Turkey’s electorate voted on 12 September 2010 to approve a series of constitutional amendments proposed by the ruling Adalet ve Kalkinma Partisi (Justice & Development Party / AKP) government. The date as well as the result was rich in symbolism, as it was thirty years to the day since the military coup of 1980 - whose leaders went on to establish a consultative assembly tasked with devising a new constitution (passed in 1982). It was this document that was the focus of the referendum, with the decisive outcome - 58%-42% in favour of the proposals, on a healthy 77% turnout - signifying a historic shift undreamed of in 1980 (see Gunes Murat Tezcur, "Turkey's referendum: a democratic dynamic", 15 September 2010).
The point can be made by referring to just one of the amendments given popular consent. This is a clause removing the judicial immunity from prosecution hitherto enjoyed by the coup leaders, members of the assembly they appointed, and by the ministers and bureaucrats that collaborated with them. Within hours of the referendum results being announced, a number of individuals and civil-society groups filed charges against the coup leader, army general (and later president) Kenan Evren, and his associates.
Another epic political moment in Turkey confirms that the country is changing. But in which direction?
A judicious opinion
The AKP’s decision in March 2010 to present its array of amendments for consideration - successively by parliament, the constitutional court, and the electorate - was prompted by an especially fiery row between the party and the judiciary.
In February 2010, the chief prosecutor of the eastern town of Erzincan (Ilhan Cihaner) was arrested on the orders of his colleague in Erzurum (Osman Sanal). The charges related to the “Ergenekon” investigation, the extraordinary complex alleged conspiracy (or series of conspiracies) perpetrated by hardline and powerful members of Turkey’s inner secular elite (or derin devlet [deep state]); the AKP authorities and their supporters argue that the major trials of the accused (often former army officers and representatives of the Kemalist, secular state) is a necessary step towards democratisation, while those on the defendants’ side see what is happening as a new form of authoritarianism.
In the case of the Erzincan arrest, the supreme board of judges and prosecutors (HSYK) immediately revoked Osman Sanal’s authority. What followed was a war of words between the government and the generally pro-secular judiciary, each charging the other with manipulating the law for political ends. The government concluded that the best way to break the wider deadlock was to reform the judiciary; hence the proposed amendments.
The political debate that ensued was no less heated, as it pitted the AKP against both its main party rivals: the Kemalist CHP and the nationalist MHP. The somewhat half-hearted attempts of Turkey’s prime minister Recep Tayyip Erdogan to achieve a degree of cross-party agreement on constitutional change were full-heartedly scorned by the opposition parties (notwithstanding the best mediatory efforts of the president, and former foreign minister, Abdullah Gül).
The furore threw little light on the actual content of the proposed amendments. Instead, the government’s political opponents preferred to accuse the AKP of intending to undermine democracy and the rule of law, erode the separation of powers, establish a civilian dictatorship, and introduce sharia law. For its part, the pro-Kurdish Peace & Democracy Party (BDP) barely participated in the debate and ordered its supporters to boycott the referendum.
A more measured opinion that sidestepped these political atmospherics was offered in July 2010 by a report prepared for the Turkish Economic and Social Studies Foundation (Tesev). The authors, a team of respected academic and practicing lawyers, concluded that the proposals would contribute to strengthening the rule of law and judicial independence in Turkey. They noted that the judiciary has functioned as a closed caste-system defending an ideology, the state, and itself rather than society or democracy; and that judicial reform is indeed essential (see A judicial conundrum: opinions and recommendations on constitutional reform in Turkey, Tesev, July 2010).
An improved constitution...
The amendments indeed promise substantial changes to Turkey’s legal order. For example, they will increase the members of the constitutional court from eleven to seventeen, with three elected by the national assembly from among a list presented to it and the remaining fourteen by the president, mostly from among a list of candidates prepared for him (as at present).
The term of office of constitutional-court lawyers will be limited in duration (unlike at present); the HSYK is to be expanded, and its members will mostly be chosen from and by the legal profession as a whole rather than (as at present) from a narrow section of it; and the role of the minister of justice in determining the board’s composition will be reduced. All this is hardly revolutionary stuff, let alone the road to sharia.
The amendments also include a raft of measures largely overlooked in the political clashes surrounding them, but which are designed to bring Turkey closer into line with European Union norms.
For example, they will establish an ombudsman, legislation for which was rejected by the constitutional court in 2007; enhance the protection of personal data, the right to collective bargaining for public servants, the freedom to travel, and the rights of women; and make harder the banning of political parties, in part by devolving the process to a special parliamentary committee so composed as to over-represent smaller parties and under-represent larger ones (in this context it is worth recalling that as recently as 2008, the constitutional court came within one vote of banning the AKP because it was deemed to threaten the constitution’s secular provisions).
..or just more politics?
There are undoubtedly flaws in and questions raised by the new amendments. Will the ombudsman be sufficiently free from political interference; should the national assembly have been given a greater role in the selection of HSYK members, as would be the case in many EU countries? In any case, Recep Tayyip Erdogan has already revived the call for an entirely new rather than a merely amended constitution, albeit one that will emerge (he hopes) from a cross-party consensus.
This looks optimistic if not a little mischievous. The opposition tried to turn the 12 September referendum into a test of the government’s popularity, and the AKP was only too happy to fight on this ground. There is a danger that the ruling party’s impressive string of electoral and political victories is leading to over-confidence on the part of the AKP generally and Erdogan specifically.
Turks of a secular cast of mind are right to be concerned at the tinge of majoritarianism in the government’s politics and rhetoric (something apparently missed in the European Union and United States’s quick welcome of the referendum results, with Barack Obama referring to the "vibrancy" of Turkey’s democracy). But this is also a response to the reality that Turkey’s electorate is starkly divided: provincial Anatolia voted solidly and predictably for the government, while the west of the country voted just as solidly and predictably against. (The MHP was the biggest and perhaps only real loser, as its virulent campaign for a “no” vote seemed to backfire).
So the problem of majority rule is an issue for the AKP’s opponents too. If they are not to face still more ballot-box defeats, perhaps they need to consider cultivating Turkey’s people and its democracy a little more, and the state and its discredited ideology a little less. The looming debate about a wholly new constitution might be a good place to start.
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