Arato: The Turkish Constitutional Crisis and the Road Beyond

Guest editorial

Andrew Arato

We should be deeply worried about Turkey’s unfolding constitutional crisis, that could end in many things: the continuation and even conclusion of the long democratic transition; military coup with entirely uncertain consequences; or, in between them an unproductive stalemate. Obviously only the first can enable Turkey to become a member of the European Union, and remain the much needed bridge it already is between the “West” and the “Islamic World” (if these categories have any meaning). Outsiders can help, but only by trying to understand the roots of the crisis, and the role played by each side in creating it, the Kemalist elite and the AKP, the party of government that has Islamic roots, neither of whom should be caricatured at least by foreign observers. That each played a role can be clearly seen through the terms and causes of the constitutional crisis, to the analysis of which I would like to restrict myself here.

Let me role the political film backwards. Readers will surely know that there is currently a judicial process at the Constitutional Court, initiated by the head prosecutor of the Supreme Court, seeking to close the AKP party and ban from politics over 70 of its politicians including PM Erdogan and President Gül. They may not know that, though under legal constitutional jurisdiction (Articles 68 and 69), the charges involve an incredible mélange of private statements, fully legal political acts including passing laws and constitutional amendments, and imputations of intentions that are entirely unsupported. Thus the attempt to close the AKP is not legally but politically inspired, and would reverse the results of the last two democratic elections in which the party received between 3/5 and 2/3 of parliamentary seats (though, as I would also stress, given a disastrously bad Turkish electoral rule on the bases, of 37, and 44 % of the votes). Readers will also know from Mr. Eissenstat’s article if not before, that on June 4 the same Constitutional Court has invalidated rather innocuous amendments to Articles 10 and 42 to Turkey’s Constitution, intending to permit legislation and/or administrative decisions allowing the wearing of headscarves in the universities, according to him a decision that almost certainly transgressed to sphere of authority of the Court. I think the decision, remarkably enough not yet published in full, was technically very questionable but certainly within the jurisdiction of the Court. The big question now is whether this decision foreshadows the closing of the AKP as the majority of Turks think or, as I maintained in a long interview in the liberal Milliyet on 12 June (Haziran) the Court has now established the option of switching to a more constitutional path of defending the constitution (and enforcing consensual change) than the nuclear and self-contradictory option of party closings. Historical experience against logic are in conflict, and I admit the weight of prior history that has involved 18 party closings, but never of a majority parliamentary party that has such broad international support in Europe and America, may win out. But let me try to justify the logic, or my logic anyway.

The makers of the Constitution of 1982 established a dual, semi authoritarian or semi democratic state, with important reserves of power outside the constitution. Starting with the elections of 1983, and then constitutional changes already in 1987 Turgut Özal managed to expand the democratic dimension, leading to a great reform process from 1995 to 2004, that in several rounds that involved the consensual participation of all parliamentary political parties, managed to significantly but by no means completely constitutionalize political powers in the system. Today people stress several military and indeed judicial interventions in this period, that we can see only managed to slow down the rate of change, exclude parties that would reappear in new forms and under new names, but nevertheless confirming the existence of important political centers that could continue to act outside all democratic accountability and constitutional restraints. From 2000-2001 especially, the Turkish parties and governments were under increasing European pressure to eliminate these authoritarian residues, and it was then that the idea of a gradual amendment of 1982 Constitution was replaced by that of a new “civil” or “civilian” Consitutiton. But though the point was not entirely clear either to the European critics or the Turkish participants, unless Turkey had a revolution against the Constitution of 1982, even an entirely new civilian constitution would have to be introduced as a large scale amendment of the still valid basic law.

That had two major implications. First, if it required the consensus of all parties to introduce partial amendment packages in 1995 and 2001, logically the introduction of a whole new constitution in a divided society through parliamentary amendment would imply the same requirement. Second, as against what Prof. Ergun Özbudun (the head of the AKP’s constitution drafting commission, whom I greatly respect) told me at a conference in New York in March 2008, the ordinary parliament, the Turkish Grand National Assembly is not even in Turkish positive law identical to a constituent assembly. It is not in terms of power, that we all know or should if we glanced at the country’s map of power. In my view at least, it is not in terms of legitimacy, unless it generates the kind of consensus characteristic of earlier amending efforts. Özbudun however was speaking merely of positive legality, and therefore the legal right of a parliamentary majority (under article 175) of 3/5 with both the president’s support and the majority in a referendum, or of 2/3 either with the president’s support or the majority in a referendum, to change the constitution as it will.

