Derya Bayır, Minorities and Nationalism in Turkish Law, Surrey: Ashgate Publishing House, 2013, 314 pp., (ISBN: 9781409420071).
Since her foundation, the Republic of Turkey has had a notorious record of diversity management. Non-exhaustive case law rendered by the European Court for Human Rights (ECHR) on the basis of failed prevention of discrimination and minority protection serves as an indicative. Against this background, Derya Bayırâs Minorities and Nationalism in Turkish Law is quintessential literature in comprehending the driving force behind this phenomenon. This book, consisting of six chapters, examines the root cause of this record: constitutionally protected nationalism and its legal consequences on minorities subject to a state doctrine, whose branches of power have continuously fostered rhetoric of oneness rather than togetherness. The lecture is very welcoming as although there now exists extensive literature on Turkeyâs minorities, the majority of them are analysed from a political or historical standpoint. Legal analyses, however, fall short. Thus, Bayırâs study must be celebrated as unprecedented and an enrichment of this literature.
The book is very readable and well-structured, as the author takes the reader by the hand and introduces the historical climax that led to radical changes within the legal landscape. Chapters one and two prove to be beneficial in comprehending the legal transformation witnessed by both Turkey, as well as her predecessor, the Ottoman Empire. A merit of chapter one is how the author points to reforms of âsecularisation and westernisationâ, which commenced prior to the declaration of the Republic of Turkey (1923), and not, contrary to popular belief in Turkey, afterwards. Prominent examples are, as Bayır argues, the Penal Code (1843), Codes of Procedure for Criminal Courts (1880), and the Commercial Law (1860) (p. 39). More importantly, this chapter takes into consideration the millet system. The harmonising Ottoman society is attributed to this legal institution; however Bayır unmistakably points out its weaknesses. Though non-Muslims were subject to the administration of their own clergy to the extent of inter alia educational and judicial matters (pp. 23 et seq), âthe millet order was not a minority protection system in the modern sense, but an organisational structure for dealing with non-Muslim diversity within a plural societyâ (p. 27). Once the attempt of creating an Ottoman citizen was abandoned at a time when the empire was falling apart, Bayır then eloquently explains how the creation of a Turkish citizenship came to the rescue, which she rightfully refers to as a âcampaign of nationalizationâ.
In chapter two Bayır reviews the legal point of no return, the Lausanne Treaty, which ultimately led to a non-inclusion, particularly non-recognition, of many minorities living in Turkey. She raises the question, who the Turkish plenipotentiaries regarded as a minority, and comes to the conclusion that the âTurkish stateâs perspective held that minority protection is only given to non-Muslims with reference to their religionâ (p. 89). It is due this legal interpretation that only non-Muslim minorities are officially regarded as such, particularly Armenians, Greeks, and Jews. According to this intentional legal misinterpretation non-Muslim is condicio sine qua non to fulfill the requirement of being defined as minority. This paved the way for the following not to be recognised strictu sensu as a minority: inter alia Alevi, Arabs, Assyrians, Bahais, Chaldeans, Georgians, Kurds, Laz, and Zaza, to name but a few (p. 3).
The author articulates Turkeyâs âcivilising missionâ vis a vis minorities in chapter three. In her view ââunificationâ in the form of âhomogenisationâ and âTurkificationâ under a âTurkishâ identity, culture, and language, as well as Turkish nationalist ideology, has marked the minority-state relationshipâ (p. 95). Taking into consideration the meticulous inspection of private sphere penetrating policies, her argument finds validation. Throughout this chapter, she demonstrates a wide range of aggressive policies of assimilation: top-down language policies, restrictions on certain surnames, renaming of places/cities, reinvention of history, elimination of religious, social, and traditional structures, as well as forced resettlement of minorities. At this point one might question why seemingly the focal point of this study, although the title reads âminoritiesâ, is the Kurds. However, raising such critique is unsubstantiated, as the Kurds constitute the largest minority in Turkey, if not a parallel unrecognised nation.
Derya Bayırâs vast legal experience becomes most visible in the second part of the book (chapters four, five, and six). In chapter four for instance, Bayır applies the Savigny method (grammatical, systematical, historical, and teleological interpretation) of identifying who the judiciary and legislation regards as a Turk. In doing so one comprehends why âTurkey does not give official recognition to ethnic, or to some religious minorities. It claims that ethno-cultural or religious identities and their expressions are regarded as an individualâs choice and are private, but not relevant at state levelâ (p. 144).
The status quo maintenance of the Constitutional Court of a non-inclusive sociopolitical environment of the âotherâ is critically portrayed in chapter five. Bayır reviews a wide array of case law with a special focus on the âpolitical party closure casesâ pursuant to article 69 of the Turkish Constitution. In doing so, her attentive selection of case law rendered by the Constitutional Court is in absolute favour of her critical line of argument. Probably, this chapter guarantees the most involuntary headshakes to the reader. Particularly, she addresses case law of the Constitutional Court according to which: âdemands for minority status and recognition of differences to be associating with impairing social peaceâ (p. 206); âseeking minority status and recognition [â¦] creates hate and animosity among the peopleâ (p. 206); âpromoting the existence of minorities and feelings of differentiation among some citizens as provocative and destructiveâ (p. 207); and lastly the ruling that âa minority is an artificial formation [emphasis added] and something that might be formed by politics in line with the view of Turkish legislatorsâ (p. 207). Bayırâs critique on the unwillingness of the Constitutional Court to foster an embracing judicial interpretation of the other, the different, is underlined by her terminology. Though the author regards the Constitutional Court to promote activism â which the reviewer deems as a decisive instrument to promote checks and balances in a functioning rule of law state â she further rightfully accuses the Constitutional Court of âselective activismâ (p. 188). Thus, the Constitutional Court can be criticised to have âruled in favour of the status quo as opposed to human rights and freedomsâ (p. 188).
Lastly, chapter six reviews case law of the Court of Cassation (the last instance), as well as concepts of equality before the law, non-discrimination, and hate speech. This last chapter portrays how legislation and the judiciary were endeavoured to protect the majority from the minority instead of vice versa. Particularly in this regard, Bayır provides insight into how insulting the Turkish nation is an integral criminal act according to the Turkish Criminal Code (p. 246). Yet, on the other hand, the legislative and judiciary proactively neglects to protect the identities of non-Turkish and non-Muslim people (p. 244). In this chapter Bayır exemplifies a wide range of grotesque and human dignity violating samples of daily life mistreatment. For instance, the refusal of a dead body into a hospital morgue because of the political views of the deceased (p. 231) as opposed to a human rights professor who publicly calls for birth rate controls of Kurds and remains without indictment (p. 233).
Derya Bayırâs experience as an attorney who litigated landmark cases before the ECHR is transmitted in many aspects throughout the whole book. Her attention to detail is most apparent in the vast quantity of sources used in this important study. At times her arguments are not merely supported by codes and case law, but also by parliamentary discussions and explanatory notes. This attribute makes the reading at times breath-taking and astonishing, at times shocking and provocative. The extent of legal scrutiny of this subject remains unprecedented. Hopefully, future policymakers will analyse with due diligence Minorities and Nationalism in Turkish Law. In doing so, they will understand that changing the binomial nomenclature of the red fox Vulpes vulpes kurdistanica into Vulpes vulpes on the grounds that it threatens Turkeyâs unity (p. 108) amounts to ad absurdum.