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THE TURKISH CONSTITUTION AND THE KURDISH QUESTION
Henri Barkey, Direnc Kadioglu Commentary, August 1, 2011
http://carnegieendowment.org/2011/08/01/turkish-constitution-and-kurdish-question/4el4#
Turkey's Kurdish question is that country's single most important
problem. It is and has always been a political problem. Successive
Turkish governments have sought to resolve it either through repressive
military and occasionally economic means. The recently concluded June
12 Turkish elections promised to usher in a new approach. This is
because, in the run-up to the elections, a consensus had emerged that
the newly elected parliament would start the process of writing a new
constitution. The current one was authored in 1982 by a military junta.
Turkey has changed greatly since 1982; in 2011, it is a far more
diverse, prosperous, and sophisticated society. It is an economic
power to reckon with and a candidate for European membership. The
1982 constitution, meanwhile, is ideological and authoritarian in
intent and construction. By privileging the interests of the state
over the individual, it has proven to be singularly inadequate at
meeting Turkey's current needs and challenges and an impediment to both
greater democratization and the resolution of the Kurdish question.
During the election campaign, Turkey's prime minister, Recep Tayyip
Erdogan, promised to work on a new civilian constitution immediately
after a new parliament convened. In his victory speech, he reiterated
this promise. The prospect of a new civilian constitution has led
to rising expectations among Turkish Kurds who have always seen
this document as among the most important hurdles to their becoming
full-fledged citizens of the republic. The Kurds have consistently
argued that the 1982 constitution is not only undemocratic but also
alienating, because of its abundant and overt characterization of
citizens as being solely members of the "Turkish nation."
The prospect of a new constitution has spurred numerous groups--from
political parties, such as the pro-Kurdish Peace and Democracy Party
(BDP), to think tanks, business organizations, and nongovernmental
organizations (NGOs)--to start working on their own constitutional
proposals. Soon after its 2007 electoral victory, the ruling Justice
and Development Party (AKP) commissioned a draft constitutional
proposal from a group of eminent jurists and academics. In the tumult
that ensued following the 2007 elections, including an attempt to
close it down, the AKP abandoned its efforts. In the ensuing years,
however, the atmosphere became more conducive to rewriting the
constitution. Prosecutors called in the leaders of the 1980 military
coup for questioning; for the first time, officials cast doubt over
the legitimacy of the intervention.
Still, the politics of reform are complicated. The June 12 elections
resulted in big wins for both the ruling AKP and the BDP. The latter
surprised everyone by electing many more representatives to parliament
than expected. In a very short period of time, however, what appeared
to be a propitious atmosphere to begin the hard process of bargaining
over the constitution disappeared, as a number of BDP parliamentarians
were prevented from taking their seats by judicial authorities. This,
in turn, provoked a parliamentary boycott by the BDP. Then, as if the
atmosphere was not sufficiently tense, a July 14 firefight between
the army and presumed Kurdistan Workers' Party (PKK) fighters erupted;
thirteen soldiers and seven insurgents were killed.
The process of rewriting the constitution and reconciling Kurdish
grievances will be subject to many more ups and downs. We aim to
provide the reforms' bare essentials. This is not meant to be an
exhaustive list, nor do we intend to offer a solution to all of
the problems associated with either the Kurdish question or the
furtherance of democracy in Turkey. It is safe to argue that the
continued democratization of Turkey is ultimately the best guarantee to
resolve the Kurdish issue. Instead, we seek to identify the problematic
aspects of the current constitution as a guide for what to expect
from a new document.
Political actors will undoubtedly bring their own agendas into the
process and, therefore, complicate it. What position the ruling AKP
will assume is difficult to ascertain at the moment. This is primarily
because Erdogan has been contemplating a systemic transformation of
Turkey from a parliamentary to a semi-presidential system. As a result,
a discussion of the political modalities falls outside our scope here.
When it comes to change, Kurds make three broad sets of demands:
change the constitution's emphasis on Turkish ethnicity, remove the
prohibitions on cultural and political rights, and reduce excessive
administrative centralization. After analyzing the influence of
previous constitutions on the Kurdish issue, we focus on these three
sets of changes.
Constitutions: Past and Present
Turkey has had four constitutions, starting with the one promulgated
in 1921. The others were introduced in 1924, 1961, and 1982. All
four were either drafted under extraordinary circumstances or by
authoritarian regimes.
The 1921 document, drafted amid the struggle against the victorious
World War I powers that invaded the Anatolian heartland, served as
a preliminary document intended to unify all inhabitants against the
foreigners. Members of the present-day Kurdish national movement have
often commented that this was the only constitutional document that
provided them with a path to recognition and equal citizenship. If
Kurds have spoken approvingly of the 1921 constitution1 it is because
the document made no reference to Turks as a nation or suggested that
the citizens of Turkey were Turks. Sovereignty, it simply stated,
belonged to the people. Most importantly, the constitution also
contained provisions for provincial autonomy.
Following the victory of Kemal Ataturk and his nationalist forces in
1922, the nascent Turkish republic introduced a new constitution in
1924 that undid the inclusive aspects of the 1921 document. The need
for Turkish-Kurdish collaboration to defeat the foreign invaders
had passed, and nation-building and centralization had became the
new focus. This came at the expense of ethnic harmony in a part
of the world known for its mosaic of peoples, religions, cultures,
and ethnicities. The 1924 constitution set forth the parameters of
an overly controlling state where the center, Ankara--unwilling to
trust its periphery--assumed complete decision-making power down to
the minutiae.
A military regime ushered in a new constitution in 1961. While
maintaining all of the restrictive provisions on the Kurds, the
1961 document marked an important break with the past by granting
collective bargaining rights to workers and providing universities with
significant autonomy. It also institutionalized the political role of
the armed forces through the creation of a military-dominated National
Security Council (NSC) and retained the previous uncompromising
interpretations of secularism and of Turkish ethnicity.
When student unrest and political violence broke out in Turkey at
the end of the 1960s, the military--having once again forced out
a civilian government in 1971--amended the 1961 constitution to
strengthen the power of the state and curtail individual freedoms.
These amendments did not prevent the reemergence of political violence
and Kurdish mobilization in southeastern towns and provinces, however.
Hence, in 1980, generals once again overthrew the civilian government.
The new junta sought to address Turkey's problems by introducing
a brand-new constitution. Not unlike its Latin American corporatist
counterparts, the regime, through the 1982 constitution, imposed tight
controls on freedom of speech, organizations, and political activities.
The document also sought to impose an ideological framework based
on Ataturk's 1930s reforms. Together with a set of accompanying
legislation, the military weaved an intricate web of relationships
with political parties, the civilian bureaucracy, the media, and
academia that stifled dissent and maintained control. Yet, stability
remained elusive in the Kurdish provinces. The outcome of the post-1980
draconian order was to embolden a new, long-lasting Kurdish rebellion,
led by the PKK.
This edifice constructed by the military regime started to unravel
with the implementation of EU reforms, the 2002 rise of the AKP,
increased prosperity, diversification of Turkish society, and its
and mistakes committed by an overconfident and overbearing military
establishment. New elites, an EU-supported political opening, rising
globalization, and a more self-confident civil society began to
gnaw at the cornerstone of the illiberal conception of the state,
the 1982 constitution.
