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Turkey’s ‘Constitutional Moment’

Turkey is undergoing major transformations in several areas. Its economy has substantially grown in the last decade. It is now considered a regional power with rising influence in global affairs. Notwithstanding these achievements, the most important arena of change in Turkey is actually domestic politics. And the constitutional politics lies at the center of this change.

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The current constitution of Turkey was introduced in 1982 during the military rule under auspices of military authorities. It contained substantial anti-democratic principles until the series of amend¬ments that began in 2001. Most recently on March 30th 2010, the governing Justice and Development (AK) Party has proposed a set of constitutional changes that would further curb the powers of Turkish military over politics. The package contains amendments to 30 provisions. But, most importantly, the reforms call for overhauling the Constitutional Court and the restructuring the Supreme Board, responsible for managing the judiciary. It also limits the authority of military courts and imposes judicial review against all decisions taken by the Supreme Military Council.

 

The reform package passed in the Parliament after a month-long deliberation and was approved by the President Gul on May 7, 2010. Now it is set to be put on a vote this September. The reform package has been lauded by European Union officials as a step in right direction. Despite the overwhelming support to the reforms by the Turkish people, not everybody is happy. Opposition parties did not hand any support to the proposed amendments. Parliamentary discussion and voting rounds on the package saw great tension — there were even fistfights and brawls between deputies — and the changes to the high judiciary were at the heart of the package.

Although the package has yet to be voted on in a referendum, there is already a threat that it will be killed by a Constitutional Court decision before it is even referred to a public vote as the main opposition Republican People’s Party (CHP) appealed against it. Notwithstanding these challenges, the changes that will occur if all goes well are likely to have a positive effect on various aspects of life, regardless of the strong possibility that the reason behind their inception was conflict between the government and the high judiciary. At the center of this conflict lies the Ergenekon case.

Ergenekon is the name given to a clandestine organization in Turkey with ties to the members of the country’s military and security forces, aiming to build a fascist dictatorship in Turkey. The group is accused of terrorism and high treason due to a number of criminal activities, such as no less than 5 coup attempts in last 8 years, incitement of rebellion against the government, murder of an Italian priest in 2006, an attack on the State Council in 2006, murder of a prominent Turkish-Armenian journalist in 2007, attempt to assassinate Turkish Nobel Laureate Orhan Pamuk, several attacks on missionary groups, attempts to assassinate Erdogan. The case is still active and so far, over hundred people, including several former generals, party officials and journalist have been detained or questioned since July 2008. Despite the Turkish criminal justice system has done an enormous job of bringing these perpetrators to justice through a collaborative effort, some in the high judiciary shows tremendous resistance to fair and transparent trial of the group members.

Other than the specific provisions, more significantly, the proposal aims to positively redirect current constitutional moment towards a more democratic end. In the constitutional theory literature, constitutional moments are defined as periods of ‘high politics’ when the interpretative paradigm of a given constitution is questioned. Normal politics transforms into constitutional politics as the constitutional actors override each other by their own interpretations and accuse one another for acting unconstitutional.

Such a constitutional moment has besieged Turkey for the last three years. The catalyst was the election of President in April 2007. According to the constitution, the president is elected by the parliament. When AK party, which held the majority, signaled that they will go ahead with their own candidate, Abdullah Gul, then the minister of foreign affairs and a founder of the party, it faced a tremendous opposition. The website of the general chief of staff published a memorandum on the eve of voting in the parliament, warning all political actors that they would be held responsible for their actions. Consequently, opposition parties abstained from voting and this triggered a quorum rule that regulates such critical votes. Eventually this crisis led to some horse-trading and a snap election with the condition of changing the quorum rule in the constitution. In the general elections, AK party increased its votes by a third and Gul became the president.

In another crisis just after 6 months, a case was filed in the Constitutional Court against AK party. The prosecutor claimed that the incumbent AK party violated the constitutional provisions of secularism and needed to be closed and its members lose their seats. The case was decided in favor of AK party, but only by one-vote margin in a court of 11 members.

These constitutional crises are products of constitutional politics where present constitutional means and mechanisms are not adequate to address them. This in turn leads to legal loopholes skillfully administered by the high judiciary. Accordingly, the case against the incumbent party has been called a judicial coup, following the failure of military measures to undermine AK Party’s mandate.

