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March 31, 2010
Summary: Turkey’s government and opposition are embroiled in a deep conflict over proposed changes to the Turkish constitution. The two major opposition parties have made it clear that they will not be party to the efforts of the governing party to amend the constitution in unacceptable ways. The governing party will fight bitterly to the end to get what it wants. The Turkish voters will have to brace themselves for a no holds barred battle, which is likely to be followed by a tension-ridden referendum. Peace and tranquility will not be the words to characterize Turkish politics in the months to come.
Checking the Opposition, Balancing the Judiciary: Constitutional Reform Debates in Turkey
by İlter Turan*
ISTANBUL — Turkey’s government and opposition are embroiled in a deep conflict these days regarding changing several articles of the Turkish constitution. The two major opposition parties have made it clear that they will not be party to the efforts of the governing Justice and Development Party (AKP) to amend the constitution in unacceptable ways. The prime minister has retorted that if the representatives cannot bring about the needed changes, they will turn to those whom they represent, a roundabout way of saying that the changes will be submitted to the approval of the voters. The parliamentary procedures for constitutional change are about to begin. The two most recent Turkish constitutions were made by military leaders during the 1960-1961 and 1980-1983 interventions. The makers of those constitutions, in addition to providing the country with a democratic fundamental law, were guided by three considerations. First, they wanted to make sure that the constitution would have provisions designed to prevent the state of turmoil that had preceded their interventions. The 1982 constitution, for example, contained elaborate provisions limiting civil liberties since
they were judged to have been usurped extensively by radical rightist and leftist groups. Second, they wanted to delineate a domain that would be protected against the interventions of elected governments. This was a reflection of the orientation of the militarybureaucratic modernizing elite that considered some areas of governmental activity as “matters of state,” too important to be left to the discretion of the elected politicians. It is with this concern in mind that the appointment of presidents of state universities and judges to the Constitutional Court were made the prerogative of the president rather than the prime ministers or the council of ministers, while the designation of a list of candidates were left to the faculty and bodies comprised of judges. Finally, the military rulers interjected a number of exit guarantees to insure their immunity after the transition to elected politics. The framing of constitutions to prevent the recurrence of past problems—including bans on political rights of pre-intervention politicians—an illiberal mood driven by security concerns, and an inclination to define the scope of governmental decision-making narrowly have invited
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lter Turan is currently a professor of political science at Bilgi University, where he also served as president between 1998-2001. The views expressed here are those of the author and do not necessarily represent the views of German Marshall Fund of the United States (GMF).
debates on changing the constitution since the restoration of civilian politics in 1961. For example, all political parties, agreeing that the basic restrictive, anti-democratic approach of the 1982 constitution may not be fully transformed through amendments, have admitted to the desirability of an entirely new constitution. It has proven impossible, however, to agree on a common formula for achieving this. Soon after the AKP government was reelected, it asked a committee of law professors to prepare a new constitutional text. The opposition denounced the proposal as unrepresentative of their preferences. AKP deputies also found faults with it. After some discussion, it was abandoned. The current constitution requires that an amendment be proposed by one third of the whole house (184 deputies) and then defines two ways for its adoption. If two thirds of the whole house (367 deputies) approves and the president signs it, the amendment is adopted. If more than three fifths (330 deputies) but less than two thirds are in favor, then changes are submitted to a referendum after the president’s approval. The first three articles of the constitution defining the basic nature of the regime may not be amended. Despite the difficulties involved in changing the constitution, on eleven occasions beginning in 1987, it has been possible to form more than sufficient parliamentary majorities to amend it. This experience suggests that it is possible to build a consensus for constitutional change. Why, then, is the attempt to change some articles of the constitution proving so difficult and divisive this time? There are three parts to the answer. First, possessing more than a three-fifths majority, the government has made clear its determination to change the constitution, if necessary by taking the changes to a referendum. This uncompromising stance has obviated any desire of the major opposition parties to get involved in the process. But second and more importantly, there is an immense lack of trust between government and opposition. The opposition diagnoses the central aim of the proposals as bringing all branches under the government’s control, abolishing the separation of powers. A deeper concern is that the government is working to change the nature of the secular republic by destroying the autonomy of its last two pillars: the military and the judiciary. Not surprisingly, other proposed changes are identified as window dressing to render the “devious” articles more palatable. Finally, all major parties judge that pursuing a policy of polarization serves their electoral interests.