Since 1982, there have been numerous attempts to alter the
constitution--including the most recent one implemented after a
nationwide referendum on September 12, 2010--but none has transformed
its essential authoritarian character. The current constitution
falls well short of EU requirements and does not live up to the legal
engagements undertaken by Turkey, such as the 1990 Charter of Paris,
which states "...that the ethnic, cultural, linguistic and religious
identity of national minorities will be protected and that persons
belonging to national minorities have the right freely to express,
preserve and develop that identity without any discrimination and in
full equality before the law."2
The Constitution and the Kurdish Question
When asked, most Kurds express three broad sets of criticisms of
the current constitution. First, it relies on Turkish ethnicity
to define citizenship. Second, it prevents Kurds from expressing
themselves in their own language and furthering their own culture and
political interests, through impediments to education, speech, and/or
broadcasting. Third, it preserves the state's centralized character,
which has a stultifying effect on local decision-making. While the
first two of these criticisms are specific to the Kurdish issue,
remedying the third--the over-centralization of the political and
administrative system--would benefit all of Turkey's citizens.
1. The State, Ethnicity, and Citizenship
The preamble to the current constitution sets the forth the ideological
tone and spirit of the document. It is also where the first encounter
with Turkish ethnic identity occurs. The first paragraph states:
In line with the concept of nationalism and the reforms and principles
introduced by the founder of the Republic of Turkey, Ataturk, the
immortal leader and the unrivalled hero, this Constitution, which
affirms the eternal existence of the Turkish nation and motherland
and the indivisible unity of the [noble] Turkish state, embodies:3
The document proceeds to affirm the existence of "Turkish historical
and moral values" and the principle that sovereignty is "vested
fully and unconditionally in the Turkish nation." It concludes by
stating, "it [the constitution] is entrusted by the Turkish nation
to the patriotism and nationalism of its democracy-loving sons and
daughters."4
Despite the interspersed presence of references to Turkish citizenship
and the notion of equality before the law, the document's intent and
message is unmistakable. Its references to "Ataturkist nationalism,"
a "Turkish existence," and the history of Turkishness, however, give
it an exclusive ethnic spirit. It presupposes that there is only
one form of nationalist feeling and only one ideology to which all
citizens must adhere. The preamble in essence assumes the existence of
only one ethnic and cultural identity.5 By sanctifying the founding
leader Ataturk and his philosophy and reforms, the preamble suggests
a vision confined to a time and space that have long disappeared.
The need for a preamble has been questioned by a majority of the
groups offering alternative versions. With the exception of the Bar
Association--whose proposed preamble retains many of the references to
Ataturk's reforms and ideology--the emerging civil society consensus is
for a short and neutral paragraph that emphasizes the rights of Turkish
citizens in lieu of a preamble.6 The panel put together by Professor
Ergun Ozbudun at Erdogan's request following the 2007 elections also
favored a short paragraph that emphasizes the inalienable rights of
individuals, although it, too, pays respect to Ataturk's grand goals.7
Ataturk remains a potent and singularly important symbol. He is the
founder of the modern Turkish state, and even Kurdish leaders have
argued that references to him are acceptable. The problem emerges when
his legacy is codified in a strict--though still ambiguous--official
ideology. Its use as the official ideology has been at the root of
state authorities' authoritarian behavior.
Most civil society groups have suggested relatively short preambles,
arguing for simplicity and universality. Both DISK, the Confederation
of Revolutionary Workers' Syndicates--one of the two most important
labor union confederations--and the December 10 Movement resolve the
ethnic identity issue by invoking a rather unique and all-encompassing
concept: "the successors to Anatolian civilizations."8
European societies, including those with ethnic minorities, have
selected to include short preambles that emphasize universal goals and
principles. In Spain, for instance, the preamble states that the will
of the nation is to "protect all Spaniards and peoples of Spain in the
exercise [of] human rights, their cultures and traditions, languages,
and institutions."9 By contrast, Romania has no preamble. Bulgaria
references universal human values. The Hungarian document simply
states that Hungary is to be a parliamentary multi-party democracy
with a social-market economy.
The problems for Kurds, as an ethnic group, are not limited to the
preamble. The constitution's first three articles define Turkey as a
secular republic with Ankara as its capital, Turkish as its language,
and a specific national anthem. Article 2, which states that the
republic is "loyal to the nationalism of Ataturk," also references
the "fundamental tenets set forth in the preamble." These articles,
together with the preamble, have helped to shape the spirit and
content of the constitution. What makes them especially significant
is that they have been made bulletproof by Article 4, which states
that the first three articles are immutable. Article 4, in fact,
even prohibits "contemplating any change" to them.10
Among other problematic articles are the ones concerning citizenship.
Article 66 states that "everyone bound to the Turkish state through
the bond of citizenship is a Turk. The child of a Turkish father or a
Turkish mother is a Turk."11 The article, which also establishes the
conditions under which citizenship is acquired or lost, does not in
fact define citizenship as a right. Instead, citizenship equals being
a "Turk." Although Turkish officials insist that the usage of "Turk"
is intended as an adjective and does not denote an ethnic identity,
citizens who do not consider themselves Turkish find this definition
disparaging.12
Paradoxically, the 1924 constitution was more inclusive than the
current one; while it considered all citizens to be Turks, it stressed
that the concept of citizenship should not discriminate along religious
or racial lines.13 In practice, however, this distinction did not
help Kurds and other minorities in Turkey, as the new state tried
furiously to assimilate them even as it denied their existence.
Hence, the current efforts by civil society groups and pro-Kurdish
political activists and politicians are targeted at defining
"constitutional citizenship." Accordingly, citizenship is defined
as a "fundamental right." Not only is constitutional citizenship
independent of race, religion, ethnicity, gender, or culture,
it is meant to respect a society's natural diversity and prevent
state authorities from pursuing policies designed to assimilate
minorities.14 As a fundamental right, state authorities, therefore,
cannot revoke citizenship. This idea runs counter to current practice;
the 1982 constitution allows the state to revoke the citizenship
of anyone deemed to have acted incompatibly with devotion to the
motherland. The ambiguity implicit in this formulation has empowered
state authorities to revoke the citizenship of numerous dissidents.
The preamble and Article 66 are not the only articles that privilege
the "Turkish Nation." Article 5 is among the most comprehensive
and important ones because it defines the role and duties of the
state. It reads, "[t]he fundamental aims and duties of the state are:
to safeguard the independence and integrity of the Turkish Nation, the
indivisibility of the country, the Republic and democracy. . ." The
preeminence accorded to the state--an ambiguous concept at best--and
the projection of goals and obligations on to it is one of the core
problematic conceptualizations in the Turkish constitution.
