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FINALLY, LAUSANNE TREATY APPLIED TO NON-MUSLIMS
Today's Zaman, Turkey
Aug 20 2013
ORHAN KEMAL CENGİZ
On June 18 in Ankara, the 13th Administrative Court delivered quite an
important decision, which unfortunately did not attract the attention
it deserved in our quite polarized and intense political agenda.
İstanbul's Beyoglu Syriac Church had applied to the Ministry of
Education to enjoy its right to an "education in mother tongue" as
is enjoyed by Greek, Armenian and Jewish minorities in Turkey. The
Ministry of Education did not bother to even answer this request,
which, under Turkish administrative law, means a refusal of the demand.
Then the church applied to Ankara Administrative Court, which would
give an important judgment on the matter. The court says the rights
under the Lausanne Treaty belong to all non-Muslim groups and there is
no specific reference to any particular group in this treaty. The logic
may seem to be quite simple and this may seem to be a declaration of
an apparent truth, but this is an important step forward in Turkey's
complicated minority policies.
Let me explain why it is so important. First of all, this is maybe the
first court decision in which I have seen a positive application of
the Lausanne treaty. In all other decisions, if there is a reference
to the Lausanne Treaty, it is almost always a negative one. This is
one of those legal tricks that is frequently applied by the courts.
Usually, if a court refers to Lausanne, you should understand that
either it will say the right that is demanded is non-existent
in the treaty or the treaty is not applicable for the group in
question. In this regard, this decision of the administrative court
represents a clear-cut breakaway from this legal tradition. The
Ankara Administrative Court used the Lausanne Treaty as a positive,
rights-based instrument.
The court's decision also has a strong potential to put an end to
a century-long misapplication of the Lausanne Treaty. Courts, state
agencies and everyone else have always misinterpreted the scope of
the treaty. They would say the Lausanne Treaty was only applicable for
Turkish citizens of Greek, Jewish or Armenian descent. As now rightly
indicated by the Ankara Administrative Court, there is no provision in
the Lausanne Treaty that justifies this kind of narrowing down of who
is applicable since it simply refers to "non-Muslims." However, this
"non-Muslims" has always been officially interpreted as Jews, Greeks
and Armenians. The court has now rejected this interpretation and said
that the treaty grants the rights it contains to all non-Muslims. I
believe all non-Muslims can now apply to open up their own education
institutions, relying on this judgment.
Finally, the court decision is also important by creating a case law
on the application of supra-national legal instruments when there is
a conflict between them and domestic legal rules. The court's decision
shows that the Lausanne Treaty takes precedence if there is a conflict
between the treaty and domestic regulations.
Well, this is a hopeful decision with some room for thought. First of
all, it is not a final decision and it needs to be approved by the
Council of State, which is a court of appeals for the decisions of
administrative courts. Another thing is this: As it also happens for
other positive developments, this is a decision made too late. Yes,
it is definitely a step forward but, again, it is too late. After
such a long time we have only just come to applying a 90-year-old
international treaty to include all non-Muslims.
However, I believe we should acknowledge all the positive steps and
hope that this acknowledgement may encourage more positive steps to
be taken in the right direction.
http://www.todayszaman.com/columnistDetail_getNewsById.action?newsId=324064
Today's Zaman, Turkey
Aug 20 2013
ORHAN KEMAL CENGİZ
On June 18 in Ankara, the 13th Administrative Court delivered quite an
important decision, which unfortunately did not attract the attention
it deserved in our quite polarized and intense political agenda.
İstanbul's Beyoglu Syriac Church had applied to the Ministry of
Education to enjoy its right to an "education in mother tongue" as
is enjoyed by Greek, Armenian and Jewish minorities in Turkey. The
Ministry of Education did not bother to even answer this request,
which, under Turkish administrative law, means a refusal of the demand.
Then the church applied to Ankara Administrative Court, which would
give an important judgment on the matter. The court says the rights
under the Lausanne Treaty belong to all non-Muslim groups and there is
no specific reference to any particular group in this treaty. The logic
may seem to be quite simple and this may seem to be a declaration of
an apparent truth, but this is an important step forward in Turkey's
complicated minority policies.
Let me explain why it is so important. First of all, this is maybe the
first court decision in which I have seen a positive application of
the Lausanne treaty. In all other decisions, if there is a reference
to the Lausanne Treaty, it is almost always a negative one. This is
one of those legal tricks that is frequently applied by the courts.
Usually, if a court refers to Lausanne, you should understand that
either it will say the right that is demanded is non-existent
in the treaty or the treaty is not applicable for the group in
question. In this regard, this decision of the administrative court
represents a clear-cut breakaway from this legal tradition. The
Ankara Administrative Court used the Lausanne Treaty as a positive,
rights-based instrument.
The court's decision also has a strong potential to put an end to
a century-long misapplication of the Lausanne Treaty. Courts, state
agencies and everyone else have always misinterpreted the scope of
the treaty. They would say the Lausanne Treaty was only applicable for
Turkish citizens of Greek, Jewish or Armenian descent. As now rightly
indicated by the Ankara Administrative Court, there is no provision in
the Lausanne Treaty that justifies this kind of narrowing down of who
is applicable since it simply refers to "non-Muslims." However, this
"non-Muslims" has always been officially interpreted as Jews, Greeks
and Armenians. The court has now rejected this interpretation and said
that the treaty grants the rights it contains to all non-Muslims. I
believe all non-Muslims can now apply to open up their own education
institutions, relying on this judgment.
Finally, the court decision is also important by creating a case law
on the application of supra-national legal instruments when there is
a conflict between them and domestic legal rules. The court's decision
shows that the Lausanne Treaty takes precedence if there is a conflict
between the treaty and domestic regulations.
Well, this is a hopeful decision with some room for thought. First of
all, it is not a final decision and it needs to be approved by the
Council of State, which is a court of appeals for the decisions of
administrative courts. Another thing is this: As it also happens for
other positive developments, this is a decision made too late. Yes,
it is definitely a step forward but, again, it is too late. After
such a long time we have only just come to applying a 90-year-old
international treaty to include all non-Muslims.
However, I believe we should acknowledge all the positive steps and
hope that this acknowledgement may encourage more positive steps to
be taken in the right direction.
http://www.todayszaman.com/columnistDetail_getNewsById.action?newsId=324064