I had graduated from my schools in Paris and was working as a journalist in 1996. Despite serious opposition from the Republican People’s Party (CHP), the representative of the status quo in Turkey since its conception, it had been 6-7 years since the first privately owned TV channel was established. After that, more privately owned TV channels started to emerge and emerge fast. A French journalist who worked for the weekly French TV magazine Telerama and was to go to Istanbul to write an article on Turkish television called me. I invited the journalist to my home office. I was opening Turkish TV channels one by one and was answering the questions of the journalist during evening news. At one point, the journalist suddenly turned towards me and said “It seems there was a recent coup in Turkey. Sorry, I guess I didn’t study Turkey that well; but, now I understand it.” I replied: “What makes you think of that? There hasn’t been a military coup in Turkey for 16 years.” The journalist was surprised and said “As I have seen many men with epaulets, I couldn’t think otherwise.” Even though I had issues with military’s intervention to politics, I then realized that we were inured to this situation and the military rule was normalized. It was a degrading feeling.

After the 1960 coup, the 1961 constitution, which is deemed as the most democratic constitution of Turkey was prepared. Those who prepared the constitution were the members of a group which made the decision to hang the prime minister and two other ministers after the 1960 coup. At first sight, it seemed like a constitution which was democratic and clearly defined separation of powers; however, in reality, it was also a constitution which was made by those who supported the coup and the junta. The spirit and the body of the constitution were disparate. The National Security Council (MGK), which was to increase its power with every change in constitution until the 2000s, was established with the 1961 constitution. As the military tutelage was already dominant and functioning at that time, its significance wasn’t immediately evident.

The military was the determiner of Turkey’s policies, both domestic and foreign. Even though it was already independent, the military established the military courts with the constitution made after the 1971 coup, becoming an institution that was completely out of the system. The MGK’s authority was increased with this constitution. The military tutelage branched out and started to extend its branches in every direction with every change.

For those who have read about the said era from books, who were children during the 1980 military coup and who were in their teens in the 1990s, this was how Turkey seemed to be: On a long table, at one side the force commanders and the chief of general staff were sitting with all their majesty, while on the other side there were the president, a miserable looking prime minister and a couple of ministers. MGK meetings were frequent; they would start in the morning and journalists would camp right in front of the General Staff compound, waiting for the results of the morning while sharing information like “the curtain moved, a car came in, a car moved out.”

Most of the times, the declarations were made on evenings and the military’s new designs on civilian politics would make the news. Naturally, these visuals had only one meaning for the journalist who was from France; a country where the name of the chief of general staff isn’t known and where the army is deemed “mute” since the Dreyfus incident: a military coup! We had seen only a president who stood against this and he was Turgut Özal. Beside him, the system was functioning like clockwork; however, Turkey experienced two more military coups, as those who winded this clockwork machine wanted to do so, for some reason.

The foul-spirited but physically healthy constitution foresaw the foundation of a new institution which was the constitutional court. It was a seemingly crucial institution of modern democracy which would examine laws. As I have said, it was a seemingly democratic constitution; however, it didn’t function in the same way. The 1924 constitution that was made a year after the foundation of republic had a definition for the ideal citizen. It wasn’t easy to utter “Ne mutlu Türküm diyene” (How happy is the one who says I am a Turk). Everyone, regardless of their ethnicities had to say these words; yet, it still wasn’t easy for Turks as well, as all Turks weren’t eligible. They had to be Kemalists, secularists and originally Turkish. If their origins were any different, they had to just forget their origins.

Establishing a monolithic structure in a country which transitioned from a multilingual and multicultural empire to a nation-state wasn’t going to be easy. In fact, look at the past of those who remembered that they were Kurdish and established parties, of liberal, conservative or classical right-wing parties which had issues with the system that was based on the secular understanding of France’s 4th Republic. The constitutional court’s most important handiwork in between the coups was to close down parties which were deemed to be against the rigid tutelage system. While Turkey turned into a garbage heap of political parties, the tutelage system recycled these parties, allowing them to emerge with new names and new programs. If they went against the system once again, they would be closed.

To understand the extent of this, it’s enough to look at the numbers of right-wing parties and their leaders, along with Kurdish political parties. However, this wasn’t the only duty of the constitutional court. For instance, whenever the ruling party made a law on anything, ranging from agriculture to privatization, the status quo party CHP’s former leader Deniz Baykal would appeal to the constitutional court to abolish the law. Therefore, the main opposition party was an actor of a system which was deadlocked by the constitutional court. Applications of the party that did politics under the shadow of the military, that supported and was supported by the military was accepted for decades.