In my view such narrow legality, without sufficient power and legitimacy is exactly what would get a governing party in trouble in a divided society, but unfortunately, it does not accurately describe the legal givens in Turkey in the first place, as against a country of sovereign parliaments (there are arguably a few left in the democratic or ethnocratic world). The Constitution of 1982 has unchangeable provisions that the parliament cannot alter even with 100% of the vote having to do with the republican, secular and unitary character of the state. (Articles 1, 2,3 made unchangeable by Art. 4). Moreover the Constitutional Court is given jurisdiction to review amendments (art 148/149). Though this jurisdiction is defined as procedural, logically the Court would be correct to argue that any procedure (i.e. any majority, even 100%) that changes the unchangeable is ultra vires. Thus if Turkish Constitutional Court judged the amendments in question unconstitutional on the bases of the unchangeable articles it would have still not have gone as far stretching its jurisdiction as the great Indian Supreme Courts did, in defense of the unwritten “basic structure”of the Indian Constitution.

Admittedly, the Indian Constitution was democratically made, and there the Court could arguably defend the work of the democratic pouvoir constituant, against mere governmental organs, including the qualified parliamentary majority. In Turkey the Constitution was an authoritarian product, and it may seem paradoxical to defend its unchangeable provisions against democratically elected parliaments. To avoid the untenable originalism latent here let me propose a different, though partially similar criterion. In Central Europe, specifically in Hungary in 1989 the great question of when to erect a Constitutional Court with strong powers of constitutional review depended, in the eyes of democratic oppositions, on having a Constitution worth defending. The origins of Turkish Constitution in 1982 were highly questionable (they were typically Bonapartist!) but since the major consensual reforms Turkey does evidently have a Constitution worth defending. A lot of it is now the work of democratic instances. It is another matter that the Court itself preserves something of the worst heritage, specifically in its powers of party closings. But its powers of constitutional review belong to the other side of the ledger, within this still dualistic institution. It is in the interest of all that it abandon its authoritarian role, and assume the type of jurisdiction common to many constitutional democracies, that may very well as in Germany and India include review of amendments. Furthermore even if the Constitutional Court cannot gain much legitimacy in defending the unchangeable provisions of an originally authoritarian Constitution, the legality of its jurisdiction provides it with a vantage point to bring attention to the equally weak legitimacy of a power seeking to alter this constitution on the bases of mere majority will. Both legitimacies are questionable, but the legal position of the Court will remain stronger unless the amendment rule itself were amended by parliament, an act that the Court could again find unconstitutional…because implicitly challenging the unchangeable articles.

Moreover denial of the jurisdiction to review amendments and thus defend the unchangeable provisions of the Constitutions would only push the Court in the direction of passivity could have terrible if unintended consequences, and it may be fortunate that it did not rise to the formalist bait. If the constitutional review of amendments could not police the unchangeability of three articles, only party closing would remain as a marginally legal but in fact openly political weapon of their enforcement. And that would be the worst possible road to keep the Court on. It is one thing the deny the right of a party to make a constitutional amendment, even if the decision is technically unjustified, and quite another to close a party altogether for having made an amendment perfectly legally.

But what if the Court would from now on start using its expanded jurisdiction of constitutional review as a way to disempower all reform, would this be a still preferable option to open political acts like party closings, that have historically not been able to stop the reform trend? It is one thing to close minority parties, and quite another to close the party that has such majority (in parliament) or near majority (in the country). Thus closing now would be the worst option. But it is in my unrealistic to assume that the Court intends to replace or disempower the constitutional legislator. First, there is little creative capacity here; on the whole the Court is a negative legislator that can create only marginally, when expanding someone’s authority… here its own. Second, to consider the likelihood that the Court would take an obstructionist path, we should examine the AKP’s own responsibility in producing the crisis, that is in my view considerable. Until 2002 when the AKP came to form government, constitutional alteration has been consensual. This could be said to be strategically necessary since no party had the 3/5, not to say 2/3 majority in parliament, and avoiding referenda required the latter figure of support. After 2002 the AKP had nearly 2/3 and with small parties it could swing over that figure. Yet, it was still interested in consensual amendments with the one remaining opposition party, the staunchly Kemalist CHP. Conversely, most of the CHP supported even a constitutional amendment in 2002 with a single person beneficiary to allow Mr. T.R. Erdogan into parliament in the face of an earlier ban, also overriding the secularist Pres. Sezer’s veto in the process. Together the AKP and the CHP still passed an important amendment package in 2004. The story that no agreement between these two forces is possible, now told on both sides with increasing bitterness, is simply false. What changed everything, was the issue of the election of the president of the republic, where both sides acted in ways that destroyed their relationship with the other. The AKP nominated the otherwise excellent Abdullah Gül, whose victory would mean the attainment of important appointment and constitution amending (here the option of 3/5 of parliament comes into view) powers. The CHP responded with an ugly boycott that sought to disempower the country’s rather terrible rule of presidential election (2/3 in first two rounds, but majority in third round, implying an ultimately majoritarian process). The Constitutional Court supported the boycott (indicating only its support for consensus, even if a lose reading of quorum rules not explicitly applied to presidential elections by the Constitution), but though this is now easily forgotten supported the AKP 6-5 when the government offered a package of 4 amendments legislating direct election of the president, shorter parliamentary terms, clearer quorum requirements and lower voting age). The 5 votes however were and should have been seen as a signal: the Court did not like non-consensual amendments, as these 4 indeed were passed over the opposition of the CHP and Pres. Sezer.

