevi uprising of 27 August 1920, following fears of their extermination in the same manner as the Armenians: Küçük 2002: 166–7. 65  Kieser 2005: 565–72. 66  Olson and Rumbol 1989 and also see Küçük 2002: 166–7 for more information.

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would deport ‘the Alevi Kurds like the Armenians’.67 Küçük sees the main reason for this rebellion as being the greater emphasis being placed by the nationalists on the Turkish and Sunni orders, which created a loss of trust.68 Olson takes the view that the rebellion was an attempt to create an independent Kurdistan.69 The harsh methods used in the suppression of the rebellion and against local people led some deputies to raise the issue before the TBMM,70 which then discussed it in a secret session. Some deputies’ demands for opening the discussion to the public were not accepted.71 Many deputies drew comparisons between the state’s fierce response to the rebellion and the violence against the Armenians in 1915 and even described the state reaction to the Koçgiri rebellion as worse than what had happened to the Armenians.72 After these discussions, the TBMM appointed a commission to carry out an investigation on the rebellion.73 Olson refers to a document he recovered from Horace Rumbold, then British ambassador to Turkey, which claimed that following the Koçgiri rebellion a draft law was brought before the TBMM on 10 February 1922 by a commission which proposed granting autonomy for the Kurds.74 The draft law consisted of 18 articles, the very first of which stated that ‘The Turkish Grand National Assembly … undertakes to establish an autonomous administration for the Kurdish nation in harmony with their national customs.’ It also talked about the creation of a Kurdish National Assembly. Article 15 of the Draft law allowed the use of the Kurdish language in ‘the Kurdish National Assembly and the service of the government and in the administration of the government’, and stated that the Kurdish language might be taught in schools, but it also ruled out the recognition of Kurdish as an official language. This draft law was rejected by the TBMM; it is supposed that the reason for this was that the degree of autonomy proposed in the draft law was considered as not being enough by the deputies. However, Olson claims this draft law made it clear that the Turkish nationalist leaders’ considered neither independence nor autonomy for the Kurds; the utmost that they had in mind was greater authority for the Kurds in some administrative and confined geographical areas.75 However, as argued here, the real aims of the nationalists were not to institute a pluralist system or a multi-cultural, multi-ethnic and multi-religious society out of the decaying Ottoman Empire. Since they were the successors of the CUP with its 67  TBMMGCZ 03.10.1921, p.256, and also see 04.10.1921, pp. 269–70 where Erzincan deputy, Emin Bey, cites incidents in which the local governors threatened to destroy the Dersim people like the Armenians. 68  Küçük 2002: 216. 69  Olson and Rumbol 1989: 52–6. 70  TBMMGCZ 03.10.1921, p. 248 where the Erzincan deputy Emin Bey described the state’s action as a ‘horrific atrocity’. 71  Ibid.: pp. 248–51. 72  TBMMGCZ 04.10.1921, p. 270. 73  Ibid.: pp. 273–9. 74  Olson and Rumbol 1989: 52–6, and also see Olson 1991 and Dersimi 1992. 75  Olson and Rumbol 1989: 54.

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Turkish nationalist doctrine, even at the very beginning they wanted to establish a nation-state based on Turkish ethnicity. They tried not to express this openly since it would not have been suitable for their cause at the time, but in the near future, the concept of nation based on Turkish ethnicity would be increasingly manifested, and the Sunni Hanefî version of Islam would go along with it to complete its definition, which would result in the exclusion of non-Muslims and Alevis, and the assimilation of the other Muslim non-Turkish communities. 2.2 The Lausanne Peace Conference and Treaty 1922–23 As charted in Chapter 1, the traditional millet system, premised upon quasiautonomous, community-based rights, differentiated treatment, and inequality, as well as the idea of justice and legal pluralism, had been in decline since 1839. It was finally officially annulled by the Lausanne Treaty of 1923. Thus, minority protection would have to be sought only by individuals as opposed to communal units, within a secular and ‘European-modelled’ legal system.76 While confirming the establishment of a new Turkish nation-state, the Lausanne Treaty also determined the status of minorities in this nation-state. It promised everybody the same rights and ipso facto replaced the millet rights of non-Muslim communities with this new regime. Even before the Lausanne Conference, the Turkish side had already acknowledged in principle, in various documents, who the minorities were and what their rights would be, while promising the protection of these rights. As discussed above (2.1.1 and 2.1.2), while referring to non-Muslims as a ‘minority’, the MM anticipated the unity of various Muslim elements within the borders as drawn by the National Pact of 1920, which was communicated to the European parliaments on 17 February 1920. However, the Allied Powers, as they stated in the Paris note of 23 September 1922, were demanding that the protection of ‘racial and religious’ minorities be placed under the auspices of the League of Nations.77 The conference opened on 21 November 1922 under the provisional presidency of Lord Curzon. The talks took place under four headings: (1) the territorial and political aspects of the regime of the Straits, (2) Thrace, Mosul and the Aegean Islands, (3) the question of Capitulations, and (4) the issue of minorities and foreigners. The issue of the protection of minorities came before the conference on 12 December 1922. Turkey was represented by a committee headed by İsmet Pasha (İnönü), the Greeks by Mr Venizelos, and Britain by Lord Curzon. At the conference, Turkey viewed only the non-Muslims as minorities. From Turkey’s perspective, the minority question was a result of foreign interference in the Turkish state’s ‘internal affairs under the pretext of protecting minorities’ 76  Patton 1995: 140. 77  RLC, p. 176. This was also stated as one of the conditions for supporting the

return of Eastern Thrace up to the Maritza River to Turkey.

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(external political factor) as well as the aspiration of the minorities ‘to liberate themselves in order to constitute independent States’ (internal political factor). Turkey also asserted that the suffering of the minorities was caused by these factors, without taking any responsibility itself.78 In the Turkish discourse at Lausanne, the minority question appears as a menace, a betrayal, and as the incitement of external countries, not as the Ottoman Empire’s failure to adopt measures in order to meet the changing demands of its people or to achieve social reconciliation. The Turkish side repeatedly talked about their tolerance of minorities in the past in order to justify the acts of aggression against particular minorities, for example, the Armenian and Bulgar mass killings and the forced displacement of the Greeks. Their reflex on the minority question was defensive and protective, not altogether surprising considering the recent history during which the minority issue had come to be identified as almost the sole cause for the Ottoman Empire’s decline. What was the proposal of the Turkish state for the prospective solution of the minority issue? The answer was simple: to prevent foreign intervention and provocation, and to institute the ‘exchange of the Christian population of Turkey against Moslems of neighbouring countries especially against those of Greece’.79 Further, Turkey refused any international protection for minorities since … the best guarantees for security and development of the minorities remaining in Turkey after [the population exchange] would be those supplied both by the laws of the country and by the liberal policy of Turkey with regard to all communities whose members have not deviated from their duty as Turkish citizens.80

2.2.1 Population Exchange Population exchange was one of the facets of the Turkish government’s proposals on the minority issue. However, it was not the Turks who had proposed the forced exchange of population. It was proposed at the conference on 1 December 1922 by Dr Fritjof Nansen (1861–1930), who had been the League of Nations’ High Commissioner for Refugees since 1919. This created unexpected delight on the Turkish side,81 who had come to Lausanne with an instruction composed of 14 articles prepared by the TBMM in which population exchange was described as ‘essential’ (article 9). The Greek government were also enthusiastic for a population exchange due to their immense refugee problems.82 The idea aroused objections among both the Greek minority in Turkey and the Turkish minority in Greece, however, and because of this unfavourable public response, both the 78  79  80  81  82 

Ibid.: p. 202. Ibid.: p. 203. Ibid.: p. 202. Rıza 1991: 78. Meray 1969: 121–3.

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Greek and Turkish governments tried to deny responsibility by blaming each other for initiating the idea.83 Under this pressure, Venizelos stepped back and declared that the Greeks were ready to give up the idea of a compulsory exchange of minorities.84 On 30 January 1923, the ‘Convention between Greece and Turkey Concerning the Exchange of the Greek and Turkish Population’ was signed. Article 2 of the Exchange Convention excluded the Greek inhabitants of Istanbul and the Muslim inhabitants of Western Thrace. The definition of ‘Greek inhabitants’ was restricted to those who were established in Istanbul before October 1918, within the areas under the prefecture of the city of Istanbul. All Muslims established in the region to the east of the frontier line laid down in 1913 by the Treaty of Bucharest were to be considered as Muslim inhabitants of Western Thrace. In addition to this convention, the Greek-Orthodox inhabitants of the Imbros and Tenedos Islands, which remained under Turkish sovereignty, were also exempted from the population exchange by article 14(2) of the Lausanne Peace Treaty. The Turkish government had been initially persistent about including Armenians into the exchange agreement, wishing to swap them with the Turks in Armenia, and had pushed İsmet Pasha to adopt this course.85 Despite the Turkish government’s persistence in wanting the inclusion of all non-Muslim minorities in the population exchange, in his telegraph to Ankara, İsmet Pasha tried to stop an Armenian exchange by warning the government of the possible reaction of the international community towards such a declaration; insisting on an exchange of Armenians could have been perceived as another ‘exile’ (tehcir) from Anatolia.86 He also stated that he did not find it legitimate (câiz) to include the Turkish Orthodox community in any population exchange.87 Therefore, the best position was to accept the treatment of the remaining Armenians as citizens.88 Ultimately, Ankara stopped insisting on this matter. It was realized that it would risk the status quo by reopening discussions on the eastern border with the Allied Powers. It would also have brought Russia into the discussions on minorities at Lausanne, which in turn would also have required a review of the Moscow Treaty of Brotherhood between Turkey and Bolshevist Russia of 16 March 1921, which recognized Turkey’s borders.

83  Adkisson 1958: 456. 84  Meray 1969: 213. 85  Şimşir 1990, Vol. I: 124–5. In fact, this idea had been raised in the TBMM during

discussions on the terms of peace with Armenia. Erzurum deputy, Salih Efendi, opposed the Armenian return clause in the peace treaty and suggested a population exchange, which would result in an exchange of all Armenians with Muslims in Armenia: TBMMZC, 09.11.1920, pp. 336 and 340. 86  Ibid.: 124–5. 87  Ibid.: 124–5. 88  Ibid.: 172.

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The Population Exchange Convention of 1923 brought about an unprecedented population movement in history and almost 1,700,000 people were subjected to a forced exchange.89 The criterion used in the Convention of 1923 was religion, without regard to ethnic or linguistic aspects.90 The use of religion as a criterion in determining the people who would be exchanged signified its role in the process of building the prospective Turkish nation-state. It has been construed by some writers as a sign of the Turkish government’s view of the nation, as defined on religious terms rather than along racial or linguistic lines. Indeed, this was a significant illustration of the government’s understanding of ‘Turkishness’ based on the Turk=Muslim equation.91 Consequently, while Turkish-speaking Karaman Orthodox Christians went to Greece, the Greek-speaking Muslim populations of Crete and Yannina came to Turkey. This approach would continue to be followed. Turkey signed an immigration treaty with Romania on 14 October 1936, which determined that the ‘Muslim Turk minority’ population living in ‘Dobruja, Caliacra, Kostence and Tulcea’ would be allowed to immigrate to Turkey (article 1).92 The specific mention of ‘Muslim Turks’ in the text excluded the Gagauz Turks who are Orthodox Christian. Also, the Pomaks and Bosnians, who did not speak Turkish, were treated as Turks and their emigration into Turkey would be encouraged during the Republican period. 2.2.2 The Return of Armenian Refugees The return of Armenian refugees who had been forcibly exiled from Anatolia by the İTC in 1915 also came onto the political agenda. The issue of the return home ‘gradually’ (peyderpay) of those who had been ‘transfer[red] and exile[d]’ (nakil ve tehcir) to another part of the country due to ‘the circumstances and force of war’ (ahvali harbiye ve ilcaatiyle) was mentioned in the first heading of Ahmet İzzet Pasha’s post-İTC government programme.93 It also promised that the movable property and land of ‘these sons of the homeland, who had been subjected mightily to suffering for the last two years’ would be returned to them and compensation would be paid for sold properties.94 Indeed, according to state sources, some of 89  For detailed studies on the exchange see Arı 1995, Erden 2004, and Gökaçtı 2008. 90  For a while, the idea of not including the Turkish speaking Orthodox Christians

of Central Anatolia in the exchange was considered by the Ankara government. They even established a separate Turkish Orthodox Patriarchate in this area in order to separate them from the Patriarchate in Istanbul: Macar 2003: 86.This had been on the agenda of the İTC after the break in relations with Greece in 1917, although it could not be realized due to defeat in the First World War: Macar 2003: 85, citing Jaschke 1964: 95. None the less, shortly afterwards, the government changed its mind, since this did not accord with its position on non-Muslim minorities and undermined the minority strategy they pursued. 91  Oran 1999: 175–7. Also see Çağaptay 2005: 83. 92  For the text of the treaty, see attachments to TBMMZC, 18.01.1937. 93  MM, 19.10.1918, p. 29. 94  MM, 19.10.1918, p. 29.

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the Armenian and Greek refugees expelled by the İTC had returned to their homes between the end of the First World War and January 1920, even though their return had stopped by the end of 1920.95 Later, article 4 of the TBMM’s proposed peace treaty to be signed with the Armenian government allowed for the return of those Armenians who had ‘emigrated’ (hicret eden) from the country during the First World War to their former homes, while granting them the same rights as ‘national minorities’ would enjoy in civilized states.96 However, this peace offer by the TBMM was rejected by the Armenian government97 and the treaty Turkey later signed on 13 October 1921 with Armenia, Georgia and Azerbaijan did not contain provisions regarding the return of expelled Armenians.98 However, at the Lausanne Conference, the Turkish side furiously refused a national home for Armenians where they could live and maintain their race, language and culture, under the rule of a Turkish governor-general within Turkish sovereignty.99 As a direct consequence of this refusal, the Turkish government would not accept any undertaking to accept the return of the Armenian refugees from the First World War.100 The Turkish side also firmly refused to discuss the issue of return of the Bulgarian minorities who had left Ottoman territory after the conclusion of the population exchange treaty between Bulgaria and Turkey in 1914.101 All these efforts by the Turkish delegation were made in order to actualize a more homogenous population in line with their nation-state ideal. However, the Lausanne Treaty was not the only measure taken along these lines. The Republic also attempted to realize that ideal through the various denationalization laws which came into force in the second half of the 1920s and which almost completely excluded the return of the non-Muslim subjects of the Ottoman Empire who had fled the country during the war. The most vulnerable ones in this sense were the Armenians.102 2.2.3 The Muslim Minorities’ Position at Lausanne During the Lausanne talks, the parties had long discussions on extending the application of minority protection to include non-Turkish Muslim minorities residing in Turkey. At the very beginning of the conference, the Turkish delegation had declared its view that ‘there is no Muslim minority’ in the country since the 95  Dündar 2001: 91. 96  TBMMZC, 09.11.1920, p. 336. 97  See TBMMZC, 18.11.1920, p. 419. 98  Çoker 1994, Vol. I: 601–2. 99  RLC, p. 299. 100  Tarzian 1992: 179. 101  RLC, p. 300. 102  See Çağaptay 2005: 73–4.

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Turkish state did not discriminate against the various Muslims elements either in law or in practice.103 In the Sub-Commission where the minority issue was discussed, the Turkish delegate, Rıza Nur Bey, stated that ‘In Turkey there are only Turks and Kurds who bound their fate to the Turks and do not wish to benefit from minority rights … the Jews also do not wish to have these sorts of rights, only Greeks wish for these rights.’104 The sub-commission put pressure on the Turkish side for the inclusion of all racial minorities, Muslim and non-Muslim, including the Kurds, Circassians and Arabs. However, the Turkish delegation rejected that proposal and insisted that ‘these minorities required no protection, and were quite satisfied with their lot under Turkish rule.’105 Consequently, upon the Turkish delegation’s strong resistance, the sub-commission yielded and ‘reluctantly’ concluded that it would restrict the applicability of these clauses to non-Muslim minorities.106 The sub-commission’s pretext for its acquiescence was that Turkey undertook to grant all inhabitants ‘full and complete protection for their lives and for their liberty, without distinction of birth, nationality, language, race or religion’ under article 2 of the ‘Draft Clauses Regarding the Protection of Minorities’.107 A second reason was Turkey’s ‘firm desire to adopt a modern and progressive policy’, which was considered as a sign of good will towards the protection of those Muslim minorities. On 8 January 1923, İsmet Pasha stated, ‘There were no Moslem minorities in Turkey, for no distinction was made either in theory or in practice between various elements of the Moslem population.’108 He further assured that the future would prove that Muslim elements were ‘able to live on perfectly good terms with the Turkish population’. Even though minority status for Muslims was rejected, by referring to them as the ‘various elements of the Moslem population’, their distinct existence was acknowledged. However, the future of neither the Muslim nor nonMuslim minorities would be as positive as had been promised by İsmet Pasha. As we will see in Chapter 3, among the statesmen, he would be the one of the harshest opponents of the Kurdish minorities in Turkey.

103  104  105  106 

Meray 1969: 306. Ibid.: 538. RLC, p. 303. Ibid.: p.303, and also p. 296. Oran 2000: 152 incorrectly argues that the Allied powers were not concerned about groups other than the Christian population and thus did not apply pressure to extend minority protection to cover non-Turkish Muslims. 107  RLC, p. 303. This later became article 38 of the Treaty of Lausanne Peace Treaty of 1923. Lord Curzon in his speech of 08.01.1923 regarding the final report of the Sub-Commission stated that, ‘I believe and hope that in article 2 may be found sufficient protection for these minorities [Kurds, Circassians and Arabs]. I do not feel very confident, but I hope for the best’ (ibid.: p. 296). 108  Ibid.: p. 301.

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2.2.4 The Kurds and the Mosul Issue At this stage, it is instructive to examine the Turkish government’s view regarding Mosul, which centred on the issue of the Kurdish ethnic minority, whose existence would persistently be denied in the state discourse and laws up to the 1990s. The Mosul area was primarily populated by Kurdish people.109 On the question of the status of Mosul at the Lausanne Conference, about which discussions began on 23 January 1923, Britain insistently asked of the Turkish delegation to declare what the nationalists would offer to the Kurds in their territory. The Turkish government’s arguments are remarkable for the manner in which they demonstrate the beginnings of a long-term Turkish discourse vis-à-vis the Kurdish minority in Turkey. The official view of the Turkish delegation was that Kurds are of Turanic origins, as are the Turks. Indeed, İsmet Pasha asserted that ‘It has been said that the Kurdish people is Iranian in origin. This statement is contradicted by the “Encyclopaedia Britannica,” which recognizes that the origin of the Kurdish people is Turanian, and thus confirms the argument of the Turkish delegation.’110 He further stated that ‘as regards manners, usage and customs the Kurds do not differ in any respect from the Turk’, and claimed that the Turks and Kurds ‘formed a single unit in respect of race, religion and manners’, although he acknowledged that the Kurds spoke a different language.111 The Turkish government persisted in this view, asserting that … the Kurdish people are not of Iranian stock, but on the contrary are of Turanian origin. This opinion is now almost unanimously held by all historians who have dealt with the question. It has in fact been established that people of Turanian origin named ‘Gudu,’ inhabited in the remotest times of history the mountains which dominate Assyria, that this people was extremely warlike and that its name, which meant ‘warrior’ was translated into Assyrian by the word ‘Gardu’ or ‘Kardu’ whence is derived from the word ‘Kurd’.112

Somewhat in contradiction to the Turkish delegation’s view on the oneness of Turks and Kurds, and the Turanic origins of the latter, İsmet Pasha later referred

109  According to Turkish official statistics the number of the Kurds in the sancaks of Mosul, Kerkuk and Suleimanieh was 104,000, 97,000 and 62,830 respectively. The population of Kurds in 1921 furnished by the British delegation in these sancaks was 179,820, 45,000 and 152,900 respectively, while their figures for Erbil were 77,000. Both sides acknowledged that the Kurds composed the majority in these areas: ibid.: pp. 340–41. 110  Ibid.: p. 342. 111  Ibid.: p. 343. 112  Ibid.: p. 374. See also TBMMZC, 03.11.1922, when a similar discussion took place in the parliament regarding the ‘Turkishness’ of the Kurds prior to Mosul discussions at Lausanne Conference.

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to the Yezidis and Kurds as part of the same nation without also claiming the Turkishness of the Yezidis. He stated: The Yazidis are Kurd, and naturally have the same manners and customs as the Kurds; they only differ in the religious sect to which they belong. It is therefore unfair to differentiate them from each other, just as it would be unfair not to regard the people of one nation, some of whom are Catholics and others Protestants, as belonging to different races.113

The Turkish delegation was here trying to establish the Kurdishness of the Yezidis in order to strengthen their argument about the status of Mosul. Lord Curzon fervently opposed the Turkish view about the Turanian origins of the Kurds: It was reserved for the Turkish delegation in one of their papers to discover for the first time in history that the Kurds were Turks. Nobody has ever found it out before … Ismet Pasha in one of his notes quoted a single authority which was of the opinion that they were of Turanian origins, but that is not an opinion that is shared by the best authorities, or indeed, so far as I know, by anybody else.114

He continued: The Kurds with their own independent history, customs, manners and character, ought to be an autonomous race. One of the objects, and partial results, of our administration has been the setting up of a system of local autonomy with local administration and local schools, where an attempt is made to teach the written Kurdish language.115

The Turkish delegation was quite anxious about Britain’s proposal regarding Kurdish autonomy. The Turkish delegation considered this offer as not satisfactory enough for the Kurds who were a ‘dominant race’. İsmet Pasha in his reply regarding autonomy for the Kurds stated: … according to the British delegation, England proposes, but Turkey declines to grant [autonomy] to the Kurds. The Kurds have always enjoyed all the rights of citizens in Turkey; they have always collaborated with the Turkish government in political and social affairs, and therefore have never been able to regard the Turkish Government as a foreign Government … There is not a single Kurd who would wish to exchange a position of this kind for that of the subject of a foreign state in a territory, which, whatever means may be given to it, could

113  RLC, p. 342. 114  Ibid.: p. 356. 115  Ibid.: p. 357.

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never really be anything but a colony. The Kurds know that in that event they would have no effective influence over the destinies of their country, which would be settled from afar off by a Government and a Parliament where they were not represented. The alleged civic rights and privileges which have been granted to the people of the so-called autonomous district could never satisfy a dominant race like the Kurdish race.116

With a letter to İsmet Pasha on 26 December 1922, Lord Curzon increased pressure on the Turkish delegation and forced them to express their views about the future and the rights of the Kurds in Turkey: ‘I have not found anything in the statement of the Turkish delegation that would lead me to think that your Government contemplates any more liberal regime for the Kurdish populations still remaining in Turkey.’117 The Turkish delegation did not provide an explanation, choosing to stay silent. It seems that it deliberately avoided addressing that question since it could have been used as a legal basis for the rights of Kurds as a people and as a minority in the future. Lord Curzon later criticized the Turkish delegation’s views regarding the Kurds, stating: In any case, it is open to anyone to form an independent judgment as to whether Southern Kurds would prefer to accept an agreement which … leaves them free to use their own language, to be governed by their own tribal leaders and officials, and develop their native institutions, or to be placed under a Government whose representatives can find nothing to say to their national demands except that all Kurds are Turks.118

Since the parties to the conference could not reach an agreement, the British agreed to postpone the appeal to the League of Nations for arbitration, pending further direct negotiations with the Turkish side. The Turkish delegation did not wish the matter to go to the League as they knew that the matter would more likely to be settled in Britain’s favour, given the latter’s preponderant position in the League. In May 1924, a conference on the subject was held between British and Turkish representatives. However, no agreement was reached on the status of Mosul and, in August 1924, the matter was referred by the British to the League, eventually resulting in the Frontier Treaty of 1926.119 116  117  118  119 

Ibid.: p. 346. Ibid.: p. 380. Ibid.: p. 384. With this Treaty, Turkey gave up its territorial claims on Mosul, and the Iraqi government would pay 10 per cent of all royalties to Turkey (article 14). The 1926 treaty was passed by the TBMM with very little discussion (see TBMMZC, 07.06.1926, pp. 164–5). From the accounts of many writers who have written on Turkey’s political history, it is

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2.2.5 The Lausanne Treaty The Treaty of Lausanne, which was a peace treaty with special minority protection clauses, was signed on 24 July 1923, and ratified by the TBMM on 23 August 1923. The Lausanne Treaty is the main document that configures the rights and protections for minorities in Turkey. The Lausanne Treaty was part of the League of Nations’ minority protection scheme, which was composed of a series of treaties and undertakings guaranteed by the League.120 Although those treaties lapsed after a period, the Lausanne Treaty is still valid since it has not been replaced with a new treaty.121 However, the Lausanne Treaty was not the only treaty that determined the rights of minorities in Turkey. On 18 October 1925, Ankara signed a treaty of friendship with Sofia and extended the Lausanne Treaty’s protections to non-Muslim, Bulgarian-speaking Turkish citizens.122 The ideas fundamental to the League of Nations minority protection scheme were set out in the advisory opinion of the Permanent Court of International Justice (PCIJ) of 6 April 1935 on the question of minority schools in Albania: … to secure for certain elements incorporated in a State, the population of which differs from them in race, language or religion, the possibility of living peaceably alongside that population and cooperating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority, and satisfying the ensuing special needs. In order to attain this object, two things were regarded as particularly necessary, and have formed the subject of provisions in these treaties. The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State. The second is to ensure for the minority elements suitable means for the preservation ‘known’ that the Turkish government relinquished oil rights in Mosul to Britain for the sum of £500,000. However, Çosar and Demirci 2004: 123–32 show that this was not the case, and that some figures in Turkish state budgets indicate that Turkey received payments on a 10 per cent basis up to 1952 instead of a fixed cash settlement. 120  These include ‘minority’ treaties signed at Paris during the Peace Conference, special chapters inserted in the general treaties of peace, and declarations made before the Council of League of Nations by those states whom acceptance of the protection of minorities conditioned for their entry into the League of Nations. For a list of these treaties, see Capotorti 1979: paras 82–134. 121  Gilbert 1999: 407. 122  For the text of the Treaty, see TBMMZC, 30.05.1926. Meanwhile, Bulgaria extended minority protection, set out in a peace treaty signed at Neuilly-sur-Seineon 27.11.1919, to Muslims in its country. Oran 2001: 210, fn. 3 claims that since there are not many Bulgarians left in Turkey, this treaty has lost its importance. However, if one considers the recent immigration of Bulgarian nationals who have obtained Turkish citizenship, particularly through marriage, the 1925 treaty might gain more relevance again. For the AYM’s view on the validity of this treaty, see Chapter 5.

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of their racial peculiarities, their traditions and their national characteristics. These two requirements are indeed closely interlocked, for there would be no true equality between a majority and a minority if the latter were deprived of its own institutions, and were consequently compelled to renounce that which constitutes the very essence of its being as a minority.123

Since equality and protection of differences were considered sine quibus non for the materialization of minority protection under the League of Nations’ scheme, differential treatment of distinctive groups would by no means be perceived as contrary to the basic principle of equality, since ‘equality was not possible if minorities were forced to renounce their cultural identity, or if it were lost through neglect.’124 Thus, these special rights were to be granted not for ‘privileging’ particular groups but to realize their real equality.125 The opinion is also ‘marked by an explicit recognition by the PCIJ of a need for positive action to ensure protection of the rights of minorities, rather than a ‘negative’ policy of benign neglect’,126 while ensuring that minorities continue to enjoy on a non-discriminatory basis the same civil and political rights as other nationals.127 However, under this scheme, minority provisions were designed to protect individual members of the minority group, not the particular communities’ personality.128 An important issue to be tackled here is to identify who a minority is according to Lausanne. As already discussed, the Turkish state’s perspective held that minority protection is only given to non-Muslims with reference to their religion. Thus, Muslims could not be granted minority status and benefit from Lausanne.129 However, Oran points out that the Lausanne Treaty’s provisions on ‘Minority Protection’ provided rights for four different groups of people.130 Indeed, the rightbearers were defined not only as ‘non-Muslim minorities’, but also as ‘any Turkish national’, ‘all inhabitants of Turkey’, and ‘Turkish nationals of non-Turkish speech’. Oran considers as meaningful the use of different terms referring to the bearers of different rights, since it proves the treaty’s intention to also protect the rights of people other than non-Muslims.131 Oran further points out that the rights set out for the four categories are stated to be the ‘fundamental law’ of the land, so that no legislation or official 123  PCIJ, Ser. A./B., No. 64, 1935, p. 14. 124  Oestreich 1999: 112. 125  As we see in Chapters 5 and 6, the AYM’s views on minority rights contradict

this view.

126  Oestreich 1999: 112. 127  Vrdoljak 2008: 46. 128  Nevertheless, attribution of an international personality to minorities did develop

later, by granting the right of petition not only to members of minority groups but also to the groups themselves: Capotorti 1979: 35, para. 207. 129  Oran 1994: 287. 130  Ibid.: 299. 131  Ibid.: 301.

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action shall conflict or interfere with these stipulations or prevail over them (article 37).132 However, he also states that only those rights recognized for ‘non-Muslim minorities’ who are granted ‘minority protection’ come under international protection and the guarantee of the League of Nations (article 44). Who are these non-Muslim minority groups? According to the Turkish state, only Greek, Armenian and Jewish non-Muslims were granted minority protection by the Lausanne Treaty.133 An examination of the treaty demonstrates that there are no specific references to Armenians, Jews, or other non-Muslim groups such as the Nestorians, Chaldeans, or Assyrians. Except for Greeks, the other groups do not appear in the treaty, even though they had presented submissions to the conference. However, article 42(3) of the Lausanne Treaty mentions the protection of ‘churches, synagogues, cemeteries’, which implies that places of worship of all non-Muslim minorities are protected. It nevertheless remains difficult to explain the Turkish state’s selective approach towards some non-Muslims, as others were not afforded the protection of Lausanne by the Turkish state.134 Like other treaties of the League of Nations’ scheme, Lausanne contained engagements of two types. The first type was common to all inhabitants of country (general rights) and covered non-Muslim minorities as well because of their general character, while the second type required special rights concerning recognized minority groups (special rights). Retaining this ‘general rights’–‘special rights’ dichotomy, we examine the Lausanne Treaty’s provisions under three groups: the right to equality, the right to religious freedom and linguistic rights. Equality Concerning the right to equal treatment, the Lausanne Treaty, as with other minority-focused treaties, was based on three principles: (a) equality of all nationals of the country before the law; (b) equality in enjoyment of civic and political rights, and (c) equality of treatment and security in law and in fact. While (a) was recognized in article 39(2) of the Lausanne Treaty which guarantees basic equality before the law for ‘all inhabitants of Turkey’ without distinction of religion, article 38(1) required equality in the protection of life and liberty for ‘all inhabitants of Turkey’ without distinction of birth, nationality, language, race, or religion. Provisions regarding points (b) and (c) assured the realization of substantive equality between non-Muslims and other nationals by ensuring nonMuslims have equal rights to enjoy full freedom of movement and of emigration and are subject to the same measures as all Turkish nationals (article 38(3)). They have the same civil and political rights (article 39(1)) and enjoy the same treatment 132  Ibid.: 298. 133  Turkey Report 2007 to the CERD, para. 28. 134  During the discussions on Mosul, the Turkish government claimed that

Chaldeans and Assyrians had never been influenced by foreign agitation and lived on ‘terms of perfect understanding with their Turkish compatriots’, implying that they did not need minority protection: see RLC, p. 343.

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and security in law like other Turkish nationals and, in particular, they have an equal right to establish, manage and control at their own expense, any charitable, religious and social, educational institutions (article 40). These foundations and institutions are to be granted the same facilities and authorization as other private institutions of that nature established by other Turkish nationals and their right to form new institutions of this sort would not be prevented by the state (article 42(3)). Non-Muslims benefit from an equitable share of public funds for their educational, religious and charitable purposes (article 41(2)).135 Religious Freedom The protections for religious freedom are designed in the same fashion as linguistic rights – as both special and general rights for different groups. Thus, non-Muslim minorities’ religious freedom and religious places (churches, synagogues, cemeteries) and their other religious establishments are specifically guaranteed protection by the state, and they are not to be refused the establishment of new religious and charitable institutions (article 42(3)). Further, non-Muslims cannot be forced to perform any act that constitutes a violation of their faith and their religious observances should not be placed under any disability by reason of their refusal to attend courts of law, or to perform any legal business on their weekly day of rest (article 43(1)). Meanwhile, article 38(2) recognizes the rights of ‘all inhabitants of Turkey’ to free exercise and enjoyment of religion, creed, or belief in public or private. Article 39(3) introduces a general non-prejudice clause: ‘Differences of religion, creed or confession shall not prejudice any Turkish national in matters relating to the enjoyment of civil or political rights as, for instance, admission to public employments, functions and honours, or the exercise of professions and industries.’ From these clauses, it is evident that the Lausanne Treaty expands its protection of the exercise and enjoyment of religious freedom to all religious groups or beliefs and, further, provides a sort of non-discrimination provision. The subjects of these general clauses are all religious groups, including those not specifically mentioned in the treaty, for example, Yezidis, Alevis, and so on. Linguistic Rights The Lausanne Treaty acknowledges two types of linguistic rights, that is, those of a special and those of a general character. Special rights are designed for nonMuslim minorities. For instance, they have the right to use their own languages in charitable, religious and social institutions and schools, or other establishments for instruction or education (article 40). They also have the right to receive primary education in their own languages in those towns and districts where a considerable proportion of non-Muslim nationals are resident (article 41(1)).136 135  See also Oran 1994: 289. 136  Non-Muslim minorities’ right to use their own languages would not prevent the

state from the obligatory teaching of the Turkish language in those schools (article 41(1)).

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Linguistic rights of a general character are designed for ‘any Turkish nationals’ or ‘Turkish nationals of non-Turkish speech’. The right to ‘free use by any Turkish national of any language’ without restriction in private intercourse, in commerce, religion, in the press, or in publications of any kind or at public meetings (article 39(4)), and the right to oral use of their ‘own language’ before the courts (see article 39(5)) are of this nature.137 However, as we will see in the following chapters, the Turkish state’s legal and administrative practices of restricting and even banning the use of a language spoken by the Turkish nationals in private, public and judicial spheres amount to breaches of article 39(4) and (5) of the Lausanne Treaty.138 Further Special Rights Some very special rights were configured only for non-Muslims in the Lausanne Treaty. One of the most important of this nature was their right to settle their family law and personal law matters in accordance with their customs (article 42(1)). That is, they had the right to apply their religious laws in those matters. However, as we will see in Chapter 3, following pressure from the Turkish state, non-Muslim communities would renounce this right soon after the treaty’s ratification. Another special provision to this end was in article 14, which guaranteed autonomy for the population of the Imbros and Tenedos Islands. This article assured non-Muslim minorities of a special administrative organization composed of local elements in these islands. Public order in these islands was to be maintained by a police force recruited from amongst the local population by the local administration. The Turkish state undertook the responsibility of furnishing every guarantee for the native non-Muslim population there, as far as it concerned the local administration and the protection of persons and property. Although a law was enacted in 1927 in order to realize article 14 of the treaty,139 the special administration envisaged was never actually set up in these islands.140 ‘Reciprocity’ Article 45 of the Lausanne Treaty reads, ‘The rights conferred by the provisions of the present Section on the non-Moslem minorities of Turkey will be similarly 137  This right has been claimed in the case of Kurdish languages many times. However, the Turkish courts are very reluctant to interpret this article in favour of nonrecognized minority languages in Turkey. For a detailed explanation, see 4.4. 138  Oran 1994: 300, fn. 13 cites from Av. Ahmet Zeki Okçuoğlu who argues that the prohibition of the Kurdish language is in breach of article 39 of Lausanne Treaty: Yeni Gündem, 12–18.04.1987. 139  Law no.1151, 25.06.1927; see for details TBMMZC, 25.06.1927, pp. 726–33. Interestingly, article 14 of this law required education to be in Turkish while allowing, upon the wish of the parents, teaching of their own religion and language outside of curricular activities but within educational premises. Article 15 required the head of administration to be appointed by the state but required civil servants to be selected from among local people. 140  For detailed work on these islanders’ treatment by the state, see CoE, Committee on Legal Affairs and Human Rights, Report of 2008 by Andreas Gross. Also see Alexandris 1980.

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conferred by Greece on the Moslem minority in her territory.’ This provision has been interpreted by Turkey, and until recently by Greece,141 as a reciprocity article, which made rights of Muslims of Greece dependent on rights of non-Muslims of Turkey.142 However, an examination of article 45 demonstrates that it is not a reciprocity clause, since the word ‘reciprocity’ is not employed in the article at all. Rather, the article is placed there to indicate that the undertakings made in it for the non-Muslims of Turkey would be similarly applied to the Muslims of Greece. The ‘reciprocity’-based interpretation has been criticized and considered invalid on the grounds that the principle of reciprocity cannot be applied in international human rights law situations under article 60(5) of the Vienna Convention on the Law of Treaties of 23 May 1969.143 Moreover, as the ECtHR’s case law has also established, Turkey’s claims of reciprocity in cases involving human rights matters are not justified.144 The Independence War period was a formative time in the history of the emerging Turkish Republic. Several milestone events occurred, and documents produced, which accompanied the internal and external political compromises that had to be made by the leaders of the Independence movement in order to save what remained of the crumbling Ottoman Empire. The period is therefore marked by a series of political compromises which reveal a relatively pluralist rhetoric with respect to the Muslim population of Anatolia, as they were considered to be part and parcel of the emerging nation-state. The political and military leaders did not, as yet, pursue a strong policy of differentiation among the Muslims and it served their interests to keep the Muslim fold united. Non-Muslims, on the other hand, were already marked out as treacherous potential non-citizens, and their fate was to a certain extent only secured through the compromises made at Lausanne because of the external pressure applied by the Allied Powers, even though the population exchanges were to already demonstrate the precarious position of non-Muslims. Events took a definite turn towards a nationalist direction once the process of consolidating a nation-state started. In the next chapter, we turn to an examination 141  However, recently, the Greek government claimed before the ECtHR, in the cases of Apostolidi and Others v. Turkey (no.45628/99, § 64, 27.03.2007), Nacaryan and Deryan v. Turkey (no.19558/02 and 27904/02, § 30, 08.01.2008) and Fokas v. Turkey (no.31206/02, § 30, 29.09.2009), that ‘the principle of reciprocity did not apply in matters of protection of human rights’. 142  Some Turkish laws also contain such reciprocity clauses, for instance, Law no.5737, Vakıfs Law, 20.02.2008, article 2(2) of which makes its application to the nonMuslim minority depend on the reciprocity principle. 143  Tarhanlı 2002: 46. For a more detailed discussion on reciprocity in human rights treaties, see Lijnzaad 1995: 110-112. Also, Oran 1994: 286 criticizes the ‘reciprocity’ clause with Greece for falling behind the standard of minority protection. 144  Also see Ireland v. United Kingdom (no.5310/71, § 239, 18.01.1978) where the ECtHR stated, ‘Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations.’

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of what happened to the commitments made in a relatively pluralist direction during the Independence War. As it turned out, pressure was applied, inter alia by legal means, to ensure the homogenization of the population through a process of ‘Turkification’ of culture and language in the name of ‘cultural nationalism’, which targeted all non-Turks. The Turkification of the economy mainly targeted non-Muslims, and Turkification by forced assimilation with its ‘civilizing’ mission was applied to the Kurds.

Chapter 3

Management of Diversity in the Turkish Nation-State, 1923–60 During the Independence War, the official Ottoman policy of ittihad-ı anasır (unity of elements) was recycled to assume the new form of ittihad-ı İslam anasır (unity of Islamic elements). However, the ultimate goal of the national Independence War leaders was not to have a multi-ethnic and multi-religious state where the various social, ethnic and linguistic differences and laws of various groups would be respected. Such a pluralist society was not compatible with the nationalist leaders’ idea of a Turkish nation-state, which could only be achieved by a united and uniform ‘nation’. Even after the population exchanges, this desired uniformity was not achieved, because of new immigrants, the multi-ethnic local population, and the stillvisible non-Muslim population. Thus, following the official declaration of the new Turkish nation-state in October 1923, measures would be implemented to achieve the nation that its leaders anticipated. The alliances of the Independence War which were held together under the official idea of ittihad-ı İslam faded away, and the Turks would be constituted as the ‘founding element’ and the real ‘owners’ of the state.1 In due course, those who were not Turks, or did not speak like Turks, were required to be assimilated into the ‘community of Turkishness’ (Türklüğün camiası), since Turkishness was seen as the only unifying umbrella which would have the ‘capacity to bring together [cem etmek] all races’ in the country.2 Throughout the Turkish Republic’s history, ‘unification’ in the form of ‘homogenization’ and ‘Turkification’ under a ‘Turkish’ identity, culture and language, as well as Turkish nationalist ideology, has marked the minority-state relationship. Homogenization and Turkification also required a single ideology – ‘Turkish nationalism’3 – which had a secular and modern character and its very own ‘civilizing mission’.4 The emergence of Turkish nationalism as a systematic political ideology in the early Republican period is attributed by Aktar to the state elite’s adherence 1  For instance, Minister of Justice, Mahmut Esat Bozkurt, stated that ‘the Turks are the only master and owner of this country. Those who do not belong to the pure Turkish race have only one right which is to be servants, slaves. Let companion and foe and even the mountains know the truth’: Milliyet, 19.09.1930. 2  See Draft 1924 Constitution, TBMMZC, 09.03.1924, p. 216. 3  Ersanlı 2006: 106. 4  Zeydanlıoğlu 2008.

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to it and to the international conditions at the time.5 However, as earlier chapters demonstrate, the state elite’s adherence to Turkish nationalism was not restricted to the early Republican period but had started already during the last decades of the Ottoman period and continued throughout the modern Turkish state’s history. Although changing international fashions would, to some extent, wear down the sharp ethnicist and racist state discourse after the 1950s, in reality, the nationalist ideology and philosophy was repeatedly reproduced in different forms. The 1980s, in particular, would witness the revitalization of the single-party policies of the period 1923–45. As was the case during the Committee of Union and Progress (İttihat ve Terakki Cemiyeti – İTC) regime, diversity was also considered the source of problems during the Republican nation-state period. Thus unity was conceived of as ‘oneness in every aspect of life’, and diversity was conceptualized as ‘separatism’, which was prohibited,6 and also criminalized.7 In the construction of unity, ‘Turkification’ became the main policy in minority-state relations, especially during the period 1923–45.8 Aktar defines ‘Turkification policies’ as ‘making Turkish ethnic identity to be dominant and strong in every aspect of life without any concessions’, affecting ‘the language spoken in the street, the history being taught at school, policies regarding state personnel, education, and forced settlement’.9 The thorough spread of ‘Turkification’ policies into every aspect of life would act against all non-Turkish elements regardless of their religion, ethnicity, and so on. In this chapter, we examine the nation-state in the period from 1923 to the 1960s, to track the state’s policy concerning the management of diversity from a political and legal perspective, with some follow-up beyond this period. We mostly confine ourselves to the laws, regulations, parliamentary discussions and jurisprudence which demonstrate how the law was utilized to that end. In order to demonstrate how deeply Turkification affected the life of diverse groups, we scrutinize state-minority relations under three headings: Turkification in culture and language in the name of ‘cultural nationalism’ which targeted non-Turks and non-Turkish speaking minorities regardless of their religion (3.1), Turkification of the economy, which mainly targeted non-Muslims (3.2), and Turkification by forced assimilation, with its ‘civilizing’ mission in the case of the Kurds (3.3).

5  6  7  8  9 

Aktar 2004: 101. Yıldız 2004: 215. See for details, Bayır 2013. Yıldız 2004, Aktar 2004, Okutan 2004, Bali 2005, Çağaptay 2005. Aktar 2004: 101.

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3.1 Cultural Nationalism: ‘Turkification from the Cultural Perspective’10 From the outset, the Turkish state officially promoted ‘cultural nationalism’ (kültür milliyetçiliği).11 This nationalism is defined as being based on culture and not on race or ethnie. The mythic claim behind this ‘cultural nationalism’ is that it leaves the doors of the national community open to all, regardless of their ethnic, religious and other origins. Meanwhile, it trivializes the demand of this cultural nationalism for a coercive adaptation to a homogeneous culture, defined with reference to the Turkish language, culture, history and common ideals at the expense of other cultures, languages, histories, and so on.12 Indeed, state officials and many commentators have interpreted the possibility of being accepted into Turkishness as evidence of its civic and ‘legalist-voluntarist’ nature.13 In reality, however, the discourse of ‘cultural nationalism’ has been very exclusionary since access by non-Turks into the national community is conditioned upon their capacity for Turkification, that is, their unconditional acceptance to be Turks by culture. Even the concept of culture presupposed by Turkish cultural nationalism has been problematic, since it defined culture from a primordialist and perennialist perspective – that is, as something ancestral, having been formed in antiquity by a particular ancestral group, and carried unchanged into the future.14 Cultural nationalism was not limited to political affiliation to the state through citizenship, or to being racially, linguistically and culturally Turk. It further required that one be ideologically a Turk, which meant being a supporter of the state ideology of Turkish nationalism, which entailed loyalty to the state, and even feeling like a Turk. As Falih Rıfkı stated, ‘citizenship of the Republic has a complete view which makes its legal aspect meaningless, and it has a characteristic which wishes to monopolize not only thoughts, but even feelings.’15 This view was blatantly defended by President İnönü on 19 May 1944:

10  Bali 2005: 102. 11  See the programmes of the state party, Republican People’s Party (Cumhuriyet

Halk Partisi, CHP), in Parla 1995: 40. Also the AYM Public Prosecutor’s indictments clearly state that the Turkish state pursues ‘cultural nationalism’: ÖZDEP-1993, SP-1993. 12  For a defence of cultural nationalism, see Kymlicka 1999, although in this same study he considers the Kurds’ situation in Turkey differently and criticizes the Turkish state’s civic nationalist policies on the ground that they have required the coercive assimilation of the Kurds: ibid.: 134. On cultural nationalism, also see Hutchinson 1999. 13  Parla 1995: 41. 14  Zürcher 2001: 213 states with reference to the Kemalist ideologue, Tekin Alp’s view that culture (hars) was considered unchangeable since it was ‘natural’, ‘biological’, ‘a product of history, which one cannot create at will’ and an ‘exclusive category as much as race’. For the interpretation of culture as a product of history, see the AYM’s case law discussed in Chapter 5. 15  Milliyet, 15.03.1928, cited in Yıldız 2004: 138, fn. 58.

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Nationalist Turkey has given all facilities to the Turkish citizen defined by the constitution of being a patriotic Turkish nationalist. Our state is a nation-state … The citizens known as minorities have all the citizenship rights and the full support of laws that every Turkish citizen enjoys. Moreover, there are means of access for every citizen brought up in Turkish culture and who wants to be a Turkish nationalist.16

Cultural nationalism has prevented other ethnic, linguistic and cultural groups from ‘organiz[ing] as separate distinct communities where they could maintain their distinctive language and customs’, which has effectively meant the destruction of their ‘social bases’.17 Therefore, the discourse of cultural nationalism could only offer to non-Turkish people the possibility of assimilating into the Turkish ethnie’s language and culture, which in return required non-Turkish people’s absolute abandonment of their identity, language and culture. It thereby became destructive and amounted to the ‘genocide’ of many cultures in the country. Here, we examine the components of cultural nationalism in order to determine its scope, and to discover what this concept has offered to the country’s diverse people. The scope of ‘cultural nationalism’ and its destructive effect on non-Turkish cultures can be traced through the nation-state’s policies on language, history, and the elimination of the influence of non-state actors within society, generally using the justification of secularization and civilization. 3.1.1 Language Policies As one of the most important components of cultural nationalism, language was contemplated as the new bond of a nation with the mission of creating a new national identity by spreading the national, secular culture among the people.18 Defining the Turkish language as the founding element in nation building and accession to the national community gave it a crucial role in the Turkification of non-Turkish groups,19 and further assimilation of the local dialects and local ethnic languages by means of standardization and generalization of Turkish.20

16  17  18  19 

Ertekin 1999: 60. Çolak 2003: 13–14. Çolak 2004: 74, Virtanen 2003: 32. Üstel 2005: 166–7. As we have seen (in Chapter 1), language had already been on the agenda since the middle of the nineteenth century. Note also the early attempts by Mustafa Celaleddin Pasha (1826–75) who considered language as an instrument for transferring the loyalties of Slavic and Greek subjects to the Ottoman state by proving that ‘Turks and European peoples had hailed from the same stock’: Aytürk 2004: 8–10. 20  Çolak 2004: 84.

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The Standardization and Generalization of the Turkish Language Early attempts in this regard were the changing of the Arabic script to Latin,21 and purification of the language. The former was a symbol of transformation from the imperial-religious/Islamic to the secular values of modern western civilization,22 and would make possible the creation of new generations uninfluenced by Ottoman cultural, social and political heritage, since the change would cut off citizens from their past.23 Official language policies and the criminalization of non-Turkish minority languages also helped assure the generalization of Turkish. ‘Pure Turkification’ (öz Türkçeleştirme) of the Ottoman language, which was a hybrid composed of various languages of the Ottoman population,24 was an effort aimed at reaching a pure Turkish by eliminating ‘foreign’, non-Turkish words, and replacing them with purely Turkish words. Although laws proposing such changes had already been rejected in the early years of the new state,25 by the 1930s, it suddenly became a very defensible project. An organization known as the Society for the Study of the Turkish Language (Türk Dili Tetkik Cemiyeti) 26 was established on Atatürk’s orders for achieving pure Turkification and reproducing a Turkish national culture that would support the new ‘nationalist ideology’ of the state.27 A cabinet decree of 193228 asked all government organs to collect Turkish words and obliged the use of pure Turkish words in government correspondence. It was, however, not easy to change the use of language in this mechanical way and, in practice, it created disarray both for official correspondence and in daily life, because of the sheer difficulty of understanding this ‘pure’ Turkish. The ensuing chaos ultimately convinced Atatürk that it was not necessary to replace every foreign word with pure Turkish. Following the ‘Sun Language Theory’ (Güneş Dil Teorisi), according to which Turkish was the mother of all languages and all existing languages were derived from Turkish, it was no longer necessary to eliminate words previously thought of as foreign.29 Considering Turkish as the source of other languages also justified the denial of the ‘existence and legitimacy’ 21  Law no.1353, 01.11.1928. Western numerals had already been instituted in place of Arabic a few months earlier. 22  Çolak 2004: 68, Shaw and Shaw 1997: 376. 23  Çolak 2004: 73. Discussions on revising the script and purification of language dated back to the Tanzimat reforms when the bureaucratic needs of a modern state were seen as requiring a simple, standard, common language (see 1.1.4). 24  Aytürk 2004: 1. 25  See Tunalı Hilmi Bey’s proposal, ‘Türkçe Kanunu’, TBMMZC, 29.03.1926, pp. 386–7, and proposal by Saffet Bey (Urfa) regarding ‘Pure Turkish in Laws’, TBMMZC, 30.04.1927, both rejected. 26  Executive board members appointed by the state: BCA, 30.18.1.1/25.39.18, 29.06.1927. It later became the Turkish Language Society. 27  Oran 1986: 99, cited in Virtanen 2003: 20. 28  BCA, 30..18.1.2/32.72..3, 21.11.1932. 29  Çağaptay 2005: 50, Virtanen 2003: 21.

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of the non-Turkish languages spoken in the current territory.30 The policy of ‘pure Turkification’ of language would be severely criticized before the TBMM later on, during the Democrat Party (Demokrat Parti) regime, especially during a debate on a draft law where this rigid policy was referred to as ‘a racist (ırkçı) and essentialist/purist (tasfiyeci) mentality in language’, and criticized for making up new words or adopting words from archaic Turkish or Mongol for the sake of Turkifiying the language.31 From the very beginning of the Republic, speaking in Turkish became the most important sign of being part of the nation and was overwhelmingly supported by the political elite and press. The early minutes of the TBMM reveal an emphasis on speaking in Turkish.32 In the coming years, speaking in Turkish not only became a legal obligation but was also used as a justification for the prohibition of non-Turkish languages in the country, which also ensured the generalization of Turkish. The most important step in the generalization of Turkish was its promotion as the ‘official’ or ‘state’ language in all Constitutions.33 Also every Constitution in Turkey since 1924 secured Turkish as the only official language of the country by declaring its status as ‘unchangeable’.34 Currently, article 78(a) of the Political Parties Law of 1983 (Siyasi Partiler Kanunu, SPK-1983)35 further prohibits political parties from seeking to change the official or state language. The 1982 Constitution’s emphasis on Turkish went further. After referring to it as the ‘mother tongue’, article 42 requires education to be in Turkish. This has been used as a justification by the Turkish state for the prohibition of education in non-recognized minority languages (Kurdish, Laz, Circassian, and so on). Although officially recognized Greek, Armenian and Jewish minority schools are

30  Kubilay 2004: 70. 31  Attached to TBMMZC, 08.12.1952. Also see ibid.: pp.145–64, and TBMMZC,

12.07.1950, p. 574. 32  TBMMZC, 31.07.1920, pp. 22–3. Besim Atalay warned deputies to speak in Turkish since ‘we are Turk’: TBMMZC, 07.01.1925, 42 and 45. 33  In fact, the concept of Turkish as the official language of ‘the state of Turkey’ was first introduced in the 1921 Constitution, at the end of the Independence war, by the Law on the Amendment of Law no. 364, 29.10.1923. This meant that no language had been legally established as the official language during the war. 34  See article 4 of the 1982 Constitution which clearly states that the provision making Turkish the ‘state language’ cannot be changed or propose to be changed. Further, its unconstitutionality cannot be claimed (see article 174). In article 153(6) of the 1961 Constitution protection of Turkish language as official language is secured through the Law on the Protection of the Turkish Alphabet and Application Law which stated that no law or no article of the Constitution could contradict this law. Article 103 of the 1924 Constitution had similar wording. 35  Law no. 2820, 22.04.1983.

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exempted from this prohibition, in practice, the state foresaw even their education as being in Turkish, while forcing them to teach many subjects in Turkish.36 Making Turkish the official language and its use compulsory made the public sphere open only to Turkish. Determining Turkish as the official language conversely was used as a legal justification for prohibiting and criminalizing the use of non-Turkish languages which were considered as a threat to the state.37 Throughout Turkish history, the ban on non-recognized minority languages has never been enforced by an explicit regulation or a list of prohibited languages along the lines of a ‘prohibition of the Kurdish language’. Probably, this was at least partly because of the state’s enthusiasm not to officially recognize the existence of any minority languages.38 Although the state did not opt for a de jure explicit prohibition of non-Turkish languages until the 1980s, many attempts to this end can be identified.39 For instance, a still-valid law of 1926 requires Turkish companies to use Turkish in their accounts, contracts and communications; failure to comply is sanctioned with a fine and closure of the company.40 At the same time, attempts were made to introduce legislation totally criminalizing the speaking of non-Turkish languages. For instance, in 1925, a draft law ‘Not [allowing] Turkish Subjects within the Turkish Republic to Speak in Languages other than Turkish’ was proposed in the TBMM and even found worthy of discussion, although it does not appear to have been passed.41 Deputy İzzet Ulvi, one of the co-authors of 36  A law of 1983 requires the compulsory use of Turkish in courses teaching History of Reform and Atatürkism (Atatürkçülük), Turkish Language and Literature, History, Geography, Social Sciences, Religious Cultures and Knowledge on Morals and other courses related to Turkish culture, whereas the use of minority languages in minority schools must be authorized by the MoE: Article 2(b) of Law no. 2923, 14.10.1983. The MoE Inspector’s instruction of 1994 states that education in these schools should be in Turkish while teaching the minorities’ languages is justified on grounds of their being ‘cultural languages’: MoEIC 1994: 11. This policy can be traced back to the early Republican era when Turkish literature, geography and history courses were to be taught in Turkish, by Turkish teachers, in minority schools: MoE Guideline (Yönerge) no. 2584 of 07.11.1935, cited at MoEIC 1994: 9. 37  Kubilay 2004: 71. On this argument, see further, Chapter 4. 38  Aslan 2009, para 15. 39  Gökay 2005: 321 wrongly states that the 1924 Constitution ‘forbade use of Kurdish in public places’. 40  Article 7 of Law no. 805, 10.04.1926. This article was amended recently by article 5 of Law no. 5728, 23.01.2008. Use by a company of any language other than Turkish now incurs only a fine. See 1.4.1 regarding a similar law and its adverse effects on non-Turkish groups in the Ottoman Empire. 41  See TBMMZC, 10.12.1925, p. 83, TBMMZC, 19.12.1925, pp. 183–4. Meanwhile, the East Reform Report of 1925 prepared by the state suggested prohibiting and sanctioning use of a language other than Turkish in state institutions, local municipalities, at schools, in market places, and so on, in areas considered as ‘originally Turk but becoming Kurdish’ (article 13), and it also advocated ‘banning speaking in Kurdish in the Kurdish provinces’ (article 16).

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the draft law, argued at the Turkish Hearths Congress of 1926 that its aim was the linguistic ‘assimilation’ (temsil) of non-Turkish elements, a policy which required penalizing those continuing to speak a non-Turkish language.42 Later, a similar draft law was submitted by deputy Sabri Toprak, requiring a fine and imprisonment for use of ‘a foreign language instead of Turkish (Türk dili)’, although that proposal too was rejected.43 In the light of the lack of a de jure specific ban, local governments in particular were considered as the appropriate authorities to enforce the prohibition on the use of non-Turkish languages.44 Thus, in practice, municipalities enforced fines on those who did not speak Turkish.45 Another method employed were cabinet decisions prohibiting publications – both from within the country and those coming from abroad – in non-Turkish languages, including Kurdish, Arabic, Caucasian and Laz, by labelling them as ‘separatist’ under the Press Law of 1931.46 Further, Turkish judicial bodies enforced this prohibition by outlawing the use of Kurdish as ‘Kurdishness propaganda’ (Kürtçülük propagandası) under article 141 and 142 of the Turkish Criminal Code (TCK) and punishing it until the 1990s.47 Criminalization of the Kurds’ linguistic and cultural demands has later been justified under article 7 of the Anti-terror Law,48 as ‘separatist propaganda’ or as ‘propaganda aiming to blight the state’s indivisible unity with its territory and nation’, or under article 216 of the TCK of 200449 as ‘inciting people to hatred and animosity’.

42  See Üstel 2004: 199. 43  BCA 30.10.0.0/4.21.19, 8.01.1938. Also see Bali 2005: 295–9, Yıldız 2004: 269,

fn. 127.

44  Interestingly, enforcing the use of only Turkish in Turkey and a proposal to amend the Municipalities Law to provide them with the authority to punish those who did not speak Turkish was rejected at the Turkish Hearths (Türk Ocakları) Congress of 1928 on grounds it was so ‘radical’: Üstel 2004: 304 and see also ibid.: p. 291. 45  Üstel 2004: 199, 241. Istanbul Municipality also fined those speaking a nonTurkish language in marketplaces: Yıldız 2004: 269, fn. 127. For the application of fines to Kurdish speakers by the municipality police in various provinces, see Miroğlu 2005: 66, Anter 2007: 26, and Oran 1994: 301, fn. 12. 46  For a detailed work on publications outlawed in the period 1923–45, see Yılmaz 1998, and for the period 1961–73 see Yılmaz and Doğaner 2006: 10–12. See also Üstel 2004: 243 regarding a proposal in 1927 to prohibit Kurdish and Arabic gramophone records. 47  See judgment of Erzurum-Ağrı-Kars, 1. Martial Court, E.1984/82, K.1986/69, 25.06.1986 where the court considered shouting Kurdish slogans at a hearing as a violation of TCK 142/3–5 and 141/6. Alse see Y(9)CD, E.1982/2470, K.1982/2238, 22.06.1982. 48  Law no. 3717 of 08.05.1991, RG: 20873-16.05.1991. This provision previously appeared in article 8(1) of the same law. It was annulled by article 19(b) of Law no. 4928, on 15.07.2003, and was reinserted into the Anti-terror Law by article 6 of law no. 5532, on 29.06.2006. 49  This provision previously appeared in article 312 of the TCK of 1926.

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The coerced use of Turkish with a ban on ‘some’ languages was made legally mandatory following the 1980 military takeover, by enacting Law no. 2932.50 This law introduced the concept of ‘prohibited languages’ in order to protect the ‘state’s unity with its territory and nation, national sovereignty, the Republic, national security and public order’ (article 1). What were these ‘prohibited languages’? The law did not name these ‘prohibited languages’, but took a somewhat more insidious approach. According to article 2 of Law no. 2932, ‘prohibited languages’ were those which were not the first official language of the states recognized by Turkey. The wording of this article was carefully designed to disallow Kurdish since, at the time, Kurdish was the second official language of Iraq.51 Thus, the expression and dissemination in these ‘prohibited languages’ was penalized with a fine and between six months’ and two years’ imprisonment. Although Law no. 2932 was annulled in 1991, the concept of ‘languages prohibited by law’ remained in the Constitution until 2001, when article 26 (use of a language prohibited by law in expression and dissemination of thought) and article 28 (publishing in a language prohibited by law) were annulled. Therefore any ‘ban’ on some minority languages in Turkey has always been indirectly applied through legal implication rather than through an explicit prohibition. Meanwhile, the state continued to enforce its Turkish-only policy by other means. A campaign called Vatandaş! Türkçe Konuş (Citizen! Speak Turkish) was initiated by the Student Association of the School of Law of Istanbul University and officially supported by the Turkish Hearths (Türk Ocakları, TO). Üstel refers to this campaign as part of ‘government policy’.52 Interestingly, before its initiation, Prime Minister İnönü spoke at the annual meeting of the TO in 1927, of the need for everyone in the country to speak Turkish and of the government’s determination to make all Turkey’s inhabitants adopt Turkishness ‘no matter what happens’.53 Signs were posted in the cities urging people to speak in Turkish and prohibiting the use of words and forms other than Turkish in public.54 True Turkish citizens had to speak Turkish, it was argued, and non-Turks had to prove their Turkishness by adopting Turkish, while failing to learn and speak Turkish would be interpreted as manifesting the minorities’ ill intentions, which also justified their exclusion.55 Some writers assert that the main targets were Jews, who mostly spoke JudeoSpanish.56 However, the campaign affected all non-Turkish speaking minorities to various degrees. Jews, Greeks, Armenians, Circassians, Bosniaks, Arabs, Kurds

50  Law no. 2932, 19.10.1981. For the debate on this law, see DMTD, 31.08.1983, pp. 64–76. 51  Oran 2004: 85, Virtanen 2003: 26. 52  Üstel 2004: 301–2. 53  Vakit, 27.04.1927. 54  Bali 2005: 135. 55  Aktar 2004: 122–4. 56  Çağaptay 2005: 25.

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and others were harassed in public for speaking their own languages.57 Although the campaign did not succeed in making everyone speak Turkish, it nevertheless caused friction and tension, especially among non-Muslim minorities.58 The campaign slowed down in April 192859 after international pressure, although it continued intermittently in the following years.60 ‘Soy Adı Kanunu’ The generalization of Turkish and the prohibition of non-Turkish languages were also carried out by renaming. The policy first took the form of changing the names of cities and geographical place names which had some reference to the ancien regime, and ethnic and traditional structures and communities. This was followed by forcing people to adopt Turkish names. These policies again demonstrated that the cultures and languages of non-Turkish groups did not have a place within the ‘national culture’ promoted by the state. It reinforced the impression that ‘national culture’ meant the culture and language of the Turkish ethnie. The original name of the 1934 law enforcing the adoption of Turkish surnames was the ‘Soy Adı Kanunu’ (‘Race Name Law’).61 The choice of the word ‘soy’ in its title is significant since it means ‘race’, ‘ancestry’, or ‘breed’. It indicated that the legislator wanted to enjoin the adoption of names signifying a person’s racial background. A more suitable word in the title could have been ‘known name’ or ‘family name’ as used during Ottoman Empire.62 In fact, this option was proposed within the TBMM’s Justice Committee by deputy Refik Şevket İnce who wanted ‘san adı’ (known name) to be used instead.63 This proposal was overruled in the TBMM’s general meeting, during which the deputies favoured ‘soy’ over the word ‘san’ and justified the choice on the ground that the former meant race, denomination, family, breed, or relative.64 The Soy Adı Kanunu was in fact an attempt to achieve something beyond its claimed purpose of giving family names to people. The law’s aim of enforcing the adoption of Turkish words as surnames became obvious when it prohibited the use of ‘tribe (aşiret) and foreign race (ırk) and nation (millet) names’ as a soy adı (article 3), since such a practice ‘without doubt’ would ‘impair the ideal of national 57  58  59  60 

Bali 2005: 135–48. Ibid.: 136–46. Çağaptay 2005: 27. For instance, deputy Rasih Kaplan pressed Prime Minister Şükrü Saraçoğlu to take measures to prevent some ‘elements’ speaking in non-Turkish languages in public so as not to ‘offend Turks’: TBMMZC, 05.08.1942, p. 28. Later, in 1960, when Turkish nationalist sentiment was at a peak due to the conflict in Cyprus, posters warning all citizens to speak in Turkish re-emerged in İstanbul: Alexandris 1983: 271. 61  Law no. 2525, 21.06.1934. 62  For criticism to this end, see TBMMZC, 16.06.1934, p. 195. 63  Attached to TBMMZC, 16.06.1934. 64  TBMM ZC, 16.06.1934, p. 202.

