Derya Bayir, Minorities and Nationalism in Turkish Law. London: Ashgate, 2013.
Jadaliyya (J): What made you write this book?
Derya Bayir (DB): Turkey’s uneasy relation with its multi-ethnic and multi-religious diversity is well known. The resurgence of the Kurdish minority over the last three decades has sharpened this uneasy relation. When I began writing this book, the initial question was to locate Turkey’s position in light of developments and trends in international law regarding the protection of minorities. This initial question soon proved too immature, since it became difficult to understand and present Turkey’s dilemmas regarding minorities prior to examining the causes of Turkey’s persistent failure to protect its minorities and to maintain its diversity.
My journey through Turkish legal history showed that there has been a more or less persistent mindset towards minorities. The core problem was not only Turkey’s bitterness towards minorities because of their separatist desires, which did indeed have very traumatic human, territorial, and economic effects on the Ottoman Empire and then on Turkey. The impact of Turkish nationalist ideology on the socio-political and legal system in Turkey needed to be studied. It is these factors that have been, and continue to be, responsible for a pervasive anti-difference and anti-diversity climate.
This finding gave rise to a further important question: How did the legal system accommodate and justify Turkish nationalism? After all, the claim has been that the state system was based on “constitutional/territorial nationalism.” More precisely, the question was about how the state’s anti-diversity discourse was articulated into the law and legal discourse. What is the role of the legal system and judiciary in institutionalising anti-diversity practices? To answer these questions, I examined the actual legislation and the explanatory notes to this legislation, as well as parliamentary discussions and the jurisprudence of the Turkish higher courts. I believe I have been able to show that the Turkish legal system has played a critical role in the institutionalization of an anti-pluralist logic and stance by protecting, legalizing, and—most importantly—justifying an anti-pluralist hegemony.
J: What particular topics, issues, and literatures does the book address?
DB: My book takes an interdisciplinary approach. It is divided into two main parts. The first three chapters are more concerned with historical and legal developments regarding minority policies in Turkey, while the rest of the book concentrates on the conceptual problems occurring in the Turkish legal system regarding the protection of minorities in more recent decades.
In the book the term “minority” has a broader meaning. It is not restricted by the Turkish state’s definition of a minority, which confines minorities to Greeks, Jews, and Armenians. The general assumption that only non-Muslims are recognized as minorities is not correct, since not all non-Muslims in Turkey have minority status in Turkey. For example, Syriacs, Assyrians, Yezidis, and other non-Muslim communities are not considered as minorities in Turkey. Further, the Lausanne Treaty is not the only legal document determining the status of minorities in Turkey. A treaty between Bulgaria and Turkey confers minority status on Bulgarians in Turkey. Moreover, today in international law, the state’s decision is not a condition for acknowledging the existence of a group as a minority.
In my book, the term “minority” is being used in accordance with the current understanding in international law. It thus covers all ethnically, religiously, linguistically etc. distinct groups existing in Turkey, who are not in a dominant position and who desire to protect their differences. Many claim that Kurds or Alevis are not a minority, especially given their substantial numerical presence in Turkey or their claim to being a founding element of Turkey or to being equal citizens (asli unsur or eşit yurttaş). However, international law offers no other framework besides minority status under which the demands of these groups for recognition and protection of their ethno-cultural and political rights can be categorized.
My book does not take a particular minority group as a case study, but attempts to examine the state’s minority policies from a legal perspective. I should admit that due to the material I had, the case of the Kurdish minority has become more visible in the book. However, this was not a deliberate choice, but was compelled by other obvious reasons, such as the case law on the Kurds being more prevalent than that for any other minority groups.
The book is focused on the role of the legal system and the judiciary in the management of diversity in Turkey; it demonstrates how state policies have been articulated into legislation and embodied in court jurisprudence. It shows how the Turkish legal system has persistently failed to accommodate ethno-religious diversity in the country, a failure attributable to the state’s founding philosophy—Turkish nationalism—and its influence upon legislation and judicial bodies.
[Turkish Constitutional Court in session. Image from unknown archive.]
