The 1982 Constitution and Its Discontents
Turkey’s 1982 Constitution drafted under military rule, has since its birth been under criticism from different sectors of the Turkish society. The criticism is directed at the nondeliberative, noninclusive, and top-down method of adopting the constitution as well as its authoritarian content.[1102] The text was the result of a bicameral Constituent Assembly[1103] in which one chamber was the National Security Council (NSC), composed of the five top generals that had led the military takeover on September 12, 1980.[1104] The second chamber, the “civilian” chamber called the Consultative Assembly was made up of 160 members that were directly or indirectly appointed by the NSC.[1105] The draft prepared by the Consultative Assembly could be amended or rejected by the NSC and there was no mechanism to resolve the differences between the two chambers.[1106] A nation-wide referendum was supervised under the extraordinary conditions of the military regime at the time.
The NSC prohibited the campaign of “no” vote and the General Kenan Evren embarked upon an intensive campaign of propaganda for the new constitution. Transparent envelopes were used violating the secret ballot principle.[1107] Ratified by a public referendum (91.37%), the constitution also confirmed the presidency of Evren for the next 7 years.[1108] Unlike the process that had led to the 1961 Constitution, which had tasked the NUC with overseeing the drafting of another text in the event that the public vetoed the first one, there was no clear understanding of the course of action that the military rulers of NSC would take in the event that the draft was rejected in the plebiscite. It was understood that the “no” would only prolong the military rule.Prepared and ratified under dubious conditions, the constitution in terms of substance was also nondemocratic.
Convinced that the political crisis leading up to the coup was heightened by the weaknesses of the 1961 Constitution, namely the weak authority of the executive branch, strong checks and balances, and elaborative rights and freedoms; the drafters of the 1982 Constitution set out to “rectify” these areas. It empowered the executive branch, established a number of nonmajoritarian institutions, and allowed restrictions on fundamental rights and freedoms under vaguely defined conditions. Although some of the institutions set up by the 1982 Constitution existed under the previous framework, such as the National Security Council and the Constitutional Court, their composition and function had been altered in the new text to fortify the established structure against any future change.Yazici, a long-time critic of the 1982 Constitution points out to aspects of the constitution that may prompt political crisis. These include an empowered office of presidency with vast appointive powers in a parliamentary system which lead to two-tiered executive branch that is prone to deadlocks; a politicized Constitutional Court whose members are appointed solely by the president and acts as a mechanism of tutelage; and a guardian role for the armed forces that demonstrate a deep distrust toward civilian politicians.[1109]
Despite these authoritarian aspects and lack of legitimacy, the constitution until 1995 has been well espoused by the right-wing conservative governments.[1110] However, with the prospect of European Union membership, Turkey has gone through amendments that to a certain extent democratized the fundamental rights and liberties and liberalized the political system.[1111] The following section gives a short account of amendments and amendment-making procedures pursued by different governments of Turkey.
1.1 Constitutional Change Process of Turkey
1.1.1 Constitutional Amendments
Before AUK had been established the 1982 Constitution of Turkey had been amended 17 times with changes affecting 113 articles.[1112] The 1987 amendment lowered the voting age, changed the constitutional amendment procedure, increased the number of the members of the Turkish Grand National Assembly (TGNA), and via referendum eliminated the provision than banned former politicians from practicing politics.[1113] An attempt to change the constitution to have early local elections was defeated via referendum in 1988.
