Prospects of constitutional reform in Turkey

Prospects of constitutional reform in Turkey

Turkish politics is currently undergoing a heated political debate on the constitutional reform package (supported by Prime Minister Erdogan’s ruling party), which is on its way to a referendum this Sunday. The package includes amendments to 26 articles of the current constitution along. In addition, it would eliminate the controversial Article 15, a ‘temporary’ article that has been in the constitution since the 1980’s, preventing the prosecution of officials involved in the military coup of 1980. All in all, Sunday’s referendum is one of the ruling AK Party’s clearest challenges thus far to Turkey’s Kemalist establishment.

Since the establishment of the Turkish Republic, four new constitutions have been adopted (1921, 1924, 1961, 1982) – the latest two were drafted after military interventions – and numerous amendments have been made. Since the most recent constitution was adopted in 1982, there have been 15 amendment packages, which have affected almost half of the constitution. As such, the debate on the present constitution is not exactly a new one for Turkey, as the public is quite accustomed to constitutional changes and the public debate they generate. To understand, then, why the current package has touched off such a firestorm in Turkish society and led to an intensified political atmosphere, it is important to consider both the ramifications that the current reform efforts has for the political system in Turkey and the historical context.

Constitution Drafting as Containment of the National Will

The country’s first multiparty elections, held by secret ballot in 1950, ushered in a new era in Turkish political life by replacing the 27 year-old single party rule by the Republican People’s Party (CHP) with a government led by the Democratic Party (DP). The fact that the DP enjoyed people’s political support throughout the three subsequent national elections between 1950 and 1960 provoked a serious anxiety within the state elites, ultimately resulting in a military takeover in 1960, establishing a new system and constitution the following year.

The new political system, distrustful of populist political tendencies, enshrined a powerful bureaucracy at the center of political life. While the 1924 Constitution had up until this point maintained that the only source of sovereignty in Turkey was the nation represented by the parliament, the 1961 Constitution delimited the scale of national sovereignty to elite, authorized bodies. These civilian and military bodies included the National Security Council, the Constitutional Court, State Planning Organization and the Senate that became part of the institutional safeguards against potential social challenges to the system. In this way, the legislature and the executive branches were brought under the tutelage of a highly centralized bureaucracy.

What made this system possible was the broader Cold War strategic context, which privileged stability and security over other concerns. Both the center-right and center-left political parties disregarded the general public’s broader political demands, pursuing policies limited to economic development and welfare. As long as they kept their distance from the ethnic and religious fault lines of the society at large, the political parties found support from the bureaucracy for accepting the rules of the game, and as long as they kept their focus on social welfare, they were able to enlist enough support from the population as a whole.

Bureaucratic Tutelage over the Political System

The political system of the early 1990s displayed similarities to this social/political arrangement in terms of encountering the same issues of popular expression reflected into the political realm–but with one key difference. This time, the bureaucratic tutelage, which maintained its dominance for decades due to the security considerations of the Cold War era, began to unravel – indeed, the longtime suppression of Turkish civil society for the stability-seeking cause of economic development and national security started to become unsustainable.

In the post-Cold War political environment, however, the political forces vocal about social identity and civil society demands strengthened their position and found a new channel, the European Union, through which they could express their demands. Neither the bureaucratic elite nor the central political parties could comprehend the essence of this transformation. The more bureaucratic power resisted overhauling the political system by turning a blind eye to demands of different social identities, the bigger the political rifts grew. It was increasingly difficult for the bureaucratic power to neutralize a bourgeoning social consciousness. This, in turn, weakened the bureaucracy and the central political parties who were supportive of it.

