THE HUMAN RIGHTS ADVISORY BOARD
The Minority Rights and Cultural Rights Working Group Report
October 2004
The report which was updated and approved by the General Assembly on 1
October 2004 (signed by Working Group members on July 2003)
Presented to the Prime Ministry on 22 October 2004.
1) THE CONCEPT AND DEFINITION OF MINORITY IN THE WORLD
The concept of “minority” has been used in the world from the sixteenth
century down to the present day. When the form of government called
absolute monarchy was founded and when, approximately in the same
period, religious minorities came into being (Protestants in Catholic
monarchies and Catholics in Protestant monarchies), it became necessary
for these minorities to be mutually protected and only then did the
concept of minority emerge. After 1789, the concept of national minority
was to be added to that of religious minorities.
After the European states internally settled the question of protecting
these minorities, they turned outwards and engaged in efforts to protect
the non-Muslims within the Ottoman Empire and thereby to intervene in
Ottoman affairs. As a result, European countries came into conflict with
each other and this led to the emergence of the “Eastern Question”.
These international protection efforts started in the form of unilateral
edicts of protection (for example, the 1598 Edict of Nantes) and
bilateral treaties (for example, the 1699 Treaty of Karlowitz), and
moved in the nineteenth century to the phase of multilateral treaties
(for example, the 1856 Treaty of Paris) and, finally, the foundation of
the League of Nations in 1920 ushered in the period of “minority
protection under the guarantee of an international organisation”. The
world continues to be in that phase, and the international mechanism of
minority protection is conducted under the umbrella of such
organisations as the United Nations, the Council of Europe, the European
Union and the OSCE.
2) THE CONCEPT OF MINORITY IN TURKEY, ITS DEFINITION AND CULTURAL RIGHTS
Ever since the period of the League of Nations, the concept of minority
has been defined on three criteria: ethnic, linguistic and religious.
However, in 1923 in Lausanne, Turkey refused to accept all three of
these criteria and managed to have it accepted that its non-Muslim
citizens alone constituted a minority and were therefore entitled to
international protection of minorities.
Nevertheless, as nearly eighty years have passed since then and the
concept, definition and rights of minorities have considerably developed
in the meantime across the world, Turkey is now faced with serious
difficulties. Moreover, since 1990, minority rights have further widened
and strengthened in terms of both space and quality.
These difficulties arise not only from the limited definition in the
Treaty of Lausanne. By some sort of reservation it makes to
international conventions to which it accede, Turkey asserts an even
narrower principle. In accordance with this “Statement of
Interpretation”, Turkey asserts in the international area the
restrictions imposed by the 1982 Constitution as well as those in the
Treaty of Lausanne and declares that the rights granted by conventions
to which it accedes shall not apply in Turkey if they extend to any
minorities other than those recognised in the Treaty of Lausanne or if
they are among the rights prohibited by the 1982 Constitution.
Turkey’s difficulties in this area can be summed up in two points:
1) This restrictive position of Turkey is increasingly at variance with
the current trend in the world. After the interpretation of the UN Human
Rights Committee in 1990ies, the trend is not asking a country whether
there are any minorities in that country but accepting that there are
minorities in that state if there are groups who “differ in ethnic,
linguistic or religious terms and consider such difference to be an
inseparable part of their identity”. However, it is up to the discretion
of the nation-state whether to recognise or not to recognise these as
minorities.
Here, we should immediately note that the European Union has no demand
whatsoever from Turkey to give minority status and rights to different
cultural groups. The only requirement is equal treatment to all citizens
of different cultures.
2) Turkey does not duly implement the Treaty of Lausanne, either, and
thus violates even some of the provisions of this founding treaty of its
own.
To start with, the rights granted to the non-Muslims are not fully
implemented. These rights are allowed only to the three great minorities
(namely, the Armenians, the Jews and the Greeks) and denied to other
non-Muslims (for example, the right of education in Article 40 for the
Syriacs), while the rights granted, albeit without international
protection, by Part III of the Treaty of Lausanne to people other than
these non-Muslims are effectively ignored by the State.
