Levent Köker
Introductory Remarks
“Turkey
needs a new constitution.” After a series of crisis-ridden events over the last
decade, almost every political organization with substantial support bases in
Turkish society have come to agree on this. When the question “what kind of a
new constitution Turkey needs” comes up, however, it is quite evident that
there are disagreements over the issues ranging from the organization of state
institutions to the definition of (nation-) state identity, thus whether there
should be unamendable articles and from there up to the meaning of the
constitution as “the highest law” limiting the powers of government. Despite
the fact that a process initiated by the Speaker of the Turkish Grand National
Assembly (TGNA) is already under way and a “Preparation Committee” in which all
the major political parties with a “group” in TGNA are represented on an equal
footing has been set, differences mentioned above have not yet come to the
fore. Any close observer of contemporary Turkish politics, on the other hand,
is aware of the fact that there are many and sometimes cross-cutting fault
lines in Turkish society on some problem areas most important of which include
“the Kurdish question”, the maladies of Turkish secularism and an extremely
centralised public administration system.
What
follows is an attempt at constructing an approach to Turkey’s constitutional
problems and in doing so I hope to clarify some of the basic reasons for the
need for a new and democratic constitution in Turkey. In doing so, it is my
intention also to situate the current debates on the issues mentioned in
context, i.e. the context of a global trend in which theorists of
constitutional law and politics seem to be justified in arguing that a
transition from “old” to “new” constitutionalism is taking place.
This article has three parts, each relating to one function of constitution, namely the organization of state institutions, definition of nation-state identity and the meaning of constitution as the highest law.
Organization of State Institutions
Turkey
needs a new constitution because the present 1982 Constitution has so many
flaws and internal contradictions that impede furthering democratic governance,
if not making it impossible altogether.
Tailored
according to the “logic” of a military dictatorship in the 1980s, current
constitution has a parliamentary system with a strong presidency. The logic
behind this rather odd arrangement has been an idea that regards the presidency
as an office of “guardianship”. The powers of the president pertaining to the
legislative, the executive and the judiciary have been so designed to secure
“the harmonious working of state institutions”, which, in the end, means that
the president would oversee the practices of politicians to protect the
interests of the state.
Apart from
an inadequately strong presidency, the 1982 Constitution establishes an
extremely centralized public administration system which puts local administration
under the tutelary control of the center in line with the overarching principle
of the unity of the Turkish state.
All these
provisions making up the set of institutional arrangements in the Turkish
Constitution should be seen as crystallizations of Turkey’s constitutional
history. By way of summary, what I wish to suggest in this respect is as
follows: (1) Turkey’s first constitution (especially after some substantial
amendments in 1909) marked a transition from a patrimonial monarchy (with all
its Ottoman specificities) to a bureaucracy-dominated state. (2) Proclamation
of the Republic in 1923 and the following 1924 Constitution determined a
contradictory symbiosis of a relatively liberal “constitutional law” on the one
hand and the “law of the Kemalist revolution” on the other. This second phase
of Turkish constitutional history can be evaluated as a process of nation-state
building by the military dominated bureaucracy. (3) Alarmed by what they deemed
as a serious threat to the very foundations of the new Republic, the
military-dominated bureaucracy halted Turkey’s first serious experiment with
multi-party competitive politics with a coup d’état. The 1961 Constitution
ensuing from this process has been an interesting amalgam of a system of “state
of law” recognizing fundamental rights and liberties as an important part of
the Constitution as the “highest law” together with another set of
institutional arrangements like “the Senate” (with prominent members of the
coup as natural lifetime members), formation of a National Security
Council and high courts including
the inception of a Constitutional Court which, in the eloquent phrase of Mümtaz
Soysal, pointed out to the underlying theme of the constitution as “the fear of
majority”. (4) In line with the statist ideology of a military-dominated
bureaucratic elite which have already curbed the freedoms recognized by the
1961 Constitution after a military intervention in March 1971, the 1982
Constitution has put an end to the internal tension between a relatively
democratic “state of law” (Rechtssaat)
and an authoritarian nation-state and endorsed a system of guardianship of
military and civilian (i.e. most notably judicial) bureaucracy.
Definition of National Identity: Dilemmas of
Ethnicity and Religion
The
foregoing, I hope, has been helpful at least to some extent that the present
need for a new and democratic constitution grows out of Turkey’s experiment in
constitutional government which has been in fact a “disguised authoritarianism”
(I owe the term to Richard Falk).
Amendments
to the 1982 constitution, most important of which include the removal of a
paragraph from the Preamble that justified the military coup (1995), the
abolition of almost all stipulations prohibiting to establish organizational
ties between NGO’s (or “civil society”) and political parties (1995), the
omission of some of the unacceptable restrictions on fundamental rights and
liberties (2001), and most importantly perhaps the amendment to Article 90
which provides supremacy to international human rights treaties vis-a-vis
statutory law (2004). More recently, amendments have been made to increase the
civilian control in the political process and to increase the democratic
legitimacy of the judiciary (in this last issue, my personal view is that the
2010 amendments have been inadequate).
