politics : culture : economics

Changing the constitution to solve the Kurdish question

In A new constitution, Kurdish question on October 22, 2010 at 1:34 am

The Turkish Economic and Social Studies Foundation (TESEV) has published a report detailing the kind of constitutional and legislative changes it believes would be required if the Kurdish question is to be resolved.* Given the likelihood that work on a new constitution for Turkey will begin soon, the report’s constitutional proposals are of particular interest. These are summarised in the table below, with the current text of the constitution is in the left-hand column, the TESEV recommendations in the right. In most cases, the report doesn’t settle on a single alternative but provides a number of options as a spur to further debate.

There’s quite a lot packed into the proposed changes, not all of it hugely convincing. For example, while the current preamble certainly needs a wholesale overhaul, I’m not sure that the woolliness of “We consider our differences … the foundation of our social unity” is going to get us very far.

One of proposals that’s likely to be most controversial is the removal of references to Atatürk, both from the preamble and from the (unchangeable) first three articles. Similarly, there are many in Turkey who will not warm to the way in which ethnicity and citizenship are disentangled in the various new proposals for article 66.

The suggested revisions to articles 68 and 69 (on party closures) focus on narrowing the grounds on which parties can be closed to the kind of factors covered in European (ECHR and Venice Commission) norms, namely attempts to overthrow the democratic order and/or the use or promotion of violence. The potential benefits of this move, in terms of freedom of speech and association, would stretch well beyond the Kurdish question.

At first glance, the proposed changes to article 5 are relatively minor, comprising the addition of references to pluralism and to a diversity of languages and cultures. The diversity point takes us into quite knotty territory, however, and one gets the sense that some of the issues here probably haven’t been thought through. There is a big difference between, on the one hand, ensuring that the constitution protects individuals’ rights regardless of their linguistic or cultural background, and, on the other hand, ensuring that the constitution protects the languages and cultures themselves. The latter is a much more problematic proposition, and it runs the risk of limiting individuals’ freedom to make choices that may not be popular within the community from which they come.

The crucial question of language rights would appear to be another area in which the TESEV proposals look a little rough around the edges. Take the fourth recommendation in relation to Articles 1-3, which notes that Turkish would be the country’s official language before going on to assert that “The State is responsible for providing necessary resources for mother tongues in addition to Turkish to ensure their use in education and teaching, access to public services and in all areas of social life.” This raises two questions. First, how realistic is it to suggest, as this proposal appears to do, that the state’s obligation to provide multilingual public services would apply equally to all the mother tongues of its citizens. Surely the logistics and costs would be prohibitive? Second, requiring the state to ensure the use of any language(s) in “all areas of social life” looks like the kind of thing that could be interpreted in ways that are far from liberal.

Another thing to note is the way in which at least one of the TESEV proposals in relation to mother-tongue schooling manages to smuggle in significant unrelated reforms. The second recommendation for article 42 states that “primary education is 12 years long and compulsory for everyone. The State has to provide education for all citizens at no charge, including higher education.” That represents a 50 per cent increase in the duration of compulsory education as well as a new constitutional entitlement to free higher education. Whatever the merits of those proposals (and I think the extension of compulsory education should be one of Turkey’s priorities), it is shoddy (not to mention pointless) to import them without explanation into a document that’s supposed to be focused on the Kurdish question.

* TESEV, Toward a Solution to the Kurdish Question: Constitutional and Legal Recommendations.

*****

The changes to the constitution proposed by TESEV

PREAMBLE
In line with the concept of nationalism and the reforms and principles introduced by the founder of the Republic of Turkey, Atatürk, 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 Turkish state, embodies;The determination to safeguard the everlasting existence, prosperity and material and spiritual well-being of the Republic of Turkey, and to attain the standards of contemporary civilization as an honourable member with equal rights of the family of world nations; 

The understanding of the absolute supremacy of the will of the nation and of the fact that sovereignty is vested fully and unconditionally in the Turkish nation and that no individual or body empowered to exercise this sovereignty in the name of the nation shall deviate from liberal democracy and the legal system instituted according to its requirements;

The principle of the separation of powers, which does not imply an order of precedence among the organs of state, but refers solely to the exercising of certain state powers and discharging of duties which are limited to cooperation and division of functions, and which accepts the supremacy of the Constitution and the law;

The recognition that no protection shall be accorded to an activity contrary to Turkish national interests, the principle of the indivisibility of the existence of Turkey with its state and territory, Turkish historical and moral values or the nationalism, principles, reforms and modernism of Atatürk and that, as required by the principle of secularism, there shall be no interference whatsoever by sacred religious feelings in state affairs and politics; the acknowledgment that it is the birthright of every Turkish citizen to lead an honourable life and to develop his or her material and spiritual assets under the aegis of national culture, civilization and the rule of law, through the exercise of the fundamental rights and freedoms set forth in this Constitution in conformity with the requirements of equality and social justice;

The recognition that all Turkish citizens are united in national honour and pride, in national joy and grief, in their rights and duties regarding national existence, in blessings and in burdens, and in every manifestation of national life, and that they have the right to demand a peaceful life based on absolute respect for one another’s rights and freedoms, mutual love and fellowship and the desire for and belief in “Peace at home, peace in the world”.