One example of the former case is the so-called “1936 Declaration” and
one example of the latter case is the situation regarding Article 39/4
of the Treaty of Lausanne, which provides “all Turkish nationals” with
the right “to use any language they wish in commerce, in public and
private meetings and in all types of press and publication media”. In
other words, government offices are the only exception to that right. On
this subject, for example because nobody was allowed to make radio and
TV broadcasts in any language they wished, the third Package of
Harmonisation was adopted on 3 August 2002, but, since it was also not
implemented, it became necessary to adopt a seventh Package on 30 July
2003. At the end of November 2003, the Radio and Television High Board
has drafted a Regulation on this issue, but it also envisages
restrictions as to time and space.
However, if Article 39/4 of the Treaty of Lausanne was implemented, this
would automatically put an end to the troublesome controversies over the
issue of Kurdish broadcasting, which are unnecessarily wasting Turkey’s
time. Such a step would bring great benefits to Turkey in four respects:
1) It is certain that Turkey will soon have to abandon the “Statement of
Interpretation”, which has not been of benefit to Turkey, anyway. With
regard to the concept of national sovereignty, it is very important for
Turkey to do so voluntarily rather than as a result of EU pressure, and
this would be done by implementing the provisions of the Treaty of
Lausanne, which is Turkey’s own founding treaty.
2) It is inevitable that one day everyone will be able to make
broadcasts in any language. Instead of trying to pass new and
controversial laws in transition to that situation, the argument that
the provisions of the Treaty of Lausanne, which already have at least
constitutional effect, are being implemented would make life greatly
easier for the State.
3) It is obvious that, in order to avoid creation of minorities under
international protection, it is necessary to grant as wide freedoms are
possible to all citizens, and the Article in question refers to “all
Turkish nationals”.
4) There is no doubt that for the State in Turkey to treat its own
people more humanely would be greatly beneficial for “unity and
cohesion” in the country. A country of “compulsory citizens” is a weak
country. Making people happy and turning them into “voluntary citizens”
would strengthen the State itself. A citizen to be feared the least by
the State is a citizen whose rights it acknowledges.
3) RELEVANT LEGISLATION AND PRACTICE IN TURKEY
The legislation that concerns minorities and therefore cultural rights
in Turkey is more restrictive than the concept of minority and the
minority rights in the country. The main source of this is Article 3/1
of the Constitution: “The Turkish State, with its territory and nation,
is an indivisible entity. Its language is Turkish.”
The State being an indivisible entity with its territory is a very
natural and undisputed point throughout the world. However, the concept
of the “indivisible entity of the nation” is quite perverse to a
Westerner although it comes natural to us. It implies that the nation is
monolithic, effectively denying the various sub identities that make up
the nation and therefore contravening the essence of democracy. In the
area of international human rights, the criteria used in the restriction
of rights include “national security” and “territorial integrity” but
not the “indivisible entity of the nation”. In cases brought to it, the
European Court of Human Rights (ECHR) passes judgements of violation on
grounds that “asserting the existence of minorities in the country”
cannot be prevented.
In addition, it is entirely impossible to understand the phrase “Its
[the Turkish State’s] language is Turkish”. A State does not have a
language, but it has an official language, and citizens of that country
speak in various languages and broadcast in these languages in addition
to using that official language in their relations with the State. As a
matter of fact, in the 1961 Constitution this is expressed as: “The
official language is Turkish” (Article 3).
When the principle of the “indivisible integrity of the State with its
territory and nation”, which is repeated in countless articles of the
Constitution and laws, is interpreted in such a way as to reject sub
identities, the legislation in Turkey becomes legislation that tends to
assume that “recognition of sub identities” is meant to disturb the said
identity, and therefore to charge those who do so with “separatism and
subversion”. Important laws such as the Law for the Fight Against
Terrorism, the Law on the Duties and Powers of the Police, the Radio and
Television Law, the Law of Associations and the Law of Political Parties
heavily punish “creation of minorities by asserting the existence of
minorities based on ethnic and linguistic differences.”
