By DILAN OKCUOGLU
KINGSTON, Canada—“The new constitution will be prepared not only by constitution experts but by the wide segments of the society…” said Turkey’s Prime Minister Recep Tayyip Erdogan at a press conference, last January; adding that he envisions a concisely written and comprehensible constitutional text, which aims ‘advanced democracy’ whereby fundamental rights and liberties are guaranteed. In the meantime, in his speech given at the opening of the Parliament in October 2011, Turkish President Abdullah Gul notes that the “new constitution is the seal of the Turkish nation”. He also asserts “the solution to the Kurdish question lies in taking the steps of democratic progress without diverging into a political language that focuses on ideology and ethnicity.”
These complementary quotes reveal certain key points about Justice and Development (AKP)’s approach, the ruling-party, which adopts Ottoman legacy based on the so called liberal Islamism:
1) Involuntary integration of the Kurdish People around the notion of liberal democracy that is based on supposedly egalitarian constitution, deliberation and inclusion;
2) Disrespect and intolerance for any demand if they are perceived as ‘politically’ and ‘ethnically’ motivated. “The issue of legitimacy is important for Kurdish people, because once the legitimacy of a state is under question then its decisions fail to protect their citizens from harm.”
In the framework of the ruling-AKP, the constitution is understood to be as “apolitical” and “neutral” as possible and it is supposed to be equally distanced to every member of the “Turkish nation”. This is the cornerstone, where the ruling-AKP’s oxymoron begins. Within this article, my objective is to show the ways in which the legal decisions and institutions of the Turkish judicial system fail to rely on the consent of the Kurdish people. Therefore, the legitimacy of these decisions should be questioned.
In the framework of the ruling-AKP, the constitution is understood to be as “apolitical” and “neutral” as possible and it is supposed to be equally distanced to every member of the “Turkish nation”. 
The issue of legitimacy is important for Kurdish people, because once the legitimacy of a state is under question then its decisions fail to protect their citizens from harm. Legitimacy of the constitution involves the moral and legal foundations, such as its framing, independence, authority, justifications and public support . For a constitution to be legitimate, it must be accessible and transparent to public. Moreover, it must reflect the public interest, not the interests of an elite group of people who are selected by the government.
Turkish rule of law and Kurdish children
Theoretically speaking, there are enough reasons to debate about Erdogan’s ‘good will’ to create a fully ‘inclusive’ and democratic constitution. First and the foremost of these reasons is the diminishing political legitimacy caused by the arbitrary power of the judges who exercise it on the issues related to the politicization of the Kurds as separate ‘people’. To make any political claim based on the cultural and historical heritage of Kurdishness has been banned under the Anti-Terror Law as separatist propaganda. Second, the exercise of arbitrary power on the issues related to the politicization of the Kurds has become the framing of the constitution. As such, the rule of law has become the backbone of arbitrary detentions not only of the adults but also of the children.
A haunting example would be the amendments made in the Anti-Terror Law in 2006 after the Turkish state security guards murdering 10 people, out of 5 were Kurdish children, during the funeral of the four PKK guerillas in Amed. Police helicopters dropped gas bombs on the Kurdish civilians, including women and children on March 29, 2006.
The Human Rights Association of Turkey (HRA) released the investigation report regarding the human rights violations that took place during the funeral and stated that 9-years old Abdullah Duran was shot dead by a police-gun when he was watching the events from the balcony of his house. According to the HRA’s report, policemen opened fire indiscriminately on Kurdish people, killing ten and injuring hundreds and they were deliberately aiming for civilian’s heads and chests with intent to kill. Only a few days after these arbitrary shootings, Turkey’s PM stated that, “our security guards will do what is necessary in order to fight against terrorists, even if they are children or women”.
“All of these Kurdish children are accused of throwing stones at police officers and chanting illegal slogans during protests.” This explains why the perpetrators of these extra-legal killings remained unknown. As seen, the government’s commitment to create a “more democratic country” results in mass criminalization of the Kurds during which they are subjugated to different forms of arbitrary power.
In 2010, Berivan, a 15-years old Kurdish girl, was sentenced to thirteen and a half years in jail by the Diyarbakir Special Authority High Criminal Court in her first trial with the accusations of propagating in favor of the terrorist organization, or the so-called PKK (Kurdistan’s Worker’s Party) and committing crimes on its behalf.
Her sentence was dropped to seven years and nine months and she was released after 9-months of imprisonment. From March 2006 to July 2010, which is the date when the Anti-Terror Law was amended, 4,000 children were either taken into custody or put in jail for 2 to 4 months of imprisonment. 95 percent of these children are Kurdish.
All of these Kurdish children are accused of throwing stones at police officers and chanting illegal slogans during protests. “Only 43 percent of these children are taken into custody for attending to non-violent demonstrations,” says a member of the Cocuklar Icin Adalet Cagricilari, an activist group fighting for justice for detained children. “57 percent of these children were accused and held with no concrete evidence, while the remaining 43 percent were in charge of terrorism for the reasons such as sweating hands and fast-beating heart.”
To make any political claim based on the cultural and historical heritage of Kurdishness has been banned under the Anti-Terror Law as separatist propaganda.
He also notes that a significant number of these detained children are successful students attending high-quality schools. Considering the children of today are the future of tomorrow, the arbitrary detention of the Kurdish children implies Turkish state’s special strategy of suppressing Kurdish nation.
A painting by Kurdish artist and political activist Serpil Odabasi titled “Every Kurd is born as a child”. Why would those children hurl a stone at police officers, asks Hulya Yetisen who interviewed Afrin, one of the detained children from Amed.
