Turkish politics has flared up after the Justice and Development Party (AK Party) and the Nationalist Movement Party (MHP) have jointly proposed a constitutional reform bill. The reform bill seeks to move Turkey’s government system towards presidentialism. It introduces a severe system of checks and balances, or separation of powers by splitting the elections and operation of the executive and the legislative. The rationale behind this political move, as in many occasions allegedly voiced by the AK Party, is to avoid coalition governments and promote democratic politics as opposed to a bureaucracy. The AK Party asserts that coalition governments carry the danger of political instability and jeopardize democratic politics by opening up room for extra-political forces such as the bureaucracy.

Turkey’s main opposition party, the Republican People’s Party (CHP), takes the lead against the reform bill. The CHP focuses on the end results of the system change and criticizes the amendment by arguing that it will turn Turkish politics into an authoritarian regime. Its main thesis is that it is likely to abolish the parliament and put an end to the republican regime. Yet, a closer look at the content of the reform bill reveals that the parliament will be intact. Nevertheless, it will lose its centrality after the center of gravity in the government system slides towards the executive. So this change does not pose a transgression on the republican order; on the contrary, it may reinforce the republican regime by boosting equality among citizens and giving a central role to the society in politics.

A closer look at the content of the reform bill reveals that the parliament will be intact.

Turkey’s Odyssey to the “Total” State

The Turkish state’s transformation from being a neutral state to a total state took place in a gradual manner. In the long nineteenth century (1808-1923), the monarchy was enervated by the bureaucracy and finally left its place to the republic in 1923. Although Turkey was established as a republic, at least in theory, it was an oligarchy in practice. So the state remained a neutral state for a long time. The bureaucratic oligarchy in Turkey might be divided into two periods. The one-party regime until 1950 and a multi-party parliamentary regime under the bureaucratic tutelage from the 1950s to the 2000s.

The general elections in 1950 were the first open and free elections of the republic. After the elections, the state opened up its doors to the society by allowing a multi-party parliament. The parliament, which used to be populated by merely the CHP, started to host the Democrat Party (DP). The DP attracted the support of the voters in the periphery and held the parliamentary majority with its successive electoral victories until the 1960 military coup.

http://thenewturkey.org/parties-politicians-and-dispositions-towards-the-july-15-coup-attempt/

The 1961 Constitution drafted after the coup redesigned the state-society relationship. It created a parliamentary system under the supervision of the bureaucratic elites. The parliamentary system under the tutelage of the bureaucracy limited the intrusions of society into the state. This was facilitated mainly by dividing the parliament into two chambers. The upper house was populated by the appointed members of the bureaucracy and served to control the lower house which hosted the representatives of the people. This was endorsed by installing more bureaucratic institutions to contain the political sphere.

The 1982 Constitution, on the other hand, redesigned the state-society relationship in a new format. It was drafted after the 1980 military coup, which came after the Kemalist state lost control of the society and that led to bloody clashes between the far-right and the far-left societal groups in the streets. The 1982 Constitution, therefore, gave emphasis to the executive branch in order to strengthen the state vis-à-vis the society. It divided executive power between the president and the cabinet of ministers. The president’s main role was to keep the cabinet and the parliament in line with the state.

After 2002, the AK Party started to dismantle the bureaucratic tutelage. The 2007 constitutional reforms introduced direct election of the president by the people. It thus transformed the presidential office from being the gate keeper of the bureaucracy to being the representative of the society. The president used to be elected by the parliament with the bureaucracy’s tacit permission. This was followed by the 2010 constitutional reforms that further curbed the bureaucratic tutelage by reforming the judiciary, especially limiting the powers of the military courts. The current reform bill seeks to continue this process of democratization by opening up the state to societal forces by moving the regime towards presidentialism.

The Crisis of the “New CHP”

The post-2002 period figures as the acceleration of Turkey’s evolution into a total state. This fundamental transformation in state-society relations has urged political parties to reconsider their political positions and discourses. The most radical change has taken place with the CHP.

Despite the fact that it has never won an open election to form a single-party government, the CHP’s secular-nationalist Kemalist ideology has always been in power. Hence, the CHP has always sided with the state in critical times against the society. It single-handedly ruled the state under a one-party regime during the period of 1923-1950. After 1950, it acted to protect the state from the intrusion of societal forces based in the periphery. Thus, it has strived to contain the parliament and placate democratic politics in order to maintain the “Kemalist” state.

The CHP’s struggle to protect the Kemalist state was carried out on the basis of its secular-nationalist ideology until around 2010.

The CHP’s struggle to protect the Kemalist state was carried out on the basis of its secular-nationalist ideology until around 2010. In 2010, the CHP not only changed its secretary general, Kemal Kılıçdaroğlu replaced Deniz Baykal, but also it started to shape its politics around liberal-democratic ideology. With the liberal turn, the so-called New CHP has moved its politics from the protection of the state to the limitation of the state. More specifically, the CHP started to utilize liberal-democratic discourse in order to interrupt Turkey’s evolution to be a total state.

It has sought to form a political bloc with the anti-AK Party societal elements. The sole success of this liberal-democratic politics might be cited as the general elections held on 7 June 2015. For the first time the AK Party could not gain a parliamentary majority to form a single-party government. However, the other three political parties in the parliament also failed to carve out a coalition government. This led to a replaying of elections on 1 November 2015. The elections resulted in a landslide victory for the AK Party. This was the starting point of the crisis of the New CHP.

With the liberal turn, the so-called New CHP has moved its politics from the protection of the state to the limitation of the state.

