The thirteenth meeting of the National Solidarity, Brotherhood and Democracy Commission, established within the framework of resolving the Kurdish question, has concluded. One of the figures heard at the meeting, constitutional law expert Prof. Fazıl Hüsnü Erdem, emphasized that the solution to the Kurdish question must be considered in two dimensions and underlined the need for constitutional amendments. Erdem stated that constitutions everywhere in the world play a crucial role in resolving conflicts before they turn violent, and in transforming conflicts that have already escalated into lasting peace. He added that a similar assessment could also be made for the method of constitution-making itself.
Constitutions based on participation and broad consensus
Prof. Fazıl Hüsnü Erdem told Mezopotamya News Agency (MA) that constitutions drafted on the basis of participation and broad consensus are social contracts that do not lead to division, polarization, or conflict, but rather can function to reduce and resolve existing tensions and disputes. Erdem added, however, that they may also generate effects that fuel division and conflict: “The 1982 Constitution, as well as the 1924 and 1961 constitutions, could not attain the quality of being everyone’s constitution, both in terms of the methods by which they were drafted and in regard to certain provisions they contained.”
We must transform negative peace into positive peace
Erdem said, “Important steps must be taken to give peace the strength to endure. Transforming the state of negative peace, in which significant measures toward lasting peace have been taken into positive peace and making peace permanent and sustainable, requires a new constitution. Moreover, when one sets out to put the Kurdish question on a proper path, it is only natural that constitutional demands will come to the fore. There is a very strong link between the Kurdish question and the constitution. The current constitution creates factors that both deepen the Kurdish issue and turn it into conflict, and that stand as an obstacle to finding a solution. The solution to the Kurdish question should be considered in two dimensions: disarmament and constitutional legal demands.”
Three key issues come to the forefront
Erdem underlined the need for these two dimensions to be addressed simultaneously as part of a long-term approach and said, “When we look at constitutional demands, we see three important issues come to the forefront. These are demands related to cultural identity rights, citizenship, and the administrative structure. Meeting these demands is therefore very important for resolving the Kurdish question. First, I will address cultural identity rights; the right to education in the mother tongue is at the top of these cultural rights. It would not be an exaggeration to say that the mother tongue lies at the very center of this issue. Even if Kurds differ on many other matters, it is possible to say that they stand very close to each other on the matter of the mother tongue. When this demand is raised, some circles try to condemn it from the outset by constructing a false opposition between the official language and the mother tongue. Yet there is no contradiction between the official language and the mother tongue. The existence of one does not depend on the absence of the other. On the contrary, global experiences have shown that when proper regulation and planning are carried out, these two languages nourish each other.”
The guarantee is the recognition of these rights at the constitutional level
Erdem emphasized that Turkey could take many steps on the issue of the mother tongue and said, “Turkey can be cleared of linguistic prohibitions. It can lift the reservations it has placed on international conventions that foresee the use of the mother tongue. Preparations for the use of the mother tongue in education can begin without delay. The greatest guarantee for the implementation of cultural identity rights, including the mother tongue, is Turkey’s recognition of these rights at the constitutional level. In my view, an ideal constitutional arrangement should contain two provisions on this matter: first, a general protective article on cultural identity rights; and second, a special regulation concerning digital rights.”
Linguistic rights
Erdem said, “My proposal regarding the general protective provision is as follows: Everyone has the right to freely express, preserve, develop, and disseminate their cultural identity. The state shall take the necessary measures for the exercise of this right and enact the required legal regulations. I also have a three-paragraph proposal concerning the article on linguistic rights. The first paragraph: everyone has the freedom to express and disseminate their thoughts and opinions in their mother tongue, and the right to establish, operate, and benefit from written, visual, and audio means of communication in their mother tongue. The second paragraph: everyone has the right to receive education in their mother tongue. The third paragraph: everyone has the right to receive public services in their mother tongue and to use their mother tongue in their relations with public administration.”
Article 42 can be removed
Erdem said, “The right to the mother tongue has three elements, and all three are included in this proposal. If consensus cannot be reached on this ideal arrangement, then one of the two provisions could at least be accepted. In other words, as an alternative, if this second option is also not accepted, then, as a minimal demand, the removal of the prohibitive provision in the last paragraph of Article 42 of the constitution could be pursued. That provision states that no language other than Turkish shall be taught or used as a mother tongue for Turkish citizens in educational institutions. I believe that repealing this and leaving the use of the mother tongue in education to the legislators could be a first step.”
Concepts in the constitution
Erdem, while also touching upon the issue of citizenship and referring to the 1921 Constitution, and said, “This constitution was a transitional constitution. It did not contain all the provisions that would normally be found in a typical constitution. In matters not covered by the 1921 Constitution, the 1876 Constitution remained valid. At the same time, it is possible to deduce the constitution-maker’s perception of citizenship from the expressions used in other articles of the constitution. For example, when we look at the constitutional text, we see that instead of the term ‘Turkish state,’ the term ‘State of Turkey’ was used, and instead of ‘Turkish nation’ or ‘Turkish people,’ the terms ‘nation’ and ‘people’ were employed. Although the level of democratic legitimacy was not very high, the sociological legitimacy was very high. I think it is significant and meaningful that a parliament which emphasized the need to carry out the national struggle in unity and solidarity showed such sensitivity.”
Everyone suffers from the centralized structure in Turkey
Erdem also drew attention to the rigid and centralized structure in Turkey and said:“Almost everyone suffers from this centralized system. For this reason, from the 1990s to the present, we have seen that many of the new constitution or constitutional amendment proposals prepared by various groups, as well as party programs, have included provisions related to localization and regionalization. Indeed, when we look at the new constitution or amendment proposals prepared since the early 1990s by professional chambers, civil society organizations, and political parties, we see not only the expression of discontent with the existing rigid centralized structures, but also proposals for creating a more decentralized system. Almost no party is satisfied with the current administrative structure. All of them have views on reorganizing the relationship between central government and local administrations.”
Decentralization must be a constitutional principle
Erdem underlined the need to enshrine a decentralized system as a constitutional principle and said: “We will move toward this through legal arrangements. If this proves impossible, I think it would be sufficient for the constitution to include a provision limiting administrative tutelage to conformity review.”
Constitutional amendments will strengthen democracy
Erdem added that if these proposals are included in the constitution, significant progress would be achieved in many areas and said: “The three issues in question are cultural identity rights, citizenship, and local administration. I want to stress one point in particular regarding possible amendments in these three areas. If such steps are taken, not only will the solution of the Kurdish question become easier, but they will also pave the way for establishing a better quality and more prosperous life for all citizens in Turkey. Constitutional amendments will benefit not only Kurdish citizens but all of our citizens. Therefore, it would be appropriate to view these changes both as a foundation for resolving the Kurdish issue and as steps that will strengthen democracy in Turkey.”