The 1993 amendments abolished the state monopoly on radio and television broadcasting. The 1995 amendments, a product of intense negotiation, resulted in significant changes that eliminated the rationale for the 1980 coup from the preamble; eliminated the bans on political activities of trade unions, associations, foundations, cooperatives, and public professional organizations; allowed for cooperation between these organizations and political parties; increased the number of members of the TGNA; lowered the voting age further to 18; provided for right to vote to Turkish citizens living abroad; provided for the right to unionize for civil servants; lowered the age to become a member of the political party; allowed the instructors and students of higher education institutions to become members of political parties; allowed political parties to establish women and youth branches, foundations, and organizations outside of Turkey; and changed the conditions where one loses membership to TGNA and changed the consequences to members of an outlawed political party.[1114] The 1999 amendment reorganized the functions and composition of State Security Courts and eliminated military judges from these courts. Another amendment in 1999 allowed for the privatization of public enterprises and made concession contracts arbitrable.[1115]The 2001 constitutional amendments were the most comprehensive ones.[1116] As a result of these, 33 articles and the preamble were modified. The bulk of these amendments were on fundamental rights and freedoms.[1117] It eliminated the general restrictions on rights and freedoms; improved political and civil rights; enlarged the scope of social and economic rights; shortened the pretrial detention; eliminated the phrase of “language prohibited by law”; restricted the death penalty to time of war and for crimes of terrorism; increased the quorum for political party prohibition cases, clarified the conditions of anti-constitutional activities and provided for gradual punishment system for political parties; altered the composition of the National Security Council to give numerical majority to civilians and highlighted the institution’s advisory nature and eliminated the ban on Constitutional Court’s power to review the laws passed under the military regime.[1118]
The 2002 amendments changed the clause that prevented Recep Tayyip Erdogan’s election to the parliament and provided for an interim election.
This amendment deviated from others as it catered to one individual and did not have democratization, liberalization or EU-conditionality motivation. The 2004 amendments were nevertheless another important moment of comprehensive constitutional change where the EU process was the “leading force”.[1119] The amendments eliminated all references to death penalty in the constitution; permitted affirmative action for women; abolished state security court; allowed for extradition of Turkish citizens in cases of offense under the International Criminal Court jurisdiction; eliminated the Chief of Military Staff's right to appoint a member of the Board of Higher Education; allowed for Court of Account's auditing of the Armed Forces; and most significantly established that international agreements take precedence in case of conflicts between international agreements and domestic law concerning fundamental rights and liberties. An amendment in 2005 reorganized the Supreme Board of Radio and Television (RTUK); another one in 2005 expanded the parliamentary supervision of over the government budget. A 2006 amendment lowered the minimum age of holding public office.Starting with the crisis over the election of a new president, the 2007 and 2008 witnessed constitutional amendments that were reactions to immediate constitutional crises.[1120] Approved by a popular referendum the 2007 constitutional amendment allowed for direct presidential election, shortened the legislative period to 4 years and established the quorum needed for parliamentary decisions as one-third of elected members.[1121] The early general elections, the Constitutional Court's review of the amendments, the parliamentary election of the new president and the concurrent referendum for the 2007 amendments led to a discrepancy, which was resolved by another constitutional amendment in October 2007.[1122] While the AKP-initiated debate on fully revamping the constitution was ongoing, AKP and MHP agreed on another constitutional change on two articles regarding the principle of equality (Article 10) and the right to education (Article 42). The 2008 constitutional amendments intended to abolish the headscarf ban for female university students was annulled by the Constitutional Court on the grounds that it violated the unamendable principle of secularism.
The AKP-supported constitutional amendment package, like the 2007 amendments, because of partisan deadlock, was taken to a referendum. While the most important provisions of the amendment were related to composition and appointment structure of the Constitutional Court (AYM) and the High Council of Judges and Prosecutors (HSYK), these were embedded in a 26-article package that seemingly bolstered rights and liberties and rule of law.[1123] These included the introduction of the office of Ombudsman and the individual complaint mechanism; strengthening rights of children and other disadvantaged groups; establishing a separate secretariat and budget for HSYK; increasing the quorum of Constitutional Court in party prohibition and review of constitutionality of constitutional amendment cases; strengthening the right of collective bargaining for civil servants; introduced new rights such as personal data protection and right to become members of different labor unions at the same time, allowing judicial monitoring of the Supreme Military Council’s decisions and ending the judicial immunity of the 1980 coup-makers.[1124] The seventeenth amendment of the constitution that took place in 2011 regarding the disciplinary process of sports federations was the final change introduced to the 1982 Constitution before the AUK was established.