By adopting an expansive approach to the state, the constitution in
effect created an impossible situation. On the one hand, it opened
the way for arbitrary interpretations of state-individual relations
and, therefore, encumbered the individual with obligations it cannot
possibly meet, such as acting in a "manner compatible with devotion to
the motherland." On the other hand, it also burdened the state with
obligations that can sound absurd. For instance, Article 59 requires
the state to develop sporting opportunities for its citizens and to
"protect the successful" sportsman. None of the European constitutions
approaches the state as a living institution with rights and duties.
Other articles also contain references to the "Turkish Nation," such as
Article 6 on sovereignty, Article 7 on the powers of the Grand National
Assembly, and Article 9 on the exercise of judicial power. In each
case, the Turkish Nation is singled out. These references, however,
are easily remedied by dropping the word "Turkish" without modifying
the articles' content. Still, given the strength of nationalist
forces and ideas, few politicians will likely dare to support such
a simple wording change. Altering other articles is even harder to
contemplate because they lie on the fault line of Turkish politics,
and many people will fight to preserve the ethnic character of the
state. In reality, politics will make it impossible for retail-style
amendments; only a wholesale change would ease the public's acceptance.
2. Cultural and Political Rights
Since the beginning of the republic, Kurds have complained that the
Turkish state's assimilation campaign and the prohibition on the use
of their language is a way to extinguish their culture. Starting in
the 1990s, many of the restrictions on the use of Kurdish have been
slowly and, in a de facto manner, removed or simply ignored.
Nevertheless, the constitution is replete with articles that prevent
the use of Kurdish. Many of the restrictions on cultural rights are
indistinguishable from political rights. Devising a line between what
is cultural and what is political has bedeviled the authorities and
their critics. For instance, does the right to broadcast in Kurdish
constitute a cultural or a political right, especially if the content
is of political nature?15
For Kurds, the notion of cultural rights, as distinct from political
rights, has to do with education and the maintenance of Kurdish
traditions as distinct from Turkish ones. In other words, it is about
the right to call a particular local dance Kurdish (and not Turkish)
or even the right to denote the region where one lives as Kurdistan
or use the original Kurdish name for a town and hamlet. The main
concern, however, remains the use, study, and future development of
the Kurdish language.
The Turkish government, on the other hand, is still conflicted about
the use of Kurdish. To compete with a European-based, pro-PKK Kurdish
television station that broadcasts in Kurdish, the government started
its own Kurdish-language channel, Kanal Shesh, which naturally is
devoid of any political content. Paradoxically, the official minutes
of Turkish Grand National Assembly's daily meetings will not reflect
anything any member of parliament may have uttered in Kurdish because
it is "an unidentified language."
None of the constitutional proposals advanced by the myriad of groups
in Turkey, including the pro-Kurdish BDP, takes issue with Turkish as
the official language. However, stating that the Turkish republic's
"official language is Turkish" is different than the stipulation in
the 1982 constitution that defined the state's language to be Turkish.
Having an official language does not prevent the use of other
languages as the need arises. Spain's official language is Spanish,
but clearly it does not prohibit the use of other languages, such as
Catalan or Basque. An official language is a language that has been
adopted legally, in this case by a parliament. Parliament, again as
in the case of Spain, can allow other languages to be used.
Currently, the most contentious dispute is over restrictive clauses
such as Article 42, which explicitly bans the "teaching of any language
other than Turkish as a mother tongue to Turkish citizens."
Moreover, the constitution also stated that "foreign languages" to be
taught in institutions of learning should be determined by law. In
practice, this meant that Kurdish was never authorized, while other
languages, such as Greek and Armenian, were allowed. These provisions
of the constitution and their implementation directly contradict
the 1923 Treaty of Lausanne, in which the Turkish state guaranteed
that "no restrictions shall be imposed on the free use by any Turkish
national of any language in private intercourse, in commerce, religion,
in the press, or in publications of any kind or at public meetings."16
Although many of the prohibitions on the use of Kurdish are slowly
being dismantled or purposefully ignored, many of the laws emanating
from the constitution, such as electoral laws, severely restrict the
use of Kurdish for political purposes. To date, using Kurdish during
a political campaign--including addressing a Kurdish-speaking audience
in Kurdish--is prohibited. Ahmet Turk, the most senior of the Kurdish
politicians, was recently charged with precisely this crime. The
prosecutor has demanded that he be sentenced to thirty-five years
in prison.
In addition, the constitution prohibits political parties from
engaging in certain activities. The ambiguous nature of these
proscriptions--which in practice have allowed any prosecutor or set of
judges to interpret any speech or act as a violation of the law--has
enabled the judiciary to also ban political parties at will. It
is the Kurdish parties that have borne the brunt of such actions,
as the current BDP represents the eighth such party in the last
twenty years that Kurds have established. All of its predecessors
were systematically closed down by the state.
Similarly, Article 79 of the constitution creates the Supreme Electoral
Council (YSK), which is comprised of members of the Yargitay (Supreme
Court) and the Danistay (Council of State). The YSK's decisions have
become more politicized and capricious with time. The constitution
prevents any legal challenge to YSK decisions. Hence, Kurdish groups
tend to perceive the YSK as another instrument designed to prevent
their right to representation. The crises over Kurdish representation
before and after the 2011 elections have once again demonstrated
the YSK's erratic nature. It banned and then unbanned individual
candidates, and disqualified elected members from assuming their seats
in parliament. Each time its decisions were characterized as fully
complying with the laws and rules promulgated by the constitution.
Cultural and political rights intersect because many of the political
demands articulated by Kurds concern the use of Kurdish not just in
the political sphere but also in education. Though no unanimity of
views among Kurds exists, at a minimum they want to see some form
of education in Kurdish in the public school system. Some Kurds go
further and demand a curriculum in Kurdish, with some of the courses
taught in Turkish. While Kurds have been discussing this question
for some time, the Turkish public is woefully unprepared for this
change--it will be an arduous, step-by-step process. Altering the
constitution will at least allow for the beginning of a conversation.
3. Decentralization and Local Governments
Turkey remains one of the most centralized states in the West. Almost
every decision or appointment is made in Ankara. Local governments have
few, if any, powers and depend completely on the central government
for their finances. The central government also appoints provincial
governors, all police officers, judges, teachers, and health service
personnel. The monopolization of decision-making power in Ankara
originated from the founders' fear of the periphery. In their mind,
the periphery stood in stark contrast with the modernity they sought
to introduce; the periphery is where the Islamist and Kurdish ethnic
strands flourished.
The underdeveloped Kurdish-populated provinces have traditionally
been perceived by central government personnel as the least desirable
location in which to serve, and, in everyday parlance, being sent
to the east and southeast is tantamount to internal exile. Not
surprisingly, therefore, the relationship between locals and centrally
appointed functionaries has traditionally been very poor. Officials
appointed do not want to be there and have few, if any, bonds to
the local population, often resulting in poor relations. Language
problems add another layer of complexity and miscommunication to
civil servant-citizen interactions.
Even in non-Kurdish majority provinces, the centralization of
decision-making in Ankara makes for poor governance and causes
resentment, though not on the scale and depth of the Kurdish
provinces. Members of parliament, for instance, have no local offices
and their constituents routinely must travel to Ankara to pursue
favors, requests, or interventions from their representatives.
