Monday, February 15, 2010

Squaring Off on Constitutional Amendments, Part II

In a luncheon meeting with Prime Minister Erdogan on Wednesday, Hurriyet Daily News' Fulya Ozerkan reported that EU ambassadors were planning to make it clear to the leader of Turkey's parliament that a new constitution is needed in order for Turkey to accede. The AKP is currently considering amending 22 articles of the existing military constitution, which was largely forced on the Turkish public in the violent years following the September 12, 1980 coup.

An anonymous diplomat told Hurriyet, "Even if Turkey solves all its problems, it still needs a new constitution. Turkey cannot become an EU member with its current Constitution." While overhauling the constitution is no easy task, the AKP seems to be taking a more piecemeal approach. However, while it is still unclear what the 22 amendments the AKP will propose, some have suggested the AKP is planning a larger overhaul. In either case, the AKP has introduced legisltion that would reduce the waiting time needed to hold a referendum on constitutional amendments from 120 days to 45 days, which is necessary since any amendment to the constitution is likely to be challenged at the Constitutional Court. If the amendment is approved in a popular referendum before the Constitutional Court has the chance to reject it as violating the first four articles of the Constitution, it will be much more difficult for the Court to act.

A Little Background

The AKP has two options for making amendments: to pass legislation with the 2/3 vote of the parliament, which means getting 367 deputies when the AKP has only 338 seats; or, to go to referendum, which requires 330 votes and a simple majority of Turkish voters. The Kurdish-oriented Peace and Democracy Party (BDP) has 20 seats and is likely to support amendments, as well as some members of the Democratic Left Party (DSP). However, even with these parties' support, the AKP will need to seek votes in the MHP or, an even greater ong shot, the CHP, to pass anything. Given the recalcitrance of the MHP and the CHP, a referendum seems the only shot. And, so here is the question: can opposition parties challenge the constitutional amendments by filing to have them annulled at the Constitutional Court should they be approved in referendum? Legal scholars disagree, and should opposition parties get the 110 MPs needed to petition the Constitutional Court to annul the amendment, there will be a legal showdown of epic proportions.

Since CHP has proved completely recalcitrant to any amendment of the constitution whatsoever, such a showdown seems likely unless the AKP passes a constitutional package that is able to win the support of the MHP, allowing it to take the first option and eschew a referendum altogether. However, plenty of reformers and long-time advocates for a new constitution think the AKP should adopt an "all-or-nothing" approach, and the EU seems to agree. The AKP has twice now made plans for a re-write of the constitution, and twice now has not followed through. President Gul has voiced his opinion that the government missed a historic chance in 2007 and early 2008, and those who have just the slightest bit of optimism left in tact hope that Turkey will again put a new constitution and see it through.

To this end, SETA-DC recently organized an event in which constitutional expert Saadet Yuksel, Istanbul University, discussed the design, adoption, and successful implementation of a new constitution. Yuksel argues that past attempts have been flawed, failing to get much input from civil society groups or seek consensus in Turkish society at large. Her entire speech can be accessed through the link above.

Echoing frustration from Europe, Gianni Buquicchio, the new president of the Venice Commission of the Council of Europe, gave an interview with Today's Zaman consistent with the views of the European Union ambassadors who met Erdogan this week. Buquicchio expressed his dismay that Turkey had not moved forward with a new constitution, and urged Turkish leaders to apply to the advisory institution for advice on what a new constitution may look like. Additionally, the Turkish president-elect of the Parliamentary Assembly of the Council of Europe (PACE) has also called for a new constitution. Of course, Turkey seeking out a cooperative relationship on constitution making would lend power to nationalists bent on maintaining the status quo, but when these parties are opposed to even the smallest of progressive changes, why not seek out expert advice, design a solid document, seek broad input and consensus throughout Turkish society, and finally bring a new legal basis to the security of Turkish democracy to facilitate its consolidation? It is no easy process, but whoever said democracy is easy.

UPDATE I (2/15) -- In regard to the Venice Commission, I thought it approproate post the Commission's 2009 opinion on the Political Parties Law, which it found to be incompatible with the European Convention on Human Rights.


Bulent Murtezaoglu said...

Once again alongside the actual content of the amendments what's interesting is the process. I don't think it is unfair to say the 1982 constitution was 'forced' on the people though the 90+% approval in the referendum can be taken to mean how such things acquire a superficial 'democratic' appearance. By the same token, then, the rushed referendum schedule, the bizarrely secret content of the amendment package, the "all or nothing" approach being advocated should all tell us something about how prone (domestic and foreign) civilians are to advocating the same kind of trickery. I don't think anybody is being honest here. I wouldn't expect politicians to be honest in sense I have in mind, but the [visible] intellectual classes are failing the society they purport serve by taking their part in this game. The excuse in 1982 was that people couldn't really speak up. What's the excuse now?

emre said...

They don't know constitutional law.