1.1.2 Amendment-Making Procedures
The amendments listed above introduced wide-ranging changes to the constitution in different subject areas. The procedure of amendment-making displayed differences that can be explained by parliamentary arithmetic and the political context.[1125] We observe that three methods were adopted during different periods. One is the reliance on ad hoc conciliation commissions; inter-party committee for the 1995 amendments; and the accord committee for the 2001 amendments.[1126] We observe that these took place during coalition governments in times of “highly fragmented and polarized legislation”, and in the case of 2001 ones, amidst an economic crisis.[1127] However, these remain as constitutional amendments that made the most comprehensive overhaul of the constitution, making up 13.6% of all amendments in the 1995 and 28.2% in 2001.[1128] Emphasizing consensus-building approach, these ad hoc bodies were “purely political”, not subject to the regular rules and procedures of the parliament.[1129] Although these broad inter-party agreements have not been easy and were strategically necessary, they were able to achieve multiparty consensus that could transcend partisan politics.[1130] The adoption of consensual procedures even in the face of staunch opposition from veto actors of the regime had become important precedents for Turkey’s recent record of parliamentary process of constitution-making.[1131]
A second method has been unilateral action during the single-party governments.
These constitutional amendments such as the 2004, 2007, and the 2010 instances of constitutional change have been pursued under the direction of the major political party. Without engaging in deliberation and consultation, these constitutional changes have adopted “ruling-party constitutionalism” in order to address political issues of higher significance.[1132] A third method has been engaging in alliances with the opposition parties such as the case in 2002 when CHP provided support and 2008 amendment (ultimately annulled) when MHP provided support. Having achieved consensus without due deliberation, this type of “alliance-building constitutionalism” dealt with politically sensitive issues.[1133]Of the 17 amendments introduced to the constitution, 11 took place during the post-2002 period when AKP formed a single-party government. However, the two-thirds of the total articles changed did so before AKP rose to power.[1134]
1.2 Criticism Toward the Turkish Constitution
Considering the constitution as an “obstacle” to democracy, Tanor emphasizes the structural problems related to the way the constitution organizes the relationship between the state and society and individuals.[1135] Although the aforementioned amendments, especially the 1995, 2001, and 2004 amendment packages, aimed to respond to criticism directed at the democratic deficits of the constitution, they remained insufficient as they failed to systematically overhaul the text. Its critics argue “these reforms have not been able to completely liquidate the authoritarian, tutelary, and illiberal features of the Constitution, itself a product of a military coup”.[1136] Thus, both in terms of content and the origin, the constitution remained a thorny issue by the time AUK was established.
Merely considered as partial reforms, the amendments passed till then had not achieved much with regard to Kurdish minority rights.[1137] The constitution maintains the clause on Turkish citizenship (Article 66), which stipulates that “Everybody bound to the Turkish state through the bond of citizenship is a Turk”. Moreover, the unamendable provision of Article 3 recognizes Turkish as the language of the state rather than the official language of the Turkish state. The centralized administrative system and lack of right to education in mother tongue remain among the demands of the Kurdish citizens. In recent decades, Turkey had become more “politically and culturally polarized” along religious and ethnic lines,[1138] and demand for constitutional adaptation to respond to these new dynamics had become more pronounced.
Although the constitution was partially reconstructed, the idea of making a new constitution remained popular. A survey conducted before the 2010 referendum on constitutional amendments found out that 49.5% of the respondents were not content with the 1982 Constitution and 43.5% reported that a new constitution is needed regardless of the outcome of the impending referendum.[1139] Over the years, civil society organizations, academicians, think tanks and other platforms produced proposals of constitutional change, partial and total, and promoted constitutional replacement.[1140] The support for a new constitution increased despite the piecemeal constitutional change. According to surveys conducted by TEPAV the ratio of respondents who declared that a new constitution is needed increased from 41 to 69% from 2008 to 2011.[1141] However, a central question regarding the procedure of making a new constitution remained unresolved.[1142] As the next sections demonstrates, although there was agreement around the need for a “new and civilian constitution-making,” there were certain uncertainties regarding the procedure of making a new constitution. The unamendable provisions of the 1982 Constitution contextualized within the broader question of original versus derived constituent power remained unresolved amongst constitutional law scholars and political elites.
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