This Constitution, which is to be embraced with the ideas, beliefs, and resolutions it embodies below should be interpreted and implemented accordingly, thus commanding respect for, and absolute loyalty to, its letter and spirit.

Is entrusted by the Turkish nation to the patriotism and nationalism of its democracy-loving sons and daughters.

FIRST RECOMMENDATION 

We, the citizens of the Republic of Turkey, believe all individuals are entitled to universal rights and freedoms. We acknowledge the equality of all individuals without regard to race, language, sect, gender or ethnic roots. We consider our differences the source of our cultural prosperity and the foundation of our social unity. We consider the state’s fundamental duty to act fairly in all of its transactions and to secure individual rights and freedoms in all cases. As individuals committed to the ideal of perpetual peace, we stand against wars and the use of force against other peoples’ freedoms, except in cases sanctioned by international law. We seek to establish a social order based on human dignity, supremacy of law, peace, freedom and equality, and we acknowledge and affirm this constitution as an expression of our loyalty to these values.

SECOND RECOMMENDATION

Believing that all individuals are entitled to universal rights and freedoms, rejecting all forms of discrimination, recognizing all differences and considering them to be sources of democratic and cultural prosperity, sharing in the ideal of universal peace and considering ourselves to be responsible for contributing to world peace, we, the citizens of the Republic of Turkey;

Acknowledge and affirm this constitution as a charter of our willingness to coexist so as to establish a democratic order based on human rights, the supremacy of law, freedom and equality and seeking for all a dignified life all human beings deserve.

ARTICLES 1-3
Article 1: The Turkish state is a RepublicArticle 2: The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble. 

Article 3: The Turkish state, with its territory and nation, is an indivisible entity. Its language is Turkish. Its flag, the form of which is prescribed by the relevant law, is composed of a white crescent and star on a red background. Its national anthem is the “Independence March”. Its capital is Ankara.

FIRST RECOMMENDATION 

Article 1: The Republic of Turkey is a secular, democratic and social state governed by the rule of law based on human rights and founded upon the values of freedom and justice.

Article 2: The Republic of Turkey is an indivisible entity which recognizes different identities and cultures.15 Its official language is Turkish. Its flag, the form of which is prescribed by law, is composed of a white crescent and star on red background. Its national anthem is the ‘Independence March’. Its capital is Ankara.

SECOND RECOMMENDATION

Article 1: The State of Turkey is a republic. The Republic of Turkey is a secular, democratic, and social state governed by the rule of law based on human rights and founded upon the values of freedom and justice.

Article 2:
(1) The Republic of Turkey is an indivisible entity which recognizes different identities and cultures.
(2) Its official language is Turkish.
(3) Its flag, the form of which is prescribed by law, is composed of a white crescent and star on red background.
(4) Its national anthem is the “Independence March.”
(5) Its capital is Ankara.

THIRD RECOMMENDATION

Article 1: The State of Turkey is a republic.

Article 2: The Republic of Turkey is a secular, democratic and social state governed by the rule of law based on human rights and founded upon the values of freedom and justice.

Article 3:
(1) The Republic of Turkey is an indivisible entity which recognizes different identities and cultures.
(2) Its official language is Turkish.
(3) Its flag, the form of which is prescribed by law, is composed of a white crescent and star on red background.
(4) Its national anthem is the “Independence March.”
(5) Its capital is Ankara.

FOURTH RECOMMENDATION

Article 3 must be amended as follows:
(1) The official language of the Republic of Turkey is Turkish.
(2) This constitution guarantees the rights of the citizens of Turkish Republic to use, protect and develop their mother tongues. The State is responsible for providing necessary resources for mother tongues in addition to Turkish to ensure their use in education and teaching, access to public services and in all areas of social life.