It is very important to see these latest attempts as part of the gradual changes that have been made by the civilian governments in the last three decades, rather than an individual attempt by the current government. There is a rampant misinformation campaign in Turkey and in the West aiming to present the reform package as another attempt by AK Party to undermine secularism in Turkey. This is far from truth. Not only the package has anything to do with secular character of the regime, but also it is a continuation of the reform efforts initiated in 1999 by the parties that are currently sitting in the opposition benches.

The period following the enactment of the military constitution, the public perception that the constitution was democratically deficient and the political and social willingness for change have always been present. Coalitions that are extremely difficult to build due to party politics have been achieved during the amendment processes, and civil society has shown a great effort to raise demands for constitutional reform and sustain its pace. This evidences that 1982 Constitution has failed to claim a social and moral authority and grown to be a source of conflict. The new proposal, although short of a brand new ‘civilian-made’ constitution, might help generate the circumstances that would eventually produce a document that is a better fit to the social fabric of the Turkish society, overwhelming majority of which strongly favor and cherish democratic ideas and institutions.

Constitutional Predicaments of Turkey

The story of Turkey’s constitution began on 12 September 1980, when the armed forces intervened into the democratic process, abolished the parlia¬ment and government, and effectively instituted a military rule that would last about three years. The military intervention came amidst a social and political chaos and military leaders justified their action under the guise of restoring order. The coup was the third in the last 20 years and this time the military seemed resolved more than ever to restore normality and defend the integrity of the state to the extent that recourse to further intervention would not be necessary.

A year from intervention, preparations for a new constitution began to unfold and following an unusually long process of framing, by the autumn of 1982, the new consti¬tution was ready to be put to a popular vote. Following its approval by an extraordinary majority in its favor (91 per cent), it was adopted on 7 November 1982 as the new constitution of the Republic of Turkey. The new constitution was the third constitution of the Republic, which was founded in 1923 and saw two preceding constitutions of 1924 and 1961; the latter was also framed during an earlier military rule.

In the autumn of 1983, a year after the enactment of the new constitu¬tion, democracy was restored and a new civil government came into power following general elections. Despite the restoration, however, the 1982 Constitution remained almost intact by 2001, when Turkey stepped into a new stage, as a result of the pre-candidacy status offered by the European Union in 1999 and the political criteria it had to satisfy in order to advance into accession negotiations. The following years have seen—and continue to see—radical constitutional changes that significantly enhanced the sphere of fundamental and political liberties and moved the country closer to a genuine practice of democracy.

Despite these posi¬tive developments, however, the fact that Turkey had to endure the 1982 Constitution in its original form for so long, albeit experiencing a techni¬cally democratic political system, and could initiate radical changes only after encouragement and pressure by the European Union, had a lot to do with the constitutional predicaments it had faced since the birth of the new constitution. The creation phase of the constitution came with its own troubled trajectory along with respective textual consequences. More than anything, the representative character of the constitution-making body was utterly controversial.

The Consultative Assembly was convened through extremely strict and selective process that excluded everybody who had a connection to any political party that existed prior to the intervention and who failed further clearance. The Constitutional Commission that actually prepared the constitution as part of the Assembly also reflected this choice and was thus chaired by a law professor favored by the military establishment. As an additional precaution, and as the Preamble stated, the Council of National Security formed by the top five military generals gave the final form to the text.

During the writing process of the constitution, public discussion of its content was forbidden. These limitations also continued to a certain extent in the period following the completion of the text until the day of referendum. In the meantime, the head of state, who is top military general, gave a series of speeches in various locations in the country and introduced the content of the constitution. But these were not intended to incite a public discussion; rather, they were only informative speeches and any criticism of them was strictly forbidden. Finally, the constitution was approved as expected.

Under these constraints, the fact that 91 per cent of the public voted in favor of the constitution could only be interpreted with their desire to see the armed forces retreating to their barracks as soon as possible. In fact, the military leaders did not provide a clear pathway should the constitution be rejected. There was registered public concern that the military would con¬tinue to rule. Considering all these circumstances in the creation phase, the 1982 Constitution did not seem to satisfy the requirements of a democratic constitution: the representative quality of the constitution-making body was controversial; public engagement in the process was utterly minimal; articulation of different interests was not possible; the ratification process was designed in a way that effectively secured an approval. Consequently, these facts together contributed to the birth of an essentially non-democratic constitution which would haunt the very essence of democratic politics in Turkey in the upcoming decades.