I conclude that the legal system and jurisprudence has depended on Turkish nationalist discourse. It has, moreover, participated in creating the legal discourse of Turkish nationalism. Perhaps such a conclusion is not surprising, since Turkish nationalism has been defined as the founding principle of the state and legal system in Turkey. In this setting, the higher courts have configured the concepts of the “nation” and “citizenship” with reference to the ethno-cultural characteristics of the Turkish ethnie. Moreover, legislation and court jurisprudence show that the identity of the “Turk,” claimed to be a neutral, political identity, is in fact crafted along the lines of ethno-cultural and religious particularity. Thus, the word Turk refers to a people constituted sometime in the past, continuing to exist through history, with distinct memories of the ethnic Turks’ ancestry in Central Asia, and with ethnic relatives abroad.
Through this double attribution to the word Turk, the legal system aimed to assimilate its diverse people under the consciousness of Turkishness, and linked them with the greater ethnic Turkish world. It also privileged those who have a Turkish ethnic lineage by providing them with a status approximating to citizenship. This preference also demonstrates the importance of the Turkish ethnicity to the state.
The case law also theorizes what a “minority” is. It is conceptualized negatively, and portrayed both as having a second class citizen status as well as unjust special privileges beyond “fair” universalistic citizenship rights. A minority is seen as something created at will, out of ill intentions. It is not seen as a fact of society. Minority rights are portrayed as reinforcing divisions among the state’s population because they are group-specific. Ultimately, they are seen as leading to an escalation of secessionist movements and to the territorial fragmentation of the state. The Constitutional Court has put its efforts towards justifying the position that the concept of minority is inconsistent with the concepts of the nation and citizenship, and even the concept of human rights. It also considers people simply as “human beings” while their “cultural being” does not matter. The Constitutional Court’s case law therefore establishes its deep prejudice against the concept of minority, which it views as a threat to the state’s existence as well as its homogenous idea of nation and citizenship.
One of the most important principles that the judiciary has relied on is equality before the law. This egalitarianism principle has paved the way for the creation of a legality justifying the state policies negating diversity in the country: everybody is equal and there are no differences. Consequently, it is also claimed that there is no discrimination. The book has a chapter on anti-discrimination, anti-racism, and hate-crime legislation and jurisprudence. It shows that the legal system has failed to create an adequate system to protect Turkey’s diverse groups against assaults or discrimination. The role of the judiciary requires criticism. The Turkish Penal Code’s famous article 216 (inciting animosity and hatred) has never been used in order to protect ethnic or religious minorities in Turkey. However, the Court of Cassation decided that criticizing the ideological official state motto—“How happy is he who is a Turk”—amounts to inciting hatred and enmity among groups. In another case, the Court of Cassation acquitted the president of a Turkish racist association, Toplumcu Buduncular, which had been campaigning for limiting the Kurdish demographic increase in Turkey. Interestingly, the Court of Cassation justified such actions as being within the limits of freedom of expression.
At the same time, the judiciary in Turkey is very concerned to protect and promote Turkish cultural and linguistic existence. For instance, the now infamous ‘‘insulting Turkishness’’ provision appeared in all criminal codes. Some might claim that the amended Criminal Code of 2004 only penalizes ‘‘insulting the Turkish nation.’’ However, the discussion of case law in the book shows that ‘‘Turkishness’’ and the ‘‘Turkish nation’’ are said to be the same thing. Hence in practice the change was insignificant. The Surname Law of 1934 only allows Turkish names to be taken as surnames. Interestingly, the Constitutional Court last year refused to pronounce this provision as being against the principle of equality. In the Court’s view, since the Surname law applies to everybody on an equal footing, it is consistent with the equality principle.
An important recent development may be an ostensible sign of change towards a diversity sensitive jurisprudence. A few weeks ago, the Court of Cassation allowed the historical geographical name “Kurdistan” to be used as a first name. However, on closer examination, the judgement is rather disappointing. The court refers to the word “Kurdistan” as being a “foreign” name, while stating that the use of non-Turkish names as first names are not prohibited. In referring to Kurdistan as a foreign name, the Court contemplates an “us” which does not comprehend Kurds. This shows that when the Kurdish minority’s ethno-cultural claims find recognition and accommodation, it is not an inclusive but an exclusionary accommodation.
