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TOWARD A SOLUTION TO THE KURDISH QUESTION: CONSTITUTIONAL AND LEGAL RECOMMENDATIONS DİLEK KURBAN - YILMAZ ENSAROĞLU September 2010 TOWARD A SOLUTION TO THE KURDISH QUESTION: CONSTITUTIONAL AND LEGAL RECOMMENDATIONS ISBN: TESEV PUBLICATIONS Authors: Dilek Kurban, Yılmaz Ensaroğlu Prepared for publication by: Serkan Yolaçan Translator: Fethi Keleş Design Supervisor: Rauf Kösemen, Myra Cover Design: Banu Yılmaz Ocak, Myra Page Layout: Serhan Baykara, Myra Printed by: İmak Ofset Türkiye Ekonomik ve Sosyal Etüdler Vakf Turkish Economic and Social Studies Foundation Demokratikle me Program Democratization Program Bankalar Cad. Minerva Han No: 2 Kat: 3 Karaköy 34420, İstanbul Tel: PBX Fax: Copyright September 2010 All rights reserved. No part of this publication may be reproduced electronically or mechanically (photocopy, storage of records or information, etc.) without the permission of the Turkish Economic and Social Studies Foundation (TESEV). The viewpoints in this report belong to the authors, and they may not necessarily concur partially or wholly with TESEV s viewpoints as a foundation. TESEV would like to extend its thanks to the Royal Embassy of the Netherlands in Ankara, Open Society Foundation and the TESEV High Advisory Board for their contributions with regard to the publication and promotion of this book. Table of Contents Acknowledgement, 5 Preface, 7 Acronyms, 8 Foreword, 9 Methodology, 10 Introduction, RECOMMENDATIONS ON THE PROTECTION OF HUMAN RIGHTS, 13 A. International Policy Recommendations, 15 B. National Policy and Law Recommendations, RECOMMENDATIONS ON A SOLUTION TO THE KURDISH QUESTION, 21 Introduction, 23 A. Recommendations on Constitutional Amendments, General Remarks, The Preamble, Constitutional Provisions, 26 B. Recommendations on Legislative Amendments, Law on Political Parties, Law Concerning the Election of the Members of Parliament, Law Concerning the Fundamental Principles of Elections and the Electoral Register, Turkish Criminal Law, Anti-Terror Law, Law on National Education, Law on Foreign Language Education and Teaching, Law on Provincial Administration, Law and Statute on Surnames, Law on Demographic Services, The Script Law, Law on the Establishment and Broadcasts of Radios and Televisions, TRT Law, Law on The Compulsory Use of Turkish in Economic Enterprises, The Village Law, Compensation Law, State of Emergency Legislation, 52 i. State of Emergency Law, 52 ii. State of Emergency Decree Laws, Minors Aggrieved by the Anti-Terror Law: Analysis and Recommendations, 53 Legal Experts who Contributed to the Report with their Findings, Opinions and Recommendations, 59 About the Authors, 60 4 Acknowledgment A great many people contributed to this report. And we owe thanks to all of them. First of all, to Serkan Yolaçan: He managed the project on behalf of the TESEV Democratization Program, held the preliminary workshops, established communication between authors and workshop participants, had countless phone conversations and written correspondence with the legal practitioners and experts who contributed to the report, exercised incredible patience and diligence in staying on top of all the changes we have made down to the last second, and worked very hard on tens of draft texts to lead a coordinated effort and the communications between the translators, editors, and page setters. We thank Serkan for his support, patience, and that smile on his face which we never had in short supply, even in the most stressful of times. We are grateful to Sibel Doğan and Gülderen Rençber Erbaş, the beloved employees of Myra Ajans, who treated us with utmost understanding and worked those long and miraculously dedicated hours on the design of the TESEV report. We also wish to acknowledge the hard work of our translator, Fethi Keleş. The efforts of the interns at the TESEV Democratization Program should not go unnoticed: We gratefully acknowledge the meticulous and solid research support provided by Firdevs Güreşçi. And we would like to express our sincere thanks to Damla Büyükonat and Kaitlin Conklin for their assistance with the editing of the text. We also would like to thank TESEV Democratization Program Assistant Esra Bakkalbaşıoğlu who attended the Ankara workshop and provided out-of-office support. We also acknowledge the efforts of all of the Program staff. A heartfelt thank you goes out to Etyen Mahçupyan, TESEV Democratization Program Director, for paving the way over the years for the Program to undertake pioneering and courageous efforts regarding the Kurdish Question, and to Can Paker, TESEV Executive Board Chairman, for his support throughout the project. Though it was eventually us who authored the report, we could not have undertaken this effort without the long-lasting legal struggles and works of legal practitioners and experts who