According to the 1982 constitution, the decisions made by the MGK had to be prioritized by the government. As almost all presidents were of military background since the 1961 constitution, the presidency was deemed a safe position by the tutelage. Süleyman Demirel, who just couldn’t win against the military despite all his efforts, said “We knew that they [the military] would propose a general for presidency. We thought that we should choose a candidate with a military background instead.” He tried to be compatible with the system, as the opposite was impossible; indeed, when the most renowned constitutional lawyer of Turkey Ali Fuat Başgil became a presidential candidate, the henchmen of the tutelage had put a gun to his head, dissuading him.

The 1981 constitution had also topped the ceremonial parliamentary system of Turkey with a president which had unlimited power and gave the post a new duty: to determine the agenda of the MGK. This meant that the president of the tutelage system would determine the agenda and the elected government would have to implement the president’s decision.

On February 28 1997, during the coup which was deemed as post-modern by its perpetrator, Süleyman Demirel, one of the most important figures of the political right who had suffered because of the system, did what the military asked and preserved his presidential seat. The following president was a classical Kemalist and CHP supporter who sincerely believed in the system and used the authorities provided by the 1982 constitution to the fullest extent. He was not of a military background, but he was the previous head of the constitutional court. This system, this ceremonial parliamentary system functioned well in Turkey. However, there was a crisis when the Justice and Development Party (AK Party), which had become the government by itself through having the majority of the seats in the parliament, tried to elect the president.

Despite facing closure, attempts of junta intervention, the AK Party was able to stand tall because of strong public support. At the same time, the AK Party had initiated negotiations with the EU and passed many democratic laws from the parliament to fulfill the Copenhagen criteria. However, the Turkish democracy was wounded once again in those days. The tutelage system made it clear that all hell would break loose if Recep Tayyip Erdoğan became the presidential candidate. One of those who announced this threat was the main opposition party CHP’s then leader Deniz Baykal.

Erdoğan renounced his candidacy and made Abdullah Gül the presidential candidate in his stead. As Gül’s wife also wore a headscarf, he couldn’t be the candidate too! In fact, they have expressed that they would raise hell; however, the AK Party resisted and showed Gül as their candidate. The CHP alleged the election was unconstitutional and appealed to the constitutional court. The constitutional court knew what they had to do; the military had published a memorandum which detailed what kind of a president had to be elected!

With a scandalous reason for its decision, the constitutional court declared that the elections were invalid. There was a crisis. The AK Party sought to resolve this crisis and found a solution. The proposal foreseeing the election of the president by popular vote was brought to referendum and the people voted in favor of it. You know the rest; Gül was elected first and after his term Erdoğan was elected on the first round of elections by acquiring 51.8% of the votes.

On April 16, the constitutional reform which foresees a change in Turkey’s system of government is going to be voted on. If the people approve it, the ceremonial parliamentary system will be replaced with a type of presidential system. If you’re wondering whether the main opposition party which is the guardian of the old system is offering any alternative, they are not; they’re only saying that Turkey must be governed with a parliamentary system. The question is was there even a parliamentary system in Turkey to begin with?

Is Turkey completely free of issues regarding democracy? No, not completely. Yet, people have become experienced in such matters and they don’t believe that these issues will ever be resolved by the representatives of the status quo. Regardless of the result, everyone is sure that the crises of the imposed system will eventually be resolved by Erdoğan; not by the main opposition party.

The 1982 Constitution and the Limits of Politics 

As the determinants of the legal norms forming a state a constitution provide the main references to regulate state agencies and draw a general frame for the fundamental rights and duties of all. This aspect of a constitution defines its legal character. Thus the entire legal structure of a state is basically defined by its constitution, written or unwritten, which theoretically laid down the superior ground norm for its functioning. Moreover, a constitution, as a part of its technical function, transfers the values, that would dominate the political organization of the state, to a normative platform. At this point a constitution outstrips its legal nature and gains an extrajudicial identity.

These being the basic functions of a constitution, the Turkish Constitution of 1982 brought forth, since it came into force, a rather precarious situation for the Turkish legal and political systems. For this reason, the 1982 Constitution could be named as an “anti-constitution” for its objective is ‘to guard’ the state against society. The result, as far as more than thirty years of experience has shown, is that this constitution makes a preference for the side of the state in the individual-state balance when applied by a narrow literal approach. This constitution makes the individuals’ rights and freedoms vulnerable against the state authority by the means of sacralisation. Its preamble and unchangeable provisions attest to the uncompromising nature of the 1982 Constitution.