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unity’.65 The Minister of Internal Affairs, Şükrü Kaya, meanwhile encouraged the use of the words ‘kurt’ (wolf) as a family name since the wolf was the ‘totem of the Turkish tribes’. Thus, to call someone Kurtoğlu (son of wolf) was an ‘honour’ and was not considered to impair ‘unity’.66 Kaya also revealed that the real purpose was to erase signs of the plurality of society since … those names like Çerkeş, Kızılbaş, Bektaşi are not appropriate. Also we wish to erase the names of foreign nations … For instance, Arab, Caucasian, Chechen. There are thousands of these sorts of names which should be erased. Those who use names like Chechen İbrahim, Laz Memet should find another name for themselves. Our aim is to thereby erase difference, which does not exist in reality, except in chimera. This difference was taken advantage of by outsiders until recent times. It is very necessary to erase this difference and discrepancy.67

Restrictions on surnames became more defined in the Surname Regulation,68 article 5 of which stated, ‘New surnames are to be taken from the Turkish language.’69 Further, article 7 of the regulation prohibited the use of the name of a ‘foreign race and nation’ as a surname, and article 8 prohibited taking ‘names which show belonging to a tribe or clan’ as new surnames. A closer examination of article 8 demonstrates that it also clearly prohibits minorities to ‘readopt’ (yeniden takılamaz) their existing surnames which show belonging to a tribe or clan. The enforcement of Turkish surnames (as well as first names) enabled officials to object to such names, and the continued use of such practices has resulted in litigation up to the present day (see 4.3.4). Place Names The ‘Turkification’ of place names was first anticipated by the İTC in 1915 in line with the agenda of the Balkan nationalist movements. It reappeared six years later before the TBMM as a draft Law on Changing Non-National (Gayrı Milli) Village and City Names,70 based on lists already prepared by the İTC during the 65  Attached to TBMMZC, 16.06.1934. 66  TBMMZC, 21.06.1934, p. 247. Until the 1930s, the grey wolf was an official

symbol of the Turkish Republic and used on Turkish money and stamps, to be later replaced by Atatürk’s portrait: Tunçay 1989: 298, fn. 20. 67  TBMMZC, 21.06.1934, p. 246. Previously, the MoE’s proclamation of 08.12.1925, ‘Currents Trying to Undermine Turkish Unity’ banned the use of names of minority communities, Kurds, Laz, Circassian, and the areas they inhabited ‘Kurdistan, Lazistan’, and mentioned the necessity of fighting against these matters: Özerdim 1974: 75. 68  RG, 2891/27.12.1934. 69  The Yargıtay thus wrongly stated more recently that ‘there is no law which requires a surname to be in the Turkish language’ (Y.(18).HD, E.1997/7313, K.1997/7500, 10.09.1997). 70  TBMMZC, 14.04.1921, p. 450, and see 1.4.3.

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First World War.71 The draft proposed the replacement of those village, town, city and port names irreconcilable with ‘Islam and Turkishness’ (İslamiyet ve Türklük) with ‘national and historical’ names. The proposal was justified in the TBMM by Besim Atalay with reference to Anatolia being the Turks’ ancient homeland, and the Turks as the descendants of the Hittites; the name of that land was thus bound to convert to ‘Turkish and Islam’.72 The draft law could not pass, however, and the matter was left to be dealt with by the provincial general assemblies.73 Another attempt came in 1923, during the Independence War, when a law proposed that the name of Lâzistan liva (sub-division of province) be changed to Rize on the ground that the latter was Turkish, while the use of the word ‘Lazistan’ was criticized in the TBMM as well: ‘Lazistan, at first sight (vehlei ulâda), creates the erroneous impression that it is a big land (kıtai cesime) like Kurdistan, Baluchistan, Iran (Acemistan), Turkistan, Georgia, and Arabia which have thousands of villages and towns (kura ve kasabatı).’ It was also claimed that, in fact, the Laz belonged to the ‘Turkish race (ırk)’ since they ‘were called Laz [only] in Istanbul’. The use of Lazistan was also considered risky since, in the future, ‘somebody like Lord Curzon would appear and claim a Lazistan … [thus, this name] should be corrected to Rize … [since] the majority are Turks, there are no Laz.’74 However, this draft law created resentment among Lazistan deputies. For instance, deputy Ali Şükrü Bey (Trabzon) opposed the proposal, saying, ‘there are Laz, have not you read geography?’ Following the Laz deputies’ fierce reaction, the proposed law was rejected.75 The changing of places names became official with Circular no. 8589 of the Ministry of Internal Affairs (MoIA) in 1940 by which foreign-language or original place names were to be substituted with Turkish names (Türkçe isim). In fact, many place names had already been changed through administrative decisions.76 Following the 1940 circular, provincial governors were asked to prepare lists which contained non-Turkish place names, although the policy could not be applied immediately because of the Second World War. Finally, in 1949, the changing of place names obtained a legal basis with Law no. 5442,77 article 2(D) of which 71  TBMMZC, 09.05.1921, p. 271. 72  TBMMZC, 09.05.1921, p. 269. As early as 1922, in a chapter titled ‘Anatolia is

Turkish’ in a book The Pontus Issue, published by the General Directorate of the Press in Ankara, the nationalists claimed that the Sumerians and the Hittites were of Turanic and Turkish origin: Tunçay 1989: 300. 73  TBMMZC, 09.05.1921, p. 271. Another draft law dated 31.10.1925 suggested a change of place names conflicting with ‘our national ideals’. 74  TBMMZC, 27.01.1923, p. 6. 75  Ibid.: p. 7. 76  Many names of provinces were also changed: ‘İzmit’ to ‘Kocaeli’ in 1923, ‘Kırkkilise’ to ‘Kırklareli’ in 1924, ‘Bozok’ to ‘Yozgat’ in 1927, ‘Diyarbekir’ was changed as ‘Diyarbakır’, RG, 3786/18.12.1937, ‘Mamuretülaziz’ first to ‘El’azık’ and later in 1937 to Elazığ. 77  Law no. 5442, 10.06.1949.

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vested power in the MoIA to change non-Turkish village names. Article 2(D) was also used as the basis for changing historical names of mountains, rivers, hills, and so on. In 1952, an official committee called the ‘Name Changing Specialized Board’ (Ad Değiştirme İhtisas Kurulu) was established by the MoIA during the Democrat Party government to standardize place names. Except for road, street, park, and other names which would come under the jurisdiction of the municipalities, the board had the authority to change all other geographical names. The committee’s representation included the Military General Staff (Genelkurmay Başkanlığı), the Ministries of Internal Affairs, Defence and Education, the Ankara University Language, History and Geography Faculty, and the Turkish Language Society (Türk Dil Kurumu). Its work carried on until 1978, by which time the committee had replaced 28,000 non-Turkish place names with Turkish names. After a few years’ interval, in 1983, the board resumed its functions with a Regulation (Yönetmelik) called the ‘Regulation on the Establishment, Working Principles and Procedings of the Name Change Experts Committee’ (Ad Değiştirme Uzmanlar Kurulu Kuruluş ve Çalışma İlke ve Usulleri Hakkında Yönetmelik) and changed 280 village names.78 The regulation was annulled in 1985 on the ground that it did not achieve the expected productivity. The board was re-established in 2004 as the ‘Geographic Names Experts Board’79 by an instruction of MoIA.80 The board is in charge of giving Turkish names to geographical places within the present territory and ‘Turks’ Cultural Geography’ (Türk Kültür Coğrafyası) (article 5(a)).81 This demonstrates that changing non-Turkish place names is still on the state’s agenda. However, what is striking here is that the regulation also refers to ‘Turks’ Cultural Geography’ beyond the existing territory of Turkey. This suggests that the ‘Turks’ are contemplated beyond the concept of citizenship and include those who do not live in the territory of the current state. Linking Turkishness to ‘Turks’ Cultural Geography’ beyond the current territory of Turkey evidently shows that Turks are anticipated as a group based on race/kinship and culture (soy and kültür) (see also 6.3.4). Tuncel writes that names reminiscent of Christianity like ‘bell’ (çan) and ‘church’, of non-national ideologies like the word ‘communist‘ (kızıl), or of ethnic identities like Kurd, Georgian, Tatar, Circassian, Laz, Arab, and so on, were changed since they were considered to ‘cause separatism’. Other place names were changed simply because they were not Turkish. This practice was intensively applied in the Black Sea area, South-eastern and Eastern Anatolia where the most village names were Greek, Laz, Armenian, Kurdish, Arabic, and so on. Tunçel 78  Tunçel 2000: 27, and also see Öktem 2009. 79  This Board has representation from the Military General Staff, Ministries of

Foreign Affairs, Internal Affairs, Defence and Culture and Tourism, the Turkish History Society and the Turkish Language Society, and so on. 80  MoIA Order no. 1656, 13.03.2004. 81  Altıparmak et al. 2007.

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gives 12,000 as the number of villages whose names were changed, some 35 per cent of villages in Turkey.82 The names of roads, streets, and other wayfares also had to be in Turkish. According to a regulation of 1939, street and road names had to be taken from Turkish, and not from other languages.83 Thus, the state’s Turkification mission extended to every place name. Although that regulation was recently annulled, a new one continues to contain a similar restriction,84 stating that names given to roads, streets, parks and other public spaces must be in accordance with ‘the Constitution’s founding principles, legislation, general moral rules, and they should not cause discrimination or separatism’. Names composed in accordance with foreign-language rules cannot be given.85 In practice, it is used to prohibit Kurdish names being used as place names. For instance, in a recent judgment, a Regional Administrative Court (Bölge İdare Mahkemesi) in Diyarbakır found that giving names in Kurdish to some parks and a cultural centre within the municipality of Kayapınar was a violation of this regulation.86 The Regional Administrative Court justified its decision on two grounds: first, the words used were not in Turkish and could not be found in the Turkish Language Society’s (Türk Dil Kurumu) dictionary, and secondly, their spellings were in line with ‘foreign language rules’, but were not compatible with the rules of Turkish grammar. It is also striking that the Regional Administrative Court refers to the Kurdish words as being of a ‘foreign language’, and not even as ‘one of the laguages spoken in the daily life of Turkish citizens’, which is a legal formula used in recent laws for granting broadcasting rights and opening private courses in Kurdish. In the political sphere, the current AKP government for a while reluctantly began to discuss the possibility of allowing the older names of villages and other places to be used again.87 However, there is still no change, while some legislative proposals to this end are still being rejected by the TBMM.88 82  83  84  85 

Tunçel 2000: 28–31. Article 4 of the Regulation RG: 4330/07.10.1939. Article 24 of the Regulation RG: 26245/31.07.2006. For an interpretation on the right to recognition of names in minority languages and the right to display signs in those languages, see Council of Europe’s Framework Convention Advisory Committee Opinion on Azerbaijan, ACFC.INF/OPI(2004)001, paras 58–60. 86  Radikal, 22.07.2012. 87  Taraf, 27.05.2009. 88  DTP Şırnak deputy Sevahir Bayındır’s question in this regard had been rejected as being against the principle of Atatürk’s nationalism. Another proposed law by the DTP which proposed that the old name of Dersim to be restored was rejected by the Minister of Justice as a ‘separatist idea’: Radikal, 12.02.2009. A recent draft law proposing the use of old place names together with new ones is still waiting before the TBMM, see http:// www2.tbmm.gov.tr/d24/2/2-0106.pdf. Interestingly, in 2005, the Environment and Forests Ministry announced that it had changed animal names that contain the words ‘Kurdistan’ and ‘Armenia’ on grounds that they were considered threats to Turkey’s unitary state. Accordingly, the Ministry changed the Latin name of the red fox Vulpes vulpes kurdistanicum

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3.1.2 Reconstruction of the ‘Turk’ through History The reconstruction of the history of the current territories with reference to the Turkish ethnie was a significant factor in the creation of the nation and its identity, and in the policy of Turkification. Thus, history as ‘legitimator of action and cement of social cohesion’ presented an important basis for the invention of tradition.89 The Turkish History Thesis (Türk Tarih Tezi) was designed with these projects in mind and was publicly announced during the first History Congress of 1932. While describing the Turks as an ethnically distinct people linked to Central Asia, the thesis legitimized the use of the concept of race in the definition of the nation, national identity and Turkish nationalism. It further claimed that the ancient residents of Anatolia, the Hittites, were Turks, thus aiming to establish that Anatolia was the Turks’ ancient homeland and that its past and present inhabitants were ethnically Turk.90 While positioning Turks as the real owners of Anatolia, the thesis also endeavoured to prevent irredentist ideas among Armenians, Greeks, Kurds, Arabs and others.91 The dissemination of this thesis was to be accomplished ‘under the supervision and responsibility’ of the state’s single party, the Republican People’s Party (Cumhuriyet Halk Partisi, CHP).92 In fact, the thesis had already been integrated into the CHP’s programme in 1931 before its public declaration. For instance, the Turks were portrayed as the ancients of the land in article 1/f, Section V of the programme, while the ‘homeland’ was described as ‘the territory within the current political borders which contains the Turkish nation’s old and elevated history and preserves the products (eser) of its existence in the depths of the soil’. The same article also stated that the CHP ‘gives paramount importance to citizens knowing the Turks’ deep history’. The thesis was produced by state institutions established on Atatürk’s orders.93 The first such institution was the Committee of Turkish History (Türk to Vulpes vulpes, the Latin name of wild sheep, Ovis armeniana, to Ovis orien anatolicus, and the Latin name of the roe deer, Capreolus capreolus armenius, to Capreolus caprelus capreolus. The Ministry stated, ‘Unfortunately there are many other species in Turkey which were given names in this manner with ill intentions. This ill intent is so obvious that even species only found in our country were given names against Turkey’s unity’; http:// news.bbc.co.uk/1/hi/world/europe/4328285.stm, last accessed 12.08.2009. See also Aydin 2006. 89  Hobsbawn and Ranger 2003: 12. 90  Çağaptay 2005: 51, Kubilay 2004: 65. 91  Yıldız 2004: 180–81, 185; Çağaptay 2005: 51. 92  Çağaptay 2005: 50, Öztürkmen 1998: 143. 93  Tunçay 1989: 301, fn. 3 refers to Atatürk as the real creator of the thesis. However, the roots of the thesis can be traced back to the Ottoman modernisation of the nineteenth century, when the history taught in military schools adopted a ‘nationalist-traditionalist outlook’ (Karpat 2000: 24) and referred to the Turks’ history in Central Asia (see also Chapter 1).

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Tarih Encümeni), established at Istanbul University by the Ministry of Education following Atatürk’s order of 6 July 1927.94 Another organization, the Study Turkish History Committee (Türk Tarih Tetkik Heyeti), was founded within the structure of the Turkish Hearths on 28 April 1930.95 Following the incorporation of the Turkish Hearths to the CHP on 15 April 1931, its name was changed to Turkish History Study Society (Türk Tarihi Tetkik Cemiyeti). On 3 October 1935, its name was changed again to the Turkish History Society (Türk Tarih Kurumu) by Atatürk. On 21 October 1940, by Decree no. 2/14556, the Turkish History Society became an association working for the public interest. It was later placed under the Atatürk High Institution of Culture, Language and History (Atatürk Kültür, Dil ve Tarih Yüksek Kurumu, AKDTYK) by Law no. 2876 of 11 August 1983, when it became a constitutionally protected institution of the state. The institutionalization of its predecessors and the subsequent constitutionalization of the AKDTYK, reveals the extent to which history became a central concern of the state (see 4.2). The first major study prepared in line with the Turkish History Thesis was a book titled Türk Tarihinin Ana Hatları (Main Features of Turkish History) of 1928, which contained its primary narrative. Its introduction portrayed its aim as being to reveal that the Turks’ national development was bound to their ‘deep racial roots’.96 The thesis later entered the schoolbooks with Afet İnan’s book, Vatandaşlar için Medeni Bilgiler (Civic Knowledge for Citizens) of 1930, which contained writings by Atatürk.97 This book is important in that most of its contents have subsequently been adopted by the Turkish judiciary as part of its stance against minorities’ cultural, linguistic and political demands. Medeni Bilgiler contemplated the Turks as a people with ‘common genetic characteristics’, as distinguished from other peoples by their morality (ahlak) which Turks share, and something that makes them original (özgün).98 This ‘morality’ was therefore not contemplated as being individualistic in character, but as something stemming from the ‘nation’ and national community.99 The book defined the Turkish nation as the ‘people (halk) who established the Turkish Republic’. Further, ‘the natural and historical facts’ which effected the establishment (teessüs) of the ‘Turkish nation’ were ‘(a) unity in political existence, (b) unity in language, (c) unity in homeland, (d) unity in race and origin (menşe), (e) to be historically related and (f) to be morally related’. 94  Decree no. 5419, 06.07.1927. 95  The predecessor of this institution was the Ottoman History Committee,

established in 1909 when the ‘Turkification of Ottoman history’ was officially launched: Karpat 2000: 13. 96  Ersanlı 2006: 122. 97  Afet İnan was Atatürk’s adopted daughter and went on to become a historian and sociologist. For details see Yıldız 2004: 212–16. 98  Üstel 2005: 224. 99  Ibid.: 225. The concept of ahlak has also been used by the Turkish judiciary to support national unity in the sense of homogeneity. See further Chapter 5.

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While the role of religion in the nation’s formation was rejected, the book still saw all Turks as Muslim, thus leaving non-Muslims outside the Turkish nation.100 At the same time, the book contemplated the non-Turkish Muslim populations of Turkey as ethnically Turk who had forgotten their Turkishness, and of which they should be reminded: Today, there are some citizens and co-nationals (milletdaş) within the Turkish nation’s political and social community who propagate the idea of Kurdishness, Circassianness, Lazness, Bosniakness. Nevertheless, such wrong re-naming, which is a product of the previous oppressive regime did not influence anybody except those brainless tools of the enemy who wish to return to the old regime. Like the general Turkish community, these individuals have the same common past, history, morals and law.101

Muslims co-citizens were thereby placed within the definition of the nation, a process which, it will be recalled (in Chapter 2), had already begun to take shape towards the end of the Ottoman Empire and during the Independence War. 3.1.3 Elimination of Traditional, Religious and Social Structures Contemplating a modern nation-state based on one nation led the state’s elite to ban all autonomous social and political associations and organizations besides those controlled by the state, in order to secure total social and cultural control.102 As Alexandris shows, state control of such institutions was also contemplated as a must for centralization, secularization and modernization. Limiting the influence of non-secular institutions as a major component of the policy of secularism, combined with state interference in their management, went against the freedom of religious minorities to manage their communal affairs without interference from the state authorities. The secularism principle also contradicted the non-Muslim minorities’ rights under the Lausanne Treaty.103 The project of ‘cultural nationalism’ aimed to redesign society with reference to the Turkish nationalists’ secularist and modernist vision. Secularism was promoted as one of the fundamental principles of the new Republic and a way to realize Atatürk’s desire to reach the ‘level of the contemporary civilized world’. Secularism, as the separation of the state and religious affairs and the equal distance of the state’s position towards all beliefs and believers, became a constitutional principle in 1937.104 Although secularism has been feverishly defended by the state, there was a contradiction between its definition and its institutional application. 100  101  102  103  104 

Ibid.: 225–6. Ibid.: 226. Çolak 2004: 74. Alexandris 1983: 203. Law no. 3115, 05.02.1937, amending the 1924 Constitution.

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Thus, secularism would have some serious consequences against diversity in the country, since its application required the elimination of traditional, religious and social structures, and substituting them with state-controlled organizations, while also removing traditional identities attached to the people’s religious beliefs. On the other hand, and despite the secularism principle, the state would reorganize public life with reference to Sunni-Hanefî Islam, adhered to mostly by the Turks in Turkey. Religious Structures One of the most important steps taken in furtherance of secularism was the abolition of the Caliphate on 3 March 1924. Following the abolition of the Sharia and Charitable Foundations Ministry (Şer’iye ve Evkaf Vekâleti) in 1924, established during the Independence War, religious matters of the Muslim population were brought under the new Department of Religious Affairs (Diyanet İşleri Başkanlığı). Although it was not a ministerial organization, it was treated as a ministry, its head continued to receive the highest state officer salary, and it received ministerial treatment in state protocol. It became a constitutional organization under the 1961 Constitution (article 154) and still remains so.105 In 1925, dervish lodges (tekke ve zaviye) other than those used as mosques were closed, the tombs of sultans and saints were abolished, and their ceremonies were prohibited on pain of criminalization, while their properties were acquired by the state.106 Shortly after their Sunni counterparts, the Alevis’/Bektaşis’ Dergahı (shrine) was also closed in 1925 and their ceremonies were banned by Law no. 677, violating which was sanctioned a minimum of three months in prison and a fine.107 However, the Sunni dervish lodge of Mevlana was allowed to remain open after its brief closure at the same time as the others.108 Later, in the 1950s, the state allowed Sunni and Turkish shrines and tombs of saints to be opened to the public.109 The closure of dergah and sanctuaries had a more significant effect on Alevis/Bektaşis, who do not use mosques for worship, as the Sunni Muslim population do. They were effectively deprived of access to their traditional religious places. Moreover, by declaring illicit the Alevis’ clerical titles of ‘dedelik’, ‘seyitlik’, ‘çelebilik’, and so on, and banning them from providing services and from adorning their

105  106  107  108 

See now, article 136 of the 1982 Constitution. Law no. 677, 13.11.1925. Law no. 677, 13.11.1925. Küçük 2002: 243. The Alevi/Hacı Bektaşi Veli Dergahı would not be reopened until 1964 and, even then, only as museum with its management carried out by the state up to the present. 109  Article 1 of Law no. 5566, 1.03.1950, and see TBMMTD, 01.03.1950, pp. 34–9. During the debate on this law, it was stated by a deputy that, for instance, the Hacı Bayram Veli Dergahı should be opened since he wrote his poems in Turkish, unlike his contemporaries (ibid.: p. 35).

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traditional dress, the law explicitly prevented these groups enjoying their religion freedoms without state interference.110 The state not only interfered with the religious structures of non-Sunni Muslim groups, but also appeared to privilege Sunnis, despite the country’s religious diversity. For instance, the Village Law111 determined the mosque as one of the founding elements of the village (article 2), and stipulated building a village mosque as a compulsory duty of all villagers (article 13 (4)). Further, that law deemed the imam of the village mosque as a permanently appointed member of the village council in charge of governing a village with an elected muhtar (district governor) (article 23).112 The Zoning Law (İmar Yasası)113 reserved a place for the ‘mosque’ in the development plan or zoning ordinance (imar planı) of residential areas until 2003, when the reference was changed to ‘places of worship’.114 Despite this change, the regulation implementing this law only refers to mosques.115 Also, the Cadastre Law (Kadastro Kanunu)116 describes mosques and namazgah (open places where namaz is performed) as being included in the category of official public buildings and complexes built from the public budget (article 16(a)). Placing Sunni Muslim mosques at the centre of the social structure in the country not only demonstrates the significance of the Sunni Islamic identity for the state; it can also be interpreted as the state’s desire for the ‘Sunnification’ of the non-Sunni Muslim population. Non-recognition of Alevi ritual places (cemevis) is another expression of the same approach.117 In official discourse, Alevis are considered as within the Islamic fold, and mosques are declared to be the only religious place in Islam. In such a setting, the recognition of cemevis as places of worship appears impossible. A recent judgment of the Yargıtay reaffirmed this when it ruled in favour of the closure of an Alevi association (Çankaya Cemevi Yaptırma Derneği), because a clause in its charter stated one of its aims as being to establish cemevis, which were also described as the Alevis’ place of worship. In its reasoning, the Yargıtay noted that religious places other than mosques are banned under Law no. 677, which is one of the ‘Revolution Laws’ (İnkılap Kanunları) and placed under the protection of article 174 of the 1982 Constitution 110  Küçük 2002: 241 states that some Bektaşis pretended to reconcile themselves with the reforms, saying that there was no further need for the dergah. In addition, they praised and welcomed the scope for personal freedom, especially from the power of the ulema, the place of women in the new community, and to gather in family meetings, which were regarded as equal to Ayin-i Cem, their religious ceremony. 111  Law no. 442, 18.03.1924. 112  Article 31 of Law no. 6831, 31.08.1956, refers to the mosque as a ‘common necessity for the village population’. 113  Law no. 3194, 03.05.1985. 114  Law no. 4928, 15.07.2003. 115  RG: 18916/02.11.1985. 116  Law no. 3402, 21.06.1987. 117  Thus they do not benefit from any state funding unlike Sunni mosques, Jewish synagogues and Orthodox churches.

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as an unchangeable law. The court described the aims of these Revolution Laws as protecting the secularism principle and lifting Turkish society’s (Türk toplumu) above ‘the contemporary civilization level’. The Yargıtay thereby implies that the Alevis’ claim for recognition of their places of worship contradicts the secularism principle, while at the same time reinforcing Sunni Islam as the only legitimate religion.118 Moreover, Alevism, considered for centuries as heterodox belief by the Sunni Islamic theology, poses a further challenge, since the recognition of cemevis as places of worship require Alevis being recognized as a religious entity. The state’s approach to this issue is instructive since the ‘laik’, ‘neutral’, ‘civic’ qualities of the state do not prevent the state from privileging Sunni Islamic theological concerns over the claims of Alevis for recognition. Therefore, the state perception of Alevism as a ‘culture’,119 or ‘mysticism’,120 but not as religious belief, plays a key role in this regard. While the state therefore lines up on the side of Sunni-Islam, it puts the Alevis’ belief into the category of ‘culture’, which enables their denial as a religious entity and brings them under mainstream Islam. In this way, while the state creates an ‘ostensible’ space for Alevis in the system, it also reinforces its paramount inclination towards Sunni Islam. The importance of obtaining legal personality has been acknowledged in a recent report by UN Special Rapporteur on the freedom of religion or belief.121 In the report, providing appropriate means at the domestic level for acquiring legal personality for religious or belief groups is considered to be an important part of enjoying the freedom of religion or belief, and providing ‘recognition’ to it. Further, according to the Special Rapporteur’s report, obtaining legal personality should not be conditioned upon another religious or belief group’s de jure or de facto approval. The situation of Alevis in Turkey is problematic not because there is no possibility of being recognized and obtaining legal personality from the state at the domestic level, but because that possibility is conditioned upon de facto acceptance from the perspective of Sunni theology. The favoured approach to Sunni-Muslims in general, and Hanefîs in particular, continued with more emphasis from the start of the multi-party period, on account of the fear of losing votes to other parties. In 1948, religion was introduced into the school curriculum as an optional course. In 1949, Koran courses were allowed to open, and a law permitting the opening of theology faculties was passed by 118  Radikal, 25.07.2012. 119  For courts referring to to Alevis and Bektashis as ‘cultural entities’, see Y.(18).

HD, E.1995/717, K.1995/1097, 31.01.1995; also see Y.(2).HD., E.2002 / 9706, K.2002 / 11660, 08.10.2002. 120  See ‘Aleviler and AKP’ Report of 2011 by TBMM Human Rights Commission member Hüseyin Aygün, http://www.huseyinaygun.org/gundem/komisyon-calismalari/252qaleviler-ve-akpq-rapor-tam-metni.html, last accessed 04.04.2012. 121  See UN Human Rights Council, Report of the Special Rapporteur on freedom of religion or belief, by Heiner Bielefeldt, 21.11.2011 A/HRC/19/60.

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Parliament. Following the 1980 military takeover, the optional religious courses became compulsory under the name of ‘Religious Culture’, based on Sunni-Islam. Only recently has the educational content in these courses been slightly changed with some information about other religious traditions, but they are still largely based on Sunni-Islam. Although non-Muslim pupils were exempted from attending these courses from 1986 onwards,122 Alevi/Bektaşhi children are still being forced to take them.123 Further, the state’s arbitrary interference with non-Muslim religious schools and prohibiting them from opening religious higher education institutions may be considered as another expression of the state’s arbitrary intervention in minority religious structures. The main theological college of the Eastern Orthodox Church was closed in 1971, as a result of a judgment of the Constitutional Court (Anayasa Mahkemesi, AYM).124 The college had been founded in 1844 and offered education at high school and university levels. The AYM ruled that the state has a ‘monopoly’ in the formation of universities and institutions of higher learning in Turkey, holding that only a state body could establish such educational organizations. The AYM justified the state ‘monopoly’ by invoking the aim of preventing the dissemination of foreign cultures ‘at the expense of Turkish culture’ in the country.125 In the AYM’s view, the culture disseminated in minority schools evidently did not come within the scope of ‘national/Turkish culture’. The lack of state funds available for non-Muslim minority schools,126 despite the Lausanne Treaty, also raises many questions, since İmam Hatip Schools which are mainly religious schools for Sunni Muslims are organized and funded by the state. It seems also to go against the Turkish state’s obligation under article 26 of the ICCPR since, in the Arieh Hollis Waldman v. Canada decision, Canada was found to be in breach of the same article because, while providing public funds for Roman Catholic schools, it required other religious schools to fund themselves through private sources.127 Elimination of Charitable Institutions The policy of cultural nationalism also entailed placing legal and administrative obstacles to prevent non-Muslim vakıfs (charitable foundations) acquiring new 122  MoFA’s Order (yazı) no.1747, 25.08.1986 and MoE Order no.1, 29.01.1987. 123  The ECtHR has found Turkey in breach of article 2 of Protocol 1 of the ECHR

for making this course compulsory for Alevi children in Hasan and Eylem Zengin v. Turkey (no.1448/04, 09.10.2007), although it omitted dealing with the violation of article 9 claim in the same case. 124  AYM, E.1969/31, K.1971 /3, 12.01.1971. 125  The EU Commission, Progress Report on Turkey of 2008, p. 19 criticized the continued closure of the college. 126  Minority Rights Group International Report of 2009, by Nurcan Kaya, p. 16. 127  Communication no. 694/1996, 3.11.1999, CCPR/C/67/D/694/1996. Also see UN Human Rights Council, Report of the Special Rapporteur on freedom of religion or belief of 2011, at para 72, where it is suggested that states adopt an equal position towards all religious and belief groups when granting particular financial and other privileges.

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properties, or make their process of establishment more difficult as compared to that for Muslim vakıfs. While this was an obvious form of discrimination,128 it also contravened the Lausanne Treaty’s article 42(3), which required non-Muslims’ foundations to be treated on terms equal to those of their Muslim counterparts. Restricting the establishment of new cemaat vakıfs (non-Muslim minority foundations) thus became an expression of cultural nationalism. The state’s arbitrary interference with minority group institutions was carried out by making all Muslim and non-Muslim religious foundations (vakıfs) accountable to the state in 1935, with the Vakıfs Law.129 Muslim vakıfs were placed under the category of ‘mazbut vakıf’, thereby losing their autonomy; their properties were governed by the General Directorate of Religious Foundations (Evkaf/Vakıfs Genel Müdürlüğü, VGM) on grounds of their threat to the secular regime. Non-Muslim vakıfs were placed in the ‘mülhak’ (dependent) category and their properties were administered by committees of trustees (mütevelli heyetleri) elected by the members of each parish, who would fulfil their responsibilities under the overall control of the VGM.130 This elected trustee system did not operate in the period 1937–49 and, instead, the VGM appointed single trustees, which deprived the non-Muslim communities of effective participation in their institutions’ administration.131 From the 1960s, state interference with the management of cemaat vakıfs was reinforced by a new approach aiming to weaken these organizations and force their ultimate closure by cutting off their financial sources and preventing them from acquiring new properties. This was executed by bureaucratic obstacles, such as government refusal to issue documents needed for the registration of new real estate in the Land Registry in the name of the cemaat vakıf. The VGM, meanwhile, began to bring legal cases against cemaat vakıfs for acquiring property which was not on their vakfiye (a vakıf charter).132 The Yargıtay upheld the VGM’s argument, ruling that a cemaat vakıf could not acquire new property by means of bequest or donation unless clearly stated in its charter.133 Recently, as part of harmonization with EU law, Turkey has attempted to remove legal obstacles and allow cemaat vakıfs to acquire new properties.134 However, these attempts have not achieved 128  129  130  131  132 

Tarhanlı 2002: 41–4. Law no. 2762, 05.06.1935. Alexandris 1983: 201–2. Ibid.: 203, Macar 2004: 8. These vakıfs did not have a charter since they were established with the sultans’ ferman. However, in accordance with Vakıf Law of 1935 by virtue of which they obtained legal personality, the cemaat vakıfs were required to provide a declaration listing their immovable properties held as of 1936. These declarations were later considered as their charters. 133  YHGK, E.1971/2/820 and K.1974/505, 08.05.1974. Also see Y.(1).HD, E.1981/4849, K.1981/4947, 13.04.1981; YHGK, E.2002/16-159, K.2002/355, 08.05.2002. 134  Law no. 4771, 03.08.2002 and Law no. 4778, 02.01.2003. The new Vakıflar Law of 2008 also does not look as if it will allow the necessary freedom of action by vakıfs: TESEV 2007: 7.

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the desired result in allowing non-Muslim foundations to acquire or register their new properties in their name.135 Finally, following Secondary Law no. 28038 of 27.08.2011, the government has begun the process of returning the properties of minority foundations which had been acquired by the Treasury.136 According to the Vakıfs Law, new charities may only be established and operated in accordance with the Civil Code (Medeni Kanun, MK).137 However, the Civil Code prohibits the establishment of foundations ‘which aim at the reinforcement of a particular ırk (race) or members of a cemaat (non-Muslim group)’.138 This provision effectively meant that non-Muslims could not establish a new cemaat vakıf and only those established before the enactment of the Civil Code of 1926 were considered cemaat vakıfs coming under the protection of the Lausanne Treaty.139 Recently, the VGM decided that the Jewish vakıf in İzmir (İzmir Jewish Community Foundation) may be registered as a cemaat vakıf. 140 At first glance, this seemed to be a very important step towards loosening of the ban. However, it has later become evident that it was not a new vakıf at all. It had been established as a vakıf before 1926, but its legal personality as vakıf was refused by the state later in 1936. The point regarding only the older set of cemaat vakıfs qualifying as such has been upheld in Turkish jurisprudence, with reference to the principle of equality. For instance, in a recent judgment, the Danıştay stated that the Lausanne Treaty did not contain the right to establish new cemaat vakfıs on the ground that ‘the provisions of the Lausanne Treaty do not foresee minorities enjoying a different status, but they rather foresee minorities enjoying the same rights and being subject to the same liabilities as other Turkish nationals.’141 While the Danıştay 135  Meanwhile, Turkey has been found in violation of article 1, Protocol 1 to the ECHR in many cases because of its failure to this end. See among others Rum Erkek Lisesi Vakfi v. Turkey (no.34478/97, 09.04.2007), Yedikule Surp Pırgiç Ermeni Hastanesi Vakfı v. Turkey (no.36165/2002, 16.12.2008). 136  Despite this welcome development for minority foundations, Alevi and Bektaşi dergah (shrines), dervish lodges, and so on, acquired by the state under Tekke ve Zaviyeler Kanunu (Law no. 677, 13.11.1925) have not still been returned. According to Aygün 2011, there are some 18 such dergah (shrines) and 167 such dervish lodges. 137  Article 5(1), Law no. 5735, 20.02.2008. 138  Article 101(4), Law no. 4721, 22.11.2001. This ban was first introduced by Law no. 903, see CSTD, 13.07.1967. One of the aims of this change was stated as not to allow vakıfs which were not ‘consistent with our national culture’ in the 4 State Development Plan (1979–1983), p. 318. 139  Article 8(1) of Law no. 864, 04.10.1926. 140  Today’s Zaman, ‘İzmir Jewish Community granted foundation status’, 15.12.2011. 141  Dan.(10).D, E.2003/2272, K.2005/6741, 15.12.2005. Alexandris 1983: 290 mentions a Yargıtay judgment of 1971 adopting the same line. Interestingly, this view was also officially defended by İnönü in an explanatory note to a draft law discussed in the TBMM. He claimed that cemaat vakıfs had not been recognized by the state at the Lausanne Conference and minority protection in Lausanne only made possible their subjection to

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stated that existing non-Muslim foundations could maintain their special status (özel statü) under the Vakıfs Law, it rejected the argument that a new cemaat vakıf could be established by relying on the Lausanne Treaty. This reading is not easy to reconcile with the wording of article 42(2) of the Lausanne Treaty, which stipulates that ‘the Turkish Government will not refuse, for the formation of new religious and charitable institutions, any of the necessary facilities which are guaranteed to other private institutions of that nature.’142 This interpretation is not in line with the Lausanne Treaty, since the minorities’ charitable rights in that treaty were designed as special rights and their materialization requires a differentiated treatment beyond the right to equal treatment (see 2.2.5). Although the Turkish judiciary has not allowed the establishment of new cemaat vakıf,143 as well as those which aim for the reinforcement of a race or a cemaat,144 it has been more tolerant towards vakıfs aiming to support the Turkish family, or Turkish education, culture, and so on, despite their particular aim of supporting ethnic Turks or Islam. For instance, the Yargıtay quashed a first-instance court decision which had refused registration of a foundation which pursued the Sunni branch of Islam on grounds that it aimed to promote and enhance ‘Turkish family life’. The Yargıtay justified its judgment by stating that that aim did not ‘evidently and without any doubt prove that the foundation in question will serve only a particular group’.145

the same laws and did not protect the differentiation of minority groups (TBMMZC, 28.06.1938). 142  Alexandris 1983: 290. 143  In practice, the state has tended to reduce the existing cemaat vakıfs in number by converting them into mazbut vakıfs, thus making their closure possible (Dan.(10).D, E.2002/3851, K.2003/4527, 19.12.2003), something which article 7(2) of Vakıfs Law of 2008 legitimizes: TESEV 2007: 4. 144  The Yargıtay refused registration of a Bahai vakfı since it aimed to support its religious community by constructing a temple and other institutions for Turkish Bahai people (YHGK, E.1973/609, K.1973/959, 28.11.1973). The Yargıtay, recently refused the registration of a Seventh-Day Adventist vakıf because it aimed to only satisfy the needs of the followers and members of this particular belief (Y.(18).HD, E.2005/1467, K.2005/3270, 05.04.2005). However, the Yargıtay has changed its case law regarding Alevi vakıfs since the 1990s and begun to allow the establishment of some (see Y.(18).HD, E.1995/717, K.1995/1097, 31.01.1995). Meanwhile, an Alevi political party called Birlik Partisi (Unity Party) was established in 1966 and even took a seat in the Parliament until its closure by the military regime in 1980. An examination of its first party programme gives an idea about how the state allowed its establishment. The programme appears very much in line with the official ideology; it was ‘reformist, progressive, Turkist’ and adhered to Kemalist ideology and laicism. Its main objection to the state was the non-representation of Alevis by the Diyanet İşleri Başkanlığı, and therefore demanded even-handed treatment of Alevis by that organization. For a detailed study, see Ata 2007. 145  Y.(18).HD, E.2001/11948, K.2002/2635, 18.03.2002.

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3.1.4 End of Legal Plurality Jacobson points to the importance of legal codifications in the formation of nations and nation-states in nineteenth-century Europe: … the ideal of a cohesive nation-state was implicit in the scope of a civil code. To be French, Dutch, German, or Italian meant, among other things, to live under the same regime of civil laws as one’s countrymen, young and old, male and female, from birth until death … [a civil code], together with grammar books, maps, encyclopaedias, newspapers, history primers, and other printed material, it served to establish and reify common culture, language, and law. Its levelling effect helped create ‘egalitarian expectations’ and foster ‘cultural hegemony’.146

He also points to the significance of codification in transforming ‘individual behaviour and private family life to conform to a uniform set of practices’, enforced by ‘a centralized judiciary, equipped with coercive powers of sanction and reward’.147 These processes were also important for their effects upon the legal pluralist, parochial traditions of imperial states. Moreover, they cannot be considered separate from the role of ‘legal centralism’ in the logic of the modern nation-state which idealizes ‘total legal control and by definition rejects polycentric law’.148 In line with their European counterparts, elites in Turkey also grasped the importance of civil codes in the formation of a nation-state. Codification of law and the converse elimination of the parallel legal systems and laws through unification had been attempted earlier by the İTC with its Family Law Code of 1917 (see 1.3.2). In enacting this code, the state was stepping away from the legal pluralist tradition of the Ottomans and their policy of non-interference with the family laws of nonMuslims. In fact, legal pluralism, as inspired from the traditional millet system, had been recognized in the Lausanne Treaty’s article 42, by which non-Muslims in Turkey and Muslims in Greece149 were permitted to continue to settle family law and personal status matters in accordance with their religion and customs. This legal pluralism was nevertheless very much in conflict with the new nation-state leaders’ vision of a centralized, modern, secular and westernized nation-state, with uniform secular laws and a legal system for all. During the Independence War, the nationalists declared their desire to remove the legal pluralist framework by codifying the religious, family and personal law matters of non-Muslim minorities under a single civil code for all, and solving disputes regarding these matters in the general courts.150 In this way, the state elites wished to break the non-Muslim minorities’ traditional resistance by 146  147  148  149  150 

Jacobson 2002: 312. Ibid. Örücü 2010: 77. See further, ECtHR, Serif v. Greece (no.38178/97, 14.12.1999), paras 22–3. TBMMGCZ, 01.01.1923, Hasan Saka, p. 1173.

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uniformizing and putting them under the state’s control through secular laws.151 This vision was put into action with a new Civil Code of 1926, transplanted from the Swiss Civil Code. In the explanatory note, removal of legal pluralism was explained as a ‘necessity’ for ‘political, social, and national unity which is a must for contemporary states’.152 The state used the Civil Code’s provision on civil marriages, which declared it the only legally binding ceremony while making religious marriage optional, as a pretext to justify its vision of abolishing legal pluralism. The Lausanne Treaty, by contrast, would have recognized the religious marriages of non-Muslims as part of their religious laws. The Turkish state’s solution for overcoming this civil-religious marriage hybridism was to ensure that non-Muslims formally renounce article 42 of the Lausanne Treaty in favour of the new Civil Code.153 The state wanted this to occur before the Civil Code passed through the TBMM, and pressured non-Muslims. Because of this pressure, first Jews154 and, two days later, the Armenian community renounced their rights under article 42 of Lausanne. The Greek community’s resistance, and objection that their canon law only recognized religious marriage, succumbed under the threats, intimidation and arbitrary interference by a committee formed to draw up a declaration renouncing its rights under article 42. The committee unanimously approved the state’s recommendation and declared the Greek community’s renunciation of article 42 on 29 September 1925.155 Following this, the Minister of Justice briefed the TBMM that the non-Muslims had informed the government of the ‘total’ renunciation of their rights under the Lausanne Treaty because of the preparation of the draft Civil Code.156 3.2 Turkification of the Economy Besides its ethnic connotation, belonging to the national community had a religious connotation since the early days of the Republic. Thus, non-Muslims and non-Sunni Hanefî groups were not considered as real citizens. Indeed, during the discussions on the 1924 Constitution in the TBMM, Celal Nuri Bey, speaking on behalf of the government, bluntly stated that ‘our real citizens (özvatandaşımız) are Muslim, belong to the Hanefî denomination and speak Turkish’.157 Despite 151  152  153  154  155  156 

Aktar 2004: 110. Attached to TBMMZC, 12.02.1926. Alexandris 1983: 135. Bali 2005: 65, and see pp. 59–102 in detail. Alexandris 1983: 137, and see also Aktar 2004: 108–10; Akgönül 2007: 67–74. TBMMZC, 12.02.1926. Oran 2004: 68, fn. 44 challenges the state’s official view on this point on the ground that the individual rights of members of the minority group could not be given up by a committee on their behalf in that manner. Further, article 37 of the Lausanne Treaty would not have permitted renunciation by law or official practice. 157  TBMMZC, 20.04.1924, p. 910.

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that, the cultural nationalist policies of the early Republican period still claimed that the national community was open for non-Muslims as long as they give up their schools, their language and their ethnic identity, and accept Turkish culture (hars).158 However, the policy of Turkification of economic life proved the contrary; it proved impossible for a non-Muslim to be accepted as a ‘Turk’ since the beginning of the Republic. This was revealed during discussions on the 1924 Constitution: On the one hand, we say citizens of [the state] … are completely Turk. On the other hand, the government is struggling to make sure foreign companies will dismiss Greek and Armenian workers. When we attempt that … [and] if we are told that ‘No, in line with the law passed by your parliament they are Turks’ what would your answer be? The word citizenship would not be enough to abate a desire which is in the mind and heart … there is one reality, they cannot be Turk … there is no possibility.159

Thus, non-Muslims could only be ‘Turks’ from the point of view of legal citizenship,160 but were excluded from the national community. Due to the negative memories of the past, they were regarded as untrustworthy, ‘foreign’ subjects, and a danger to the state. For instance, the Land Registry Law (Tapu Kanunu) refers to non-Muslims as ‘the foreigners whose existence was recognized by the government of the Turkish Republic’.161 This approach was reaffirmed by the judicial bodies without being questioned. Thus, the Yargıtay referred to nonMuslim minorities as ‘non-Turks’ and ‘foreigners’, and their corporate bodies were seen as a ‘danger’ to the state.162

158  Hamdullah Suphi Bey (also the head of the Türk Ocakları), TBMMZC, 20.04.1924, p. 910. 159  Hamdullah Suphi Bey, TBMMZC, 20.04.1924, p. 909. 160  Hamdi Bozok Bey, TBMM ZC, 20.04.1924, p. 911. 161  Article 3, Law no. 2644, 22.12.1934. 162  Y.H.G.K, E.1971/2-820, K.505, 08.05.1974, also see Y.(2).HD, E.1972/1322, K.1972/2454, 20.04.1972 and Y.(2).HD, E.1970/4449, K.1971/4399, 06.07.1971. Recently Abdulkadir Aksu (MoIA) in his written answer of 01.03.2005 admitted that, until recently, non-Muslim minorities were dealt by the state through the Minority Secondary Commission (Azınlık Tali Komisyonu), established by the Prime Minister with Directive (Talimat) no. 28-4869, 07.11.1962 with a view to ‘controlling the minorities from the country’s security’ point of view. The Commission had members from the National Intelligence Service, the General Staff Office, the MoEA, the MoIA, and the VGM. He also stated that due to the ‘changing and developing conditions of current times’, the name of the Commission was changed to the Commission for Assessment of Minority Problems (Azınlık Sorunların Değerlendirme Kurulu) by Prime Minister’s Order no. 3530, 05.01.2004 after pressure from the EU.

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3.2.1 Economic Turkification through the Law The cultural, social and economic life of the country had not significantly changed even after the population exchange with Greece, since there was still a considerable non-Muslim minority population who held economic power, especially in the main cities.163 The state was determined to reduce their influence over the economy by pursuing a nationalist economic policy and substituting them with Muslim Turks, with a view to creating a loyal, national bourgeoisie.164 Another desired consequence of the economy’s Turkification was to reduce the numbers of nonMuslims in the country,165 since people who could not survive economically would emigrate to other countries. The measures to this end continued until the 1960s, when the number of non-Muslims was reduced to insignificance. In the early years of the Republic, Turkification of the economy was carried out by supporting Turkish Muslims in taking over the finance and banking business, while non-Muslim commercial operators were constantly harassed and threatened with closure by several means, thus undermining their competitiveness.166 Turkification of the economy not only involved transferring capital and ownership of the economy to Turks, but included the Turkification of government employment. The Law on Civil Servants of 1926 introduced ‘to be Turk’ as a condition for being a civil servant,167 and in order to reserve these positions to ‘Turks’, this law required that records be kept of state employees’ religious affiliation and ethnicity (milliyet) as well.168 Greeks and Armenians, ‘citizen Turks’, were explicitly excluded from obtaining such positions.169 Foreigners and non-Muslims were not employed in either the central state bodies or the municipalities until the 1960s.170 The practice also meant that the state refrained from employing non-Turkish Muslims, such as the Kurds, in governmental positions, especially in the Kurdish provinces.171 Even today, the absence of non-Muslims among judges, soldiers, bureaucrats, and so 163  164  165  166  167  168  169 

Tunçay 1989: 198. Aktar 2004: 49–60; also see Aktar 2006: 157–208. Güven 2006: 171. Alexandris 1983: 106–8; also see Aktar 2004: 101–35. Article 4 of Law no. 788, 18.03.1926. See TBMMZC, 15.03.1926, p. 186. Ali Şuuri Bey, TBMMZC, 15.03.1926, pp. 186–7. For a comparison with Ottoman Empire, see Krikorian 1977, who documents the varied positions held by Armenians as state servants including as governors, judges, police officials, mayors, doctors, technicians, and so on. 170  Sakal 2004: 4. Military and police schools imposed being racially Turk as an admission requirement: Yıldız 2004: 283–4. 171  Yıldız 2004: 247. Also Celal Bayar in his infamous secret ‘Şark Raporu’ (East Report), submitted to the Prime Minister’s Office on 10.12.1936, mentioned the existence of a policy ‘not to let the Kurds be involved with state matters and not to allow them to be educated’: Bayramoğlu 2006: 64.

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on, shows that being ethnically Turk and Muslim is still important to the state.172 In this light, the deliberate choice in all the Constitutions for the phrase ‘every Turk’, instead of ‘every Turkish citizen’, as the criterion for eligibility to be a civil servant acquires greater significance.173 In reality, official policies went beyond ‘Turkification of the state bureaucracy’,174 as it was extended to the private sector.175 Private companies were first asked to prepare lists of employees according to their religion;176 the state then signed new agreements (itilafname) with these private companies to secure the replacement of non-Muslim and foreign employees with Turks within six months.177 Subsequently, in October 1923, the Ministry of Public Works (Nafia Vekaleti) warned these companies to take measures to ensure that all employees would be Muslim Turks and to dismiss their non-Muslim workers within the time stipulated in the itilafname, on pain of having their authorization to function in Turkey withdrawn.178 A few months later, the Ministry of Public Works, while providing the TBMM with the number of non-Muslims dismissed from private companies, stated, ‘of course we desire none will be left … At the end of the six-month time limit they will all be fired, because the aim is to place Turkish personnel. This course of action is in the public interest’.179 Consequently, by 1929, most non-Muslim minority and foreign employees of private companies had been replaced with Turks.180 This policy was effected in almost every sector in Turkey, from the media181 to the legal profession.182 Another important facet of economic Turkification was the restriction of some jobs to only Turkish citizens by Law no. 2007,183 which had been announced during the CHP’s congress of 1931.184 This law affected especially the population of non-Turkish Greek citizens of Istanbul who had remained due to the 1930 Convention on Establishment, Commerce and Navigation. Following the enactment of Law no. 2007, many of them left Turkey.185 While initially targeting 172  Oran 2004: 88–9, fn. 65. 173  See for use of this phrase, article 92 of the 1924 Constitution, article 58 of the

1961 Constitution, and article 70 of the 1982 Constitution. 174  Yıldız 2004: 282. 175  Bali 2005: 206. 176  Sakal 2004: 4–6. 177  Ibid. 5. 178  Alexandris 1983: 111; also see Sakal 2004: 5. 179  TBMM ZC, 06.02.1924, p. 612, also see p. 614. 180  Alexandris 1983: 110. 181  Sakal 2004: 6. 182  Alexandris 1983: 112 183  TBMM ZC, 04.06.1932, pp. 64-68. For a detailed study on this issue see Bali 2005: 206–40. 184  Tunçay 1989: 314. 185  Alexandris 1983: 185, Çağaptay 2005: 70. Greek nationals of Istanbul had been allowed to stay pursuant to article 20 of the Lausanne Treaty, which allowed foreigners

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non-citizen non-Muslims, by the 1980s, a particular provision added to this law introduced a privilege for non-citizen, Turk-race people by exempting them from the restrictions.186 Ultimately, Law no. 2007 was annulled in 2003 by article 35 of Law no. 4817,187 although the same law grants a privileged position to workers who are non-Turkish citizens of Turkish descent (Türk soylu) over other foreigners (article 8(d)). The state also took some extraordinary legal measures that ensured the economic destruction of non-Muslims. One of the most important measures to this end was the Wealth Tax (Varlık Vergisi) Law of 1942,188 which had been part of the state’s economic Turkification policy since the İTC period,189 and was, as the journalist and the CHP deputy Nadir Nadi stated, aimed at ‘freeing the market from the control of minorities and opening it up to Turks’.190 The economic situation was worsening in the 1940s because of the Second World War: there were constant price rises, black market dealing and stockpiling, all of which were blamed on the non-Muslims. Jewish traders were singled out by the media as well as the government as the most blameworthy.191 Thus, the government justified the Wealth Tax Law as a measure to alleviate the economic strain of war, as it would enable collection of money from farmers with larger holdings, as well as estate owners, and war-profiteering merchants, who had to bear the heaviest tax burden on the ground that they had benefited the most.192 The Wealth Tax Law was passed by the TBMM unanimously in 1942. The ‘confiscatory and punitive’, and anti non-Muslim minority, character of this law was obvious even on paper. For instance, it required commercial operators and property owners, who were mostly non-Muslims, to pay a tax of not less than 50 per cent and not more than 75 per cent on their net profits in 1941; this extended to taxing even already liquidated businesses. Meanwhile, the tax liability of the big farmers, who were mostly Muslim-Turks, was not to exceed 5 per cent of their wealth. The tax was imposed by newly established commissions and their decisions were final and could not be challenged either by legal or administrative means, unless there was duplication. to remain in Turkey for seven years. Their stay was later extended in 1930 by the 1930 convention signed between Greece and Turkey. 186  Law no. 2527, 25.09.1981. 187  Law no. 4817, 27.01.2003. 188  Law no. 4305, 11.11.1942. For detailed work on this, see Koçak 2007b: 475–518. 189  Koçak 2007b: 514–15. Such a tax had been contemplated by the İTC and passed through the MM under the name of ‘War Profits Tax’ (Harp Kazançları Vergisi), but could not be implemented during their regime. For the parliamentary discussion on this law, see MM, 25.03.1918, pp. 346–415; also see Toprak 1982: 294–303. 190  Cited in Koçak 2007b: 509. 191  Bali 2005: 427–37; Aktar 2004: 143. President İnönü accused them of ‘insolently committing arson against national life’, and then assured that there were ‘ways to correct their obvious damage against the homeland’ (TBMMZC, 01.11.1942, pp. 4–8). 192  TBMMZC, 11.11.1942, pp. 18–21.

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Application of the law made its discriminatory and anti-Semitic193 aspects more evident. Taxpayers were categorized under four headings: Muslims, nonMuslims, Jewish-origin Muslims (dönme) and foreigners. Muslim taxpayers were taxed very lightly, and non-Muslims were taxed ten times more than Muslims of equal wealth. On the other hand, foreigners were treated on a par with Muslims and were taxed lightly due to fears of international pressure.194 It became impossible for a non-Muslim to be recognized as a ‘Turk’ because, in deciding the category of a person, ethnicity and religion derived from the family records were taken into account. Furthermore, dönme people were obliged to pay twice as much as Muslims, while the Jews from the Axis countries were taxed under the nonMuslim category, but not as foreigners.195 The anti-non-Muslim nature of this tax was reconfirmed with the extension of the tax on non-Muslim small traders and those in the private service sector who could not be linked to extraordinary war profits.196 The imposed taxes were very high, and in some cases higher than a person’s entire wealth. Many non-Muslims therefore had to sell everything to be able to pay the tax. Moreover, since the tax had to be paid in cash and on a short notice of 15 days,197 many tax payers had to sell their possessions for very low prices. While non-Muslims who failed to pay the tax within a month were sent to the Aşkale/Erzurum workcamp to do manual labour (article 12) until they paid their debt, this practice was not applied to Muslim Turkish taxpayers at all.198 Due to the heavy injustices created by this law, the Wealth Tax Law was gradually revoked. First, the debts of low-wage earners and artisans were cancelled by Law no. 4501 on 17 September 1943 and, five months later, Law no. 4530 released the defaulters from their forced labour and wrote off amounts of taxes still unpaid on 15 March 1944. However, in its short period of application, the Wealth Tax Law achieved its aim of Turkification of the economy. Many nonMuslim businesspeople never managed to recover financially and were replaced by Turkish Muslims.199 Faik Ökte, who was a principal executor of the Wealth Tax Law, describes it as one of ‘the most embarrassing events in the financial history of Turkey’.200 Alexandris describes the tax as ‘nothing less than a small scale bloodless financial massacre’ of non-Muslim minority groups.201 The law was later criticized by a DP deputy Ahmet Hamdi Başar before the TBMM. He described the Wealth Tax as ‘cruel’ and an ‘unequal tax’, aimed ‘to crush economically a section of citizens’ by ‘ill-intentionally treating them discriminatorily’. He admitted that 193  194  195  196  197  198  199  200  201 

Alexandris 1983: 222. Ökte 1987: 57–60, 63–4. Aktar 2004: 174. Ibid.: 173. Koçak 2007b: 485. Ökte 1987: 70–72. Koçak 2007b: 515; Ökte 1987: 91. Ökte 1987: xvil. Alexandris 1983: 220.

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it had profoundly shaken the country’s economy, and promised that such practice would not occur again during the DP government.202 However, the events of 6–7 September 1955 would prove that policies against non-Muslims were shared by all the mainstream political parties. 3.2.2 Turkification of Economy through Extra-Legal Means The harsh treatment of non-Muslims was also very much influenced by the external political climate, including the prevalence of anti-Semitism in 1930s and 1940s, and the anti-Greek feelings of 1950s and 1960s as we examine below. Under this heading, we discuss some instances of the state-driven arbitrary treatment of nonMuslims, which was aimed to eject them from the economic life of the country through the use of physical force. The Thrace Incidents of 1934 The Thrace incidents started on 21 June 1934 in the district of Çanakkale, and rapidly spread to all of Eastern Thrace within a few days. The incidents began with anonymous threatening letters and a boycott of Jewish businesses, followed by physical assaults. In Kırklareli, the attacks escalated into a pogrom during the night of 3–4 July; the homes of Jewish inhabitants were raided, and their properties looted.203 As a result, thousands of Jews fled to Istanbul. Despite complaints from Jewish residents, the local security forces did not intervene to stop these events. The Turkish government reacted to the incidents several days later, when the exodus of Jews was reported in The Times newspaper on 4 July 1934;204 the military was then sent to suppress the riot, while Prime Minister İnönü promised to bring the perpetrators to trial. Aktar attributes total responsibility for this incident to the Turkish government and the CHP’s local functionaries.205 However, the officials simply blamed the influence of some pro-German magazines’ anti-Semitic propaganda, and the subsequent official investigation did not attribute responsibility for the incident to any state officials, although some local tribal leaders suspected of being involved were sentenced to short-term imprisonment.206 The government neither compensated the Jews nor acted to ensure the return of the displaced to their homes.207 The explanations for the Thrace incidents of 1934 vary from security,208 the effects of anti-Semitism, and the Turkification of Jews,209 to the need to find a 202  203  204  205  206  207  208  209 

TBMMZC, 31.05.1950, p. 75. Bayraktar 2006: 95. Aktar 2004: 79. Ibid. Bali 2008: 261–2. Ibid.: 262. Çağaptay 2005: 47; Alexandris 1983: 183. Bali 2008: 357–74.

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place for settlement of an expected 400,000 Turkish immigrants.210 In addition, the state’s policy of economic Turkification needs particular attention, especially with reference to the reports of the Thrace Inspector General (Umumi Müfettiş, UM).211 For instance, one of the highest state representative’s views on the Jews and their economic activities at the time of the events, as expressed in the Thrace-UM’s first report of 10 July 1934, are striking.212 He alleged that the Jews ruled over the region’s economy, and claimed that ‘In Thrace it is necessary and of crucial importance for Turkish life, the Turkish economy, Turkish security, the Turkish regime and the revolution to abolish Jewry, which represents a hidden danger.’213 A section of the report, titled ‘The Jewish problem in Thrace’, blamed the Jews for ‘the huge economic losses caused by corrupt officials acting on behalf of Jews’. He advised the government to ‘pass over all essential sources of profit and income with well-devised … measures into the hands of the true Turkish population … and to free all Thracian economic sectors from the influence of the Jews’.214 The Thrace-UM’s interest in the policy of economic Turkification in Thrace continued in later reports, where non-Muslims were described as the main obstacle to the region’s economic development.215 The reports asked the government to act to save local people from these ‘blood-sucker Jewish moneylenders’,216 and advised the state to take economic action in favour of ‘Turks’ by providing financial support from various state banks at the expense of the Jewish minority’s economic activities.217 The usage of the words ‘non-Turkish’, ‘foreign society’, ‘ill-intention’, ‘blood-sucker’, and ‘moneylender’ are indicative of the Turkish authorities’ official view of non-Muslim minorities. Koçak asserts that the language used in these reports cannot be attributable to the Thrace-UM governor’s individual views, but considers them as part of the general, central policy especially when similar language in other reports is taken into account.218 The sensitivities of the UM regarding Thrace’s religious and ethnic minorities is significant, and reveals the government’s agenda as well as the general policy on minorities during that period – that is, ‘Turkification’ to be pursued via all state organs. The Events of 6–7 September 1955 Although the events of 6–7 September 1955 were intended to threaten and terrorize Istanbul’s Greek community in particular, they can be seen as another facet of the 210  Koçak 2003: 139. 211  The Thrace-UM began operating on 19.02.1934, only a few months before these

events.

212  213  214  215  216  217  218 

Bayraktar 2006: fn. 43. Ibid.: 104. Ibid. Koçak 2003: 140, 141. Ibid.: 141. Ibid.: 143–4. Ibid.: 141, 144.

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economic Turkification policy. They also reveal that despite the transfer from a single state-party regime to a multi-party regime, the nature of state policy towards minorities retained its previous character. The events were organized and planned by the DP leadership who were elected in 1950. Rising antagonism towards the Greek minority, because of the Cyprus issue, was used as a pretext to trigger off these events by the Committee for the Defence of Turkish Rights in Cyprus and the nationalist Turkish media. Prime Minister Menderes remarked that ‘if the Greeks dare touch our brethren, then there are plenty of Greeks in Istanbul to retaliate upon.’219 His statement followed a rumour circulated by a newspaper alleging that Greek Cypriots were preparing to attack the Turkish community in Cyprus. However, the actual events began following news on state radio on 6 September 1955, which later appeared in the afternoon edition of Istanbul Express, with a photo of Atatürk’s damaged house in Thessaloniki.220 This unconfirmed news led to demonstrations organized by the Committee for the Defence of Turkish Rights in Cyprus, in Istanbul, Izmir, Ankara, Adana, Bursa and Eskişehir, which later turned into attacks on non-Muslims. In Istanbul, many attackers had been brought from surrounding cities and awaited on Thessaloniki’s outskirts before the announcement of the attack on Atatürk’s birthplace.221 Throughout the events, state security forces did not act to stop the violence. Demonstrations, especially in Istanbul, turned into widespread disturbances and it was mainly the houses and businesses of Greeks that were looted and destroyed, although Jews and Armenians were also affected;222 this revealed that the riots were not simply a nationalist eruption but a movement against non-Muslim minorities.223 According to official figures, 5,317 places were attacked,224 eleven people died,225 the number of injured ranged from 300 to 600,226 and many non-Muslim women were raped.227 Following these events, the government blamed communist agitators as responsible for the riot and some were arrested.228 Turkish newspapers also 219  Hürriyet, 28.08.1955, cited in Alexandris 1983: 256. For a similar remark by Menderes’ successor, Suat Hayri Ürgüplü on 16.10.1965, see Alexandris 1983: 289. 220  Güven 2006: 25. In fact, there was an explosion, but no damage. The student blamed by the Greek government as being responsible for the explosion fled to Turkey by being driven across the border in the Turkish consul’s official car: Alexandris 1983: 256–7, fn. 2. The person who was charged and convicted for bombing Atatürk’s birth house in Thessaloniki later escaped to Turkey. He was found not guilty of these charges in Turkey, obtained Turkish citizenship, and later worked as vice-director of the security forces and Governor of Nevsehir: Can Dündar, Milliyet, 07.09.2002. 221  Güven 2006: 26–43, 74–92. 222  Alexandris 1983: 257. 223  Güven 2006: 173. 224  Ibid.: 48. 225  Ibid.: 54, Helsinki Watch’s figure was 15. 226  Güven 2006: 54. 227  Ibid.: 54–5. The number of women raped is given as 200 in Alexandris 1983: 258. 228  See Dosdoğru 1993.

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backed this assumption by blaming the incident on socio-economic tensions in society.229 The investigation that began during the DP regime did not bring the real perpetrators to justice.230 The case reopened following the 12 March 1960 military takeover during the Yassıada trials of the DP leaders in 1960–61. Menderes, Bayar, Zorlu, Hadimli and seven others were charged with direct responsibility for these events. Although the prosecution alleged that the accused were responsible for the explosion at Atatürk’s birthplace, which had provoked the riots, this charge was later dropped since the prosecutor could not produce concrete evidence.231 Many witnesses gave evidence during the trial to the effect that the security forces had watched the rioters’ attacks and done nothing to intervene or stop them. A member of the Istanbul police testified that he had been ordered not to intervene by a superior officer.232 Fuat Köprülü’s233 witness statement, read by the chairman of the court, stated, ‘The 6–7 September Incidents were inspired by [the Minister of Foreign Affairs, Fatin Rüştü] Zorlu and organized by the government.’234 However, when he too was later accused, he changed his testimony twice, first stating that the events must have been organized by the communists,235 but later blaming the government for not taking the steps necessary to lower tensions before the events and punishing those responsible.236 The involvement of the DP government and party, together with secret organizations, was documented during the hearing, but responsibility was attributed to Prime Minister Adnan Menderes, Bayar and Zorlu without the investigation going much further. Ultimately, the court upheld the view that Menderes’ government had organized the demonstrations and attacks which had been considered as anti-government agitation, in order to press the Turkish cause in Cyprus.237 At the end of the trial, the defendants were convicted for causing damage to property (nasi izrar) under article 517 of the annulled Turkish Penal Code (Türk Ceza Kanunu, TCK), the aggravated form of the offence, since the incidents were considered as amounting to a use of force against the government.238 Interestingly, in this case, the court did not apply article 312 of the TCK, which punishes inciting hatred against a segment of the populace. 229  230  231  232  233  234 

Alexandris 1983: 258–60. Güven 2006: 69–98. Alexandris 1983: 263. Naskali 2007: 258. Minister of External Affairs at the time of the incidents. Naskali 2007: 88–90. Alexandris 1983: 26 states that Fuat Köprülü alleged that the idea was originally suggested by Allen Dulles, head of the US Central Intelligence Agency, who was in Istanbul at the time attending a criminology congress. 235  Naskali 2007: 88–90. 236  Ibid.: 301–2. 237  Alexandris 1983: 266. Namık Gedik, Minister of Internal Affairs, said, ‘we knew [6–7 September] would happen, but we did not expect it to be that big.’ 238  Naskali 2007: 720.