shared with us their invaluable opinions and recommendations during and after the workshops. We are thankful to Emin Aktar, Yusuf Alataş, Vahap Coşkun, Demir Çelik, Meral Danış Beştaş, Tahir Elçi, Fazıl Hüsnü Erdem, Levent Kanat, Hasip Kaplan, Hüsnü Öndül, Sezgin Tanrıkulu, Şehnaz Turan, Öztürk Türkdoğan and Reyhan Yalçındağ. Mehmet Uçum, Hatice Uçum and Gülçin Avşar were generous enough to return our call of support for the report s section on children aggrieved by the Anti-Terror Law. They produced a unique text for the report and made valuable suggestions on the report in general in a very limited amount of time. We gratefully acknowledge their efforts. We hope that the report opens up the space for a calm and constructive debate that has no room for political heroism and sentimentalism, and eventually contributes to a democratic and just answer to the Kurdish Question Dİlek Kurban- Yılmaz Ensaroğlu 5 6 Preface The new global context that budded in the last quarter of the previous century impacted not only the economic and cultural space but also directly modified the form of political practice. States faced the need to undergo a multidimensional process of adaptation. The new world invited more than spatial interpenetration; it also called for a peaceful approach based on negotiation and reconstituted political norms from within a democratic framework. Turkey responded rapidly to the call in terms of international relations and set out to develop a web of relations with its neighbors based on equality and dialogue. But national politics followed a different track, for the very same norms were perceived as threats to Turkey s republican project and its administrative heritage. This led to a state approach which had a theoretical idea of where to go, but did not know how to go there and was in fact ideologically timid to take the step further. The deadlock was most keenly felt with respect to the Kurdish question. Inasmuch as the state was rendered passive as a result of the pressure created by the context of violence, Kurdish politics too assumed a uniform character. The result was an official attitude that shied away from the Kurdish issue instead of solving it and neglected the troubles and demands of Kurdish citizens. This approach found its way across the legal framework from the Constitution to laws and regulations. The construction of citizenship on the grounds of Turkish identity reduced the concept of the Republic of Turkey to a Turkish state. The notion of indivisible state, on the other hand, resulted in all cultural identities other than the Turkish one not being seen by the state in equal terms. The legislative order that came into being out of such an administrative mentality was interpreted by Kurds as a sign of bad faith, and all that was done in the name of justice proved that a multicultural social structure was yet to be digested. Since it put the Kurdish question on its agenda in 2005, TESEV has published a book analyzing forced migration and six reports on issues ranging from socioeconomic structure to social reconciliation. These works offered an orderly arrangement of the demands of Kurds on the one hand, and a review of the steps taken by the state, on the other. Crafting a solution to the question, however, requires that human rights reforms that need to be undertaken in the legislation not wait any longer. Without that legal background, there is no chance that the government s good will may yield any fruit. This report lists the conditions for the constitution of that legal background and lays out the framework for democratic politics which may be undertaken in the meantime, and thereby presents possibilities for a genuine solution. We hope that the debate it will generate will add to and reinforce mutual understanding. Etyen Mahçupyan Director, TESEV Democratization Program 7 Acronyms BDP BİHB BİHDK CRC DTK DTP ECHR ECtHR EU ICCPR ICESCR LDPP SHP TİHK TRT Peace and Democracy Party Human Rights Presidency of the Prime Ministry (Başbakanlık İnsan Hakları Başkanlığı) Human Rights Advisory Board of the Prime Ministry (Başbakanlık İnsan Hakları Danışma Kurulu) UN Convention on the Rights of the Child Democratic Society Congress (Demokratik Toplum Kongresi) Democratic Society Party (Demokratik Toplum Partisi) European Convention on Human Rights European Court of Human Rights European Union International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Law on the Duties and Powers of the Police Social Democratic People s Party (Sosyal Demokrat Halkçı Parti) The Human Rights Institute of Turkey (Türkiye İnsan Hakları Kurumu) Turkish Radio and Television Corporation (Türkiye Radyo ve Televizyon Kurumu) 8 Foreword TESEV Democratization Program issued a report in December 2008, entitled A Roadmap for a Solution to the Kurdish Question: Policy Proposals from the Region to the Government. Drafted