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Minority legislation and its implementation in Turkey

Wednesday 25 July 2007, by Baskın Oran

The minorities policy in Turkey is much more restrictive than the official view on the minority concept and rights.

The basic elements of this policy are verbally expressed in Art. 3/1 of the Constitution: “The Turkish State, with its territory and nation, is an indivisible entity. Its language is Turkish.” This paragraph which, according to Art. 4 of the Constitution, “shall not be amended, nor shall its amendment be proposed” should be studied closely.

The principle of the “Indivisible Unity of the Nation”

In this paragraph, it is quite natural for the territory of the Turkish State to be described as an indivisible entity. No state wants to get divided, and measures to be taken against situations which might lead to a division are legitimate. Since international law also recognizes this, all international instruments on minority rights take two standard measures to prevent division:
1) They use the term “the rights of individuals belonging to minority groups” to emphasize that the rights are not given to groups (collectivity) but to individuals;
2) They are always careful to insert in the texts the following clause: “These rights shall only be exercised with the condition that the territorial integrity of the country is _ respected ”.

But the term “integrity of the nation” is contrary to the very essence of democracy; as Professor Oktay Uygun put it at a symposium organized by Istanbul Bar Association in 2002: “The concept of the indivisibility of the nation is unfamiliar to the Europeans” . Because, to say that the nation cannot be divided and that it is monolithic in nature, suggests an assimilation policy shaped by the values and even by the oppressive domination of an ethnic/religious group that dominates the State. The monolithic approach expressed in this paragraph of the Constitution is an expression of the 1930 type nation-state attitude rectified by the September 12, 1980 military coup. This approach inevitably suggests that, except for the ones recognized by Lausanne, there are no minorities in the country and therefore there are practically no minority rights that can be spoken of, and any opposition to this suggestion is punished. This approach is repeated in numerous laws and Turkish legislation is full of examples of this kind of assimilationist nation-state approach. The following are among the many:
Terror is described in Art. 1 of the Anti-Terror Law no.3173 dated 1991 as follows: “(…)Terrorism is any kind of act done by one or more persons belonging to an organization with the aim of changing the characteristics of the Republic (…), damaging the indivisible unity of the State with its territory and nation (…).” Art. 8/1 of the same law has been amended on February 6, 2002 to read as follows (this article is abolished by the Sixth EU Harmonization Package in July 2003):
“Written, oral or visual propaganda and assemblies, meetings and demonstrations aimed at damaging the indivisible unity of the Turkish Republic with its territory and nation will be punished (…). If this act is committed in a form that encourages the use of terrorist methods, the sentence will be increased by a third and in case of repeated commitment of this act, the penalty of imprisonment will not be converted to money penalty.”
“The indivisible unity of the state with its territory and nation” is also mentioned in the following laws: Art. 8 and Annexed Art. 7 of Law No. 2559 dated 1934 on the Duties and Authority of the Police, Art. 5/A of the Law no.2954 on Turkish Radio and Television, Art. no. 4 of Law No. 3984 on the Establishment and Broadcasting of Radio Stations and Television Channels, Arts. 44 and 55 of Law no. 2908 on Associations and Arts. 78 and 101 of Law No. 2820 on Political Parties.
The important fact in that matter is the following: Claiming that there are minority groups in Turkey based on ethnic and linguistic differences leads to the assumption that this “integrity” is threatened and those who claim it are punished for “separatism and/or destructiveness”. As a matter of fact, as will be explained later, the Constitutional Court has banned political parties for violation of the principle of “the indivisible unity of the state with its territory and nation” and for violating the prohibition against “creating minority groups”.
The said “prohibition (hence, the crime act) of creating minority groups” is expressed in the Law on Associations and Law on Political Parties. Until the amendment on January 2, 2003, Art. 5 of the Law on Associations read as follows: “It is forbidden to found an association with the aim of claiming that there are minority groups in the Republic of Turkey based on racial, religious, sectarian, cultural or linguistic differences or of creating a minority group by protecting, developing or spreading any other language and culture than Turkish (…)”. After the amendment on January 2, 2003, this article has been mitigated to a certain extent: “No association can be founded with the aim of creating differences of race, religion, sect or region or creating minorities based on these differences and with the aim of changing the unitary state structure of the Republic of Turkey (…); in violation of (…) the national security and the public order.”
Art. 81 of the Law on Political Parties is a better example in this matter :
“Political parties shall not a) claim that there are minority groups in the Republic of Turkey based on the differences of (…); b) aim at and work for damaging the integrity of the nation by creating minority groups in the Republic of Turkey by protecting, developing and spreading other languages and cultures than Turkish.”
These restrictions in the Law on Political Parties are derived from Arts. 68 and 69 of the Constitution. Art. 68 reads: “The statutes and programs, as well as the activities of political parties shall not be in conflict with the independence of the State, its indivisible integrity with its territory and nation (…)”. And Art. 69 stipulates that the political party will be dissolved “if the Constitutional Court determines that the party in question has become a center for the execution of such activities.”

The Principle that “The Language of Turkey is Turkish”
The concept of “the language of the state” is more against the principles of democracy and even of nature. A state can only have an “official language” and people living in that state speak and write various languages, including the official one.
Law no. 2932 dated 1983 enacted by the September 12 military administration probably constitutes the best example of the harm that can be done to democracy by the desire to protect “the indivisible integrity of the nation” in the linguistic context. Art. 2 of the law prohibited “the declaration, circulation and publication of ideas in a language which is not the first official language of a State recognized by Turkey.” Here, the fear that speaking and broadcasting in Kurdish will damage the indivisible integrity of the nation is so strong that the effort put in the wording of the article to avoid the word “Kurdish” is remarkable. The second official language of Iraq was Kurdish at the period and Turkey would not recognize a possible state of Kurdistan. The phrase in Art. 3 “Mother tongue of the Turkish citizens is Turkish language,” leaves us with no need to comment on.
This law, which is a clear violation of Art. 39/4 of Lausanne was abolished in 1991, but Art. 26 (“No language prohibited by law shall be used in the expression and dissemination of thought”) and Art. 28 (“Publication shall not be made in any language prohibited by law”) of the Constitution, on the grounds of which this law was enacted, resisted until 2001. However, the same approach still prevails in various forms in numerous laws.
Art. 42 of the Constitution reads as follows: "[…] no language other than Turkish may be used or taught in institutions of learning for Turkish citizens as a native language”.
According to Art. 43/3 of the Law on Political Parties, “[…] Applicants for parliamentary candidate positions may not use any language or writing other than Turkish.” According to Art. 81, “political parties may not use any language other than Turkish in the preparation and dissemination of their by-laws and programs, in their party conventions, in their open-air and in-door rallies and in their propaganda. They may not use or distribute banners, placards, records, audio and video tapes, brochures and declarations written in languages other than Turkish.” These clauses constitute an open violation of the Art. 39/4 of Lausanne.
Art. 16 of the Law on Census (no. 1587) states “A child is named by his/her parents. However, names that are not appropriate to our national culture will not be given.” This restriction aiming to prevent Kurdish names wasvalid until June 2003 when it was amended by the Sixth EU Harmonization Package as to prevent immoral names only.It is difficult to imagine an example that would alienate more people who belong to an ethnic group other than Turkish. On the other hand, the prevailing approach not only bans Kurdish names but names such as “Melisa” or “Eftalya” It is clear that the main aim is not to prevent armed Kurdish nationalism, which has flared rebellions many times, but to prevent cultural diversity itself. The nation-state mentality of the 1930s is preserved.

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