The government has proposed changes in twenty three articles that cover a variety of topics from positive discrimination in favor of women and children to the removal of the immunity from prosecution of members of the junta who conducted the 1980 intervention. In addition, the banning of political parties by the Constitutional Court will become more difficult, government workers will have rights to collective bargaining without the right to strike, and the institution of ombudsman will be established. The changes are so wide-ranging that there is something for every political party to support. Yet the proposals have been criticized on three grounds. Some criticism is directed at what the proposal is lacking. Small parties, including the Kurdish-based Peace and Freedom Party (BDP) have said that without plans to lower the national electoral threshold from the current 10 percent to 5 percent, it would not support any proposed change. BDP has added other conditions for extending its cooperation. Almost all opposition parties are agreed that the full parliamentary immunity currently enjoyed by the members of parliament should be replaced with limited immunity protecting only their freedom of expression. A second criticism is directed at the insistence of the government that all amendments be submitted to referendum as a package. Opposition parties rightly point out that some amendments like the removal of the immunity of the 1980 junta members might achieve 367 votes and be adopted without a referendum. They add that contents of the amendments are so varied that it is unacceptable to ask citizens to vote simultaneously on changes, some of which they might want to accept and others reject. By far the harshest criticism is directed at the plans of the government to change the composition of the Constitutional Court and the High Council of Judges and Public Prosecutors. By increasing its size and empowering the president and the parliament to appoint almost all of its members, critics argue, the Court would come to be dominated by judges close to the government’s political ideology. A similar argument is advanced regarding the High Council whose size will be expanded from 7 to 21 and will include presidential appointees as well as some representatives chosen from among all members of the judiciary. In addition to politicians, most unusually, the current leaders of the high judicial organs have unanimously criticized the proposals, in inflammatory language, as destroying the independence of the judiciary. The prime minister has responded in
equally unrestrained language. The emotional tone of the high judges may derive from their fear that the role of the judiciary as a pillar of the republic and a major defender of the interests of the state against elected politicians is being destroyed; it is not wholly unjustified. While the proposals give the president and the government the power to appoint most members of the top judicial bodies, the prime minister has expressed on many occasions that he finds it intolerable that the judiciary should scrutinize the actions of an elected government and constitute some kind of a check on them. This is not a healthy beginning for developing checks and balances, the critical component of a well functioning democracy. Although it is tempting to think that constitution making and changing ought to be a deliberative process characterized by strategic thinking, what we witness is a game where tactical considerations for immediate political gain fully prevail. As the Turkish Grand National Assembly begins to discuss the constitutional amendments, it appears that the opposition will continue to mount its ideological attacks on the government, accusing it of undermining the secular republican regime. It may even turn to the judiciary, especially the Constitutional Court, if it can find a legal loophole to ask the court to issue an order of stay to stop the process. The government party will fight bitterly to the end to get what it wants. The Turkish voters will have to brace themselves for a no holds barred battle. That is likely to be followed by a tension-ridden referendum. Peace and tranquility will not be the words to characterize Turkish politics in the months to come.
İlter Turan, Professor, Bilgi University
İlter Turan is currently a professor of political science at Istanbul’s Bilgi University, where he also served as president between 1998-2001. His previous employment included professorships at Koç University (19931998) and Istanbul University (1964-1993), where he also served as the chair of the International Relations Department (1987-1993), and the director of the Center for the Study of the Balkans and the Middle East (1985-1993). Dr. Turan is the past president of the Turkish Political Science Association and has been a member of the Executive Committee and a vice president of the International Political Science Association (2000-2006). He has served as the program chair of the 21st World Congress of Political Science in Santiago, Chile, July 12-16, 2009. He is board chair of the Health and Education Foundation and serves on the board of several foundations and corporations. He is widely published in English and Turkish on comparative politics, Turkish politics, and foreign policy. His most recent writings have been on the domestic and international politics of water, the Turkish parliament and its members, and Turkish political parties. He is a frequent commentator on Turkish politics on TV and newspapers.
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