When the Constitution is such, certain laws and regulations can bring
provisions which are not compatible at all with the way in which the
term “Turkish” was understood by Atatürk. For example, the “Regulation
Concerning Protection from Sabotage”, which was issued on 28 December
1988 and applied until 1991, included non-Muslim citizens of Turkey
within the category of people who could engage in acts of sabotage,
which consisted of “local foreigners (of Turkish nationality) within the
country and people of foreign race”. Article 24/1 of Law no. 625 on
Private Education Institutions, which concerns the appointment of
“Turkish chief deputy principals” to “private schools established by
foreigners”, is applied also to the schools for minority members who are
Turkish nationals. Moreover, Article 24/1 provides that this chief
deputy must be “of Turkish origin and Turkish nationality” and this
provision is still in force.
The fact that non-Muslim citizens were recorded in the book of
“foreigners” until the 1940s, that such citizens were taxed more heavily
than Muslims under the Wealth Tax Law of 1942 by implementing a list “G”
(the initial letter of the Turkish word for “non-Muslim”) which was not
in the Law, and that admission into military schools and even civilian
institutions was subject to the condition of “being a Turkish national
and a member of the Turkish race” until the 1950s, all this is not
simply a thing of the past. Even today, one does not encounter any
non-Muslim officials in state institutions, including especially the
Turkish Armed Forces, the Ministry of Foreign Affairs, the Police and
the National Intelligence Agency, excluding universities. These are
practices which seriously prevent Turkey from achieving the position it
deserves in the twenty-first century and which damage national unity
within the country, because they reflect the usage of the term “Turk” in
the context of race and even religion.
4) RELEVANT COURT JUDGEMENTS IN TURKEY
The Constitutional Court and Decisions for the Banning (Closing) of
Political Parties
With such legislation, the Constitutional Court often adopts decisions
to ban political parties.
Nevertheless, it is also true that the Constitutional Court, while
making interpretations, ignores certain fundamental concepts of law and
thus causes further damage to democracy in Turkey.
For example, in its decision to ban the DEP in June 1994, while stating
that “it would not be meaningful to turn unlimited rights into limited
rights and being part of the nation into being a member of a minority”,
the Court ignored the distinction between “negative/individual rights”
(equal rights granted to all citizens) and “positive/group rights”
(additional rights granted only to disadvantaged citizens). Moreover,
that statement by the Court is such as to regard citizens who belong to
the majority as first-class and those who belong to a minority as
second-class.
Again for example, in its decision to ban the TEP, the Constitutional
Court first stated that it was possible to speak of the existence of
different identities but maintained its former position by immediately
adding afterwards that the assertion of different identities would lead
to “a tendency to break away from the whole in the course of time”
(Decision banning the TEP, Case: 1979/1, Decision Number: 1980/1).
This attitude stems from a fear that recognition of the existence of
people from different ethnic, religious, cultural, etc. backgrounds in
Turkey would result in the fragmentation of the State.
Relevant Judgements by the Court of Cassation and the Council of State
Unfortunately, some citizens in Turkey are perceived as “foreigners”. In
addition to such a mistake being made among ordinary people, it is
observed that the Court of Cassation also made (and even insisted on)
this serious mistake in its judgements on the so-called “1936
Declaration” concerning non-Muslim foundations.
As a matter of fact, in a judgement delivered in 1974, the Court of
Cassation General Assembly of Civil Law Departments stated that
“.foreigners are prohibited from acquiring property in Turkey” and thus
decided that the Balýklý Greek Hospital Foundation, which is a
non-Muslim Turkish establishment, was not entitled to acquire property.