The coming to power of the Justice and Development Party (AK Party) government in the 2002 general elections heralded a new period in Turkish political life. The new government intensified the legal arrangements necessary to bring the public will into the political scene by first relying on the European Union integration process and then focusing on wider social demands. At the same time, this new political shift brought with it a severe resistance from the bureaucratic elite that were so invested in the old system. As the possibility of the military bureaucracy’s intervention in the political system lessened due to the European Union reform process, as well as the changing internal/external dynamics, the judiciary began to take on this protracted tutelage mechanism with its powers over the political system. The judicial bureaucracy remained within the bounds of the law during the military’s strong oversight over the political system in the past. But when the military bureaucracy’s influence started to decrease, the judicial bureaucracy began to take over the job of "system guardianship" and started to make overtly political decisions. In this guise, it has often blocked political activities by overstepping its authority and interpreting the law through a partisan lens.

Fate of the Constitutional Reform

Today, there is a strong need for new constitutional arrangements refashioning the relations between the old-guard bureaucracy and the political class represented especially by the AK Party. Beginning in the early 1990s, several constitutional drafts were prepared in order to make the system more responsive and open to such an update of the political system. Although the new constitutional reform package does not fully realize the goal of a complete embodiment of national sovereignty in the political processes, it is a significant step in tilting the political equation in favor of the national will and in the process curtailing the current impunity that the civilian and military bureaucracies enjoy.

Months of contentious debate over the proposed reform have taken place especially over the AK Party’s attempts at reorganizing the judiciary. Indeed, early on in the process, much polarization was focused over an attempt to make closing down political parties much more difficult. The relevant article, which would have taken the party closure authority away from the courts and given it to the parliament, was eventually dropped from the package over the summer when it failed to muster the necessary votes-presaging the rancorous debate to come. A second point of contention has been over the composition and the workings of the Constitutional Court of Turkey, by increasing the number of the court members from 11 to 17, making it more representative and democratic while giving the parliament the authority to appoint three of those members. Lastly, regarding the structure of the High Council for Judges and Prosecutors, was the broadening of the membership composition of the Council by increasing the number of members that come from different institutions, such as higher education institutions, lawyers’ associations, as well as lawyers, judges, and prosecutors. Taken together, the aim has been to make the Turkish judiciary more attuned to social transformations by broadening the composition of membership and relaxing the reins of the judicial bureaucracy over the legislature and the executive branches.

Many of these amendments aimed at restructuring the organization of the High Judiciary have been criticized by the opposition parties as nothing but the current government’s attempt to cement its own ideological institutions. Indeed, the controversial measures in question would essentially challenge the entrenched power of bureaucratic oligarchy by increasing the number and clout of the court members–ensuring a judiciary that was more representative of Turkish society writ large.

The articles concerning the restructuring of the Constitutional Court and the Supreme Board of Judges and Prosecutors, along with the rest of package, passed with a two-thirds majority in the Turkish parliament over the summer. Upon presidential approval of the package, it is now on its way to this week’s referendum. Still, the old-guard establishment has done everything it could to make the process more difficult leading up to the referendum. For instance, the Board of Elections this summer ignored the new legislation while the opposition party took the case to the Constitutional Court attempting to repeal the entirety of the constitutional changes. In the latter case, the court ended up taking a stance that while not wholly satisfactory to the AK Party (which felt the court breached its limits by hearing the complaint in the first place), nonetheless refrained from acquiescing to the opposition’s call for decisive action against the package.

The scheduled referendum date this week, 12 September 2010, has a symbolic meaning since the current constitution, a product of the coup d’état of September 12, 1980, is often referred to as the "The September 12th Constitution." There is no doubt that this will help the ruling party campaign effectively in favor of the constitutional changes. But the main lines of the confrontation over the upcoming referendum are already set. On one side are the opposition parties, including the Republican People’s Party, the Nationalist Movement Party, and the Democratic People’s Party, who want to make this a vote of public confidence on the ruling AK Party. On the other side are the AK Party and other pro-reform groups, leftist as well as conservative NGOs and pro-EU groups, who prefer concentrating on the content of the proposed changes and the potential for democratic transformation. Surveying the current political climate, it wouldn’t be surprising if the majority of the population gives a "yes" vote to the changes. However, much depends on whether pro-reform groups are able to mobilize their constituencies as clearly and effectively as the ruling AK party has been able to do.

Hatem Ete is the Coordinator of Political Studies at SETA Foundation