As a product of the coup d’état which took place in September 1980, the 1982 Constitution served, in line with the mind-set of the interventionist high-ranking officers, to ensure military tutelage over the political and the public spheres. The authorized bodies of judiciary, executive and legislation were regulated in accordance with the framework drawn by the founding ideology. Furthermore, steps were also taken to inhibit the actors who would use these bodies in future to overstep the “red lines” which had been determined during the constitution making- process. The very natural consequence of this situation was to prevent possible leakages of opposition which are realizable through democratic elections.

http://thenewturkey.org/turkey-erdogan-and-the-wisdom-of-the-presidential-system/

The Institutional Structure of the Bureaucratic Tutelage

The 1982 constitution carries an ideological view of social life and determines its borders. Secularism and nationalism laid down the main components of this view. The unchangeable first three provisions provide the textual basis of this mechanism. The constitution highlighted two main factors in the bureaucratic tutelage system, one being the judiciary while the second is the president office. Both of these institutions enjoy broad authorities but they are mainly politically unaccountable.

The judiciary ensured the politics to become judicialized by the means of transforming “independence of judiciary” into a myth. This way, not only the power domain of political authority was restricted but also those political parties which were considered dangerous have been closed down and pushed out of the system by the Constitutional Court.

It is a fact that the negative scene in question has lost ground by the democratization attempts of the Justice and Development Party (AK Party) within the scope of harmonization process to EU. These resulted in strengthening the civil politics.

The presidency could be considered as the other institution undertaking the carrier role of tutelage of the 1982 constitution. This continued to be the case until the constitutional amendment made in 2007. The mission attributed to this institution could be seen clearly by considering the constitutional powers and duties given to the president. The president, who has been elected by the parliament until 2007, exercised executive powers other than being only a figurehead as it is in the parliamentary regimes and was subject to slightest pressure to accountability. Thus, the president office turned out to become a vital instrument of tutelage. There are two dimensions of the constitutional nature of this office. First is the rather familiar and proclaimed role of the President of the Republic and the second is its capacity to strengthen the bureaucratic tutelage mechanisms. Moreover, the interventions made on the presidentially determined political domain of the Constitutional Court by both the president and the court members could be indicated as the clear evidence to this situation.

Obviously, the military and bureaucratic tutelage functioned with the contributions of the actors apart from two institutions. For example, the National Security Council (Milli Güvenlik Konseyi-MGK) which remained under the control of the military until 2000s or the High Council of Judges and Prosecutors (Hakim ve Savcılar Yüksek Kurulu-HSYK) as being the protectors of a specific ideology in judiciary were the effective institutions of this order.

It is a fact that the negative scene in question has lost ground by the democratization attempts of the Justice and Development Party (AK Party) within the scope of harmonization process to EU. These resulted in strengthening the civil politics. Two vital steps were taken to downgrade the tutelage by the constitutional amendments made in 2007 and 2010. By these amendments, presidency and judiciary, as the two vital institutions of tutelage, have become more accountable from a democratic viewpoint.

According a major amendment made in 2007, the president was to be elected by a popular election, which was practiced for the first time in 2013. Also, in 2010 the Constitutional Court and the High Council of Judges and Prosecutors were restructured to obtain a more democratic judiciary. Nonetheless these amendments remark to an unfinished ideal. The failures of the current state system and the revision of the position of bureaucracy toward democratic institutions still call for further steps.

The empowerment of the politics against bureaucracy has not been implemented only in constitutional dimension. Several steps have been taken in order to overcome centrist state administration by essential regulations and to strengthen the local administrations. Thus, efforts were made to create a transparent, politically elected and accountable administration mentality.

New Constitution and Legitimacy Gap of Politics

Recent public surveys show that approximately 70% of public demands a new constitution. The incapability of the Turkish Parliament to secure a new constitution bears the potential of undermining its credibility in the eyes of the populace.

The constitutional reconciliation commission which following the November 2015 elections resumed its activities offers an historic opportunity for drafting a new constitution. The political parties in the parliament need to take advantage of the connective and participatory power of the commission in order to increase the credibility of politics in the eyes of public and keep their promise for “new constitution”. However, that CHP has left the commission lately has a risk to miss this opportunity.

The constitution of 1982, which has been amended quite a few times since the day it was put into operation, failed not only to meet the popular demands but also to come up with a coherent and stable political mechanism. The gap left by legal politics has in time been filled by a bureaucratic tutelage which further complicated the functioning of Turkish politics. Despite many democratic steps taken by various AK Party governments the rationalization of Turkish politics and furthering the powers of legal political actors cannot be duly secured without a new constitution. On the other hand it should not be forgotten that the success of the new constitution making process is not only a structural imperative but it is also strongly demanded by the public. For this reason, elimination of the “presidentialism-centered” approach toward the new constitution issue of Turkey would provide a sound basis for the discussions.