Moreover, it is unrealistic to expect civil servants ensconced in
Ankara to have a better understanding of and appreciation for local
conditions than the elected local officials. Hence, an element
of decentralization would serve the whole country well, not just
the Kurdish-populated regions. Turkey remains obligated under the
European Charter of Local Self-Government to reform its administrative
structure.
Additionally, Article 127 of the constitution sets broad parameters
for the central government's supervisory powers over municipal
governments. Most importantly, it invests the interior minister with
the power to remove any elected official accused of violating the law.
In practice, this has been applied disproportionately against the
mayors and councilors in the Kurdish provinces. For example, the
mayor of the Sur municipality in Diyarbakir, Abdullah Demirtas,
was removed from office in 2007 for providing basic services to
residents in Kurdish.17 The Council of Europe's Congress of Local and
Regional Authorities has admonished Turkey for failing to provide
elected municipal leaders a setting free of political intimidation
and enacting new laws to facilitate local decision-making.
Many of the constitutional proposals currently in circulation stress
the need to decentralize the Turkish administrative system to improve
governance, provide greater say to local citizens, and advance
inter-ethnic relations. TESEV, an Istanbul-based independent think
tank, has argued that a one-size-fits-all approach to centralization
cannot account for regional variance and specific local problems.
Ethnic and identity challenges are more likely to be addressed
successfully within decentralized political structures.18
The main impediment to any decentralization effort is the fear that
it may mark the beginning of regional autonomy in line with the Iraqi
Kurdistan Regional Government and even Kurdish independence. In an
attempt to force the issue publicly, Kurdish groups in the southeast
have articulated and unofficially adopted a proposal they term
Democratic Autonomy. This primarily consists of small but cascading
steps to transfer some powers to localities. While fears related to the
devolution of powers are understandable, the need for better governance
and delivery of services is a global trend likely to trump Ankara's
desire to maintain control. There are also many examples around the
world where autonomy has worked well--despite contentious relations
between the center and provinces--without resulting in independence.
Conclusion
Turkish constitutions, with the exception of short-lived 1921
document, have hindered the integration of Kurds as equal citizens
in Turkey. A new constitution represents the first step and, without
it, Turkey will always live with internal dissension, violence, and
instability. Moreover, it is also quite clear that Kurdish political
groups are no longer waiting for the government to act. They are intent
on pushing for what they believe to be their rights by devising new
arrangements (democratic autonomy), articulating specific demands
(education in the Kurdish language), and mobilizing politically (BDP).
We have outlined some of the minimum modifications necessary to resolve
the Kurdish issue. However, three other important requirements are
necessary to move forward.
First, simply altering articles or rendering them ethnically neutral
will not suffice. While a new constitution must be mindful of the
need to integrate groups and minorities who have been excluded from
the mainstream body politic--especially the Kurds and the Alevis,
a heterodox religious group--it must first and foremost be democratic
in spirit and content.
Second, the new constitution must appeal to a large, if not
overwhelming, majority of Turkey's citizens. The new constitution
cannot just be written inside the parliament or solely approved by that
body, however representative it may be. In view of the wide interest
the issue has received and the numerous proposals submitted by civil
society groups, the political system must secure a buy-in from society.
Third, the 1982 constitution, with its 177 articles, is an unwieldy
and unnecessarily long document. Still, many of the difficulties
facing Turkey in resolving its Kurdish question reside in the laws
that were promulgated over the years. These laws, which are generally
restrictive, have their origins in the constitution. For instance,
electoral laws--specifically the 10-percent minimum threshold
that political parties must cross for their representatives to get
elected--is not in the constitution but was enacted by the legislature.
Similarly, many of the laws regarding education, political parties,
the penal code, and other issues must also be completely overhauled
to further the democratization process. Changing the constitution is
just the first step.
Writing--but especially airing and approving--a new constitution will
take time. Once a new document is approved, the task of transforming
all of the laws so that they concur with the new constitution will also
take time. In the meantime, existing constitutional bodies--including
the Constitutional Court--and stakeholders vested in the current
system, be they civilian or military, will likely resist.
The road ahead remains long and arduous.
________________________________
1. Even the commander of the Kurdistan Workers' Party (PKK) in northern
Iraq, in an interview with a Turkish journalist, argued that the new
constitution should be inspired by 1921 constitution, Serdar Akinan,
"1921 anayasası esas alınırsa sorun cözulur," Aksam, May 21, 2011.
2. The Charter of Paris for a New Europe, p. 4.
3. The original document in Turkish refers to the noble Turkish state.
The official English version omits this word.
4. The official translation into English of the constitution is
quite poor and misses nuances and omits critical concepts. A better
translation of the original document, though still awkward, could be
the following, "[the constitution] is entrusted by the Turkish nation
to the patriotic and nationalist sentiments of a Turkish progeny in
love with democracy."
5. Dilek Kurban and Yilmaz Ensaroglu, Kurt Sorunu'nun Cozumune Dogru:
Anyasal ve Yasal Oneriler, (Istabul: TESEV, 2010), p. 23.
6. Turkiye Barolar Birligi, Turkiye Cumhuriyeti Anayasa Onerisi
(Ankara, Turkiye Barolar Birligi, 2007).
7. "Iste Anayasa Taslaginin Tam Metni," Radikal September 12, 2007.
8. DISK, ""Ozgurlukcu, Eşitlikci, Demokratik ve Sosyal Bir
Anayasa IÌ~Gcin Temel IÌ~Glkeler" (DISK: Istanbul, 2009) and 10
Aralik Hareketi, "Neden Yeni Bir Anayasa? Nasil Bir Yeni Anayasa,"
http://www.10aralik.org.tr/
9. Constitution of Spain,
http://www.senado.es/constitu_i/indices/consti_ing.pdf
10. Selahattin Demirtas, the co-leader of the pro-Kurdish Peace and
Democracy Party, BDP, recently argued that changing the first four
articles of the constitution has to be the starting point of any
reform attempt, Milliyet, June 16, 2011.
11.
http://www.anayasa.gov.tr/images/loaded/pdf_dosyalari/THE_CONSTITUTION_OF_THE_REPUBLIC_OF_TURKEY.pdf
12. Kurban and Ensarioglu p. 26
13. Ibid.
14. Vahap Coskun, "Anayasal vatandaslik," Köpru Dergisi No. 105,
(Winter 2009).
15. Interestingly, even Kenan Evren, the head of the junta that
overthrew the civilian government in 1980 and remained president until
1989, has admitted that banning the use of Kurdish by the 1980-83
military government was one of the mistakes he most regretted. Fikret
Bila, "Evren, Kurtceyi nasıl yasakladı?" Milliyet, June 9, 2011.
16. Treaty of Lausanne Article 39, http://www.hri.org/docs/lausanne/
17. Congress of Local and Regional Authorities of the Council of
Europe, "Local and Regional Democracy in Turkey," Monitoring Committee
Report, March 1, 2011, p. 14.