following meetings and written exchanges with individuals carrying vast representative capacity, the report featured, as it were, a classification and arrangement of Kurds demands. As such, it triggered various discussions and blazed the trail for the myriad works that followed suit. On the other hand, the Kurdish Question increasingly became a matter of public knowledge and debate thanks to the conversations generated by the approximately one-year old government initiative, initially dubbed the Kurdish Initiative and later called the Democratic Initiative. But the polemics that concentrated around the initiative fell a bit short of laying out opinions and recommendations as to the steps that need to be taken for a solution to the question. In other words, not only does the government fail to make concrete and comprehensive explanations in a manner which meets expectations on how it approaches the question, what it contemplates for a solution, what it seeks to do, or what it is unable to do, and what kind of steps it will take in the short and long term, but also the opposition and the Kurdish political actors calling for a solution have failed to adequately put forth their own demands and recommendations. The works performed and the suggestions made by the Kurdish political movement and Kurdish civil society were either entirely unnoticed by the public or failed to ignite controversy to the extent they were expected to. The initiative has now reached a deadlock due both to tensions created and fears spread by the opposition front imposing a political stalemate among the proponents of a solution. It is therefore possible to conclude that this has resulted, to say the least, in public opinion losing a great deal of optimism and enthusiasm about the whole process. Thus, it now behooves us to redefine the Kurdish Question. Instead of simply being the stuff of unproductive political ploys we must now come up with tangible recommendations toward a democratic solution to the Kurdish Question as part of the democratization process. That, in fact, is where the present report sets its sights. By improving upon and expanding the recommendations under the Constitutional and Legal Reforms section of the 2008 report, this report seeks to provide public opinion and decision makers with as much comprehensive and detailed review and analysis of the legislation as possible. Undoubtedly, there may be certain issues on which sufficient research has not yet been carried out or on which we have failed to make any significant recommendations, or even if such research has been carried out, there may be certain laws or provisions which might not have been accessed or may have been neglected. Similarly, even Kurdish jurists and opinion leaders have various disagreements among themselves with respect to this report s recommendations. Accordingly, we hope that this report will serve as an initial text geared toward identifying possible steps for crafting a legal solution to the Kurdish Question, and will provide background for more comprehensive research in the future. 9 Methodology We believe this report represents common wisdom built upon an intense process of negotiation and consulting. Initial groundwork for the report was laid in the workshops TESEV Democratization Program held in Diyarbakır on 25 September 2009 and then in Ankara on 15 January Attendees to the workshops included legal practitioners who have conducted studies on the legal aspect of the Kurdish Question. Workshop participants contributed to the meeting with their opinions and recommendations, and subsequently shared with the authors studies they themselves or others have prepared on the issue. A draft text was then produced following deliberations using resources gathered in the two workshops and their aftermath. To procure further input, the draft was shared with not only the workshop participants but also other lawyers, academics and politicians familiar with the Kurdish Question. The text was reviewed and finalized in line with the feedback provided by the experts consulted, which then led to the present report. As will be seen below, alternative recommendations have been offered with respect to a number of constitutional articles and legal provisions. The variation is a result of contributing experts expressing differing views as to how the legislation in question needs to be amended. To allow the public and decision makers to assess the multiple opinions on the solution to the question, all recommendations that the report s authors could access are offered in a non-hierarchical order. There is no doubt that there are many other experts and legal practitioners who could not be consulted on the matter. Thus, as the report undergoes public discussion, we hope that critiques and suggestions to be offered along the way will allow the report to contribute to the formation of a much sounder platform to reach a solution. 