After the defence lawyers pointed to this mistake, the same Assembly now
stated “It is indeed mistaken to refer in our judgement of approval to
‘the laws prohibiting foreigners from acquiring property in Turkey’
given the fact that the defendant foundation was established by Turkish
citizens”, but added: “Therefore, it is now decided that the phrase in
question should be removed from the judgement by way of correction, but
otherwise. the appeal should be rejected” (The General Assembly of Civil
Law Departments, Case: 1971/2-820, Judgement: 1974/505, Date: 8 May
1974). In other words, the Court of Cassation effectively insisted on
its mistake. However, such mistakes are highly damaging to the concept
of nation and bring discredit to Turkey in the international area.
Although this question of the “1936 Declaration” was corrected in the
fourth Package of EU Harmonisation which was adopted on 2 January 2003,
the injustice still continues in practice. As a matter of fact, it
became necessary to deal with the same issue in the sixth Package of
Harmonisation which was adopted on 19 June 2003. In practical terms, no
result has yet been achieved.
Finally, although the 1936 Declaration has been abolished, it is simply
grave that the Treasury, in the legal action it brought in February 2003
against the Surp Haç Armenian High School Foundation, based its claims
on a decision of the “Minorities Sub-Committee at the Ministry of
Internal Affairs”. When it is a question of property owned by citizens
whose religion happens to differ from the majority religion, reference
is made to such a sub-committee, which is not part of the legal order of
the State. It is probably difficult to find a more striking example of
ethnic and religious discrimination.
As for the administrative judiciary, the Second Administrative Court of
Istanbul referred to a Turkish citizen of Greek-Orthodox origin as a
“citizen of the Republic of Turkey with foreign affiliation” (Case:
1995/1271, Judgement: 1996/552, Date: 17 April 1996). Moreover, when
this very interesting term, which was the basis of the Court’s
judgement, was brought to the attention of the Twelfth Department of the
Council of State, it was not regarded as a valid ground for appeal, and
the Department unanimously upheld the judgement of the local court
(Case: 1997/2217, Judgement:1997/4256, Date: 24 December 1997).
5) FOUNDATIONS OF THE SITUATION IN TURKEY
It is clear that the question of minorities, which we discuss here, is
considered from a very narrow and very mistaken viewpoint in Turkey. The
fundamental reasons for this viewpoint may be summarised as follows:
1) Instead of keeping track of developments in the world with regard to
the minority concept and law, Turkey is stuck with 1923 and moreover
interprets the Treaty of Lausanne incorrectly/deficiently.
2) Recognising the different identity of a minority and granting
minority rights are considered to be the same. However, the former
implies an objective situation while the latter is a matter of
discretion for the State.
3) It is thought that “internal self-determination”, which means
democracy, is the same as “external self-determination”, which means
fragmentation, and consequently the recognition of different identities
is held to be the same as the territorial fragmentation of the State.
4) Oneness and unity with respect to nation are considered to be the
same and it is not realised that the former is gradually destroying the
latter.
5) While speaking of the Turks as a nation, it is not realised that the
term “Turkish” also denotes an ethnic group.
These facts have two causes, one of which is theoretical and the other
historical/political.
The Theoretical Cause: The Relationship between the Super identity and
Sub identities in the Republic of Turkey
While replacing the Ottoman Empire after it collapsed, the Republic of
Turkey completely inherited the sub identities that existed within it
(the various ethnic, religious and other groups). However, while the
super identity in the Empire (the identity accorded by the State to its
citizens) was “Ottoman”, it emerged as “Turk” in the Republic of Turkey.
Thus, one of the sub identities was determined as the super identity.
This super identity tends to define the citizen with race and even with
religion. For example, when “our kinsfolk abroad” are mentioned, people
of ethnic Turkish origin are meant. In addition, it is clear that one
must also be a “Muslim” in order to be considered a “Turk” because our
non-Muslim compatriots are referred to not as “Turks” but simply as
“citizens”. In Turkey, nobody uses the word “Turk” when talking about,
say, a Greek or Jewish citizen because they are talking about a
non-Muslim citizen. Regrettable examples of this in state practices are
sufficiently given above.