18. TESEV, Turkiye'nin Yeni Anayasasina Dogru, (Istanbul: TESEV,
2011), pp. 32-33.
http://carnegieendowment.org/2011/08/01/turkish-constitution-and-kurdish-question/4el4#
Henri Barkey, Direnc Kadioglu Commentary, August 1, 2011
http://carnegieendowment.org/2011/08/01/turkish-constitution-and-kurdish-question/4el4#
Turkey's Kurdish question is that country's single most important
problem. It is and has always been a political problem. Successive
Turkish governments have sought to resolve it either through repressive
military and occasionally economic means. The recently concluded June
12 Turkish elections promised to usher in a new approach. This is
because, in the run-up to the elections, a consensus had emerged that
the newly elected parliament would start the process of writing a new
constitution. The current one was authored in 1982 by a military junta.
Turkey has changed greatly since 1982; in 2011, it is a far more
diverse, prosperous, and sophisticated society. It is an economic
power to reckon with and a candidate for European membership. The
1982 constitution, meanwhile, is ideological and authoritarian in
intent and construction. By privileging the interests of the state
over the individual, it has proven to be singularly inadequate at
meeting Turkey's current needs and challenges and an impediment to both
greater democratization and the resolution of the Kurdish question.
During the election campaign, Turkey's prime minister, Recep Tayyip
Erdogan, promised to work on a new civilian constitution immediately
after a new parliament convened. In his victory speech, he reiterated
this promise. The prospect of a new civilian constitution has led
to rising expectations among Turkish Kurds who have always seen
this document as among the most important hurdles to their becoming
full-fledged citizens of the republic. The Kurds have consistently
argued that the 1982 constitution is not only undemocratic but also
alienating, because of its abundant and overt characterization of
citizens as being solely members of the "Turkish nation."
The prospect of a new constitution has spurred numerous groups--from
political parties, such as the pro-Kurdish Peace and Democracy Party
(BDP), to think tanks, business organizations, and nongovernmental
organizations (NGOs)--to start working on their own constitutional
proposals. Soon after its 2007 electoral victory, the ruling Justice
and Development Party (AKP) commissioned a draft constitutional
proposal from a group of eminent jurists and academics. In the tumult
that ensued following the 2007 elections, including an attempt to
close it down, the AKP abandoned its efforts. In the ensuing years,
however, the atmosphere became more conducive to rewriting the
constitution. Prosecutors called in the leaders of the 1980 military
coup for questioning; for the first time, officials cast doubt over
the legitimacy of the intervention.
Still, the politics of reform are complicated. The June 12 elections
resulted in big wins for both the ruling AKP and the BDP. The latter
surprised everyone by electing many more representatives to parliament
than expected. In a very short period of time, however, what appeared
to be a propitious atmosphere to begin the hard process of bargaining
over the constitution disappeared, as a number of BDP parliamentarians
were prevented from taking their seats by judicial authorities. This,
in turn, provoked a parliamentary boycott by the BDP. Then, as if the
atmosphere was not sufficiently tense, a July 14 firefight between
the army and presumed Kurdistan Workers' Party (PKK) fighters erupted;
thirteen soldiers and seven insurgents were killed.
The process of rewriting the constitution and reconciling Kurdish
grievances will be subject to many more ups and downs. We aim to
provide the reforms' bare essentials. This is not meant to be an
exhaustive list, nor do we intend to offer a solution to all of
the problems associated with either the Kurdish question or the
furtherance of democracy in Turkey. It is safe to argue that the
continued democratization of Turkey is ultimately the best guarantee to
resolve the Kurdish issue. Instead, we seek to identify the problematic
aspects of the current constitution as a guide for what to expect
from a new document.
Political actors will undoubtedly bring their own agendas into the
process and, therefore, complicate it. What position the ruling AKP
will assume is difficult to ascertain at the moment. This is primarily
because Erdogan has been contemplating a systemic transformation of
Turkey from a parliamentary to a semi-presidential system. As a result,
a discussion of the political modalities falls outside our scope here.
When it comes to change, Kurds make three broad sets of demands:
change the constitution's emphasis on Turkish ethnicity, remove the
prohibitions on cultural and political rights, and reduce excessive
administrative centralization. After analyzing the influence of
previous constitutions on the Kurdish issue, we focus on these three
sets of changes.
Constitutions: Past and Present
Turkey has had four constitutions, starting with the one promulgated
in 1921. The others were introduced in 1924, 1961, and 1982. All
four were either drafted under extraordinary circumstances or by
authoritarian regimes.
The 1921 document, drafted amid the struggle against the victorious
World War I powers that invaded the Anatolian heartland, served as
a preliminary document intended to unify all inhabitants against the
foreigners. Members of the present-day Kurdish national movement have
often commented that this was the only constitutional document that
provided them with a path to recognition and equal citizenship. If
Kurds have spoken approvingly of the 1921 constitution1 it is because
the document made no reference to Turks as a nation or suggested that
the citizens of Turkey were Turks. Sovereignty, it simply stated,
belonged to the people. Most importantly, the constitution also
contained provisions for provincial autonomy.
Following the victory of Kemal Ataturk and his nationalist forces in
1922, the nascent Turkish republic introduced a new constitution in
1924 that undid the inclusive aspects of the 1921 document. The need
for Turkish-Kurdish collaboration to defeat the foreign invaders
had passed, and nation-building and centralization had became the
new focus. This came at the expense of ethnic harmony in a part
of the world known for its mosaic of peoples, religions, cultures,
and ethnicities. The 1924 constitution set forth the parameters of
an overly controlling state where the center, Ankara--unwilling to
trust its periphery--assumed complete decision-making power down to
the minutiae.
A military regime ushered in a new constitution in 1961. While
maintaining all of the restrictive provisions on the Kurds, the
1961 document marked an important break with the past by granting
collective bargaining rights to workers and providing universities with
significant autonomy. It also institutionalized the political role of
the armed forces through the creation of a military-dominated National
Security Council (NSC) and retained the previous uncompromising
interpretations of secularism and of Turkish ethnicity.
When student unrest and political violence broke out in Turkey at
the end of the 1960s, the military--having once again forced out
a civilian government in 1971--amended the 1961 constitution to
strengthen the power of the state and curtail individual freedoms.
These amendments did not prevent the reemergence of political violence
and Kurdish mobilization in southeastern towns and provinces, however.
Hence, in 1980, generals once again overthrew the civilian government.
The new junta sought to address Turkey's problems by introducing
a brand-new constitution. Not unlike its Latin American corporatist
counterparts, the regime, through the 1982 constitution, imposed tight
controls on freedom of speech, organizations, and political activities.
The document also sought to impose an ideological framework based
on Ataturk's 1930s reforms. Together with a set of accompanying
legislation, the military weaved an intricate web of relationships
with political parties, the civilian bureaucracy, the media, and
academia that stifled dissent and maintained control. Yet, stability
remained elusive in the Kurdish provinces. The outcome of the post-1980
draconian order was to embolden a new, long-lasting Kurdish rebellion,
led by the PKK.
This edifice constructed by the military regime started to unravel
with the implementation of EU reforms, the 2002 rise of the AKP,
increased prosperity, diversification of Turkish society, and its
and mistakes committed by an overconfident and overbearing military
establishment. New elites, an EU-supported political opening, rising
globalization, and a more self-confident civil society began to
gnaw at the cornerstone of the illiberal conception of the state,
the 1982 constitution.