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Following the 6–7 September events, many non-Muslims emigrated from Turkey, despite the government’s administrative obstacles which prevented capital transfers.239 The ongoing Cyprus issue would give Turkey a chance for the final blow against the Greek minority in Turkey in the 1960s. This time, the actor was the new regime which had, a few years previously, tried and found the Menderes government responsible for the 6–7 September attacks. On 16 March 1964, Turkey unilaterally denounced the 1930 Convention on Establishment, Commerce and Navigation, which permitted work and residence to Greek citizens in Turkey. On 24 March 1964, the list of the first Greek citizen deportees was announced in the Turkish media and, on 29 March 1964, the first group left Istanbul,240 with very little money and few belongings. They were forced to sign papers admitting that they were involved in illegal economic and political activities and that they were leaving the country voluntarily.241 The Turkish authorities invoked the danger posed by Greek citizens to Turkey’s internal and external security as justification for the deportations. However, given that among the deportees were some ‘highly respected individuals, and also consisted of eight paralytics, three blind persons, one deaf-mute, two crippled persons, four insane, and nine patients stricken with incurable illness’, it was obvious that the state’s real intention lay beyond the excuse of security.242 The number of non-Muslim minorities subsequently dropped to insignificant figures in Turkey, a cumulative result of recurrent targeting. The aim of economic Turkification had been realized and, in the coming years, non-Muslims would not experience events of this sort. However, similar types of attacks, with more tragic human casualties, would be carried out against the non-Sunni Muslim Alevis in K. Maraş, Çorum, Sivas, and so on, from the 1970s to the 1990s. 3.3 Assimilation and Turkification Policies While the non-Muslim minorities in Turkey were targets of expulsion, the Muslim minorities, notably the Kurds, became subject to assimilation. In pursuing their nationalist, secular, modernist, westernizing project, the leadership cadre of the Independence War aimed to reshape conventional Kurdish social structures, which the leadership regarded as religious, backward and uncivilized. Casting the Kurdish culture in this way allowed them to justify their assimilationist agenda and their intolerance of all signs of non-Turkishness. One can argue that the Kemalists’ secularist, modernist and westernizing ideals have also had serious effects on the Turkish ethnie as well as others. However, this ideal would not mean the attempted 239  Güven 2006: 173, 175–7. 240  Alexandris 1983: 281, and for a detailed work on this event, see Akar and Demir

2004.

241  Akar and Demir 2004: 45. 242  Alexandris 1983: 282, fn. 11.

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destruction of their ethno-cultural and religious identity, since it was promoted and protected by the state. Moreover, the Turkish ethnie, which was seen as overlapping with the Turkish nation, were considered as the only group in the country privileged enough to be visible in the public sphere as the bearer of group rights. Prime Minister İnönü’s remark affirms this view: ‘In this country only the Turkish nation has right to demand ethnic and racial rights.’243 This remark is also important for its reference to the Turkish nation as a racial/ethnic group. Signs that the idea of İttihad-ı İslam and the relatively pluralist political discourse were about to be abandoned began to appear just before the signing of the Lausanne Treaty. However, the Turkification of the non-Turkish Muslim population as viable policy was officially declared following the Şeyh Sait Rebellion of 1925. For instance, Prime Minister İnönü’s speech to the Turkish Hearths (Türk Ocakları, TO) representatives clearly indicates this new policy: Benefiting of greeting you with the heart of a [Turkish] Hearth member, I wish to tell you a few things. We do not fear speaking out either abroad or in this land anymore. Nationality (milliyet) [244] is the only means of intersection (vasita-ı iltisak). The other elements do not have an effect over and against the Turkish majority. Our duty is to make those who are in the Turk’s homeland Turk by all manner of means. We will cut off those elements who oppose Turks and Turkists. Above all, the quality we will look for in the person who will serve the homeland is that he should be Turk and Turkist.245

The importance of this speech comes from the fact that the TO was very much trusted by the nationalist cadre. For instance, M. Kemal attributed to the TO a significant role in the formation of the new Turkish state,246 and he later specified its duty as being to make those who did not speak Turkish ‘real Turks who speak our language’.247 In Inönü’s view, the ‘ideal of Turkish nationalism would be realized by Türk Ocağı.’248 Most of the TO’s delegates were either TBMM deputies or state officers; moreover, the TO acted under the auspices of, and was economically supported by, the state249 and, in fact, was later incorporated into the state in 1931.250 The requirement of assimilating non-Turkish groups into Turkishness was openly proclaimed by the TO. 243  Milliyet, 31.08.1930. 244  There is a problem of translation here. Dictionaries translate the word ‘milliyet’

as nationality but here milliyet does not mean legal citizenship status but a person’s membership of a national group regardless of formal citizenship ties. 245  Vakit 27.04.1925, cited in Üstel 2004: 173. 246  Üstel 2004: 149. 247  Ibid.: 366. 248  Ibid.: 231. 249  Ibid.: 140, 232, 236. 250  Ibid.: 382.

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The assimilation (temsil) of various elements was one of the main concerns of the TO Congresses of 1926–28. In the 1926 Congress, the main emphasis was on the assimilation of the non-Turkish speaking population of the eastern part of country – that is, the Kurds251 – but assimilation was not to be limited to the Kurds. The state was supposed to take measures against non-Turkish elements in the western part of Turkey as well.252 Thus, delegates were disturbed by the visibility of the ethnically, religiously, culturally and linguistically diverse groups which they found unacceptable, since the groups undermined the delegates’ ideal of unity. Further, they were uneasy about the fact that these diverse groups lived as distinct communities with their traditional clothes and distinct languages; the state had to take measures to put an end to this.253 Meanwhile, the denial of the Kurds as a distinct people was defended particularly by undermining the originality of the Kurdish language, something which was later adopted by the state and judiciary as its official ideology. One delegate, İshak Refet Bey, claimed that the ‘Turkification of Kurds’ would not pose difficulties: Kurds do not have a history. The history of Kurds is mixed with the Turks’ history. There is the Kurdish language. Today, the Kurdish language consists of 8,000 words. 3,000 of these are Turkish. 2,000 are Arabic, which later became Kurdish (Kürtçeleşmiş). Of the remaining words, 2,500 are new and old Farsi. Gentlemen, up to 300 words are Kurdish … this language does not have verbs … What is the importance of assimilating Kurds since they do not have a language, history, or tradition (anane), except gross violence. Kurds can be assimilated easily if we work at it.254

However, such denials were not confined to the Kurds. The TO Congress of 1927 officially declared that ‘there is no separate Laz nation, which has a widespread language and literature.’255 The scope of the assimilation project was becoming clearer by the convening of the TO Congress of 1928. The assimilation policy contemplated for the Kurds was ‘Turkification’ (Türkleştirme),256 but for other Muslim elements, it meant ‘strengthening their Turkishness’ by preventing their speaking different dialects and wearing different clothing.257 Furthermore, one suggestion was that further Kurdification of Turks in the east should be prevented

251  252  253  254 

Ibid.: 194–5. Ibid.: 197. Ibid.: 199. Ibid.: 202. For similar view of the Kurdish language, see the president of Higher Education Committee, Yusuf Ziya Özcan’s remarks, Radikal, 12.10.2009. 255  Üstel 2004: 241. 256  Ibid.: 291, 293. 257  Ibid.: 291, 301.

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by increasing the Turkish population via a settlement policy;258 this later became law in 1934. The state’s general assimilation policy in the case of Kurds through language, education, and so on, had a ‘forceful and excluding character (ethnicism)’,259 and involved ‘unsystematic physical elimination’,260 because of the state’s emphasis on security on account of the Kurdish resistance. Thus, in the Kurdish case, assimilation was enforced through military means, forced resettlement, extraordinary laws, special administrative regimes and judicial methods, as well as a ban on the Kurdish language and culture. Forced assimilation also had a ‘civilizing’ mission. Thus, ‘civilizing and assimilation’ was expressed together in many laws. We examine here particularly those laws aimed at realizing the forced assimilation policy in the case of Kurdish people. The Şark Islahat Raporu (Report on Reforms in the East) 261 of 1925 was prepared by the highest-ranking statesmen soon after the military suppression of the Şeyh Sait rebellion. It revealed that the core state policy would be based on the ‘Turkification and assimilation’ of Kurds. This was echoed in the First-UM’s reports to the Prime Minister’s Office, which blatantly suggested ‘assimilation’ (temsil) as the method to be applied in Kurdish-populated areas.262 The assimilation policy was also explicitly defended by the state through legal means. An important law in this sense, already discussed, was the Surname Law (Soy Adı Kanunu) of 1934 (see 3.1.1). A speech by Minister of Internal Affairs Şükrü Kaya revealed that the real aim of the law was to assimilate various ethnic groups into Turkishness, by erasing signs of the plural character of the society. Kaya stated: One of the highest duties of a country is to annex (ilhak etmek) and assimilate (temsil etmek) all residents within it into its own society (bravo noises). We have experienced the opposite and the country fell into pieces. If the Ottomans had converted the residents (ahali) of those places into their language and religion wherever they went, as happened in the early years, the borders of Turkey would still have started from Tuna … It is our debt to bring those who are resident here and within our society into Turkish society’s civilization and to ensure that they benefit from the enlightenment (feyz) of civilization. Why should we still say Kurd Memet, Çerkeş Hasan, Lâz Ali. Above all, this shows the dominant element’s weakness. Whereas the Turkish element has assimilated [the others] the most (Halbuki Türk unsuru en çok temsil eden bir unsurdur). It is not correct

258  259  260  261 

Ibid.: 307. Yıldız 2004: 259. Ibid.: 262. Prepared by the Minister of Interior, Cemil Ubaydin, Minister of Justice, Mahmut Esat Bozkurt, Speaker of TBMM, Mustafa Abdulhalik Renda, and General Kazim Orbay: see Bayrak 1993: 452–67. 262  Koçak 2003: 100–101. For other reports of a similar nature, see ibid.: 255–7.

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to let these differences be. If somebody has a very little feeling of being different, let us erase this in schools and society. Then those men will be as Turk as I and will serve the country.263

Assimilation involved propagandizing to the Kurds that, in fact, they were originally Turks. Especially in Dersim, which is mainly populated by an Alevi/ Kurdish population, the Turkification policy was premised on reminding these people of their Turkishness.264 In a speech to the TBMM, one of the most prominent commanders of the Independence War, Kazım Karabekir, revealed that such a policy went back to the Independence War period, as he himself was propagandizing to the Kurds that they were in fact Turks.265 While referring to the people of Dersim as ‘pure Turk’ (öz Türk), he said that they had become Kurd (Kürtleşmek) over time in order to benefit from the Kurds’ traditional privileges of not providing soldiers to the state. They needed to be reminded of their ‘Hittitian roots’ and their Turkishness, and had to be assimilated by various means, further suggesting that the Kurds in other areas should also be implanted with the idea that they are ‘old Turks’. The argument that ‘Kurds were Turks who had forgotten their “Turkishness”’ became part of the Turkish state’s official discourse,266 and, as we will see in Chapter 6, was even blatantly defended as a ‘scientific fact’ by Turkish judicial bodies up until the 1990s. 3.3.1 Turkification by Resettlement The assimilation policy involved resettlement, which was contemplated as a security measure against the Kurdish nationalists’ anti-government uprisings, but also had undertones of a civilizing mission. For instance, following the Şeyh Sait revolt, the Kurdish rebels and their extended families, as well as some who had nothing to do with the uprising, were relocated to western provinces on security grounds under Law no. 1097.267 The state later allowed the return of only those who ‘actually did not have anything to do with the rebellion’.268 In its explanatory note, resettlement of these Kurds was justified on grounds of the ‘state’s general policy to civilize’ (temdin). The link between state resettlement policies and its ‘civilizing and assimilation’ mission was not new. For instance, the explanatory note to the Settlement Law of 1926 justified the forced resettlement of nomadic tribes, gathering dispersed villagers in central villages, deporting non-citizen Roma, and so on, on grounds of ensuring the ‘unity (vahdet) of people in the view of the racial (ırki) and cultural 263  264  265  266  267  268 

TBMMZC, 21.06.1934, p. 249. TBMMZC, 25.12.1935, p. 175. TBMMZC, 07.07.1939, p. 178. Zeydanlıoğlu 2008: 9. TBMMZC, 18.06.1927, pp. 153–9. Law no. 1178, see TBMMZC, 06.12.1927.

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(hars)’ as well as ‘civilizational (medeni) necessities’, besides reasons of security and economy.269 Later, the explanatory note to the Settlement Law of 1934 270 referred to the ‘Turks’ power to develop and assimilate’ (inkişaf and temsil kudreti), and criticized the Ottoman Empire for not achieving this by granting the Muslim nonTurks privileges and permitting the traditional social structures of these groups.271 The same explanatory note rejected the ideals of Ottomanism and Ittihad-ı anasır because of their failure to assure assimilation into Turkishness by fostering the differences of each community and protecting the diversity of various elements. The note thus provided a view of how the new nation-state was to relate to its people. Its aims were stated as being to ‘protect, strengthen and homogenize (mütecanisleştirmek) the national structure (millî bünye)’, to ensure people’s adaptability to the national culture (millî hars) and contemporary civilization (muasır medeniyete), and to enhance the Turkish population (Türk nüfusu) in quantity and quality.272 While ‘civilization and assimilation’ (temdin ve temsil) were stated as components of the domestic settlement polices in the explanatory note, it also mentioned the necessity of preventing concentrations of non-Turkish elements in certain areas. Meanwhile, the external aspect of the settlement policies was stated as admitting muhacirs (Turkish Muslim immigrants). Hence, with the Settlement Law of 1934, ‘assimilation’ of non-Turks legally became an official state policy.273 The Settlement Law vested power in the government to reshape the demography of Turkey in accordance with the conformity/loyalty of people to Turkish culture (article 1).274 The aim was to destroy the community life of non-Turkish people and assure their assimilation into Turkishness by their forced settlement in areas 269  TBMMZC, 30.05.1926, pp. 649–52. Also see for the ‘civilization and assimilation’ mission of the settlement policies, Şükrü Kaya, TBMMZC, 19.05.1930, p. 139. 270  TBMMZC, 07.06.1934. 271  For similar criticism, see discussions on the Tunceli Law of 1935, TBMMZC, 25.12.1935, pp. 175–81, where the Minister of Internal Affairs complained about conventional governance in the Dersim region by the local notables since the region had come under the rule of the Ottomans in the sixteenth century. He referred to the social structure as ‘mediaeval’ and complained about continuing self-rule in the region where ‘personal, civil and even criminal law matters were solved among themselves’, impeding the application in the region of the new state’s laws, which offered ‘civilized methods’, and aimed to enable people to benefit from ‘the enlightenment (feyz) of the Republic’. 272  During discussion of the Settlement Law, one deputy asked for more time to examine given its importance from the state’s ‘temsil and temdin policy point of view’ (TBMMZC, 04.06.1934, p. 39). 273  Saatçi 2002: 550. 274  Later, in 1947, this article was criticized by the new government and changed. Accordingly, the new article 1, which still aimed to reshape the distribution of the population in accordance with their conformity/loyalty to Turkish culture, was confined to settlement of Turkish race immigrants (muhacir) and refugees, nomads and nomadic Roma.

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of Turkish concentration, which would ensure they ‘rapidly forget their mother tongue and mix with the Turks’.275 The use of the word ‘Turkish race’ (Türk ırkı) was feverishly defended by the government during the debate on this law and it was even decided that the word ‘descent’ (soy) be replaced with the word ‘race’ (ırk) on the ground that the meaning of the two terms is the same.276 To this end, the law divided the country into three areas (article 2). Zone 1 areas were contemplated as those where a population of Turkish culture (tekâsüf) was desired. These areas were prohibited to nomadic people, or aşirets (tribes), or people not bound to Turkish culture, even if they were originally were from these areas (article 12(A)). Only muhacir of Turkish culture, Turkish race people, and people who were racially Turk but did not speak Turkish, were allowed to be settled there (article 12 (B, C, D, E)). Zone 2 areas were designated for the transfer and settlement of those who had to be ‘assimilated’ into Turkishness. In order to secure the rapid assimilation of these non-Turkish people and non-Turkish speakers, they were to be thinly resettled in different villages, districts, towns and cities in such a way as to ensure that they would not create a group, establish a village or district, or monopolize an occupation for their own race (articles 11(A) and 13(3)).277 The law prohibited those resettled from leaving or changing their new areas of settlement without a decision from the Cabinet. Zone 3 was constituted of those areas designated for evacuation and prohibited for settlement on grounds of health, economy, culture, politics, and military and security reasons. These were remote Kurdish areas with dispersed villages and houses from where the state wished to gather people into suitable centres, or remove them and forbid the building of new settlements (article 8). This article posed a great threat to the indigenous Kurds’ way of life by forcing them to settle in concentrated centres. In reshaping the demographic map of the country, one of the aims of the law was to increase the Turkish population by only allowing the immigration of muhacirs into the country.278 ‘Muhacir’ were those who were nomadic or settled (meskun) Turkish-race people, or those who were inherently bound with Turkish culture. Which immigrants were considered as bound with Turkish culture was to be decided by the Cabinet (article 3). However, the law blatantly favoured ‘Turkish-race’ immigrants over those immigrants ‘bound to Turkish culture’, by allowing the latter to settle only in predetermined areas and requiring them to 275  TBMMZC, 07.06.1934, Beşikçi 1991: 137. 276  TBMMZC, 14.06.1934, pp. 144–5. Draft article 42 used the phrase ‘Turkish

blood’, which was later removed (ibid.: p. 152). 277  The government proposal had foreseen their resettlement family by family, although this was later amended by the Provisional Commission (TMMMZC, 07.06.1934, p. 10). 278  Article 2 of the Settlement Law of 1926 also excluded from immigrating, ‘those who do not belong to the Turkish culture’ and gypsies (TBMMZC, 30.05.1926, pp. 649–52).

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obtain official permission to live there (article 7(B)), while the former were not subjected to such restrictions (article 7(A)). Meanwhile, the law (article 4) prohibited the immigration of non-Turkish culture people, itinerant Roma, and so on. Moreover, the prohibition of such people was also secured through some secret regulations.279 For instance, Beşikçi mentions a circular which prohibited the immigration of, and providing citizenship to, ‘Kurds, Arabs, Albanians and other Muslims who speak a language other than Turkish and without [any] exception to the Christians and Jews’, since these groups were required to be treated as ‘foreigners’.280 Specifically for the Kurds, the assimilation policy aimed at their assimilation into Turkishness and preventing their further Kurdification. Thus, with the Settlement Law of 1934, the traditional Kurdish social structure and an important bearer of the Kurdish identity – the aşiret (clan or kinship system)– was particularly targeted for elimination. This argument was blatantly propagated by the Minister of Internal Affairs during the TBMM discussions on the Surname Law. The aşiret was mirrored as a negative, backward and mediaeval social structure, opposed to contemporary nationhood. However, the state’s main opposition to the aşirets was founded on their role in maintaining difference and the retention of ‘aşiret identities’ as an obstacle to establishing a national identity. Therefore, the aşiret had to be erased at once; ‘for the principle of national unity (vahdet) it is a must.’281 The Settlement Law proclaimed that the law did not recognize the aşiret as a juristic personality (hükmi şahsiyet), and abolished any written decree or documents that may have previously recognized them (article 10(A)). Interestingly, this provision also aimed to abolish the aşiret leadership structures – beylik, ağa and şeyhs – and their organizations as recognized by tradition, custom, or legal documents. Further, registered or unregistered properties previously granted to those aşiret leaders or şeyhs due to their juristic personality under those laws were transferred to the state (article 10(B)). Hence, the Kurds’ traditional privileges and rights, that is, their legal status as recognized by the Ottoman Empire, were officially annulled with this law. The Settlement Law also premised resettlement upon a family basis, considering a husband, wife and non-married children as one family unit (article 16 (A), (B)). Married children and grandchildren were left out of the family unit and therefore settled separately (article 16(E)). Evidently, the Turkish legislators 279  Some court judgments refer to ‘top secret’ Guidelines on the Application of Laws Regarding Citizenship (Vatandaşlıkla İlgili Kanunların Uygulanmasına İlişkin Yönerge), Cabinet decision no. 83/7229, 10.10.1983. Although they do not give details about their contents, article 19 of the Guidelines arbitrarily prohibits obtaining Turkish citizenship for those foreigners who are not descendants of the Turkish ethnie, are not bound to Turkish culture, and wish to reside or to have contact with ‘special provinces’. See for this, Dan. (10).D, E.2003/2636, K.2006/5764, 17.10.2006. 280  Beşikçi 1991: 148–9. 281  TBMMZC, 21.06.1934, p. 246.

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were quite aware of the sociological characteristics of Kurdish families, which were composed of extended families. As Beşikçi rightly stated, the state aimed to destroy the Kurdish family structure in order to ensure their rapid assimilation.282 On the other hand, the Settlement Law was particularly concerned with preserving the Turkish ethnie’s community life and identity. It thus ordered that Turkish immigrants and refugees had to be settled where their relatives and kinsmen lived (article 16(G)). This provision once more blatantly revealed the discriminatory policy of the state at the expense of non-Turkish minorities. According to parliamentary discussions, the Settlement Law was widely applied in Dersim and in other Kurdish areas.283 In 1947, some of the articles of the law were annulled, because of increasing discontent about its anti-democratic nature and ethnicist emphasis.284 Even, some Yargıtay judges criticized this law, stating its ‘prime aim’ as being ‘to transfer those people who are not Turk concentrated in the eastern cities (şark vilayetleri), dispersing them into areas which are full with Turkish race (Türk ırkı)’ and ‘to concentrate Turkish culture in some determined (muayyen) areas for political considerations’.285 Another law also bearing marks of the ‘civilizing’ mission, and providing legal justification to the government policy on the resettlement of Kurds in the western areas, was the Law on Feud Killing (Kan Gütme Kanunu),286 which was contemplated for application in those few areas where this ‘illness’ existed. In the case of feud killing, it required compulsory resettlement of those living in the same household (article 1), including the parents, children, siblings and partner of the perpetrators. There was discretion to resettle the perpetrators’ uncles, aunts and in-laws by second degree, and so on, living in the same area (article 2). The place of resettlement had to be at least 500 km away from the existing place of residence (article 6). Further, judicial bodies could make orders to exile individuals in cases where there was the serious possibility of feud killing (article 5).287 Apparently, this law was widely used until 1950s. Upon the election victory of the DP in 1950, some voices were raised against this law in the TBMM. It was criticized by some deputies because of its anti-democratic, unfair, inhuman nature, and for collective punishment and the unnecessary restrictions upon civic and human rights of people.288 Its repeal was therefore demanded.289 It was also revealed that execution 282  Beşikçi 1991: 125, fn. 41. 283  Necmettin Sahir Silan, deputy for Tunceli, TBMMZC, 18.06.1947, p. 407. 284  Specifically, articles 2, 7 (A), (B), 8, 10 (C), (Ç), 11, 12, 13, 14 (TBMM TD,

18.06.1947). 285  YİBGK, E.1944/23, K.1945/5, 28.02.1945. 286  Law no. 3236, 11.06.1937, which was inspired by a Decree (Kararname) of 1908, which had been enacted to stop feud killings in Albania by exiling one of the feuding families: Ünsal 2006: 39–40. 287  TBMMZC, 11.06.1937, p. 210. 288  TBMMZC, 25.06.1952, pp. 481–92, TBMMZC, 28.04.1952, pp. 518–28, TBMMZC, 09.05.1952, pp. 128–38. 289  TBMMZC, 25.04.1952, p. 482.

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of the law had deprived the resettled people from enjoying rights to their property and exposed them to economic difficulties in their new place of residence, because they were forced into exile without being allowed to sell their properties, and were absolutely prevented from returning.290 The law was defended by the Ministry of Justice (MoJ) (Adalet Bakanlığı),291 however, on the grounds that its application was limited mostly to areas populated by Kurds, with only a few exceptions in the Black Sea area. The MoJ also stated that the main concern of the law was ‘security’ and not ‘legality’. The law’s unjust nature was later reaffirmed by the AYM when it found compulsory resettlement of the people under articles 1 and 2 as being incompatible with the principle of ‘individual culpability’ (cezada şahsilik) and freedom of travel and residence. 292 The law was finally annulled in 2007.293 3.3.2 The Inspectorate Generals (Umumi Müfettişlikler) When assessing the assimilation of the Kurds, the role of special administrative structures should also be examined. These structures were justified on grounds of security. The first structures in this sense were the Inspectorate Generals (Umumi Müfettişlikler, UMs). This special structure was not alien to the new Turkish state, since it had first been discussed by Ottoman statesmen, and later reflected in articles 22 and 23 of the 1921 Constitution. However, it would only be realized in 1927 by a law which empowered the government to establish the UMs whenever needed.294 Until the 1950s, the Kurdish provinces were effectively ruled through these special administrative structures in parallel to the state’s ordinary administrative structure. The First-UM was established in the Kurdish provinces of Diyarbakır, Elaziğ, Urfa, Bitlis, Van, Hakkâri, Siirt and Mardin in 1927.295 Although it had a civilian character, its governor’s authority prevailed over all civilian, military and judicial institutions, since it was the highest administrative authority in the region.296 In 1935, with the Tunceli Law,297 another UM (Fourth-UM) was established in this region with authority over Dersim, Elazığ, Erzincan and Bingöl. However, the Fourth-UM had a military character, since it completely left this area’s administration in the hands of the ‘governor-commander’ who was under the authority of the military hierarchy (article 1(1)). Furthermore, almost 290  291  292  293 

Ibid.: p. 485. TBMMZC, 09.05.1952, p. 129. AYM, E.1963/330, K.1964/15, 11.02.1964. Law no. 5637, 26.04.2007. However, in 2009, following a mass killing in Bilge Köyü in Mardin, the resettlement of 58 persons from the perpetrators’ family to Kırklareli province, decided to be the place furthest from their hometown by the state, can be interpreted as the rejuvenation of this law in practice. 294  Law no. 1164, 25.06.1927. 295  Decree no. 5858, 27.11.1927. 296  For details, see Koçak 2003: 72–3. 297  TBMMZC, 25.12.1935, pp. 175–81.

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all administrative positions (article 3(3)), and even the municipality works, were required to be filled by military personnel (article 7). The Fourth-UM’s governor had the authority to transfer or resettle individuals or families from one place to another for security reasons, or he could ban them from residing within the city borders (article 31). The Tunceli Law also imposed a very arbitrary judicial system which was unique to the region and did not conform to the fundamental principles of the Criminal Procedure Law. For instance, trial while on remand was the rule (article 19), a decision to remand could not be challenged (article 21), and release required the governor-commander’s approval. Trials were fast-tracked; an indictment could be prepared within two days (article 17), and referred to the court without being notified to the accused (article 18). An urgent trial was to be finalized in a single hearing (article 24), and at the most within five days (article 25). The courts’ judgments were final and could not be appealed (article 29). More importantly, approval for executing capital punishment was under authority of the FourthUM’s governor (article 33), although in ordinary circumstances it would be under the authority of the TBMM. Interestingly, this law carried personal jurisdiction and only applied to those from this area, even if they committed an offence outside Tunceli province (article 34). Therefore, the law was aimed at more than simply controlling the region, and extended to controlling people of this area – that is, the Kurds. Itself sanctioning a special legal regime, the Tunceli Law was also important for achieving legal uniformity in the country, which meant the amputation of the remnants of legal pluralism. The discussion at the TBMM revealed that the intention behind this law was to change the social and administrative structure of the region, which was referred to as ‘mediaeval’. Minister of Internal Affairs Şükrü Kaya complained about continuing self-rule in the region where ‘personal, civil and even criminal law matters were solved among the people themselves’. This structure was blamed for impeding the application in the region of the new state’s laws, which offered ‘civilized methods’ and aimed to enable people to benefit from ‘the enlightenment (feyz) of the Republic’.298 Thus, while accomplishing the state’s ‘civilizational’ mission, the Tunceli Law ensured the enforcement of new state laws at the expense of the traditional legal structures of the region. The increasing pressure upon the region triggered the so-called Dersim ‘uprising’, which was brutally crushed by the state in October 1938.299 Bruinessen considers the Tunceli Law, the establishment of the Fourth-UM, and the brutal suppression of the Dersim ‘uprising’ as a part of a wider policy of the ‘destruction of the Kurdish identity’.300 After the suppression of the uprising, eastern Turkey

298  TBMMZC,25.12.1935, pp. 175–81. 299  Bruinessen 1994: 141, who compares the indiscriminate brutality to the

Armenian massacre. 300  Ibid.: 147.

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entered a long period of calm until the 1980s, while the Kurds remained aloof towards the Republic and its institutions. Although the Tunceli Law was annulled and the emergency status of the region was lifted in 1946,301 the military regime was prolonged in the region through placing the Fourth-UM under the authority of military command by a law passed on the same day.302 The UMs’ administrations would be ultimately abandoned in 1948, but only lost their legal status in 1952.303 Only afterwards would the reality of these administrative structures come up to light. The UM would be cursed by the deputies encouraged by the relatively more democratic environment of the multi-party system of the 1950s. Diyarbakır deputy, Remzi Bucak, in his law proposal requiring annulment of the UMs, compared this administration to the colonial apparatus of the British Governor-General in India and referred to them as having ‘done nothing more than adding disgusting, horrible and bloody pages to the administrative and political history of [the country]’.304 A month after the abolition of the UMs, another Diyarbakir deputy, Mustafa Ekinci, asked the government to answer a question regarding the countless killings and arbitrary and unlawful activities which took place during the UMs in the region.305 However, no one was made legally or politically accountable for the arbitrary activities under the UMs in the Kurdish region. Their legacy re-emerged in 1983 with the Law on the Establishment of State of Emergency Governorship,306 which had jurisdiction over 13 provinces in those provinces mostly inhabited by Kurds where, again, arbitrary and unlawful practices have been witnessed, and for which Turkey has been found in breach of the European Convention of Human Rights (ECHR) in many cases. Effectively, the areas mostly populated by the Kurdish people have continuously lived under a state of emergency, or similar circumstances, up to the present day. Meanwhile, in 1991, a dual legal system re-emerged in the areas under the state of emergency (Olağanüstü Hal, OHAL) rule, where crimes fell under the jurisdiction of the 301  302  303  304  305 

TBMMTD, 30.12.1946, pp. 826–31. Ibid.: pp.847–48. Law no.5990, 21.11.1952. Attached to TBMMTD, 19.06.1952. Koçak 2003: 287–89. Ekinci specifically asked the government about the kind of measures taken by the government in killings in Diyarbakir in 1937. He asked for the former Prime Minister İsmet Inönü, the Minister of Internal Affairs, Şükrü Kaya, and the Inspector General, Abidin Özmen, to be charged for their criminal responsibilities. The Minister of Justice in his reply admitted the direct responsibility of Şükrü Kaya for this event. 306  Law no. 2935, 25.10.1983. Later, the OHAL Governorship was established by KHK, RG: 19517/14.07.1987. The OHAL Governors’ power was expanded by KHK, RG: 20727/16/12/1990. The governor was only responsible to the cabinet and his power ranged from evacuation of villages, censorship or ban on the press, ban on assemblies, ban on ‘unwanted persons’, decisions on employment of civil servants, control over security forces in the region, decisions on the import of goods into the region, and so on: Alexander, Brenner and Serhat 2008: 19–20, 110–15.

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State Security Court (Devlet Güvenlik Mahkemesi, DGM). A special criminal procedure law for this area was applied by these courts which provided for less due-process protection than a normal Turkish court, since it restricted defendants’ right of access to a lawyer, the minimum detention was twice as long as that for normal investigations, and a military judge sat in the composition of these courts until the 2000s.307 Up to this point, this book has provided an historical account of the legal position of minorities in Turkey. In the following chapters, we examine the current legal situation of minorities where the many continuities between the earlier and later periods and the longer-lasting consequences of the events and legal regimes described here will become visible. As noted in this and previous chapters, nonMuslim minorities were gradually marginalized, persecuted and expelled to the point of near-elimination and their status as an integral components of the nation was placed under extreme doubt. We will find that this discourse and practice comes up again and again, right up to the current period of Turkish legal history. Conversely, Muslim minorities were set apart for assimilation based on a norm of Turkishness. While language became a chief means to effect a change in the identity of the dominated populations, other policies such as brutal suppression, the application of extraordinary legal regimes, and the elimination of customary practices, dress and manners, were all part of the state-led homogenization programmes. As we will see in subsequent chapters, the legacy of these policies and legal regimes remain in Turkey, to a large degree constraining the extent to which a more flexible and pluralistic regime can even be contemplated.

307  On 6 August 1990, the Turkish government derogated from articles 5, 6, 8, 9, 10, 11 and 13 of the ECHR under article 15 of the Convention for those areas under state of emergency.

Chapter 4

The Myth of the Civic State and Turkish Ethnie in Law Hans Kohn’s distinction between two types of nationalism1 – the positive, western-civic nationalism and the negative, eastern-ethno-cultural nationalism – are still very much central in academic and political discussions on minorities, democracy, nationalism and citizenship. However, his dichotomous picture has been challenged by many scholars.2 These writers state that the concept of the nation in civic states is not only based on civic-political criteria, but they have also used ethno-cultural criteria.3 Thus, it is argued, a civic state beyond the influence of ethno-cultural criteria is ‘implausible’,4 since states have not been and cannot be neutral when they are determining ‘which ethnic groups’ language, culture, symbols and anniversaries should be promoted at the state level’.5 Membership of the political community through citizenship in civic states is not ethnically or culturally neutral either. Rather, citizenship is generally premised upon the majority’s culture, language, history, and so on: ‘Only those who share in the public culture of the people who adhere to the “civil religion” of the national state are entitled a share in those rights and duties which constitute citizenship.’6 Hence, the concept of citizenship in most modern civic states, in return for their providing a legal status and political and civic rights, obliges assimilation into the majority’s cultural community and identity. For instance, in France, which evokes the civic state model as inspired by the Jacobin unitarian idea of la nation unie et indivisible, membership to the nation via citizenship required assimilation, which ‘meant the loss of one’s culture and language as the price for becoming part of the French political community’.7 The role of minorities in these formations is either non-existent or, in most cases, is no more than folkloric. 1  See Kohn 1929 and specifically his chapter on ‘Turkish Nationalism’ at pp. 223–65. 2  For critique, see Beissinger 1996, Kymlicka 1996, Kuzio 2002, Yack 1999 and

Smith 2010. 3  Smith 2010 states that ‘despite the evident contrasts between “organic” and “voluntarist” types of nationalist ideology, on the “ethnic” and “civic” conceptions of the nation, there is greater affinity between the policies they inspire than one might have been led to expect.’ 4  Kymlicka 1996: 24 and fn.15 at p. 200. 5  Kuzio 2002: 31. 6  Smith 1995: 97. 7  Kuzio 2002: 28, and for a similar view, see Smith 1995: 97.

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In both civic and ethnic states, culture, language and history are the main components of nation building, which in both cases are derived from the favoured dominant ethnic core. Thus, culture means ‘the cultural heritage of the dominant ethnic core’,8 and history only tells of the ethnic ancestors of the ethnic core,9 while the only language promoted is the language of the majority or the dominant group. As result of this, civic states, as much as ethnic nationalist states, put efforts into creating a homogenous nation,10 whose characteristics, values and identity are determined by reference to the majority group’s language, religion, culture, history and so on. The Turkish state takes the following official standpoint: The State system is based on the principle of constitutional/territorial nationalism. The concept of citizenship is defined in article 66 of the Constitution on the ground of legal bond without any reference to ethnic, linguistic or religious origin. According to this article, ‘everyone bound to the Turkish State through the bond of citizenship is a Turk’. The Constitution does not provide any definition of racial or ethnic connotation for being a ‘Turk’. On the contrary, article 66 depicts a purely legal definition and does not provide for a kinship based on ‘blood’. The term ‘Turk’ is the reflection of the national identity of all citizens in Turkey irrespective of their origins.11

While claiming to be a civic state, based on the principle of equality before the law and citizenship as the tie binding the people of the state, Turkey does not give official recognition to ethnic,12 or to some religious, minorities. It claims that ethno-cultural or religious identities and their expression are regarded as an individual’s choice and are private, but not relevant at state level.13 In this setting, the state asserts that all citizens are accepted only as ‘Turk’, which is an umbrella legal status, and does not refer to membership of an ethnic group.14 This state of mind assumes that obtaining a document of Turkish citizenship is sufficient on its own as being protection against discrimination.15 However, to what extent can the Turkish state be considered as a neutral civic state? An examination of successive Turkish Constitutions shows that nationality 8  Smith 1993: 68. 9  Kuzio 2002: 32 cites Recommendation 1283 (22.01.1996), document 7446, of the

Council of Europe’s Committee on Cultural Education. This recommendation recognises that ‘virtually all political systems have used history for their own ends and have imposed their version of historical facts and their defence of good and bad figures of history.’ 10  Little 1995. 11  Turkey Report (2007) to the CERD, para. 17. The same argument has persistently been used in the pro-Kurdish political party closure judgments by the AYM: see Chapter 5. 12  ECRI, report on Turkey (2001), para. 53. 13  Ibid. 14  Virtanen 2003: 22. 15  Ayşe Kadıoğlu, Radikal, 30.12.2007.

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has been equated with citizenship, through which individual rights and freedoms are protected. However, are these enough to demonstrate that Turkey is a neutral civic state? In fact, along with many other writers, I argue that this is not the case. Not only is it artificial to distinguish between a civic state and an ethnic state but, as we will see, the legal and political discourse shows that the concepts of nation and citizenship in Turkey are strongly associated with the particularity of the Turkish ethnie, without reference to diversity in the country.16 In this chapter, we examine how Turkish legislation has defined the citizen and the nation, and evaluate how inclusive that legislation has been. To what extent have Turkish ethno-nationalist tendencies been adopted in the legislation and to what extent has the legislation reflected diversity and accommodated minorities? But before answering these questions, we first answer the question, ‘Who is a “Turk” according to Turkish law?’, and furthermore, what is the relevance of the concept of Turkish race (ırk/soy) in Turkish law? In answering these questions, we examine not only the currently valid Constitution and legislation but, for a properly historicized perspective, also trace their historical antecedents. Here it will already be evident that Turkish Constitutional law finds itself trapped in a contradiction between the claimed universality of its citizenship concept and the ethnicized and racialized manner of its actual conceptualization (4.1). This is further tracked (in 4.2), and a number of laws and the mission of Turkish official institutions are interrogated, with a view to establishing how far they also promote an ethnicized concept of Turkishness, by reference to the Turks’ culture, language, history, and so on. We then go on to examine (in 4.3) perhaps the most poignant case of privileging people of Turkish race (Türk soylu), by the status which is granted to this group in various domestic contexts as well as in their favoured status in laws. One of the most contested and exclusionary domains in the Turkish legal system is the sphere of language and we examine (in 4.4) how the dominance of the Turkish language and the underwriting of this position in law occurs in the various spheres of education, broadcasting, and in public and political life. Finally, we examine (in 4.5) how limited concessions must be made on a de facto basis in different official sites and particularly in courtroom situations, where state officialdom must reckon with Turkey’s diverse social realities and occasionally, though reluctantly, admit the use of languages other than Turkish. 4.1 Who is a ‘Turk’?: The Ethnic Boundary of the Concept of ‘Turk’ in Law An examination of the Turkish legal system reveals concepts of ‘Turk’ and ‘Turkish race’ as subjects of rights and obligations. As seen in the Turkish state’s statement quoted above, the concept of ‘Turk’ is described as a ‘legal status’ with reference to citizenship, which creates a legal bond between state and individual. 16  Virtanen 2003: 23 argues that ‘it is difficult to claim that the definition of Turkishness has had no relation to blood and ethnic origin.’

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Further, ‘Turk’ is described as the ‘national identity’ of the citizens. Thus, the state rhetorically denies its racial and ethnic content, with particular reference to its Constitution. We test this argument here by examining the image of the ‘Turk’ in Turkish legislation, with particular reference to Turkish Constitutions. Before commencing our analysis, a word ought to be said about the problem of translation. Although it may be considered normal in the Turkish language to have the word ‘Türk’ before a linked noun to compose a compound noun, this does not translate well into English directly, if Turk is used as the first noun. So, the Turkish phrase Türk tarihi can be translated as the ‘history of the Turks’ or as ‘Turkish history’. I contend here that the use of the word ‘Türk’ is better expressed in the first sense, since it is linked to the idea of a Turkish people, volk, or ethnie, even though I have been occasionally compelled, for the sake of elegance, to use the adjective ‘Turkish’ in translation. The word ‘Turk’ has been very generously employed in legislation. Numerous pieces of legislation start with the word and their content continues in this fashion. So for instance, legislation refers to the notions ‘home of the Turks’ (Türk yurdu),17 ‘Turkish family’,18 ‘Turkish children’ (evlatları),19 ‘Turkish engineer’,20 and so on. Especially during the single-party regime (1923–45), ‘to be a Turk’ (Türk olmak) was necessary for being the subject of many rights.21 Yıldız shows that ‘to be a Turk’, ‘to come from the Turkish race/ethnie’, were used as criteria especially for entering military schools.22 Although the tendency of using ‘to be a Turk’ (Türk olmak) reduced over time, the use of ‘Turk’ as right-bearer has continued until today in Turkish legislation. The use of more neutral words like ‘citizen’ became fashionable only from the 1960s.23 What has been the position of the Constitutions in this context? The subjects of the rights enumerated in the Constitution of 1924 were ‘every Turk’, ‘the Turks’, ‘everybody’, ‘anybody’ and ‘no one’. The word ‘citizens’ was not used in this 17  18  19  20  21 

Articles 2 and 5 of Law no. 211, 04.01.1961. Articles 1 and 3(j) of Law no. 5256, 10.11.2004. Article 7 of Law no. 2949, 10.11.1983. Article 2 of Law no. 2804, 14.06.1935. For instance, for being able to stand for election as muhtar (district governor) or in the ihtiyar heyeti (district committee), one had ‘to be Turk’: article 10(1) and (5) of Bye-law, RG: 5991/26.04.1945. In order to work as a doctor, a dentist, midwife or nurse in Turkey, one had ‘to be a Turk’: articles 1, 30, 47 and 63 respectively of Law no. 1219, 11.04.1928. To be a Turk was one of the conditions for being a police officer: article 23(a) of Law no. 3201, 04.06.1937 (defunct)). In order to vote in municipal council elections and to be elected to the municipal council board one had to be a Turk: respectively in articles 23(1) and 24(1) of Law no. 1580, 03.04.1930 (defunct). To work as a customs broker one had to be a Turk: article 167(1) of Law no. 1615, 19.07.1972 (defunct). 22  Yıldız 2004: 327–33. 23  One of the eligibility criteria for being a military judge or prosecutor and night watchman is to be a ‘citizen’: respectively article 1(a) of Law no. 357, 26.10.1963 and article 6(a) of Law no. 772, 14.07.1966.

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Constitution, except in article 88 where it was stated that ‘everybody who is bound to the state though citizenship is considered a Turk from the citizenship point of view.’ Nevertheless, the preference in the Constitution of 1924 for the words ‘the Turk’ and ‘every Turk’ with reference to civic and political rights is notable.24 Accordingly, the section comprising articles 68–88 of the Constitution even specifically referred to these civic and political rights as ‘The Public Law of the Turks’. On the other hand, the 1924 Constitution adopted the words ‘everybody’, ‘anybody’, and ‘no one’ as subjects of more general rights, such as the right to have an opportunity to defence before the courts (article 59), freedom of religion and conscience (article 75), natural justice (article 83), and the right to not to be subjected arbitrary confiscation (article 74). In the 1961 Constitution, ‘citizens’25 also appeared as right-bearers of enumerated subjects for the first time in a Republican constitution. ‘Turkish citizens’26 was added in the 1982 Constitution. However, it is striking that both Constitutions have continued to employ the words ‘the Turk’ and ‘every Turk’ in the provisions related to political rights and eligibility for positions in the public service in the same fashion as the 1924 Constitution.27 This coincidence seems interesting and may demonstrate the continuing anxiety of the legislators, as already seen in Chapter 3, to confine political rights and the right to obtain state positions to one who is a ‘Turk’. The legislators’ deliberate preference for the word ‘Turk’ with regard to civic and political rights was revealed in the discussion before the Parliament in 1995, when a proposed amendment to article 76 of the 1982 Constitution was rejected, because it would have entailed changing the right-bearer from ‘every Turk’ to ‘every Turkish citizen’. Deputy Fethullah Erbaş’s remarks supporting the proposed amendment on behalf of the Welfare Party (Refah Partisi), are quite striking in this regard: In the 1982 Constitution it was stated that ‘Every Turk over the age of 30 is eligible to be a deputy’; this proposed amendment, by replacing the word ‘every Turk’ with ‘every Turkish citizen’, departs from an implosive (dayatmacı) conception which sprang from the Fascist mind (faşist bir kafa ile yapılan). It makes a very big change by inserting the concept of citizenship in place of racism … this will help in solving many problems. With this change we are departing from a racist state policy, and transiting to a modern, innovative state model which is based on citizenship. This is a very big revolution for Turkey.28

24  For the use of ‘every Turk’ see articles 10, 11, 68 and 92. For use of ‘Turks’ (Türkler) see articles 69, 70, 82 and 87. 25  See article 50, 56, 62 and 123 of the 1961 Constitution. 26  See article 42, last para. and articles 59, 69 and 67 and the preamble of the Constitution of 1982. 27  See articles 68, 71 and 72 of the 1961 Constitution, and articles 70 and 72 of the 1982 Constitution. 28  TBMMGKT, 23.06.1995, p. 61.

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The proposed amendment was rejected, however, following the discussions which took place in the TBMM on the importance of keeping the phrase ‘every Turk’ in article 76 of the Constitution over the phrase ‘Turkish citizen’.29 The reasoning (gerekçe) justifying the proposal by some deputies of the Nationalist Party (Milliyetçi Parti) to keep the phrase ‘every Turk’ in article 76 is striking: Everybody who lives in Turkey is a Turk, bound to the state through citizenship … Since this is the case ‘… every Turk can stand for election for parliament’ is shorter, decipherable, and it is a phrase which would not hurt our nation. To add the word ‘citizen’ alongside the word ‘Turk’ is wrong, since that would create an image … that there is discomfort towards Turk and Turkishness (Türk ve Türklükten rahatsızlık duyuluyormuş).30

Evidently, the legislature preferred the concept of ‘Turk’ over ‘Turkish citizen’ on the basis of the perceived requirement of protecting the ‘Turk’ and ‘Turkishness’ and, by implication, nationalist feelings. It also implied that these two concepts – ‘Turk’ and ‘Turkish citizen’ – are, in fact, distinct. Meanwhile, the word ‘Turk’ is employed with reference to citizenship, being a member of the ‘nation’, as well as being a distinctive name of the ethnie Turk. By using the word ‘Turk’ in relation to all of these entities underlines the desire to avoid the making of a distinction among them. Meanwhile, on the basis of this non-distinction, the state claims ‘Turkishness’ as a neutral category. However, the interchangeable use of the word ‘Turk’ also provides the state a chance to legitimize its ‘Turkification’ agenda, while negating diversity. In the following sections, we examine in more detail what such references in constitutional and public law meant. We first examine the 1924, 1961 and 1982 Constitutions of Turkey, and scrutinize the content of ‘Turk’. The 1924 Constitution The Turkish Republic’s first Constitution was enacted in 1921. It had a short text and only covered limited issues regarding sovereignty, the governmental system and the administrative division of the country (see 2.1.2). For that reason, the 1924 Constitution is a better starting-point from which to begin an analysis. The inhabitants (ahali) of Turkey, regardless of their religion and race, are considered as ‘Turks’ ‘from the citizenship point of view’ by article 88 of the 1924 Constitution. 29  For the discussion on this issue see TBMMGKT, 23.06.1995, pp. 61–76 and 24.06.1995, pp. 1–3. The preference for the word ‘Turk’ in place of ‘Turkish citizen’ was supported by Bülent Ecevit, who was a leader of Democratic Left Party (Demokratik Sol Partisi) and who had been Prime Minister several times in the period 1974–2002: see TBMMGKT, 23.06.1995, p. 72. 30  TBMMGKT, 23.06.1995, pp. 70–71. The preference for the word ‘Turk’ in place of ‘Turkish citizen’ was supported by Bülent Ecevit who had been prime minister several times in the period 1974–2002.

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Some writers, such as Gözler, by referring to the phrase ‘citizenship bond’ (vatandaşlık bağı) in article 88, argue that Turkishness in this Constitution was a ‘legal concept’.31 By recalling the phrase ‘inhabitant [or resident] of Turkey’, he also claims that Turkishness in article 88 was defined geographically, and not on the basis of religion or race. Despite its avowed purpose of extending citizenship to all inhabitants, article 88 can nevertheless be interpreted as implying two categories of ‘Turks’: those who are real Turks, having the right to be part of the Turkish nation, and others who are Turks only from the citizenship point of view. The parliamentary discussions on this article (see 3.2) made this differentiation clearer when the non-Muslim minorities were considered as ‘Turks’ only ‘from citizenship point of view’.32 While the ethno-religious divide – between Muslim and non-Muslim – is evident, the emphasis on ‘Turks’ as an ethnic category in the political discourse of the state during the single-party period (1923–45), as well as the policy of forcing nonTurks to Turkify (see Chapter 3), also meant that ‘Turk’ was not merely a legalistic category in practice. Another article which helps us to give meaning to the word ‘Turk’ is article 2 of the 1924 Constitution, where the Turkish state was described as ‘nationalist’ (milliyetçi). This principle was adopted from Atatürk’s ‘six-arrow principles’, which were first merged into the programme of the state party (CHP) in the 1930s. The content of the ‘nationalism’ principle in the CHP’s programmes (1931–47) was explained as being ‘to protect Turkish community’s ‘special characteristics’ and ‘independent identity’.33 ‘Nationalism’ was also described as intended to protect and perpetuate territorial unity, the Turkish nation’s unity, its national spirit and its national conscience.34 Thus, ‘nationalism’ was something in the service of protection and nourishment of a Turkish social community centred upon the Turkish ethnie’s culture, language, history and desires, and the Turkish nationalist ideal, and so on. Moreover, this nationalism became a means of seeking an equal place in the international arena with other states, and was claimed as being ‘harmless’ to other nations. Thus, the 1924 Constitution’s reference to a ‘nationalism’ aiming to protect the Turkish ethnie revealed that the word ‘Turk’ was an ethno-cultural category. The 1961 Constitution The 1961 Constitution defined being a ‘Turk’ in line with citizenship and in a more ‘inclusive’ way, stating in article 54 that ‘Everybody who is bound to the Turkish state by ties of citizenship is a Turk.’ However, the apparently inclusive effect in 31  Gözler 2001, and see also Tanör 2000: 257. 32  Yeğen 2006: 72, İçduygu and Soner 2006: 254. Lewis 2002: 15 argues that ‘one

may speak of Christian Arabs – but a Christian Turk is an absurdity and a contradiction in terms … a non-Muslim in Turkey may be called a Turkish citizen but never a Turk.’ 33  Parla 1995: 40–41. 34  Ibid. 42.

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that article, of membership in the nation as premised upon citizenship, was again attenuated by reference to a concept of loyalty in the interpretation given to it by the AYM in the TEP-1980 judgment (see, in detail, Chapter 5), which in turn could have ethno-religious overtones. Sancar, meanwhile, adopts the view that the definition of a ‘Turk’ in article 54 meant that the legal tie was the only criterion of affiliation to the nation; it thus prevented the state from relying on a concept of the nation based on race or religion.35 However, in so arguing, Sancar does not take into account the philosophy of the 1961 Constitution, which, as argued here, was based on Turkish nationalism with a specific emphasis on ethnic Turks. It is notable that the non-legalistic language used in the preamble and the various provisions of the 1961 Constitution further spoilt its seemingly neutral definition of the ‘Turk’ based on citizenship. The first line of its preamble referred to the ‘Turkish nation’ which ‘has lived independently and fought for its rights and freedoms throughout history’. This historical narrative assumes the Turkish nation to be a historical concept, arising out of events occurring in the past, and existing throughout history as the same nation. The principle of ‘nationalism’ also featured in the 1961 Constitution. However, in this Constitution, the nationalism principle was reformulated as ‘Turkish nationalism’ in the preamble. It stated that the Constitution was ‘prompted and inspired’ by ‘the spirit of Turkish nationalism’. The preamble describes ‘Turkish nationalism’ as an idea which ‘unites all individuals, be it in fate, pride or distress, in a common bond as an indivisible whole around national consciousness (milli şuur) and aspirations’, and aims ‘to exalt [the] nation in a spirit of national unity’. The AYM also described ‘Turkish nationalism … based on the Turks’ culture (Türk kültürü)’, as the ‘dominant ideology’ of the Constitution of 1961.36 Except for the particular emphasis on ‘Turkish nationalism’, it seems so far that the 1961 Constitution adopted neutral language. However, an examination of the discussions in the Parliament on article 2 of the 1961 Constitution, which described the Turkish state as a ‘national state’ (milli devlet), tells us more about the scope of its civic neutrality. From the discussions on this word in the National Unity Committee, which was in charge of preparing the Constitution with the Assembly of Representatives (Temsilciler Meclisi), it is evident that ‘national state’ was contemplated as an alternative to the word ‘nationalist state’. In fact, the phrase ‘nationalist state’ (milliyetçi devlet) was feverishly defended as requiring a place in article 2 of the 1961 Constitution, which was considered an important tool for realizing Turkish nationalism. In these discussions, nationalism emerged as important and necessary to realize ‘linguistic and cultural unity’ and the survival of Kemalism in the

35  Sancar 2006: 82. 36  In the TIP 1971 judgment, the AYM stated that, within the borders of Turkey, the

dominant ideology is Turkish nationalism as stated in the preamble of the Constitution of 1961, and that it is the foundation of the whole Constitution’s structure.

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country.37 The entry of the principle of ‘nationalism’ into the Constitution was also clearly defended on the grounds of the necessity of ‘Turkification of Southeast Anatolia’ which was expressed as ‘one of the main duties of the state’,38 and preventing minorities’ demands for rights or schools, or in opposing the directions given by the state.39 More importantly, the insertion of the word ‘nationalist’ into the Constitution was defended by President Cemal Gürsel as creating a ‘consciousness of Turkishness’ (Türklük şuuru) in all, while it was feared that its non-inclusion would be the ‘route which would result in the loss of our Turkishness and our nationalism’. He added that ‘Turkey should be Turk.’40 However, the insertion of the word ‘nationalist’ into article 2 was opposed on the grounds that ‘every side of the constitution is Turk’ and based on ‘nationalism’. Since that was so, there was no need to have an ‘unlimited nationalism phrase’ again.41 It was also opposed from the point of view of foreign relations, the Istanbul pogrom of 6–7 September 1955, which had been primarily directed against Greeks, having had an important impact on the international arena. After all, no other constitution in the world had such a principle. It was therefore proposed to add the phrase ‘full consciousness of Turkishness’ (Türklüğün tam şuuru) into the preamble in exchange for omitting the phrase ‘nationalist’ from article 2.42 Ultimately, the phrase ‘nationalist state’ was rejected, and ‘nation state’ (milli devlet) was placed into article 2. Meanwhile, the phrase ‘Turkish nationalism’ was placed into the preamble, and the proposed inclusion of ‘full consciousness of Turkishness’ was changed to ‘national consciousness’ (milli şuur).43 Accordingly, it may be said that the words ‘national’ and ‘Turkishness’ were thought of as interchangeable concepts. Although the Constitution of 1961 treated Turkish nationalism as a benign concept assuring the unity of people, it anticipated a unity converging ‘around national consciousness and aspirations’, which in turn required the homogenization of people around the same ideals and thoughts. In sum, the 1961 Constitution also assumed that the Turkish nation was an organic unity, not merely by blood, but on the basis of the same cultural and ideological affiliations. The 1982 Constitution The Constitution of 1982 adopted the same definition of ‘Turk’ in article 66 as that of the Constitution of 1961 and considered everyone to be bound to the state by citizenship as a Turk. However, the 1982 Constitution, which contains clear 37  38  39  40  41  42  43 

MBKGKT, 09.05.1961, Mehmet Özgüneş, p. 9. MBKGKT, 09.05.1961, Kâmîl Karavelîoğlu, pp. 12–13. MBKGKT, 09.05.1961, Suphi Gürsoytrak, p. 13. MBKGKT, 17.05.1961, Cemal Gürsel, pp. 5 and 8. MBKGKT, 09.05.1961, Haydar Tunçkanat, pp. 10–11. MBKGKT, 17.05.1961, Kâmil Karavelioğlu, p. 4. See discussion on ‘nationalist state’, ‘nationalism’ and ‘Turk nationalism’ at MBKGKT, 20.5.1961, pp. 437–53.

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references to Turkish ethnicity more so than in any of the preceding Constitutions, has cast a shadow upon the ostensibly inclusive, civic nationalist definition of ‘Turks’ in article 66.44 The non-legalistic and political language adopted in the preamble is especially significant for its ethnic and cultural connotations. For instance, the preamble refers to ‘the historical and moral values of Turkishness (Türklük)’ and ‘the national interest of the Turks and their existence’ in paragraph 5 of the preamble.45 Further, in paragraph 6, the 1982 Constitution acknowledges that every Turkish citizen has the birthright to lead an honourable life and to develop his or her material and spiritual assets under the aegis of the ‘national culture’, in conformity with the requirements of equality and social justice. Thus, the Constitution conditions citizens enjoying an honourable life and developing their mental and spiritual assets within the confines of the ‘national culture’; conversely, and by implication, they cannot enjoy ‘their mental and spiritual assets’ outside of the ‘national culture’ (see the Introduction). What is ‘national culture’? Is it an eclectic culture of citizens or a single culture based on the majority’s culture? The 1982 Constitution does not provide a description of ‘national culture’, and one must thus turn to the jurisprudence of the AYM, as the highest court and the only body with the authority to interpret the Constitution (see Chapter 5 in detail). However, the Law on the Atatürk High Institution of Culture, Language and History (AKDTYK)46 refers to the ‘national culture’ as the foundation for the continuation and enhancement of national existence and national strength (article 73), and it assumes it to be realizable by the promotion of ‘Turkish literature’, ‘Turkish art’, ‘Turkish folklore’, ‘Turkish customs and traditions’ (article 74(a)) and the ‘Turkish culture’ which can be found not only in the country but also abroad beyond the present territory (article 74(c)). Since customs, traditions, folklore, and so on, are concepts that can be attributable to ethno-cultural-religious communities, the concept of the ‘Turk’ once again appears biased towards the Turkish ethnie (see 4.2). By foreseeing the establishment of the Atatürk High Institution of Culture, Language and History (AKDTYK), the 1982 Constitution also provides constitutional protection for the promotion of the Turkish ethnie’s culture, history 44  For an opposite view, see Özbudun 2005: 75 denying that the 1982 Constitution is based on an ‘objective nationalist’ ideology. He claims instead that it adopts the ‘subjective nationalist’ view and in support refers to the preamble and article 66 of the 1982 Constitution. See Gözler 2001 who also argues that the 1982 Constitution is based on ‘subjective nationalism’. 45  There is an inconsistency between the official English translation of this paragraph and its Turkish version. In the Turkish version, the word ‘Turkey’ is not present, but in the English translation this word is used in place of ‘Turks’ existence’. Also ‘Türklük’ (Turkishness) is translated as ‘Turkish’ in the translation. For the English version see: http:// www.anayasa.gov.tr/images/loaded/pdf_dosyalari/THE_CONSTITUTION_OF_THE_ REPUBLIC_OF_TURKEY.pdf (last accessed 05.05.2012). 46  Law no. 2876, 01.08.1983.

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and language by the state.47 According to article 134 of the 1982 Constitution, the AKDTYK is a public corporate body, attached to the Office of the Prime Minister and comes under the supervision and support of the President of the Republic. It aims ‘to produce publications and to disseminate information on the thought, principles and reforms of Atatürk, Turkish culture, Turkish history and the Turkish language’. The placing of this institution under the auspices of the head of state and government is an indication that its aims have enormous importance for the state. Referring to the creation of the AKDTYK, Gözler accepts that the Turkish Constitution fails in being a civic state, because of its commitment to place the Turks’ culture, history and language under state protection.48 Further, in the same fashion as previous Constitutions, ‘Turkish nationalism’ under the name of ‘Atatürk nationalism’ as a ‘prime inspiration’ was inserted into the 1982 Constitution in paragraph 1 of the preamble. This change was due to the military regime’s desire to distinguish their ‘Turkish nationalism’ from the ultra-Turkish nationalist party’s (Milliyetçi Hareket Partisi, MHP) ‘Turkish nationalism’, which was seen as one of the prime creators of turmoil in the wake of the military take over of 12 September 1980. The similarity of the concepts is evident from the AYM’s established case law especially when it refers to ‘Atatürk nationalism’ as ‘the most fundamental and prominent principle’ of the Turkish Republic and Turkish reforms, which has found a place in all Turkey’s Constitutions since 1924.49 The AYM’s backdating this newly named nationalism to the earlier period of the Republic is further evidence that ‘Atatürk Nationalism’ is synonymous with ‘Turkish nationalism’. As seen in this section, the concept of ‘Turk’, with reference to citizenship in the 1961 and 1982 Constitutions, gains an ethnic meaning particularly because of their preambles. However, what is the legal value of the preamble of the Constitutions of 1961 and 1982? As clearly stated in article 156(1) of the 1961 Constitution and article 176(1) of the 1982 Constitution, the preambles constitute integral parts of those documents. Furthermore, article 2 of the Constitution of 1961 and that of 1982 describe the Turkish Republic as a state that is based on the fundamental principles set out in the preamble. Therefore, the legal status of the preamble is equal to that of constitutional rules.50 The AYM has also recognized the preambles of the Constitutions of 1961 and 1982 as having constitutional value and as positive legal rules.51 As seen, an examination of the word ‘Turk’ as used in the Constitutions and the general context within which it is used, reveals that it is not a neutral, legalistic 47  The AKDTYK is composed of four sub-organizations: Atatürk Centre of Research, Turkish Language Society, Turkish History Society and Atatürk Cultural Centre. 48  Gözler 2001. 49  TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, DDP1996, EP-1997. 50  Gülsoy 2001: 46–58, Yüzbaşıoğlu 1993: 118. 51  Gülsoy 2001: 46–58.

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concept that it is often claimed to be. The word ‘Turk’ as used in the Constitutions comes closer to an ethnic definition because of the references to the history, culture and morals of Turks, despite the superficial single-line reference to citizenship ties.52 Further, the 1982 Constitution particularly fails to be neutral by allowing only the promotion of one particular ethnic group in Turkey – the ‘Turks’. What is of significance here is that the alleged Turkish ‘civic state’ legally favours one ethnicity over others. Moreover, contrary to assertions of neutrality, the state identifies itself with people of Turkish ethnic origin.53 Hence, it can be briefly said that ‘Atatürk nationalism’, or ‘Turkish nationalism’, as the state’s official ideology, also aims to form a society in line with its ideological requirements, while the legal system is designed to serve this ideology, and to manipulate or reform its ‘others’. Thus, the state favours those groups who come close to its official ideology, over those who do not conform to it.54 Hence, those who do not support this ideology are considered ‘traitors’, ‘racist’, or as ‘separatist’.55 4.2 The Concept of ‘Turkish Race’ in Law It is useful at the outset to consider some key words often used in Turkish law and jurisprudence. In the dictionary prepared by the Turkish Language Society,56 a state organization, the definition of ‘Turk’ is given as follows. First, ‘Turk’ means the populace who lives within the borders of the Turkish Republic and individuals who belong to this populace (halk). Secondly, the word ‘Turk’ means a ‘soy’ (descent group) which speaks any Turkish dialect in any area of the world as well as a person who belongs to this soy. When we look up for the word ‘soy’ in the same dictionary, it is defined as a ‘people who come from the same ancestors, family’. The word ‘soydaş’ means people who come from the same soy. Finally, the word ‘ırk’ is described as group of people sharing genetically common physical and physiological characteristics, and is thus closer to the use of the word ‘race’ in European discourse. Here, we scrutinize how a close linkage between the terms arose in Turkish politico-legal discourse. Furthermore, their link to the word ‘Türk’ is also critical in the present context. 52  See also Oran 2004: 87–93, Sancar 2006: 84–5. Özbudun 2001: 3 suggests that the references to ‘the national interest of Turks’, ‘the historical and moral values of Turkishness’, and ‘national culture’ should be removed from the Constitution. For a similar view, see Gözler 2001. 53  See the AYM’s stance in this regard in HEP-1993. 54  Erdoğan 2005: 121–2. 55  In a speech given on 01.10.2001, Yaşar Büyükanıt, the vice-chief of the Military General Staff, stated that ‘the only acceptable common denominator in Turkey is the “Atatürkist thinking system” and those who do not gather around under this common denominator are the enemy of the “nation and country”’: cited by Ahmet İnsel, Radikal, 31.07.2005. 56  The dictionary is online at http://tdkterim.gov.tr/bts/.