The Historical and Political Cause: The Sèvres Syndrome
It is known that in the early 1990s Turkey suffered from a “Sèvres
Syndrome” that the country was about to disintegrate. It is disturbing,
and weakening the nation, that such an argument is still put forward and
even turned into paranoia. Those who argue that a Pontus State will be
founded in the Eastern Black Sea region, that Turkey is governed by the
Converts, or that the Phanar Patriarchate seeks to establish a
Vatican-like state in Istanbul, are trying to create such an atmosphere
of paranoia.
This atmosphere results in interpreting even the most innocent demands
for identity in Turkey as a desire to divide Turkey and wants to
immediately suppress them. This situation also invites interventions by
the major Western countries because it is contrary to democracy, which
Turkey has willingly agreed to implement effectively in order to join
the EU. Delaying of democracy in one’s own country through such paranoia
is not a service to Turkey. In particular, when it is a question of
reforms to be introduced concerning the use of Kurdish, there is
immediately talk about the fragmentation of Turkey, it is said that this
will give new life to terrorism, and efforts are made to prevent all
types of reform in such an atmosphere of paranoia. And those who do so
fail to see that some circles could again be led into perceiving
terrorism as the only option if reforms are hindered.
Nevertheless, the process of preparations for EU membership has brought
the question of minority rights in Turkey into a very positive process
despite everything. This process is a direct extension of the legal
reforms that Kemalism introduced in the 1920s and 1930s by “revolution
from above” to modernise the country.
Just as violent reactions from below emerged to this Kemalist revolution
from above in those years, reactions are arising today to these Packages
of Harmonisation. The mentality that feeds on the “Sèvres Paranoia” is
fiercely resisting the reforms.
CONCLUSION
Anatolia, which has been home to very different cultures for many
centuries, is also a cradle of great cultural and historical wealth.
Following the Ottoman period with its concept of Islamic brotherhood and
with a variety of identities, considerable steps were taken to create a
homogenous nation with a single culture in Turkey. However, the
different identities and cultures have continued to exist as a rich
mosaic on the territories of Anatolia.
That policy, which was very natural in the 1920s and 1930s when the
Kemalist revolution was made, is now outdated as a requirement of
Atatürk’s own thesis of “Contemporary Civilisation”. Today, contemporary
civilisation is not the Europe of the 1920s and 1930s but the Europe of
the 2000s. Now, it is essential to review the existing concept of
citizenship and to adopt the multi-identity, multi-cultural, democratic,
free and pluralistic social model of contemporary Europe.
Accordingly, it is necessary to define the political and legal status of
free, independent individuals who can easily use their creative
capacities and cultural rights and who are conscious of their rights and
obligations. This definition, which is sought to be made in a piecemeal
fashion through the EU Harmonisation Laws, is possible by screening all
of our laws and putting into practice the principles of:
a- The right to personal freedoms,
b- The right to enjoy freely economic and social opportunities,
c- The right to participate in government, and
d- The right to cultural pluralism.
In the context of implementing these principles:
1) The Constitution of the Republic of Turkey and all related laws must
be rewritten to give them a liberal, pluralistic and democratic content
and with the participation of all organisations of civil society.
2) Guarantees must be provided for the rights of people with a different
identity and culture to protect and develop their identities (such as
the rights of publication, self-expression and education) based on equal
citizenship.
3) The central government and local governments must be made transparent
and democratic, based on public participation and control.
4) International conventions and basic instruments that include the
universal norms of human rights and freedoms, particularly the Framework
Convention of the Council of Europe, must be signed, ratified and
implemented without reservation. From now, no reservations or statements
of interpretation that would mean a denial of the sub identities in
Turkey must be made to international conventions.