Arato: The Decision of the Turkish Constitutional Court: the Way Ahead

Andrew Arato writes in a guest op-ed for IC

The Turkish Constitutional Court has made its very important decision. The Justice and Development Party (AKP) will not be closed. It is the right decision, even if fining the party for supposedly anti-secular activities was legally dubious and politically unnecessary.

As one of the very few people who believed that the June 4 decision reversing the amendments to articles 10 and 42 of the Constitution (headscarf amendments) logically implied that there could be no party closing this time, even against the weight of history, I feel gratified, especially since such an action would have been both undemocratic and unjust.

But I am surprised that many optimistic opponents and pessimistic supporters of the AKP now seem to act almost as if a party closing did take place. They speak of the re-establishment of a tutelary or a state dominated regime, that puts the AKP in a straight jacket where it will be incapable of doing anything, and especially of constitutional innovation. Neither the wrong (but minor) part of the Court decision nor the present political situation nor especially available options justify any such interpretation. But the answer is also not the AKP trying to simply return to the situation immediately before the Head Prosecutor of Supreme Court launched the party closing case, and the open constitutional crisis in March. While it is not in a straightjacket, both the June 4 and the last decision of the constitutional court indicate limits to the government’s actions, and the limit is that of consensus, a term unfortunately derided by some AKP intellectual supporters. The project of democratic innovation must go on, and the only road for it is that of constitutional amendments, indeed preferably a new constitution. But it can be achieved, in a divided society, where there is no political revolution, only by a highly consensual approach.

Many supporters of the AKP seem to believe that no consensus is possible. But their exclusive concentration on the Republican People’s Party (CHP) and the rejection of proposals coming from civil associations like TÜSIAD, the business association that called for a constitutional convention with both parties and civil society participation, is self serving, in the service of majoritarianism and a narrow parliamentary understanding of the constituent process. As to the CHP, it does indeed seem to be going off the deep-end, with its recent attacks on the army, for guess what: engaging in consensual negotiations with its own government! It seems that negotiation and agreement is indeed possible with the Kemalist elite (as it used to be with the CHP) when other actors than the current parliamentary representatives are involved. Reconstructed over the last three years, the actions of the judicial elite too do not seem consistently hard line. While deciding against the AKP in the headscarf case, the Constitutional Court supported its earlier amendments in the cases involving the direct election of the president, reduction of parliamentary term and quorum requirements. And now the Court was badly divided (6 to 5) over the issue of party closing. Only six out of eleven seem to be hardliners incapable of compromise, and that proportion can and will change. The prosecutors and judges bringing the case against the secret society Ergenekon seem to be cut from a wholly different, more professional cloth.

In any case, the assumption that consensus and compromise is possible leads to action in the present situation, while the opposite only to impotence or to desperate acts that would only plunge Turkey back into constitutional crisis. So what should the AKP party do? In NY, on March 3, at a conference before the party closing case, where I already warned about the possible consequences of a majoritarian approach in constitution making, Mr. Dengir Mehmet Firat, Vice President of the AKP and chair of the party’s committee on a new constitution, asked me to provide a formula for consensus since the CHP (and supposedly the Kemalists) were incapable of it. I will now basically renew my argument made then, only reinforced by what happened in these months. Even if a constitutional compromise among the three parties of the current parliament (after civil society and professional consultations) is not possible, the AKP should not go ahead trying to simply pass its own constitutional proposal, using a 3/5 majority, presidential signature plus a referendum (one of the roads legally possible under article 175). The work of the Ozbudun commission should be preserved, but only as the party’s proposal for a new constitution that should not be rammed through – however legal that may be. As many commentators realize, new elections should be called where the AKP could and should campaign around its constitutional proposal. If it wins, it should go ahead with the project while trying to reconstitute the old All Party Accord Commissions so successful in amending the constitution between 1995 and 2001.

Unfortunately, there is the very real danger exists that under the existing electoral rule with its 10% threshold that a parliament then elected would reproduce the current one, or even given the CHP’s attack on the army and otherwise erratic behavior it would be a mere two party parliament, that is definitely the wrong type of body to make a constitution. Many parties, together representing possibly of 40-50% of the electorate could be excluded (more or less the picture for the 2 party parliament in 2002 and the three party one in 2007). If the AKP wishes to return to the majoritarian road that already failed, it will be happy with such a prospect. If it wishes however to refound the republic with a consensual new constitution, it must do something about the possibility of a highly disproportional electoral outcome before it is too late. One option would be to change the electoral rule, by greatly lowering the threshold, that would also require a constitutional amendment if it were to apply to the next election. Such an amendment would not only be constitutional, but also very much in the interests of secular forces who wished to be represented by other parties than the now ridiculous CHP. New center left and center right forces may be anxious and able to compete if the threshold were removed. If such an amendment is not possible before the next elections, than the AKP could declare right now that it would commit itself to using an expanded constitutional commission during the next parliamentary session that would then recommend to the formally proper parliamentary committee and would admit representatives from all parties that have passed a 3 or 4% threshold in the elections, the lower the better. Obviously, a decision rule would have to be found for this expanded commission that would give all participants real voice, and preserve the legitimate interests of the majority that is in any case guarded by the final parliamentary vote necessary to legally pass a constitution.

And that brings me to the last very important issue. Turkey is not having a political revolution, even if the new constitution it should have should fully replace its dualistic regime by a constitutional democracy. Thus, even the new constitution would have to be passed as an amendment to the current 1982 one, using its article 175, and taking into account its unchangeable provisions (articles 1,2 and 3, entrenched by 4). This means as of the June 4 decision that Turkey’s new constitution will have to be made under Constitutional Court supervision. Such a phenomenon would not be as novel as many Turks imagine; only recently in 1996 the South African Constitutional Court has used its powers to declare the constitution made by a constitutional assembly (in part) unconstitutional. This could happen in Turkey, because given the unchangeable articles, its Grand National Assembly is not a sovereign constituent assembly. It is important, that the consensual approach may neutralize political actors with standing who may appeal to the Constitutional Court to review the constitutionality of amendments: according to article 148 only the president or 1/5 of the deputies can do so, and the Court cannot initiate review on its own. Given the unlikely case of the emergence of a consensual constitution, and the opposition of 1/5 of the deputies, it will be also important to take the views and interests of the Constitutional Court into account that would most likely concentrate on its own institutional interests.

In short, a Court would fight above all the dimunition of its own authority. I would support this moreover not only on pragmatic but also on principled grounds. In a society where there are such a sharp divisions about some culturally explosive symbolic issues, it may be a very good idea to leave a way of taking those issues out of the political process where ultimately, if one cannot agree, they lead to violent confrontations and the suppression of the weak, minority or majority. Thus, while I would very likely give a more precise meaning to secularism and republicanism in a new constitution, I would not remove these provisions from the unchangeable parts of the constitution, as the one AKP partial draft available to me tried to do. Indeed I would add some fundamental rights to what is unchangeable, even if such feature is inevitably court strengthening.

Of course it would be hazardous to strengthen courts that are constituted and appointed in the current way. A new constitutional synthesis has the opportunity to further emancipate the Turkish judiciary, including the Constitutional Court from the old dualistic system, by shorter terms, more professional appointment process of more professional judges, and more supervison and accountability. But so emancipated, courts could become alternative spaces of compromise, and even of innovation. That such a thing is possible is made clear by the last decision of the Turkish Constitutional Court, a sign of its own partial, not yet complete evolution from a guardian of the state to the guardian of the constitution.

Andrew Arato
Frankfurt
August 9, 2008

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