Meanwhile, the judiciary has considered minority claims for protection and promotion of differences outside of the so-called umbrella identity of Turkishness to be “racism.” For instance, in the Emek Partisi judgement, the Turkish Constitutional Court blatantly argues that this party’s claims for the Kurds, including recognition of their distinct language, culture, and ethno-cultural rights, amount to “provocation aiming at discrimination”, are anti-democratic, and, moreover, constitute “racism.” At the same time, the judiciary has legitimized the protection and promotion of the Turkish ethnie’s language and culture. It has conceptualized Turkish nationalism as a “good” nationalism because of its “cultural” and “linguistic” assimilationist basis. It is thus “non-racist.” The law and judiciary have failed to afford equal respect and equal concern for all. They have thereby acted as the third arm in the promotion of Turkish nationalism, after the state and the military.
I am also critical of the prominent academic discourse on the reasons for Turkey’s persistent failure to protect differences. Explanations have mainly concentrated on Turkey’s trauma resulting from minority nationalisms and secessionist desires during the last century of the Ottoman Empire. This trauma discourse has often crystallized around the notion of the “Sèvres Syndrome.” It is a term used by scholars to describe the prevalent mind-set created by the heavy losses inflicted upon Turkey under the Treaty of Sevres of 1920. This is, however, problematic, since it only tells the story from the ruling elite’s point of view. This trauma discourse posits the Turks as the “victims” of untrustworthy minorities. It legitimizes the Turkish political elite’s discourse of nationalism by portraying this nationalism as a mere reaction to separatist minority nationalisms. Turkish nationalism is thus read as a defensive and compelled nationalism. Ultimately, it is a “positive” nationalism, non-aggressive and non-threatening to the well-being of non-Turkish groups. This is a convenient psychological explanation for the state’s security-driven policies in the management of diversity.
[Armenian journalist Hrant Dink, who was assassinated in Istanbul in 2007. Photo via Flickr, from utkukali`s photostream.]
The influence of Turkish ethno-nationalism on the conceptualization of nation and citizenship has been noted by many writers. They mainly focus on the single party regime. I critique this period-limited problematization of the management of diversity. I claim that the main philosophy of the one-party period has been very much alive and relevant throughout the Turkish Republic, and remains alive today. As explained in the book, it is generally claimed that the Turkish state and legal system are “cultural nationalist” or “civic nationalist.” Even during the single party period their nationalism was named as “cultural nationalism” (kültür milliyetçiliği). Despite this naming, this nationalism has been an ethnic nationalism, where “the national” is formulated with reference to the Turkish ethnie’s language, religion, culture, history, symbolism, celebrations, law, morality, etc. Further, the Turkification of non-Turkish elements in the country were declared as a mission to be achieved through cultural, economic, and coercive means, as manifested in many laws, parliamentary discussions, and case law.
The book also tries to read Ottoman pluralism from a different perspective. It is generally thought that the state-subject relationship in the Empire was premised on the population’s religious affiliations as Muslims and non-Muslims under the so-called millet system. However, the dominant reading of Ottoman plurality through the prism of the “Muslim-non-Muslim” dichotomy does not do justice to the pluralist Ottoman structure. Cultural, ethnic, linguistic, economic, regional, and other factors also had a place in conditioning the state’s relations with its subjects and its various communities.
I show that besides the so-called millet system, another distinguishing feature played a significant role in this plurality. That was the Empire’s flexible and pragmatic organizational and political system, whereby the peripheries enjoyed degrees of autonomy outside the control and administration of the center. This distinctive, decentralized, and flexible organizational system created a framework for negotiating the pluralist reality of the peripheries beyond the millet system, thereby accommodating their traditional social, legal, and other differences within the Empire.
