The Failed Process of Constitutional-Making in Turkey
Turkey after going through “gradual, never completed, yet highly significant packages of constitutional changes” entered a constitution-making process in 2011.[1168] The constitutional crisis of 2007 over the election of a new president, party closure case against the AKP and the Constitutional Court’s unconstitutional constitutional amendment decision in 2008, AKP began to favor a unilateral approach with regards to constitutional change.[1169] But it is also important to note that a conciliatory approach was attempted with no avail couple of times before AKP-backed constitutional amendments.
In 2008, Koksal Topsal, the President of the TGNA sent out letters to the chairmen of all political parties calling to set up commission to discuss constitution, parliamentary by-laws and EU harmonization legislation. However, it had failed because CHP, the main opposition party, did not respond to it.[1170] President Abdullah Gul also made such an attempt to establish a reconciliation among political parties, which was also unsuccessful. AKP moved on with a package of twenty-six articles that were approved in a referendum on September 12, 2010.[1171] However, the intensely polarized atmosphere of the referendum did not quell the constitutional debate, rather with the approaching general elections, the topic of a new and “civilian” constitution became the chief issue.[1172] Despite an overwhelming victory for AKP, the party failed to get the two-thirds of the seats in the Parliament, which would have made it possible for it to unilaterally draft and ratify a constitution.[1173]Despite achieving a landslide victory, AKP lacked the constitutional mandate to unilaterally draft a new constitution. However, all political parties that had campaigned for a new constitution during the general elections, after the results also reiterated their positions.
Thus, the idea of a broad-based participatory committee became a possibility. AKP had won 50% of the votes (327 seats), CHP won 26% (135 seats), MHP 13% (53 seats), the independents, running under the banner of EDOB,[1174] and supported by the pro-Kurdish BDP received 6.5% of the votes (35 seats). Proponents of an ordinary parliament drafting a new constitution argued that the parliament, despite the exclusionary electoral law with a 10% threshold, had 95% representation of Turkish voters.[1175]AKP proposed the idea of establishing a committee to draft a new constitution. With the initiative of the presidency of the parliament, Constitutional Conciliation Commission (AUK), with equal representation from four parties represented in the parliament was formed in the late 2011.[1176] Regardless of the distribution of the seats in the parliament, the Justice and Development Party (AKP), Republican People’s Party (CHP), Nationalist Movement Party (MHP), and Peace and Democracy Party (BDP) were given equal representation of three members in the commission.[1177] The commission, distinct from the standing committees of the Grand National Assembly of Turkey (TBMM), was established as an ad hoc commission that prepared its own working principles.[1178] It was a “purely political body” that was not subject to the regular rules and principles of the Parliament.[1179] The “elite-driven process” was within an institutional framework that was based on limited consultation, but nevertheless, was carried out with success previously in 1995 and 2001.[1180] The most important aspect of the working principles, 15 articles in total, was that the decisions would be taken in consensus with all the political parties.[1181] Before the deliberations began, the commission until May 4, 2012 listened to the inputs of social organizations including 42 political parties, universities and other institutions, 39 professional associations and unions, 79 nongovernmental organizations, foundations and platforms[1182] in three sub-committees.[1183] The commission also called for individuals and civil society organizations to communicate their views via the website set up for the constitution,[1184] post mail, and e-mail and received inputs from 64 thousand people, including 440 civil society organizations.[1185] In addition to these, meetings were held in different provinces of Turkey and surveys were conducted to collect citizen opinions, which provided an opportunity for people to directly voice their opinions.[1186]
From the beginning, the commission’s work was not embraced by all sectors of the society. On the one hand, some maintained that the parliament lacked the authority to enact a new constitution.
Similarly the ad-hoc nature of the commission, with no legal basis in the constitution or in rules of procedures of the parliament led to claims that it lacked legal authority.[1187] Those concerned with the representativeness of the commission, referred to the high threshold of the Turkish electoral system (10%) that have led to the parliament in power and called for a specifically established Constituent Assembly that would have ultimate representativeness of all social clusters of Turkish society.[1188] Also, those critical of ordinary legislators working as constitution-makers raised the issue that daily politics would muddle the constitution-making process.[1189] For this substantially political process, there was no prior effort to build trust among political parties that could help alleviate their strong opposition to each other’s positions. Also, there was no declaration of principles or a document that highlighted the significance of the process.[1190] Although the commission had equal representation from political parties, in terms of representation of gender, it fell short. On the other hand, those who were not critical of the parliament’s authority to draft a new constitution were skeptical of the working of the commission. One criticism directed at the commission was that it functioned in an undemocratic political climate where there are tacit and explicit obstacles to freedom of expression. Without first addressing these, the public opinion would be limited in its capacity. Another criticism was directed at the unanimity decision-making rule of the commission. In an atmosphere of political polarization where the political parties have firmly embedded “red lines”, the requirement of achieving absolute consensus made the new constitution unattainable. The procedural principles were also limited in detail and failed to provide the imperative legal rules that could facilitate consensus-building.[1191] The lack of openness of the commission’s work was another point of concern.[1192] In terms of inclusiveness, one major impediment is the overall illiberality of discourse in Turkey when it comes to contentious issues. The fact that the commission received abundance of opinions and suggestions from civil society did not automatically translate into civil society involvement in the process. The commission chose not to disclose the input of civil society. A much lively constitutional debate could have been accomplished, had there been free access to different proposals.[1193] Having accumulated a wide range of proposals from different sectors of the society, the commission failed to to prepare a text of principles that would have guided the drafting process. The members of the commission worked in harmony for the initial months of the commission, unfazed by the polarizing political rhetoric of daily politics.[1194] Part of this was because the commission postponed the discussion of more contentious issues such as the unamendable articles, native-language education, the issue of decentralization and local governance, the Preamble, and citizenship to latter dates.[1195] Essentially working in a highly flexible setting without effective deadlines, participants pursued their narrow interests, engaging in negotiation but not deliberation that can overcome differences. The commission that aimed to finish the drafting in three months could not do so after 18 months of work.[1196] The next section will outline the main points of contention during the drafting process regarding the unamendable article.4
More on the topic The Failed Process of Constitutional-Making in Turkey:
- The Failed Process of Constitutional-Making in Turkey
- References
- References
- Conclusion
- The 1982 Constitution and Its Discontents
- Six forms of judicial nullification
- Regulation and Institutions
- Election Thresholds Including Allocation of Non-counting Votes
- THE ROMANO-CANONICAL ORIGINS OF THE FORMULA
- GENERAL ISLAMIC BACKGROUND