10 Aralık 2013 Salı

Why Turkey Needs a New and Democratic Constitution




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.
*** Seyla Benhabib, “Turkey’s Constitutional Zigzags,” Dissent (Winter 2009), http://www.
dissentmagazine.org/article/?article=1321 (Accessed 10/11/2011).

Hiç yorum yok:

Yorum Gönder