The intervention of 1980 was planned in greater detail and the outline of the new constitution was arguably ready from the beginning. As a result, the 1982 Constitution was drafted to maintain the military sway over politics. The short-term privileges were defined in a number of provisional articles aimed at regulating the transition. According to the first provisional article, fol¬lowing the ‘adoption by referendum of the constitution … the Chairman of the Council of National Security and Head of State at the time of the refer¬endum, shall assume the title of President of the Republic and shall exercise the constitutional functions and powers of the President of the Republic for a period of seven years’.

In addition, provisional article 2 states that ‘after the Turkish Grand National Assembly has convened and assumed its functions, the Council of National Security shall become the Presidential Council for a period of six years’. In the following clauses, the functions of this Council were described as a higher body of legal approval, where almost all legislation that passed in the national assembly had to be con¬firmed. As a final touch, the President was granted a qualified veto power over constitutional amendments for six years.

The influence of the military over politics was not limited to these six to seven years of transitional prerogatives. Various articles of the constitution ensured an ongoing supervisory role for the military. Article 118 regulated the National Security Council as the highest advisory board for the state. The Council was comprised of the Prime Minister, three other ministers, the Chief of the General Staff and four other top military commanders, and the President, who acts as the chairman.

As is obvious from the com¬position, the military side prevailed over the civilian side. According to the constitution, the Council ‘shall submit to the Council of Ministers its views on taking decisions and ensuring necessary coordination with regard to the formulation, establishment and implementation of the national security policy of the State’. The Council of Ministers, in turn ‘shall give priority consideration to the decisions of the National Security Council concerning the measures that it deems necessary for the preservation of the existence and independence of the State, the integrity and indivisibility of the coun¬try and the peace and security of society’.

The wide range of issues that fall into the interest of the Council ensures the supremacy of the military views over the deliberation of the Council and thus political processes. The constitution also provided other privileges to the military in the form of immunity from various legal control mechanisms and significant influences in the judicial processes. Most of these prerogatives and reserve domains of military power were weakened dur¬ing the 2001–2004 reforms only after almost two decades of civilian rule and within the galvanizing spirit of the European Union candidacy. This fact shows the thickness of the authoritarian mantle enveloping Turkish politics and the difficulty of challenging the obstacles enervating the prospect of democracy.

The fact that democracy was restored in Turkey in 1983 and the constitutionally predetermined period of transition ended in 1989 did not result in a genuine transition towards a fully-fledged democ¬racy. The constitutional legacy of the intervention continued to haunt the national politics. The wide range of privileges and prerogatives granted in the constitution ensured an ongoing check on civilian politics. Conversely, the fact that one major area of concentration in the recent reforms has been to remove this legacy, shows the willingness of democratic forces, which were constitutionally fettered, to engage transformations of this magnitude when the opportunity strikes.

Besides exhibiting vestiges of authoritarian tendencies as such, the 1982 Constitution also presented an ideological discourse that at times goes mani¬festly against the democratic grain. The constitution makes frequent refer¬ences to ideas and concepts that could be subject to democratic contestation in many instances. Apart from the explicit usage of ideological language, there is also an implicit ideological tone that prevails throughout the text.

This ideology manifested itself in different forms and words—most explicitly in the Preamble by refer¬ring to ‘the sacred Turkish State’—but ultimately ran a consistent discourse throughout the constitution. The constitution made recurrent references to ‘indivisible integrity of the state with its territory and nation’, ‘national security or sovereignty’ and ‘fundamental characteristics of the State’, in various sections regulating not only political, but also associational, social, cultural and economic life, and mostly at the expense of individual rights and pluralism.

Part of this ideology was a vision of social engineering—most evidently in the section where the constitution, in great detail, regulated all aspects of education in view of this ideological foundation—that is seen as crucial to maintain those ‘fundamental characteristics of the State’. The Preamble presented a vision of society converged on common ‘ideas, belief, and resolutions’, united ‘in national honor and pride, in national joy and grief, in their rights and duties towards their existence as a nation, in blessings and in burdens, and in every manifestation of national life’. This vision of society as a ‘homogenous entity’ displays a significant departure from a democratic vision of e pluribus unum. In fact, there is not a single reference to pluralism or diversity of any sort in the constitution.

Reclaiming Democracy

Because of its unimpressive democratic credentials, the 1982 Constitution raised significant questions of legitimacy. By virtue of its numerous non-democratic legal mechanisms and institutions, the constitution seemed reluctant to give society a chance to appreciate its essence. This controversial nature of the 1982 Constitution had become a subject of ongoing efforts aiming to overcome its limitations in the subsequent era of civilian rule.