The book also argues that the roots of the minority dilemmas of the Turkish Republic cannot be understood without taking account of the Empire’s transition from the imperial state structure to the modern, nation-state structure. The mainstream view is that the Empire’s classical diversity management system failed chiefly because of the influence of nationalist ideas among non-Muslim and non-Turkish groups, aided by the economic and political interventions of Western powers. I problematize this dominant perspective by adding into the equation the role of the Ottoman leaders’ changing vision of transformed statehood—from an empire to a modern nation-state—which required reformulation of classical state-society and inter-communal relations. An interdisciplinary approach is adopted here, taking into account the history and the politics of managing diversity, with a focus on the legal reforms. The influence of nationalist ideas on the political elite and changes in the socio-legal and political system are possible causes of the Empire’s collapse and the end of its pluralism. The reception of those changes by, and their impact upon, diverse communities is examined as another factor in the collapse of the structure supportive of the diversity of the Empire. Examination of the Ottoman parliamentary records was very crucial for me to understand the effect of the state ruling elites’ vision upon the non-Turkish elements, the frustration and disappointment of those non-Turkish elements with that vision, as well as their own ideas about the future of the Empire. They help us to understand the effect state policies were having on their position.
Overall, my book shows that the official stance of Turkey as a civic state is a “myth.” This myth protects and promotes the Turkish ethnie’s language, culture, tradition, history, etc. That demonstrates that it is not neutral or equidistant from its diverse communities. Rather, it asymmetrically privileges the Turkish ethnie and Sunni-Islam. The institutionalization of attitudes towards diversity and towards minorities has gone deep into the legal system. This means that without a fundamental change of mindset, Turkey will continue to languish in its embedded policies of repression, exclusion, and assimilationism. The minor changes that have been witnessed in recent years will not last long without a much more concerted effort to re-examine the long-established course of homogenization.
J: How does this book connect to and/or depart from your previous research?
DB: I have been working as a human rights lawyer for many years. In that role, I litigated cases before the European Court of Human Rights and worked for Human Rights NGOs in Turkey. My experience as a legal practitioner made me aware that the judiciary and legal system were siding with the status quo and the state, and thus assisting in continuing human rights violations in Turkey. My experiences also helped me to understand complex legal issues more deeply, and how to interpret and see through them.
J: Who do you hope will read this book, and what sort of impact would you like it to have?
DB: I am hoping that the book will attract the interest of a wide readership, among which I would include academics and human rights practitioners. More specifically, it should interest those studying ethno-religious minorities in Turkey, nationalism, and constitutional courts. Turkey is in the process of writing a new constitution right now. I am hoping that in showing how the Turkish legal system has fallen short in protecting minorities and pluralism in the country, the book can inspire those preparing the new constitution to not repeat the problems inherent in the old.
J: What other projects are you working on now?
DB: I am currently focusing on religious minorities and the use of religion in prosecutorial arguments and judgements in Turkey. Thus, as my future project, I want to research the role of secularism and Islam in negating or distorting religious diversity in Turkish law. Specifically, I want to examine the status of religious minorities in Turkey from a legal perspective, and to examine in detail, particularly through a study of court jurisprudence and legislation, Turkey’s uneasy relationships with these groups. My new research aims to understand how, in a seeming paradox, state secularism has facilitated a particular Sunni version of Islam in shaping the status of religious minorities, and the extent to which a Hanafi Sunni interpretation of Islamic theology has been used as reference point for determining the state’s relations with religious minorities and the legitimacy of their claims.
J: How might your work help readers better understand the current political and legal context of the ongoing protests in Turkey?
DB: This book might not be directly linked to the ongoing protests in Turkey. What it does do, however, is provide a background to the state’s authoritarian, nationalist, and monistic reflexes. It also reveals the reasons behind intolerance towards all kinds of minorities (ethnic, religious, and political) who are operating outside the ideological frameworks of the rulers.