10 Introduction There is more to the dominance of rule of law or supremacy of law in a state than the mere availability of a constitution or laws, or the presence of judicial institutions. Indeed, it is a fact of history that even the bloodiest dictatorships had their idiosyncratic laws and courts. In addition, there are countless historical examples of tyrannical and oppressive policies being implemented through courts. Thus, in paying special attention to the matter, international human rights law emphasizes in the Universal Declaration of Human Rights that it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. Article 3 of the Statute of the Council of Europe follows suit: Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms Article 1 of the European Convention on Human Rights, in addition, states: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. These and other instruments of law confer on the states substantial responsibilities for the protection of human rights. Of a state s obligations in that regard, the most important include constitutional and legal recognition of citizens human rights, non-interference in individuals exercise of those rights as long as such exercise does not violate the freedoms of others, and protection of those rights against interventions by others. These obligations have also become sources and criteria for a state s claim to legitimacy. In other words, states are now considered to be legitimate to the extent they recognize and protect human rights. As a matter of fact, the protection of states rights to sovereignty cannot hold its ground against human rights, thus no state can have recourse to the non-intervention in domestic affairs discourse in the face of violations within that state s borders. The judiciary is the most important mechanism that will check the compliance of government policies and practices with the law and protect citizens rights and freedoms. This is why all acts and transactions of the administration need to be subject to judicial review in a state where rule of law prevails. In short, the judiciary is the one and only power that will put the principle of the rule of law into practice. In order for the judiciary to serve that function, that is, to protect human rights, it is indispensable that constitutional and legal arrangements be compatible with human rights law. Put differently, implementing the principle of rule of law necessitates that the law should, instead of siding with the state, have an autonomous standing vis-à-vis the state. The law must maintain equal distance to the state and the citizen. Otherwise, it will not be able to serve its arbitral function between the two sides, and as a result, its legitimacy becomes contested. Considering Turkey in this light, one sees that the legal framework has adopted the ideology of creating a homogenous society and a modern nation, instead of securing all individuals rights. Founded as a modern state upon the remnants of the multi-religious, multilingual, and multiethnic Ottoman Empire, the Turkish Republic decided that it would not be possible for it to realize the plans to construct the new nation without denying room to the distinct identities. In line with the secularist and nationalist policies pursued as an outgrowth of this approach, the legal framework underwent a complete overhaul. It has become widely accepted today that Kurds were one of the primary targets of these policies. As a matter of fact, in addition to general legal and constitutional amendments necessary for a Turkey committed to human rights and the rule of law, a number of particular arrangements are also required for a lasting and democratic solution to the Kurdish Question. Constituting the main focus of this report, these arrangements can be broken down into two groups: constitutional and legal. Although the constitutional articles and legal provisions examined in detail and the regulations and statutes which occupy lesser space in the report might appear to have a general character and do not include the words Kurd or Kurdish, they are essentially instruments aiming to restrict Kurds fundamental rights and freedoms and practically causing indirect discrimination against the Kurds. It goes without saying that several administrative measures that do not necessitate any particular legal arrangements must also be taken to solve the Kurdish Question. Discussed as part of the debates on the democratic initiative, 11 12 some of these measures include the restitution of names in Kurdish and other languages to places plastered with Turkish names, removal of nationalist slogans etched by the state onto mountain slopes in Turkey s eastern and southeastern region, changing the militarist names given to schools in the same region, and
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