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As already noted, ‘Turk’ has been used in two contexts: one refers to ethnic/ racial Turks living anywhere in the world, and the other refers to some people who live within the borders of Turkey. The description of the word ‘Turk’ along ethnic and territorial lines is not only found in the official dictionary. It has also been used by politicians and, importantly, in the law and by judicial bodies. However, this dual meaning of the word ‘Turk’ is not problematized, but unquestioningly accepted by the majority in Turkey. Our main concern here then is to examine how the ‘Turkish soy’ concept has been used within the legislation as well as in some higher court judgments. The word ‘race’ (ırk), meanwhile, is used relatively less frequently in the Turkish legal system, especially since the end of the single-party regime and is, to a certain extent, considered to have a negative connotation. The word soy, on the other hand, is used very often and is conceived of as having a positive connotation. However, in practice, the word soy is used as a replacement for the word ırk. This is apparent in the Danıştay’s understanding of the word ‘Turk’ as the name of a distinct racial group. In one of its recent judgments, the Danıştay referred to a claimant who had immigrated to Turkey from Bulgaria as ‘racially Turk’ (Türk ırkından), although, as we see in detail below, political and legal discourse has generally referred to such persons as ‘Türk soylu’ or ‘soydaş’.57 For those who live outside of the national borders of Turkey and do not have Turkish citizenship, the concepts ‘Türk soylu’ and ‘soydaş’ (people of the same descent line or race) has been used in the legislation58 and in the jurisprudence of the Turkish higher courts. Thus, Türk soylu people are Turks from Bulgaria,59 from Western Thrace in Greece,60 from Cyprus,61 Ahıska Turks,62 Afghan Turks, Uygur Turks from China and Iraq,63 and so on. That is, legislation in Turkey refers to ‘Turks’ as people in many parts of the world who are considered as having a 57  Dan.(12).D., E.1997/1411, K.1998/895, 24.03.1998. 58  For a significant example of this, see additional article 36 of Law no. 657,

14.07.1965 which refers to preserving and improving cultural bonds between ‘Turkish citizens and [Turkish] soydaş who live abroad’. 59  Dan.(1).D., E.1990/78, K.1990/113, 11.07.1990; YHGK, E.2005/21-682, K.2005/618, 16.11.2005. 60  Y.(14).HD., E.2002/3505, K.2002/3945, 20.05.2002. 61  Y.(10).HD E.2000/8477 K.2001/39 22.01.2001. 62  Dan.(12).D., E.1997/1411, K.1998/895, 24.03.1998. 63  Article 3 of the Secret Regulation of the Ministry of Labour and Social Security (no. 23518, dated 040.5.2009) on Turkish Race People Exempted from Requirement for Obtaining a Work Permit (Çalışma İzninden Muaf Tutulacak Türk Soylu Yabancılara Dair Yönetmeliği). This secret Regulation gave Western Thrace Turks and Turkish race (Türksoylu) nationals of Iraq, China (East Turkistan), Afghanistan, Bulgaria and Northern Cyprus who obtained resident permits before 07.03.2009 the right to obtain work permits upon application by 07.10.2009. The execution of the Regulation was stayed by the Danıştay on the ground that the date for application creates inequality between Turks from these areas who did apply before the required date and those who could not: Dan.(10).D., E.2009/9270, 22.12.2009.

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particular ethnic or racial descent. Further, some laws contain criteria predicating certain rights upon the Turkic origins of the persons concerned. For instance, the scrutiny of immigrants’ ‘soy status’ (soy durumu) 64 and of a ‘Turkishness certificate’(Türkülük belgesi) 65 casts further doubt on the ethnic neutrality of Turkish legislation. As noted above, in the international arena, the Turkish state has often taken the ostensible position that the word ‘Turk’ in legislation refers to the supra-identity of people in Turkey, and rejects its interpretation as the name of an ethnic group and as connoting ‘kinship based on blood’. In spite of this official state discourse, the legislation, and court jurisprudence in Turkey, in using the phrases ‘Türk soylu’ and ‘soydaş’, seem to distinguish those who are citizen ‘Turks’ from those who are racially ‘Turks’. While recent legislation seems to be using the phrase ‘Türk soy’ less and less, a persistent exception to this trend is the Settlement Law, where to be of Turkish soy and being bound to Turkish culture are the only criteria for acceptance as an immigrant into the country.66 Further, although new laws do not tend to use the phrase ‘Türk soylu’, by referring to the Settlement Law’s provisions, they continue to guarantee a privileged position for Türk soylu people. For instance, a recent law which regulates work by foreigners in Turkey does not use the phrase ‘Türk soylu’ in the text. The law states that a person who is accepted as an ‘immigrant (muhacir), refugee and itinerant (göçebe)’ is allowed to work in Turkey without being subject to the time limitations set for foreigners.67 Since only ‘Türk soylu’ people can obtain this status according to the Settlement Law, the new law by implication continues to privilege ‘Türk soylu’ people. The use of the notion of ‘Türk soylu’ in the legislation has been interpreted by Oran as evidence of the strong influence of the Turkish ethnie on Turkey’s official identity.68 In line with legislation already cited, references to Turks as having ‘relative’ communities in the world appear in other laws. Consequently, the state’s interest in the Turkish race goes beyond the Turkey’s national borders, over ‘Türk soylu’ people who live abroad as well.69 To this end, the Directorate of Cooperation and Development of Turks was founded under the auspices of the Prime Minister in 64  Article 17(a)(3) of Regulation, RG: 11742/01.07.1964, requires scrutiny of the racial status (soy durumları) of immigrants of Turkish race before they are granted Turkish citizenship. 65  Article 19(b) of Regulation, RG: 25694/08.01.2005, and article 10(c),(5) and article 33 of Regulation, RG: 25687/31.12.2004, requiring a ‘Turkishness certificate’ from people of ‘Turkish race’ from Western Thrace before they are allowed to obtain a hunting licence in Turkey. 66  Law no. 2510, 14.06.1934. 67  Article 8(d) of Law no. 4817, 27.02.2003. 68  Oran 2004: 89. 69  Articles 1(d) and 13(e) of Law no. 4848, 16.04.2003, where the aims of the Ministry of Culture and Tourism are stated as being to enhance, promote, protect and carry out research on the ‘cultural entity of the Turks (Türklerin) living in Turkey and outside of

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order to help the development of those countries where the Turkish language is spoken and where ‘communities related to the Turks’ live, and to improve economic, social, cultural and educational cooperation among them.70 Further, special state officers are appointed to further this cause, in another instance of legislation showing the Turkish state’s declared interest in preserving and improving cultural bonds with Turkish soydaş people.71 The linkage between the Turkish state and Turkish soy people in other countries is taken to another level when these people are granted a privileged legal status in Turkey as discussed below. 4.2.1 Favoured Status of Foreigners of ‘Turkish Race’ The use of the phrase ‘Türk soylu’ in legislation not only distinguishes and recognizes the ‘Turk’ as an ethnic category in the country, but is also used to give people who are legally foreign but ethnically Turks a privileged status vis-à-vis other citizen Turks. The status given to ‘Türk soylu’ foreigners within the Turkish legal system is quite striking and such foreigners benefit from a nearly equal protection as those with Turkish citizenship. They also enjoy a privileged status vis-à-vis foreigners of other origins. The privileged status of Türk soylu people is reflected in exemption provisions which specifically refer to these people. These particular privileges are inconsistent with the claim that the state is based on a civic nationalist model whereby being a Turk is defined, not along ethnic lines, but through citizenship in the Constitution. The 1982 Constitution foresees restrictions for foreigners in their access to the job market. Thus, foreigners are prohibited from certain posts, such as lawyer, doctor, nurse, worker, and others, and they are to be refused residence permits for any of these jobs. However, Türk soylu foreigners are exempt from these restrictions.72 Thus, the right of Türk soylu people to work in the country has been regulated by particular laws,73 and a category of specially privileged foreigner status has been created.74 For instance, Türk soylu people can work in state institutions, except for the police and army, in Turkey.75 They may therefore work as judges, diplomats, and other state positions.76 Further, although having Turkish citizenship is a condition for eligibility to be a state servant in the State the Turkey’, and to establish institutions in order to teach and carry out academic research on Turkish dialects and accents spoken in other countries within its organizational structure. 70  Article 1 of Law no. 4668, 02.05.2001. 71  Additional article 36 of Law no. 657, 14.07.1965. 72  Cin 2005. 73  Law no. 2527, 25.09.1981. 74  Some Turkish nationalist writers, for example, Cin 2005, see this privileged status as the result of Turkey’s responsibility resulting from a historical inheritance and ethnic ties with such people. 75  Article 1 of Law no. 2527, 25.09.1981. 76  Cin 2005.

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Servants Law,77 the same law contains an exception favouring Türk soylu noncitizens and allows them to work as civil servants.78 Türk soylu people can work in jobs which are otherwise confined to Turkish citizens by obtaining permission from the Ministry of Work and Social Security.79 Once they have permission, they can benefit from the rights of Turkish citizens regarding residence and work except for political rights,80 and can register with professional organizations.81 The state’s favoured treatment of Türk soylu foreigners is visible also in their ability to benefit from the Turkish social security system on a footing equal to Turkish citizens.82 For instance, generally only Turkish citizens are eligible to benefit from the Emekli Sandığı (pension scheme), but Türk soylu foreigners can also benefit from this social security organization.83 Another example in this regard is that of foreign teachers, who are Türk soylu in origin and have worked for Turkish culture abroad. They are entitled to receive social benefits (sosyal yardım) from the state and, upon their death, their wives and children continue to receive this benefit.84 Non-Türk soylu foreigners who work to promote Turkish culture are not eligible for the same benefits. The state thus makes an obvious distinction here between those foreigners of ethnic Turkish origin and those foreigners who are not. The favoured legal approach adopted towards Türk soylu foreigners is not confined to employment or social security. The Ministry of Education’s General Foreign Directorate (Yurt Dışı Eğitim Öğretim Genel Müdürlüğünü) aims to carry out work for Turkish citizens as well as ‘people who share language and culture with us’ and live abroad, with a view to improving their Turkish language and keeping their bonds with Turkish culture.85 The people referred to here are people of ‘Turkish race’ and the state wishes to maintain its bonds with these people through language and culture. Türk soylu people may also obtain benefits from educational institutions on a privileged basis. For instance, while foreign students who study in Turkish universities must pay fees at three times the rate (öğrenci katkı payı) in foreign currency, the fee for Türk asıllı (origin) foreign students is determined by the Higher Education Council (Yüksek Öğrenim Kurulu, YÖK) and they pay a reduced 77  Article 48 (A)-(1) of Law no. 657, 14.07.1965. 78  Provisional article 5 of Law no. 657, 14.07.1965, and see also Provisional article

5 of the Secondary Legislation (KHK) no. 375, 27.06.1989. 79  Article 3 of Law no. 2527, 25.09.1981. 80  Ibid.: article 7. 81  Ibid.: article 4. 82  Ibid. article 5. However, with changes to this law in 2000, non-Turkish race foreigners are also allowed to benefit from some of the social security schemes. For details, see Cin 2005. 83  Article 12 of Law no. 5434, 08.06.1949. 84  Article 1 of Law no. 168, 16.12.1960. 85  Article 21(a) of Law no. 3797, 30.04.1992.

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fee.86 Researchers from the Turkic Republics, and Turkish and kindred groups, are exempt from paying university fees.87 Türk soylu foreigners are privileged over other foreign citizens in several other ways. For instance, Türk soylu are allowed to settle in second-degree military off-limits areas, which can only otherwise be settled by Turkish citizens, and are absolutely prohibited for foreigners.88 Other foreigners may not enter these areas, for work or to rent a property.89 Non-citizen Türk soylu people can benefit from these rights accorded to Turkish citizens by obtaining permission from the Ministry of Internal Affairs.90 The favoured treatment towards foreigners who are ‘Turks in origin and bound to Turkish culture’ (Türk aslından olup Türk kültürüne bağlı) does not stop there: they are also exempt from paying a fee for obtaining a residence permit (ikamet tezkeresi).91 Some might argue that Turkey’s preferential treatment through enacting laws in favour of ‘Türk soylu’ people from Bulgaria, Greece, Afghanistan, China, and so on, cannot be considered as unique to the Turkish legal system or as unprecedented.92 Moreover, it might be argued that it is a result of being a kinship state to Turkish/Muslim minorities, especially in neighbouring countries, although one would have to ignore the fact that this favoured status is also extended to ‘Türk soylu’ people from other parts of the world. Turkey’s preferential treatment for Turkic-origin people is problematic and rather alienating for the non-Türk soylu people of Turkey (Arabs, Armenians, Greeks, Kurds, and so on), whose kinship groups do not enjoy any favoured rights whatsoever. Such preferential treatment reinforces the privileged position of ethnic Turks as being the real owners of the state and country, who have the prime role in decision making about the country’s policies. Preferring the immigration and settlement only of Türk soylu people into the country might, in the long run, mean changing its demography at the expense of non-Turkic people. It seems therefore that Turkey’s extensive preferential treatment for people of the Turkish ethnie not only goes beyond ‘fields other than education and culture’, but also cannot be justified on objective and reasonable grounds.93

86  Article 9(1) of Cabinet Decision, RG: 26282/07.09.2006, which relates to university fees for academic year 2006–07. 87  Additional article 26 of Law no. 2547, 04.11.1981. 88  Article 9(b) of Law no. 2565, 18.12.1981. 89  Article 9(3) of Regulation, RG: 18033/30.04.1983. 90  Ibid.: article 13. 91  Article 88 (e) of Law no. 492, 02.07.1964. 92  See Venice Commission report on the Preferential Treatment of National Minorities by their Kin-State (CDL-INF 2001: 19). The report describes support for kin minorities by a kin state as ‘a new and original form of minority protection’, but it asks such support to be realizable and legitimate. For more information, see Sólyom 2004. 93  See Venice Commission report of 2001.

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4.2.2 Immigration of Türk Soylu People Smith argues that the type of nationalism pursued by the modern nation – be it civic, ethnic or plural – explains the different traditions of state immigration and citizenship policies. Therefore, he argues, the territorial conception of a nation gave rise to a civically oriented basis for France’s policy of naturalization of immigrants on the basis of prolonged residence. Conversely, the German conception of ethnic belonging entailed a genealogically oriented policy.94 Here we examine Turkish law in light of this view in order to determine its ethno-cultural scope. The concept of Türk soylu has a particular place in Turkish legislation on immigration. In the section on the privileged status of Türk soylu foreigners in his book, Çiçekli states that there is a strong relationship between the state’s ‘citizenship policy and foreigner policy’. Hence, by determining whose immigration into the country should be allowed, the state’s immigration policy demonstrates its vision of the kind of ‘citizen profile’ it wishes to have.95 Throughout the Republic’s history, its naturalization policy has also been structured according to racial, ethnic and gender hierarchies. These immigration and citizenship policies have relied on the concept of Türk soylu and Turkish culture, and played an important role in maintaining Turkey as ethnically Turk and religiously Muslim. Legislation on immigration and citizenship has favoured the immigration of people of Turkish race into the country.96 It is difficult to convincingly maintain the thesis that Turkey is a civic neutral state in light of this fact. Turkish Citizenship Law encourages the immigration of people of ‘Turkish race’ into the country by accepting them on a favoured basis.97 For instance, according to the recently annulled Turkish Citizenship Law of 1964, Türk soylu immigrants and their wives and children obtained Turkish citizenship without being asked to meet the requirements set out in article 6 of the Citizenship Law for other foreigners.98 Thus, people of Turkish race and their families did not have to speak Turkish, to be resident in Turkey for five years, to have good manners, to

94  Smith 1998: 212. 95  Çiçekli 2007: 206. 96  The Ottoman Citizenship Law’s primary condition for acquisition of Ottoman

citizenship was to be Muslim or conversion to Islam: Osmanağaoğlu 2004: 209–14. 97  According to the Reasons (gerekçe) for the Draft Settlement Law which had been prepared in 1996 but submitted to the TBMM by the AKP government in 17.05.2006, 1,647,527 people and 440,603 family members immigrated to Turkey since 1934 from Bulgaria, Yugoslavia, Romania, Greece, China, Turkmenistan and other countries. See http://www.tbmm.gov.tr/sirasayi/donem22/yil01/ss1223m.htm, accessed 05.05.2012. 98  Article 7(c) of Law no. 403, 11.02.1964 (defunct). In addition, an amendment to this law in 2003 secured acquisition of Turkish citizenship by citizens of Northern Cyprus upon lodging an application: Aybay 2006: 131–2, 151–6.

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have sufficient money or a job to support themselves, and soon, before obtaining Turkish citizenship.99 Although the new Citizenship Law of 2009 removes the phrase Türk soylu from the text of the law, it continues to provide a privileged status for those Türk soylu people in acquiring Turkish citizenship by allowing exceptional acquisition. Therefore, it states that those who ‘are accepted as immigrants’ can acquire citizenship in an exceptional manner.100 As noted above, since only Türk soylu and people of Turkish culture are accepted as immigrants into Turkey under the Settlement Law of 2006, this means that even under the new law, people of Turkish soy and culture continue to enjoy a privileged status. The new law also contains a provision requiring only two years’ residence for Türk soylu people until the end of 2010, as opposed to five years’ residence for other foreign nationals. A special provision added to the Citizenship Law of 2009 gives a right to Northern Cyprus citizens to obtain Turkish citizenship automatically upon application to the authorities, without being subject to any requirements.101 Meanwhile, the immigration of other ethnic components of Turkey are not only not favoured, but they are also forbidden to enter Turkey. For example, beggars are counted among those whose entry into the country is prohibited.102 The MoIA is in charge of deporting stateless persons or foreign citizen Roma people (çingene) or nomadic people (göçebe) who have no bond with Turkish culture.103 Çiçekli further notes that one of the factors taken into account by state officers in their administrative decisions on extradition is whether the individual in question is Türk soylu.104 According to the new Settlement Law of 2006, only people of ‘Turkish descendance and who have a bond with Turkish culture’ (Türk soyundan ve Türk kültürüne baglı) are accepted as immigrants (göçmen) into the country.105 The use of the word ‘and’ in this description is important since it means only racially Turkish people who have a bond with Turkish culture will be accepted as immigrants into the country.106 The previous Settlement Law of 1934 had allowed the immigration of two groups of people into the country – those who were Türk soylu and those who ‘have a bond with Turkish culture’ – although the 99  However, according to article 11 of (defunct) Regulation, RG: 1174/21.07.1964, Türk soylu people were only exempted from the two conditions of being resident in Turkey for five years and from having to prove their intention to live in Turkey. 100  Article 12(c) of Law no. 5901, 29.05.2009. 101  Ibid. article 42(1). 102  Article 8(1) of Law no. 5682, 15.07.1950. Also see article 9 of Regulation, RG: 2898/05.01.1935 which states that people who do not have a bond with Turkish culture and the nomadic Roma people cannot be accepted into the country. 103  Article 21(3) of law no. 5683, 17.07.1950. 104  Çiçekli 2007: 171. 105  Articles 3(1)(d), (e), (f), (g), and (ğ) of Law no. 5543, 19.09.2006. 106  See for discussion on this matter, http://www.tbmm.gov.tr/tutanak/donem22/ yil4/ham/b12501h.htm (last accessed 05.05.2012).

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former were favoured in practice. Briefly, the Settlement Law of 2006 introduces a more privileged status in favour of Türk soylu immigrants. Instead of relaxing its ethnically biased immigration policy, the state has increased its commitment to create an ethnic Turkish citizenry more than ever before. The rules on immigration clearly state that foreigners who are not of Turkish ethnicity and do not have a bond with Turkish culture are not accepted as immigrants into the country.107 The decision as to who comes from the Türk soyu and has a bond with Turkish culture is vested with the Cabinet, upon a proposal of the MoFA.108 The Settlement Law specifies that forced immigrants from Bulgaria are also considered Türk soylu.109 The Settlement Law leaves an open door for future mass immigration from countries which have a Turkish ethnic population pursuant to an agreement.110 Meanwhile, the Turkish state has, periodically and under some special laws, played an important role in facilitating the immigration of people of Turkish race into the country from Bulgaria, Afghanistan, Russia, the Balkans, and so on.111 These policies essentially represent a continuity of an established pattern (see Chapter 3). For instance, in 1982, the Turkish-origin Afghan (Türk Soylu Afgan) families who had sought refuge in Pakistan due to the war in Afghanistan were brought to Turkey by the Turkish state,112 and settled in regions of Kurdish concentration. The costs of their journey and settlement were met by the state. The ethnically Turk Ahıska Turks who had been living in the former Soviet Union are also accepted into the country on a regular basis according to a quota determined by the Cabinet.113 A commission has been established to organize the arrival of this group of people into the country.114 Ahıska Turks who have settled in Turkey or still live in the former Soviet countries can be granted Turkish citizenship by the Turkish Cabinet without having to meet the requirement of being resident in Turkey and they may hold dual citizenship.115 Therefore, the Ahıska Turks enjoy a more privileged position in their acquisition of Turkish citizenship. In 1989, there was also a sizeable immigration of Türk soylu people into the country from Bulgaria, when they escaped from the oppressive communist regime there. There was no particular law to secure their immigration; rather, the influx was managed 107  108  109  110  111 

Article 4(1) of Law no. 5543, 19.09.2006. Ibid.: article 7(1). Ibid.: provisional article 1(1). Ibid.: article 6(1). These influxes of people of ‘Turkish race’ are not subject to public questioning but, rather, attract popular sympathy. Meanwhile, the Turkish government demonstrated strong resistance, for security and ecological reasons, towards accepting the Kurdish refugee influx escaping from Saddam Hussein’s genocidal actions in 1989. They were not accepted as refugees and all were sent back to Iraq. 112  Article 1 of Law no. 2641, 17.03.1982. 113  Article 1 of Law no. 3835, 02.07.1992. 114  Ibid.: article 2. 115  Ibid.: article 6.

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under the general laws on immigration. However, the Turkish state felt itself obliged to secure and facilitate ‘family reunion’ for the immigrants. Therefore, the Cabinet undertook to make the necessary arrangements regarding residency and travel of the lineal kin of these immigrants into the country.116 Recalling Smith’s view that the type of nationalism adopted by a state is also reflected in the tradition of its immigration law, it can be seen that Turkey’s immigration policy also consistently demonstrates a tradition of accepting, facilitating, favouring and privileging of people of Turkish ethnie as immigrants. This tradition is clearly reflected in a reading of primary and secondary legislation as well as state practice. Conversely, the immigration policy tradition reflects back on the type of nation which is contemplated by the Turkish state and helps us to further understand the nation as underpinned by an ethno-nationalist, racialized conception. This narrative once more envisages ‘Turk’ along ethnic lines, rather than as a political community beyond ethnic, religious and cultural lines. Without much explanation, it leaves little room for a politically and legally neutral definition of ‘Turk’, but is rather aimed at the creation of an organic ‘Turk’ who has the same ethnic, spiritual, cultural and moral attributes, and a pride in his or her ‘Turkishness’. 4.3 The Role of Turkish Language in Legal ‘Othering’ Official language policy is considered as unavoidable in nation building. As Virtanen observes, a ‘one state, one nation, one language’ route has been followed by many countries in Europe and around the world.117 It is also considered that ‘with its symbolic functions related to group identification, sense of belonging and national pride, language plays an important role in the creation and maintenance of subjective elements of nationhood.’118 Therefore, to determine one of the spoken languages in a country as an official language of public institutions is more than just the imposition of a language, but can also entail imposing a new identity, culture, history, education and loyalty, and the creating of a nation.119 State policy on the exclusive use of the official language might mean de jure equality by imposing the same obligations and providing the same opportunities to all citizens. However, it does not secure de facto equality if the mother tongue of a section of the citizens is different from the official state language.120 Thus, such de jure policy would effectively discriminate against citizens who conduct their affairs in a non-official language. The declaration of one language as the official language can mean the decline of other languages and linguistic groups in the 116  117  118  119  120 

Additional provision 1 of Law no. 5683, 17.07.1950. Virtanen 2003: 14. Ibid.: 13. Kymlicka and Grin 2003: 11. Higgins 2003.

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country since, usually, there is no equality in the treatment accorded to different linguistic groups. Individuals may have little choice about the language in which they use to communicate with public institutions or to be educated. Because of the close direct connection of language with the public domain, Kymlicka and Grin argue that ‘the standard liberal framework on achieving freedom and equality by taking a “hands-off” attitude or privatizing diversity and leaving it to the free choice of individuals in civil society’ may not be applicable in the case of language.121 Therefore, official language policies are problematic by their very nature. The Turkish language, as one of the ‘unifying and integrating’ (birleştirici ve bütünleştirici) factors,122 has been given importance in the nation-building process (see 3.1). Turkish was stipulated by all the Constitutions as the official language. In a slightly different manner as compared to previous Constitutions, the 1982 Constitution establishes Turkish as the state’s language (article 3), but not the ‘official language’. The National Security Council (Milli Güvenlik Kurulu, MGK) justified the change in the aftermath of the military coup so as not to ‘allow different interpretations’ of the Turkish language. The AYM has subsequently vindicated the classification of Turkish as the ‘state’s language’ declaring that the change in question ‘aimed to prove wrong those interpretations that assume Turkish is simply an official language’.123 It is apparent that in establishing Turkish as the state’s language, the present Constitution has given it a distinct place by associating it with the state. This effort to institute Turkish as something beyond merely the official language carried the implicit claim that it was the language of the people of Turkey.124 The state language policy was prima facie justified by reference to the concept of equality in the explanatory note which stated that the speaking of Turkish by all citizens is ‘beneficial and, further, compulsory for the proper application of the equality principle and the promptness and correctness of judicial and administrative activities. Thus, the state makes sure that everybody knows the official language.’125 Official language policy is thereby defended as a materialization of the equality principle. This justification seems problematic, however. As Kymlicka and Grin have rightly stated (above), official language policies work at the expense of other languages, while the state’s preferable treatment of the official language creates inequality. 121  Kymlicka and Grin 2003: 9. 122  The Turkish language, stated as one of the main components of national

existence, is described as a unifying and integrating (birlestirici ve bütünlestirici) factor for future generations in article 37(e) of Law no. 2876, 01.08.1983. For the same definition, see also article 10(2) of Law no. 1739, 24.06.1973. 123  TBKP-1991. 124  The AYM’s TEP-1980 judgment further showed that the existence of the official language policy entailed linguistic homogenization by underlining that official correspondence, education and national culture should be based solely on Turkish and the only culture of public significance in the country was Turkish culture. 125  See explanatory note to article 81 of Law no. 2820, 22.04.1983, in AYM ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995.

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Except for non-Muslim populations – that is, Greeks, Jews and Armenians – none of the other minority groups’ language rights have been de jure protected by the legal system in Turkey. This seems somewhat in contrast to the provisions of the Lausanne Treaty as already discussed (see 2.2.5). The linguistic rights of a general character as set out in Lausanne Treaty provide de jure protection for other non-Turkish-speaking Turkish nationals as well. The content of this protection is the free use of any language without restriction in private intercourse, commerce, religion, press, or publications of any kind or at public meetings (article 39(4)), and the right to oral use of their ‘own language’ before the courts (see article 39(5)). In fact, despite the widespread view that non-Turkish languages have been prohibited in Turkey, I have not uncovered any law, which specifically prohibits non-Turkish languages in Turkey.126 However, many laws enforce the use of only the official language – Turkish – in many areas of life, thereby closing the doors for the use of other languages.127 Hence, the official language clauses in many laws have been used as a justification for banning and penalizing the use of nonrecognized minority languages in Turkey. Moreover, the jurisprudence of the higher courts also endorses the official language principle as a ban on minority languages, even in cases where the laws did not explicitly oblige the use of Turkish.128 Thus, the official language policy in Turkey has not only been used as a justification for banning the use of minority languages, it has amounted to the unequal and discriminatory treatment of the speakers of these languages. Recently, the de facto prohibition on minority languages is also effectively maintained by the state and judiciary by the revitalization of the Law on the Turkish Alphabet of 1928, which made the use of the Turkish alphabet compulsory in both the public and private spheres. The judiciary has enforced article 222 of the new Turkish Penal Code (Türk Ceza Kanunu, TCK), which criminalizes breaching the Law on the Turkish Alphabet through use of a letter not present in the Turkish alphabet and imposes two to six months’ imprisonment.129 126  However, defunct Law no. 2932, 19.10.1981, which created a ‘prohibited languages’ category, can be seen as an exception in this regard. See 3.1.1 for more details. 127  Article 15(6) of Regulation, RG: 25658/02.12.2004 requires official correspondence to be in Turkish. Article 26(4) of the Regulation, RG: 12345/11.07.1966 requires Turkish citizens to carry out their communication via post, telegraph and telephone in Turkish, and article 26(22) strictly prohibits making intercity phone calls in a language ‘other than Turkish’. Article 25 of Law no. 3071, 01.11.1984, requires petitions to be written in Turkish. Article 10 of Law no. 4686, 21.06.2001 requires either use of Turkish or official languages of states recognized by Turkey in international arbitration. Article 66 of Law no. 6762, 29.06.1956 obliges use of Turkish in business account books. Article 33(c) of Law no. 5042, 08.01.2004 requires names for new plant varieties to be in Turkish and Latin. 128  Y.(2).CD, E.1991/9412, K.1991/10632, 18.10.1991. 129  For same configuration, see article 526 of Law no. 765, 01.03.1926 (defunct). Increased use of criminal charges under this provision for using Kurdish language in public events, billboards, invitations, and so on led to a draft law proposal for the annulment of this law by a deputy: see http://www2.tbmm.gov.tr/d24/2/2-0217.pdf.

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The monopoly of the Turkish language outside the political sphere, in areas which concern expression of thought and publications, eased somewhat with the Constitutional amendments of 2001,130 which were pushed through because of the EU accession process.131 These constitutional changes were followed by the amendment of the Law on the Establishment and Broadcast of Radio and Television, making it possible for citizens to broadcast in ‘languages and dialects traditionally used in daily life’. Consequently, the absolute domination of the Turkish language began to loosen, 74 years after the establishment of the Republic. Nevertheless, what is striking here is that the minority languages were deliberately not referred to in the law as ‘minority languages’, or by their name – for example, Kurdish, Laz, and so on – but were rather referred to as ‘the different languages and dialects used traditionally by Turkish citizens in their daily lives’. This can be interpreted as the state’s unwillingness to fully extend recognition to these languages, and may reflect a desire to maintain the protection of differences merely in a folkloric sense.132 4.3.1 Language in Education As noted, the state language is declared to be Turkish by the 1982 Constitution by article 3, and the Constitution also states, in article 4, that that provision cannot be changed and cannot even be proposed to be changed. The meaning of article 3 becomes clearer when it is read together with article 42 of the 1982 Constitution, which implies that Turkish is the mother tongue of the citizens. Indeed, article 42 prohibits instruction in a language other than Turkish, as it is the mother tongue for Turkish citizens. Thus, the Constitution does not distinguish mother tongue from official language and uses them synonymously.133 The same approach is adopted by Law no. 2923 which reads ‘Turkish citizens may not be instructed in and taught any language other than Turkish as their mother tongue’ (Türk vatandaşlarına Türkçeden başka hiçbir dil, ana dilleri olarak okutulamaz ve öğretilemez).134 Reading these provisions together shows that Turkish is not only an official language to be used in the individual’s relationships with public institutions but it is, further, declared to be an ‘official mother tongue’ for the people of Turkey.135 Another important consequence of the above-mentioned provisions is that the medium of instruction can only be the Turkish language. This is despite the fact that an amendment in 2002 to Law no. 2923 allowed the opening of private language courses for teaching different languages and dialects used by Turkish 130  Law no. 4709, 03.10.2001. 131  See Turkish National Programme for Adaptation of the Acquis Communitaire

Political Criteria on 19.03.2001, RG: 24352/24.03.2001. 132  Virtanen 2003: 24. 133  Üzeltürk 2002: 173. 134  Article 2(a) of Law no. 2923, 14.10.1983. 135  Gözler 2001.

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citizens as part of their traditions.136 The use of languages and dialects used traditionally by Turkish citizens in their daily lives in primary, secondary and mass education is still prohibited. However, Law no. 2923 further restricts use of non-Turkish languages, by prohibiting these languages to be used in the teaching of Turkish Republic Reform History and Atatürkism, Turkish Language and Literature, History, Geography, Social Studies, Religion, Culture and Moral Study and courses related to Turkish culture.137 Further, homework on these subjects also cannot be submitted in a language other than Turkish.138 Thus, non-Turkish languages and dialects used by Turkish citizens as part of their tradition may not be used as a medium of instruction in most contexts. The requirement that education be only in Turkish has been upheld by the AYM in a case in which it examined the constitutionality of Law no. 4771, which allowed broadcasting in languages and dialects spoken by people in their daily life.139 The same approach has taken by the Yargıtay Grand Civil Chamber (Yargıtay Hukuk Genel Kurulu, YHGK) when it examined the closure of the teachers’ trade union Egitim-Sen.140 Following a demand by the General Staff Office (Genel Kurmay Baskanlığı), the Ankara Governorship closed Eğitim-Sen because one of the aims set out in its founding regulation read ‘[the Eğitim-Sen] defends individuals’ education in their mother tongue and thereby enhances their cultures.’ The first-instance court had rejected the closure of Eğitim-Sen, since it found this provision in its founding regulation to be in line with the ECHR and the law. However, the Yargıtay’s ninth chamber quashed that decision. The first-instance court then insisted on its judgment and refused to comply with the Yargıtay chamber’s decision,141 and the case was heard by the YHGK, the highest civil chamber of the Yargıtay, which quashed the first-instance judgment and decided that asking for only mother-tongue education was a violation of articles 3 and 42(6) of the Constitution. The YHGK’s justification for its judgment is instructive. It claimed that the establishment of Turkish as the state language was the ‘natural result’ of being a unitary state, as set out in article 3 of the 1982 Constitution, which provides that the ‘state of Turkey constitutes an indivisible whole with its territory and nation’. In its view, ‘the nation’s unity (bütünlüğü) means the nation’s oneness (teklik) in public life. For that reason, only the national culture is valid in public life and under the protection of the law. In private life everyone may live the culture they 136  Article 2(a) of Law no. 2923, 14.10.1983, as amended by Law no. 4771, 09.08.2002. 137  Ibid.; article 2(b). 138  Ibid. 139  AYM, E.2002/146, K.2002/201, 27.12.2002. See also the AYM’s decision SP1992 where education in local languages instead of the official language as a ‘modern education tool’ was considered impossible. 140  YHGK, E.2005/9-320, K.2005/355, 25.05.2005. 141  Y.(9).HD, E.2004/28345, K.2004/24792, 15.09.2004.

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feel they belong to.’ The YHGK considered the realization of the right to education in mother tongues as allowing a contingent number of languages to appear in the public sphere which, it concluded, would contradict the unitary state principle. The YHGK also claimed that allowing only the official language to be visible in the public sphere was in line with the human rights treaties to which Turkey is party and necessary in a democratic society. Further, the YHGK described a mother tongue as the ‘language by which individuals first interact with their immediate people’. It stated that ‘an individual learns his mother tongue from his immediate people and can use this language according to his wish outside of the areas in which the use of Turkish is compulsory’, thus implying that there was no need for the state to take action to teach other languages. The YHGK also claimed that education in mother tongues ‘will increase and transmit social deadlocks to fields of education, science and the public sphere’. Thus, while accepting that different languages and dialects may be taught through private courses or used in broadcasting, the YHGK considered education in the mother tongue to be different from these activities and unacceptable. Further, the YHGK considered mother languages other than Turkish as ‘merely an element of the culture (kültür öğesi)’. Thus, they had to remain in the private sphere and their transfer into the public sphere under the name of different mother tongues was found to contradict the Constitution. The state and judicial bodies’ uncompromising opposition to the use in education of ‘the different languages and dialects used traditionally by Turkish citizens in their daily lives’ became obvious during the ‘Education in Mother Tongue’ campaign initiated by some Kurdish university students who asked for the Kurdish language to be taught as an ‘optional course’. The state initiated an administrative investigation, and criminal charges entailing three years’ and nine months’ imprisonment were brought against these students for aiding and abetting an illegal organization, the PKK. The criminal proceedings ended in acquittal, however. Meanwhile, most of the students were suspended from their universities by a decision of disciplinary bodies, although the suspensions were later quashed by the Danıştay, relying on the amendment in 2002 to Law no. 2923 which allowed private language courses for teaching different languages and dialects used by Turkish citizens in their daily life as part of their tradition.142 Despite recent liberalization in the access to mother-tongue teaching, which held out the promise of dissolving the monopoly of Turkish, at least in the private sphere, there is considerable legal ambivalence as to how far such liberalization should go. Recent changes in Turkish law under the pressure of conditions for EU accession have enabled the claim to be made that non-Turkish languages may 142  Dan.(8).D., E.2002/3569, K.2002/6478, 30.12.2002. Despite the quashing of the suspensions by the Danıştay, the ECtHR found Turkey in violation of Article 2, Protocol 1 of the ECHR holding that the applicants’ suspension from their university for their campaign ‘Education in Mother Tongue’, amounted to a restriction on their right to education (Irfan Temel and others v. Turkey, no. 36458/02, 03.03.2009).

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be used in a broader range of areas, but this has in turn placed more emphasis on policing the boundary between the public and the private. This is leading to renewed tensions and further claims as to how far languages other than Turkish may be used in the educational sphere, with consequent responses by the state and judicial organs reinscribing the importance of Turkish as the language of education. As stated, because of the close direct connection of language with the public domain, the state’s ‘hands-off’ attitude – that is, privatizing diversity, and leaving it to individual members of the minorities – is particularly problematic in the case of language.143 Meanwhile, we should also note that changes are being introduced in other ways that make the field of educational language a moving target. For the first time in the history of the Turkish state, in late 2009, the Living Languages Institute (Yaşayan Diller Enstitüsü) was established at Mardin Artuklu University. On 26 January 2011, the Higher Education Executive Board (Yüksek Öğretim Kurumu Yürütme Kurulu) decided on the establishment of the Kurdish Language and Culture Department at Mardin Artuklu University, which began teaching in academic year 2011–12. How far the implications of this will go is as yet too early to evaluate. 4.3.2 Broadcasting As seen in Chapter 3 (3.1.1) and as discussed further in Chapter 6, publishing and broadcasting in a language other than Turkish has been banned through the state’s de jure and de facto practices. However, since the year 2000, several steps have been taken allowing publication and broadcasting in minority languages.144 The main locomotive for these changes were the EU negotiations process, since ‘effective access to radio and TV broadcasting in languages other than Turkish, in particular by removing remaining legal restrictions’ is set out as one of the shortterm measures to be taken in the EU action plan.145 Broadcasting on state television and radio in ‘different languages and dialects traditionally used by Turkish citizens in their daily life’, if only a few hours and with limited content, became legally possible with article 4 of a Regulation of 2002.146 However, this liberalization was realized in practice only after the issuing of a (now defunct) Regulation in 143  Kymlicka and Grin 2003: 9. 144  For the changing jurisprudence on this issue, see Dan.(10).D., E.1997/3210,

K.2000/244, 27.01.2000 where the court annulled a decision of the Supreme Board of Radio and Television (RTÜK), which warned against a television interview with some Kurdish speaking citizens alleging that it would breach the law requiring ‘broadcasting in radio and television should be in Turkish’. The Danıştay annulled another RTÜK decision to provisionally close a radio station broadcasting Kurdish songs without considering the content of the songs. The court decided that merely playing Kurdish music cannot violate the law (Dan.(13).D., E.2005/489, K.2005/1010, 02.03.2005). 145  See Council Decision on the Principles, Priorities and Conditions Contained in the Accession Partnership with the Republic of Turkey (2008/157/EC, 18.02.2008). 146  Regulation, RG: 24967/18.12.2002.

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2004,147 which was still very restrictive and maintained strict state control over broadcasting in minority languages. For the first time in Turkish history, broadcasting in some non-recognized minority languages – Bosnian, Arabic, Kurmanci, Circassian and Zaza – was commenced on 7 June 2004 by the state television channel TRT. It broadcast only news and had very limited broadcasting time. In 2006, again for the first time in Turkish history, the Supreme Board of Radio and Television (Radyo ve Teleyizyon Üst Kurulu, RTÜK) allowed local private broadcasters to make broadcasts in languages and dialects traditionally spoken by Turkish citizens, for a maximum of 45 minutes a day on television and an hour a day on radio. They could make limited broadcasts of news, music, or cultural programmes. The first private regional television and radio broadcast in a minority language commenced on 17 June 2006.148 Later, in June 2009, the RTÜK decided to remove time restrictions upon local private broadcasters only for music or film programmes, although time restrictions continued for news or discussion programmes in these minority languages. Television channels were required to use Turkish subtitles during their broadcasts. On 1 January 2009, the state television channel TRT-6, began to broadcast 24 hours in Kurdish, according to the amended article 21 of Law no. 2954.149 This is a very important step for the protection and promotion of minority languages in Turkey: up to then, although the state television channel TRT had commenced broadcasting in minority languages including Kurdish, it did not do so on a legal basis and therefore amounted to no more than de facto government practice. Finally, unlimited broadcasting in minority languages found a legal basis with a Regulation which came into force on 13 November 2009.150 The first private Kurdish television channel Dünya TV started 24-hour broadcasting in June 2010 on a national scale.151 Currently, therefore, there are no legal restrictions on the content of the programmes or periods of broadcast in minority languages.152 There is also no longer a requirement to show Turkish subtitles for programmes in minority languages. However, the law still requires the RTÜK’s permission to decide which languages and dialects traditionally spoken in the daily life of Turkish citizens

147  (Defunct) Regulation, RG: 25357/25.01.2004. 148  Söz-TV and Gün-TV in Diyarbakır and Medya-FM in Urfa commenced

broadcasting in Kurdish (Minority Rights Group 2007: 18). 149  As changed by Law no. 5767,11.06.2008. 150  See (defunct) Regulation, RG: 27405/13.11.2009. This regulation was later replaced by the current Regulation on Procedures and Rules for Broadcasting Service (Yayın Hizmeti Usul ve Esaslari Hakkında Yönetmelik) RG: 28103-02.11.2011. 151  For more information about TV broadcasting in Kurdish from other countries see discussion in Güneş 2011: 114–15. 152  See Regulation, RG: 28103-02.11.2011.

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are eligible for broadcast.153 Further, except for music, films and commercials, it seems other programmes (for example, for children, news, educational, and so on) in minority languages still require the RTÜK’s approval and permission.154 Conditioning private broadcasting in these languages to the RTÜK’s permission and, more importantly, confining it to only the languages or dialects traditionally spoken in the daily life of Turkish citizens, leaves to the state a wide discretion to decide which languages and dialects qualify for broadcasting. For instance, so far, no broadcasting in the Laz language has yet been initiated by the state or private sector, and only a state radio station recently began to broadcast twice a day for half an hour in Armenian. A lack of state interest towards some minority languages in broadcasting results in the unequal treatment between minority groups who receive state-sponsored broadcasting and those who do not. The possibility to give or withhold permission for broadcasts unilaterally without firm legal protection continues to provoke questions about the strength, consistency and direction of the state policy in this area. While 24-hour broadcasting in Kurdish on state and private television channels is allowed, the Kurdish language is still referred to in the TBMM records as an ‘unknown’ language, and the records still carry remarks to the effect that ‘the speaker spoke in an unknown language, [s/he] expressed some words.’155 Publications, invitations and advertisements in Kurdish still attract criminal investigations and charges.156 Moreover, in a recent incident, broadcasting on TRT-3 (Parliament) channel of a speech in Kurdish by the deputy Ahmet Türk’s at the TBMM party’s group meeting of Democratic Society Party (Demokratik Toplum Partisi, DTP) was stopped since he had spoken at the TBMM in a language other than Turkish.157 4.3.3 Politics and Public Life Turkish is still the compulsory language in politics and public life. Political parties are forbidden to assert that there exist minorities based on linguistic differences or to promote a non-Turkish language and culture.158 Further, the concept of ‘language banned by law’, which was abandoned by the Turkish legal system in

153  Article 7(2) of Regulation. RG: 28103-02.11.2011. 154  Article 7(5) of Regulation, RG: 28103-02.11.2011. 155  For instances of such utterances, see TBMMGKT, 27.11.2008, p. 82, 17.12.2008,

p. 80, 18.12.2008, p. 96, 21.12.2008, p. 38, 25.12.2008, p. 124, 26.12.2008, p. 83. 156  See DTP deputy İbrahim Binici’s ‘question’ (soru önergesi) to Prime Minister Tayyip Erdoğan on 02.01.2009, http://www.haberx.com/Gundem-Haberleri/Ocak-2009/ DTPden-Kurtce-kanal-sorusu.aspx (last accessed on 28.10.2009). 157  Criminal charges were also brought against Ahmet Türk for his speech: http:// www.haberdiyarbakir.com/news_detail.php?id=20548&uniq_id=1247442181, last accessed 06.05.2012. 158  Article 81(a), (b) of the SPK-1983. See also article 89 of the SPK-1965 (defunct).

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1991, still finds a place in laws governing political participation. For instance, article 81(c) of SPK-1983 prohibits political parties if they … use a language other than Turkish in the drafting and publication of their statutes and programmes, and in their outdoor or indoor meetings, rallies and propaganda activities, use or distribute placards, posters, records, audio and video tapes, brochures and declarations written in a language other than Turkish, or be indifferent to the commission of such acts and actions by others. However, they may translate their statutes and programmes to a foreign language other than one which is prohibited by law. [Emphasis added]

Article 81(c) of SPK-1983 thus prohibited the use of a language other than Turkish by the political parties in their closed or open meetings, propaganda, in the writing of their party regulations, and so on, although translating party statutes and programmes into foreign languages (for example, English and French) is allowed. Political parties are also prohibited from allowing any person to use a non-Turkish language in any of the above situations. Meanwhile, since the concept of languages prohibited by law had been relegated from the legal system, which languages are actually covered by article 81(c) creates confusion. Its content can be judged by the higher courts’ jurisprudence, which shows that banned languages are those spoken by minority groups(particularly Kurdish) in Turkey. According to article 117 of SPK-1983, a violation of this prohibition by a politician speaking a non-Turkish language (see article 43(3)) is punishable by a minimum of six months’ imprisonment. Using a language other than Turkish, or using written material in a language other than Turkish in an election campaign on radio or television, was also forbidden according to the Law on the Fundamental Provisions on Elections and Voter Registers, which penalized such actions with six months to one year of imprisonment.159 An amendment in 2010 to article 58 of the Law on the Fundamental Provisions on Elections and Voter Registers, which requires ‘use of Turkish as primary’ in election campaigns, has been interpreted by many as removal of the ban on use of non-Turkish languages during election campaigns. However, as we see below, in practice, the courts in Turkey have continued to especially penalize pro-Kurdish politicians for using Kurdish by relying on article 81(c) of SPK-1983.160 State reforms and the de facto state approach to minority languages find a very reserved, conservative and selective response from the Yargıtay. For instance, in 2006, the Yargıtay upheld a first-instance judgment where a Democratic People’s Party (Demokratik Halk Partisi, DEHAP) candidate was sentenced to 159  Respectively, article 58 and 151(2) of Law no. 298, 26.04.1961. Akbulut 2005: 391 argues that such a ban is in violation of non-Muslim minorities’ rights under article 27 of the ICCPR, since Turkey’s reservation to this article does not apply to them. 160  http://www.yuksekovahaber.com/haber/kurtce-selamlamaya-ceza-43284.htm and http://haber5.com/siyaset/baskana-kurtce-konusmaktan-ceza, last accessed 23.02.2012.

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imprisonment (later converted to a fine), since he had used Kurdish in his election campaign.161 However, a year earlier, it had ruled that use of Kurdish remarks during an election campaign was not enough to find a defendant guilty of ‘Kurdish propaganda’, since he had used Kurdish in order to oppose ethnic discrimination and communicated messages of brotherhood and peace.162 The discrepancies in the Yargitay’s judgments are interesting to examine further, since it may tell us why the Turkish judiciary seems to be selectively harsh on some defendants, while taking a more relaxed approach towards others. Then the question of whether it is an expression of prejudice towards pro-Kurdish political views and politicians in Turkey needs to be answered. The Yargıtay’s intolerant approach is mirrored once again in its recent upholding of a conviction by a first-instance court of a candidate for speaking in Kurdish during an election campaign.163 A prohibition of the use of minority languages or the imposition of mandatory language requirements in political participation might result in violations of international human rights law. For instance, the UN Human Rights Committee’s General Comment No. 25 (57), para. 12, requires that ‘information and materials about voting should be available in minority languages’ as a condition for the effective use of the right to vote protected under article 25 (b) of the International Covenant on Civil and Political Rights (ICCPR). Further, a case communicated to the Turkish government because of the punishment of politicians for speaking in Kurdish during a parliamentary election campaign might have important consequences about the linguistic rights of minority candidates to stand for parliamentary elections.164 The case was communicated under articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the ECHR and if the ECtHR finds a violation of these articles, Turkey would be obliged to change its legal provisions accordingly. The compulsory use of Turkish has also covered legal entities. Associations could not use a ‘language banned by law’ in their correspondence, public or private meetings, congresses and publications.165 This has been changed to a requirement to ‘use Turkish in their official activities’ and, later, to ‘use Turkish in their official 161  Y.(8).CD, E.2005/1470, K.2006/4305, 11.05.2006. On the other hand in its earlier judgments, the Yargıtay found that singing in Kurdish during an election campaign (see Y.(8).CD, E.2003/12472, K.2005/2707, 27.04.2005), or greeting the crowd with a oneline Kurdish sentence (see Y.(8).CD, E.2004/6012, K.2005/12232, 19.12.2005), did not violate the prohibition on conducting an election campaign in a language other than Turkish. 162  Y.(8).CD, E.2003/11488, K.2005/9697, 17.10.2005. 163  Mithat Sancar, ‘Normalleşen Irkçılığın Bir Örneği Daha: Kürtçe Yasağı ve Orhan Miroğlu Davası’, Birgün, 29.09.2008. Specifically, members of the HAK-PAR presidential committee were sentenced on 14.02.2007 to prison terms of between six months and one year by the first-instance court for publishing an invitation in Kurdish and speaking in Kurdish at their first annual congress. The Yargıtay upheld the convictions but reduced the sentence to five years’ ‘controlled freedom’. 164  Aydın and Others v. Turkey, nos. 49197/06, communicated on 9 March 2010. 165  Article 6(3) of Law no. 2908, 06.10.1983 (defunct).

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correspondence’ in 2003,166 which created an impression that associations might use a language other than Turkish in their internal correspondence and records. However, the Association Law of 2004 reintroduced the principle of compulsory use of Turkish and stated that associations must use Turkish in their correspondence with state institutions, as well as in their internal records.167 Using Turkish is also compulsory for public services provided by local municipalities and this has been confirmed by the judicial bodies. In a case following a claim brought by the MoIA, the Danıştay concluded that providing services in Kurdish, Arabic, Syriac and Armenian by a local council is against article 3 of the 1982 Constitution, linking the state language principle to the ‘Turkish state’s indivisible unity with its territory and nation’ principle. It also referred to the Law on the Turkish Alphabet of 1928, which obliged the use of the Turkish alphabet. The Danıştay also justified its decision using the concept of equality, stating that municipalities had to provide services for which they are responsible to all ‘impartially and equally without subjecting them to differentiation’. As a result, the Danıştay forced the mayor and aldermen to leave their seats in 2007.168 By not allowing the use of minority languages in accessing public services, especially in areas where the minorities compose the majority or are very numerous, the judiciary fails to grasp and accommodate needs of the minorities and also falls short of international standards.169 In various areas of public life, therefore, the use of languages other than Turkish is still effectively prohibited in Turkey. Unlike in the areas of private language education and media controls (discussed at 4.3.2 above), where a certain flexibility has become evident, particularly with the prospect of EU accession, the restrictions on party political literature, political campaigns and speeches, local government activities including sponsorship of events and provision of services, and controls on languages used by associations have not become flexible. The official law thereby appears to maintain a firm view of the need to impose a Turkish-only policy in what is considered to be the public/political sphere. 4.3.4 Private Life While the above discussion shows that the ‘public’ sphere is defended strongly against infiltration of non-Turkish elements, we find that a similar logic informs the legal authorization of surnames and forenames in non-Turkish languages. In this field, as in others, we find that a series of official bodies including legislators, judges and public prosecutors, see their role as ‘holding the line’ against the choosing of non-Turkish surnames or forenames, again underlining the asymmetrical treatment of the non-Turkish languages and peoples of Turkey. 166  167  168  169 

Article 18 of Law no. 4778, 02.01.2003. Article 31 of Law no. 5253, 04.11.2004. Dan.(8).D., E.2007/5495, K.2007/4542, 08.08.2007. See ECRI report on Turkey 2011, paras 79–81.

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Recent legislative changes, particularly with EU-imposed criteria in mind, have not necessarily resulted in extensive pluralism, while the signals from Strasbourg case law are not necessarily supportive of change in a pluralistic direction either. Surname Cases As discussed in Chapter 3, the prohibition on taking a non-Turkish name as a surname was introduced by the Surname Law of 1934. However, the prohibition became more defined in article 5 of the Surname Regulation of the same year which stated that ‘new surnames are taken from the Turkish language’ (see 3.1.1).170 The public prosecutor was given the discretion to challenge before the courts surnames not in accordance with the prohibition upon a writ given by the highest administrative officer of the region (article 6 of the Surname Law). Besides this, article 12 of the Surname Regulation gives authority to the Civic Registry Office not to register a surname prohibited from being used. Further, with that article, the lieutenant colonel or governor are put in charge of ordering the removal of prohibited surnames from the Civic Registry documents and assigning a new surname, in case a prohibited surname is registered somehow. The Surname Regulation thus introduced a stricter control, and gave authority to the administrative bodies to remove a surname without a court’s decision. The Yargıtay has developed two different approaches. In naturalization cases, the Yargıtay has taken a more liberal view and allowed new citizens to use their non-Turkish surnames, as long as they are not a name of a foreign race or nation.171 Meanwhile, the Yargıtay’s case law has added further restrictions upon article 3 of the Surname Law by deciding that newly taken surnames must be written in accordance with Turkish grammar rules. Thus a surname that contains letters which are not in the Turkish alphabet may not be registered.172 Meanwhile, in those cases concerning a member of a minority group who is also a citizen, the Yargıtay has taken a militant nationalist view and rejected non-Turkish surnames. For instance, it refused the demand that the surname ‘Özbakır’ (in Turkish) be changed to ‘Danho’ (used as a surname by the Syriac minority), on the ground that the Surname Law prohibits the use of names of foreign races and nations and that the Surname Regulation obliges that new surnames be taken from Turkish.173 The Yargıtay’s case law also shows that its conservative approach continues in cases where a Muslim citizen changes religion and demands his surname be changed accordingly.174 For instance, it refused the demand of a Buddhist convert who asked his Turkish name and surname be changed to ‘Padmapani Paramabindu’, in line with his new religion. While accepting that his name be changed as demanded, it 170  The Yargıtay has wrongly stated that ‘there is no law which requires a surname to be in the Turkish language’ (Y.(18).HD, E.1997/7313, K.1997/7500, 10.09.1997). 171  Y.(18).HD, E.1997/7313, K.1997/7500, 10.09.1997. 172  Y.(18).HD, E.2006/1153, K.2006/1822, 07.03.2006. 173  Y.(18).HD, E.2005/10821, K.2006/428, 31.01.2006. 174  Y.(18). HD, E.2005/791, K.2005/738, 14.02.2005.

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did not allow him to take ‘Paramabindu’ as a surname on the ground that it was not a Turkish word.175 With the exception of some naturalization cases, therefore, the Yargıtay’s case law demonstrates, especially in cases regarding existing minorities or the taking of non-Islamic names, that it is more conservative and tries not to interpret the law to facilitate the accommodation of minorities. It further forces people to take on a Turkish surname. The Yargıtay’s approach is shared by the AYM, as shown in a recent judgment where it supported the ban on non-Turkish surnames.176 A Syriac-origin Turkish citizen, Favlus Ay, applied to a court in Midyat to change his name and surname to Paulus Bartuma. Since his surname was prohibited by article 3 of the Surname Law (it was not a Turkish surname), he argued that article 3 was inconsistent with the equality principle in article 10 of the Constitution. The first-instance court considered his claim on the unconstitutionality of article 3 of the Surname Law serious enough to refer the case to the AYM. The AYM rejected his claim, however, concluding that since the law was applied to everybody on an equal footing, it did not constitute a violation of article 10 of the Constitution. While we examine the AYM’s view of equality further in Chapter 6, it may be noted in passing that in this case too it conceptualized equality as entailing a formal equality before the law and not substantive equality. The AYM’s justification for this judgment is interesting in that it shows its very conservative and nationalist position at the expense of minority rights and freedoms. The AYM noted that the legislator’s aim in authorizing the surname provision was to ensure the ‘linguistic identity’ of the country such that it would prevent ‘discrimination of minorities’ and unify citizens ‘under the national identity and language’. It supported the prohibition on taking non-Turkish words as surnames. on the ground that it ‘maintains national unity’ (ulusal birliğin sağlanması) and protects the ‘language and identity’ of the nation which only happen to be Turkish. It is noteworthy that 8 out of 17 judges wrote dissenting opinions in this case. Some judges criticized the ban for being inconsistent with the equality principle since the law allowed an existing nonTurkish surname to be replaced with Turkish one, but it would not allow a Turkish surname to be changed with non-Turkish word. Other judges criticized the law for its reference to the concept of race and pointed to the UN Convention on the Elimination of All Forms of Racial and Ethnic Discrimination of 1969. It is also noteworthy, however, that all judges agreed with the necessity of non-Turkish surnames to be spelled according to the rules of Turkish grammar, in line with the ECtHR’s judgment in the case of Taşkın and Others v. Turkey.177

175  For criticism of the Yargıtay’s view in this regard, see Bakar 2002: 274. 176  AYM, E.2009/47, K.2011/51, 17.03.2011. 177  Taşkın and Others v. Turkey (nos 30206/04, 37038/04, 43681/04, 45376/04,

12881/05, 28697/05, 32797/05 and 45609/05, 2.2.2010).

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Forename Cases It was not only family names which were contemplated as having to be in Turkish, but there have also been compulsions for personal names to be Turkish. The legal basis of the prohibition was the Civic Registry Law of 1972 until its annulment in 2006.178 In fact, this law did not have an explicit article prohibiting non-Turkish names. However, article 16(4) of the Civic Registry Law of 1972 obliged names to comply with the ‘national culture, national morals, customs and traditions’ and that they should not ‘strain the public conscience’. The administrative and judicial bodies, by interpreting the concepts of ‘national culture, national morals, customs and traditions’ and ‘public conscience’ with reference to the Turkish ethnie and Islam, not only legitimatized the ban on non-Turkish names, but also forced personal names to be in Turkish. The restrictions set out in article 3 of the Surname Law were thus used also as a justification for prohibiting non-Turkish minority names.179 It proved once again that the coordinates of the ‘national’ and ‘public’ are defined by the judiciary through the Turkish ethnie. Thus, until the 1980s, public prosecutors brought actions for the nullification of registered names which were considered not compatible with ‘national culture, national morals, customs and traditions’, and as straining the public conscience. However, in 1987, the Yargıtay changed its case law and began to rule that giving a name to a child was the right of the parents and to take this right from them, and to give a child a name chosen by the state authorities, was contrary to the current law, and went against Turkey’s reality as well as the legal, social and cultural level of Turkey.180 The Yargıtay thereby prevented the public prosecutor demanding from the courts that names be nullified. Although the public prosecutor could no longer ask for nullification of nonTurkish names, from the Yargıtay’s judgment onwards, the state and judicial bodies’ interference and interest in naming continued by reliance on article 46(2) of the Civic Registry Law. That article authorized the public prosecutor to ask that a given name be ‘corrected’ if it did not comply with ‘national’ culture, morals, customs and traditions, upon being informed by the Civic Registry officer about the registration of such a name.181 Further, state control over names also continued through ‘name-changing’ cases since, in practice, changing a name was only possible by a judicial decision and required the public prosecutor’s involvement (article 46(1)), which worked as a tool for ensuring that claims to take non-Turkish names were rejected.182 Relying on article 46, the public prosecutor thus challenged demands by people to take a non-Turkish name. 178  Law no. 5490, 25.04.2006. 179  Zevkliler, Acabey and Gökyayla 1999: 416; see also Akipek and Akıntürk 2002:

441.

180  Y.(3).HD E.1768/1987, K.1987/3765, 07.04.1987. Y.(18).HD E.1992/411, K.1992/1351, 13.03.1992. 181  Article 77 of (defunct) Regulation, RG: 15926/03.05.1977. 182  Y.(18).HD E.2002/11552, K.2003/663, 03.02.2003.

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The strict prohibition on non-Turkish-minority forenames began to soften from the 1990s onwards. In 1993, the Yargıtay183 quashed a first-instance court judgment which had disallowed a Kurdish name ‘Berfin’ to be registered as a forename, by relying on the Turkish Language Society’s184 expert opinion opposing the name on the grounds that it was a ‘foreign origin name’ and thus a non-Turkish name in contradiction with national culture, customs and traditions. However, since the Yargıtay’s main criticism in this judgment was on the expert’s capacity to provide such an opinion, in practice, the first-instance courts continued to refuse nonTurkish-minority forenames to be registered. A landmark judgment was handed down in 2000 when the YHGK allowed the word ‘Mizgin’, mainly used by Kurds as a forename, to be registered. Previously, the first-instance court, the Yargıtay’s Civil Section Court, and the YHGK in turn had all refused the claimant’s demand to have his daughter’s official name, Hatice, to be changed to the name, ‘Mizgin’, a Kurdish name by which she was known. They justified it on the ground that that did not constitute a ‘reasonable justification’ (haklı neden), and further, that the name ‘Mizgin’ was not compatible with ‘national culture, usage and customs’ (milli kültüre, örf ve adetlere) under article 16(4) of the Nüfus Kanunu (Population Law, now defunct), since it was not from the ‘Turkish language’ (Türk dilinde olmayan), while the word ‘Mizgin’ has contradictory meanings in Farsi (good news) and in Turkish (a person who has urinated on her/himself).185 The case was reheard by the Yargıtay’s Civil Grand Chamber upon the claimant’s application for rectification of the previous decision (karar düzeltilmesi). The appeal court somewhat surprisingly changed its previous judgment and stated that the aim of article 16(4) of the Nüfus Kanunu was not to clear the Turkish language of foreign origin words, but to prevent the registration of names which are not compatible with ‘the national culture, morals, usages and customs’. It decided that the name ‘Mizgin’ was not incompatible with any of these criteria.186 The judgment may nevertheless be criticized because, although the claim was about the compatibility of a Kurdish name with the law, the YHGK allowed the name to be used without indicating its link to Kurds or the Kurdish language. Instead, it opted to justify its lawfulness by emphasizing its ‘foreign (Farsii) origin’. The Yargıtay thereby recognized a Kurdish name without acknowledging its Kurdishness. This 183  See Y.(18).HD, E.1993/9708, K.1993/10832, 13.10.1993. 184  This organization, and the AKDTK, have regularly been used by the courts as

expert bodies in such cases, but an examination of their opinions demonstrates that they have always taken a Turkish nationalist viewpoint, and vehemently opposed minority names. See Y.(18).HD, E.1997/1891, K.1997/2881, 25.03.1997; Y.(18).HD, E.1994/7386, K.1994/8560, 21.06.1994; Y.(18).HD, E.1993/9708, K.1993/10832, 13.10.1993. 185  See YHGK, E. 1999/18-966, K. 1999/1010, 01.12.1999. The dissenting judge, Bilal Kartal, criticized the YHGK for not allowing a name to be taken on account of its ‘Farsii or Kurdish origin’. 186  YHGK, E.2000/18-127, K.2000/154, 01.03.2000.

