Turkey’s constitutional process

Bertil Emrah Oder

After the refusal of the Justice and Development Party’s (AKP) proposal by the main opposition Republican People’s Party (CHP), the constitutional plan as to the 60 agreed articles seems to have been put aside from further political consideration. The failed plan was based on the partial parliamentary adoption of a constitutional package, on which the four parties in the Constitutional Conciliation Committee have reached consensus, by joint action and the collaboration of two major forces, the AKP and the CHP. This attempt applied empirically as a conflict resolution method against deadlocks of constitutional negotiation processes is called the “sufficient consensus” choice. Even though it did not work in the Turkish context, its failure makes it necessary to reflect some interim findings as to the ongoing constitutional process.

First, the issues deriving from the structure and working methods of the Constitutional Conciliation Committee are to be recalled for a critical assessment of the current stage. The main reason that led to AKP’s failed proposal seems to defer to limited realization of a constitutional agreement, absence of a consensus flow and consequently deadlock in constitutional negotiations. This is in fact partly the result of a highly flexible and purely parliamentary elite-oriented design of the Committee, which includes only political parties represented in Parliament as main decision makers for a big constitutional project. The lack of a memorandum predetermining the basic principles agreed on, ignoring proper establishment of concurrent and thematic committees with structured road maps and regular meetings, and the absence of mechanisms as regards deadlocks or failure of trust building transparency putting constitutional matters to public agenda are factors that make the Committee utterly fragile. It is inevitable that such an insufficient structure based on the good faith of actors with demanding claim of a total revision or a wide range of amendments fails in a fragmented political climate. The insufficient structure of constitutional committees is an impediment as to the realization of effective drafting since this makes them open to the perils of daily political issues and the denial of the long-term value of a constitution. The ongoing constitutional practice of the Committee seems to ignore the significance of process-oriented constitutionalism, taking the process itself and its structured approach seriously. 

Second, from a substantive perspective, the 60 articles consensus signals that the political process of constitutional design could be achieved only progressively. Since the content of those 60 articles is not publicly announced, it is not possible, at the moment, to comment on their quality from perspective of international human rights benchmarks and comparative best practices as to constitutional norm designs. However, limited consensus proves there are major differences as to constitutional preferences of political actors which make to reach the shared meaning of policies and design contingency impossible. As regards critical constitutional norms, referring to such issues as secularism or the definition of citizenship, they do not seem to have any common denominators; instead they reflect diametrically opposed attitudes and policy preferences in their press releases. Their criticism as to constitutional norms and their claim of a new beginning or major changes do not seem reconcilable.
 
The grandiose objectives of the majority of the Turkish political elite as to solve all political, social and economic problems through the constitution, using the constitution as a tool of daily politics, disguising the political unwillingness and chimerical pursuit of a perfect constitution as a book of magic, are overwhelming features of Turkey’s expectation for the constitution. This type of unrealistic attitude towards constitutional norms hinders the real problems as to politics and the discussion of genuine meaning of a constitution and its application through talented politicians and judiciary. There is no reasonable explanation that the highly significant achievements provided by the 2001 and 2004 amendments as to the realization of fundamental rights’ protection, especially as regards fair trial, freedom of expression, gender equality and the application of the European Court of Human Rights’ decisions are not implemented. Furthermore, the sensitivity of daily politics as to constitutional supremacy and constitutional bargaining is pretty low and this impedes trust building, since party elites negatively affect the quality of negotiation through their intentional or unintentional declarations for their short-term gains and political agenda. This combines with the fact that Turkey’s dominant political culture regards only formalistic understandings of the constitution. The understanding and patterns that put forward the very essence of constitutionalism as limited government are restraints and are not consolidated in further steps. Considering the constitution as a statutory document that could be perpetually remade according to will of the dominant political elite, without adhering to any substantive values of checks and balances, as well as international human rights standards, still refers to the weakness of a dedicated constitutionalism in Turkey. 

*Bertil Emrah Oder is a full professor of constitutional law and dean of Koç University Law School. The observations of the author are based on her speech in the Turan Güneş Annual Conference on Constitutional Law held on Oct. 31 2013.