Excerpt from Minorities and Nationalism in Turkish Law
From the outset, the Turkish state officially promoted “cultural nationalism” (kültür milliyetçiliği). This nationalism is defined as being based on culture and not on race or ethnie. The mythic claim behind this “cultural nationalism” is that it leaves the doors of the national community open to all, regardless of their ethnic, religious, and other origins. Meanwhile, it trivializes the demand of this cultural nationalism for a coercive adaptation to a homogeneous culture, defined with reference to the Turkish language, culture, history, and common ideals at the expense of other cultures, languages, histories, and so on. Indeed, state officials and many commentators have interpreted the possibility of being accepted into Turkishness as evidence of its civic and “legalist-voluntarist” nature. In reality, however, the discourse of “cultural nationalism” has been very exclusionary since access by non-Turks into the national community is conditioned upon their capacity for Turkification, that is, their unconditional acceptance to be Turks by culture. Even the concept of culture presupposed by Turkish cultural nationalism has been problematic, since it defined culture from a primordialist and perennialist perspective—that is, as something ancestral, having been formed in antiquity by a particular ancestral group, and carried unchanged into the future.
Although the principle of equality dictates that ethno-religious minorities should be treated on an even-handed footing as the majority and their equal protection from hate speech and hate crimes should be secured, the ethno-religious minorities did not have the same protection as majority Turks in Turkey. The Turkish legal system and judiciary, while neglecting to protect minority groups’ identities and their differences and mostly failing to protect non-Turkish people and non-Muslims from hatred and animosity, have been particularly interested to protect ethnic Turks by penalizing “insulting Turkishness” in penal codes. This provision has been identified as creating “inequality and further discrimination” between non-Turks and ethnic Turks. The provision against “insulting Turkishness” did not only function to protect ethnic Turks, but has been used to suppress ethno-religious minorities in Turkey.
“Insulting Turkishness” has been part of the Turkish penal system from the beginning of the Republic and was first encoded in article 159 of the now defunct TCK of 1926. In the early years of the Republic, that provision was especially used against non-Muslims, many of whom were prosecuted for “insulting Turkishness” and this became a way of Turkish nationalism exerting a threat against non-Muslims. However, Koçak’s recent research, covering the period 1926-1938, shows that although most cases under this provision were brought against non-Muslims, this provision was also used against non-Turkish Muslims. Koçak states that the use of ethnic names of defendants, such as Arab, Kurd, Caucasian, Afghan, Acem, Albanian, Laz, Kosovar, Abhaza, Kıpti (Roma), etc. during the process of obtaining permission for initiating a criminal procedure by the state authorities showed that the perception of Turkishness on paper and in real life was not identical. The cases brought against non-Turkish Muslims also demonstrated that not only were non-Muslims considered “foreigners” (yabancı) by the state in the early years of the Turkish Republic, but also various non-Turkish Muslims were regarded as “foreigners” in terms of their origin and they were kept under surveillance by the state. Koçak also states that the operation of the law on insulting Turkishness proves that, particularly in the early years of the Republic, Turkish nationalism emerged as a form of racism and that the state gave more importance to “blood ties” than to formal citizenship.
The Yargıtay’s recent case law reveals that the concept of Turkishness is still considered as tied up with ethnicity, language, history, and culture. It has viewed the concept of Turkishness as the “nation” component of statehood and defined Turkishness as “the entirety (bütünü) of national spiritual values which generated the Turkish nation which encompass humanitarian, religious, and historical values together with the national language, national feeling, national tradition.” However, in its well established previous case law, the concept of Turkishness was more openly linked with ethnic Turks. Turkishness was construed as “the Turks” (Türklerin) humanity, morals, religious and national tendencies, beliefs, national language, history, traditions, feelings, and the entire religious values which compose the nation,” and was also considered as one of “the state’s and nation’s essential (öz) values.”