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approach may be referred to as de facto accommodation, which still carefully resists de jure accommodation of the Kurds. Even this de facto accommodation is problematic when we consider how the court explained the Kurds’ distinctive characteristics. The YHGK attributed the Kurds’ difference to some ‘regional formations’, a result of their having lived in a certain part of the country for so long as a closed society, are considered important, and influence individuals living in those areas. This portrayal of Kurdishness as a ‘regional formation’ allows the courts to deflate the claim that it has an independent existence. Thus, it declares these ‘regional’ particularities as part of the ‘national culture, usages and customs’, and asserts the fusion of these distinctive characteristics into the ‘national culture’. The YHGK’s description of Kurds as a ‘regional formation’ in order to annex Kurdishness to Turkishness becomes even more apparent when it refers to ‘Mizgin’ as a word used in a ‘regional accent’ (yöresel ağızda), presumably implying that it is a ‘regional accent’ of the Turkish language. Although the judgment therefore demonstrates an effort by the Turkish higher courts to take into account the needs of a wider range of people in Turkey, it also shows that they still fail to recognize Kurds as a distinct people. Still, this relatively ‘liberal’ judgment by the YHGK created hope among minorities that their distinctive names might be recognized by the state authorities. Many Kurdish people applied to the courts for their Turkish forenames to be replaced by Kurdish forenames. However, this civil movement soon drew the attention of the state authorities and the MoIA sent a secret circular to governors asking that Civic Registry Offices prevent people from taking Kurdish names.187 It later led to the initiation of criminal investigations against individuals under the Anti-Terror Law, which were eventually dropped.188 Due to the increasing pressures from the EU, Turkey finally removed the requirement that a name be compatible with ‘national culture and national morals’ from the law in 2003.189 Further, the MoIA issued a Circular (Genelge),190 assuring citizens that taking names in accordance with their ‘traditions and customs’ was lawful as long as they are not contrary to moral rules or do not have aspects (yönü) that strain the public conscience. However, the Circular introduced a further restriction by requiring all names to be written in the characters of the Turkish alphabet. Effectively, forenames written using the letters q, x and w would not be registered. Following these legal changes, the Yargıtay began to reject registrations of non-Turkish minority names relying on the Law on the Turkish Alphabet,191 187  Human Rights Association (İHD) Diyarbakır Branch Report (2002) on ‘Kürtçe İsimlerin Yasaklanması’, www.ihddiyarbakir.com/dosya/ozel_rapor/kurtce_isim_raporu. htm-49k, last accessed 08.06.2008. 188  See Aslan 2009 for details. 189  Law no. 4928, 15.07.2003. 190  MoIA, Circular of the General Directorate of Civic Registry and Citizenship Works, Circular no. 2003/37, 24.09.2003. 191  Law no. 1353, 01.11.1928.

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which allows the use only of the Turkish alphabet in public and private matters (article 2) and effectively prohibits use of the letters of q, x and w for name registration.192 In fact, this restriction is not a recent innovation but has been applied against non-Muslim minority names since the early years of the Republic, following the entry into force of the Law on the Turkish Alphabet in 1928. The possibility of including q, w and x into the Turkish alphabet was discussed with reference to the needs of non-Muslim minorities but was eventually rejected. Thus, names containing these letters were not registered by the Civic Registry Office, or the Deed Registry, unless spelled using the closest letter of the Turkish alphabet.193 Since the state did not see a ‘disadvantage’ in allowing ‘Christian citizens’ to take names in accordance with their religion and culture, there has not been a legal restriction to this end.194 However, the state has generally required their forenames to be written in accordance with Turkish-language grammar rules, since the state language is Turkish.195 However, the ECtHR’s recent case law supports the Turkish state’s policy since it has not found that the rejection of the Kurdish applicants’ demands for their forenames to be spelled with the letters q, x, w as amounting to a violation of articles 8 and 14. Taking into account the ECtHR’s established case law on the matter, such a conclusion is not a surprise. However, the correctness of the decision is very debateable from the point of view of article 14, especially if one considers that juridical persons are allowed to use these letters in their corporate names.196 A quick search of the website of the Union of Chambers and Commodity Exchanges of Turkey will reveal the registration of many corporate names in these letters. Therefore, the Turkish government’s practice cannot be justified since the

192  Y.(18).HD, E.2006/1153, K.2006/1822, 07.03.2006. 193  Özdemir 2008: 579. 194  MoIA, General Directorate of Civic Registry and Citizenship’s Circular of

29.11.1985. 195  Demiralp 2003: 177–8. 196  The ECtHR has given judgment in two important name cases, albeit with different results. In Güzel Erdagöz v. Turkey (no. 37483/02, 21.10.2008), the Court found a violation of article 8 ECHR for refusal of the applicant’s request for rectification of the spelling of her forename (which had been registered in its Turkish spelling ‘Güzel’) to its Kurdish pronunciation (‘Gözel’). In so doing, the ECtHR noted the wide variety of linguistic origins of Turkish forenames and based its finding on the fact that Turkish law did not indicate clearly enough the extent and manner in which the authorities use their discretion when imposing restrictions on and rectifying forenames. Meanwhile, in Kemal Taşkın and Others v. Turkey (nos 30206/04, 37038/04, 43681/04, 45376/04, 12881/05, 28697/05, 32797/05 and 45609/05, 02.02.2010), the ECtHR did not find a violation of article 8 when the applicants’ claim to change their Turkish first names to Kurdish names was refused on the ground that the names they had chosen contained characters which did not exist in the Turkish official alphabet.

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differentiated treatment of real person names and corporate ones does not appear to be based on any reasonable justification. Thus, while legislation allows non-Turkish minority names, the requirement that these names be written according to Turkish grammar rules aims to undermine their legality. Despite the removal de jure of the ban on forenames with the entry into force of the new Civic Registry Service Law in 2006, administrative and judicial bodies still tend to reinvent the ban on minority forenames through other laws. 4.4 Exceptions to the Absolute Domination of the Turkish Language Despite the state’s strict and restrictive policy and practice towards minority languages, problems raised in actual situations meant that the legislation and judiciary could not always remain blind to the linguistic reality of the country. Thus, especially the judiciary had, in practice, to loosen the strict state policy of denial of linguistic differences in the country. However, since the main aim continued to be the linguistic assimilation of all groups, exceptions considered necessary were limited and applied mainly to areas of criminal law. One might argue that these laws are only aimed at non-Turkish-speaking foreigners. However, since the law has not always made this distinction clear, this study would argue, as supported by the jurisprudence of the Yargıtay in practice, that the need constantly arose to overcome the problems faced in actual situations of state-individual relations, without manifestly acknowledging the social reality of diversity. Therefore, the laws and regulations in Turkey, in using the phrase ‘person who cannot speak/ know Turkish’ not only compelled the recognition of the existence of non-Turkish speakers, but also determined them as the subjects of a particular right. When this legislation is examined, it can be seen that it is related to judicial procedure in general, in a manner similar to rights protected by the Lausanne Treaty, whereby non-Turkish speakers are guaranteed the use of their own languages before a court.197 For instance, the Criminal Procedure Law of 1929 granted defendants who could not speak Turkish at least the right to be told of the public prosecutor’s indictment and their lawyers’ defence with the help of a translator.198 The new Criminal Procedure Law (CMK) of 2004 provides for the same right, requiring an interpreter for people who cannot speak ‘adequate Turkish’ to hear ‘essential parts’ of the public prosecutor’s indictment and the defendant’s lawyer’s defence.199 The new CMK incorporates the Yargıtay’s established case law which required interpreters’ expenses to be paid by the state treasury.200 Interestingly, when the 197  Lausanne Treaty, article 39(5). 198  Article 252 of Law no. 1412, 04.04.1929 (defunct). The same principles are still

found in article 161 of Law no. 353, 25.10.1963. 199  Article 202(1) of Law no. 5271, 04.12.2004. 200  Ibid.: article 324(5).

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CMK of 2004 came into public discussion, this provision attracted particular attention, and the media began to comment on it as paving the way to the use of Kurdish within the Turkish courts, without referring to the fact that the principle was not novel to the Turkish legal system. Moreover, in practice, as it is seen in the Kurdistan Union of Communities (Koma Civakên Kurdistan, KCK) trials, the new CMK of 2004 does not secure use of Kurdish at courts. Inspection of the existing case law of the Yargıtay shows that the judicial bodies tried to overcome problems arising from the social reality of non-Turkish speaking citizens by allowing them to be heard in their own languages in the courts. The Yargıtay generally refrained from referring to the name of the non-recognized minority language spoken at the court.201 It simply referred to the defendants or witnesses as persons ‘who do not speak Turkish’,202 ‘do not understand or speak the language used in the hearing’ or ‘do not speak Turkish well’,203 and allowed the assistance of a translator.204 Assessment of these cases demonstrates that they are particularly from areas mostly populated by Kurds and it is almost certain that the language referred to in these judgments is Kurdish. These cases show that judicial bodies not only implicitly acknowledged the existence of Kurdishspeaking people, but were also forced to allow Kurdish to be heard by the court through a translator, even while it was being officially denied by the state. However, since Kurdish has not been officially recognized by the state, the judicial bodies employed some less formal methods to deal with cases where Kurdish-speaking people were involved. The Yargıtay’s case law demonstrates that it overcame the problem of understanding Kurdish-speaking people by unofficially employing either the court clerk,205 a family member,206 a translator,207

201  Y.(5).CD, E.1981/2, K.1981/190, 04.02.1981; Y.(9).CD, E.2001/2125, K.2001/2765, 08.11.2001; Y.(1).CD, E.2004/263, K.2004/1557, 27.04.2004. 202  Y.(1). CD, E.1995/3668, K.1995/3927, 26.12.1995; Y.(1).CD, E.2004/263, K.2004/1557, 27.04.2004. 203  Y.(1).CD, E.1998/4354, K.1999/115.05.02.1999. 204  Y.(8).CD, E.2002/382, K.2002/12112, 26.12.2002; Y.(2).CD, E.2003/38144, K.2003/13115, 23.10.2003; Y.(8).CD, E.2002/9947, K.2004/888, 12.02.2004. 205  Y.(5).CD, E.1981/2, K.1981/190, 4.02.1981; Y.(1).CD, E.2004/263, K.2004/1557, 27.04.2004; Y.(1).CD, E.2004/1818, K.2004/3143, 27.09.2004. Unusually, in one of its judgments, Y.(1).CD, E.1998/3098, K.1998/3613, 24.11.1998, the Yargıtay stated that use of a clerk who worked as the court stenographer as translator was found to impair the impartiality of the translator. 206  Y.(1).CD, E.1997/2954, K.1997/3688, 17.11.1997; Y.(8).CD E.2001/9650, K.2002/5090, 15.04.2002. 207  Y.(8).CD, E.1981/286, K.1981/640, 30.01.1981; Y.(1).CD, E.1992/1780, K.1992/1918, 22.09.1992; Y.(9).CD, E.2001/2125, K.2001/2765, 08.11.2001; Y.(1).CD, E.2003/441, K.2003/122, 24.02.2003.

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an unknown translator,208 or members of the security forces.209 The Yargıtay case law proved that courts’ procedure also required these interpreters to be heard under oath and required interpreters’ names to be stated in the decisions.210 To benefit from a free translator has also been considered by the Yargıtay as an essential part of the right to defence and compulsory under article 6(3)(e) of the ECHR.211 However, the Yargıtay has adopted a different position in cases where Kurdish was used as part of a defence of cultural, linguistic and political rights of the Kurds. It has consequently referred to Kurdish as an ‘unknown language’ (bilinmeyen dil), or ‘not-understood language’ (anlaşılamayan), and refused the appointment of a translator. For instance, in Vedat Aydın’s case, where the defendants were protesting against state policy concerning Kurdish and insisted on speaking in Kurdish in court, the court did not allow the defendants to be heard through a translator and referred to the language spoken as ‘a not-understood language’.212 Likewise in Zana v. Turkey,213 the first-instance court had considered the applicant’s insistence on addressing the court in Kurdish to amount to implicitly waiving his right to defend himself, and that was later upheld by the Yargıtay. Likewise, the ECtHR found Turkey in violation of the right to a fair trial in the case of Sultan Şaman v. Turkey,214 where the applicant was imprisoned for membership of an illegal organisation, the PKK/KONGRA-GEL (the Kurdistan Workers’ Party), complaining that being of Kurdish origin with limited comprehension of Turkish and illiterate, she was denied access to a lawyer and an interpreter during her police custody. Despite this, in the KCK trials in Diyarbakır, the first-instance court persistently refuses the defendants’ claim to speak in Kurdish, while referring to Kurdish as ‘a language unknown to the court’.215 In practice, the courts in Turkey have never emphasized ‘unknown’ aspect of French, German, English, and so on, in their judgments. Moreover, this approach of the Turkish judicial 208  Y.(9).CD, E.2001/3002, K.2002/387, 04.03.2002; Y.(60.CD, E.2003/7708, K.2004/7441, 08.06.2004. 209  Y.(90.CD, E.2000/2797, K.2000/2802, 13.11.2000, where a village guard who arrested the defendant was used as translator. Also see the ECtHR’s decision in İsak Tepe c. Turquie (no. 17129/02, 21.10.2008). 210  Despite the Yargıtay’s established case law, in practice, the situation is still problematic: see Björnberg and Richmond 2004: 109–10 and Björnberg and Cranston 2005: 48. 211  YCGK, E.1996/6-2, K.1996/33, 12.03.1996; Y.(6).CD, E.2002/18686, K.2003/7692, 28.10.2003. 212  See the hearing records of 18.12.1990, p. 6, case of Ankara DGM, E.1990/150, K.1991/50. 213  Case of Zana v. Turkey, 24, 70 (no. 69/1996/688/880, 25.11.1997). 214  Sultan Şamanv. Turkey (no. 35292/05, 05.07.2011). 215  See http://www.opendemocracyar.net/margaret-owen/turkeys-judgement-daytrial-of-kurds (accessed 15.11.2010). Interestingly, around the same time, another court in Şanlıurfa allowed a defence in Kurdish: ‘Court accepts defence in Kurdish’, Radikal, 02.12.2010.

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bodies is in breach of article 39(5) of the Lausanne Treaty which grants to ‘any Turkish nationals’ or ‘Turkish nationals of non-Turkish speech’ the right to oral use of their ‘own language’ before the courts (see 2.2.5). Thus, by not facilitating interpreters at the courts also paves way to its further violation. While the rejection of interpreters, and so on, in the case of Kurdish being spoken at ‘political’ trials is common enough, the Yargıtay case law shows that even in non-political trials, it has tended to allow use of a translator only where absolutely necessary. Thus, in cases of doubt, it has refused to employ an unofficial interpreter.216 There are other laws which also allow for the presence of a translator for nonTurkish speakers in different situations. For instance, if a witness cannot speak Turkish, he is questioned through an interpreter.217 The same principle seems to be extended to public service as well. For instance, non-Turkish speakers were allowed to deal with the Nüfus Office (Civic Registration Office) through an interpreter.218 Any party who cannot speak Turkish can conduct transactions with a notary by the assistance of an interpreter who is under oath,219 or can conduct transactions in the Land Registry Office with the help of an interpreter.220 Despite the above-mentioned concessions for non-Turkish-speaking foreigners, the law did not recognize the extension of this right to non-recognized minorities in Turkey, but rather kept it restricted to foreigners. These restrictions become more visible with the Marriage Regulation. According to this law, only those foreigners who speak the first official language of a country recognized by the Turkish state can be provided an interpreter during the solemnization of their marriage by the marriage registration in Turkey.221 Although the phrase ‘the language that will be used is the first official language of a country recognized by the Turkish state’, was introduced into Turkish law after the 1980 military takeover in order to ban the possibility of the use of Kurdish in Turkey (see 3.1.1), and was subsequently removed from Turkish legislation, the Marriage Regulation still bears the earlier legacy. Further, according to a MoJ Regulation, prison visits should take place only in Turkish.222 However, if the visitor or convicted person does not speak Turkish and if this is proven following an investigation, then he might be allowed to speak in a language other than Turkish on condition of the conversation being recorded. Once the records are decoded, if anything is found to be against the security of the prison or against public order, a criminal investigation may be brought against 216  See for example, Y.(1).CD, E.1995/1506, K.1995/2474, 19.09.1995. In this case, a Kurdish defendant declared he ‘does not know Turkish’, but understood and answered all questions asked by the court, which therefore found no reason to provide an interpreter. 217  Article 270 of Law no. 1086, 18.06.1927. 218  Article 164(2) of Regulation, RG: 26355/23.11.2006. 219  Article 74 of Law no. 1512, 18.01.1972. 220  Article 17(last), Regulation, RG: 21953/07.06.1994. 221  Article 27(6) of Regulation, RG: 18921/07.11.1985. 222  Article 41 of Regulation, RG: 25848/17.06.2005.

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the persons concerned. Meanwhile, the correspondence of prisoners in nonrecognized minority languages was challenged in the case of Mehmet Nuri Özen v. Turkey where Turkey was found to be in violation of the right to private life under article 8 of the ECHR for preventing prisoners from corresponding with their family members in Kurdish.223 The illustrations given above reveal that Turkish laws and court practices have had to concede to the existence of non-Turkish languages in official contexts. However, this must be considered in the background of a general unwillingness to acknowledge the existence and use of different languages by Turkey‘s minority communities. The consequent need to square official ideology and social reality, has, in practice, led to some concessions being made. This reconciliation has always been rather uneasy and the Turkish courts’ approach shows that laws have been applied by them in different, contradictory and begrudging ways, especially towards Kurdish-speaking minorities. While the use of Kurdish before the courts has unofficially been accepted in some cases, in some other cases the courts have adopted a blind attitude or even denied the existence of Kurdish. Further, reference to Kurdish as an ‘unknown language’ shows that the official legal discourse falls far behind the social reality of the country, while reproducing the Turkish nationalist political discourse in the legal arena. As this chapter has shown, much litigation arises in the contestation which is established as a consequence of the strong ethno-nationalist official narrative and the constant resurfacing of that diversity in legal contexts. At the same time, we find that while the law makes certain minimalist concessions to such diversities, it has taken on a self-appointed role in guarding the ethno-nationalist fabric of the official discourse, which demonstrates a decisively anti-minority ethos. In the next chapter, we turn to a more brazen conflict between the legal system and minorities, as we examine the results of closure of political parties, especially when they have been organized around the campaign for, or the defence of, minority interests. Such party closures require the approval of the Constitutional Court (AYM) and that court’s case law therefore provides important material for assessing how the legal system manages when challenged with the issue of minorities.

223  App. no. 15672/08, 11.01.2011.

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Chapter 5

Nation and Minority in the Jurisprudence of the Turkish Constitutional Court Having discussed the ethno-cultural scope of citizen Turks and possible answers to the question ‘Who is a Turk?’ in the legislation and higher courts jurisprudence of the Turkish state in Chapter 4, we can turn to a more specific examination of the extent to which minorities have been accommodated within the Turkish legal system. In this regard, the jurisprudence of the Constitutional Court (AYM), as the highest court of the land, which also has the authority to interpret the Constitution, is of crucial importance. More specifically, by examining the cases concerning the closure of political parties dealt with by the AYM we can discover more about how the concepts of ‘nation’ and ‘minority’ are legally conceptualized. An examination of the AYM’s case law is also relevant in understanding how the officially defended concepts of ‘civic state’ and ‘civic nationalism’ are perceived by that court. In so doing, the actual practice regarding the oft-repeated allegiance to the concept of ‘civic nationalism’ will be analysed. While it is clear from the discussion so far that the culture, language, identity and history of Turkish ethnic groups has been emphasized within political settings and legislation, this chapter casts further light on the senior judiciary’s approach on this matter, particularly when pressure is brought by minority groups challenging the official ideology. This chapter first provides an outline of the role of the AYM as a constitutional court, part of whose function is the guardianship of the Turkish Constitution, especially the principle of the state’s integrity with the nation (5.1). The discussion then turns to examining (5.2) the AYM’s reading of the ‘nation’ and ‘Turkish nation’ concepts in the political party closure cases (5.2.1), in particular, the different ways in which non-Muslim and non-Turkish groups have fared under the AYM’s attempts to interpret the latter concept. We also examine (5.2.2) how the AYM approaches the ‘minority’ concept as being in continuous tension with the concepts of nation and the Turkish nation, leaving minorities in a legally tenuous position. We then focus in on the Kurdish cases which, in fact, constitute the only set of party closure cases decided by the AYM in which the minority question has been at issue (5.3). Finally, we look at the ways in which the AYM has linked ‘citizenship’, ‘human rights’ and ‘democracy’ as all militating against a minorityfriendly jurisprudence (5.4).

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5.1 The AYM’s Jurisprudence in the Political Party Closure Cases The AYM was established by the 1961 Constitution with a special jurisdiction to review the constitutionality of laws, to rule on certain types of cases where highlevel state officials and politicians are involved, and to hear political party closure cases. The AYM has been recognized as an activist court. However, its activism is a ‘selective activism’. That is, ‘the court has used its clout to protect some groups and values while suppressing the demands of others.’1 As Belge argues: … the CCT [AYM] was no champion of civil liberties even though it was a powerful player in national politics. While the court frequently ruled against the government and took risky decisions … the judges rarely threw their weight behind expansive rulings on civil liberties. The CCT was selectively activist, protecting social and political members of a particular coalition but not other political groups. By the mid 1990s, it stood as a remarkable obstacle to a more pluralistic democracy by repeatedly closing down political parties that attempted to bring excluded identities, such as put forward by Kurdish or Islamic groups, into the Turkish political sphere.2

Thus, the AYM can be criticized for its jurisprudence in so far as it has acted as the guardian of the state and ‘its founding principles and interest’, and ruled in favour of the status quo as opposed to human rights and freedoms.3 An examination of the AYM’s case law on political party closure demonstrates that it has acted as being firmly bound by the Constitution and its fundamental principles and attributes and, in so doing, has taken a conservative approach, which has not been sensitive enough to the social and political realities and changes in the country.4 A crucial consequence of the party closure cases is that the AYM’s resulting jurisprudence has severely constrained the legitimate political realm in accordance with the official ideology5 of the state, as set out in the preamble to the Constitution of 1982, which is mainly based on the principles of Atatürk nationalism and laicism.6 The AYM has claimed that these principles have been set out in the preamble in order to prevent political bodies going beyond them.7 Thus, the AYM’s jurisprudence has effectively closed the political realm to ideas that

1  2  3  4 

Belge 2006: 654. Ibid.: 656. Hakyemez 2009: 348–70; Belge 2006: 676; Özbudun 2007; Koğacıoğlu 2004: 435. Özay 1997. Yokuş 1995–96: 93 also claims that the AYM judgments have been more conservative when enforcing the Constitution of 1982. 5  Çağlar 1990: 67. 6  Gülsoy 2001: 8; Çağlar and Çavuşoğlu 1999: 169. 7  Çağlar 1990: 67.

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are not in conformity with the ‘constitutional ideology’ as set out in the preamble (see also 4.1).8 The preamble has been described by the AYM as containing the ‘founding principles’ of the Constitution, reflecting the ‘essence of Atatürk’s ideology’,9 and has considered them as among the high-ranking principles of the Constitution. Effectively, the AYM has regarded those references which refer to ethnicity in the preamble – ‘the Turks national interest’ (Türk milli çıkarları), ‘the Turks existence’ (Türk varlığı), and ‘the history and spiritual values of Turkishness (Türklük)’ – as the founding principles of the Constitution and Atatürk’s principles. Therefore, the diversity of social, cultural, moral and political ideas has been prohibited from entering the political realm and a single national formation has been foreseen for all under the notion of Turkish ethnic identity and culture. In this way, the AYM has been a participant in the homogenization of society through the rigid application of official ideology. Limiting the political realm in line with an official ideology, which solely refers to ‘Turkishness’ and ‘Turks’, is not compatible with the principle of neutrality in a liberal state which Turkey has also, somewhat contradictorily, aimed to achieve since the transition to a plural party system in 1945. As Arslan observes, the AYM’s adoption of an ‘ideology-based’ legal paradigm in deciding political party cases has led to its favouring the state and to ‘reflect a positivist, one dimensional, monolithic, and authoritarian outlook’.10 In the AYM’s ideology-based approach, ‘rights and freedoms are not only defined and limited arbitrarily, but also they are often denied for the sake of official ideology. Rights are recognized only to the extent that they do not conflict with or undermine that ideology.’11 Arslan refers to the AYM’s judgments in party closure cases as ‘a typical example of the “judicialization of politics”’.12 The AYM’s ‘ideologybased’ legal paradigm is apparent in the historical references in its reasoning. It has constructed the definition of ‘nation’, ‘Turkish nation’, ‘Turkish/Atatürk nationalism’, ‘citizenship’ and ‘minority’, in the light of selective ‘historical and political realities’ drawn from the official state ideology and history.13 In this sense, the AYM’s party closure cases have been used to reproduce the official state ideology and version of history within the legal framework.14 The political party closure judgments are grounded in two main claims, which are also considered as the major dilemmas of Turkish modernity. The first is the 8  Erdem 2003: 55. Erdoğan 2002: 128–9 states that the Constitution and all laws are based on this official ideology. 9  Gülsoy 2001: 3. 10  Arslan 2002: 11. Also see Özbudun 2005: 83–106. 11  Arslan 2002: 15. 12  Ibid. 13  Çavuşoğlu 1995: 36. 14  At Turkish universities’ law schools curricula, ‘Turkish Legal History’ syllabi begin with the legal tradition of the Turks in Central Asia and only then cover the Muslim Turkish state’s legal history: Üstel 2004: 187.

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violation of the laicism principle and the second is the violation of the ‘state’s indivisible integrity with its territory and nation’.15 While the content of the laicism principle is somewhat clearer, the content of the ‘state’s indivisible integrity with its territory and nation’ needs further scrutiny. In the AYM’s view, the components of the ‘state’s indivisible integrity with its territory and nation’ principle are (1) preventing the creation of a minority, (2) preventing regionalism and racism, and (3) protecting the principle of equality.16 Thus, the AYM has objected to ideas or political formations which defend cultural diversity and the protection of differences and minority or group rights, because it considers them as creating minorities, and treats their ideas as tantamount to racism17 and as being against the principle of egalitarianism. These three components of the principle have been used in legal discourse as the main justification for negating minorities and their rights. 5.2 Re-reading the AYM’s Jurisprudence from a Minority Perspective In this section, we focus on the cases involving political parties which were closed down on account of their position on the political, linguistic and cultural rights of Kurds in Turkey.18 These judgments are important because they are the only ones where the minority issue and concept has been assessed by the AYM to any degree. This examination aims to demonstrate how the AYM conceptualizes ‘minority’ and ‘Turkish nation’ in light of the state’s official affiliation to civic nationalism.

15  Alkan 2006: 161 states that the clash between the laicism principle and political Islam (irtica), on the one hand, and between the principle of the unitary state and separatism or Kurdishness propaganda, on the other, have concurrently paved way for all the military takeovers in Turkey since 1909. Also see Erdem 2003: 55 and Kaboğlu 1999: 79. 16  TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, HADEP-2003, DTP-2009. 17  Here, the AYM’s ratio seems in line with the Diyarbakır Martial Court’s decision (E.1972/34, 1972/44, 11.12.1972) on the Revolutionary Eastern Culture Hearths (Devrimci Doğu Kültür Ocakları – DDKO) where the Court accused the defendants of being ‘minority racists’ (see 6.4.2). 18  Turkey has been found in violation of article 11 of the ECHR in the following political party closure cases: United Communist Party of Turkey and others v. Turkey (no. 133/1996/752/951, 30.01.1998), Socialist Party and Others v. Turkey (no. 20/1997/804/1007, 25.05.1998), Freedom And Democracy Party (ÖZDEP) v. Turkey (no. 23885/94, 08.12.1999), Yazar and others v. Turkey (nos 22723/93, 22724/93 and 22725/93, 0904.2002), Socialist Party of Turkey (STP) and others v. Turkey (no. 26482/95, 12.11.2003), Emek Partisi and Şenol v. Turkey (no. 39434/98, 31.5.2005), Yumak and Sadak v. Turkey (no. 10226/03, 08.07.2008) and HADEP and Demir v. Turkey (no. 28003/03, 14.12.2010). On the other hand, in Sadak and others v. Turkey (no. 2), (nos. 25144/94, 26149/95-26154/95, 27100/95 and 27101/95, 11.06.2002), Turkey was found in violation of article 3, Protocol 1 to the ECHR: see Bayır and Yıldız 2002 for an evaluation.

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This analysis begins with the TİP judgment of 1971 and ends with the DTP judgment of 2009.19 These judgments demonstrate a continuity of the rationale for its judgments (ratio decidendi) in a more or less identical manner.20 The AYM’s adoption of prior judgments in party closure cases in an identical fashion started with the TBKP judgment of 1991,21 which partly adopted the Yargıtay public prosecutor’s views submitted in previous party closure trials.22 Since then, the AYM’s ratio decidendi has not changed much and mostly shows evidence of even falling behind the political discourse, adopting a position in favour of the status quo and official state ideology. In the few judgments which do not follow the pattern of the ratio decidendi in an identical fashion, the AYM still reached the same conclusion after only a very briefly reasoned judgment.23 The AYM mainly closed these parties on the basis of their assertion of the existence of minorities based on race and language; seeking to protect, promote and enhance a non-Turkish culture and language, impairing the unitary state principle and the state’s integrity with its territory and nation, and the reinforcement of the idea of race (ırk). Thus, to speak about the existence of the Kurds as a national entity, to deny the existence of the national culture and identity, to aim to create facilities for ethnic and religious minorities to enhance their culture in a free environment or claim the use of the mother language in the legal system and in education, to speak about the existence of a Kurdish nation which has been persecuted and has been under pressure of assimilation, to differentiate the Kurds from Turks and to anticipate a Kurdish nation outside of the Turkish nation, and to establish a new state order to this end were all considered as justifiable reasons for 19  This study does not include the AYM’s recent judgment in HAK-PAR-2008, where although the AYM refused to close the party despite its pro-Kurdish views, this judgment cannot be considered as changing the AYM’s ratio decidendi used in the established case law. First, the judgment is not reasoned elaborately and, second, as Hakyemez 2009: 320 states, opposition to the majority judgment by five of the eleven judges of the court demonstrates that there is a strong resistance within the AYM to change the case law on political party closure. The AYM’s subsequent unanimous judgment in another pro-Kurdish political party closure case (DTP-2009) reaffirms the well-established ratio decidendi. The AYM judgments are used in this book are available at http://www.anayasa.gov.tr/general/ kararbilgibank.asp. 20  For a similar view, see Çavuşoğlu 1995: 36 and at fn. 15, p. 37, and Hakyemez 2009: 315–16. 21  The AYM’s consistent reasoning has also been widely used by politicians in Turkey. For a striking example, see Minister of Internal Affairs, Nahit Menteşe, in his speech before the TBMM where he reiterates AYM’s case law regarding the definition of the Turkish nation and Atatürk nationalism; TBMMGKT, 10.01.1995. 22  Erdem 2003: 56, who also criticizes the Yargıtay public prosecutor’s office for its ‘authoritarian and oppressive’ and ‘ideological’ approach in the party-closure cases. 23  The TİP judgment of 1971 is distinguishable from the others since it was the first. The other two judgments which do not follow the pattern of identical reasoning are the DKP-1999 and HADEP-2003 cases.

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closure of political parties. In many cases, the AYM also accused these parties of being the ‘agent of race discrimination’,24 on the basis that they employed views based on race, created feelings of revenge, animosity and differences among citizens, and divided the Turkish nation between Turks and Kurds.25 In EP-1997, the AYM accused the EP of ‘racism’, for claiming that differences exist between Kurds and Turks, and that there was discrimination against the Kurds.26 In most of these cases, the judgments were unanimously handed down,27 the exceptions being the judgments in SP-1992, HEP-1993 and DKP-1999.28 This shows that there is a broad judicial consensus reflected in the reasoning of the AYM in the party closure cases. More importantly, the AYM’s established case law on ‘linguistic and cultural rights’, which has considered these demands as ‘abusive and separatist’, has not changed thus far.29 Another striking facet of the AYM judgments is that their logical similarity with the judgments of the Martial Courts (sikiyonetim mahkemeleri) in the Revolutionary Cultural Society of the East (Doğu Devrimci Kültür Ocakları, DDKO) case and Beşikçi case.30 We will have the opportunity to point out whenever these similarities occur, thus establishing the extent to which the official state ideology guides and shapes Turkish jurisprudence in general. 5.2.1 The Concepts of ‘Nation’ and ‘Turkish Nation’ The definition of a nation provides an idea about its inclusivity by indicating who is considered to be a part of it. In the Turkish case, this notion not only tells us who is considered to be within the nation but also who the minority is since, in the AYM’s view, being part of the nation and being a minority are mutually

24  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, DDP-1996,

EP-1997.

25  HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, DDP-1996, EP-1997, DKP-1999. 26  Bozdağ 2004: 212 claims, wrongly in my view, that ‘regionalism and racism’ have never been used as an ‘accusation’ (itham) by the AYM in political party-closure cases. 27  TBKP-1991, ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, DDP-1996, EP-1997, HADEP-2003. 28  There are several dissenting opinions in DKP-1999. The present head of the AYM, Haşim Kılıç, also dissented. He based his opinion on judgments of the ECtHR, and considers criticizing restrictions on, and proposing solutions about, people’s regional identity and cultural rights, language and names, and empowering local governments, as acceptable ideas in a democratic society. 29  Hakyemez 2009: 334. 30  These two cases will be examined in Chapter 6. For further detailed work on this, also see Bayır 2013.

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exclusive.31 Therefore, while searching in this section for a definition of ‘nation’, the Turkish nation in particular, we also arrive closer to a definition of ‘minority’. The Nation The AYM describes the nation (millet/ulus) as the most advanced social structure (yapı) which has achieved the most advanced togetherness in human progress.32 This positivist and modernist approach to the concept of the nation inherently excludes other more traditional social structures like the tribe, ethnic group, or ümmet (or umma (Arabic), the universal Muslim community), as well as the modernist concept of ‘race’. In the AYM’s view, the nation is not a narrow concept like race, which is based on ‘anthropological and philological qualities’. The nation is not a kavim (ethnic group/tribe) which is ‘a sociological structure, formed by nomadic, local linguistic (yerel dil) and ethnic (soy) groups who have not created a consciousness of a common history’. The nation is not the ümmet which does not look for any other social ties except ‘the same common religion’. Thus, the AYM finds groups based on an ethnic or religious nucleus to be ‘simple, primitive and one-dimensional’, as opposed to the concept of the nation.33 The AYM’s ‘evolutionist’ view seems to be inspired from Ziya Gökalp’s definition of the nation.34 Thus, while it overrides social and religious structures, it only values modern political structures. The nation is thus formed by passing ‘certain historical and sociological stages and gaining certain characteristics’.35 The AYM also relies on the concept of territory as well as ‘oneness/unity (birlik) in culture and ideals’. The ‘continuity myth’36 of nationalism also becomes visible when it describes the nation as something based on ‘the desire to live together throughout time, encompassing the past and future’.37 The elements that compose a nation were expanded somewhat in another of the AYM’s judgments on the headscarf ban. In that judgment, the AYM stated: … as indicated in Atatürk’s speech of 5 November 1925, Turkish nationalism (Türk ulusçuluğu) has replaced religious and denominational ties. According to this definition, the elements which compose a nation are linguistic unity, humanitarianism, national feeling, political unity, territorial unity, unity in

31  Bhamra 2011: 39, stating that there is ‘an intrinsic relationship between theorising nation and theorising diversity’, argues that ‘one cannot theorise one of these fields without at least clarifying where one places oneself in the other field, in general terms at the very least. This is precisely because one’s perspective on diversity is influenced and informed by one’s affiliations to theories of nationhood and nationality; and vice versa.’ 32  TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, STP-1995, DDP-1996, EP-1997. 33  TBKP-1991, SP-1992. 34  For Gökalp’s notion of nation, see Çelik 2006: 45. 35  TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994. 36  Bora 2010: 4. 37  TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, DDP-1996.

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Minorities and Nationalism in Turkish Law origin, and historical and moral similarities. To have a shared past and to be united in purpose (amaç) are also among these components.38

What is striking here is that ‘unity in origin (köken)’ also counts as one of the elements in the definition of ‘nation’ and the AYM did not see its adoption of this position as involving any bias. This clear reference in a judgment on the controversial headscarf issue to ‘unity in origin’ can be interpreted as being the result of the AYM’s anxiety and pragmatic approach in not having clear reference to religion in the formation of the nation, since doing so would have encouraged anti-laicism and political Islam. Thus, in this judgment, while emphasizing the ‘unity in origin’ concept as one of the main ties among the individuals of the nation, the AYM also rejected the claim that religion was a component of the definition of ‘nation’. However, and by contrast, the AYM has not refrained from referring to ‘religious unity’ as one of the unifying elements in its other judgments, especially in cases where the Kurdish issue was under discussion. For instance, the AYM has stated that the law could not accept ‘an attempt which would rupture legal ties of the groups [in the country], who have [also] developed some other social ties besides [their] linguistic and religious oneness/unity (birlik), from the state’.39 The AYM also sees the nation as a homogenous entity. In the DDP-1996 judgment, it described nation as ‘a social entity which coheres as ‘one’’ (‘bir’ olmak). What is interesting here is the AYM’s emphasis on the word ‘one’, which seems to be placed deliberately into the judgment in order to show its determination to contemplate a nation which does not have any internal differentiation, and which is constituted as a single entity.40 As already observed, in the AYM’s view, the ‘nation’ is the most developed form of social organization, and has both objective and subjective components. While objective criteria, such as common language, religion and origin, are used in the definition, subjective criteria such as culture, history, morals, the desire to live together, and so on, are also considered as components of the definition. However, as shown further below, a close examination of the so-called subjective criteria demonstrates that they are close to the objective criteria because of the evident reference to the majority ethnic Turks’ history, culture, customs, and so on. The Turkish Nation The judgments of the AYM reveal that it adopts a very complicated and multilayered definition of the Turkish nation which appears to be a deliberate strategy 38  AYM, E.1989/l, K.1989/12, 07.03.1989. For the same definition of the nation articulated by Atatürk, see Vatandaşlar için Medeni Bilgiler (on which, see 3.1.2). 39  TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994. The AYM has not used this argument in its party-closure judgments since the DEP judgment. 40  Oran 2004: 131, also claims that in the definition of the nation in Turkey, ‘oneness’ (teklik) is considered the same as ‘unity’ (birlik), and anything impairing the oneness of the nation is thus considered a threat to unity.

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to disguise the Turkish ethnie’s prominent role. As the following account shows, non-Muslims, being official ‘minorities’, are positioned outside of the Turkish nation because minority status and membership of the nation are conceived of as being mutually exclusive. Meanwhile, non-Turkish Muslim groups are swallowed into the nation, but without any of their ethno-cultural characteristics, since the nation is constituted by criteria drawn from the Turkish ethnie. In both cases, an examination of the case law of the AYM reinforces our earlier finding (in Chapter 4) that the civic citizenship discourse in fact hides an ethnically loaded notion of Turkishness which, in many ways, excludes non-Muslims from citizenship and which suppresses Muslim minorities on the basis that they are part of the nation but cannot entertain the prospect of their ethno-cultural heritage being respected. Exclusion of Non-Muslim Minorities from the Turkish Nation The AYM has most commonly defined the Turkish nation in a historical context, with reference to a homeland (vatan) within the borders drawn after the Independence War, and to the people who participated and succeeded in the Independence War and ‘established the Turkish Republic’.41 Defining the Turkish nation as constituted by ‘people who established the Turkish Republic’ is adopted from a book based on Atatürk’s writings, called Vatandaşlar için Medeni Bilgiler (Civic Information for Citizens).42 However, considering the prominent role of various Muslim ethnic groups in the Independence War and in the establishment of the Turkish Republic, it is evident that the people referred to by the AYM are the various ethnic Muslim groups living in the country. Hence, according to this definition, non-Muslim people who did not participate in the independence war and the establishment of the state are left out of the definition of the Turkish nation.43 Thus, the AYM’s claim that Atatürk’s definition does not take into account religion as a component of the Turkish nation44 is not convincing in light of Atatürk’s own description, as well as the AYM’s own use of the same restricted definition of nation. What people compose the Turkish nation, according to the AYM then? It seems that they are the various-origin Muslim groups of ‘Kurdish origin citizens and the Turks who come from different Turkish ethnic tribes and other people of various 41  TIP-1972, TEP-1980, SP-1988, TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, DDP-1996, EP-1997. The AYM also describes the Turkish nation as ‘the founder, manager and protector of the state’: SP-1992, HEP-1993. 42  TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP1995, DDP-1996, EP-1997. In the ÖZDEP-1993 and DEP-1994 judgments, the AYM also clearly referred to this book (on which, see 3.1.2). 43  Meanwhile, the AYM has also stated that ‘every citizen regardless of their religious belief and ethnic origin has a place on an equal footing within the definition of the Turkish nation, and this definition never prohibits the expression [and] use of origin characteristics’: SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994. However, the AYM has never given any explanation for the contradiction between these two definitions. 44  AYM, E.1989/l, K.1989/12, 07.03.1989. Also see TBKP-1991.

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origins’ living in the country.45 However, since the STP-1995 judgment, the AYM has not used this definition, and has adopted a definition omitting direct reference to ‘Kurdish origin’ people: ‘everybody regardless of their ethnic origin, finds a place in the nation without being differentiated (ayrımsız biçimde), thereby the phenomenon of the nation’s oneness/unity (ulus birliği) materializes.’46 The key to the AYM’s definition of the nation seems to be a policy of not differentiating among groups. Thus, to be subject to uniform treatment and uniform laws is considered as one of the most important aspects of the Turkish nation, and being part of the nation requires being subject to ‘uniform … laws and equal rights’47 and benefiting from the same ‘unlimited’ individual rights and freedoms.48 Then, those who desire differentiated treatment or who are already granted minority status and some special rights beyond general, individual human rights are excluded from the Turkish nation. Consequently, this definition not only excludes recognized non-Muslim minorities from the Turkish nation definition, since they have minority status. It also confirms that the Turkish nation and protection of minority concepts are mutually exclusive. This exclusiveness is reaffirmed by the AYM when it states ‘The people of Turkey who established the Turkish Republic are called the Turkish nation. There is no place for majority or minority differentiation among the ethnic groups who compose the Turkish nation.’49 In the AYM’s case law, the concept of ‘national unity’ also has an important role in excluding recognized minorities from the Turkish nation. In the AYM’s opinion, those ‘who are within the Turkish national unity’ cannot be separated in the name of a minority.50 Further, ‘if a soy [group] demands more, including some special rights other than citizenship rights, it means that this group not only has a different ethnic origin, but they are also a separate national group, which is not compatible with national unity.’51 Thus, in the AYM’s logic, ‘national unity’ requires not demanding or having minority protection or rights. It thus considers being a ‘minority’ or a (non-Turkish) ‘nation’ as characteristics which leave people outside of the Turkish nation.52 45  TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994. 46  SBP-1995, DDP-1996, EP-1997. Also see TBKP-1991, SP-1992, HEP-1993,

ÖZDEP-1993, STP-1993, DEP-1994. 47  TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP1995, DDP-1996, EP-1997. 48  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, EP-1997. 49  SP-1992, HEP-1993, DEP-1994. 50  HEP-1993. 51  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994. For a similar view, see DTP-2009. 52  The AYM used this logic when it justified the Kurds’ position within the Turkish nation, arguing that the Kurds cannot be considered as a ‘minority or separate nation’ and thus cannot be considered ‘outside of the Turkish nation’: SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, DDP-1996, EP-1997.

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With this approach, the AYM has evidently left the existing non-Muslim minorities out of the framework of ‘national unity’, since they benefit from some so-called ‘special rights’ and have minority protection. Moreover, by seeing only Muslims as part of ‘national unity’,53 in line with the Independence War documents,54 it has conversely denied the possibility of minority rights protection for Muslim minorities who are anticipated as coming within the nation and national unity. The definition of the Turkish nation, with the exception of the doubt about the inclusion of non-Muslims, might seem to recognize differences of these various-origin Muslim people, and furthermore appears to be based on the idea of civic nationalism. However, as we will see below, in reality, the inclusive aspect of the Turkish nation may not be more than lip service, since the nation is contemplated as a single and homogenous entity by reference to a common morality, tradition, history, culture and language. ‘Digestion’ of Non-Turkish Minorities into the Turkish Nation 55 Although the AYM’s judgments in the political party closure cases mention ‘various origin people’ and even ‘Kurdish origin citizens’, in its opinion, they are not differentiated from each other since they have a ‘common culture, morals and religion’ and, further, have ‘the same history’,56 common ‘values … and law’57 and a common language, which is Turkish.58 Further, it claims that they have the desire to live together and share the same feelings. The AYM thus asserts that the ‘[Turkish] nation does not contain any differences’.59 In the AYM’s view, this is

53  SP-1992: only ‘the Kurdish origin people with other ethnic citizens like Turks, Laz, Circassian, Bosnian, Albanian and Pomak constitute the national unity’ of the ‘Turkish nation’, which is the ‘only nation’ in Turkey. 54  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994. In fact, from the TİP1971 to the EP-1997 judgments, the AYM cross-refers to the Independence War and the prominent documents of the Erzurum and Sivas Congresses as well as the National Pact to construct its vision of ‘national unity’. All these documents consider Muslims to be one whole (see 2.1.2). 55  Discussing ‘difference anxiety’, Malhotra 2011: 36 uses to the word ‘digestion’ to indicate a situation where there is ‘digestion of one culture by another carried out under the guise of a desire to assimilate, reduce difference, and assert sameness in place of the less dominant culture’. 56  SP-1992. HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995. 57  ÖZDEP-1993, STP-1993, SBP-1995, DDP-1996, EP-1997. 58  In its judgments in the 1990s, the AYM declared the Turkish language as ‘the most prevalent language’ in the country, used by the people ‘not only in official matters, but also within the family, in daily life and in education; in short it has become a common language used in all areas of social relations’: SP-1992, HEP-1993, DEP-1994, DDP-1996, EP-1997. 59  ÖZDEP-1993, STP-1993, DEP-1994, EP-1997.

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further evidenced by the fact that Anatolia was known as ‘Turkey’ by the world and the people who lived there as ‘Turks’60 (see 2.1.2). The sameness of these various ethnic-origin people is confirmed by the AYM’s reference to another quote from the book, Vatandaşlar için Medeni Bilgiler, containing Atatürk’s writings: Today, within the Turkish nation’s political and social community, there are some citizens and nationals who have been propagandizing ideas of Kurdishness, Caucasianness, Lazness, and Bosnianness. However, these false references (tevsim), which are a result of the oppressive regime of the past, have not had any effect on individuals of the nation (millet) other than abhorrence, except a few who are tools of the enemy, brainless reactionaries. The individuals (efrat) of this nation are akin to the general Turkish community (umum Türk camiası), have the same common past, history, morality, and law.61

In affirming Atatürk’s views, the AYM considers any emphasis on differences as something harmful, but does not see the proclamation of Turkishness under the auspices of Turkish nationalism as problematic.62 In the AYM’s view, the formation of this commonality in the various areas stated above is a ‘historical fact’.63 It was the Turkish nation’s ancestors who had desired and decided with their free will to ‘merge into the common culture which has been created through centuries and [they] composed the Turkish nation’.64 This phenomenon is a sort of ‘national resolution and a social reconciliation’ (ulusal ant 60  DKP-1990, TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP1994, SBP-1995, DDP-1996, EP-1997. 61  TBKP-1991, SP-1992, ÖZDEP-1993, STP-1993, DEP-1994. 62  Belge 2003: 187 refers to the dilemma of Turkish nationalism which, while endorsing the concept of ‘nationalism as ideology’ for the ‘Turkish nation’, treats the nationalism of those living under the rule of the Turks as the heaviest crime against ‘values of humanity’. Moreover, as shown further below, the nationalism of non-Turkish groups in Turkey is considered ‘racist’. For example, the president of the Yargıtay, Müfit Utku, in his opening speech for the legal year of 1995–96 referred to the Kurdish nationalist organization, PKK, as a ‘movement’ which ‘was formed with the aim of establishing a racist state’ (available at http://www.yargitay.gov.tr/tarihce_aak/95-96.html, last accessed 11.10.2009). Considering that the text of the Yargıtay president’s speech is given after consultation with the Cabinet (see article 59 of Law no. 2797, 04.02.1983, RG: 17953-08.02.1983) it may be concluded that such a view also represents the view of the government. Prime Minister Tayyip Erdoğan’s more recent remarks describing the pro-Kurdish Peace and Democracy Party (Barış ve Demokrasi Partisi, BDP) and the PKK as ‘fascist’ (see Sabah, 11.01.2012) bears out such a view. 63  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, DDP1996, EP-1997, DTP-2009. 64  TBKP-1991, SP-1992, HEP-1993, STP-1993. This argument has not been used by the AYM after 1993.

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ve toplumsal bir uzlaşmadır).65 The AYM also stated that the ‘nationalization’ of groups of various origins has already been completed in Turkey.66 This narrative contemplates the Turkish nation as an historical formation, which occurred sometime in the past as a result of ‘fusion and integration’ (kaynaşma ve bütünleşme).67 Therefore, the various ethnic-origin people no longer actually have different cultures, identities and languages, since they have all merged into this ‘commonality’; thus, as we see below in the case of the Kurds, none has an independent existence. Consequently, the AYM anticipates the Turkish nation as a single, homogenous entity, fused together, even having a homogenized common culture. This definition of the AYM comes close to a ‘primordialist nationalism’ discourse, which contemplates a nation as emerging from the past and progressing towards the future as the same entity. The consequences drawn from this reading are as follows. First, the Turkish national phenomenon is seen as a historical fact and not capable of challenge or redefinition. Secondly, it is contemplated as a voluntary entity based on a common culture and identity.68 Thus, it is claimed that the Turkish nation concept does not involve the ‘assimilation and destruction of identities’.69 What is striking here is the AYM’s defence of the state’s opposition to diversity, while refusing to acknowledge any defects in these policies in the past. In the AYM’s view, one of the most important facets of commonality among the components of the Turkish nation is ‘the common culture which has been created through centuries’, which made them a ‘single entity’.70 In some judgments, the AYM claimed that various ethnic people, by ‘internalizing (özümsemek) each other’s culture, and also by internalizing the values surviving from the ancient Anatolian civilization, together composed a homeland and nation with a common culture and identity’.71 What Oestreich rightly states for western societies may also be applied to the AYM: … the underlying assumption has not been that free individuals will retain their particular cultures in a multiethnic state, but that they will be assimilated into a larger and a supposedly ‘neutral’ culture. The process of assimilation is portrayed as not only harmless, but generally beneficial for both individuals and

65  TBKP-1991, SP-1992, HEP-1993, STP-1993. Again, this argument has not been used by the AYM after 1993. 66  STP-1993, DEP-1994. 67  ÖZDEP-1993, STP-1993, DEP-1994. For a very similar view, see also TBKP1991, SP-1992, HEP-1993, HADEP-2003, DTP-2009. 68  SP-1992, HEP-1993, STP-1993, DEP-1994. 69  SP-1992, HEP-1993, STP-1993, DEP-1994. 70  TBKP-1991, SP-1992, HEP-1993. 71  HEP-1993, STP-1993, ÖZDEP-1993, SBP-1995, DDP-1996, EP-1997.

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The question arises of what is the ‘common culture and identity’ in this fusion narrative. Is it a synthesized identity and culture which is a combination of all who compose the Turkish nation? Are the cultures which are being processed in this fusion equal? Do they receive equal respect?73 The answer of the AYM to the last two questions is negative since, in its view, the only culture and language which shall be protected, enhanced and promoted in the country is the Turks’ culture and language. The AYM has therefore not established a fair balance among people of various ethnic groups and has not refrained from favouring the ethnic Turks’ language and culture since its early judgments. Moreover, the AYM did not see that there was any bias in its blatant defence of this argument. For instance, when discussing the significance of establishing Turkish as the official language it stated: … it is compulsory for every citizen to use Turkish as the official language regardless of his race, language and religion. This means that, besides official correspondence, the media and national culture shall only rely on Turkish. In other words, the only national culture in the country is the Turks’ culture (Türk kültürü).74

The AYM’s preference for Turkish culture becomes evident by the link it establishes to Turkish nationalism. The AYM made this link when it stated that ‘Turkish nationalism is a nationalism based on the Turks’ culture (Türk kültürü)’, and referred to it as the ‘dominant ideology’75 and as ‘the most fundamental and prominent principle’ of the Turkish Republic and Turkish reforms, which has found a place in all Constitutions since 1924.76 In fact, the AYM has been a very enthusiastic adherent to the idea of nationalism. It described the concept of ‘nationalism’ as ‘a social reality’ and ‘the most effective (etkin) cultural and political perspective of contemporary 72  Oestreich 1999: 117. 73  The UN study on Racial Discrimination in the Political, Economic, Social, and

Cultural Spheres stated that ‘Assimilation needs to be distinguished from fusion whereby two or more cultures combine to produce another which is different from the parent cultures. Fusion reflects the equality of cultures as process and a result’: cited in Thornberry 1991: 4. 74  TEP-1980. The Yargıtay Public Prosecutor’s Office continued to defend the same position in later party closure cases: see DDP-1995. 75  In the TIP-1971 judgment, the AYM stated that, within the borders of Turkey, the dominant ideology is Turkish nationalism as stated in the preamble of the Constitution of 1961, and that it is the foundation of the whole Constitution’s structure. 76  TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, DDP1996, EP-1997.

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times’.77 The AYM regarded Atatürk nationalism as a ‘unifying and integrating’ (birleştirici, bütünleştirici) nationalism,78 and a deliberate project against the ideas of ‘Pan-Islamism’ and ‘Pan-Turanism’; it aims to prevent ethnic groups who are considered within the majority to take on minority status.79 Thus, it has some particular qualities: (1) it relies on a ‘common culture’, (2) it is not racist, (3) it asserts the ‘unquestioned equality of the people who established the Turkish Republic regardless of their origin from the state point of view’, and (4) ‘It excludes discrimination (ayrımcılık); and envisages fusion (kaynaşmak) within the structure of nation.’80 The AYM considers that ‘common language, culture, education and Atatürk nationalism’ consolidate the ‘state’s integrity with its territory and nation’ principle.81 Thus, the AYM claims that ethnic groups can enhance their language and culture as long as they do not hinder, frustrate and impair the nation’s territory and integrity.82 Treating the ‘state’s integrity with its territory and nation’ principle as a precondition to the protection or enhancement of an ethnic culture and language allows the AYM to argue that they may flourish only with the aegis of the Turkish language, culture, education and adherence to Atatürk/Turkish nationalism. This approach seems to be in line with paragraph 6 of the 1982 Constitution, which prohibits the enjoyment of Turkish citizens’ ‘material and spiritual assets’ outside of the ‘national’ culture. Thus, the AYM’s judgments allow the expression of ethnic identities as long as they are contemplated or expressed within the common culture and identity.83 The AYM continued to take the same stance in its jurisprudence while persistently upholding the prohibition on protecting, enhancing, or promoting a language or culture other than the Turkish language and culture as set out in article 81(b) of SPK-1983. Protecting, enhancing, or promoting a language or culture other than the Turkish language and culture amounts to the ‘creation of minority’.84 Thus, to seek enhancement of a non-Turkish culture and non-Turkish language, as well as education in a non-Turkish language, was considered as separatism since these endeavours would create the idea of belonging to a nation other than the Turkish nation. Therefore, effectively the common culture and identity referred to here is the culture and identity of the ethnic Turks. Accordingly, the input of 77  78  79  80 

TBKP-1991, SP-1992, HEP-1993, OZDEP-1993, STP-1993, DEP-1994. TEP-1980, TBKP-1991, SP-1992; also see DTP-2009. SP-1992, HEP-1993. TBKP-1991, SP-1992, HEP-1993, OZDEP-1993, STP-1993, DEP-1994, SBP1995, DDP-1996, EP-1997, DKP-1999. Also see TBKP-1971 and TEP-1980. 81  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, STP-1995, DDP1996, EP-1997. In the EP-1997 judgment, instead of ‘Atatürk nationalism’, the AYM preferred the phrase ‘Turkish nationalism’, viewing it as a ‘historical and social fact’. 82  STP-1993. 83  See above 4.1, and also Çavuşoğlu 1995: 39. 84  TIP-1971, TEP-1980, DEP-1994, TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, DDP-1996, EP-1997, DKP-1999, HADEP-2003.

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various origin groups to this so-called common culture and identity did not amount to more than equally having the opportunity to ‘benefit from and contribute to the Turkish language and culture’.85 Thus, the ‘internalization’ and ‘fusion and integration’ mentioned in the AYM’s judgments imply a consolidation of all various groups into Turkishness. Thus, the AYM’s answer to the first question as to whether ‘common identity and culture’ as a combination of all communities composes the ‘Turkish nation’ is also negative. It is apparent that, in the AYM’s view, the Turkish nation is anticipated as a homogenous people who do not have differences and who seemingly also have the same religion (Islam). This is not a civic definition, since people’s connection with the nation is not merely defined by their political bond to the state through citizenship, but by their common culture, religion, language, morals, law, values, and so on.86 Thus, as long as they share the same (Turkish) culture, language and aspirations they may be considered as part of the Turkish nation. The very complicated and multi-layered definition of the Turkish nation adopted by the AYM seems to be a deliberate strategy to disguise the Turkish ethnie’s prominent role in it. 5.2.2 The AYM’s Approach to the Minority Concept The AYM’s view of the concept of minority is, as seen above, quite negative and is contemplated as something outside of the nation and national unity. The AYM even has difficulty weighing up minority rights within a human rights discourse. There is a general acceptance that this negative view of the minority concept can be attributed to the ‘Sèvres paranoia’, also known as ‘Sèvres syndrome’.87 The AYM also justifies its stance against claims for the protection of differences with reference to the Sèvres Treaty in many party closure judgments.88 However, as the evidence in this book shows, this negative view springs from the dominant place of the Turkish nationalist stance in a wide array of contexts, from politics and the legal system to education, rather than from the ‘Sèvres syndrome’. Here, we examine how the concept of minority has been conceptualized by the AYM, and the role of Turkish nationalism in this context. 85  TBKP-1991, SP-1992, HEP-1993, STP-1993, ÖZDEP-1993, DEP-1994, HADEP-2003. Also see DTP-2009, where the benefit envisaged was from ‘the language and the culture’ but not in plural form. 86  Sancar 2006: 83–4 states that defining the Turkish nation along ethno-cultural lines, by unity in cultural, historical, linguistic, religious, national identity, and so on, tends to meld individuals within a collective, oppresses ethnic cultures and every numerical minority (azlık) group, and creates an authoritarian aggression-prone nationalism which is inclined to fanaticism and is dangerous. 87  Oran 2004: 27, 31–3. The Sèvres Treaty of August 1920 would have meant Turkey would be a tiny country on the map. It was of course reversed by gains in the Independence war and the Lausanne Treaty of 1923. 88  TİP-1971, TEP-1980, SP-1992, HEP-1993.

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The AYM has only ever given a definition of ‘minorities’ in the TEP-1980 judgment, where it defined them as ‘citizen groups who have a different being from the majority in terms of their language, religion, race, etc. and who have the legal rights to pursue their [different] being’.89 However, it has also had a clear view about who does not have the qualities to be recognized as a minority (see 5.3). In the AYM’s view, the minority definition has two components: first, it is to have some ‘objective differences’ and, secondly, have the recognized status of a minority. While recognizing the possibility of existence of some ethnically or religiously different groups in a country,90 the AYM takes the position that the mere existence of these groups is not enough for their recognition as minorities or for granting to them differentiated ‘special rights’. The AYM makes clear that being objectively different in terms of ethnicity, religion and language, or to be smaller in number from the majority,91 are not sufficient criteria for a group to be a minority.92 Minorities, in the AYM’s view, are those for whom minority status has also been recognized. The AYM has also added another dimension to the recognition of a minority by asserting that the only sources of rules on minorities in Turkey are international treaties.93 This means that minority status cannot be granted by domestic law alone. Thus, in the AYM’s opinion, besides those mentioned in the Lausanne Treaty and the Turkey-Bulgaria Friendship Treaty (Türkiye ve Bulgaristan Arasındaki Dostluk Antlaşması) of 18 October 1925, there exist no other ‘minority’ or ‘national minority’ groups in Turkey.94 While only mentioning the latter by name, the AYM has provided more detail as to the scope of the former. It has summarized the two main features of the Lausanne Treaty as follows.95 First, only non-Muslims – Jews, Greeks and Armenians – are recognized as minorities.96 This interpretation fails 89  TEP-1980. 90  In the AYM’s view, ‘it is natural [normal] to find religiously, racially, linguistically

and denominationally different groups (topluluk) in countries of a certain size’: see TBKP1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994. 91  In the SP-1992 and HEP-1993 judgments, the AYM clearly stated that, ‘religiously or ethnically different groups can live in a country. They might be in different numbers. But these differences cannot be used as a basis for the assertion of rights and to be considered as a minority.’ 92  TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP1995, DDP-1996. 93  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, EP-1997. 94  TBKP-1991, SP-1992, HEP-1993, DEP-1994, STP-1995. In the HEP-1993 judgment, the AYM referred to the Kurds as ‘“Kurdish minority” origin citizens’ (‘“Kürt azınlık” kökenli yurttaşlar’). Since this is the only judgment in which the words ‘minority’ and ‘Kurds’ are used together, it may be that it was a mistake and not a deliberate choice. 95  TBKP-1991, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, EP-1997. 96  This interpretation is in line with the Turkish state’s official stance in international fora. Recognizing some groups as minorities while refusing to recognize other groups (Kurds, Roma, Alevi, Yezidi, Syriac, and so on) as minorities has been criticized as paving the way for unfair differentiated treatment for some, which may also attain discrimination

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to maintain equality among the minority groups in Turkey and can be criticized since there is no justification for not treating the other minority groups of Kurds, Roma, Alevi, Yezidi, Syriac, and so on, differently. Secondly, various Muslim communities have not been recognized as minorities in the Lausanne Treaty. The latter point has been justified by reference to the minutes of the Lausanne Conference and the remarks of Turkey’s negotiators, İsmet İnönü and Rıza Nur. This conservative interpretation of the Lausanne Treaty seems not to be line with the wording of that treaty, since the treaty recognizes some linguistic and religious rights for Muslim minorities as well.97 The AYM justified the Lausanne Treaty’s recognition of non-Muslims as having minority status on grounds of the need to guarantee ‘equality for all, without distinction (ayrım yapmak) on the basis of religion before the law, and to ensure that non-Muslims would benefit from the same civic and political rights as Muslims’.98 This interpretation shows that the AYM’s perception of minority protection as set out in the Lausanne Treaty is far behind the current understanding in international fora, since it confines the scope of minority protection to the principle of equality before the law, which means to ensure that everyone benefits from uniform laws and treatment. Thus, the AYM has not interpreted minority rights with reference to protecting the difference of a particular group, and has not acknowledged state responsibility to take some action to secure this. It has adopted the leading traditional liberal assumption of the post-Second World War era of human rights which replaced the pre-war minority rights concept to the effect that ‘members of national minorities do not need, are not entitled to, or cannot be granted rights of a special character’,99 since neutral, uniform, political and social rights are completely adequate to guarantee their equality and liberty.100 The postwar era doctrine of human rights also assumed that ‘minorities whose members enjoy individual equality of treatment cannot legitimately demand facilities for the maintenance of their ethnic particularism.’101 Hence, those minority rights which require special laws and treatment for a particular group are seen as being in conflict with the concept of equality before the law. The AYM has asserted that since minority rights require some ‘special rights’102 and ‘privileges’,103 they contradict the principle of equality. Thus, when ‘everybody is equal and without privilege it is not possible to talk about minority or majority.’104 in the enjoyment of fundamental rights and freedoms. See CERD Concluding Comments on Turkey 2009, para. 12 and ECRI Report on Turkey, para. 13. 97  See Chapter 2 for more information. 98  TBKP-1991, SP-1992. 99  Claude 1955: 211, cited in Kymlicka 2001: 71. 100  Oestreich 1999: 122. 101  Claude 1955: 211, cited in Kymlicka 2001: 71. 102  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994. 103  TBKP-1991, ÖZDEP-1993, STP-1993. 104  ÖZDEP-1993.

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The principle of equality, which in the AYM’s view only offers equal citizenship rights confined to individual human rights for all, has important consequences for the conceptualization of a minority. The AYM claims that ‘human rights cannot apply only to one person, class and group; they should be applied to all citizens on an equal footing without differentiation.’105 It then refers to minority rights as ‘special rights beyond human rights within the citizenship context’.106 Effectively, it has taken the odd position of not considering special-character minority rights as an integral part of universal-character human rights. Thus, it assumes that the right to be different or to have characteristics that require differentiation falls outside of human rights.107 This approach becomes clearer in the AYM’s reference to the minority problem as an ‘unreal human rights problem’.108 Since the AYM presumes that only individuals are the right bearers in a democratic society, turning the rights and freedoms of individuals into national rights for ethnic groups and to thereby disintegrate the state and nation cannot be spoken of.109 By limiting rights and freedoms to individual human rights, the AYM also takes a position against group rights.110 It limits the expression of ethnic differences to a form where they can only be sought as individual rights and freedoms and, further, it refuses to consider them as collective or group rights since the possibility of these rights later turning into ‘national rights’ would breach the state’s indivisible integrity with its nation and territory. Thus, the AYM does not value the necessity of a group’s rights for the realization of ‘vital human good’, even though contemporary writing argues that human needs cannot be satisfied only by individual rights and freedoms but require an understanding that humans are organized into groups and that the ‘groups, themselves, thus need recognition’.111 In the AYM’s view, minority rights are also ‘limited rights’. In fact, it sees having minority status as entailing fewer rights than the majority. Therefore, the AYM has found demands for minority status meaningless, since that would entail turning the unrestricted enjoyment of rights into the enjoyment of restricted rights by choosing to be classed as a minority, over ‘being part of the nation itself’.112 The AYM seems persistent in this view, given that it has repeated it in many of its judgments. It is striking that, while ‘othering’ minorities, the AYM reaffirms that being a minority and being part of the nation are mutually exclusive (see 5.2.1 above). 105  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, DDP-1996,

EP-1997.