Be as it
may, however, the fundamental logic and some core institutional mechanisms of a
bureaucracy dominated nation-state establishment remains untouched at the very
heart of the Constitution.
Let me
begin with the Preamble: Betraying the classical notion of constitutionalism
that sets up inviolable principles of human rights and liberties as “highest
law” (see, for instance the unamendable Art. #1 of the German Constitution),
the 1982 Constitution defines itself in the following manner: “In line with the concept of nationalism
and the principles and reforms by the founder of the Republic of Turkey,
Atatürk, the immortal leader and immortal hero, this Constitution determines the eternal existence of the Turkish
Nation and the unity of the (Sublime) Turkish State” (my italics
–interestingly the adjective Sublime is omitted in the English translation).
The
self-definition of the Constitution as “nationalist” is reinforced further by
Art. # 2 which stipulates that “The Republic of Turkey is a democratic, secular
and social state governed by the rule of law; bearing in mind the concepts of
public peace, national solidarity and justice; respecting human rights; loyal
to the nationalism of Atatürk, and based on the fundamental tenets set forth in
the Preamble.” (This official English translation is different from the
original where the first part of the paragraph comes last, meaning as if the
democratic, secular and social “state of law” is circumscribed by the other
notions.)
More
importantly perhaps for our understanding of the fundamental reasons why Turkey
needs a new constitution is the very fact that the “nationalist Constitution”
endorses a definition of national identity, most significant pillars of which
have been formed by “Turkishness” and “laicism”.
Turkishness as Ethnicity
For many
students of Turkish constitutional law supportive of the existing order of
things, the definition of Turkish national identity in Art. # 66 is “purely
legal”, defining citizenship as a legal bond devoid of any ethnic references
between the individual and the state. This argument is unconvincing, however,
at least on two important grounds: First there is a linguistic (hence logical)
inconsistency within the Constitution. Art. # 1 and Art # 3 use the term
“Türkiye devleti” (“Turkish state” in English translation, which is literally
“the state in Turkey”) whereas Article # 66 begins with “Türk Devleti” (which
becomes “Turkish state” in English
translation again). In Turkish language “Türkiye” like Turkey in English refers
to the territory, whereas “Turk” has strong ethnic connotations, to say the
least. A distinction already existing in English language between Turkish
-dictionary meaning of which reads “of or pertaining to Turkey or in its
inhabitants” and Turk as a term defining ethnic identity does not exist in
Turkish language. So a distinction in Turkish language between the territory
(Türkiye) and ethnicity (Türk) is extremely significant, and it is a defect of
the 1961 and 1982 Constitutions to define national identity as “Turk”.
This has
been a matter of debate during the parliamentary deliberations on the 1924
Constitution. In the 1924 Constitution, the definition of nationality (Art. #
88) was as follows: “the inhabitants of Turkey, without any linguistic and
racial discrimination and as regards nationality, are deemed as Turk”. The
phrase “as regards nationality” (“vatandaşlık bakımından”) has been added into
the original proposal and the reason for this has been uttered in a very
explicit manner that “non-Muslims are not Turks, they can be deemed as Turks
only as a definition of nationality, i.e. a term used only for their legal ties
with the Turkish state.
This, in
fact, is the culmination of a process of perceiving national identity on
religious grounds. Perhaps a legacy of the Ottoman notion of “millet” (a
Turkish term of Arabic origin for “nation” in modern usage meant a religious
community in the Ottoman context), the idea of national identity as inextricable
from religion (i.e. Islam) determined not only the whole process of “national
struggle” between 1918-1923 but also the terminology of the Treaty of Lausanne
(1923) signed a few months before the proclamation of the Republic. According
to Lausanne Treaty (Part III), only non-Muslims in Turkey are “minorities” to
be protected, and I think this very clearly reflects the core element in
defining national identity was Islam comprising different ethnicities (in
Atatürk’s own words in the early 1920’s) like Turks, Kurds, Laz, Circassians,
etc. A subsequent alteration of this definition of national identity to
“Turkishness” in the 1924 Constitution brought with it certain institutions and
policies: An important set of state policies aimed at “Turkification of the
population of Turkey”, which meant forceful assimilation of Kurds, the largest
non-Turkic ethnic group in Anatolia.
Art. # 42
of the 1982 Constitution reads: “No language other than Turkish shall be taught
as a mother tongue to Turkish citizens at any institutions of training or
education.” Another logical consequence of this phrase is that only Turkish can
be taught as a “mother tongue”. This is also confirmed by the name of a law
passed by the TGNA in 2005 which reads “Instruction of Foreign Language and
Teaching Turkish Nationals their Different Languages and Dialects”.
No need to
go any further, I think. History, the original form and content of the 1982
Constitution and statutes passed as part of a legal reform package all confirm
that the current legal definition of nationality is a definition with strong
ethnic references.