ARTICLE 5
The 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; to ensure the welfare, peace, and happiness of individual and society; to strive for the removal of political, social and economic obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social State governed by the rule of law; and to provide the conditions required for the development of the individual’s material and spiritual being. The fundamental aims and duties of the state are: to safeguard the independence and integrity of the Turkish Nation and democracy; to ensure the welfare, peace, and happiness of individual and society; to eliminate political, social and economic obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of pluralism, social state governed by the rule of law, and justice; to strive for the provision of the conditions required for the development of the individual’s material and spiritual being; to develop policies and make legal arrangement necessary to protect and ensure the survival and development of diverse languages and cultures existing in Turkey.
ARTICLE 42
No language other than Turkish shall be taught as a mother tongue to Turkish citizens at any institutions of training or education. Foreign languages to be taught in institutions of training and education and the rules to be followed by schools conducting training and education in a foreign language shall be determined by law. The provisions of international treaties are reserved. FIRST RECOMMENDATION 

(1) No-one shall be deprived of the right to education and learning.
(2) All individuals have the right to education in their mother tongue. The state shall be responsible for providing the necessary resources and making legal arrangements to ensure the exercise of this right, if there is sufficient demand therefor.
(3) Training and education shall be provided in line with the universal scientific and educational principles, under the supervision and control of the state.
(4) Eight-year primary education is compulsory for all citizens and is free of charge in state schools.
(5) Turkish is the language of training and education. Principles concerning provision of training and education in languages other than Turkish shall be prescribed by law in accordance with international conventions and the requirements of democratic social order.

SECOND RECOMMENDATION

(1) No-one shall be deprived of the right to education and learning.
(2) All individuals have the right to education in their mother tongue.
(3) Training and education shall be provided in line with the modern scientific and educational principles, under the supervision and control of the State. Training and education institutions which do not comply with these principles shall not be allowed.
(4) Primary education is 12 years long and compulsory for everyone. The State has to provide education for all citizens at no charge, including higher education.

ARTICLE 66
Everyone bound to the Turkish State through the bond of citizenship is a Turk.The child of a Turkish father or Turkish mother is a Turk. 

Citizenship may be acquired under conditions stipulated by law, and shall only be forfeited only in cases determined by law.

No Turk shall be deprived of citizenship, except if he commits an act incompatible with loyalty to the motherland.

Recourse to the courts in appeal against the decisions and proceedings related to deprivation of citizenship, shall not be denied

FIRST RECOMMENDATION 

Citizenship is a fundamental right. The acquisition, exercise and forfeiture of this right shall take place without regard to religion, language, ethnic root, culture, gender and similar differences. Principles concerning the acquisition and forfeiture of the right to citizenship shall be prescribed by law.

SECOND RECOMMENDATION

Any person bound to the Republic of Turkey through the bond of citizenship shall be considered a citizen of the Republic of Turkey without regard to differences in religion, sect, race, ethnic root and culture.

THIRD RECOMMENDATION

Citizenship shall be acquired under conditions stipulated by law and it shall only be forfeited under conditions stipulated by law.

FOURTH RECOMMENDATION

Everyone bound to the Republic of Turkey through the bond of citizenship shall be considered a citizen of the Republic of Turkey without regard to differences in religion, sect, race, ethnic root, gender, culture etc. No one shall be deprived of citizenship without their own will.

IN ADDITION

A paragraph to the following effect must be added to Article 66: “The state shall make available all conditions necessary for the protection, survival and improvement of Turkey’s pluralist ethnic, religious and cultural composition within territorial integrity.”

In light of these arrangements, the instances of the “Turkish nation” expression, especially those in Articles 6, 7 and 9, in the Constitution must be replaced with “citizens of Turkey.” A similar arrangement must be made in laws, regulations, circulars and statutes, that is, across the legislation in general.

ARTICLE 68(4)
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, human rights, the principles of equality and the rule of law, sovereignty of the nation, the principles of the democratic and secular Republic; they shall not aim to protect or establish class or group dictatorship or dictatorship of any kind, nor shall they incite citizens to crime. FIRST RECOMMENDATION 

Statutes and programs as well as activities of political parties shall not be in conflict with human rights, principles of equality and rule of law, nor shall they aim to protect or establish any other type of dictatorship. Political parties may not support or encourage violence or racism.

SECOND RECOMMENDATION

Statutes and programs as well as activities of political parties may not be in conflict with the independence and integrity of the state, human rights, principles of equality and rule of law, national sovereignty, democratic and secular principles, and may not promote racism and criminal conduct.

. .
ARTICLE 69(4)
The dissolution of political parties shall be decided finally by the Constitutional Court after the filing of a suit by the office of the Chief Public Prosecutor of the Republic. The Constitutional Court shall give the final ruling on dissolution of political parties upon the resolution passed by the Turkish Grand National Assembly. To this end, a parliamentary commission shall be set up to make a decision for filing a lawsuit for party dissolution on behalf of the Turkish Grand National Assembly, and in case the party, against whom the lawsuit will be filed, is not one of the parties that have a group, or are represented in the Grand National Assembly, this party should be represented by the commission with the same number of members.
ARTICLE 69(5)
The permanent dissolution of a political party shall be decided when it is established that the statute and programme of the political party violate the provisions of the fourth paragraph of Article 68. Article 69/5 must be abolished.
ARTICLE 69(6)
The decision to dissolve a political party permanently owing to activities violating the provisions of the fourth paragraph of Article 68 may be rendered only when the Constitutional Court determines that the party in question has become a centre for the execution of such activities. A political party shall be deemed to become the centre of such actions only when such actions are carried out intensively by the members of that party or the situation is shared implicitly or explicitly by the grand congress, general chairmanship or the central decision-making or administrative organs of that party or by the group’s general meeting or group executive board at the Turkish Grand National Assembly or when these activities are carried out in determination by the above-mentioned party organs directly. One of the following recommendations must be considered the basis in amending Article 69/6 concerning dissolution of political parties. 