106  107  108  109  110  111  112 

TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994. Bozdağ 2004: 216, Kaboğlu 1999: 82. SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, DDP-1996. ÖZDEP-1993, EP-1997. DEP-1994 and Çavuşoğlu 1995: 39, fn. 30. Oestreich 1999: 109. SP-1992, HEP-1993, STP-1993, ÖZDEP-1993, DEP-1994, EP-1997.

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While evidently placing existing non-Muslim minority groups outside of the concept of the nation and making them ‘the other’, the AYM also claims that they have fewer rights than those falling within the nation. Thus, its vision of minority rights and status verifies a more general view that the majority are ‘first-class’ citizens while minorities are ‘second-class’ citizens,113 the latter status being in contradiction with the principles of equality in the 1982 Constitution.114 By interpreting minority rights as ‘limited rights’, ‘privileges’, or ‘special rights’, the AYM betrays the negative connotation which the minority rights concept has in its vocabulary. It considers that minority rights are all about privileges and not rights which can balance the disadvantages faced by minorities in the country.115 Therefore, the AYM considers demands for the protection of ethnic or religious differences to be the efforts of those who bear negative intentions.116 It has also considered demands for minority status and recognition of differences to be associated with ‘impairing social peace’.117 In the AYM’s view, seeking minority status and recognition of ethnic differences also ‘impairs the state’s integrity, leads to violence, and creates hate and animosity among the people’.118 It has further claimed that to speak about ethnic, linguistic and cultural differences of people as opposed to the common culture and language amount to expressing ‘ideas based on race’ (ırk temeline dayanan düşünce).119 The AYM has never accepted that there is a link between democracy120 and minority protection,121 and it has refused to treat the minority concept as an integral 113  See for the same argument Oran and Kaboğlu 2004 in Oran 2007: 67–77. 114  Aliefendioğlu 2002: 234. 115  For an opposing view see Kymlicka and Norman 2000: 4, who claim that

‘Minority rights do not constitute unfair privileges or invidious forms of discrimination, but rather compensate for unfair disadvantages, and so are consistent with, and may indeed be required by, justice’. 116  SP-1992. 117  STP-1993, DEP-1994. 118  HADEP-2003. The AYM also claimed that ‘to recognize minority status according to race and linguistic differences is incongruous with state and national unity’: SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, DDP-1996, EP-1997. 119  ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, EP-1997. 120  When recognizing the jurisdiction of the European Commission and Court of Human Rights on 29.01.1987, Turkey entered a reservation to the notion of ‘a democratic society’ in articles 8, 9, 10 and 11 of the Convention stating it ‘must be understood in conformity with the principles laid down in the Turkish Constitution and in particular its Preamble and its Article 13’. However, this reservation has not been accepted by the ECtHR in its effort to create a common concept of democracy and human rights among the state parties: Cameron 1988: 888–99. 121  In the case, AYM, E.2000/78, K.2002/31, 19.02.2002, judges Haşim Kılıç and Tülay Tuğcu dissented and described democracy as a method which ensures that every opinion and interest has a just and well-balanced right to be involved in governance, and not as the majority’s absolute domination over minorities.

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part of democracy.122 It has considered promoting the existence of minorities and feelings of differentiation among some citizens as ‘provocative’ and ‘destructive’, and has therefore refused to consider minority rights ‘as a necessity of democracy and of contemporary times’.123 Thus, in its view, democracy is not a device and milieu which provides a suitable environment for activities creating differences. Further, since the AYM has considered seeking protection for differentiation as the expression of ‘ideas based on race’, effectively racist discrimination and racism, these kinds of activities cannot, in its view, be seen as capable of falling within the scope of democracy.124 According to the AYM, a minority is an ‘artificial formation’ and something that might be formed by politics in line with the view of Turkish legislators. Indeed, in article 81 of SPK-1983, the legislator, by using the phrase ‘prevention of creation of minority’ in the marginal heading, implies that ‘minorities are created at will’,125 but do not exist as a fact.126 Thus, the AYM considers itself as upholding the legislator’s use of the word ‘creating’ (yaratarak) as used in article 81, seeing its aim as being ‘to prevent [these sorts of] artificial formation endeavours’.127 In the AYM’s view, the ‘creation of a minority’ means ‘to extract a part of the citizenry from the majority and placing it into the position of a minority’.128 Further, the AYM tried to explain how the legislator’s abstract ‘creation of a minority’ occurs. In its view, the creation of a minority and the assertion of its existence, as set out in article 81(a) of the SPK-1983, are analogous and mean ‘to create the idea that a group of citizens should benefit from the minority law’.129 In an earlier judgment, the AYM stated that to ‘objectively’ (nesnel) say that: … the language or religion of a group of citizens is different from the others would not, on its own, amount to ‘an assertion that there exists a minority’. In addition to that, it should be implicitly or explicitly asserted that this group of

122  HEP-1993. Henrard 2000: 307 meanwhile argues that ‘minority protection is inherent to democracy and not the latter’s counterpole.’ 123  SP-1992. 124  HEP-1993. In the AYM’s view, impairing the nation’s integrity by ascribing a certain part of the territory to one race means ‘ethnic cleansing’, incompatible with contemporary values of humanity: SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994. 125  Tanör 1997: 23. 126  HRC General Comment 23, para. 5(2) states that ‘The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria’. Vrdoljak 2008: 60 argues that, ‘To allow states to define a minority group could effectively render such legal protections illusory.’ 127  TBKP-1991, SP-1992, ÖZDEP-1993, HEP-1993, STP-1993, DEP-1994, EP-1997. 128  DEP-1994, HADEP-2003. For the concept of ‘creation of minority out of the nation which does not have any difference’ (Hiçbir ayrılık bulunmayan ulusun içinde azınlık oluşturmak), see ÖZDEP-1993, STP-1993, EP-1997. 129  TEP-1980. Also see TBKP, 1991, SP-1992, DDP-1996, DKP-1999.

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citizens should be granted special legal assurance with a view to protecting and pursuing their identity and particularity (varlığını ve niteliklerini koruması ve sürdürmesı) which differs them from the rest.130

Thus, in its view, merely to talk about differences would not amount to the creation of a minority but to ask for protection or recognition for these differences would. Additionally, to protect, enhance and promote a language and culture other than the Turkish language and culture is considered to create a minority in line with article 81(b) of the SPK-1983. The AYM has not merely considered any claim to use the Kurdish language in education and the changing of the law to use or enhance the status of the Kurdish language and culture, and so on, as a violation of that article.131 It also claims that the existence of a separate culture, language and identity outside of the ‘common’ and ‘national’ Turkish language, Turkish culture and Turkish identity amounts to a similar violation.132 It is not compatible with reality to allege that there exist ‘cultural differences’ which justify these groups’ differentiation, as they have the ‘same history, religion, customs and traditions’ (gelenek ve görenek)133 and more importantly, their culture has already ‘strongly found its place within the national culture’.134 Thus, in its recent case law, the AYM stated that the denial of the existence of a ‘common national culture, language and identity, which covers all’ also amounts to the ‘creation of a minority’.135 The overarching commonality argument used by the AYM has also therefore functioned to undermine the minority qualities of the diverse groups in Turkey. Since the AYM has associated any claims as to the existence of minorities in Turkey with attempts to disintegrate the state, it has justified its objection to minority rights by its fear that ‘recognition of cultural identity’, which might seem acceptable at the beginning, will ultimately turn into inclination towards secession.136 It has maintained that to recognize minority status on the basis of differences of race and language is not compatible with the ‘state’s unity with its territory and nation’ concept,137 which is protected ‘absolutely and without

130  131  132  133  134  135  136  137 

TEP-1980. SP-1992, HEP-1993. ÖZDEP-1993, STP-1993, DEP-1994, EP-1997. SP-1992, HEP-1993, DEP-1994 EP-1997. SP-1992, HEP-1993, EP-1997. ÖZDEP-1993, STP-1993, DEP-1994, SBP-1996, EP-1997. TEP-1980, TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994. TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994. Since its early judgments, the AYM has adopted the same view and stated that alleging that there exists a minority which speaks a different language, aiming at the recognition of some minority rights, and delegation of power, means to advocate its separation and breaking off from the national structure. Hence, even to endeavour to protect a non-Turkish language and culture was liable to impair the national unity of the country: TEP-1980.

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any concession’ by law.138 It has also stated that there is no need to prove the existence of an intention in a political party to create a minority, since advocating recognition of minority status would ‘certainly’ impair the state’s integrity with its territory and nation.139 The AYM’s ‘legal presumption’ regarding this casual link prohibits political parties speaking about the existence of minorities even as a ‘social phenomenon’.140 Although the AYM claims that preventing the ‘creation of minority’ does not amount to a prohibition of ethnic, linguistic and cultural differences in Turkey,141 Tanör argues that forbidding the pursuit of the goal of protecting other cultures ‘smacks of cultural genocide’, and that such excessive provisions ‘make the legal system anti-democratic and give it a chauvinistic and authoritarian nature’.142 Sole sovereignty in a unitary state belongs to the single nation and this position is used by the AYM to justify its view as to the non-existence of minorities in Turkey: in a unitary state, there is a sole sovereignty, and there should also be one nation.143 Thus, a federal system is not acceptable since it makes possible the existence of more than one sovereignty belonging to different nations. The AYM avers that the unitary state principle does not allow for the formation of a federal system or any autonomous regions based on ethnicity, religion, or other grounds.144 In Turkey, sovereignty belongs to the single Turkish nation, not to any person or a group.145 Therefore, a federal state system, which could mean distribution of sovereignty among various nations, is not considered compatible with the notion of a unitary state,146 while no social benefit (toplumsal yarar) is seen in such a system.147 The AYM justifies the unitary Turkish state as necessary due to ‘Turkey’s particular circumstances’,148 and, in its view, the option of a multi-national state structure was ruled out with the establishment of the Turkish Republic; separate schools and education, borders, and administration are considered incompatible with the unitary state principle.149 The AYM has never linked internal self-determination and minority rights which might grant some form of autonomy within the state structure and inclusion

138  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, STP-1995, DDP-1996,

EP-1997.

139  140  141  142  143  144  145  146  147  148  149 

TEP-1980, TBKP-1991, SP-1992, HEP-1993. Uygun 1992: 74–5; Uygun 2000: 267. ÖZDEP-1993. Tanör 1997: 23. TBKP-1991, SP-1992. SP-1992, HEP-1993, DDP-1996. SP-1992, ÖZDEP-1993. SP-1992, ÖZDEP-1993. DDP-1996. SP-1992. SP-1992.

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in the democratic process.150 Thus, it has always considered self-determination to mean external self-determination (that is, secession). In its view, the right to self determination cannot be claimed in a ‘democratic country’151 which has a government representing all the people of the country regardless of their race, religion and colour,152 where the ‘equal rights’ principle is applied, and no discrimination exists on the basis of race, religion and colour.153 Moreover, the AYM considers self-determination rights as something that can be claimed in a ‘particular period’154 and furthermore, the right to self-determination is considered not as a continuing process but as being applied in a ‘one-off’ event. Thus the AYM has claimed that self-determination was purged from Turkey’s agenda following the Lausanne Treaty where the Kurds used their right to self-determination.155 The right to protect the country and nation’s integrity has thus been interpreted as more important than the right to self-determination.156 The AYM’s case law has thus not only fallen very much behind contemporary trends regarding the protection of minorities, but also demonstrates inconsistencies with the justifications for minority protection given in international law. 5.3 Examining Minority Qualities in the Kurdish Case In order to understand the AYM’s view on the minority concept more deeply, we can take the Kurdish case which has recently been at the centre of discussions in Turkey. Discussion of the Kurdish case is essential since the concept of minority has been discussed by the AYM only in those cases where demands for Kurdish cultural, linguistic and educational rights have led to a political party’s closure. An examination of the AYM’s case law on party closure cases establishes that the Kurds are not treated as a culturally and linguistically distinct group which differs from the Turks and, further, they are not regarded as a minority.

150  Henrard 2000: 297 states that ‘the right to self-determination is no longer restricted to an external dimension. Accepting the internal dimension of, and thus continuing, ongoing applicability of this right, arguably implies an acknowledgement that minority protection is a component/possible application of the right to self-determination’. 151  STP-1993. 152  STP-1993. 153  ÖZDEP-1993, DEP-1994. 154  Özkırımlı 2008: 14. 155  ÖZDEP-1993. Vrdoljak 2008: 78 states that ‘self-determination is a process and not a right extinguished upon independence … If self-determination is a process then it is to be realized through political, civil, social and cultural rights within a state, which ensures effective participation of all inhabitants and the distinct identity of its constituent groups. The arrangements may entail granting extensive autonomy to groups in respect of economic, social and cultural matters.’ 156  STP-1993, ÖZDEP-1993.

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In the AYM’s view, ‘there is no community in Turkey which has an original/ authentic sociological structure.’157 It has concluded that the Kurds are not eligible to be considered as a minority since they do not ‘possess qualities compatible with a minority’s sociological and legal definition’,158 and ‘scientifically, the Kurds do not have the necessary characteristics and elements to be considered as a minority.’159 While we can see that the AYM was willing to assess the Kurdish case on the basis of non-legal factors, it does this on dubious criteria, denying the existence of any community, besides the Turkish one, as having an authentic social structure in Turkey.160 The AYM has invoked the issue of language in order to ‘prove’ that the Kurds are no different to the Turks. In one of its judgments, the AYM claims that ‘there is no original (özgün) Kurdish language.’161 In this sense, the AYM’s judgments show a resemblance to the judgments of the Martial Court in the DDKO and Beşikçi cases in the 1970s where the latter court tried to establish, with reference to so-called ‘scientific evidence’, that the Kurdish language is derived from the Turkish language (see 6.4.2; also see 3.3 for the antecedents of this idea). However, unlike in the DDKO and Beşikçi cases, the AYM does not give any reference for its assessment. This somewhat rushed effort by the AYM might be the result of a conflict between the AYM’s enthusiasm to incorporate the official ideology in its judgment and being able to defend its view confidently. Despite this, it is interesting to see that the AYM has found itself to be an authority to judge the originality of the Kurdish language, legitimizing and legalizing the official policy of denial. Somewhat contradictorily, in the same judgment, the AYM also described the Kurdish language as a ‘local language’,162 spoken by some ethnic groups that are 157  This argument first appeared in the SP-1992 judgment and was repeated in HEP-1993. 158  SP-1992, HEP-1993, STP-1993, ÖZDEP-1993, DEP-1994, EP-1997. 159  SP-1992, HEP-1993. For a study examining Kurdish people’s status with reference to international law, see Aral 2000: 35, who concludes that ‘the Kurds of Turkey constitute a “minority” as defined under international law.’ In the main, scholarly work on minorities refers to the Kurds as a ‘minority’: see Kymlicka 1999, Thornberry 1993. Further, the main international bodies also refer to the Kurds as a minority: see ECRI 2011: 12 and 82, CERD 2009, and also see EU Progress Reports. 160  For discussion on the authentic characteristics of the Turkish ethnie, see Chapter 4. 161  HEP-1993. 162  In the HEP-1993 judgment, the AYM stated that ‘local language, folklore and culture’ are a ‘social colour and richness’ and that they ‘are respected and they are the pride and happiness of the nation’ as long as these identities do not contradict the Turkish nation’s common identity which is a constitutional concept. In subsequent paragraphs, the AYM criticized the HEP for asserting that there exist Kurdish people in Turkey who have a separate language and culture and are eligible for self-determination. Also see ÖZDEP-1993, DEP-1994, STP-1995, DDP-1996, EP-1997. In the EP judgment, the AYM stated that ‘nations’ (milliyetler) are against the national structure and the word ‘ethnic’ is

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part of the ‘national unity’.163 In the AYM’s view, ‘use of the mother tongue in closed or open private life, at home and work area, in media and art is not prohibited.’164 However, it still finds unacceptable the use of the ‘local language of ethnic groups who are considered within the national unity in common communication and modern education in place of the official language’.165 The AYM thereby separates the private sphere from the public sphere for the enjoyment of the Kurdishorigin people’s language, tradition and customs. While the AYM claims that they are allowed the enjoyment of these in private life, it rejects carrying them into public life.166 The AYM furthermore undermines the significance of this unoriginal, ‘local language’ for the Kurdish people on the ground that Turkish is ‘the most prevalent language among individuals of different races and origins’.167 In its view, Turkish is not only the official language of the country but a ‘common language’, which is also used in private life and in ‘education and culture’ – in short, in every area of social life.168 There are very few people who cannot speak Turkish.169 In this way, the AYM tries to establish that the Turkish language has become a common language for various ethnic origin people in Turkey and has even substantially replaced the spoken ‘local languages’, for example, Kurdish. This assessment, described as ‘unsatisfactory’,170 appears to betray another agenda, that is, to prove the insignificance of the Kurdish language for Kurdish people in Turkey on the ground that Turkish is prevalent in every aspect of life of the people and, consequently, to deny the need to protect the Kurdish people’s language. Conversely, by asserting that Turkish is a common language, which has even penetrated everyone’s private life in Turkey, the AYM seemingly proves that various ethnic groups’ differences are now insignificant, since they are fused together as a consequence of living together for a thousand years. By referring to Turkish as the language generally spoken in the home among family members, it seemingly justifies linguistic assimilation.

discriminatory and against the national security and order principles set out in article 11 of the ECHR. 163  SP-1992, HEP-1993. 164  SP-1992, HEP-1993. 165  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, EP-1997. 166  For the Yargıtay’s similar view, see 4.4.1. On the other hand, Thornberry 1991: 189 criticizes such an approach, stating, ‘A State cannot in good faith claim that as it permits the use of a minority language in the home, the community aspect of the right is satisfied. The test is always likely to be the test of the public forum: are members of minority group allowed (negative), or encouraged (positive) to band together in various kinds of cultural institutions, including schools, to ensure their survival as a cultural entity?’ 167  SP-1992, HEP-1993, STP-1993, ÖZDEP-1993, DEP-1994, DDP-1996, EP-1997. 168  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, EP-1997. 169  SP-1992, HEP-1993, STP-1993, ÖZDEP-1993, DEP-1994, DDP-1996. 170  Üzeltürk 2002: 176.

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The AYM also claims that the Kurds are not a territorially concentrated group and ‘there is no certain area or city which has natural or administrative borders which might be considered as the Kurdish origin people’s land or only populated by them.’171 The AYM adopts a historical explanation – that the Kurds had come to the territory of Turkey with the Turks, and together they ‘entered the current territory, settled there, fought to save it and lived there’.172 By claiming that, as with the Turks, Kurds too came to the current territory of Turkey, the AYM undermines the assertion that the Kurds are natives of the homeland (vatan); since they came together to the current homeland, it is implied that Kurds and Turks are no different in respect of their claim to original settlement of the country (see also 2.2.4). Kurds are not a minority or a nation in the AYM’s view; and, they cannot be considered as being outside of the Turkish nation and state’s integrity.173 There is therefore a difference in saying that ‘there are Kurds in the world’ and saying that ‘there is a Kurdish nation outside of the Turkish nation.’174 It seems that the AYM feels itself obliged to accept the existence of Kurds in the world, but still seems to refuse that they might be considered as a ‘nation’ outside of, and separate to, the Turkish nation. The AYM claims that the Kurds enjoy full rights and freedoms in Turkey, as with other citizens, without any differentiation, limitation and discrimination. There are no rights that the Kurds have been deprived of since they are subject to uniform laws.175 Kurdish citizens have the right to work, live and study, and they have found a place in the state administration regardless of their origin.176 They can be ‘workers, businessmen, doctors, lawyers, state servants, soldiers, and judges, MPs, Ministers and Presidents’.177 Besides some localized and ethnic characteristics of the Kurds, there is a linguistic, religious and historical unity with Turks;178 through marriages, blood connections have been created as well.179 By emphasizing that Kurds and Turks have much in common and few differences,180 the AYM tries to undermine the authenticity of Kurdish culture and,

171  SP-1992, HEP-1993. 172  The SP-1992 judgment was the first time this argument found a place in an

AYM judgment, and it was again invoked in HEP-1993. The AYM also described the current territories of Turkey as the ‘homeland’ (vatan). Turkish immigration to the current homeland has generally been neglected while the migration of various other groups into vatan was emphasized: see ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, DDP-1996, EP-1997. 173  TBKP-1991, SP-1992, HEP-1993,STP-1993, ÖZDEP-1993, DEP-1994, EP-1997. 174  STP-1993. 175  SP-1992, HEP-1993, STP-1993, ÖZDEP-1993, DEP-1994, EP-1997. 176  TKP-1991, SP-1992, HEP-1993, STP-1993, ÖZDEP-1993, DEP-1994, EP-1997. 177  SP-1992, HEP-1993, STP-1993, ÖZDEP-1993, DEP-1994, EP-1997. 178  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, EP-1997. 179  SP-1992, HEP-1993, STP-1993, ÖZDEP-1993, DEP-1994, EP-1997. 180  SP-1992, HEP-1993.

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at the same time, implies that they are no different from the Turks.181 The claim that the Kurds’ history is the same as Turkish history, overrides the Kurds’ claim to their own history, different and independent from the Turkish ethnie. In order to undermine their rights from being grounded in minority rights, the AYM thereby attempts to establish that the Kurds have all the rights and freedoms while denying the existence of discrimination towards them. However, such logic has severely been criticized by the UN Human Rights Committee’s General Comment no. 23, which states that … some states who claim that they do not discriminate on grounds of ethnicity, language or religion, wrongly contend, on that basis alone, that they have no minorities … The absence of (‘racial’) discrimination does not preclude the recognition of groups as (ethnic, religious and/or linguistic) minorities for the purposes of article 27 [of the ICCPR].182

The AYM has several times claimed that neither language183 nor cultures184 and ethnic origins of various groups have been denied in Turkey,185 that the Kurds’ identity has not been prohibited,186 and that they can ‘carry on with their native/local language, customs and tradition’ in their ‘private life’.187 At the same time, in the AYM’s view, ethnic differences of the Kurds are still ‘debatable’,188 a ‘hypothesis’ (varsayım), or it refers to them as the people who were ‘described as Kurds’.189 Further, the AYM has seen the cultural and linguistic demands of Kurdish people as a ‘backward aim’ and ‘based on a hypothesis, comment and pretext’, originating from foreign countries’ efforts for political reasons and intensified with arguments of human rights and freedom which cannot be recognized.190 Thus, mentioning ‘the Kurds’ cultural and national rights’ is aimed at bringing up objective differentiations and is thus unacceptable since that would be tantamount to the creation of a minority.191 Further, ideas which envision the Kurds as being outside of the ‘Turkish nation (Türk ulusu) which is a historical reality’ are tantamount to ideas creating differentiation ‘based on racism’.192 Interestingly, in the TBKP-1991 181  182  183  184  185  186  187  188  189  190 

For a similar argument see Koğacıoğlu 2004: 452. HRC, General Comment no. 23, para. 4. SP-1992, ÖZDEP-1993, HEP-1993, STP-1995, DDP-1996, EP-1997, DKP-1999. SP-1992, ÖZDEP-1993, HEP-1993, STP-1995, DDP-1996, EP-1997, DKP-1999. TBKP-1991, SP-1992. TBKP-1991, SP-1992, ÖZDEP-1993, HEP-1993, DEP-1994, STP-1995, EP-1997. SP-1992, HEP-1993. ÖZDEP-1993. SBP-1995. TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP1995, DDP-1996, EP-1997. 191  SP-1992, HEP-1993. 192  TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP1995, DDP-1996, EP-1997.

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judgment, the AYM clearly points out that ‘to pursue the aims of Kurdism (Kürtçülük) or separation by means of using the Kurdish identity and the name Kurd is not allowed by the law.’ In some of its earlier judgments, the AYM accepts that there might be some contradictions, incongruity (aykırılık), unfair treatment, or wrongdoings against Kurdish people, but it considers that these can be faced by anybody at anytime and can be resolved within the rules of the state. It has further stated that these wrongs should not be exploited by the human rights field to distort reality.193 However, in its more recent judgments the AYM has taken a stricter position and stated that, contrary to the defendant party’s allegations, there was no oppression or any prohibition towards Kurds,194 or it has found the allegation that Kurdish people in Turkey are ‘oppressed and exploited on the basis of ethnicity’ as ‘fictitious hypotheses’.195 The AYM has also rejected the claim of assimilation of various ethnic groups and has stated that ‘to repeat the fictitious allegations of assimilation, melting (ertime), and exclusion’ goes against the Constitution and the Political Parties Law.196 The AYM has denied the state’s assimilation policy towards Kurdish minority people in order not to acknowledge their separate existence. Thus in the TEP judgment, it stated that ‘to mention the assimilation of Turkish citizens who live in the eastern regions means to assert that they are an entity which is separate from the majority and entails the obligation of granting legal recognition to them.’197 While the AYM acknowledged in some of its judgments that the economic and social circumstances in the eastern areas were worse than in the rest of the country, it reasoned that that would not per se prove the existence of such a policy.198 It has also stated that the heavier deprivations which might have been experienced in this region were due to various reasons and that the state’s severe measures anxiously taken to protect the ‘state’s existence and unity’ did not equate to ‘forced assimilation’; to claim the contrary was incompatible with historical facts.199 Evidently, the AYM plays a role in reconstructing and reproducing the official state ideology about Kurds. Its refusal to refer to Kurds as a minority is supported by its invoking the state’s official version of history. Thus, in the AYM’s view, 193  194  195  196  197 

TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993. EP-1997. DTP-2009. HEP-1993. Also see TEP-1980 and DKP-1999. TEP-1980 and, similarly, see DKP-1999. Also, in the TEP judgment, the court gave the figures for Kurdish mother-tongue speakers taken from the 1965 census to prove that Kurds were not the majority in the south-eastern part of the country. It also rejected claims about the practice of assimilation and the existence of such a policy by referring to a ‘nonTurkish language’, which was still spoken by a group of citizens living in the eastern areas. 198  TİP-1972, TEP-1980. Also see SP-1992, HEP-1993. See similarly, the DDKO decision pp. 79–80 and Beşikçi-V-1992: 113. 199  TEP-1980. In DTP-2009, the AYM denied that there exists ‘oppression and a persecution policy’ towards the Kurds in Turkey from the state.

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Kurds are not mentioned in the Erzurum and Sivas Congresses, the National Pact, or the Lausanne Agreement.200 The AYM recalls that during the Lausanne Conference, the Kurds were within the Turkish nation’s integrity, that they did not have the desire to establish a separate state, and did not want to benefit from minority protection.201 The AYM has also stated that Kurdish rebellions throughout the history of the Republic do not prove the existence of the Kurdish minority, since they were organized by external powers.202 We can therefore see that the contradictions which appear in the AYM’s general views on the minority issue also reappear in more specific form when it considers the Kurdish case. While it does not outright deny the existence of Kurds and their language and therefore must recognize that Kurds do have some distinct cultural attributes, it nevertheless avoids classifying them as a minority. In order to do so, it uses various means to deny the authenticity of Kurdish culture, language and history, and their distinctiveness apart from the Turkish national culture, language, and so on. Meanwhile, it also denies the claim of assimilation (see 3.3), even though its own rhetoric is grounded in assimilationist ideology. In the background also lurk some of the same concerns about the disintegration of national identity, the compromise of the state’s integrity with the nation, the fear that any prospect of recognizing Kurds as a minority would lead to secession, and the involvement of a ‘foreign hand’ in Kurdish demands. 5.4 Citizenship in the Human Rights and Democracy Context In the AYM’s view, the concept of citizenship is a contemporary unifying phenomenon which goes beyond regional characteristics and ethnic differences.203 Citizenship is also described as a component in the realization of national unity.204 According to the AYM, ‘national unity is realized without distinction (ayrımsız) within the unity of individuals and communities who established the state and composed the nation under a citizenship structure regardless of their ethnic origin’.205 Given its reference to the establishment of the state, the AYM’s sees citizenship as a tie among the various Muslim people of Turkey. As discussed above (5.2.1), the official ideology holds that non-Muslims had not participated in the establishment of the state. 200  TBKP-1991, SP-1992, HEP-1993, STP-1993, ÖZDEP-1993, DEP-1994, SBP1995, DDP-1996, EP-1997. 201  TBKP-1991, DEP-1991, HEP-1993, SBP-1995. In later cases, this paragraph began to be used by the public prosecutors, but does not appear in the AYM’s judgments. 202  TEB-1982. 203  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, DDP-1996. 204  Çavuşoğlu 1994: 16. 205  TBKP-1991, SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DP-1994, SBP-1995, DDP-1996, EP-1997, HADEP-2003, and also see DTP-2009.

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Although the ostensibly civic nationalist definition set out in article 66 of the Constitution of 1982 reads, ‘Everyone bound to the Turkish state through the bond of citizenship is a Turk’, its interpretation by the AYM narrows its scope and inclusiveness (see 4.1). The AYM claims that the concept of Turkishness (Türklük) does not have a racial meaning and it does not aim to change ethnic origins but, rather, refers to the ‘citizenship and national identity of citizens of every origin’.206 Therefore to say ‘“I am a Turk” means I am a Turkish citizen and I am an individual of the Turkish nation.’207 The AYM also claims that article 66, in considering everyone who is bound to the state by citizenship as a Turk, aims to provide equality from the point of view of individual human rights and not to privilege any of the ethnic groups.208 Since minority rights are seen as a privilege (see 5.3), this interpretation entails that that while a ‘Turk’ cannot have a privileged status, anyone who has a privileged status is not a ‘Turk’. Thus, in the AYM’s formula, the concept of ‘citizenship’ and ‘minority’ are mutually exclusive. The AYM claims that the Turkishness concept set out in article 66 of the Constitution with reference to citizenship is also designed to prevent ‘granting privileges to an ethnic group which founded the nation’,209 to ‘provide equality’ and ‘to prevent the ethnic groups who are all part of the majority falling into a minority position’.210 In this way, the AYM anticipates the concept of citizenship as an antidote, which impedes the recognition of various Muslim groups as ‘minorities’. Further, in its view, a minority concept which seeks protection for differences and requires differentiated laws contradicts the concept of citizenship, which offers equality and uniform rights and laws for all. It therefore describes Turkish citizenship as a common and universal identity where ‘there is no place for people to be different from each other and there is no place for privileges on the basis of religious, cultural and ethnic differences.’211 Hence, the AYM’s citizenship concept contemplates citizens of the state as homogenous individuals. The AYM has interpreted talking about differences among the citizens as instantiating ‘racial discrimination’ (ırk ayrımcılığı), that is, racism.212 Thus to come up with such ‘unreal allegations’, that there are differences among citizens, amounts to discrimination which is anti-democratic and, moreover, racist.213 In the AYM’s view, a citizen has to strip off one’s ethno-religious particularity and embrace the common, individual and modern Turkish culture, together with

206  207  208  209  210  211 

ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, DDP-1996, EP-1997. ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, DDP-1996, EP-1997. ÖZDEP-1993, SBP-1995. ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, DDP-1996, EP-1997. SP-1992, HEP-1993, HADEP-2003, DTP-2009. SP-1992, HEP-1993, ÖZDEP-1993, STP-1993, DEP-1994, SBP-1995, DDP-1996, EP-1997. Also see TEP-1980. 212  ÖZDEP-1993. 213  ÖZDEP-1993 and, for a similar view, see EP-1997.

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the Turkish language and history.214 This view becomes evident when it describes the citizens of the Turkish Republic as ‘individuals of the Turkish nation, which has common historical values and culture, has the same national identity’, with people who have also coalesced into a single body.215 What is striking here is that the AYM uses the same ethno-cultural criteria for citizenship which it adopts for defining the Turkish nation. Thus, like the Turkish nation, the concept of citizenship is also contemplated as unchanging and ‘assertions which change the qualifications for Turkish citizenship cannot be maintained.’216 Further, a reliance on racial and regional differentiation and rejection of the contemporary nation concept based on the consciousness of citizenship and the nation’s unity constitute grounds for the closure of a political party.217 Thus, its discourse implies that those who do not have, or do not adopt, these ‘common’ ethno-cultural particularities remain outside of citizenship. The AYM sees the concept of citizenship as having some rights attached to it as derived from the individual human rights concept. Thus, any demand which goes beyond this package of human rights is found unacceptable in the context of citizenship. By linking citizenship to the universality of human rights, and individual and uniform application on an equal footing, the AYM seems to justify its opposition to minority protection. It claims that minority rights, as special rights other than human rights recognized outside of the context of citizenship,218 are applied to a certain group in an unequal manner, beyond equal citizenship rights, and are therefore considered as contradicting citizenship rights. The AYM has therefore failed to reconcile minority protection with citizenship. The concept of citizenship is considered to be another tool for the legitimization of homogenization policies. As theorized by the AYM, citizenship has no room for minority rights, since it unifies everybody under uniform and individual human rights and freedoms, while preventing differentiation. This examination of how the concepts of nation, Turkish nation, and citizenship are interpreted by the AYM enables us to reach the conclusion that the AYM is a strong supporter of the ideology of Turkish nationalism and participates in the denial of minority status and cultural differentiation more generally. In the next chapter, we turn to an examination of the legislation on discrimination and hate offences, and specifically how the prosecuting authorities and the judiciary have approached the enforcement of those provisions.

214  For the more general tendency of nation-states to this end, see Smith 1995: 97. 215  SP-1992, HEP-1993. 216  TBKP-1991, HEP-1993, STP-1993, STP-1993, ÖZDEP-1993, DEP-1994,

SBP-1995, DDP-1996, EP-1997. 217  DKP-1999. 218  SP-1992, HEP-1993, ÖZDEP-1993, STP-1993.

Chapter 6

‘The right to equal concern and respect’: Equality, Anti-Discrimination and Anti-Racism Laws in Turkey The Turkish legal system is based on a rigid concept of equality before the law which assumes that all benefit from uniform rights and have uniform duties as individuals. Therefore, as we have seen in Chapter 5, anything which goes beyond this general legal status and grounds some differentiated rights or treatment has been condemned as tantamount to having ‘privileges’, and is thus demonized. The concepts of nation and citizenship are also conceptualized as being closed to any type of ‘privileges’. Since the absolute application of the formal equality principle is envisaged as a sine qua non of these concepts, minority rights requiring differentiated treatment are conceptualized as having something incongruous about them. This concept of equality claims to be difference-blind and therefore claims not to differentiate on racial, ethnic, religious, or linguistic grounds in the application of laws. Therefore, the legal system assumes that no rights or configurations are or can be based on racial, ethnic, linguistic, or other differences. Furthermore, any differentiation on these grounds has been penalized. Following on from this rigid understanding of equality, the state has taken the stand that the principle of equality before the law is adequate to establish and maintain public peace and order, and is a sufficient guarantee to prevent discrimination or racism in society.1 The principle of equality in the Turkish legal system has been seen as satisfied by being accepted into the Turkish identity and culture. Therefore, this formula has effectively required a transformation of diverse groups into a single form – Turkishness – as tailored by the state and its ideological structure. Thus, the principle of equality as construed in Turkish law has not assured a ‘right to equal concern and respect’2 to all of Turkey’s diverse groups. Nevertheless, this formal equality has been used by the legal system as a justification for negating demands for the maintenance and protection of differences. An examination of Turkish legislation demonstrates that there are some provisions that are claimed as ensuring equality among diverse groups by guaranteeing non-discrimination and preventing acts of group defamation. However, an examination of the application of these provisions by the judiciary 1  For a critique, see Baskın Oran, ‘Türkler AIDS ve Irkçı Olabilir mi?’, Radikal, 07.10.2008. 2  This phrase is adopted from Dworkin 1977: 184–205.

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establishes that they have been utilized for protecting the official state ideology, since the protection and maintenance of non-Turkish identities is perceived as a threat to the state’s unity with its territory and nation.3 An assessment of the judiciary’s position therefore demonstrates that not everybody is treated with ‘equal concern and respect’. Rather, ethnic Turks and Sunni Muslims receive asymmetrically greater concern and respect as opposed to people who do not fall within these categories. Since Turkish nationalism in the form of ‘Atatürk nationalism’ is the founding principle of the state and the legal system, the judiciary has not remained unaffected, but has reconstructed this state-oriented nationalism into a form of nationalist jurisprudence.4 Consequently, the Turkish legal system has mostly failed to offer, or deliberately ignored offering, adequate protection to non-Turkish and non-Muslim people from attacks motivated wholly or partly by the offender’s prejudice or hate against a race, religion, or ethnic or national group. In this chapter, we track the provisions on equality (6.1) and non-discrimination (6.2), examine their conceptual nature within the Turkish legal discourse, and assess how far they might act as protective mechanisms for minorities. We then analyse (6.3) different protections available under Turkish criminal law which cover discrimination in economic fields, hate crimes and hate speech, inciting hatred and animosity, and ‘insulting Turkishness’. The analysis covers the detail of the legislation, its interpretation and use by the prosecutors and the judiciary. Finally, we examine (6.4) how legislation and the judiciary have tried to prohibit or control racism at an ideological level by placing certain restrictions on political actors. 6.1 Equality before the Law It is said that the principle of equality finds its roots in Rousseau’s social contract where ‘anonymous subjects’5 are considered as the same and equal, while disregarding individuals’ identities in their social and cultural contexts.6 This assumed sameness not only requires equality in social classes and before the law, but also ‘equality in tastes and manners’ and a ‘cultural homogeneity which demands the suppression of particular corporate associations that might distract citizens from their undivided loyalty to the general good of the state’.7 Therefore, the positivist ‘absolutist equality’ discourse presumes an ‘all’, which is uniformly 3  For a study on ‘Perception and Mental Settings Pattern of Judicial Bodies’ see Sancar and Ümit 2007. This study revealed that judicial bodies in Turkey have tended to protect the state’s interest and authority, as opposed to democracy and freedoms. 4  Neşe Düzel’s interview with Levent Köker, Radikal, 19.02.2007. Köker considers that, in some critical cases, the judiciary in Turkey reacts in favour of the nation state’s wellbeing and security concerns, thus also shaping the law along these lines. 5  Ingram 2000: 26. 6  Erdoğan 2005: 130. 7  Ingram 2000: 26.

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the same in human nature, denying differences or differentiation in treatment, while aiming at homogenization.8 Parekh suggests that the concept of equality suffers from the mistaken idea of ‘human nature’ based on their ‘shared features or similarity’.9 He argues though that ‘human beings are at once both natural and cultural beings, sharing a common human identity but in a culturally mediated manner.’10 According to Parekh, human beings ‘are both similar and different’; thus, we cannot ‘ground equality in human uniformity’ because, ‘while granting them equality at the level of their shared human nature, we deny it at the equally important cultural level.’11 He also interprets the idea of equality as ‘an ideological device to mould humankind in a certain direction’, but rightly asserts that we are required to treat human beings ‘equally in those respects in which they are similar and not those in which they are different’.12 The question would then be: how to reconcile equality and justice? Supporters of the Rousseauian requirement of egalitarian sameness today base their defence of democracy on the assumption that individuals are equal in their common possession of humanity. The principle of equality is alleged to provide individuals with the same basic universal civic and political rights and the possession of these rights is ‘compatible with (and even protective of) social and cultural difference’.13 The principle of equality, in Parekh’s view, would require that we take into account both ‘similarities and differences’.14 Ingram points out that treating a person equally requires more than mere equal treatment; it also involves different treatment, ‘in a way that respects their individual distinctness no less than their common humanity’.15 İçduygu and Soner’s answer to this is to reconcile the universal principle of ‘citizenship equality’ with the idea of differentiated treatment for ethno-cultural minorities, and thereby to create a legal-political ground for the accommodation of diversity within the universal sphere of citizenship equality.16 They argue that emphasis on differentiation in the absence of equal citizenship status is also problematic.17 Equality before the law is considered a ‘sine qua non of citizenship status’18 but it is not sufficient on its own to guarantee the achievement of substantive equality, especially in diverse societies. Moreover, treating essentially different groups in 8  Erdoğan 2005: 129. 9  Parekh 2000: 239. 10  Ibid.: 239. 11  Ibid.: 239–40. 12  Ibid. 13  Ingram 2000: 15. 14  Parekh 2000: 239–40. 15  Ingram 2000: 15. 16  İçduygu and Soner 2006: 448. 17  Ibid.: 448. 18  Ibid.: 447.

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an identical fashion, that is, treating minority groups in the same manner as the majority may violate the principles of both equality and non-discrimination.19 Thus, achievement of equality in diverse societies requires legal equality as well as maintenance of differences through some ‘exemption and arrangements, that is, some specific group rights which are not granted to other groups’.20 The Concept of Equality in Turkish Law and Jurisprudence The concept of equality has been formulated as ‘equality before the law’ in each of Turkey’s Constitutions. The principle assumes legal equality since every person is a legal entity because of his or her ‘human nature’ and ‘honour’.21 It aims to prevent distinctions on the grounds of language, race, religion, and so on, among citizens in the treatment of each as a ‘legal entity’.22 The concept of equality before the law forecloses the establishment of a legal system based on one of these grounds,23 while simultaneously necessitating a single legal system with uniform, common laws for all.24 In the formulation of equality before the law, none of the Constitutions carries a norm against discrimination per se. However, they have all combined ‘equality before the law’ with (a) a ‘specific distinctions ban’ (özgül ayrımlar yasağı) 25 on the basis of language, race, gender, political ideas, philosophical belief, religion, denomination and such considerations,26 (b) banning the ‘recognition of privileges’,27 and (c) benefiting from uniform fundamental rights and freedoms on an equal basis. However, conceptualizing equality within these boundaries has serious consequences for minority rights and the accommodation of differences in the law and its practice. These consequences become clear especially when the case law of the Turkish higher courts is examined. We have already examined some of the AYM’s case law on this issue (5.2.2), and we revisit it here to examine the scope of the principle of equality. For instance, in the AYM’s view, the aim of the principle of equality before the law in article 10 of the 1982 Constitution, is to … provide the same treatment for those who have the same status before the law and to prevent a distinction to be made (ayrım yapılması) before the law

19  Gilbert 1992: 71; see also Thornberry 1991: 128. 20  Ingram 2000: 15. See also Wheatley 2005: 22 and fn. 105 on the recognition of

difference in international law. 21  Öden 2003: 151. 22  Güneş 1964: 190. 23  Ibid. 24  Öden 2003: 136. 25  Ibid.: 128–9. In the 1924 Constitution, the ‘specific distinctions bans’ were limited to ‘religion and race’. 26  Ibid.: 138. Article 12 of the 1961 Constitution did not refer to ‘such considerations’. 27  Ibid.: 131.

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and to prevent the conferment of a privilege upon them. This principle prohibits a breach of the principle of equality by applying different rules to persons and groups who have the same status … Moreover, different rules cannot be enacted for those who are identical (özdeş) in character (nitelikleri) and status (durum).28

That is, the AYM sees the principle of equality as providing an ‘absolute prohibition [which] prevents the application of different rules to those of the same status, and avoids privileging persons and groups’.29 However, if there is a ‘public interest’ or ‘reasonable justification’ for the application of differentiated rules and treatment then that is seen as justified by the AYM,30 as long as it is ‘apprehensible’ (anlaşılabilir), ‘related to the purpose’, and ‘reasonable and just’.31 Nevertheless, while gender, health and economic situation are considered as a ‘reasonable justification’ for differentiated treatment in the AYM’s view, religious, ethnic, linguistic and other distinctions have never been considered as a ‘reasonable justification’ for such differentiated treatment. By interpreting the concept of equality as entailing with reference to a ban on ‘special distinctions’, or on the ‘recognition of privileges’, and as providing uniform rights and freedoms for all while not considering ethno-cultural, religious, and other differences as ‘reasonable justification’, the AYM implies that ‘protecting distinctions’ would ‘create inequality’ which violates the principle of equality. The AYM applies this equation in the case of recognized non-Muslim minorities. In its opinion, having a recognized minority status would not justify being subject to laws on a differentiated basis because of its contradiction with the principle of equality.32 This interpretation has been strongly defended by the Yargıtay in a

28  AYM, E.1999/10, K.1999/22, 07.06.1999; AYM, E.2007/104, K.2008/164, 20.11.2008. See also AYM, E.2001/373, K.2003/67, 18.06.2003; AYM, E.1989/l, K.1989/12, 07.03.1989; AYM, E.1988/4, K.1989/3, 12.10.1989. The principle of equality before the law is interpreted by Turkey as to ‘enjoy the same rights and have the same obligations’: Turkey Report 2007 to CERD, para. 13. 29  AYM, E.1988/4, K.1989/3, 12.01.1989. For a similar logic, see AYM, E.2006/111, K.2006/112, 15.12.2006; AYM, E.2001/349, K.2004/14, 12.02.2004. 30  The ECtHR’s well-established case law also states that differentiated treatment which does not have any objective and reasonable justification can be deemed a violation of article 14 of the ECHR: Belgian Linguistics Case (no. 1474/62, 23.07.1968, para. 10). 31  AYM, E.1991/13, K.1992/10, 19.02.1992, Özbudun 2005: 138. On the other hand, article 13 of the 1982 Constitution has been used as a justification for stepping away from the principle of the equality in cases which involve the state’s indivisible integrity with its territory and nation, national sovereignty, national security, public order, general security (asayiş), public interest, protection of general morality and health: AYM, E.1998/58, K.1999/19, 27.05.1999; for the same reasoning, see AYM, E.1996/74, K.1998/45, 01.07.1998, AYM, E.1999/6, K.1999/13, 11.05.1999. 32  For the AYM’s justification for minority protection for non-Muslims set out by the Lausanne Treaty with reference to the principle of equality, see TBKP-1991, SP-1992.

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recent case, in which it discussed and tried to justify the non-recognition of the ecumenical status of the Greek Orthodox Church in Istanbul. The court stated: Since it would openly contradict the principle of equality enshrined in article 10 of the Constitution, it is unacceptable for a sovereign state to implement a law as regards minorities living on its territories which is different from that applicable to its own citizens and grant them a special status by way of recognizing certain privileges for them which are denied even to the majority.33

Given its confinement of minority rights into the scope of formal equality, the logic behind the protection of those rights seems to be lost on the AYM. The AYM’s approach not only fails to conceptualize the recognition of minority rights as a ‘means to maintain (cultural) differences’.34 It further fails to provide a legal basis which assures a ‘concurrent recognition of the right of persons belonging to minorities to full equality with members of the majority, and their right to preserve their separate identity’35 and differences. The AYM’s and the Yargıtay’s interpretation of the concept of equality before the law requires the same uniform laws, rights and freedoms for all since, otherwise, it would mean obtaining unjust privileges and would contradict the very nature of the equality principle. The use of the word ‘privileges’ here is significant if one considers that privileged, special rights in the AYM’s terminology are minority rights (see 5.2.2). Therefore, the principle of equality and the protection of minority rights are contemplated as mutually exclusive in this discourse. In fact, the mind-set reflected in Turkish jurisprudence is in line with trends in postSecond World War international law that foresaw the realization of minority rights by the recognition of the same universal individual civil and political human rights for all and equality in their application.36 Moreover, the AYM’s established case law on equality claims that equality is legal equality, but not substantive equality.37 Thus, in its view, equality in article 10 of the 1982 Constitution ‘is not active (eylemli) but legal equality (hukuksal eşitlik)’.38 This indicates that, in fact, what is entailed is equality on paper or formal equality, but not equality in practice. This interpretation of equality does not satisfy the needs of diverse communities in the country. Further, as discussed 33  Y.(4).CD, E.2005/10694, K.2007/5603, 13.06.2007. Using this argument, the Yargıtay rejected the claim that there was a legal basis for the ecumenical status of the Patriarchate in Turkey. 34  Wheatley 2005: 22. 35  Ibid. 36  Kymlicka 2001: 71. 37  However, article 10 has an exception with respect to women, for whom equality is to be implemented by the state in practice as well. 38  AYM, E.2003/103, K.2008/139, 18.09.2008; AYM, E.2002/114, K.2004/53, 05.05.2004.

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in Chapter 5 and established here, the principle of equality in jurisprudence has functioned in such a way as to refuse people’s demands to enjoy their ‘differences’. The deployment of the principle of equality has assumed that, since everybody is equal, and as they are subjected to same rights and obligations, the laws should not accommodate demands for differentiated treatment. Rather, articulations of differences have been considered as a threat to the existence of the state, nation and territory, and their ban has been justified on those grounds.39 Hence, the formulation and interpretation of equality in Turkish jurisprudence has not only ruled out the protection of differences through special rights, but it has also left no room for the accommodation of ‘differences’ in law. The principle of equality before the law is therefore far from the realization of substantive equality, since it only foresees homogenization by ensuring subjection to the same rights and laws. Further, it not only fails to protect differences, it also fails to protect against nondiscrimination, as we see below. 6.2 Non-Discrimination The concepts of discrimination and equality are considered as ‘positive and negative statements of the same principle’.40 While non-discrimination is interpreted as equality in the enjoyment of all rights and freedoms, it ‘does not mean identical treatment in every instance’.41 Further, it is accepted that non-discrimination in some situations requires differential treatment of those who are in ‘significantly different’ situation.42 Nevertheless, effective realization of non-discrimination, together with equality, are considered ‘as an absolute pre-condition’ for the protection of minorities.43 Thus, neither principles are interpreted merely as a formal guarantee to secure uniform treatment for all, but they are considered as imposing differential treatment and even affirmative action on the state ‘to counter de facto inequalities’.44 However, the practice of the Turkish state shows that neither equality nor non-discrimination has been understood along these lines. Most importantly, the principle of non-discrimination has not been interpreted as entailing recognition of differences but, rather, it has been used in order to silence demands for the 39  Levent Köker, in an interview with Neşe Düzel, Radikal, 19.02.2007, states that ‘the one of the biggest concerns of Turkish nationalism is the state-nation unity that is the principle of “state’s integrity with its territory and nation”. Turkish nationalism therefore considers any demand for expression of differences as an enemy.’ 40  Lerner 2003: 30. 41  HRC General Comment no. 18: Non-Discrimination, para. 8. 42  See the ECtHR’s judgment in the case of Thlimmenos v. Greece (no. 34369/97, 06.04.2000 § 44). 43  Capotorti 1979: para. 582. 44  Schwellnus 2005: 54; also see Thornberry 1991: 126.

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recognition of such differences through the logic that non-discrimination demands non-differentiation on the basis of ethnicity, religion, denomination, gender, and so on.45 However, the state’s failure has been seriously compounded by the judicial bodies’ failure to realize a wider concept of non-discrimination in their practice. As noted previously, there is no ‘comprehensive anti-discrimination legislation’ in Turkey.46 Until recently, non-discrimination was associated with the principle of equality before the law and the word ‘non-discrimination’ was not employed in legislation. However, the Turkish state ratified the International Convention on the Elimination of All Forms of Racial Discrimination on 16 October 2002 and, under article 90 of the 1982 Constitution, it is an integral part of Turkish domestic law. In theory, therefore, the Convention can be invoked before the domestic courts. However, the absence of any case law so far means that it has remained untested. The Turkish state has, however, claimed before the CERD that there is a ‘sound legal framework in Turkey to prevent all forms of discrimination, including racial discrimination’.47 Juridical and political discourse in Turkey has denied not only the existence of discrimination but also its possibility, since it is presumed that, owing to the principle of equality before the law, discrimination would be discarded. Thus, in the AYM’s view, there is no ‘political or legal separation (ayrılık) on the basis of ethnicity or other reasons’,48 either in practice or in ideas.49 It also argues that there has been no rule which foresees differentiation in either the Constitution or in legislation and practice towards citizens.50 For support, it refers to history and claims that non-discrimination is a ‘historically inherited’51 phenomenon in Turkey. More importantly, the AYM considers that to allege that ‘there are differences among citizens or that they are subjected to differentiation’ amounts to ‘racism’ and is ‘not compatible with reality’.52 In the following sections, we examine further the extent to which Turkey’s legal system actually offers protection against discrimination, which the Turkish state claims it does within international fora, and which the judiciary assert at the domestic level.

45  Thornberry 1991: 128 states that ‘prevention of discrimination’ in some countries becomes ‘a means of flattening out differences between cultural and religious groups and promoting assimilation, no doubt in the interest of the dominant culture’. 46  See CERD Concluding Comments on Turkey 2009, 04.03.2009, p. 7. However, recently the government has prepared a Proposal for an ‘Anti-Discrimination Law’, which is still being discussed. For the text of this proposed law, see http://www.icisleri.gov.tr/ default.icisleri_2.aspx?id=5692, last accessed on 27.01.2012. 47  Turkey Report 2007 to CERD, para. 25. 48  TBKP-1991, SP-1992, ÖZDEP-1993, HEP-1993, DEP-1994, DDP-1996, EP-1997. 49  DDP-1996. 50  TEP-1980, TBKP-1991, EP-1997. 51  TBKP-1991, SP-1992. 52  EP-1997.

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The ‘Ayrım’ (Distinction) and ‘Ayrımcılık’ (Discrimination) Dichotomy As noted, the Turkish Constitution does not have a particular provision whereby ‘discrimination’ per se is prohibited. However, according to the Turkish state’s submissions before international bodies,53 article 10 of the Constitution of 1982 has been referred to as the ‘non-discrimination clause’. Thus, the state translated article 10 into English in its report to the CERD as follows: Equality before the Law Article 10.– Everybody is equal before the law without discrimination irrespective of language, race, colour, gender, political opinion, philosophical belief, religion and sect, or any such considerations. Women and men have equal rights. The state shall be liable to ensure that this equality shall be implemented [as amended in 2004]. No privilege shall be granted to any individual, family, group or class. State organs and administrative authorities shall act in compliance with the principle of equality before the law in all their proceedings.

The word used in the Turkish version of article 10 is ‘ayrım gözetmeksizin’, the meaning of which is close to ‘without protecting distinctions’. However, before the CERD, the same phrase is deliberately translated as ‘discrimination’, which is not an accurate translation since article 10 does not contain the word ‘discrimination’, which would be ‘ayrımcılık’ in Turkish. Moreover, legislation in Turkey mostly utilizes the word ‘ayrım’ (distinction) in order to express equality before the law rather than non-discrimination. In the legislation, the word ‘ayrım’ is phrased as something which can be created at will (ayrım yaratmak),54 or as considered or protected (ayrım gözetmek),55 or the making of distinctions (ayrım yapmak).56 Meanwhile, the use of ‘discrimination’ (ayrımcılık) is a recent phenomenon in Turkey, and has entered into legislation especially with reference to women,

53  CERD Turkey Report 2007, p. 4, paras 13–14. 54  Article 58(1) of Law no. 2821, 05.05.1983, article 78(a) and 81 of Law no. 2820,

22.04.1983. Also see article 14 of the 1982 Constitution before amendment in 2001. 55  Article 10 of the 1982 Constitution. See also article 12 of the 1961 Constitution. 56  Article 125(c), (i) of Law no. 657, 14.07.1965. Also see article 3(2) of new TCK of 2004.

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disabled people and children,57 and also in the prohibition of ‘discrimination’ in media and sporting activities.58 The legislator’s preference for the phrase ‘without considering/protecting distinctions’ (ayrım gözetmeksizin) over the word ‘discrimination’ (ayrımcılık) provokes some questions. This preference tells us, first, that Turkish legislation does not contain a strong reflex against discrimination as such. Secondly, since ‘ayrım gözetmeksizin’ has the connotation of ‘not to protect/consider distinctions’, it reveals that distinctions do not matter to the state at all. This formulation reminds one of the French concepts of ‘sans distinction’ used in article 2(1) of the French Constitution of 1992, which is employed in the formulation of the equality before the law principle. It is claimed that use of ‘sans distinction’ has two agendas. It first proclaims the ‘ethnic indifference’ of the people and, secondly, it announces ‘the fiction of ethnic neutrality’ of the state which is realized by ‘the recognition of individual rights only’.59 Marco criticizes this preference because of its ‘antipluralist and assimilative consequences’.60 In the Turkish context, the legislator implies that it neither takes differences into account nor deals with them accordingly, and that the state maintains an equal distance to all groups from a legal point of view. Preference for the word ‘ayrım’ is therefore a deliberate choice behind which lies the aim of preventing differences from becoming visible, undermining demands for their protection, assuming the sameness of all. Turkish legislation has used the word ‘ayrım’ wherever it has wanted to indicate the neutrality of the state in its relations with diverse individuals. However, it goes further than this, turning into negating diversity or failing to recognize and protect it. The failure of this formula to create substantive equality and to provide for non-discrimination among citizens becomes apparent in the case of obtaining a government office. For instance, since 1960, restrictions on being employed in the public sector have been lifted and ‘every Turk’ is entitled to enter public service. 57  For use of word ‘discrimination’ in the context of disabled persons, see article 4 of Law no. 5378, 01.06.2005; with reference to the status of women, see article 3 of Law no. 5251, 27.10.2004; with reference to children, see article 4(1)(c) of Law no. 5395, 03.07.2005. For discrimination through the media against women, weak people, disabled people, and children, see article 4(u) of Law no. 3984, 13.04.1994. 58  Article 4(b) of Law no. 3984, 13.04.1994 prohibits ‘ethnic discrimination’ and ‘inciting people to revenge and animosity on the basis of class, race, language, religion, denomination and regional difference’. Article 6(i) of Regulation, RG: 25567/28.08.2004 makes security personnel at a sporting contest responsible for preventing the use of verbal or written discriminatory words against religion, language, denomination, race, gender or political views, and article 2(i) of Law no. 5719, 29.11.2007 imposes a duty upon the Football Federation to prevent racism and discrimination. Further, civil servants are prohibited from discriminating on any basis in performing their duties, by article 14 of Regulation, RG: 25785/13.04.2005. 59  Marco 2003: 176. 60  Ibid.: 176.

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The Constitutions have provided that no distinction (ayrım) other than qualification for the office concerned is to be taken into consideration for recruitment into the public service.61 However, the non-presence of non-Muslims in state offices such as judges, soldiers, bureaucrats, and so on, shows that, in practice, the equality clause has very little impact on discriminatory practices within society and state. Rather, ethnic origin has been very prominently taken into consideration in recruitment to state offices (see 3.2.1). 6.3 Implementing Non-Discrimination in Law and Jurisprudence The Turkish Penal Code (Türk Ceza Kanunu, TCK) does not contain a general provision prohibiting discrimination. However, some provisions deal with certain types of group defamation and hate-motivated offences. Under this heading, we examine the non-discrimination principle as it operates in the Turkish legal system in the context of the TCK. In so doing, we examine some of the code’s provisions, the government explanatory notes that accompany them, and the jurisprudence in relation to them, in order to evaluate their relevance as non-discrimination clauses. 6.3.1 Non-Discrimination in the Exercise of Economic Activities Discrimination was not criminalized until the new TCK of 2004.62 For the first time, under a section titled ‘Offences Against Public Peace’ (Kamu Barışına Karşı Suçlar), the penal code ostensibly adds ‘make a distinction’ (ayrım yapmak) 63 on grounds of language, race, colour, gender, disability, political opinion, philosophical belief, religion, sect, or similar reasons in economic activities as an offence in article 122. The mental element for this crime is the making of a distinction among people on the basis of language, race, colour, gender,64 disability, political ideas, philosophical beliefs, religion, sect and other reasons. The culpable action is to refuse to sell movable goods or real property, not to provide a public service or to prevent a person benefiting from a service, or employing/not employing65 a person contingent on one of the conditions listed above. Withholding foodstuffs, not to provide services, to refrain from carrying out a service already available to 61  Article 58 of the 1961 Constitution; article 70 of the 1982 Constitution. 62  Law no. 5237, 26.09.2004. 63  Turkey presents this article as a ‘non-discrimination’ provision, and translates ‘make

a distinction’ (ayrım yapmak) as ‘discrimination’: Turkey Report 2007 to CERD, para. 83. 64  ‘Gender’ is added as a ground by article 41 of Law no. 5378, 01.07.2005. Concerns remain that discrimination on the basis of sexuality is not criminalized by the new TCK. 65  Article 70 of the 1982 Constitution states that ‘Every Turk has the right to enter public service … No criteria other than the qualifications for the office concerned shall be taken into consideration for recruitment into public service.’ It can also be considered together with article 122 of the TCK.

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the public, or to prevent a person from carrying out economic activities are also criminalized. However, from the text of the provision, it evidently penalizes direct discrimination only; indirect discrimination thus falls outside of the provision. For such actions, the TCK imposes imprisonment for a term of between six months to one year, or allows the imposition of a fine. The perpetrators can be private or state agents.66 Thus, the state’s ongoing practice of not giving non-Muslims positions in the government, particularly in the military, judiciary, police, and so on, can be considered under this offence. However, the question of who would be liable for such practices towards non-Muslims remains unresolved. Although article 122 can be seen as a deterrent for discriminatory practices occurring in daily economic relations and as enhancing the disadvantaged status of minority groups in Turkey, the government’s explanatory note to article 122 undermines its potential to this end. According to the explanatory note, article 122 ‘penalizes depriving some individuals of facilities provided by the law by making distinctions (ayrımlar yapmak) which are not allowed by laws and regulations’.67 The aim of article 122 is set out as being ‘not to allow making of distinctions among citizens on the basis of their belonging to a group … In this way, the article actually pursues the aim of preventing separatism (bölücülük) among the individuals of the nation (millet).’ Despite the legislator’s deliberate preference for the use of the word ‘ayrım’ (distinction) and its refraining from using the word ‘ayrımcılık’ (discrimination) in the explanatory note, it is possible that the article may protect people from discriminatory actions on grounds of their distinctive characteristics. However, the explanatory note, by expressing its wish to prevent discrimination as way of preventing ‘separatism’ demonstrates that the lawmaker’s main concern is about the state’s indivisibility, rather than protecting individuals and ensuring that they will not be discriminated against. Article 122 has also been criticized by some academics in Turkey on different grounds. According to Şen: … the state should not interfere with private matters by using the pretext of prohibiting discrimination. Further, in our society there is no need for such a law. It is the state and administrative bodies who should not discriminate and protect the principle of equality between individuals. Therefore, a discrimination offence which goes beyond the aim and logic set out in article 216 [of the TCK, see below] should not be accepted.68

66  Yenidünya 2006: 104. 67  Ibid.: 102 claims that the legal value protected by this article is the individuals’

right to equal treatment (eşit işlem görme hakkı). 68  Şen 2006: 510 cited in Yenidünya 2006: 98, fn. 1. For critics of this view see Karan 2007.

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Şen’s argument is problematic with respect to at least two of its aspects. First, he takes the rather narrow view that only the state should be made liable if it discriminates, but that private persons should not. Additionally, he, somewhat ambiguously, takes a double-edged position on the existence of discrimination within society. On the one hand, it may not exist at all in which case there is no need for action. On the other hand, if it does, then it does not deserve to be penalized. This shows the rather limited conceptualization of discrimination among Turkish academics in contrast to existing international standards and contemporary academic discussions on this issue. Even if we take Şen’s (in my view, erroneous) interpretation of article 122 of the new TCK, that it penalizes particular ways of manifesting discrimination in the economic sphere, it will actually only penalize behaviour in contradiction with the norm of equality (eşitliğe aykırı davranış) when it prevents a person from carrying out an ordinary economic activity, prevents the employment of a person, or prevents some people from benefiting from services to the public. Discriminatory actions in fields other than economic activities are therefore left out of the scope of this provision.69 Contrary to the Turkish state’s argument before international fora, article 122 does not penalize general acts of discrimination. Since there is no jurisprudence on this provision yet, it is difficult to anticipate how adequately this article would work in practice. However, a first-instance court recentlydenied the applicability of article 122 of the TCK when some Kurdish families were physically attacked by native Turkish co-villagers who refused to sell them food, forcing the local gendarme to provide them with food and safety before their eviction from the village.70 In addition, despite the inclusion of article 122 in the TCK, Turkey’s consistent practice of attaching reservations to provisions concerning discrimination in a number of international conventions which it has ratified casts doubt about its effectiveness (see the Introduction). The European Commission has also noted that despite the change to the TCK, Turkey has remained out of step with the EU directives on discrimination,71 implementation of which would considerably enhance the legal architecture against discrimination.72 69  For example, refusing the admission of a dead body into a hospital morgue because it is the corpse of a PKK member, that is, because of the deceased’s political view or criminality would fall within this provision. Such incidents do occur in practice: Yeni Özgür Politika, 04.10.2007. 70  Çivril Assize Crime Court (Asliye Ceza Mahkemesi), E. 2007/252, K. 2008/423, 11.07.2008. For more information about this case, see fn. 121 below. 71  European Commission Progress Report 2005 on Turkey 2005, p. 96. 72  Council Directive 2000/78/EC on employment provides safeguards, inter alia, against discrimination on grounds of religion and belief in employment situations, and Council Directive 2000/43/EC covers discrimination on grounds of racial or ethnic origin in a wider set of circumstances. The Directives leave the choice of sanctions (whether criminal, civil, and so on) to the Member States. Turkey’s traditional preference appears to be for criminal rather than civil remedies.