The Problem with Laicism
The most
significant institutional set up, on the other hand, was the abolishment of the
office of Şeyhülislam and establish
in its stead the Directorate of Religious Affairs (Diyanet) responsible to control and administer issues pertaining to
faith (itikâdat), worship (ibadat) and morality (ahlâk) of Muslims. This institution is
given Constitutional status in 1961 and the 1982 Constitution went even further
and defined the fundamental aim of the Directorate as maintaining “national
solidarity and integrity”. This constitutional status of the Directorate
reinforced further by Art. #24 which stipulates compulsory courses of religious
culture and ethics which, in practice, turned to be instruction of “Sunni
Islam” as defined by the Directorate. I have to add that this constitutional
status of the Directorate is protected by the Art. #89 of Political Parties Act
that prohibits all political parties to aim at not only abolishing but even
altering of this status.
This is
obviously an institution of state control over religion in a predominantly
Muslim society. Referring to the institutional set up of state control over
religion as “laicism” is approved also by the constitutional jurisprudence in
Turkey. According to the established decisions of the Turkish Constitutional
Court (TCC), Islam is a religious belief system which is fundamentally
different from Christianity in the way it treats the “difference between the
sacred and the profane”. Unlike Christianity which allows for a separation of
religious and non-religious spheres, Islam is a monolithic system that
regulates also this worldly matters. Unlike Christian societies of the West who
have undergone processes of change through Renaissance, Reform and the
Enlightenment, Islamic societies do not have such experience. Thus, for the TCC
and other high courts in Turkey, religion must be put under state control to
protect the laicist foundations of the Republic, an idea which is internally
connected to the Republican conception of national identity.
Constitutional Contradictions and Concluding
Remarks
Turkey has
been a member of the Council of Europe (COE) since its inception in 1949 and
has ratified the European Convention on Human Rights (ECHR), accepted
individual appeal and the jurisdiction of the European Court of Human Rights
(EctHR).
According
to the Constitution (Art. #90) all international agreements put duly in effect
have the force of law and their unconstutitionality cannot be claimed. This
original clause implies at least that all international agreements have a
normative status above the statutes and below the constitution. When it comes
to the normative status of international human rights agreements, among which
the “twin UN conventions” on Civil and Political Liberties and Social, Economic
and Cultural Rights and ECHR have an important stance, this supra-statutory
status becomes even more explicit.
This is a
major source of inconsistency for the current Turkish Constitution because, as
the foregoing has tried to portray, Turkish idea of establishing a nation-state
under bureaucratic guardianship and its various ramifications not only in the
Constitution, but also in statutory law is incompatible with many of the human
rights treaties that have a legally binding force on Turkey.
This
inconsistency between accepting human rights agreements as “higher –or maybe the
highest” law on the one hand and preserving the ideal of establishing a
authoritarian nation-state on the other might have been overcome by a freedom
oriented jurisprudential attitude which might have easily justified by a
Kelsenian conception law.
The case in
Turkey’s jurisprudential development, however, has favored not Kelsen, but –and
perhaps- unknowingly Carl Schmitt, i.e. his idea that subjects law to an
extra-legal “political decision” on “us and them”, “friends and foes” or “the
nation (state) and its enemies”.
This is one
of the basic reasons behind the EctHR rulings on the most Turkish high court
decisions (not only the decisions of TCC, but also most decisions of the Court
of Cassation, for instance) as violations of ECHR. Without going into the
details of individual cases, suffice it to mention here that nearly 90 percent
of the cases brought to the EctHR have been decided as human rights violations.
In some of these cases EctHR decisions have been partly based on European
Commission against Racism and Intolerance reports on Turkey, especially in
cases regarding the compulsory religious courses or cases resulting from
Turkish constitutional emphases on “the indivisible integrity of the state
together with its territory and nation”.
Let me
conclude by a reference to Seyla Benhabib, who argued insightfully in “Turkey”s
Constitutional Zigzags”*** (“zigzags”
that result from the inconsistencies in the constitution especially after a
series of amendments during the last two decades) that the process of
“iterations” may lead to a “iurisgeneric” practice, a term by which I understand
a process of creating law that confirms to the contemporary standards of human
rights and democratic governance. In view of the poor record of Turkish
jurisprudence, however, I think the existing inconsistencies in the Turkish
constitutions have paved the way for “jurispathic” outcomes. It is of vital
importance, therefore, to eradicate the existing inconsistencies in the Turkish
constitution that cause jurispathic decisions and the best way to do this,
especially under the current circumstances, is to replace the 1982 Constitution
with a totally new one which not only provides a legal-normative framework for
“iurisgeneric” practice, but also adopts the standards of “new
constitutionalism” which not only provides restirictions on government power
but also entrenches “informed democratic control” of government through
procedures of undistorted and unhindered public deliberation. This requires
Turkey to change its fundamental political decision (in the Schmittian sense)
that determined its constitutional history during the Republic and
institutionalize instead constitutional and legal mechanisms for politics to
arrive at legitimate and collectively binding decisions.
* This article is based on a presentation made in LSE Contemporary
Turkish Studies Conference on “Turkey’s New Constitution”, 17 November 2011. I
would like to express my thanks to Professor Şevket Pamuk, Chair in
Contemporary Turkish Studies, LSE and Barrister Can Yeginsu both for their
invitation and warm hospitality.
** Professor
of Public Law and Politics, Atılım University Law School, Ankara.
dissentmagazine.org/article/?article=1321
(Accessed 10/11/2011).
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