The political acceptability of the constitu¬tion was controversial from the outset; however, the limitations the constitution imposed on the civilian authorities made it impossible to make radical changes in a short span of time. On the other hand, the desire to change the constitution has always been at the forefront of Turkish politics, if not always successful. Since its inception in 1982, the constitution has been subject to a gradually strengthening wave of amendments.

All amendments so far have been adopted through broad consent among political parties, namely ‘inter-party agreements in parliament’, since none of the parties was individually strong enough to adopt the amendment single-handedly. Consequently, one-third of the constitution has been effectively amended to the present day. The wave of change has also evolved from minor and regulative changes to major and radical changes that substantially modified the origi¬nal philosophical and ideological vision of the constitution.

It is telling that the first serious attempt to amend the constitution was actually aimed at its strict amendment regulations. In 1987, after seri¬ous dispoutes between the civilian government of Turgut Ozal and the President Evren, Article 175 which regulates the requirements for constitutional amendment was changed in favor of a relatively less strict mechanism. This move repre¬sented the intention of the civilian powers and the direction they would like to proceed, and was very important at a time when the vestiges of the transitional period were still present.

A second broad attempt at democratization took place in 1995 and produced amendments in 15 articles. Most importantly, it removed the sentences praising the military intervention in the Preamble, relaxed restrictions on the associations and allowed them to engage in political activities, allowed students and educators in universities to be party members, expanded the area of permissible activities of political parties, and also relaxed the rules for banning parties.

After 1995, the wave of amendments stalled until 2001, except for two regulative changes in 1999. The main reason behind this was the worsening relations between the civilian government and the military following an Islamist victory in the 1995 elections. Subsequently, the focus of politics shifted from democratization to the protection of secularism. In 1997, the military establishment instigated a forced transition of government and increased its influence significantly on politics, just short of a direct rule.

This period of heightened military supervision over the government lasted arguably until the decisions of the European Union, first to grant Turkey a possibility of candidacy in 1999, and then to adopt accession partnership priorities for Turkey in March 2001. The welcome decisions of the European Union shook the political balances, galvanized democratic forces in Turkey and shifted the locus of politics in favor of further democratization and civilianization.

This led to the formation of broad coalitions among the political parties of divergent interests for further democratization. The prospect of EU candidacy also instigated an unprecedented activism in civil society toward democratization, and increased public awareness toward the necessity of change in the legal structure. Consequently, the period of 2001–2004 has seen the most radical consti¬tutional changes. Amendments have eliminated the restrictions on the freedom of speech in the Preamble to the constitution; repealed the general restric¬tions on fundamental rights and introduced protective clauses for such rights; relaxed sanctions for the abuse of fundamental rights; abolished the death penalty; improved privacy of individual life; considerably broadened the freedom of assembly; adopted equality of spouses; lifted the language ban on broadcasting; abolished the infamous State Security Courts; relaxed the rules of eligibility for membership to parliament; and made it harder to ban political parties.

In addition to these changes in the regulation of rights and liberties, the constitutional reforms have taken a significant direction towards elimination of the military legacy and influence over politics and the civilianization of political society. Accordingly, further amendments in the constitution have increased the number of civilian members in the National Security Council and weakened the effect of its decisions on the government; enabled legal investigations of actions during the military intervention; and eliminated some judicial privileges of the military.

The gradual but ongoing changes to the constitution in the post-1983 era indicate that the non-democratic characteristics of the 1982 Constitution generated a deep problem of legitimacy that has become the locus of politics and a motive for democratic mobilization in Turkey. Civil governments that were limited by reserve domains of military power have been scrambling to overcome these hurdles; legislators have been coalescing to make as radical changes as possible, notwithstanding the time and effort required to build agreements among diverse parties; and civil society, substantially contained through various constitutional restrictions, has been trying to overcome those through bold actions.

The ongoing democratic activism, in this respect, points to a perceived democratic deficiency in the constitution in the public eye that need to be effectively addressed, and to the political will to eliminate this deficiency for further democratization. Therefore, it seems, demo¬cratically deficient constitutions, which lack political legitimacy in social and moral terms, are destined to become the subject of conflict rather consent, and to be perceived as obstacles that are to be sooner or later eliminated.

Fevzi Bilgin

Assistant Professor of Political Science, St. Mary’s College of Maryland, mfbilgin@smcm.edu

  • January 31, 2021