Since 1982, there have been numerous attempts to alter the
constitution--including the most recent one implemented after a
nationwide referendum on September 12, 2010--but none has transformed
its essential authoritarian character. The current constitution
falls well short of EU requirements and does not live up to the legal
engagements undertaken by Turkey, such as the 1990 Charter of Paris,
which states "...that the ethnic, cultural, linguistic and religious
identity of national minorities will be protected and that persons
belonging to national minorities have the right freely to express,
preserve and develop that identity without any discrimination and in
full equality before the law."2
The Constitution and the Kurdish Question
When asked, most Kurds express three broad sets of criticisms of
the current constitution. First, it relies on Turkish ethnicity
to define citizenship. Second, it prevents Kurds from expressing
themselves in their own language and furthering their own culture and
political interests, through impediments to education, speech, and/or
broadcasting. Third, it preserves the state's centralized character,
which has a stultifying effect on local decision-making. While the
first two of these criticisms are specific to the Kurdish issue,
remedying the third--the over-centralization of the political and
administrative system--would benefit all of Turkey's citizens.
1. The State, Ethnicity, and Citizenship
The preamble to the current constitution sets the forth the ideological
tone and spirit of the document. It is also where the first encounter
with Turkish ethnic identity occurs. The first paragraph states:
In line with the concept of nationalism and the reforms and principles
introduced by the founder of the Republic of Turkey, Ataturk, the
immortal leader and the unrivalled hero, this Constitution, which
affirms the eternal existence of the Turkish nation and motherland
and the indivisible unity of the [noble] Turkish state, embodies:3
The document proceeds to affirm the existence of "Turkish historical
and moral values" and the principle that sovereignty is "vested
fully and unconditionally in the Turkish nation." It concludes by
stating, "it [the constitution] is entrusted by the Turkish nation
to the patriotism and nationalism of its democracy-loving sons and
daughters."4
Despite the interspersed presence of references to Turkish citizenship
and the notion of equality before the law, the document's intent and
message is unmistakable. Its references to "Ataturkist nationalism,"
a "Turkish existence," and the history of Turkishness, however, give
it an exclusive ethnic spirit. It presupposes that there is only
one form of nationalist feeling and only one ideology to which all
citizens must adhere. The preamble in essence assumes the existence of
only one ethnic and cultural identity.5 By sanctifying the founding
leader Ataturk and his philosophy and reforms, the preamble suggests
a vision confined to a time and space that have long disappeared.
The need for a preamble has been questioned by a majority of the
groups offering alternative versions. With the exception of the Bar
Association--whose proposed preamble retains many of the references to
Ataturk's reforms and ideology--the emerging civil society consensus is
for a short and neutral paragraph that emphasizes the rights of Turkish
citizens in lieu of a preamble.6 The panel put together by Professor
Ergun Ozbudun at Erdogan's request following the 2007 elections also
favored a short paragraph that emphasizes the inalienable rights of
individuals, although it, too, pays respect to Ataturk's grand goals.7
Ataturk remains a potent and singularly important symbol. He is the
founder of the modern Turkish state, and even Kurdish leaders have
argued that references to him are acceptable. The problem emerges when
his legacy is codified in a strict--though still ambiguous--official
ideology. Its use as the official ideology has been at the root of
state authorities' authoritarian behavior.
Most civil society groups have suggested relatively short preambles,
arguing for simplicity and universality. Both DISK, the Confederation
of Revolutionary Workers' Syndicates--one of the two most important
labor union confederations--and the December 10 Movement resolve the
ethnic identity issue by invoking a rather unique and all-encompassing
concept: "the successors to Anatolian civilizations."8
European societies, including those with ethnic minorities, have
selected to include short preambles that emphasize universal goals and
principles. In Spain, for instance, the preamble states that the will
of the nation is to "protect all Spaniards and peoples of Spain in the
exercise [of] human rights, their cultures and traditions, languages,
and institutions."9 By contrast, Romania has no preamble. Bulgaria
references universal human values. The Hungarian document simply
states that Hungary is to be a parliamentary multi-party democracy
with a social-market economy.
The problems for Kurds, as an ethnic group, are not limited to the
preamble. The constitution's first three articles define Turkey as a
secular republic with Ankara as its capital, Turkish as its language,
and a specific national anthem. Article 2, which states that the
republic is "loyal to the nationalism of Ataturk," also references
the "fundamental tenets set forth in the preamble." These articles,
together with the preamble, have helped to shape the spirit and
content of the constitution. What makes them especially significant
is that they have been made bulletproof by Article 4, which states
that the first three articles are immutable. Article 4, in fact,
even prohibits "contemplating any change" to them.10
Among other problematic articles are the ones concerning citizenship.
Article 66 states that "everyone bound to the Turkish state through
the bond of citizenship is a Turk. The child of a Turkish father or a
Turkish mother is a Turk."11 The article, which also establishes the
conditions under which citizenship is acquired or lost, does not in
fact define citizenship as a right. Instead, citizenship equals being
a "Turk." Although Turkish officials insist that the usage of "Turk"
is intended as an adjective and does not denote an ethnic identity,
citizens who do not consider themselves Turkish find this definition
disparaging.12
Paradoxically, the 1924 constitution was more inclusive than the
current one; while it considered all citizens to be Turks, it stressed
that the concept of citizenship should not discriminate along religious
or racial lines.13 In practice, however, this distinction did not
help Kurds and other minorities in Turkey, as the new state tried
furiously to assimilate them even as it denied their existence.
Hence, the current efforts by civil society groups and pro-Kurdish
political activists and politicians are targeted at defining
"constitutional citizenship." Accordingly, citizenship is defined
as a "fundamental right." Not only is constitutional citizenship
independent of race, religion, ethnicity, gender, or culture,
it is meant to respect a society's natural diversity and prevent
state authorities from pursuing policies designed to assimilate
minorities.14 As a fundamental right, state authorities, therefore,
cannot revoke citizenship. This idea runs counter to current practice;
the 1982 constitution allows the state to revoke the citizenship
of anyone deemed to have acted incompatibly with devotion to the
motherland. The ambiguity implicit in this formulation has empowered
state authorities to revoke the citizenship of numerous dissidents.
The preamble and Article 66 are not the only articles that privilege
the "Turkish Nation." Article 5 is among the most comprehensive
and important ones because it defines the role and duties of the
state. It reads, "[t]he fundamental aims and duties of the state are:
to safeguard the independence and integrity of the Turkish Nation, the
indivisibility of the country, the Republic and democracy. . ." The
preeminence accorded to the state--an ambiguous concept at best--and
the projection of goals and obligations on to it is one of the core
problematic conceptualizations in the Turkish constitution.
By adopting an expansive approach to the state, the constitution in
effect created an impossible situation. On the one hand, it opened
the way for arbitrary interpretations of state-individual relations
and, therefore, encumbered the individual with obligations it cannot
possibly meet, such as acting in a "manner compatible with devotion to
the motherland." On the other hand, it also burdened the state with
obligations that can sound absurd. For instance, Article 59 requires
the state to develop sporting opportunities for its citizens and to
"protect the successful" sportsman. None of the European constitutions
approaches the state as a living institution with rights and duties.