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6.3.2 ‘Hate Crimes’ and ‘Hate Speech’ Hate crime refers to crimes where the perpetrators are motivated by the race, religion, or gender orientation of the victims and carry out physical attacks on certain groups or individuals, or vandalize their properties or their institutions. However, the concept of hate crime is alien to the criminal justice system in Turkey, as it is not designed to recognize or protect the differences of various diverse groups. Thus, Turkey’s penal codes have not enabled the racist or other biased motives of the offender to be taken into account by the courts in criminal proceedings. Moreover, racial or other biased motives are not considered as an aggravating circumstance when sentencing takes place.73 Thus, to kill (article 81 and 82, TCK), to injure (article 86 and 87, TCK), to vandalize property (article 151 and 152, TCK), and so on, with racial, religious, or other biased motivations has not been considered as an aggravating circumstance in sentencing. Meanwhile, the Turkish legal system has legislated against assaults to religious freedom, which finds its roots in the Ottoman Empire. Thus, the TCK’s article 153, which penalizes attacks upon graveyards and places of worship with one to three years’ imprisonment, might be considered in the context of hate crime.74 If the commission of such attacks is accompanied by a particular intention to insult (tahkir), that is considered as an aggravated circumstance. Likewise, article 115(1) of the TCK penalizes (1) compelling a person to divulge, or (2) altering, or (3) preventing a person from disseminating his religious, political, social, philosophical belief, thoughts and convictions. Impeding congregational religious services and ceremonies by means of using coercive attacks or threats or any other behaviour is also penalized by one to three years’ imprisonment by article 115(2) of the TCK.75 The new TCK of 2004 for the first time penalizes genocide (article 76) and crimes against humanity (article 77), with no limitation period pertaining to these offences. Furthermore, establishing an organization with the aim of committing the crime of genocide or a crime against humanity, or being members or leaders of such an organization is penalized by article 78 of the TCK of 2004. There is no case law of the higher courts on these articles yet. However, a recent case pending before the first-instance court in İzmir is important in this context. A Turkish racist association, Toplumcu Buduncular Derneği (Collectivist Ethnicist’s Association), 73  This is done for example under the ‘racially aggravated offence’ in the English criminal law, introduced by the Crime and Disorder Act 1998, and subsequently extended by the Anti-Terrorism, Crime and Security Act 2001, section 39 to include ‘religiously aggravated offences’. See Malik 1999 and Edge 2003. 74  Codified under articles 176–7 in the (defunct) TCK of 1926. 75  I could only find one Yargıtay case regarding the application of this article which penalized some protestors for throwing eggs aimed at the Turkish Prime Minister Tayyip Erdoğan during a public speech, but which did not hit him: Y.(4).CD. E.2009/26. K.2011/915, 02.02.2011.

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launched a public campaign in May 2006 under the banner ‘Kurdish Population Increase Should be Stopped’ (Kürt Nüfus Artışı Durdurulsun). The campaign was broadcast through their webpage and by other means, and they opened a stand in the İzmir city centre, distributing leaflets bearing the following statement: O, women and men of the Turk! Make another child for Turkishness. Because you are decreasing, traitors, snatch-and-run thieves, drug dealers are increasing. We are the only ones who can show the way to Turks, who are stuck between the Arab and Western cultures, to love themselves. We are the Turkist, Toplumcu Buduncular who will give answer they deserve to the Kurdish and Gypsy gangs.

One-and-a-half years later, the public prosecutor reacted against this campaign when a petition was lodged by a group of complainants who asked that those responsible be punished for advocating genocide. The public prosecutor refused this demand, but decided to charge the president of the association under article 216(1) TCK of 2004, which requires one to three years’ imprisonment for ‘publicly inciting hatred and hostility against a segment of the populace having different particularities on the ground of class, race, religion, denomination or region’. This case was still pending as of August 2012, even though the association was closed down in 2007.76 Another question which remains is how the setting-up of this association was allowed by the authorities, despite the racist aims clearly advocated in its founding regulations.77 Turkish jurisprudence has, in some limited cases, considered group defamation acts as crimes involving insults to individuals and provided redress with pecuniary and non-pecuniary compensation (see below), but such insults against groups have not been considered in practice as worthy of prosecution. However, contrary to the position of Turkish jurisprudence, hate crimes and group defamation crimes have elsewhere been considered as resulting in a disproportionate level of harm which 76  The Izmir Republic Public Prosecutor Office brought a criminal case against the president of the association on 04.11.2007, and the case is set to be heard by the İzmir (9) Assize Court (E.2007/668). 77  The demography of the Kurds has raised some concerns at state level. In 1996, a report prepared by the MGK (National Security Council) warned the government about the rise in the Kurdish population which was expected to pass 50 per cent of the total population, and described that prospect as a ‘grave threat’ (vahim tehdit) in the long run, if considered in the light of the prospect of increased Kurdish nationalism. It recommended the spread of birth control in the regions mostly populated by Kurds. Another report by the MGK of 2005, the so-called ‘South-east Action Plan’, again warned of the high birth-rate in the Kurdish populated regions. Also recently, a state university human rights law professor, Anıl Çeçen, stated before the TBMM Human Rights Committee ‘Why are there controls on the birth rate of Turks; the Kurds from south-east Turkey have 10 children today? I have carried out research on it. I have seen the IMF funds being given to them. There is a plan in this.’ See Radikal, 14.01.2012. So far no legal or administrative investigation has been initiated against him for his remarks.

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affects not only the individual, but whole communities.78 In an instance of group defamation, the community is the victim not merely the individual or the racial group. Group defamation offences target offensive derogatory utterances which lower the esteem and character of a particular group in the eyes of the community as whole. The Turkish judicial bodies’ limited practice regarding the prevention of acts of group defamation appears to lag behind what might be expected as good contemporary practice. The concept of ‘hate speech’ is a phenomenon of the twentieth century. The concept has been named differently throughout the century. In the American context, it was known as ‘race hate’ in the 1920s, as ‘group libel’ from the 1940s, and as ‘hate speech’ and ‘racist speech’ from the 1980s.79 There is no universally agreed definition of hate speech;80 however, conventionally it has included ‘any form of expression deemed offensive to any racial, religious, ethnic, or national group’.81 In the 1980s, it was broadened ‘to include gender, age, sexual preference, marital status, physical capacity, and other categories’.82 Human Rights Watch defines ‘hate speech’ as ‘any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities and women’.83 The concept of group defamation has entered into the Turkish legal system in 2002 with the addition of a third paragraph to article 312 of the defunct TCK of 1926.84 Hence, to ‘insult a segment of populace in a way that degrades and damages [their] human honour’ became punishable. The explanatory note to this article stated that it penalized ‘group defamation (or “group libel”) by prohibiting insult to a part of populace (halk) in a way that degrades or harms human honour in order to protect social peace’. The aim of such a configuration was ‘to protect shared values distinguishing a part of the populace from the other parts of the populace and [to protect] the dignity and honour of every member of such group’.85 The legal value protected by article 312(3) was ‘public peace’. The explanatory note also showed that the new provision was aimed at protecting a group constituted of anonymous victims since the offence of libel or slander required the victim to be known. The same provision later reappeared in article 216(2) of the new TCK of 2004, which penalizes ‘openly (alenen) degrading (aşağılayan) a segment of the populace on the basis of social class, race, religion, denomination, gender or regional differences’. The explanatory note to article 216(2) states that to satisfy 78  Roberts 1995: 3. 79  Walker 1994: 9. 80  For the definition given by the Committee of Ministers of the Council of Europe,

see Recommendation no. R(97) 20E (1997), Principle 1. 81  Walker 1994: 8. 82  Ibid. 83  Cited in ibid. 84  Article 2 of Law no. 4744, 06.02.2002. 85  Zafer 2004: 220.

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the requirements of the crime, there should be individuals who consist of a group which has the characteristics listed in the article. The aim of the article is stated as being to prohibit the degradation of a group of people in order to protect ‘public peace’. Since article 216(2) of the new TCK of 2004 requires the existence of a group with the distinctive characteristics listed in the provision, if a defamatory act occurs towards a particular individual who is not a member of a distinct group, it would presumably not be considered under article 216(2), but it can still be penalized under article 125 of the TCK which regulates the offence of libel. Further, article 216(3) of the new TCK of 2004 is particularly designed to protect religious values. Thus to ‘openly (alenen) degrade (aşağılayan) the religious values of a segment of the populace’ requires imprisonment ‘if the action amounts to impairing the public peace’. The equivalent of this provision under the defunct TCK of 1926 was article 175(3), which penalized insulting or castigating a person because of worship in accordance with his religion. However, until the 1980s, this provided protection only for those whose ‘religions are recognized by the state’. Thus, the provision did not cover all religions and creeds, but only those whose religion was ‘recognized by the state’ and was not in contradiction with public and state order and not prohibited by the law. In 1986, this phrase was replaced with ‘celestial (semavi) religions’, despite the objection of some Alevi deputies on the ground that since Alevism was not considered a ‘celestial religion’, Alevi beliefs remained outside the protection of the article. Indeed, the article was later annulled by the AYM on the basis of similar reasoning stating that this change further restricted protection and placed some religions and creeds outside of the protection of religious freedom set out in the Constitution.86 Following the AYM’s decision to annul, the phrase was changed to read simply ‘religions’.87 Article 125(3)(b) of the TCK further provides for an aggravated sentence for insulting someone for expressing, changing, promoting, or practising his/her religious, political, social, philosophical views, ideas and opinion, or if the insult is committed by referring to the individual’s sacred religious values. The offence of group defamation has not attracted the attention of either academics or judges in Turkey. More importantly, a search of the Yargıtay’s case law did not reveal any instance in which article 312(3) of the defunct TCK of 1926 or article 216(2) of the new TCK of 2004, have been relied upon. The limited case law of the Yargıtay shows that that court has dealt with group defamation cases brought by members of minorities by classifying them under the ‘offence of slander’ under article 482 of the defunct TCK of 1926.88 As may be evident, another significant area left out of the scope of the new TCK of 2004, and therefore not considered as a crime, are insults on the grounds of one’s ethnicity. However, while 86  AYM, E.1986/11, K.1986/26, 04.11.1986. 87  Law no. 3369, 20.05.1987. 88  Until the entry into force of the TCK of 2004, the ‘offence of libel’ under article

480 of the defunct TCK of 1926 and the ‘offence of slander’ were configured differently, the latter being considered as less serious, and requiring a much lower sentence.

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the legislator has not considered insult on grounds of ethnicity or ethnic origin as a crime, the Yargıtay seems to have gone further and has considered referring to someone on the basis of ethnicity as amounting to the ‘offence of slander’.89 For instance, the Yargıtay considered a school headmaster’s words about Alevi women – ‘seventy-five percent of Alevi girls are not virgins since they do not have a family life’ – as amounting to the offence of slander. The Yargıtay also pointed to article 175(3) of the (defunct) TCK of 1926 penalizing insulting or castigating a person because of his worship as an applicable provision in this kind of case.90 Meanwhile, the Yargıtay’s civil section has taken the view that establishing whether a remark carries the intention to condemn can be done by looking into where the remark was made, its timing, circumstance, context and intention to humiliate.91 For instance, the Yargıtay has considered that calling somebody ‘Armenian’ with an intention to humiliate constitutes offence of slander since, in so doing, the defendant had attempted to resurrect memories of the unpleasant events occurring during the First World War.92 The Yargıtay has not attributed any particular importance to whether the act of defamation is made by a state officer. For instance, in a case of assault against a state officer who referred to the defendant as a ‘Thief, Armenian, non-Muslim’, the Yargıtay required a deduction in the defendant’s sentence since there was a counteraction of slander.93 The Yargıtay however also quashed the first-instance court’s decision awarding compensation in a case where a low-ranking state servant was told ‘you are a Kurd and support the PKK’ by his manager. The Yargıtay’s justification for this judgment was that these words had been confirmed by only one witness.94 The offence of slander required an individual complaint while the public prosecutors did not have legal competence to initiate criminal proceedings against these kinds of acts. Thus, many group defamation cases have mostly gone unpunished, especially where the perpetrators are politicians in the government. Such instances include the Minister of Interior Affairs Meral Akşener’s statement referring to the PKK leader Abdullah Öcalan as the ‘Armenian semen’ (Ermeni dölü) in March 1997; the Minister of Justice referring to a civil disobedience protest95 as ‘playing mum söndü’ (blowing out candles), an insulting stereotype of 89  See also the CERD’s Concluding Comments on Turkey 2009, para. 11, for its criticism regarding the lack of ‘national and ethnic origin’ as ‘prohibited grounds’ under article 10 of the 1982 Constitution. 90  Y.(4).CD, E.1994/9369, K.1995/172, 24.01.1995, and also see Y.(2).CD, E.2003/17028, K.2004/23796, 16.12.2004, for a similar interpretation. 91  Y.(17).HD, E.1995/338, K.1995/656, 07.02.1995. 92  YCGK, E.1964/435, K.1964/481, 30.11.1964, and see also Y.(4).CD, E.2000/5494, K.2000/6603, 11.10.2000. 93  Y.(4).CD, E.2003/6622, K.2004/7614, 15.07.2004. 94  YHGK, E.2004/4-324, K.2004/330, 02.06.2004. 95  The campaign is known as ‘One minute of darkness, for everlasting light’ and began after the Susurluk incident of 1997, when a car accident revealed state-mafiapolitician connections.

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Alevi religious practice;96 or the head of a political party Recai Kutan referring to the Nestorians (Nasturi) in Syria as having ‘bir nevi sapık Alevi anlayışı’ (to have a kind of deviant Alevi view).97 The Yargıtay’s case law on treating group defamation actions under the offence of slander can be explained by its desire to diminish group defamation to an action against an individual and not against a distinctive group, and its reluctance to protect the group. The Yargıtay’s tendency to diminish group defamation to an action against an individual and not against a distinctive group was reaffirmed when it only allowed compensation to be paid to a plaintiff under the civil law and the law of obligations, on grounds that the remarks of a journalist were attacks on personal rights.98 The Yargıtay did not make any critical comments about the journalist’s statements in which he had referred to a media magnate as one of ‘a group of minority dönme (Jews)’, and ‘this land cannot take any more betrayal of these dönme and descendents of Sabetay Sevi; they should buzz off.’99 6.3.3 Inciting Hatred and Animosity Incitement to hatred and animosity was first criminalized in 1981 by the introduction of a second paragraph to article 312 of the defunct penal code.100 Article 312(2) of the defunct TCK of 1926, penalized ‘openly inciting the populace (halk) to hatred and animosity by protecting or considering (gözeterek) distinctions on grounds of class, race, religion, denomination or region in a way that endangers public

96  ‘Playing mum söndü’ is a term ‘associated with the myth of communal sexual intercourse or incest’: Ahmed 2001: 68. 97  See Cumhuriyet, 06.10.1998. Although many Alevis and Nestorians lodged petitions with the public prosecutor’s offices in many cities in Turkey, and claimed violations of article 480 and 175 of the defunct TCK of 1926, he was acquitted from all these charges: Uluçay 2001: 185–206; Kaleli 2000. 98  A person subjected to the offence of slander can claim compensation for breach of his personal rights under articles 24 and 25 of Law no. 4721, 22 .11.2001, and article 49 of Law no. 818, 22.04.1926. 99  Y.(4).HD, E.2001/2560, K.2001/3615, 10.04.2001. Sabetay Sevi was a Jewish rabbi from Anatolia who declared himself the messiah and initiated a messianic movement that divided the Jewish community in the seventeenth century. The followers of this sect were later forced to convert to Islam under Ottoman rule. Their followers maintained a Muslim identity in public and a Sabbatean identity in private, and they now live mostly in Turkey, in the city of Istanbul, and are officially Muslim Turkish citizens: Neyzi 2002. 100  Article 13 of Law no. 2370, 07.01.1981. Previously, article 312 only punished publicly inciting hatred and hostility among various classes, which was used as an instrument to control and penalize (extreme) leftist groups and was used against the communist threat: Artuk, Gökçen and Yenidünya 2005: 385. For the original of the article, see TBMMZC, 01.03.1926, attachment p. 35.

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security’.101 The explanatory note to the 1981 amendment justified this amendment as a way of preventing ‘anarchic crimes’, which was described as the source of actions inciting animosity against region, race, religion and denomination. Thus, the underlying intention of the legislators was not to protect a distinctive group from hatred and animosity of others, but to stop anarchy. However, the idea of protecting a group from the hatred and animosity of others was further developed in the amendment of article 312(2) in 2002.102 Thus to ‘openly incite the populace (halk) to develop (beslemek) hatred or animosity against one another on the basis of class, race, religion, denomination or regional differences in a way dangerous to public security’ became punishable.103 In the explanatory note, contemporary societies are described as pluralist, and the protection brought by article 312(2) was considered as compulsory in countries where the social structure is like a ‘wide mosaic’. However, the approach to pluralism articulated by the explanatory note becomes problematic when it stated that pluralism ‘requires continuing unification (bütünleşme) of differences and living together in peace’ – ‘the higher the level of unification the broader the democratic freedoms in a society’. The legal value protected by article 312(2) was stated to be ‘public order and peace’. In practice, the provision in article 312(2) was neither interpreted to protect pluralism in society nor as a legal safeguard to ensure peaceful living and a legal and social order that does not have a nationalist ideological content.104 Instead, it was used to protect a ‘public order the borders of which have been drawn by the official discourse and loaded with [official state] ideology’,105 and to restrict expression of ideas which conflicted with it.106 For instance, criticizing the ideological official state motto, ‘How happy is he who is a Turk’ is considered by the Yargıtay as inciting hatred and enmity among groups.107

101  The offence under the new paragraph required one to three years’ imprisonment

and a fine.

102  103  104  105  106  107 

See the government’s explanatory note on article 2 of Law no. 4744, 06.02.2002. The offence required one to three years’ imprisonment. Erdem 2003: 43. Ibid.: 50. Ibid.; 50–51. Y.(8).CD, E.2000/13957, K.2000/13093, 05.06.2000. In this case, Erbakan, who was the leader of the Welfare Party, had stated that the word ‘Turks’ in article 66 of the Constitution does not refer to the Turkish race but to citizenship and that ‘the sons of the country had started school by saying besmele, but you came and changed besmele and what did you replace it with? I am Turkish, I am honest, I am a hard worker. When you say this, Kurdish-origin Muslim sons, on the other hand, have the right to say I am Kurdish, honest and a hard worker.’ The Yargıtay found Erbakan’s criticism as inciting people to hatred and animosity in violation of article 312(2).

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Article 312(2) was not used in cases of inciting hatred and animosity towards minorities of different ethnicity and religious denomination.108 For instance, it was never used to penalize hateful remarks or violent action against non-Muslim minorities in Turkey.109 This might be attributed to the fact that, as seen above, the idea of protecting various distinctive groups from the hatred and animosity of others is a very recent phenomenon in Turkish legislation. This fact explains, to a certain extent, why until recently this article has never been used by the judiciary to protect distinct groups from attacks by others, but instead it was used for protecting the state and effectively oppressing minorities. The reason behind the Yargıtay’s approach could also be its unwillingness to acknowledge the existence of any possible animosity towards diverse minority groups from the majority or powerful actors in Turkey. Therefore, in line with the official state ideology, the Yargıtay also denies the existence of discrimination in Turkish society due to the assumption that declaring equality before the law has eradicated discriminatory behaviour at every level in Turkey. Article 312(2) has indeed been used as a means of suppressing the expression of minority groups’ differences, and the existence of their ethnic, religious and cultural identities outside of the Turkish culture and identity. The case law of the Yargıtay demonstrates that to talk about the existence of differences among various groups on the basis of ethnicity, religion and language has been interpreted as inciting the populace (halk) to develop hate and animosity against one another by bearing in mind their race and regional differences.110 This argument becomes also apparent when the Yargıtay’s interpretation of ‘halk’ is examined closely. In the Yargıtay case law, the concept of halk has been defined as ‘a group of people who have common feelings, interests, ideology, and who have gathered around spiritual values or share the same values’.111 Reference to ‘ideology’ in this definition makes the definition of populace particularly problematic in light of the fact that the Turkish legal system is based on the official ideology of Turkish/Atatürk nationalism, which envisages a society based on the Turkish ethnie’s particularities, and which negates differences. Essentially, the Yargıtay’s definition has meant that to talk about differences of one segment of the population as opposed to the rest was assumed to automatically create hatred and enmity 108  Erdem 2003: 61. Also see ECRI reports on Turkey 2001 and 2005, paras 6 and 13 respectively. 109  Erdem 2003: 61. 110  Y.(9).CD, E.1995/6119, K.1995/5720, 09.11.1995; Y.(8).CD, E.2002/363, K.2002/6411, 29.05.2002. 111  YCGK, E.2004/8-201, K.2005/30, 15.03.2005. In this decision, the YCGK’s following remarks which affirm the existence of an ‘official ideology’ are quite striking: ‘The public order is not the state’s order; further, it is not the government’s practises (siyasal iktidarların) which in reality does not reflect the official ideology and [is based on] an errant delineation of [the official ideology]’. Also see Y.(8).CD. E.2007/5222, K.2007/5583, 12.07.2007 for a similar view.

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among different groups. Therefore, the best way of getting away from hatred and enmity in society was to enhance the process of homogenization within society by ensuring the imposition of the same ideas, values, ideology and feelings. Criticizing the government for its policies towards minority groups was also criminalized under article 312(2) by the Yargıtay. Hence, to criticize the government for pursuing discrimination on grounds of ethnicity and religious denomination,112 to criticize the Turkish state’s policy on the Kurdish issue and to point out some historical facts like the ban on the Kurdish language,113 to say that the state oppresses ethnically different Kurds,114 and to talk about some negative events occurring against the Kurds in ‘Kurdistan’,115 were all considered as openly inciting people to hatred and animosity towards the state by bearing in mind their race and regional differences. Thus, this article was used to protect the state from the ‘hatred and animosity’ of the people.116 One of the interesting features of these judgments is that the Yargıtay considered talking about the unpleasant memories of the past as creating hatred and animosity, since they should not be talked about on the road to homogenization. However, the Yargıtay has never taken into account the effect of such past events on ethnically or religiously different groups. The first case ever to apply article 312(2) of the now defunct TCK of 1926, for hateful remarks or discriminatory expressions against a non-Turkish group of people, and thus applying the article as an anti-discrimination clause, concerned the conviction of a military doctor for making anti-Kurdish remarks.117 The doctor had pointed his gun towards a group of people waiting outside a clinic, while the bodies of security officials who had been shot dead in an armed clash with the PKK guerrillas were being brought to the clinic. While doing so, he shouted, ‘dirty Kurds, you should all be killed, ignoble Kurds, you all deserve to be killed.’ The Yargıtay found these remarks as spreading hate, inciting clashes, and inviting the use of violence and, since they were said before a group of people who were in a sensitive state, the remarks were regarded as creating a concrete danger. This was the first time the Yargıtay concluded that the prohibition on discrimination should be equally used to apply to every individual and group. Thus, it is considered as a landmark case, which brought a novel dimension to the Yargıtay’s case law on article 312(2).

112  113  114  115  116 

Y.(8).CD, E.1999/12715, K.1999/14981, 03.11.1999. Y.(8).CD, E.1996/11624, K.1996/12797, 18.10.1996. Y.(9).CD, E.1995/6119, K.1995/5720, 09.11.1995. Y.(9).CD, E.2001/2976, K.2002/217, 04.02.2002. See İncal v. Turkey (no. 41/1997/825/1031, 09.06.1998, § 44), where the Turkish government defended the applicant’s conviction under article 312(2) of the TCK of 1926 as his action ‘had tried to incite an ethnic group to rise against the officials and authorities of the State at a time when the PKK, a terrorist separatist organisation, had intensified its atrocities prompted by racial hatred.’ 117  Y.(8).CD, E.2003/6702, K.2004/5969, 29.06.2004.

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Inciting hatred and animosity against a group is now penalized under article 216(1) of the TCK of 2004. It penalizes actions ‘publicly inciting a segment of the populace (halk) having different particularities on the ground of social class, race, religion, denomination or region, hatred and animosity against another segment, if a clear and present danger to public security occurs as result’. The wording of article 216(1) bluntly recognizes the existence of different groups in the country by its referring to these groups as people having ‘different particularities’. The emphasis on the differences of these groups is quite striking and, as such, it can be interpreted as giving a legal value to groups’ differences. Article 216(1) aims to prevent groups from inciting hatred and animosity towards each other on the grounds stated above.118 Nevertheless, if hatred and animosity is incited on grounds which are not indicated in the article, then this article cannot be applied.119 Thus, inciting hatred against people’s sexual orientation, nationality, ethnicity, culture, and so on, cannot be considered under this article. Moreover, only those actions posing a threat to public security are covered by this article. This condition indicates that the legislator is interested in protecting public security, rather than the peaceful coexistence of diverse groups. The explanatory note of the article states that ‘no state can remain audience towards the act of directing one part of society, which has certain particularities, to develop hatred and enmity against others or severe hate which requires taking revenge.’ However, according to the explanatory note: … the ‘incitement’ should be beyond abstract disrespect and denial, it should be objectively appropriate to develop enmity or to intensify these kinds of behaviour. The perpetrator subjectively should have sought this aim and incited people to develop hatred and enmity. In this regard, to break off relations with someone, behaving or using remarks in a manner of abstract rejection or disrespect is not sufficient to amount to this crime. For an act to amount to this crime there should be a serious and intense existence of incitement to develop a hatred and enmity against a definite part of the society.

What is interesting here is that, saying that the ‘abstract disrespect and denial’ of a group is not a type of action that ought to be penalized potentially leaves a very wide discretion to prosecutors and the judiciary as to what the provision actually penalizes. Although there is not much case law from the Yargıtay concerning article 216(1) of the TCK of 2004 yet, recent cases brought before the first-instance courts by public prosecutors have given confused signals. On the one hand, while public prosecutors have continued to adopt the Yargıtay’s established case law on article 312(2) (see above) and brought charges for ideas not compatible with the

118  Artuk, Gökçen and Yenidünya 2005: 389. 119  Ibid.: 401.

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official state ideology,120 there are a few cases where the public prosecutors have started to use article 216(1) in order to protect distinct religious, ethnic, and other groups from the hatred and animosity of other groups.121 On the other hand, the judicial bodies’ silence about a campaign launched by a journal called Türk Solu in their December 2007 issue, with the slogan ‘sons of Turks and daughters of Turks protect your Turkishness’ is a cause for concern. The journal advised people not to buy from Kurdish shops,122 to speak only Turkish, not to watch a series broadcast on television about Kurdish people, or listen to Kurdish music or go to places where it is played, not to eat Kurdish food, and so on. The group also advised Turks to have more children to increase the Turkish population. It is important to mention one of the Yargıtay’s recent judgments concerning two academics who had been charged with breaching article 216(1) (inciting the people to enmity and hatred) for preparing the Minority Rights and Cultural Rights Report (known as the ‘Azınlık Raporu’), which describes the Kurdish ethnic group as a minority.123 The Yargıtay criticized the defendants’ report for its mention of the existence of minorities other than non-Muslim minorities. In its view, ‘all citizens are equal before the law without distinction on the grounds of social class, ethnic origin, race, language, religion and regional difference.’ Recognizing new minority status would have impaired the state and nation’s indivisibility. The Yargıtay also held that the report had gone beyond the freedom of expression by making distinctions between sub-identity and supra-identity, and criticizing the state authorities for using the phrase ‘our same race (soy) people [living]

120  For example, an ex-deputy, Mahmut Alınak, is being tried under this article because of his remarks on the Kurdish issue on Kurdish Roj-TV, see Bianet, 27.03.2008. 121  A first-instance court has recently convicted under article 216(1) some people who had physically attacked two Kurdish families saying ‘they are supporters of the PKK. If we do not oust them, the Kurds will seize the village.’ They had also destroyed the Kurdish families’ property in the city of Denizli/Çivril, However, this judgment may still be criticized on the ground that the ethnic hatred aspect of the case was undermined by the court referring to the motive behind the attack as being attributable to their ‘regional differences’. See Çivril Assize Crime Court (Asliye Ceza Mahkemesi), E. 2007/252, K. 2008/423, 11.07.2008. Also see Eskişehir 4. Criminal Court of Peace (Sulh Ceza Mahkemesi) in which the head of an organization (Osmangazi Kültür Dernekleri Federasyonu) was found in breach of article 216(1) of the TCK of 2004 for protest placards on which was written: ‘Free access to dogs but Armenians and Jews are not allowed’. He was sentenced to five months’ imprisonment, later converted to a fine. 122  It is interesting that they were not charged under article 122 of the new TCK of 2004. 123  The report had been prepared for the Human Rights Advisory Board, established under the auspices of the Prime Minister’s Office.

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abroad’.124 It concluded that the report, in ‘making such distinctions’ incited the populace to hatred and animosity towards each other.125 This judgment of the Yargıtay section court was subsequently quashed by the Supreme Court of Appeal Grand Crime Chamber (Yargıtay Ceza Genel Kurulu, YCGK) after increasing international pressure.126 The YCGK took into account the fact that the report had been prepared as part of their official duty and the defendants’ academic background and work on the human rights field. It concluded that the report should be seen as an academic work and even though it had criticized the official view of the state, and since its content did not call for violence and incite hatred and animosity between groups, their action did not breach the boundaries of freedom of expression and article 216(1) of the TCK of 2004. However, the YCGK’s justification, with its very passing reference to human rights, the necessities of a democratic system, and its analysis of the report from the perspective of a threat to security, still leaves the door open for the prohibition of expression of the ideas set out in the report within non-academic settings, for instance, within the political field. The judgment is also problematic since it still applies this article as a means of protecting the state ideology but not as a means of protecting distinct groups from hatred and animosity. As seen, the legal system has mostly failed to protect various distinctive groups from the hatred and animosity of others. Meanwhile, as argued below, Turkish legislation has specifically particularly protected ‘Turkishness’ from assaults. This is an important indicator of the Turkish state’s asymmetrical emphasis on Turkish ethnicity among its (formally equal) citizens. It may be argued that peaceful togetherness of differences in a plural society requires the state maintaining an equal distance from the differences that exist in a country and not according priority or superiority to any of them. It also requires the state to embrace all different groups. Indeed, if in an ethnically, religiously and culturally plural society, one particular group’s differences are given priority, superiority, or more protection over the others, it has been argued that the system of governance cannot be referred to as a democracy.127 6.3.4 Insulting Turkishness Although the principle of equality dictates that ethno-religious minorities should be treated on an even-handed footing as the majority, and that their equal protection from hate speech and hate crimes should be secured, the ethno-religious minorities did not have the same protection as majority Turks in Turkey. The Turkish legal 124  The report had criticized this phrase because it has an ethnic connotation, while estranging those non-Muslims and people of non-Turkish race in the country. See in particular 4.2 for further discussion of the concept of Türk soylu people. 125  Y.(8).CD, E.2007/5222, K.2008/5583, 12.07.2007. 126  YCGK, E.2007/8-244, K.2008/92, 29.04.2008. 127  Erdoğan 1994: 114.

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system and judiciary, while neglecting to protect minority groups’ identities and their differences and mostly failing to protect non-Turkish people and nonMuslims from hatred and animosity, have been particularly interested to protect ethnic Turks by penalizing ‘insulting Turkishness’ in penal codes. This provision has been identified as creating ‘inequality and further discrimination’ between non-Turks and ethnic Turks.128 The provision against ‘insulting Turkishness’ did not only function to protect ethnic Turks, but has been used to suppress ethnoreligious minorities in Turkey. ‘Insulting Turkishness’ has been part of the Turkish penal system from the beginning of the Republic and was first encoded in article 159 of the now-defunct TCK of 1926. In the early years of the Republic, that provision was especially used against non-Muslims, many of whom were prosecuted for ‘insulting Turkishness’, and this became a way that Turkish nationalism exerted a threat against nonMuslims.129 However, Koçak’s recent research, covering the period 1926–38, shows that although most cases under this provision were brought against nonMuslims, this provision was also used against non-Turkish Muslims. Koçak states that the use of ethnic names of defendants, such as Arab, Kurd, Caucasian, Afghan, Acem, Albanian, Laz, Kosovar, Abhaza, Kıpti (Roma), and so on, during the process of obtaining permission for initiating a criminal procedure by the state authorities, showed that the perception of Turkishness on paper and in the real life was not identical.130 The cases brought against non-Turkish Muslims also demonstrated that not only were non-Muslims considered ‘foreigners’ (yabancı) by the state in the early years of the Turkish Republic, but also various non-Turkish Muslims were regarded as ‘foreigners’ in terms of their origin and they were kept under surveillance by the state.131 Koçak also states that the operation of the law on ‘insulting Turkishness’ proves that, particularly in the early years of the Republic, Turkish nationalism emerged as a form of racism and that the state gave more importance to ‘blood ties’ than to formal citizenship.132 The Yargıtay’s recent case law reveals that the concept of Turkishness is still considered as tied up with ethnicity, language, history and culture.133 It has viewed the concept of Turkishness as the ‘nation’ component of statehood and defined Turkishness as ‘the entirety (bütünü) of national spiritual values which generated 128  Arslan 2007: 283. 129  Koçak 2005: 167, who refers to the threat of being prosecuted for insulting

Turkishness as the ‘unrevealed face of Turkish nationalism’ (‘Türk milliyetçiliğinin görünmez yüzü’). Also see Alexandris 1983: 140 and Bali 2005: 136–7. 130  Koçak 2005: 164. 131  Ibid.: 164. 132  Ibid.: 168. See especially Chapters 3 and 4 herein which support Koçak’s perspective. 133  Sancar 2006: 84–5. It is also stated that Turkishness denoted the ‘entirety (bütünü) of the cultural elements which also includes a racial meaning but goes beyond this racial meaning’: Koca 2001a: 448.

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the Turkish nation which encompass humanitarian, religious, and historical values together with the national language, national feeling, national tradition’.134 However, in its well-established previous case law, the concept of Turkishness was more openly linked with ethnic Turks.135 Turkishness was construed as ‘the Turks’ (Türklerin) humanity, morals, religious and national tendencies, beliefs, national language, history, traditions, feelings and the entire religious values which compose the nation’, and was also considered as one of ‘the state’s and nation’s essential (öz) values’.136 In order to decide which sorts of acts and remarks amounted to ‘insulting Turkishness’, the Yargıtay took into account the ‘dominant ordinary comprehension, custom and habit in society’.137 The jurisprudence therefore suggests that the aim was to protect the majority’s understanding of Turkishness. Evidently, this approach left out the minorities’ understanding of Turkishness. If one takes into account the dominance of Turkish ‘nationalist feelings’ in the country and the role of these feelings and prejudices in the determination of the ‘other’, basing the understanding of ‘Turkishness’ on the ordinary people’s understanding results in a very ethnically conditioned concept of Turkishness.138 However, it was not only the Yargıtay’s jurisprudence which linked Turkishness to the ethnic Turks; the legislator also participated in emphasizing the ethnic meaning of Turkishness. The explanatory note to defunct article 301 of the TCK of 2004 stated that … the term Turkishness in this article means the entity which emerged through the collective culture which is particular to the Turks wherever they live in the world. This entity is wider than the Turkish nation and covers people living outside of Turkey and communities who are participants of that same culture.

Opting for the phrase ‘Turkishness’ seems a deliberate choice of the legislator which aimed to protect something beyond a Turkish nation composed of citizens.139 As evident from the explanatory note, the linking of Turkishness to Turks all over the world made it obvious that Turkishness was anticipated as something based on race or kinship and culture (soy and kültür).140 This explanatory note caused serious concern among some academics. For instance, Sancar, pointing out the ‘ethnicist 134  YCGK, E.2006/9-169, K.2006/184, 11.07.2006. Also see Koca 2001a: 449. 135  For an explicitly ethnic definition of Turkishness, see Gözübüyük 1967: 428. He

was the public prosecutor at the retrial of Türkçülük Davası in 1944 and was Minister of Justice in 1960: Akın 2004: 180. 136  Gözübüyük (undated): 620. Military Yargıtay Daireler Kurulu, E.1999/60, K.1999/73, 08.04.1999; Y.(1).CD, E.1969/1665, K.1969/1980, 25.06.1969; Y.(1).CD, E.1970/494, K.1970/808, 17.03.1970. 137  Also see YCGK, E.2006/9-169, K.2006/184, 11.07.2006. 138  For a similar argument, see Arslan 2007: 283. 139  Sancar 2006: 85. 140  Ibid.: 86.

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and essentialist’ (özcü, ensisist) interpretation of the concept of Turkishness by the Turkish judiciary, also warned that the explanatory note to article 301 could assist the judiciary to ‘gradually slip towards a racist direction and racism’. Increasing pressure from the EU, as well the death of the Armenian journalist Hrant Dink,141 seriously brought the legitimacy of article 301 into question. The article was therefore amended in 2008 and the word ‘Turkishness’ was replaced by ‘Turkish nation’, which was deemed as an ethnically ‘neutral’ concept, while prosecution of this offence is made conditional on prior authorization by the Minister of Justice.142 From now on, it is not insulting ‘Turkishness’ but insulting the ‘Turkish nation’ which is penalized by the TCK of 2004. Several writers had earlier supported the replacement of the word ‘Turkishness’ by ‘Turkish nation’.143 Despite the change, however, the problem remains as to which criteria should be used for defining the ‘Turkish nation’. Should it be a definition based on citizenship criteria, or should it be a definition which is founded on ethnic origin, cultural, historical, linguistic, or national identity criteria? Importantly, has the change influenced the approach of the Yargıtay judgments? In the explanatory note to the amending law the meaning of ‘Turkish nation’ is given as follows: … nation is a community which consists of people who have lived together since times past (geçmişten beri), who have the belief, desire and determination to live together, and have the same homeland; who have a culture, history and unity of ideals. To consider a community as having a national character, it should have a territory to live on, there should be cultural and historical unity, and it should have unity of ideals, which means the desire to live under the same state.

Thus, the Turkish nation is not described here with reference to the concept of ‘citizenship’. It is rather described as being beyond the political and civic affiliation to the state through citizenship, and as something which requires a unity in culture, history and ideals. We may recall that the legal value protected by ‘insulting Turkishness’ was stated to be the ‘consciousness of belonging to the Turkish nation’,144 and the new definition begs the question how differently it would be interpreted. Examining the Yargıtay’s existing case law as well as the doctrine evidently demonstrates that the concepts of ‘Turkishness’ and ‘Turkish nation’ are basically considered to be the same.145 The Yargıtay, for instance, stated that the concept of 141  Hrant Dink was chief editor of the bilingual Turkish-Armenian newspaper, Agos. He was killed by a Turkish ultra-nationalist assassin in 2007. He had become a public figure especially because of his trial for ‘insulting Turkishness’. 142  Article 1 of Law no. 5759, 30.04.2008. 143  See Koca 2001b: 612; Sancar 2006: 83. 144  Koca 2001a: 448. 145  Ibid.

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Turkishness ‘is related to the state’s people, [thus] what is meant by this concept is the Turkish nation’.146 By defining Turkishness by reference to the Turkish nation, the Yargıtay established that, in its understanding, these two concepts are not separate, and more importantly, in its view, the concept of the ‘Turkish nation’ is as much an ethno-cultural phenomenon as ‘Turkishness’.147 Since the Yargıtay’s case law does not distinguish between the concept of ‘Turkishness’ and the concept of ‘Turkish nation’, replacing ‘Turkishness’ with ‘Turkish nation’ in article 301 of the TCK of 2004 is unlikely to change much. Thus, article 301 may continue to protect a Turkish nation, defined along ethno-cultural lines. Removing the concept of ‘Turkishness’ from the article 301 does not diminish its importance in the Turkish legal system, since the concept of ‘Turkishness’ remains in the fifth paragraph of the preamble of the 1982 Constitution, which reads ‘no protection shall be accorded to an activity contrary to the Turks’ national interests, the Turks’ existence, the principle of the state’s indivisibility with its state and territory, the historical and moral values of Turkishness and Atatürk nationalism … .’ Taking into account the fact that the preamble contains the founding principles and philosophy of the Constitution, the concept of ‘Turkishness’ remains constitutionally protected.148 More importantly, it reveals that the Constitution is also predicated on a Turkish ethnie which it also protects, as opposed to others who do not receive equal concern and protection. A recent case of the Yargıtay shows that there is hardly a change in the ethnic boundaries of Turkishness or the Turkish nation. For instance, the Yargıtay allowed a group of defendants to sue the Nobel Prize-winning writer, Orhan Pamuk, for his remarks during an interview, where he said ‘30 thousand Kurds and one million Armenians were killed and no one has the courage to talk about them.’149 The claimants had asked the defendant Orhan Pamuk to pay compensation for his remarks on grounds that he had labelled the Turkish nation and its ancestors as murderers, placed all members of the Turkish nation in a difficult position, and caused the Turkish nation to be treated badly abroad. The Yargıtay stated that ‘feelings of belonging to a nation’ fall within personality rights which should be protected since article 66 of the 1982 Constitution, which states that everyone bound to the state with citizenship is a Turk. Consequently, the claimants had the capacity to sue because the defendant’s remarks were directed 146  YCGK, E.2006/9-169, K.2006/184, 11.07.2006. Two judges, in their dissenting opinions, criticized the YCGK for upholding the first-instance court’s reasoning regarding the concept of Turkishness, which in their view ‘had attempted to explain the concept of Turkishness from a racist nationalist viewpoint’, and claimed that such an approach implies that the state and Turkish nation is based on ethnicist/racist (soycu/ırkçı) foundations. 147  The same approach can also be seen in the AYM’s definition of the ‘Turkish nation’; see 5.2.1. 148  Also see Arslan 2007: 282. 149  A charge against Pamuk for ‘insulting Turkishness’ was dropped because the permission of the Ministry of Justice had not been obtained.

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against the Turkish nation.150 This judgment was later upheld by the YHGK.151 This judgment reaffirmed that the Yargıtay, in determination of what constituted an insult to the Turkish nation, only takes the sensitivities about the dominant state official ideology into account whereas minorities seemingly do not have any say in this. By considering Pamuk’s criticism of Turkish official ideology and history with respect to the Armenian and Kurdish issues as insulting the Turkish nation, the court once again demonstrated the ethno-religious lines of the concept of the Turkish nation. The influence of the state official ideology and Turkish nationalism on the legislator and Turkish legal system again becomes evident in article 305 of the TCK of 2004. The offence at issue is ‘Offences against Fundamental National Interests’. The article penalizes ‘a citizen who either directly or indirectly accepts from a foreign individual or organisation pecuniary benefits for himself or for another person in return for engaging in activities against fundamental national interests’. A sentence of between three to ten years’ imprisonment, as well as a judicial fine, can be imposed under the article. Furthermore, paragraph 2 mandates an increase in penalty by half ‘[I]f the act is committed during wartime or benefit has been given or promised in order to spread propaganda’. The initiation of a criminal investigation under the article depends on the permission of the Ministry of Justice (except in cases of wartime). Paragraph 4 of article 305 further elaborates the meaning of the ‘fundamental national interests’ as being ‘independence, territorial integrity, national security and the fundamental qualities defined in the Constitution of the Republic’. Given that one of the fundamental qualities (temel ilkeler) of the Republic as set out in article 2 of the Constitution is ‘Atatürk Nationalism’, the authoritarian and monolithic mindset ingrained in the legal system is evidenced once again.152 It is evident that the Turkish legal system is inclined to protect a concept of Turkishness based on race, culture and religion. In so doing, the legal system does not protect other ethnicities and cultures in the country on an equal footing to Turkishness. The legal nationalist approach of the legislation and the jurisprudence is therefore a provocateur of conflicts within society. Despite the Turkish state’s official assertion that the Turkish nation is based on citizenship and 150  Y.(4).HD, E. 2006/12581, K. 2007/15816, 11.12.2007. 151  See ‘Düşünüyorsun Öyleyse Tazminat Öde!’, Taraf, 14.05.2009. 152  The scope of ‘fundamental national interests’ is fleshed out further in the

explanatory note to article 305 by examples: ‘propaganda for withdrawal of Turkish troops from Cyprus, and claiming that in the aftermath of the First World War, the Armenians were subjected to genocide in contradiction to historical realities with the sole purpose of damaging Turkey’. Because of the international reaction, this part of the explanatory note was removed first by the Ministry of Justice’s administrative decision, then following a change in paragraph 2 of article 305. See article 38 of the Law no. 5377, 29.06.2005. Also see criticism of the AKP deputy Ertuğrul Yalçınbayır (Bursa), pp. 61–2, about the noncompatibility of such an explanatory note with the freedom of expression.

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political affiliation, the Yargıtay’s jurisprudence affirms the Turkish legal system’s ‘ethnicist and racist’ characteristics.153 6.4 Racism in Legislation and Jurisprudence Racism as an ‘act of thought’ has never attracted penal sanction in Turkish legislation.154 There is also no definition of racial discrimination in law. Even though judicial bodies have begun to use article 216(1) of the TCK of 2004 in cases where hatred motivated acts and remarks are being penalized, none of this case law provides a clear definition. This has been considered by the CERD to be an important obstacle to the ‘adequate application of relevant legislation prohibiting such discrimination’.155 Nevertheless, racism as a political ideology has been prohibited by the legal system, especially in the context of political parties. The idea of prohibiting racism in the political sphere was introduced for the first time in the heading of article 90 of the defunct SPK-1965,156 which referred to a ‘prohibition of regionalism and racism’. With this provision, establishing a political party on grounds of race and region was also banned, as were parties from seeking to make one race ‘dominant and privileged’ over others.157 Despite its heading, the provision did not criminalize racist acts per se. Likewise, article 82 of the SPK-1983 also prohibits political parties from seeking the aim of ‘regionalism and racism’ and carrying out activities to this end.158 In addition, Turkish judicial bodies utilized article 141(4) and 142(3) of the defunct TCK of 1926 as an anti-racism ideology/thought clause until it was annulled in 1991,159 even though these articles also did not evidently penalize racism or 153  Sancar 2006: 86. 154  Article 135 of the TCK of 2004 makes the illicit collection of personal data, inter

alia, on racial grounds an offence punishable with imprisonment. 155  CERD Concluding Comments on Turkey 2009, para. 11. 156  Law no. 648, 13.07.1965. 157  The establishment of an organization using the name of a race or religion with the aim of reinforcing them have been prohibited since 1909 with the CUP’s CemiyetlerKanunu (Association Law): see herein at 1.4. 158  The Yargıtay has considered allowing some people to carry on with their hunger strike at a branch of a political party in Diyarbakir as a violation of this article, while referring to such action as ‘racist’ or ‘regionalism’: Y.(7).CD, E.2003/8220, K.2004/7333, 27.05.2004. 159  Following its annulment, article 142(3) reappeared in article 8 of the AntiTerror Law of 1991 under the name of ‘propaganda against the state’s indivisibility’ and was later annulled by article 19(b) of Law no. 4928, 15.07.2003. Currently, the criminalization of the Kurds’ linguistic and cultural demands is justified under article 7 of the Anti-terror Law which was inserted into the Anti-terror Law by article 6 of Law no. 5532, on 29.06.2006.

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racist acts. First entering into the TCK in 1931,160 they penalized establishing an organization and making propaganda aiming to ‘shake or weaken national feelings (millî hissiyatı)’ respectively. These articles were later amended in 1951 and the word ‘race’ was explicitly placed into these provisions.161 Thus, establishing organizations or producing propaganda targeting a ‘partial or complete removal of public rights recognized in the Constitution on considerations of race’ or ‘to destroy or weaken national feeling’ became penalized. Following this amendment, the former was considered to prevent acts or thoughts of a ‘racist character’, while the latter was considered as being aimed to protect nationalism.162 Although articles 141 and 142 of the defunct TCK of 1926 had originally been introduced as safeguards against the threat of communism, they were also used by the judiciary in Turkey against the offence expressed as ‘racism propaganda’.163 However, from an examination of the Yargıtay’s case law, it seems that ‘racism’ can only be attributed to acts or thoughts demanding protection of ethno-religious or cultural differences in Turkey, especially in Kurdish cases.164 This becomes clearer when taking into account the manner in which the judiciary has penalized the Kurds’ political, cultural, linguistic, and other demands under article 142(3) of the TCK, by interchangeably referring to them as ‘racism propaganda’165 (ırkçılık propagandası), or ‘Kurdism propaganda’.166 In this formula, thinking about a race 160  TBMMZC, 29.06.1938. 161  Law no. 5844, 03.12.1951. 162  Beşikçi-V-1992: 111. The AYM pointed to ‘Turkish nationalism’, the ‘state’s

integrity with its territory and nation’ principle and the Turkish language as the source of ‘national feelings’: see AYM, E.1979/31, K.1980/59, 27.11.1980. On the other hand, in the academic discussions, the legal value protected by the latter is stated as ‘belonging to the Turkish nation’. 163  Y.(9).CD, E.1982/2470, K.1982/2238, 22.06.1982; Y.(9).CD, E.1979/1455, K.1979/1494, 06.04. 1979 and Y.(9).CD, E.1986/7202, K.1987/569, 03.02.1987. 164  For instance, in 1974, leaders of the Turkish Kurdistan Democrat Party (TKDP) were punished under article 141(4): Epözdemir 2005: 98–9. The TKDP had claimed recognition of the Kurds’ political, economic, and cultural rights in their party constitution, and wanted the inclusion of the following clause into the Constitution: ‘The Turkish state is composed of Turks and the Kurds.’ Among its aims were the representation of Kurds according to their population, the determination of the borders of Kurdistan, state officials to be appointed from among the Kurds, the official language to be Kurdish, and education and broadcasting on radio and television to be provided in Kurdish, and prioritization in state economic policies for Kurdistan, and so on: ibid.: 91–2. Also, in the so-called infamous ‘49’s case’, many prominent Kurdish intellectuals were tried in the 1960s and some were convicted under article 141(4) for establishing an organization aiming to weaken national feelings in April 1964: Çamlıbel 2007: 85–6. 165  Y.(9).CD.E.1978/1159,K.1978/1514, 06.04.1978; Y.(9).CD,E.1982/2470, K.1982/2238, 22.06.1982; Y.(9).CD,E.1986/7202,K.1987/569, 03.02.1982, and Y.(10).CD, E.1990/659, K.1990/1326, 27.03.1990. 166  Y.(9).CD,E.1986/7202,K.1987/569, 03.02.1987; also see YCGK.E.1990/9341,K.1991/34,18. 02.1991 and Danıştay (5) Section, E.1989/1637,K.1990/213, 12.02.1990.

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outside of the Turkish race was considered as ‘racism’ and ‘national feelings’ were deemed to be the equivalent of Turkish nationalism.167 Nevertheless, these articles have almost never been used in cases involving racist acts committed or thoughts expressed by the Turkish ethnic majority or Turkish ultra-nationalist organizations. One of the exceptions to this might be the Trial in 1944 (see 6.4.1 below). At present, Turkish judicial bodies utilize article 216(1) of the TCK which penalizes acts ‘inciting to hatred and animosity’ to criminalize some racist remarks (see above 6.3.2) in the same manner, as was previously done under articles 141 and 142.168 However, as we have seen above, this article does not penalize ‘racism’ as such. Even though the jurisprudence has recently started to penalize some racist acts committed by members of the ethnic Turkish majority, it persistently fails to refer to such acts as entailing racism or as being racist.169 Meanwhile, the judicial bodies’ failure in some other more serious cases raises concern (see 6.3.3 above).170 In this section, we examine some cases more closely in order to comprehend how racism has been perceived and conceptualized by the Turkish higher courts, and how it is predominantly conceptualized as the racism of non-Turkish people. 6.4.1 The Trial of 1944: Türkçülük Davası The Trial of 1944171 is important since it is one of the few cases focused on the issue of Turkish racism.172 This case concerned Turkish racism and a group of racists gathered around Nihal Adsız’s journal Orhun,173 who were put on trial. Racist ideas and doctrines from Germany from before and during the Second World War had found supporters in Turkey, and furthermore, Turkish racists and Turanists were economically supported by German racists.174 Up until the end of the Second 167  Y.(4).HD, E.1994/5404, K.1994/8731, 20.10.1994. For details on this, see Bayir

2013.

168  Arslan 2007: 286 argues that after the annulment of articles 141 and 142, article 312 of the TCK (currently article 216(1)) was utilized to punish the same sorts of ideas and actions. 169  See Y.(8).CD, E. 2003/6702, K. 2004/5969, 29.06.2004. 170  The Yargıtay recently upheld a decision by a first-instance court’s finding that a local newspaper article propagating the killing of pro-Kurdish Democratic Society Party (DTP) members in return for each soldier’s death was within the scope of freedom of expression: Today’s Zaman, 24.10.2009. 171  Regarding this trial, see Ertekin 1999, Özdoğan 2006, Koçak 2007b, Özdemir 2002. 172  Another important case was the prosecution in 1981 of the ultra-nationalist party MHP and its sub-organizations. The public prosecutor accused the MHP and its leader Türkeş for attempting to establish a fascist state order based on racism and inspired by chauvinistic feelings: Güner 1982: 18–19. However, they were only actually charged for violating article 146 of the TCK. 173  Orhun published from 05.11.1933 to 16.07.1934 and again from 01.10.1943 to 01.04.1944. 174  See Koçak 2007a : 673. For more detail on this period see ibid.: 599–660, and also see Maksudyan 2005.

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World War, there was no government reaction against the activities of these Turkish racists. However, when Germany’s defeat became apparent, the state felt obliged to take some action, as Turkey had joined the war on the side of the Allied Powers. When intellectual discussion between Nihal Adsız and the communist Sabahattin Ali ended up at the court, and supporters of Nihal Adsız turned this event into a demonstration, it gave the government a pretext to take action. Upon President İnönü’s speech of 19 May 1944 against racists and Turanists, the public prosecutor arrested many Turkish racists, and accused 23 of them,175 including Nihal Adsız, for acting on the basis of ‘a racial hypothesis’ aiming to unite all people of the Turkish race in the world and establishing an organization in order to overthrow the government and for publishing written materials to this end.176 The public prosecutor stated that: These racist and Turanist men called themselves ‘Turkists’ and call the other masses adopting our present regime as ‘Atatürkists’. According to them, the nation is the race. Those apart from the Turkish race should be eliminated mercilessly because evil comes from those fused with foreign races. They say that Ottoman history shows this. The foreigners should be sent to the places governed by those of their races. They should not be allowed to be involved in governmental affairs. They should not even have the honour of carrying a gun. The hybrids should be considered Turk only when 12 generations pass over them … These irrational, illogical thoughts cannot be interpreted as anything more than dividing our nation (which has struggled for the national future and sovereignty not relying on any idea of difference) into pieces and leading it to suicide.177

The public prosecutor argued that racism was an offence under article 142 of the TCK and contrary to the principle of Turkish nationalism set out in article 2 of the 1924 Constitution.178 In his statement before the court, Nihal Adsız stated clearly that he was a racist and advocated a holocaust on the grounds of the purity and superiority of the Turkish race; he considered the fusing of races as a ‘distortion of the Turkish race’. Adsız objected to the charge under article 142 of the TCK since, in his view, this article did not deal with racism. Indeed, as noted, article 142 did not have a paragraph defining either race or racism directly at that time. Therefore, Adsız and his friends argued that racism was not a crime.179 Adsız also criticized the public prosecutor for ‘rejecting racism’ since that entailed ‘being content to see a 175  One of the famous figures among these accused was Alparslan Türkeş, who later became leader of the Turkish ultra-nationalist party, MHP and was prosecuted again in 1981. 176  Ertekin 1999: 110–11. 177  Quoted by Ertekin 1999: 110–11. 178  Ibid.: 111. 179  Ibid.: 111.

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Jewish president, an Armenian prime minister, Negro army commanders or gypsy professors in top positions. The prosecutor seems to accept this by denying racism. But I will never accept it.’180 He also stated that the Circassians, Kurds and Arabs were traitors.181 The other defendants’ defences followed a line similar to Adsız’s. The judgment was read at a hearing on 29 March 1945 and ten of the accused were sentenced to various penalties, while others were acquitted. The judgment stated: It is clear that Nationalist Turkey grants all of the opportunities of being a patriot Turkish nationalist to whom the Constitution describes as a Turkish citizen. Our state which was established on the basis of national benefits and national ideals, seeks to be an adhesive agent among well intentioned citizens. Those described as minorities have the same rights, too. Besides, every citizen who was brought up in the Turkish culture can be a Turkish nationalist.182

While rejecting Turkish racism, the judgment blatantly adhered to Turkish nationalism and considered it the only legitimate ideology. Further, linking Turkish nationalism with Turkish culture, it claimed that Turkish nationalism was not racist but ‘cultural nationalist’.183 The attack on racist-Turanists in the 1944 trial caused unease within the Turkish nationalist state elite because of closeness of their two views.184 Uneasy feelings towards the conviction of Turkish racists would later be combined with the changing political atmosphere in the world and increasing influence on Turkey of the US’s anti-communist Truman Doctrine. This would result in a drastic shift at the appeal phase as those who had been sentenced at the first instance were subsequently acquitted.185 Upon appeal by the defendants, the first-instance court decision was quashed by the Military Yargıtay on 23 October 1945, on the ground that the first-instance court had not conducted an adequate investigation in the case. Thus the evidence was not enough to prove the guilt of the accused.186 Moreover, the Military Yargıtay stated that racist-Turanist propaganda had not as such been criminalized under any provisions of the TCK. The case was then referred to 2. Martial Law Court for a retrial, as the Military Yargıtay had also concluded that the first-instance 1. Martial Law Court had not acted impartially in the case.187 The re-trial began on 26 August 1946 before the İstanbul 2. Martial Court. The judgment was read out at the hearing of 31 March 1947 and acquitted the 180  181  182  183 

Ibid.: 118. Ibid.: 117. Ibid.: 130–31. This reasoning seems to be an exact replication of İnönü’s speech of 19.05.1944: İleri 2006: 211–15. 184  Ibid.: 28. 185  Ibid.; 28. 186  Ibid.: 136. 187  Ibid.: 136.

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accused from all charges including their racist-Turanist activities. The Istanbul 2. Marital Law Court referred to the racist-Turanist demonstrations of 3 May 1944 in Ankara as a demonstration of the young people who ‘were moved by their feelings and wanted to declare their hate against communists … this demonstration was nothing other than the disclosure of a national ideology against a non-national ideology.’188 Effectively, the court was claiming that racist-Turanism as a ‘national ideology’.189 In the court’s view, the nationalism concept was aligned with the Constitution.190 Further, the court did not consider racism as contrary to article 88 of the Constitution of 1924.191 While stating that preventing people from using public (civil and political) rights on grounds of race could have been contrary to the Constitution, actions that are racist per se had not been criminalized by the law. Thus, it implied that there was no legal provision punishing acts of racism per se in the TCK; no punishment could be given that was not specified as a crime in the law.192 Hence, Nihal Adsız and his friends were acquitted. The judgment revealed that ‘the conflict between state and the racists is based on the political context. Their world of meaning was common but contexts were different.’193 The decision also demonstrated the state’s tolerant attitude towards Turkish nationalism in the country, even when manifested in an overtly racist form. 6.4.2 ‘Minority Racism’: The AYM, the DDKO and İsmail Beşikçi Cases Although Turkish jurisprudence had found the Turkish racist ideas neither contrary to the Turkish Constitution nor as being a crime, it still used article 142(3) in order to penalize so-called ‘racism and racists ideas’. What were these racist ideas? In this section, we scrutinize what are considered to be racist acts from the point of view of Turkish jurisprudence and what its perception of racism has been. According to the Yargıtay, race is considered as ‘genetically conditioned (genetik bakımdan şartlandırılmış) bodily stable characteristics which transform from generation to generation’.194 However, Turkish jurisprudence did not give a clear definition of ‘racism’ or ‘racist acts’. It is nevertheless possible to arrive at some understanding of the Yargıtay’s definition of racism through its case law on the basis of which acts were considered racist and therefore penalized. For instance, to talk about the existence of different ethnic Kurds which have a language and culture other than the Turkish language and culture was considered

188  189  190  191  192  193  194 

Ibid.: 141. Ibid.: 142. Ibid.: 141. Ertekin 1999: 141, Özdoğan 2006: 113. Ertekin 1999: 141. Ibid.: 131. YCGK, E.2004/8-201, K.2005/30, 15.03.2005.

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racist.195 Singing in Kurdish was referred to as ‘racist propaganda’.196 To talk about a distinct Kurdish nation as separate from the Turkish nation, is also considered to constitute racist propaganda.197 While the Yargıtay considers ‘Turkishness’ as the state and nation’s essential value, it labels propagandizing for Kurdism as racist.198 To ask for the easing of the oppression of Kurdish people has been considered to constitute racist propaganda, since these words amounted to propaganda via the media to destroy or weaken national feelings with the idea of race in mind.199 To adopt a view against the idea of Turkish nationalism as expressed in the 1961 Constitution; to divide up the Turkish nation into ethnic groups; and to demand education in a language other than Turkish, have all been considered as propaganda via the media destroying national feelings which violated article 142(3) of the TCK,200 and were consequently racist. The YCGK, the highest criminal court in Turkey, has also considered that to talk about differences means racism. For instance, the Yargıtay stated that referring to Kurds and Turks as two different people is a ‘racist idea’ which ‘would create anger in every Turkish citizen’.201 In short, the Yargıtay’s definition of racism is related to ideas which presume the existence of different ethnicities outside of the Turkish nation, and which are defended to protect their distinctiveness. The Yargıtay appears to share the same view with the AYM on this point (see 5.2). Thus, racism and racist acts were related to acts and demands of minority groups in Turkey. Here we examine two judgments to establish this point further. The first is the Diyarbakir 1. Martial Court’s judgment regarding the Revolutionary Eastern Culture Hearths (Devrimci Doğu Kültür Ocakları, DDKO) 202 and the second is

195  Beşikçi-V-1992: 112. 196  Y.(9).CD, E.1982/2470, K.1982/2238, 22.06.1982. Also see Y.(10).CD

E.1990/656, K.1990/1326, 27.03.1990 and Y.(9).CD, E.1986/7202, K.1987/569, 03.02.1987, where violations of article 142(3) were referred to as ‘racism propaganda’. 197  YCGK, E.1990/9-341, K.1991/34, 18.02.1991. 198  Y.(9).CD, E.1986/7202, K.1987/569, 03.02.1987 and Y.(9).CD, E.1982/2470, K.1982/2238, 22.06.1982. 199  Y.(9).CD, E.1978/2037, K.1978/2206, 18.05.1978 and Y.(9).CD, E.1977/1076, K.1977/995, 31.03.1977. 200  Y.(9).CD, E.1976/48, K.1976/47, 05.10.1976. 201  YCGK, E.1996/4–553, K.1996/724, 23.10.1996. 202  The DDKO was established in 1969 by a group of Kurdish intellectuals. They asserted the existence of ethnic Kurds and aimed to promote the Kurdish issue, condemned the state’s Turkish ‘chauvinistic’ practice, and emphasized the brotherhood of the Kurds and Turks through their publications, conferences and infamous demonstrations. Following the military coup of 1970, they were closed down and their members were tried in the Diyarbakır Martial Court, where they were mainly sentenced for establishing, arranging their activities for, or managing an organization which aims for the partial or complete removal of constitutional public rights on grounds of race, and to conduct propaganda to destroy national feeling under article 141(4) of the TCK. The rest were sentenced for racist

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the Martial Yargıtay’s judgment against sociologist İsmail Beşikçi.203 Closer inspection of these martial courts’ judgments tells us more about the scope of the concept of racism under Turkish law. As opposed to the civil Yargıtay’s case law evaluated above, which considered the minorities’ demand for protection of their difference as ‘racism’, the Martial Court in the DDKO case defined the concept of racism as an idea where the majority race consider themselves superior and do not recognize others’ equal rights or repeal equal rights already afforded to the population.204 It is evident that the Martial Court was aware of the definition of racism in international law. However, in its view, there was another form of racism, known as ‘minority racism’. In the court’s view, ‘minority racism’ occurred … when those who are numerically a minority constantly demand that they belong to a different race other than the majority race people and give weight to their racial particularities and by changing their race ask for special demands other than the general rights provided for members of the nation, although in the main laws there is no differentiation or no laws which create difference.205

Although the civilian Yargıtay’s case law does not refer to ‘minority racism’ in the way that the Martial Court decisions just considered, the civilian Yargıtay’s case law demonstrates that it also comprehended ‘racism’ effectively as ‘minority racism’ and only penalized ‘minority racism’. The Martial Yargıtay in the Beşikçi judgment meanwhile referred to another type of racism, which is ‘psychological racism’, while defining Turkish nationalism as a must for the protection of the Turkish state and nation.206 In the Martial Yargıtay’s view, Turkish nationalism was not an ‘organic and biological racism based on skull, colour, language and the region lived in’, but it is a …‘psychological racism (psikolojik ırkçılıktır) which is a feeling entailing an assurance expected by the state from its citizens needed for a functioning state and continuity of joint life. [This racism] which is far from all sorts of propaganda (article 142(3)) and communist propaganda. For an excellent study analysing the discourse of Kurdish political parties, see Güneş 2011. 203  Beşikçi is a Turkish sociologist who worked as a researcher in sociology at a state university. Because of his studies and teaching about the existence of ethnic Kurds, he was dismissed from his teaching post, arrested, and tried by a martial court for making communist and Kurdism (Kürtçülük) propaganda. In its decision of 7 March 1973, the Military Yargıtay upheld the first-instance court’s findings and referred to Beşikçi’s actions as ‘racist’: Beşikçi-V-1992: 128. Since then he has been sentenced to many years of imprisonment, and has so far served 17 years for challenging the Turkish State’s assimilationist policy regarding the Kurdish people, language and culture. 204  DDKO decision, p. 107. 205  Ibid. 206  Beşikçi-V-1992: 112.