FIRST RECOMMENDATION

The practice of dissolving political parties must be ceased. Instead, lighter penalties must be assessed, such as temporarily depriving the party of treasury aid or placing a temporary ban on electoral participation.

SECOND RECOMMENDATION

The dissolution of political parties which use violence or promote the use of violence if such parties constitute an immediate and actual threat against the democratic order and only at the decision of the Grand National Assembly must be considered exceptional practice.

ARTICLE 69(7)
Instead of dissolving them permanently in accordance with the above-mentioned paragraphs, the Constitutional Court may rule the concerned party to be deprived of State aid wholly or in part with respect to intensity of the actions brought before the court. Those political parties which have been found by the Constitutional Court to have become the center of activities in violation of above-mentioned provisions may, upon the resolution becoming final, be partially or fully deprived of State aid by the Constitutional Court, depending on the gravity of such activities.
ARTICLE 69(8)
A party which has been dissolved permanently cannot be founded under another name. Article 69/8 must be abolished.
ARTICLE 69(9)
The members, including the founders of a political party whose acts or statements have caused the party to be dissolved permanently cannot be founders, members, directors or supervisors in any other party for a period of five years from the date of publication in the official gazette of the Constitutional Court’s final decision and its justification for permanently dissolving the party. Article 69/9 must be abolished.
ARTICLES 120-1
Article 120: In the event of serious indications of widespread acts of violence aimed at the destruction of the free democratic order established by the Constitution or of fundamental rights and freedoms, or serious deterioration of public order because of acts of violence, the Council of Ministers, meeting under the chairmanship of the President of the Republic, after consultation with the National Security Council, may declare a state of emergency in one or more regions or throughout the country for a period not exceeding six months.Article 121: In the event of a declaration of a state of emergency under the provisions of Articles 119 and 120 of the Constitution, this decision shall be published in the Official Gazette and shall be submitted immediately to the Turkish Grand National Assembly for approval. If the Turkish Grand National Assembly is in recess, it shall be assembled immediately. The Assembly may alter the duration of the state of emergency, extend the period, for a maximum of four months only, each time at the request of the Council of Ministers, or may lift the state of emergency. 

The financial, material and labour obligations which are to be imposed on citizens in the event of the declaration of state of emergency under Article 119 and, applicable according to the nature of each kind of state of emergency, the procedure as to how fundamental rights and freedoms shall be restricted or suspended in line with the principles of Article 15, how and by what means the measures necessitated by the situation shall be taken, what sort of powers shall be conferred on public servants, what kind of changes shall be made in the status of officials, and the procedure governing emergency rule, shall be regulated by the Law on State of Emergency.

During the state of emergency, the Council of Ministers meeting under the chairmanship of the President of the Republic, may issue decrees having the force of law on matters necessitated by the state of emergency. These decrees shall be published in the Official Gazette, and shall be submitted to the Turkish Grand National Assembly on the same day for approval; the time limit and procedure for their approval by the Assembly shall be indicated in the Rules of Procedure.

The phrase “emergence of serious indications of widespread acts of violence” in Article 120 must be replaced with the phrase “occurrence of widespread acts of violence.”The authority to declare the State of Emergency granted to the Council of Ministers under Articles 120 and 121 must be transferred over to the Turkish Grand National Assembly. Legislative must be set as the only branch authorized to declare, specify the duration of, and lift the State of Emergency. Therefore, the practice of issuing decree-laws must be ceased with, and Article 121 must be amended to that effect.
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  1. I hope that over time, more people in Turkey will be able to make the distinction between ethnicity and citizenship…

    In addition to amending the constitution, we need to educate people in basic moral- and political philosophy. The constitution is only a piece of paper until people understand what it means. And then it must be properly enforced.

    For reference, the authors of this report are Dilek Kurban and Yılmaz Ensaroğlu.

  2. race, language, sect, gender or ethnic roots
    ———————————————
    Vague. Why not: race, languages, religion, sexuality, gender and/or ethnicity….
    To get rid of Ataturk is the ultimate goal of this bunch of Islamist. At least they can refer to him in the first article.

  3. […] Changing the constitution to solve the Kurdish question by istanbulnotes […]

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