Other articles also contain references to the "Turkish Nation," such as
Article 6 on sovereignty, Article 7 on the powers of the Grand National
Assembly, and Article 9 on the exercise of judicial power. In each
case, the Turkish Nation is singled out. These references, however,
are easily remedied by dropping the word "Turkish" without modifying
the articles' content. Still, given the strength of nationalist
forces and ideas, few politicians will likely dare to support such
a simple wording change. Altering other articles is even harder to
contemplate because they lie on the fault line of Turkish politics,
and many people will fight to preserve the ethnic character of the
state. In reality, politics will make it impossible for retail-style
amendments; only a wholesale change would ease the public's acceptance.
2. Cultural and Political Rights
Since the beginning of the republic, Kurds have complained that the
Turkish state's assimilation campaign and the prohibition on the use
of their language is a way to extinguish their culture. Starting in
the 1990s, many of the restrictions on the use of Kurdish have been
slowly and, in a de facto manner, removed or simply ignored.
Nevertheless, the constitution is replete with articles that prevent
the use of Kurdish. Many of the restrictions on cultural rights are
indistinguishable from political rights. Devising a line between what
is cultural and what is political has bedeviled the authorities and
their critics. For instance, does the right to broadcast in Kurdish
constitute a cultural or a political right, especially if the content
is of political nature?15
For Kurds, the notion of cultural rights, as distinct from political
rights, has to do with education and the maintenance of Kurdish
traditions as distinct from Turkish ones. In other words, it is about
the right to call a particular local dance Kurdish (and not Turkish)
or even the right to denote the region where one lives as Kurdistan
or use the original Kurdish name for a town and hamlet. The main
concern, however, remains the use, study, and future development of
the Kurdish language.
The Turkish government, on the other hand, is still conflicted about
the use of Kurdish. To compete with a European-based, pro-PKK Kurdish
television station that broadcasts in Kurdish, the government started
its own Kurdish-language channel, Kanal Shesh, which naturally is
devoid of any political content. Paradoxically, the official minutes
of Turkish Grand National Assembly's daily meetings will not reflect
anything any member of parliament may have uttered in Kurdish because
it is "an unidentified language."
None of the constitutional proposals advanced by the myriad of groups
in Turkey, including the pro-Kurdish BDP, takes issue with Turkish as
the official language. However, stating that the Turkish republic's
"official language is Turkish" is different than the stipulation in
the 1982 constitution that defined the state's language to be Turkish.
Having an official language does not prevent the use of other
languages as the need arises. Spain's official language is Spanish,
but clearly it does not prohibit the use of other languages, such as
Catalan or Basque. An official language is a language that has been
adopted legally, in this case by a parliament. Parliament, again as
in the case of Spain, can allow other languages to be used.
Currently, the most contentious dispute is over restrictive clauses
such as Article 42, which explicitly bans the "teaching of any language
other than Turkish as a mother tongue to Turkish citizens."
Moreover, the constitution also stated that "foreign languages" to be
taught in institutions of learning should be determined by law. In
practice, this meant that Kurdish was never authorized, while other
languages, such as Greek and Armenian, were allowed. These provisions
of the constitution and their implementation directly contradict
the 1923 Treaty of Lausanne, in which the Turkish state guaranteed
that "no restrictions shall be imposed on the free use by any Turkish
national of any language in private intercourse, in commerce, religion,
in the press, or in publications of any kind or at public meetings."16
Although many of the prohibitions on the use of Kurdish are slowly
being dismantled or purposefully ignored, many of the laws emanating
from the constitution, such as electoral laws, severely restrict the
use of Kurdish for political purposes. To date, using Kurdish during
a political campaign--including addressing a Kurdish-speaking audience
in Kurdish--is prohibited. Ahmet Turk, the most senior of the Kurdish
politicians, was recently charged with precisely this crime. The
prosecutor has demanded that he be sentenced to thirty-five years
in prison.
In addition, the constitution prohibits political parties from
engaging in certain activities. The ambiguous nature of these
proscriptions--which in practice have allowed any prosecutor or set of
judges to interpret any speech or act as a violation of the law--has
enabled the judiciary to also ban political parties at will. It
is the Kurdish parties that have borne the brunt of such actions,
as the current BDP represents the eighth such party in the last
twenty years that Kurds have established. All of its predecessors
were systematically closed down by the state.
Similarly, Article 79 of the constitution creates the Supreme Electoral
Council (YSK), which is comprised of members of the Yargitay (Supreme
Court) and the Danistay (Council of State). The YSK's decisions have
become more politicized and capricious with time. The constitution
prevents any legal challenge to YSK decisions. Hence, Kurdish groups
tend to perceive the YSK as another instrument designed to prevent
their right to representation. The crises over Kurdish representation
before and after the 2011 elections have once again demonstrated
the YSK's erratic nature. It banned and then unbanned individual
candidates, and disqualified elected members from assuming their seats
in parliament. Each time its decisions were characterized as fully
complying with the laws and rules promulgated by the constitution.
Cultural and political rights intersect because many of the political
demands articulated by Kurds concern the use of Kurdish not just in
the political sphere but also in education. Though no unanimity of
views among Kurds exists, at a minimum they want to see some form
of education in Kurdish in the public school system. Some Kurds go
further and demand a curriculum in Kurdish, with some of the courses
taught in Turkish. While Kurds have been discussing this question
for some time, the Turkish public is woefully unprepared for this
change--it will be an arduous, step-by-step process. Altering the
constitution will at least allow for the beginning of a conversation.
3. Decentralization and Local Governments
Turkey remains one of the most centralized states in the West. Almost
every decision or appointment is made in Ankara. Local governments have
few, if any, powers and depend completely on the central government
for their finances. The central government also appoints provincial
governors, all police officers, judges, teachers, and health service
personnel. The monopolization of decision-making power in Ankara
originated from the founders' fear of the periphery. In their mind,
the periphery stood in stark contrast with the modernity they sought
to introduce; the periphery is where the Islamist and Kurdish ethnic
strands flourished.
The underdeveloped Kurdish-populated provinces have traditionally
been perceived by central government personnel as the least desirable
location in which to serve, and, in everyday parlance, being sent
to the east and southeast is tantamount to internal exile. Not
surprisingly, therefore, the relationship between locals and centrally
appointed functionaries has traditionally been very poor. Officials
appointed do not want to be there and have few, if any, bonds to
the local population, often resulting in poor relations. Language
problems add another layer of complexity and miscommunication to
civil servant-citizen interactions.
Even in non-Kurdish majority provinces, the centralization of
decision-making in Ankara makes for poor governance and causes
resentment, though not on the scale and depth of the Kurdish
provinces. Members of parliament, for instance, have no local offices
and their constituents routinely must travel to Ankara to pursue
favors, requests, or interventions from their representatives.