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intemperance of individuals and political parties, does not however amount [sic] to megalomania chauvinism’.207

Since racism has been considered only in its biological and organic forms, the judiciary has never considered the cultural form of racism as amounting to racism.208 Thus, the prohibition of Kurdish language and culture, forced assimilation and Turkification policies aiming to ‘civilize’ Kurds, emphasizing their ‘primitive’ characteristics (for example, language, tradition, and so on) and creating many stereotypes209 has not attained the status of ‘racism’ in the judiciary’s view.210 Thus, while rejecting biological racism in Turkey, it does not see any bias when referring to Turkish nationalism as ‘psychological racism’. Moreover, these judgments still referred to some racist theories when they tried to establish the Turkishness of the Kurds. For instance, while Turks are described as the most ancient race,211 the Kurds were claimed as ‘a Turkish clan (boy) which migrated from Central Asia’ to Anatolia like the Turks.212 They claimed that it was ‘scientifically’ proven that Kurds were a Turanic people,213 and that other views which claim the Kurds as groups of Iranian, of Arab origin, or of natives of Anatolia, were scientifically wrong.214 Further, the language referred to as Kurdish, which was mixture of Turkish and Farsi, and which was not more than a different dialect of Turkish, also did not make Kurdish-speaking people the Kurds.215 Thus, the Kurdism ideology, which claims the existence of Kurds as a distinct ethnic group, was ‘completely false’,216 and was a serious crime under the Turkish legal system.217 Thus, such ‘Racist-Separatist-Kurdism propaganda’ was to be prevented.218 In this context, the Kurds’ demands to be recognized as a different race and clan or tribe (kavim)

207  Ibid. 208  Bora 2007: 7–8 also claims this perception of racism is prevalent in the Turkish

society.

209  For a more detailed study on the Turkish judiciary’s representation of the Kurds see Bayır 2013. For more on ‘cultural racism’, see Modood 2005. 210  Bora 1997: 56 and 1996: 179 states that Kemalist nationalism was designed as ‘cultural racist’, while Okutan 2004: 108, with reference to the single-party period, refers to Kemalist nationalism in domestic affairs as ‘ethnic, racist, chauvinist, suppressive towards cultural pluralism’. 211  DDKO decision, p. 79. 212  Beşikçi-V-1992: 113. Anatolia was referred as the ‘core homeland’ (özyurt) of Turks: DDKO decision, p. 79. 213  DDKO decision, pp. 80–82, and see also Beşikçi-V-1992: 113. 214  DDKO decision, pp. 80–81. 215  Beşikçi-V-1992: 114. 216  DDKO decision, p. 84. 217  Ibid.: 84. 218  Ibid.: 540.

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was considered a result of the efforts of external powers,219 or reflected their unease with the modernization project of the state.220 An examination of some particular features of the Turkish legal system in tandem with Turkish jurisprudence establishes that the Turkish judiciary, in taking a nationalist approach, has become one of the main obstacles to the accommodation of minorities in Turkey. Doing so, one of the most important principles they have relied on is equality before the law, which has been used to justify non-accommodation of minorities’ rights and differences, while also being used to legitimize the state’s homogenization policies. Furthermore, the jurisprudence in Turkey has not only protected the Turkish ethnie’s culture, history, language, and so on, but it has also ensured that the Turkish ethnie would be protected from any assault and insult. Although non-Turkish and non-Muslim groups have been protected in some cases, neither the laws nor the jurisprudence have created a system where non-Turkish, non-Muslim elements may be protected from discrimination, hate speech and hate crime. More importantly, the law and jurisprudence have deliberately failed to do that, by claiming that the principle of equality before the law establishes non-discrimination in Turkey. Thus, except in a few cases, they have almost never granted ‘equal respect and concern’ to various distinct groups in Turkey. Nevertheless, taking a Turkish nationalist approach has not prevented the promotion of ethno-cultural Turkishness and endowing the concept of the nation with an ethno-cultural-religious meaning and content. The law and jurisprudence have thereby acted as the third arm in the promotion of Turkish nationalism, after the state and the military. In order to overcome these legal blockages to the recognition of ethnic-cultural-religious diversity in Turkey, there is a crucial need for the judiciary to change its mindset.

219  Beşikçi-V-1992: 113. 220  DDKO decision, pp. 79–80.

Conclusion This book has examined the role of legislation and the judiciary in the management of diversity in Turkey and demonstrated how state policies have been articulated into the laws and embodied through court jurisprudence. To that end, it was first necessary to answer the management-of-diversity question in a historical context in order to demonstrate the continuities in state policies since the nineteenth century. Diagnosing continuities has been important in showing how institutionalized these policies are. In turn, it can be argued that the devising of any solutions to the dilemmas of diversity management requires dramatic changes in Turkey. We have seen throughout this book that nationalist readings of history have had important consequences for minority policies. Specifically, the Turkish nationalists’ amnesiac and ahistorical reading of the events of the late Ottoman period portrays the Turks as victims of the non-Turkish communities’ nationalisms, and contemplates Turkish nationalism as an indispensable choice for the Turks’ survival. This reading of history considered non-Muslims as ‘traitors’, while Muslim communities were portrayed as a single entity having the same legal status, subject to same legal system and laws, and without any differences of significance. The examination of parliamentary records in the latter period of the Ottoman Empire in Chapter 1 shows that the Ottoman ruling elite’s mindset, conditioned by fear of losing more territory, put the idea of unity of state and territory above everything. This mindset not only excluded discussion of other satisfactory solutions for the socio-political demands of non-dominant ethnic and religious communities; under the ideological affiliation to Turkish nationalism, it also led to Muslim-Turks coming to be considered as the core element of the state. Its hidden agenda of homogenization, with a hint of ‘Turkification’ of the population, deeply fragmented Ottoman society and destroyed any hope for the Ottoman state. The Ottoman state went through many cognitive changes, in the legal, administrative, educational fields among others. The uniformizing and universalizing tendencies of the modern state worked against the conventional structure of the Empire, and resulted in building resentment among its diverse population. Meanwhile, the state began to lose its conventional ‘flexibility and adaptability’ and the art of existing as a ‘negotiated entity’, which led to the very diverse human constituents of the Empire to think about solutions outside the borders of the Empire. The discussions which took place in the last Ottoman Parliament demonstrate this discrepancy between the government and the minority visions of state and society. Significantly, this ideological narrowness was later adopted more rigidly by the Republican ruling elite, requiring unity of the nation as well as the territory.

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The Republican ruling elite’s anti-diversity vision, and legal and political policies under the pretext of the establishing unity, resulted in intolerance, the suppression of any claims to ‘otherness’, and the concretization of an exclusivist national identity. The courts’ jurisprudence as well as the official state discourse discussed in this book points to the foundational documents of the Independence War period as the primary justification for the lack of recognition of the diversity within the Muslim fold. Those documents simply proclaimed the unity of various Islamic communities and are considered to demonstrate these groups’ unquestioned acceptance of unification under the umbrella of ‘Turkishness’. However, the close examination of these documents as well as the parliamentary records of the early years of the Republic in Chapter 2 demonstrates that the diverse Muslim communities in fact claimed recognition of their ethnic and social differences and laws, and also resisted the nationalist leaders’ abstract discourse of unity and its anti-diversity policies. In the process of consolidating the nation-state, the ruling elite of the Republic considered that the only way of achieving unity was through uniformity, assimilation and homogenization of differences into Turkishness. Thus, as shown in Chapter 3, Turkification was contemplated as the only viable political and legal project in the management of diversity. Adopting Turkish culture, speaking the Turkish language, and affiliating to Turkish nationalism played an important role in Turkification, and were considered the initial criteria for membership of the national community in the minds of the state and the judiciary. The need to eliminate differences in both the public and private spheres for the sake of achieving the desired ‘unity’ meant that ethnic and religious diversity was considered as a threat to the project. Beside its aim of realizing uniformity, the Turkification project was justified by a ‘civilizing mission’, especially vis-à-vis the Kurdish people, who were perceived as tribal and backward. Turkish legislation of this period clearly aimed to promote ‘civilization’, ‘assimilation’ and ‘Turkification’ as legitimate goals. As far as the non-dominant groups were concerned, therefore, the process of Turkish nation building became, a ‘nation-destroying’ process. Returning to an evaluation of contemporary legal developments, this book shows in Chapter 4 that the concepts of the nation, Turkish nation and citizenship have been configured with reference to ethno-cultural characteristics of the Turkish ethnie, and that Atatürk or Turkish nationalism has been defined as the founding principle of the state and legal system. Moreover, legislation and court jurisprudence show that the identity of the ‘Turk’, claimed to be a neutral, political identity, is in fact crafted along lines of ethno-cultural religious particularity. Thus, the word ‘Turk’ refers to a people constituted sometime in the past, who continued to exist throughout history, had distinct memories of the ethnic Turks’ ancestry in Central Asia, and have ethnic relatives abroad. In using the double attribution to the word ‘Turk’, the legal system aimed to assimilate its diverse people under the consciousness of Turkishness, and linked them with the greater ethnic Turkish world. It further advantaged those who have a Turkish-ethnic lineage by providing

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them with a status approximating to citizenship. This preference also demonstrates the importance of the Turkish ethnicity to the state. This book establishes that the judiciary has acted in line with the vision of Atatürk or Turkish nationalism. Thus, while its jurisprudence has embodied this nationalism, it also gave it a legal legitimacy, while ideas challenging this nationalist vision have been made unlawful. The judiciary has not acted against the status quo, and mostly closed its eyes and ears to the diverse realities of the country and demands for the accommodation of those realities. The book also demonstrates that the judiciary has not kept up with changing international trends on minority rights. Therefore, the legal system has actively taken part in the state’s antidiversity policies and has been one of the main obstacles to the accommodation of minorities in Turkey. In this sense, the AYM’s jurisprudence examined in Chapter 5 has given us important insights. As the guardian of the state, it has not only acted very conservatively in its judgments, it has also legalized the political concepts of the official state ideology. As a constitutional court, it could have used its position to act as a more activist arm of government and law to produce a forward-looking, diversity-friendly jurisprudence. However, it has singularly failed to do so, despite the many chances it has had to produce a concept of nation and citizenry that might accommodate Turkey’s obvious ethnic, linguistic and religious plurality. Rather, its case law has not been more than a reiteration, reproduction and reinvention of the state’s anti-diversity nationalist stance. In its case law, the AYM has theorized the concept of the ‘Turkish nation’ in a static manner, as occurring sometime in the past with unchanged linguistic, cultural, and other characteristics, which makes it close to an ethnic definition, and also very exclusive. Meanwhile, this case law also theorizes the ‘minority’, which is conceptualized negatively, and portrayed both as having a second-class citizen status as well as unjust special privileges beyond ‘fair’ universalistic citizenship rights. This negative connotation of minority status may derive from the Ottoman legacy of the millet system, where non-Muslims were thought of as being subordinate to Muslims in the hierarchical Ottoman society. And later from the nineteenth century onwards, these millet rights began to be conceptualized as ‘privileges’, due to their incompatibility with the modern state logic which sought uniformity in every aspect of life, unlike the conventional rights granted in antiquity with a view to providing stability and order and as part of good governance in the state. Even today, therefore, the AYM refers to minority rights as ‘privileges’. Further, a minority is seen as something created at will, out of ill intentions, but not as a fact of society. Minority rights are portrayed as reinforcing divisions among the state’s population because they are group-specific, or as leading to an escalation of secessionist movements and, eventually, to the territorial fragmentation of the state. The AYM has put its efforts towards justifying the concept of minority as being inconsistent with the concepts of the nation and citizenship, and even the concept of human rights. It also simply considers people as ‘human beings’, while their ‘cultural being’ does not matter, even though it is simultaneously very concerned to protect and promote Turkish cultural and linguistic existence. Thus, a study of

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AYM’s case law establishes its deep prejudice against the concept of minority, which is viewed as a threat to the state’s existence as well as its homogenous idea of nation and citizenship. The concept of ‘citizenship’ in the AYM’s case law also comes closer to the concept of ‘nation’ because it is described within a narrative also pointing to ethnoreligious characteristics. Although the AYM has made visible efforts, especially in its more recent case law, to emphasize the concept of citizenship in order to demonstrate the Turkish state’s and legal system’s neutrality towards the ethnic, religious and linguistic affiliations of its people, it fails each time because of its consistent logic anticipating a nation and citizenship with reference to Turkish culture, language, history, morality, and so on. In its failure to accommodate minorities, one of the most important principles the judiciary has relied on is equality before the law. This egalitarianism has developed a language justifying state policies that negate diversity in the country, since everyone was equal and there were no differences. There is consequently no discrimination, it is claimed. Moreover, the legislation has also failed to create an adequate system to protect these diverse groups against assaults as well as direct and indirect discrimination. Thus, as shown in Chapter 6, a framework to legally guarantee ‘equal respect and concern’ to various distinct groups in Turkey has not been created. Except in a few cases, the courts’ jurisprudence also mostly failed to utilize existing concepts in a balanced manner to achieve that. Meanwhile, the judiciary developed an ideological discourse which considered minorities’ claims for protection and promotion of their differences outside of the so-called ‘umbrella’ identity of Turkishness as ‘racist’ ideas and as amounting to ‘racism’. It has thus treated such claims as threats. At the same time, the judiciary has legitimized the protection and promotion of the Turkish ethnie’s language and culture, and conceptualized Turkish nationalism as a ‘good’ nationalism, because of its ‘cultural’ and ‘linguistic’ assimilationist basis, and thus as ‘non-racist’. The law and judiciary have thereby acted as the third arm in the promotion of Turkish nationalism after the state and the military. In order to overcome these legal blockages to the recognition of ethnic-cultural-religious diversity in Turkey, there is a crucial need for the judiciary to change its mindset. Overall, this book has shown that the Turkish state’s official stance of being a civic state is a ‘myth’. By only protecting, promoting and enhancing the Turkish ethnie’s language, culture, tradition, history, and so on, the state proves that it is not neutral or equidistant from its diverse communities but, rather, it asymmetrically privileges the Turkish ethnie. The depth of institutionalization of the attitudes towards diversity and towards minorities within the legal system means that without a fundamental change of mindset, Turkey will continue to languish in its embedded policies of repression, exclusion and assimilationism. The kinds of minor changes which have been witnessed in recent years will not last long without a much more concerted effort to re-examine the long-established course of homogenization, which Turkey must now reverse.

List of Cases and Laws Constitutional Court Cases 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

Türkiye İşçi Partisi (TİP), E. 1971 /3, K. 1971/3, 20.07.1971. Türkiye Emekci Partisi (TEP), E. 1979/1, K. 1980/1, 08.05.1980. Sosyalist Parti (SP), E. 1991/2, K. 1992/1, 10.7.1992, R.G: 21386/25.10.1992. Türkiye Birleşik Komünist Partisi (TBKP), E. 1990/1, K. 1991/1, 16.07.1991, R.G: 21125/28.01.1992. Halkın Emek Partisi (HEP), E. 1992/1, K. 1993/1, 14.07.1993, R.G: 21672/ 18.08.1993. Demokrasi Partisi (DEP), E. 1993/3, K. 1994/2, 16.6.1994, R.G: 21976/30.06.1994. Özgürlük ve Demokrasi Partisi (ÖZDEP), E. 1993/1, K. 1993/2, 23.11.1993, R.G: 21849/14.02.1994. Sosyalist Türkiye Partisi (STP), E. 1993/2, K. 1993/3, 30.11.1993, R.G: 22016/09.08.1994. Demokrasi ve Değişim Partisi (DDP), E.1995/1, K. 1996/1, 19.03.1996, R.G: 23149/23.10.1997. Sosyalist Birlik Partisi (SBP), E.1993/4, K. 1995/1, 19.07.1995, R.G: 23148/ 22.10.1997. Demokratik Kitle Partisi (DKP), E.1997/2, K. 1999/, 26.02.1999, R.G: 24591/ 22.11.2001. Halkın Demokrasi Partisi (HADEP), E. 1999/1, K. 2003/1, 13.03.2003, R.G: 25173/19.07.2003. Hak ve Özgürlükler Partisi (Hak-Par), E. 2002/1, K. 2008/1, 29.01.2008, R.G: 26923/01.07.2008. Demokratik Toplum Partisi (DTP), E.2007/1, K. 2009/4, 11.12.2009, RG: 27989/09.07.2011.

Constitutions Kanunu Esasi, 23.12.1876, Düstur, Birinci Tertip, Vol. 4, 1–40. Law no. 85, 20.01.1921, Teşkilât-i Esasiye Kanunu, Ceride-i Resmiye, 01–07.02.1921. Law no. 491, 20.04.1924, Teşkilât-i Esâsiyye Kanûnu, RG: 24.04.1924. Law no. 334, 09.07.1961, Türkiye Cumhuriyeti Anayasası, RG: 10859/ 20.07.1961. Law no. 2709/07.11.1982, Türkiye Cumhuriyeti Anayasası, RG: 17863/ 09.11.1982.

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Primary Legislation Law no. 442, 18.03.1924, Köy Kanunu, RG: 68/07.04.1924. Law no. 671, 25.11.1925, Şapka İktisası Hakkında Kanun, RG: 230/28.10.1925. Law no. 677, 30.12.1925, Tekke ve Zaviyelerle Türbelerin Seddine ve Türbedarlıklar ile Bir Takım Ünvanlarin Men ve İlgasina Dair Kanun, RG: 243/13.12.1925. Law no. 743, 17.02.1926, Türk Medeni Kanunu, RG: 339/04.04.1926 (defunct). Law no. 765, 01.03.1926, Türk Ceza Kanunu, RG: 320/13.03.1926 (defunct). Law no. 788, 18.03.1926, Memurin Kanunu. Law no. 790, 22.03.1926, Ispirto ve Meşrubatı Küuliye Inhisari Hakkında Kanun, RG: 338/03.04.1926. Law no. 805, 10.04.1926, İktisadi Müesseselerde Mecburi Türkçe Kullanılması Hakkında Kanun, RG: 353/22.04.1926. Law no. 818, 22.04.1926, Borçlar Kanunu, RG: 359/29.04.1926. Law no. 864, 04.10.1926, Kanunu Medeninin Sureti Mer’iyet ve Şekli Tatbiki Hakkında Kanun, RG: 402/19.06.1926 (defunct). Law no. 1086, 18.06.1927, Hukuk Usulü Muhakemeleri Kanunu, RG: 622/ 02,03 and 04.07.1927. Law no. 1164, 25.06.1927, Umûmî Müfettişlik Teşkiline Dair Kanun. Law no. 1151, 25.06.1927, Bozcaada ve İmroz – Kazalarının Mahallî İdareleri Hakkında Kanun, RG: 638/20.07.1927. Law no. 1219, 11.04.1928, Tababet ve Şuabati San’atlarının Tarzı İcrasına Dair Kanun, RG: 863/14.04.1928. Law no. 1353, 01.11.1928, Türk Harflerinin Kabul ve Tatbiki Hakkında Kanun, RG: 1030/03.11.1928. Law no. 1412, 04.04.1929, Ceza Muhakemeleri Usulü Kanunu, RG: 1172-20.04.1929 (defunct). Law no. 1580, 03.04.1930, Belediye Kanunu, RG: 1471 /14.04.1930. Law no. 2510, 14.06.1934, İskan Kanunu, RG: 2733/21.06.1934 (defunct). Law no. 259, 13.12.1934, Bazı Kisvelerin Giyilemeyeceğine Dair Kanun, RG: 2933/13.12.1934. Law No. 2644, 22.12.1934, Tapu Kanunu, RG: 2892/29.12.1934. Law no. 2804, 14.06.1935, Maden Tetkik ve Arama Genel Müdürlüğü Kanunu, RG: 3035/22.06.1935. Law no. 3115, 05.02.1937, Teşkilatı Esasiye Kanununun Bazı Maddelerinin Değiştirilmesine Dair Kanun, RG: 3533/13.02.1937. Law no. 3201, 04.06.1937, Emniyet Teşkilatı Kanunu, RG: 3629/12.06.1937 (defunct). Law no: 3236, 11.06.1937, Kan Gütme Sebebiyle İşlenen Adam Öldürme Ve Buna Teşebbüs Cürümleri Failleri Hısımları Hakkında Tatbik Olunacak Muameleye Dair Kanun, RG: 3638/23.06.1937 (defunct). Law no. 3512, 28.06.1938, Cemiyetler Kanunu (defunct). Law no. 4305, 11.11.1942, Varlık Vergisi Hakkında Kanun, RG: 5255/12.11.1942 (defunct).

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Law no. 5434, 08.06.1949, Türkiye Cumhuriyeti Emekli Sandığı Kanunu, RG: 7235/17.06.1949. Law no. 5442, 10.06.1949, İl İdaresi Kanunu, RG: 7236/18.06.1949. Law no. 5682, 15.07.1950, Pasaport Kanunu, RG: 7564/24.07.1950. Law no. 5683, 17.07.1950, Yabancıların Türkiye’de İkamet ve Seyahatleri Hakkında Kanun, RG: 7564/24.07.1950. Law no. 5990, 21.11.1952, Umûmî Müfettişlik Teşkiline Dâir Kanun ile Ek ve Tâdillerinin Yürürlükten Kaldırılması Hakkında Kânun. Law no. 6581, 20.05.1955, Azınlık Okulları Türkçe ve Türkçe Kültür Öğretmenlikleri Hakkında Kanun, RG: 9013/27.05.1955. Law no. 6762, 29.06.1956, Türk Ticaret Kanunu, RG: 9353/09.07.1956. Law no. 6831, 31.08.1956, Orman Kanunu, RG: 9402/08.09.1956. Law no. 168, 16.12.1960, Yabancı Memleketlerde Türk Asıllı ve Yabancı Uyruklu Öğretmenlere Sosyal Yardım Yapılması Hakkında Kanun, RG: 10688/23.12.1960. Law no. 211, 04.01.1961, Türk Silahlı Kuvvetleri İç Hizmet Kanunu, RG: 10703/10.01.1961. Law no. 298, Seçimlerin Temel Hükümleri ve Seçmen Kütükleri Hakkında Kanun, 26.04.1961, RG: 10796/02.05.1961. Law no. 353, 25.10.1963, Askeri Mahkemeler Kuruluşu Ve Yargılama Usulü Kanunu, RG: 11541/26.10.1963. Law no. 357, 26.10.1963, Askeri Hakimler Kanunu, RG: 11541/26.10.1963. Law no. 492, 02.07.1964, Harçlar Kanunu, RG: 11756/17.07.1964. Law no. 648, 13.07.1965, Siyasi Partiler Kanunu, RG: 12050/16.07.1965 (defunct). Law no. 657, 14.07.1965, Devlet Memurları Kanunu, RG: 12056/23.07.1965. Law no. 772, 14.07.1966, Çarşı ve Mahalle Bekçileri Kanunu, RG: 12355/22.07.1966. Law no. 1512, 18.01.1972, Noterlik Kanunu, RG: 14090/05.02.1972. Law no. 1587, 05.05.1972, Nüfus Kanunu, RG:14189/16.05.1972 (defunct). Law no. 1615, 19.07.1972, Gümrük Kanunu, RG: 14263/ 01.08.1972 (defunct). Law no. 1739, 24.06.1973, Milli Eğitim Temel Kanunu, RG: 14574/24.06.1973. Law no. 2527, 25.09.1981, Türk Soylu Yabancıların Türkiye’de Meslek ve Sanatlarını Serbestçe Yapabilmelerine, Kamu, Özel Kuruluş veya İşyerlerinde Çaliştirabilmelerine İlişkin Kanun, RG: 17473/29.09.1981. Law no. 2932, 19.10.1981, Türkçeden Başka Dillerde Yapılacak Yayınlar Hakkında Kanun, RG: 18199/22.10.1981. Law no. 2547, 04.11.1981, Yüksek Öğretim Kanunu, RG: 17506/06.11.1981. Law no. 2565, 18.12.1981, Askeri Yasak Bölgeler ve Güvenlik Bölgeleri Kanunu, RG: 17552/22.12.1981. Law no. 2641, 17.03.1982, Afganistan`dan Pakistana Sığınan Türk Soylu Göçmenlerin Türkiye`ye Kabulü ve İskanına Dair Kanun, RG: 17638/19.03.1982. Law no. 2797, 04.02.1983, Yargıtay Kanunu, RG: 17953/08.02.1983 Law no. 2820, 22.04.1983, Siyasi Partiler Kanunu, RG: 18027 /24.04.1983. Law no. 2821, 05.05.1983, Sendikalar Kanunu, RG: 18040/07.05.1983.

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Law no. 2876, 01.08.1983, Atatürk Kültür, Dil ve Tarih Yüksek Kurumu Kanunu, RG: 18138/17.08.1983. Law no. 2908, 06.10.1983, Dernekler Kanunu, RG: 18184/07/10/1983 (defunct). Law no. 2923, 14.10.1983, Yabancı Dil Eğitimi ve Öğretimi İle Türk Vatandaşlarının Farklı Dil ve Lehçelerinin Öğrenilmesi Hakkında Kanun, RG: 18196/19.10.1983. Law no. 2935, 25.10.1983, Olağan Üstü Hal Kanunu, RG: 18204/27.10.1983. Law no. 2949, 10.11.1983, Anayasa Mahkemesinin Kuruluşu ve Yargılama Usulleri Hakkında Kanun, RG: 18220/13.11.1983. Law no. 3071, 01.11.1984, Dilekçe Hakkının Kullanılmasına Dair Kanun, RG: 18571/10.11.1984. Law no. 3194, 03.05.1985, İmar Kanunu, RG: 18749/09.05.1985. Law no. 3402, 21.06.1987, Kadastro Kanunu, RG: 19512/09.07.1987. Law no. 3797, 30.04.1992, Milli Eğitim Bakanlığının Teşkilat ve Görevleri Hakkında Kanun, RG: 21226/12.05.1992. Law no. 3835, 02.07.1992, Ahıska Türklerinin Türkiye‘ye Kabulü ve İskanına Dair Kanun, RG: 21281/11.07.1992. Law no. 3984, 13.04.1994, Radyo ve Televizyonların Kuruluş ve Yayınları Hakkında Kanun, RG: 21911/20.04.1994. Law no. 4686, 21.06.2001, Milletlerarası Tahkim Kanunu, RG: 24453/05.07.2001. Law no. 4709, 03.10.2001, Türkiye Cumhuriyeti Anayasasının Bazı Maddelerinin Değiştirilmesi Hakkında Kanun, RG: 24556/17.10.2001. Law no. 4721, 22.11.2001, Türk Medeni Kanunu, RG: 24607/08.12.2001. Law no. 4771, 03.08.2002, Çeşitli Kanunlarda Değişiklik Yapılmasınaİlişkin Kanun, RG: 24841/09.08.2002. Law no. 4778, 2.01.2003, Çeşitli Kanunlarda Değişiklik Yapılmasına İlişkin Kanun, RG: 24990/11.01.2003. Law no. 4817, 27.02.2003, Yabancıların Çalışma İzinleri Hakkında Kanun, RG: 25040/06.03.2003. Law no. 4848, 16.04.2003, Kültür ve Turizm Bakanlığı Teşkilat ve Görevleri Hakkında Kanun, RG: 25093/29.04.2003. Law no. 4928, 15.07.2003, Çeşitli Kanunlarda Değişiklik Yapılmasına İlişkin Kanunu, RG: 25173/19.07.2003. Law no. 5042, 08.01.2004, Yeni Bitki Çeşitlerine Ait Islahçı Haklarının Korunmasına İlişkin Kanun, RG: 25347/15.01.2004. Law no. 5251, 27.10.2004, Kadının Statüsü Genel Müdürlüğü Teşkilat ve Görevleri Hakkında Kanun, RG: 25635 /06.11.2004. Law no. 5253, 04.11.2004, Dernekler Kanunu, RG: 25649/23.11.2004. Law no. 5256, 10.11.2004, Aile ve Sosyal Araştırmalar Genel Müdürlüğü Teşkilat ve Görevleri Hakkında Kanun, RG: 25642/13.11.2004. Law no. 5271, 04.12.2004, Ceza Muhakemesi Kanunu, RG: 25673/17.12.2004. Law no. 5275, 13.12.2004, Ceza ve Güvenlik Tedbirlerinin İnfazı Hakkında Kanun, RG: 25685/29.12.2004. Law no. 5378, 01.06.2005, Özürlüler ve Bazı Kanun ve Kanun Hükmünde Kararnamelerde Değişiklik Yapılması Hakkında Kanun, RG: 25868/07.07.2005.

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Law no. 5353, 25.05.2005, Ceza Muhakemesi Kanununda Değişiklik Yapılmasına Dair Kanun, RG: 258324/01.06.2005. Law no. 5395, 03.07.2005, Çocuk Koruma Kanunu, RG: 25876/15.07.2005. Law no. 5543, 19.09.2006, İskan Kanunu, RG: 26301/26.09.2006. Law no. 5490, 25.04.2006, Nüfus Hizmetleri Kanunu, RG: 26153/29.04.2006. Law no. 5637, 26.04.2007, Uygulama Imkânı Kalmamış Bazı Kanunların Yürürlükten Kaldırılmasına Dair Kanun, RG: 26510/02.05.2007. Law no. 5719, 29.11.2007, Türkiye Futbol Federasyonu Kuruluş ve Görevleri Hakkında Kanunda Değişiklik Yapılmasına Dair Kanun, RG: 2672/04.12. 2007. Law no. 5735, 20.02.2008, Türkiye Cumhuriyeti Anayasasının Bazı Maddelerinde Değişiklik Yapılmasına Dair Kanun, RG: 26796/23.02.2008. Law no. 5737, 20.02.2008, Vakıflar Kanunu, RG: 26800/27.02.2008. Law no. 5759, 30.04.2008, Türk Ceza Kanununda Değişiklik Yapılmasına Dair Kanun, RG: 26870/08.05.2008. Law no. 5767, 11.06.2008, Türkiye Radyo Ve Televizyon Kanunu ile Radyo ve Televizyonların Kuruluş ve Yayınları Hakkında Kanunda Değişiklik Yapılmasına Dair Kanun, RG: 26918/26.06.2008. Regulations, By-laws, Circulars and Cabinet Decisions Bakanlar Kurulu Karar no. 13507/21.10.1932, Söz Derleme Talimatnâmesi. RG: 2891/27.12.1934, Bakanlar Kurulu Karar no. 2/1759, 24.12.1934, Soyadı Nizamnamesi. RG: 2898/05.01.1935, Bakanlar Kurulu Kararnamesi  no. 2/1777, 27.12.1934, İskan Muafiyetleri Nizamnamesi. RG: 4330/07.10.1939, İçişleri Bakanlığı’ndan, Sokaklara İsim veya Numara ve Bütün Binalara Numara Konulması Hakkında Yönetmelik. RG: 5991/26.04.1945, Bakanlar Kurulu Karar no. 3/2412, 04.04.1945, Şehir ve Kasabalardaki Mahalle Muhtar ve İhtiyar Kurulları Tüzüğü. RG: 11742/01.07.1964, İçişleri Bakanlığı’ndan, 11.02.1964 Tarihli ve 403 Sayılı Türk Vatandaşlığı Kanununun Uygulanmasına İlişkin Yönetmelik. RG: 12345/11.07.1966, Bakanlar Kurulu Karar no. 6/6583, 13.06.1966 Sansür Yönetmeliği. RG: 15926/03.5.1977, Bakanlar Kurulu Karar no. 7/13269, 08.03.1977, Nüfus Hizmetlerine Ait Kuruluş Görev ve Çalışma Yönetmeliği. RG: 18033/30.04.1983, Bakanlar Kurulu Karar no. 83/5949, 17.01.1983, Askeri Yasak Bölgeler ve Güvenlik Bölgeleri Yönetmeliği. RG: 18916/02.11.1985, Bayındırlık ve İskan Bakanlığı’ndan, İmar Kanunun 18 İnci Maddesi Uyarınca Yapılacak Arazi ve Arsa Düzenlemesi İle İlgili Esaslar Hakkında Yönetmelik. RG: 18921/07.11.1985, Bakanlar Kurulu Karar no. 85/9747, 10.07.1985, Evlendirme Yönetmeliği.

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RG: 19517/14.07.1987, Kanun Hükmünde Kararname no. 285, 10.07.1987, Olağanüstü Hal Bölge Valiliği İhdası Hakkında Kanun Hükmünde Kararname. RG: Mük. 20211/30.6.1989, Kanun Hükmünde Kararname no. 375, 27.06.1989, 657 Sayılı Devlet Memurları Kanunu, 926 Sayılı Türk Silahlı Kuvvetleri Personel Kanunu, 2802 Sayili Hakimler ve Savcılar Kanunu, 2914 Sayılı Yükseköğretim Personel Kanunu, 5434 Sayılı T.C. Emekli Sandığı Kanunu ile Diğer Bazı Kanun ve Kanun Hükmünde Kararnamelerde Değişiklik Yapılması, Devlet Memurları ve Diğer Kamu Görevlilerine Memuriyet Taban Aylığı ve Kıdem Aylığı ile Ek Tazminat Ödenmesi Hakkında Kanun Hükmünde Kararname. RG: 20727/16/12/1990, Kanun Hükmünde Kararname no. 430, Olağanüstü Hal Bölge Valiliği ve Olağanüstü Halin Devamı Süresince Alınacak İlave Tedbirler Hakkında. RG: 21953/07.06.1994, Bakanlar Kurulu Karar no. 94/5623, 18.05.1994, Tapu Sicili Tüzüğü. RG: 24967/18.12.2002, Radyo ve Televizyon Üst Kurulu’ndan, Radyo ve Televizyon Yayınlarının Dili Hakkında Yönetmelik (defunct). İçişleri Bakanlığı Genelgesi no. 2003/37, 24.09. 2003 (annulled by another Genelge (Circular) no. 2006/12, 06.06.2006) (defunct). RG: 25357/25.01.2004, Radyo ve Televizyon Üst Kurulu’ndan, Türk Vatandaşlarının Günlük Yaşamlarında Geleneksel Olarak Kullandıkları Farklı Dil ve Lehçelerde Yapılacak Radyo ve Televizyon Yayınları Hakkında Yönetmelik (defunct). İçişleri Bakanlığı Yazılı Emir no. 1656, 13.03.2004, Coğrafi Adlar Uzmanlar Kurulu Çalışma Esas ve Usullerine İlişkin Yönerge. RG: 25567/28.08.2004, Bakanlar Kurulu Karar no. 2004/7755, 20.08.2004, İl Ve İlçe Spor Güvenlik Kurulu Spor Müsabakalarında Şiddet ve Düzensizliğin Önlenmesine Dair Kanunun Uygulanmasına İlişkin Yönetmelik. RG: 25658/02.12.2004, Bakanlar Kurulu Kararı no. 2004/8125, 18.10.2004, Resmi Yazışmalarda Uygulanacak Esas ve Usuller Hakkında Yönetmelik. RG: 25687/31.12.2004, Avcı Eğitimi ve Avcılık Belgesi Verilmesi Usul ve Esasları Hakkında Yönetmelik. RG: 25694/08.01.2005, Yerli ve Yabancı Avcıların Av Turizmi Kapsamında Avlanmalarına İlişkin Usul ve Esaslar Hakkında Yönetmelik. RG: 25785/13.04.2005, Başbakanlık’tan, Kamu Görevlileri Etik Davranış İlkeleri İle Başvuru Usul Ve Esasları Hakkında Yönetmelik. RG: 25848/17.06.2005, Adalet Bakanlığı’ndan, Hükümlü ve Tutuklularin Ziyaret Edilmeleri Hakkında Yönetmelik. RG: 26245/31.07.2006, İçişleri Bakanlığından Adres ve Numaralamaya İlişkin Yönetmelik. RG: 26282/07.09.2006, Bakanlar Kurulu Kararı no. 2006/10872, 01.09.2006, 2006–2007, Eğitim-Öğretim Yılında Yükseköğretim Kurumlarında Cari Hizmet Maliyetlerine Öğrenci Katkısı Olarak Alınacak Katkı Payları ile İkinci Öğretim Ücretlerinin Tespitine Dair Karar.

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RG: 27405/13.11.2009, Radyo ve Televizyon Üst Kurulu’ndan, Türk Vatandaşlarının Günlük Yaşamlarında Geleneksel Olarak Kullandıkları Farklı Dil ve Lehçelerde Yapılacak Radyo ve Televizyon Yayınları Hakkında Yönetmelik (defunct). RG: 26355/23.11.2006, Bakanlar Kurulu Karar no. 2006/11081 – 29.9.2006, Nüfus Hizmetleri Kanununun Uygulanmasına İlişkin Yönetmelik. Çalışma ve Sosyal Güvenlik Bakanlığı no. 23518, 04.5.2009, dayandığı Bakanlar Kurulu Kararı no. 2009/14699, 23.02.2009, Çalışma İzninden Muaf Tutulacak Türk Soylu Yabancılara Dair Yönetmeliği. RG: 28103-02.11.2011, Radyo ve Televizyon Üst Kurulu’ndan, Yayın Hizmeti Usul ve Esasları Hakkında Yönetmelik.

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Index

Abdülhamit II 35, 44–5, 49, 61 Adaletve Kalkınma Partisi (AKP), see Justice and Development Party Adsız, Nihal 251–4 Afghanistan 15 Akkoyunlu 29 Akşener, Meral 236 Albania 29, 88, 138 Albanians 44, 49, 52, 62, 197 Alevis 2–3, 12, 14, 21, 44, 76–7, 91, 112–15, 118, 203–4, 235–7 attacks against 130 ban on ceremonies 112 ban on traditional dress 112 cemevis 113 Dersim 78, 135, 140 rebellions 77–8 Ali Riza Pasha 74 Alp, Tekin 97 Anayasa Mahkemesi (AYM), see Constitutional Court Anti-Terror Law 179, 249 Arabic language 58, 102–3, 107, 170, 174 Arabs 3, 29–30, 43–5, 49–50, 58, 62, 68, 84, 109, 159, 233, 253 Aral, Berdal 10–11 Arınç, Bülent 4 Armenia 74, 81, 83, 108 Armenian language 56, 103, 107, 165, 171, 174 Armenian minority schools 100 Armenians 3, 26–7, 49, 52–3, 67–9, 73, 77–8, 80, 83, 90, 109, 120, 128, 159, 203, 236, 242, 246–8, 253 deportation 61, 67 emigration of 60 ethnic cleansing 61, 80 impact of economic nationalism on 59–60, 121–2 massacre 61

return of 82–3 assimilation 6–8, 11, 17, 19, 25, 27, 35, 79, 94–8, 102, 130–42, 143, 181, 191, 197, 199–200, 216, 226, 228, 257, 260, 262 difference anxiety 197 digestion 197 linguistic 102, 181, 212 Association Law 52 Assyrian language 85 Assyrians 3, 14, 61, 90 Atatürk, see Kemal, Mustafa Atatürk nationalism, see Kemalism Azerbaijan 83 Baha’is 3 Barış ve Demokrasi Partisi (BDP, Peace and Democracy Party) 198 Bayar, Celal 60 Bedirhan Pasha 31 Bedouin 45 Bektashis 77, 112–15 ban on ceremonies 112 ban on traditional dress 112 Beşikçi, İsmail 137–8, 192, 211, 256–7 Birlik Partisi, see Unity Party Bosnians 3, 62, 82, 103, 197 language 170 Bozkurt, Esat Mahmut 69, 95, 133 Britain 85–8, 232 Curzon, Lord 76, 79, 86–7, 106 Lausanne Conference 76 Rumbold, Horace 78 broadcasting 2, 169–71 Buddhists 175–6 Bulgaria 31, 61, 88, 155, 160, 203 Bulgarians 53, 80 Caferis 3 Caliphate 67, 70, 72–3

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abolition 76–7, 112 Canada 115 capitulations 38, 42, 47, 58 Catholics 86, 115 Cemal Pasha 55, 65 census 62 Central Asia 45, 108, 159–60, 189 Chaldeans 3, 14, 61, 90 Chechens 72 China 155, 160 Christianity 107 Christians 3, 27, 30, 39, 68, 70, 180; see also Armenians; Catholics; Copts; Ethiopians; Greeks; Nestorians; Protestants; Syriacs Circassian language 100, 103, 170 Circassians 3, 62, 71–2, 84, 105, 133, 197, 253 citizenship 5, 14, 16, 18, 21, 33, 37, 42, 58, 70, 98, 121–2, 137, 144–51, 154, 160–62, 187, 195, 202, 213, 215–19, 221, 226, 228, 230, 238, 243–8, 260–62 citizenship law 137, 144, 160–62, 175 Civic Registration Law 50 Civil Code 1926 120 civil service 122 civilizing mission 45, 98, 130, 133, 135, 140, 257, 260 cizye, see poll tax clothing 36 codification 119–20 Commission for Assessment of Minority Problems (Azınlık Sorunların Değerlendirme Kurulu) 121 Committee on Elimination of All Forms of Racial Discrimination (CERD) 5, 12–13, 90, 144, 204, 211, 223, 226–7, 229, 236, 249; see also Convention on the Elimination of All Forms of Racial and Ethnic Discrimination 1969 Committee on Union and Progress 23, 44, 46, 49–63, 65–6, 70, 78, 82–3, 96, 105, 119, 124, 249 communists 107, 128–9, 162, 237, 250, 252, 254, 256 conscription, see military service

Constitutional Court 5, 16–17, 55, 66, 139, 144, 150, 152–4, 176, 185, 187–218, 222–3, 226, 235, 247, 255, 261 civic nationalism 187 federalism 209 headscarf ban 193–4 judicial activism 188, 261 official ideology 188–9, 191–2, 197, 218, 260–62 political party closure cases 187–218 Turkish nationalism 193, 200 Constitutions 144, 166 Constitution 1908, 50 Constitution 1921, 74–5, 100, 139, 148 autonomy 74–6 Constitution 1924, 75, 100, 121, 123, 146–9, 222, 252 Constitution 1961, 100, 112, 123, 147, 149–51, 188, 222, 229 Constitution 1982, 100, 113, 123, 144, 147, 151–4, 157, 164, 188–9, 200–201, 206, 215, 217, 222–4, 226–7, 229, 235, 238, 247 Ottoman (Kanun-i Esasi) 1876 31, 34–5, 37, 42, 44–6, 50–51 Convention on the Elimination of All Forms of Racial and Ethnic Discrimination 1965, 176 Copts 27 Council of Europe 108, 144, 234 courts 92; see also judiciary interpreters 181–4 language 145, 164–5, 181–5, 192 martial 102, 142, 190, 192, 211, 253–6 Nizamiye 39–40 sharia 20–21, 24, 27, 30, 39–41 translators 181–4 criminal law 220–58 criminal procedures 181–4 Croatia 24 Cumhuriyet Halk Partisi (CHP), see Republican People’s Party Cyprus 27, 104, 128–9, 155, 160, 248 Çelebi, Cemalleddin 76 DDKO case 109, 192, 211, 215, 255–8

Index Demirel, Süleyman 2 democracy 206–7, 216–18, 243 Demokrasi Partisi (DEP, Democracy Party) 216 Demokrasi ve Değişim Partisi (DDP, Democracy and Change Party) 153, 192–201, 203, 205–7, 209, 211–14, 216–18, 226 Demokrat Parti (DP, Democrat Party) 100, 107, 125, 128–9, 138 Demokratik Halk Partisi (DEHAP, Democratic People’s Party) 172–3 Demokratik Sol Partisi (Democratic Left Party) 148 Demokratik Toplum Partisi (DTP, Democratic Society Party) 108, 171, 190–91, 196, 198–9, 201–2, 215–17, 251 Department of Religious Affairs 112, 118 dervishes 112, 117 Dink, Hrant 246 discrimination 5, 8, 18, 36, 144, 176, 192, 201, 203, 206–7, 210, 213–14, 217–20, 222, 225–31, 239–40, 244, 249, 258, 262 EU Directives 231 divorce 40 Diyanet, see Department of Religious Affairs Druzes 21, 44 East Report (Şark Raporu) 122, 133 Ecevit, Bülent 148 education 60, 91, 122, 201 history 45 in Kurdish 4 Islam 46 language 2, 166–9 non-Muslims 115, 122 religious 2, 114–15 tribal schools 44–5 Turkification through 66 Turkish geography 47 Turkish history 47, 197, 214 Turkish language 47, 166–7 Emek Partisi (EP, Labour Party) 153, 190, 192–3, 195–201, 203, 205–9, 211–18, 226 Enver Pasha 55, 65

295

equality 196, 201, 217, 219–31, 239, 243–4, 258, 262 Rousseau 220 Erbakan, Necmettin 238 Erdoğan, Tayyip 15, 198, 232 Ethiopians 27 European Charter for Regional or Minority Languages 11 European Commission against Racism and Intolerance (ECRI) 144, 174, 204 European Convention on Human Rights 2, 11, 117, 141–2, 167, 173, 180, 183, 212 European Court of Human Rights 2–3, 93, 117, 119 173, 176, 180, 183, 190, 192, 206, 223, 225 European Union 116, 121, 179, 231, 246 accession to 1, 166, 168, 169, 174–5 Family Law Code 1917 119 Farsi 178, 257 Ferit, Damat 74 feuds 138–9 foundations 115–19 Bahai 118 based on race 117 Jewish 117 Muslim 116–18 non-Muslim 116–17 Seventh Day Adventist 118 Turkish 118 Framework Convention on National Minorities 2, 11, 108 France 143, 160, 228 French Nationality Law 1851 42 French revolution 49 genocide 12, 98, 232–3, 248 cultural 12, 98, 209 Georgia 83 Georgians 3, 62 Germany 55, 160 Greece 24, 27, 61, 93, 124, 160 Muslims in 80–82, 93, 119 Venizelos, Eleftherios 79, 81 Greek language 56, 103, 107, 165 Greek minority schools 100

296

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Greeks 3, 13–14, 24, 49, 53, 68, 84, 90, 98, 103, 109, 120, 123, 126, 159, 165, 203, 224 attacks in Istanbul 127–30, 151 deportation 130 emigration of 60 forced displacement 80 hate crimes against 127–30 impact of economic nationalism on 59–60, 121–2 return of 82 Günay, Ertuğrul 3 Gürsel, Cemal 151 Haci Bayram Veli Dergahı 112 Hacı Bektaş Dergahı 76–7, 112 Hak ve Özgürlükler Partisi (Hak-Par, Rights and Freedom Party) 173, 191 Halkın Demokrasi Partisi (HADEP, People’s Democracy Party) 190– 92, 199, 201–2, 206–7, 216–17 Halkın Emek Partisi (HEP, People’s Labour Party) 153–4, 190, 192–209, 211–18, 226 hate crimes 218–20, 232–43 hate speech 5, 37, 102, 129, 220, 228, 232–43; see also hate crimes group defamation 233–7 history 6, 45, 150, 193–4, 197–9, 208, 226, 244, 258–9 human rights 7–9, 11–12, 93, 168, 173, 188, 202, 204–5, 214–18, 243, 261 see also European Convention on Human Rights; European Court of Human Rights immigration 66, 159–63 Kurds 63 Muslims 60 non-Muslims 61, 130 Roma 62, 161 Turks 60, 136, 156, 159–63 Independence War 17, 65–79, 93–4, 95, 106, 111, 119, 130, 134, 195, 197, 260 Amasya Protocols 74 Erzurum Congress 66–8, 70, 197, 216 Kurds 73–6 National Pact 66, 68, 71, 73, 79, 197, 216

non-Muslims 68–70, 121, 197, 216 non-Turkish Muslims 70–79 Sivas Congress 66, 68, 70, 197, 216 India 141 inheritance law 40–41 Inspectorate Generals (Umumi Müfettişlikler) 139–42 judicial system 140 Kurdish provinces 139–41 Tunceli 139 insulting Turkishness 220, 243–8; see also Turkishness International Covenant on Civil and Political Rights 10–12, 115, 173; see also UN Human Rights Committee International Covenant on Economic, Social and Cultural Rights 10–12 Iraq 74, 155, 162 Kurdish refugees from 162 Iran 29 Islam 20, 43–4, 202, 238 mosques 113 Muslim unity 28–31, 35, 37, 43–4, 48, 71–2, 95, 197, 238, 259–60 Pan-Islamism 43–5, 52 Sunni Islam 43, 79, 112–15, 120, 220 umma 20 Islamic law 39 Constitution of Medina 25 Hanefi 3, 30, 39, 44, 79, 112, 120 Hânbalî 20 Mâliki 20–21 Shâfı’i 20–21, 30 sharia 20–21, 30, 38–41, 44 Islamism 52, 77, 190 Islamization 44, 60, 113 İdris-i Bitlisi 29 İnan, Afet 110 İnönü, İsmet 79, 81, 84–6, 97, 103, 117, 124, 131, 204, 252 İttihat ve Terakki (İTC), see Committee on Union and Progress İzzet, Ahmet Pasha 82 Jewish minority schools 100

Index Jews 3, 14, 25, 30, 39, 48–9, 61, 84, 90, 103, 120, 124–7, 165, 203, 237, 242, 253 anti-Semitism 13, 125–7, 237, 242 impact of economic nationalism on 124–7 synagogues 113 judiciary 4, 16, 18, 39, 118, 121, 154, 206, 258–62; see also courts citizenship law 137 discrimination 219–20, 226, 239 equality 222–5, 239 forename cases 177–81 hate speech 219–20, 232–43, 251–4 kadıs 20–21, 24, 27–9, 39–41 Kurds 134, 185, 187–218, 242, 255 language 92, 164–5, 167–8, 171–85, 192, 194, 197 Medeni Bilgiler 110, 194–5, 198 names cases 174–81, 192 nationalist jurisprudence 220, 258 non-Muslims in 122, 187, 195–7, 206, 229–30 official ideology 188–9, 191–2, 194, 198, 220, 238–40, 244–5, 247–8, 251–4, 258 political parties 17, 171–4, 187–218 Sunnification 113, 120 Surname Law 175–6 Justice and Development Party (Adalet ve Kalkınma Partisi, AKP) 3, 108 Kaya, Şükrü 105, 133, 140 Kemal, Kara 59 Kemal, Mustafa Atatürk 65, 72–4, 76, 99, 109–10, 131, 189, 194–5, 198 Kemalism 65, 118, 149–50, 152–4, 188–9, 191, 194–5, 198, 201, 220, 239, 247–8, 252, 257, 260 Kemalists 59, 130 Kılıç, Haşim192, 206 kin state 159 Koçgiri rebellion 77–8 Kohn, Hans 143 Koma Civakên Kurdistan (KCK, Kurdistan Union of Communities) 182–3 Köker, Levent 220, 225 Köprülü, Fuat 129

297

Kurdification 132, 134 Kurdish history 214 Kurdish language 2, 4, 63, 78, 85, 100–103, 107, 132–3, 165, 166–70, 181–5, 208, 211–12, 215, 240, 250, 254, 256–7 as foreign language 108 as mother tongue 191, 212, 214 broadcasting 170–71, 250 education in 4, 108, 167–9, 191, 208, 250 in courts 181–5 in politics 171–4 in prisons 184–5 Kurdish names 178–80 Kurdish nation 191, 196 Kurdish nationalism 233 Kurdishness 111, 179 Kurdism 102, 215, 240, 250, 257 propaganda 102, 190, 250, 255–7 Kurdistan 2, 30–31, 71, 74–5, 105, 108, 240 Kurds 1–4, 14, 17, 29–31, 35, 44–5, 52, 56, 62–3, 67, 71–2, 73–6, 84–6, 94, 96, 102, 105, 109, 122, 132, 139–41, 159, 162, 169, 187–218, 233, 236, 238, 240, 242, 247–8, 255–8, 260 assimilation 130–42, 215 autonomy 74–5, 78, 86, 209 cultural and linguistic claims 214, 240, 249–50 East Report (Şark Islahat Raporu) 122, 133 nomadic 30 origin of 85–6, 257 refugees from Iraq 162 secession 74–5, 78, 208 self-determination 75, 209–10 social structure 130, 137–8, 140, 211 uprising 134, 140 Kurmanci 170; see also Kurdish language Kymlicka, Will 97 laicism 66, 98, 111–18, 130, 188, 190, 194 language 37, 91–2, 94, 98, 102, 144–5, 163–85, 192, 194, 197, 201, 211, 244, 258; see also Kurdish language; linguistic assimilation; nationalism; Turkish language

298

Minorities and Nationalism in Turkish Law

ban on 92, 99–100, 102–3, 165, 171–4, 240 broadcasting 2, 102, 145, 167, 169–71 education 2, 145, 166–9 interpreters 181–4 Mongol 100 mother tongue 166–8 in politics 171–4 prohibited languages 103, 165, 171–4 prisons 184–5 publications 169 translators 181–4 Lausanne Conference 16, 76, 79–93, 117–18, 204, 216 Aegean Islands 79 Kurds 67, 76, 85–7, 216 Mosul 67, 76, 79, 85–7 Thrace 79 Lausanne Treaty 1923 6, 11, 16–17, 66, 79–93, 117–18, 202, 204, 216 equality principle 90–91 Kurds and 210, 216 legal pluralism 119 linguistic rights 91–2, 100–101, 165, 181, 184, 204 non-Muslims 90–92, 117, 165, 204, 223 religious freedom 91, 111, 204 status of minorities in 67, 88–94, 111, 115, 123, 203–4, 216 Laz 3, 14, 62, 71–2, 133, 197 language 100, 102, 107, 166, 171 Lazistan 74, 105–6 League of Nations 7, 9, 79, 87–90 High Commissioner for Refugees 80 legal centralism 119; see also legal positivism legal education 189 legal positivism 189, 220; see also legal centralism legal pluralism 21, 28–32, 38, 41, 79, 92, 119–20, 140 legal transplants 1, 39, 42–3, 120 legal uniformity 196, 219, 222 linguistic assimilation 102, 181, 212, 262 Maronites 3 marriage 27, 120 dower (mahir) 27, 40

registration 27, 40, 184 martial courts 102, 142, 190, 192, 211, 245, 253–6 media, see broadcasting, language, publication Menderes, Adnan 128 Menteşe, Nahit 191 Mevlana, dervish lodge 112 Mevlana, Sufi Order 77 military 4, 25–6, 29, 45–6, 48–9, 76, 93, 107, 109, 118, 122, 126, 133, 136, 139–42, 146, 154, 159, 248, 258 military coup 1980 103, 115, 118, 129, 153, 164, 184, 190, 255 military courts, see martial courts military service 24, 36, 48, 53–4 millet system 15, 20–49, 79, 119, 261 Constitution of Medina 25 Milliyetçi Hareket Partisi (MHP) 153, 251–2 minorities 187, 201 concept 51, 67–8, 201–8, 262 creating minorities 190, 207–8, 214, 261 dhimmi status 23–4, 26 foundations 115–19 Kurds as 196, 203–4, 210–16 Muslim 14, 67, 142, 238 national 83 non-Muslim 17, 19–21, 23–5, 27, 35–9, 43–4, 48–52, 54–6, 58–9, 66–70, 79, 83–4, 90–94, 96, 104, 115, 121–2, 125, 128–9, 149, 187, 195–7, 203–4, 206, 220, 223, 229– 30, 236, 239, 242–4, 258–9, 261 non-Turkish 14, 19, 25, 48, 56, 58, 96, 98, 187, 197–202, 240, 243–4, 258–9 non-Turkish Muslim 15, 17, 21, 28, 51, 52, 55, 67, 70–79, 83, 195, 220, 244 minority languages 2, 12, 99–104, 166–9, 174, 212, 238 ban on 92, 99–100, 102–3, 133, 165–6, 171–4, 240 broadcasting 169–71 publications 102, 169–71 minority protection/rights 1, 5, 8, 11, 13, 22, 27, 88–9, 111, 196–7, 206–8, 216, 218, 219, 222 democracy and 206–7, 216–18, 243

Index difference 3–7, 12, 15, 20–23, 26, 28, 30, 36–7, 41, 50, 53, 71, 89, 91, 95, 105, 134–5, 137, 166, 171, 179, 181, 190, 192, 197–8, 202–9, 212–14, 216–17, 219, 221–6, 228, 232, 234, 238–44, 250, 252, 255–6, 258–60, 262 equality 90–91, 190, 196, 239 group rights 9, 205 in international law 1, 6–9, 11, 68, 88–9, 203, 210–11, 216, 222, 224, 231, 256, 261 millet system, and 27 as privilege 223–4, 227, 261 reciprocity 92–3 Minority Secondary Commission (Azınlık Tali Komisyonu)121 Moldavia 24 Moldavians 25 Mustafa, Celaleddin 98 names 2, 12, 174–81, 192 of animals 108–9 corporate names 180 forenames 177–81 place names 104–9 Race Name Law 104–5 Surname Law 12, 105, 133, 137, 175–6 surnames 6, 104–5, 137, 175–6 Nansen, Fritjof 80 nationalism 238, 254; see also Kurdish nationalism; Turkish nationalism Balkan 105 Civic 6, 42, 50–51, 97, 143–5, 152, 157, 160, 187, 190, 202, 217, 262 constitutional 5 cultural 11–13, 96–120, 143 economic 58–60, 77, 96, 120–30 linguistic 55–8, 60, 98 primodialist 199 territorial 5–6 nationalist jurisprudence 220 Nationalist Party (Milliyetçi Parti) 148 nationality 144, 175 Nationality Law 1869 42 Nestorians 61, 90, 237 nomads 30, 45, 60, 135–6 Nusayris 3, 44

299

Olağanüstü Hal, see state of emergency Orientalism 45 Orthodox Christians 82, 115, 224 churches 113, 224 Ottoman Empire 15–16, 19–63, 110–11, 232, 259; see also millet system; Ottomanism; Tanzimat break-up of 55, 63, 66, 259 centralization 31–2, 35, 45 citizenship 16, 21, 33, 35, 37, 42, 58, 160, 196 customary law 21, 92 devşirme system 25, 43 education 45–6 equality in law 32, 35–8, 41, 54 judiciary 20, 24, 27–9 Kurds 29–31 legal system 21–2, 24, 27–41, 44, 48, 119 minority protection 22 nationality 35 nationalism 19 pan-Islamism 43–5, 201 pluralism 19–49, 135 sancaks 29–30 secularization 17, 35, 38–41 toleration 25 tribal laws 30, 44 Ottoman language 48, 99 Ottomanism 21–3, 33, 41–3, 45, 48, 50, 53, 55, 57 Öcalan, Abdullah 236 Ökte, Faik 125 Özgürlükve Demokrasi Partisi (ÖZDEP, Freedom and Democracy Party) 2, 97, 153, 164, 190, 192–218, 226 Pakistan 162 Pamuk, Orhan 247 pan–Turkism 55, 201 Parekh, Bhikhu 221 Paris Peace Conference 88 persecution 25 PKK (Partiya Karkeren Kurdistan, Kurdistan Worker’s Party) 4, 14, 168, 183, 198, 231, 236, 240, 242 places of worship 24, 232 Political Parties Law 100, 171–4, 207–8, 218

300

Minorities and Nationalism in Turkish Law

language 171–4 political party closure cases 17, 187–218 poll tax 24; see also taxation Pomaks 82, 197 population exchange 95 Armenia 81 Bulgaria 61, 83 Christians 80 Greece 61, 67, 80–82, 122 religion 81–2 Protestants 3, 69, 86 publication 102, 169–71 racism 5, 9, 18, 190, 201, 206–7, 219–20, 226, 228, 232–4, 244, 246–7, 249–57 creating a minority as 190, 214 cultural racism 257 minority racism 190–92, 198, 217–18, 226, 240, 250–51, 254–7, 262 psychological racism 256 Refah Partisi, see Welfare Party religion 193–4, 208, 232, 235; see also laicism; secularization conversion 27, 43–4 dhimmi status 23–4, 26 heretic 19 heterodox 19, 21, 30, 44, 113 places of worship 90, 113, 232 religious freedom 91, 111 Republican People’s Party (Cumhuriyet Halk Partisi, CHP) 97, 109–10, 123–4, 126, 149 resettlement policies 60–63, 66, 133–9; see also Settlement Law Revolution of 1908 (II Meşrutiyet) 51, 59 Riza Nur Bey 84, 204 Roma 2–3, 25, 27, 62, 134, 161, 203–4, 233, 253 Romania 82, 160 Romanians 25 Rousseau 220 Russia, Soviet 74, 162 Sabbateans 237 Safavids 29 Saraçoğlu, Şükrü 104 secularism, see laicism secularization 98, 111–18

self-determination 9–11, 75, 209–10 Selim, Yavuz Sultan 26 separatism 102, 108, 190, 201, 208, 215, 230, 257, 261 Settlement Law 63, 133–9, 156, 160–62 Sévres syndrome 15, 66, 202 Sévres, Treaty of, 1920 66, 202 single party regime 14, 146 Shiites 44 Slavs 49, 98 Sosyalist Parti (SP, Socialist Party) 66, 153, 167, 190, 192–209, 211–18, 223, 226 Sosyalist Türkiye Partisi (STP, Socialist Party of Turkey) 73, 153, 164, 190, 192–214, 216–18 state of emergency (Olağanüstü Hal, OHAL) 141–2 Sunnification 113 Sunnis 3, 19, 30, 78–9, 112–13, 120, 220 Sunni Kurds 29 super-diversity 23 Süleyman, Kanuni Sultan 26 Syria 74 Syriacs 27 174–6, 203–4 Şeyh Sait rebellion 131, 133–4 Talat Pasha 55, 65 Tanzimat reforms 20, 23–4, 31, 36, 38–9, 42, 49, 99, 109; see also Ottoman Empire; Ottomanism Islahat Fermanı 1856 33, 36–7, 39 Nationality Law 1869 42 Tanzimat Fermanı 1839 36, 42 Tarsus 27 taxation 24, 26–8, 34, 36, 124–5 Thrace Incidents 1934 126 translation of legislation 57 tribal schools 44–5 Tuğcu, Tülay 206 Tunceli Law 1935 135, 139–41 Turanism 251–4 ‘Turk’ as legal status 145–63, 217, 228–9, 238, 260 Türkeş, Alparslan 251–2 Turkic countries 13

Index Turkification 1, 17, 52, 54, 58, 60, 63, 95–142, 148, 151, 257, 259 definition 96 of economy 120–30 Turkish Hearths (Türk Ocakları) 52, 102–3, 110, 131–2 Turkish history 18, 45, 109–11, 146, 150, 197, 208, 214, 218, 258–9, 262 Turkish language 2, 5, 18, 43, 44, 46–7, 98–104, 131, 163–85, 197, 200–201, 208, 211–12, 250, 254, 258, 260, 262 alphabet 165, 174–6, 179–80 Arabic script 99 as mother tongue 100, 166 in broadcasting 145, 169–71 in commerce 57–9, 101 in courts 57, 145 in education 45, 47, 58, 100–101, 145, 166–9 in politics 145, 171–4 in public life 145 Latin script 99 numerals 99 official language 37–8, 47, 100–101, 165 purification 99 standardization 98–104 state language100, 164, 166–7, 174, 180 Sun Language Theory 99 Turkish Language Society 107–8, 154 Turkish names 174–81 Turkish nationalism 1, 4–5, 14–15, 17–18, 43–4, 49, 65, 95–142, 149–50, 153–4, 185, 189, 198, 200, 202, 225, 239, 244–5, 251–4, 258–60, 262 ‘Turkish race’ (ırk/soy) in law 145, 154–63, 218, 242–3 education 158–9 employment 156–8 extradition 161 immigration 156, 159–63 settlement 159 social security 158 Turkishness 1, 4–5, 43, 53, 71–2, 82, 97, 103, 145, 148, 151, 154, 163, 179, 202, 217, 219–20, 233, 242–8, 255, 257–8, 260, 262 Insulting Turkishness 220, 243–8

301

Turkism 49, 52, 71, 233, 251–4; see also Kemalism; Turanism; pan-Turkism Turkmenistan 160 Turkmens 30 Turks 3, 50, 60, 82, 121, 146, 154–63, 195, 198, 200, 220, 245, 258 Afghan Turks 155, 159, 162 Ahıska Turks 155, 162 Central Asian origins of 45, 108, 189, 257, 260 Hittite origins of 106, 109, 134 in Bulgaria 61, 83, 88, 155, 159–60, 162 in Cyprus 155, 160–61 in Greece 155–6, 159–60 in Iraq 155 nomads 45 Uygur Turks 155, 159 Türkiye Birleşik Komünist Partisi (TBKP, United Communist Party of Turkey) 153, 164, 190–96, 198–205, 207–9, 213–16, 218, 223, 226 Türkiye Emekçi Partisi (TEP, Proletarian Party of Turkey)150, 164, 195, 200–203, 207–9, 215, 217, 226 Türkiye İşçi Partisi (Labour Party of Turkey) 66, 150, 191, 195, 197, 200–202, 215 Türkiye Kurdistan Demokratik Parti (TKDP, Kurdistan Democrat Party of Turkey) 250 Ubaydin, Cemil 133 Ulvi, İzzet 101 Umumi Müfettişlikler, see Inspectorate Generals UN Human Rights Committee 173, 207, 214, 225 UN Special Rapporteur on Freedom of Religion or Belief 114–15 United States of America 129, 253 Unity Party (Birlik Partisi) 118 universities 107 Utku, Müfit 198 Vahdettin, Sultan 69 vakıfs, see foundations Venice Commission 159

302

Minorities and Nationalism in Turkish Law

Wallachia 24 Wallachians 25 Welfare Party (Refah Partisi) 147, 238 World War I 55, 61, 63, 65, 67, 73, 82–3, 105–6, 236, 248 Allied Powers 65, 67, 69, 76, 81 Greek army 65, 67 Montrose Armistice 65 World War II 106, 124, 204, 251

Yezidis 3, 21, 44, 86, 91, 203–4 Young Turks 55 Zaza language 170; see also Kurdish language zimmi status, see minorities, dhimmi status; religion, dhimmi status Zorlu, Fatin Rüştü 129