Turkey’s Reform Conundrum

By Murat Onur
Contributor
March 28, 2010

“Our Party shall prepare a completely new constitutional bill to allow freedoms, responding to the needs of the entire society, conforming to the principle of the State of law and standards of democratic countries, aiming at establishing a new "social contract" between society and the State. This bill shall not be an exercise of "constitutional engineering" but document reflecting the will and demands of the people to the State structure on a democratic basis”

Most Turks agree with Prime Minister Erdoğan that Turkey needs “substantial reforms in the judiciary”. They probably would go even farther and say the country is in need of a new constitution. However, it is hard to agree that the current developments in Turkey represent the “footsteps of a modern democracy”.

The excerpt at the introduction is taken from the Justice and Development Party’s (AKP) charter of the party. Besides its pro-democracy content, perhaps the single most important part of the passage is in the last sentence. Unfortunately, the AKP is doing exactly the opposite of what it declares.

So far, AKP’s reform policy includes a unilaterally-drafted constitutional change package, a public affairs campaign by pro-government NGOs exclusively for pro-AKP audiences, and daily complaints by the party leadership on how the judiciary opposes the “nation’s will”. Recent statements by the AKP leadership could draw a better picture. Last month, Prime Minister Erdoğan said “the judiciary is intervening in the executive branch’s business,” and argued for stronger executive powers so the government would be able to resist. The Justice Minister at a press conference also argued that “an independent judiciary which is proactive in influencing the political administration and sees its power as unlimited – instead of just being an objective [institution] – is much more dangerous than a dependent judiciary”. Ironically, the conference was entitled “The Rule of Law and the Judiciary in the Democratization Process”.

To critics, the AKP’s rhetoric of reform represents more of an attempt to solidify the party’s increasing control in the judiciary, rather than a move for improving Turkish democracy. A quick look at the AKP’s reform plan could explain why.

Proposed changes to Article 15 simply reconstruct the country’s top judicial institution, the Constitutional Court. Under new rules, the court will increase from 11 to 19 members, 16 of whom would be directly appointed by the president.

Another important institution, the Supreme Board of Prosecutors and Judges (HSYK) would also undergo significant changes. Under the amendments, the number of board members will grow to 21 from the current 7, while the Justice Minister retains his position as president of the Board.
Also controversial are amendments to the country’s party closure procedures. The AKP proposal transfers the right to decide on party closure cases from the Constitutional Court to separate commissions that would be set up by the parties. This proposal not only fundamentally contradicts the separation of powers principle, but also lays way for unpleasant political bargaining on party closures.

Membership in the top court and the HSYK requires extensive experience in law and the judiciary. AKP’s proposal allows the President to appoint ordinary citizens to 16 of the 19 positions on the Constitutional Court. The HSYK, which regulates judiciary matters, would allow the inclusion of people without background in the judiciary. Experts argue that the proposed changes could create a weak judiciary where the appointed members of the institutions lack merit and legal proficiency.

AKP’s strategy ignores the integral parts of a democratic constitutional reform process: consensus and participation. True, the AKP has the parliamentary majority; but moving unilaterally on matters that concern the entire society is not democratic by any standard. Studies show that constitutional changes undertaken without public participation failed to produce political stability and were often rejected by the people. Imposed constitutions, whether by a military junta or a majority party, tend to create dissent and political tensions.

Opposition parties have already declared they will not support any of the proposed amendments to the judiciary. The acting head of the HSYK, president of the Council of State, and the president of the Supreme Court of Appeals have also criticized the proposals. Yet the AKP is planning to go to a referendum days after announcing the reform package. In other words, the party is not giving the public sufficient time to understand and discuss the proposals, much less permit them to participate in the process. The referendum, which will only allow voting on the package as a whole rather than voting on each article separately, also contradicts democratic norms.

Turkey’s current constitution was imposed by the military and received over 90 percent approval rating in the referendum in 1982. It created a dysfunctional government and failed to address citizens’ needs. Unilaterally pushing for reforms will most likely retain a constitution that is as dysfunctional as the old one. Consensus on a healthy social contract does not seem possible in a divided parliament that represents a highly polarized public. Perhaps it is time to think about a fresh way to achieve constitutional reform in Turkey through participation of all factions in the society.

Murat Onur is a MA candidate of Security Policy Studies at the Elliott School of International Affairs, the George Washington University, with a concentration of Development and Conflict Resolution. He previously published articles about Turkish foreign policy, Afghanistan, and Defense and Security issues. A different version of this column originally appeared in Hurriyet Daily News. He can be reached at mfo@gwu.edu.]

The photo in this article is being used under licensing by creative commons. The original source can be found here: http://farm4.static.flickr.com/3302/3654605937_1840c2a417_o.jpg.

Comments

I agree, Turkey's need for constitutional change is apparent, however an imposed set of constitutional amendments is not the way to go.

I commend you for the comprehensive overview of the issue and key points. This has been lacking in most analyses.

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