Moreover, it is unrealistic to expect civil servants ensconced in
Ankara to have a better understanding of and appreciation for local
conditions than the elected local officials. Hence, an element
of decentralization would serve the whole country well, not just
the Kurdish-populated regions. Turkey remains obligated under the
European Charter of Local Self-Government to reform its administrative
structure.
Additionally, Article 127 of the constitution sets broad parameters
for the central government's supervisory powers over municipal
governments. Most importantly, it invests the interior minister with
the power to remove any elected official accused of violating the law.
In practice, this has been applied disproportionately against the
mayors and councilors in the Kurdish provinces. For example, the
mayor of the Sur municipality in Diyarbakir, Abdullah Demirtas,
was removed from office in 2007 for providing basic services to
residents in Kurdish.17 The Council of Europe's Congress of Local and
Regional Authorities has admonished Turkey for failing to provide
elected municipal leaders a setting free of political intimidation
and enacting new laws to facilitate local decision-making.
Many of the constitutional proposals currently in circulation stress
the need to decentralize the Turkish administrative system to improve
governance, provide greater say to local citizens, and advance
inter-ethnic relations. TESEV, an Istanbul-based independent think
tank, has argued that a one-size-fits-all approach to centralization
cannot account for regional variance and specific local problems.
Ethnic and identity challenges are more likely to be addressed
successfully within decentralized political structures.18
The main impediment to any decentralization effort is the fear that
it may mark the beginning of regional autonomy in line with the Iraqi
Kurdistan Regional Government and even Kurdish independence. In an
attempt to force the issue publicly, Kurdish groups in the southeast
have articulated and unofficially adopted a proposal they term
Democratic Autonomy. This primarily consists of small but cascading
steps to transfer some powers to localities. While fears related to the
devolution of powers are understandable, the need for better governance
and delivery of services is a global trend likely to trump Ankara's
desire to maintain control. There are also many examples around the
world where autonomy has worked well--despite contentious relations
between the center and provinces--without resulting in independence.
Conclusion
Turkish constitutions, with the exception of short-lived 1921
document, have hindered the integration of Kurds as equal citizens
in Turkey. A new constitution represents the first step and, without
it, Turkey will always live with internal dissension, violence, and
instability. Moreover, it is also quite clear that Kurdish political
groups are no longer waiting for the government to act. They are intent
on pushing for what they believe to be their rights by devising new
arrangements (democratic autonomy), articulating specific demands
(education in the Kurdish language), and mobilizing politically (BDP).
We have outlined some of the minimum modifications necessary to resolve
the Kurdish issue. However, three other important requirements are
necessary to move forward.
First, simply altering articles or rendering them ethnically neutral
will not suffice. While a new constitution must be mindful of the
need to integrate groups and minorities who have been excluded from
the mainstream body politic--especially the Kurds and the Alevis,
a heterodox religious group--it must first and foremost be democratic
in spirit and content.
Second, the new constitution must appeal to a large, if not
overwhelming, majority of Turkey's citizens. The new constitution
cannot just be written inside the parliament or solely approved by that
body, however representative it may be. In view of the wide interest
the issue has received and the numerous proposals submitted by civil
society groups, the political system must secure a buy-in from society.
Third, the 1982 constitution, with its 177 articles, is an unwieldy
and unnecessarily long document. Still, many of the difficulties
facing Turkey in resolving its Kurdish question reside in the laws
that were promulgated over the years. These laws, which are generally
restrictive, have their origins in the constitution. For instance,
electoral laws--specifically the 10-percent minimum threshold
that political parties must cross for their representatives to get
elected--is not in the constitution but was enacted by the legislature.
Similarly, many of the laws regarding education, political parties,
the penal code, and other issues must also be completely overhauled
to further the democratization process. Changing the constitution is
just the first step.
Writing--but especially airing and approving--a new constitution will
take time. Once a new document is approved, the task of transforming
all of the laws so that they concur with the new constitution will also
take time. In the meantime, existing constitutional bodies--including
the Constitutional Court--and stakeholders vested in the current
system, be they civilian or military, will likely resist.
The road ahead remains long and arduous.
________________________________
1. Even the commander of the Kurdistan Workers' Party (PKK) in northern
Iraq, in an interview with a Turkish journalist, argued that the new
constitution should be inspired by 1921 constitution, Serdar Akinan,
"1921 anayasası esas alınırsa sorun cözulur," Aksam, May 21, 2011.
2. The Charter of Paris for a New Europe, p. 4.
3. The original document in Turkish refers to the noble Turkish state.
The official English version omits this word.
4. The official translation into English of the constitution is
quite poor and misses nuances and omits critical concepts. A better
translation of the original document, though still awkward, could be
the following, "[the constitution] is entrusted by the Turkish nation
to the patriotic and nationalist sentiments of a Turkish progeny in
love with democracy."
5. Dilek Kurban and Yilmaz Ensaroglu, Kurt Sorunu'nun Cozumune Dogru:
Anyasal ve Yasal Oneriler, (Istabul: TESEV, 2010), p. 23.
6. Turkiye Barolar Birligi, Turkiye Cumhuriyeti Anayasa Onerisi
(Ankara, Turkiye Barolar Birligi, 2007).
7. "Iste Anayasa Taslaginin Tam Metni," Radikal September 12, 2007.
8. DISK, ""Ozgurlukcu, Eşitlikci, Demokratik ve Sosyal Bir
Anayasa IÌ~Gcin Temel IÌ~Glkeler" (DISK: Istanbul, 2009) and 10
Aralik Hareketi, "Neden Yeni Bir Anayasa? Nasil Bir Yeni Anayasa,"
http://www.10aralik.org.tr/
9. Constitution of Spain,
http://www.senado.es/constitu_i/indices/consti_ing.pdf
10. Selahattin Demirtas, the co-leader of the pro-Kurdish Peace and
Democracy Party, BDP, recently argued that changing the first four
articles of the constitution has to be the starting point of any
reform attempt, Milliyet, June 16, 2011.
11.
http://www.anayasa.gov.tr/images/loaded/pdf_dosyalari/THE_CONSTITUTION_OF_THE_REPUBLIC_OF_TURKEY.pdf
12. Kurban and Ensarioglu p. 26
13. Ibid.
14. Vahap Coskun, "Anayasal vatandaslik," Köpru Dergisi No. 105,
(Winter 2009).
15. Interestingly, even Kenan Evren, the head of the junta that
overthrew the civilian government in 1980 and remained president until
1989, has admitted that banning the use of Kurdish by the 1980-83
military government was one of the mistakes he most regretted. Fikret
Bila, "Evren, Kurtceyi nasıl yasakladı?" Milliyet, June 9, 2011.
16. Treaty of Lausanne Article 39, http://www.hri.org/docs/lausanne/
17. Congress of Local and Regional Authorities of the Council of
Europe, "Local and Regional Democracy in Turkey," Monitoring Committee
Report, March 1, 2011, p. 14.
18. TESEV, Turkiye'nin Yeni Anayasasina Dogru, (Istanbul: TESEV,
2011), pp. 32-33.
http://carnegieendowment.org/2011/08/01/turkish-constitution-and-kurdish-question/4el4#