“When I was 7-8 years old, the pictures of the family members who died in this war were hanged on the wall of my grandmother’s apartment…My father was beaten by the police officers in front of us…After witnessing these tragedies shared by every kid from Kurdistan, what can we do other than hurling stones as children?”
Sedat Yagcioglu, a graduate student in social service department of Turkey’s Hacettepe University, conducted a research about Kurdish children’s motivations for attending protests and being politically active agents.
In an interview with the internet website bianet Yagcioglu shares some of the words of the detained children: “A police officer stopped and detained me while I was going to the market to buy a bread…”; “They tell us to go to school to solve these problems without violence instead of going on streets and throwing stones. As if they let us speak and get education in our mother tongue. Yes! I will go to school and hold a pen in one hand and a stone in the other. I crush your hands with my stone, if you do crush my hand holding the pen. ”
According to Article 13 of the Anti-Terror Law, children aged above 15 are subjugated to special trials called the assize courts that are vested with special powers. Moreover, the same article also banned any suspension of the Kurdish children’s imprisonment/punishment. 719 Kurdish children were detained in 2006, and 869 in the subsequent year.
“Pozanti is the concrete snapshot of the legal domination of the Kurds by political and judicial system and Turkish elites.”
The mistreatment of Kurdish children by the Anti-Terror Law as adults and their imprisonment up to 23 years by the courts assigned with special powers left Kurdish children unprotected against the abuses conducted by the state apparatuses. This is the backdrop against which we should examine the recent rape incidents of Kurdish children by older kids living in the same cell in Pozanti Prison.
This is the backdrop against which we should examine the recent rape incidents of Kurdish children by older kids living in the same cell in Pozanti Prison.
As of 2007, Pozanti prison was turned into the children’s prison in which 237 children were jailed, 56 of which were kept under custody for political accusations. Pozanti Prison has had a long history of abuse and torture. In 2010, Ferdi Sertkal, who was mistreated by the Anti-Terror Law, made a denunciation against the Pozanti prison administration and guardians for abusing 32 children.
However, the public prosecution office filed a criminal case against Sertkal for casting aspersions on public personnel. After many complaints about the conditions of the Pozanti Prison, the Investigation Sub-Commission formed by the Turkish National Assembly initiated an investigation regarding these complaints about massive human rights violations in 2010.
The administration of the Pozanti prison was found not guilty of any charges at the end of this investigation that was carried out by the Turkish National Assembly. In 2011, Yasin Akyuz, a 15-years old Kurdish kid who was in prison for three months, found dead in his cell. According to the forensic report, his ribs were broken and he was suffocated to dead. In a recent interview, an ex-detainee described the life at Pozanti with following remarks “Some of our friends were repeatedly raped”, adding that “No words can explain what we went through at Pozanti”.
One of these ex-detainees, T.T., was put in jail after he interviewed with journalists and told what he went through in Pozanti prison during his stay there in 2009. A few days ago, T.T. attempted to hang himself in his cell. His father says’ “his hands were shaking when I saw him last time. After he attempted to commit suicide, he was sent to Kurtepe Mental Hospital where other patients attacked him after soldiers targeted at him by telling that he was a PKK defender.” “He cried, I cried.” – Pozanti is the concrete snapshot of the legal domination of the Kurds by political and judicial system and Turkish elites. Legal domination is understood as the rule of law in the absence of the legitimation of its people. Legal domination necessarily opens a room for the arbitrary use of law which ends up with the domination of Kurds through allegedly legal instruments.
“Legal domination is a process in which Kurds are victimized since their childhood and their victimization is being intensified at every stage of their lives shaped by the ideologically biased institutions, laws and social norms.”
As such, legal domination is employed in two layers: first it includes the basic constitutional essentials of the constitutions that are stringently exclusive to the recognition of the Kurds as distinct people (or nation). Second, it refers to the mentality behind the legal character of the regime and the establishment of the allegedly legal institutions.
According to the dominant mentality, Kurds in order to deserve ‘respect’ as equals, must obey the supremacy of Turkish elites, their discriminatory procedures and their perceptions of the Kurdish issue even if it is self-demeaning for the Kurds and their children. This is another way of maintaining domination regime (or the so-called control regime) in Turkey that started with the Kemalist cadres and continues today with the pro-Ottoman religious crews. That is why, what happened to Kurdish children in Pozanti Prison well reflects the moment when state-sanctioned psychological and physical abuse of the bodies of Kurdish children has been materialized.
According to the dominant mentality, Kurds in order to deserve ‘respect’ as equals, must obey the supremacy of Turkish elites, their discriminatory procedures and their perceptions of the Kurdish issue even if it is self-demeaning for the Kurds and their children.
What the Turkish authorities did in the post-Pozanti period tell us more of the legal domination and the ways on how the state-government alliance deals with the plight of children. Journalist Ozlem Agus from Dicle News Agency who was the first to report the Pozanti incidents was detained several days after she wrote about the stories of Kurdish children; approximately 200 imprisoned children were transported to Sincan Prison in Ankara without being allowed to see their parents, most of whom live far from the city in question. The children who were interviewed about their experiences of torture and rape were detained again. This incident reveals us a pattern in which we can observe the functioning of an abusive legal power.
Legal domination is a process in which Kurds are victimized since their childhood and their victimization is being intensified at every stage of their lives shaped by the ideologically biased institutions, laws and social norms. That is why Pozanti is nothing but the product of ideological and repressive state apparatuses aiming to maintain these circumstances under which the criminalization of the Kurdish children has become the norm (or normalized).As long as the rule of law remains as the rule of power that leaves no political prospects for an egalitarian life in which freedom from domination is guaranteed by the judicial system, then Kurds have almost no reasons to be optimistic about the new constitution.
*The author of this article is a PhD candidate of Political Studies at Queen’s University in Canada.