In order to decide which sorts of acts and remarks amounted to insulting Turkishness, the Yargıtay took into account the “dominant ordinary comprehension, custom, and habit in society.” The jurisprudence therefore suggests that the aim was to protect the majority’s understanding of Turkishness. Evidently, this approach left out the minorities’ understanding of Turkishness. If one takes into account the dominance of Turkish “nationalist feelings” in the country and the role of these feelings and prejudices in the determination of the “other,” basing the understanding of “Turkishness” on the ordinary people’s understanding results in a very ethnically conditioned concept of Turkishness. However, it was not only the Yargıtay’s jurisprudence which linked Turkishness to the ethnic Turks; the legislator also participated in emphasizing the ethnic meaning of Turkishness. The explanatory note to defunct article 301 of the TCK of 2004 stated that
the term Turkishness in this article means the entity which emerged through the collective culture which is particular to the Turks wherever they live in the world. This entity is wider than the Turkish nation and covers people living outside of Turkey and communities who are participants of that same culture.
Opting for the phrase “Turkishness” seems a deliberate choice of the legislator which aimed to protect something beyond a Turkish nation composed of citizens. As evident from the explanatory note, the linking of Turkishness to Turks all over the world made it obvious that Turkishness was anticipated as something based on race or kinship and culture (soy and kültür). This explanatory note caused serious concern among some academics. For instance, Sancar, pointing out the “ethnicist and essentialist” (özcü, ensisist) interpretation of the concept of Turkishness by the Turkish judiciary, also warned that the explanatory note to article 301 could assist the judiciary to “gradually slip towards a racist direction and racism.”
Increasing pressure from the EU, as well the death of the Armenian journalist Hrant Dink, seriously brought the legitimacy of article 301 into question. The article was therefore amended in 2008 and the word “Turkishness” was replaced by “Turkish nation” which was deemed as an ethnically “neutral” concept, while prosecution of this offence is made conditional on prior authorization by the Minister of Justice. From now on, it is not insulting “Turkishness” but insulting the “Turkish nation” which is penalized by the TCK of 2004. Several writers had earlier supported the replacement of the word “Turkishness” by “Turkish nation.” Despite the change, however, the problem remains as to which criteria should be used for defining the “Turkish nation.” Should it be a definition based on citizenship criteria, or should it be a definition which is founded on ethnic origin, cultural, historical, linguistic, or national identity criteria? Importantly, has the change influenced the approach of the Yargıtay judgements?
 Arslan 2007: 283.
 Koçak 2005: 167, who refers to the threat of being prosecuted for insulting Turkishness as “unrevealed face of Turkish nationalism” (“Türk milliyetçiliğinin görünmez yüzü”). Also see Alexandris 1983: 140 and Bali 2005: 136-137.
 Koçak 2005: 164.
 Ibid. 164.
 Ibid. 168. See especially chapter three and four herein which back up Koçak’s perspective.
 Sancar 2006: 84-85. It is also stated that Turkishness denoted the “entirety (bütünü) of the cultural elements which also includes a racial meaning but goes beyond this racial meaning”: Koca 2001a: 448.
 YCGK, E.2006/9-169, K.2006/184, 11.07.2006. Also see Koca 2001a: 449.
 For an explicitly ethnic definition of Turkishness, see Gözübüyük 1967: 428. He was the public prosecutor at the retrial of Türkçülük Davası in 1944 and was Minister of Justice in 1960: Akın 2004: 180.
 Gözübüyük (undated): 620. Military Yargıtay Daireler Kurulu, E.1999/60, K.1999/73, 08.04.1999; Y.(1).CD, E.1969/1665, K.1969/1980, 25.06.1969; Y.(1).CD, E.1970/494, K.1970/808, 17.03.1970.
 Also see YCGK, E.2006/9-169, K.2006/184, 11.07.2006.
 For a similar argument, see Arslan 2007: 283.
 Sancar 2006: 85.
 Ibid. 86.
 Hrant Dink was chief editor of the bilingual Turkish-Armenian newspaper, Agos. He was killed by a Turkish ultra-nationalist assassin in 2007. He had become a public figure especially because of his trial for “insulting Turkishness.”
 Article 1 of Law no. 5759, 30.04.2008.
 See Koca 2001b: 612; Sancar 2006: 83.
[Excerpted from Minorities and Nationalism in Turkish Law, by Derya Bayir, by permission of the author. © 2013 by Derya Bayir. For more information, or to buy this book, click here.]