This is where the so-called headscarf amendments come in. With a new parliament of different composition, a failed boycott, and Pres. Gül elected still in the old way, the AKP was ready to begin a constitutional project mostly on its own. Instead of an all parliamentary committee, they, quite wrongly and reminiscent of earlier military governments appointed a commission of admittedly first rate, independent experts. When the project ran into strong criticism from all who were excluded, and not just the Kemalists but also civil society groups, the AKP joined an initiative of the right wing MHP (that could have been a trap!) to introduce the two amendments dealing with the head-scarf issue alone. The AKP said that they wanted to take the most contentious issue off the table not to interfere with the broader project. Instead, they put an enormous break in front of constitutional change as a whole, to the evident chagrin of Prof. Özbudun and even more many of their liberal supporters. To their opponents, they used the first opportunity they had, when they controlled both the legislative and executive branches to engage in an entirely majoritarian project of constitution making, and revealed the meaning of such a project by ramming through what would be the most controversial element possible without any trade-offs, quid pro quos or guarantees. While many of these opponents wish to bring the AKP down no matter what, and others do not wish constitutional change at all, there are also some who welcome the internal transformation of a formerly Islamic party, are happy about its apparent commitment to a European type civil constitution, and object only to the method of bringing the latter about thinking that in the process the goals themselves will be compromised.

It is hard to tell how the members of the Constitutional Court divide on this last question. Are they ultimately seeking to destroy the AKP and any party with Islamic roots, something impossible in a Turkish democracy, or are they only trying to keep it on a consensual political path? The possible difference between such different perspectives cannot come to view if the AKP stays on a majoritarian path. Much has been said about the old elite membership of the Court, little of it complementary, some of it probably libelous, some of it undoubtedly accurate. More importantly however, it takes 7 votes on the Constitutional Court out of 11 to invalidate amendments, or to close a party. The vote in 2007 was 6 to 5 in favor of the AKP’s four amendments, against the CHP as well as President Sezer who appointed most of the judges. The vote this June 4 was 9 to 2 against. There has now been a shift against the AKP. At the very least, three judges would again have to switch for the AKP to survive (I leave out the possibility of compromise solutions, possible since the amendments of 2001) and then 3 subsequently would have to vote yes on amendment packages. Renewed consensus in parliament, or the establishment of an extra-parliamentary consensual input by a semi formal convention (as recommended by the business association Tusiad) or a round table would certainly help in context of the latter votes. Strictly speaking, in case of parliamentary consensus noone would even have standing to turn to the Constitutional Court, because Art 148 gives the power only to the President or at least 1/5 of the MPs. So there is every reason to think that if the party is not closed, the road of the democratic transformation could be re-opened if, as is very likely, a chastened AKP decided to follow other than majoritarian methods.

And what if it will be closed, according to historical experience? I think my answer would be rather similar. The AKP would be replaced, as historically, and with or without Erdogan the successor party (like the AKP itself) should be able to learn from the mistakes of its predecessor some of which I tried to detail here. Otherwise, the other two options mentioned in the beginning will become more likely…hopeless stalemate or/and a downward spiral toward a military coup. But neither can be allowed to happen, and the search for consensual solutions must therefore continue.

The Constitutional Court will remain an important actor in any consensual process, and it makes no sense to vilify it whatever anyone may think or imagine about some of the members and their allegiances. Today that body is in the position to make the greatest contribution to the kind of legal and legitimate process of constitution making I have mind by dismissing the charges against the AKP and its leaders.

Andrew Arato

Frankfurt, June 29, 2008