However, this was followed by the gradual increase of terrorist attacks on Turkish soil. The PKK, the FETO, and Daesh have targeted the country. The most important breaking point was the failed coup attempt perpetrated by the Gülen terror group on 15 June 2016. After 15 June, Turkish society united against terrorism, which was dubbed as “Yenikapı Ruhu,” or the Spirit of Yenikapi, referring to a historic rally against the coup. Yet, this climate of societal unity soon ended and political parties divided into two opposing blocs. The AK Party and the MHP joined forces on the basis of a conservative-nationalist ideology, or so-called “authentic and national” politics (“yerli ve milli” siyaset). The CHP and the pro-Kurdish People’s Democratic Party (HDP), on the other hand, formed a tacit political bloc on the basis of a secular-leftist ideology. This has deepened the crisis of the New CHP.

The CHP-HDP bloc struggles to contain the AK Party-MHP’s joint project of reforming the state through empowering the executive by moving the government system towards presidentialism. The former constitutes the “NO” bloc whereas the latter the “YES” bloc on the current constitutional reform. If the “NO” camp loses in the coming referendum (which will probably be held in early April) and the presidential system is institutionalized, Turkey’s gradual evolution to a two-party political system around the division between conservative-nationalist and secular-leftist ideologies, which is currently underway, will continue and consolidate.

The CHP-HDP bloc struggles to contain the AK Party-MHP’s joint project of reforming the state through empowering the executive.

In this picture the CHP may stop swinging between liberal-democracy and secular-left ideologies by downgrading its emphasis on a liberal-democratic discourse, which mainly serves to limit the state and locks the CHP into being merely an opposition party. Thus, it may move secular-left ideology more into the center of its party politics. If that happens, then, it marks the end of the New CHP and perhaps causes a rift in the party’s leadership. Nevertheless, the CHP will have to take a more centrist and positive political discourse by moderating its emphasis on secular-left identity to become an alternative under Turkey’s new political conditions.

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.

From a societal perspective, a constitution is a multidimensional phenomenon. According to Kenneth Wheare, a distinguished authority on constitutions, there are two main attitudes about constitutions. According to the first a constitution is primarily and almost exclusively a legal document in which there is only place for legal rules and practically for nothing else. Yet, for those who favour the second attitude a constitution is a sort of manifesto, a confession of faith, a statement of ideals, a “charter of the land”. Essentially, a constitution is the basis for the organization of a state. And in turn state institutions provide for the society the necessary mechanism to exercise political, administrative, and judicial powers in order to ensure law and order. Also, it is through this mechanism that individual rights and duties are established and the economic activities are regulated and promoted.

Although currently the Turkish case is, quite understandably, at the centre of the debates in Turkey, this country is not alone in its quest for a new constitution. Writing a constitution is an important part of many peace-making and democratic transition processes. Newly founded independent states new regimes and countries in transition to democracy that seek democratic credentials put constitution-making at the top of their list of priorities. With its long-standing democracy Turkey is still ruled by the 1982 Constitution which has been designed by military forces instead of democratic processes. The constitution was a by-product of 1980 coup d’etat and lacks the civilian and democratic spirit. The 1982 Constitution aimed to deepen the military tutelage system that has been originally established by the 1960 Constitution which was put into effect after the 1960 military coup det’at. Several amendments has been made by on the 1982 Constitution by civilian governments since it came in effect to eliminate  not only the undemocratic but also anti-democratic features of the constitution. Yet, the undemocratic spirit is so deeply ingrained in this constitution that amendments fall short of finding a definitive solution. Shortly after the time it came into force, there have always been hot debates around this constitution and demands have been voiced by diverse social groups to produce a new and civilian one carrying the spirit.

Beyond the Text: the Question of Agency 

Notwithstanding the significance of debates around the content and the wording of a constitution the question of who has the right to make a constitution is usually insufficiently addressed. Thomas Jefferson, the principle author of the American declaration of Independence, wrote in a sent letter to James Madison and dated 6 September 1789 that “no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct.” Jefferson basically refers to the fact that not only each generation should be able to choose the laws under which it is governed, but also the power of repeal is in no way equal to the power to choose a new one. The principle of popular sovereignty and the unalienable right of the people to participate in public affairs require the promotion of popular participation in constitution-making. That is to say in democratic systems the ultimate right to participate in the making of a constitution rests with popular classes of the society.

http://thenewturkey.org/the-rise-and-fall-of-feto-in-turkish-politics/

Political elites inevitably play a major role in making decisions about how to structure a new constitution. However, there is now an established trend to build into the process broad participatory mechanisms in order to avoid a constitution that simply divides the spoils among competing factions, and to improve the chances of the new constitution enjoying a high degree of popular legitimacy. In the ever-changing world, therefore, the forms of public participation now go beyond just voting for constitutional representatives or in a referendum. Instead, they include civic education and media campaigns, public consultation (on how to manage the process as well as on the substance of the constitution), national dialogue, and other creative means. Recep Tayyip Erdoğan, President of Turkey, expressed in a speech in last January that the constitution making process should include public participation via workshops and search conferences.

Notwithstanding the significance of debates around the content and the wording of a constitution the question of who has the right to make a constitution is usually insufficiently addressed.

Public participation is often taken to mean voting—for example, electing a constitutional convention or ratifying a constitutional text by referendum. Especially in developing nations in Africa and elsewhere, however, there are experimental attempts to place the initiative in the hands of citizens and to create an open constitutional conversation in which the public partakes in agenda-setting, content writing and ratification processes.

The methods of constitution-making have changed over time. In absolute monarchies the monarch alone enjoys the monopoly to decide for a constitution. or else, many constitutions were imposed on a vanquished or colonized people (for example, in Western imperial systems—the MacArthur constitution in Japan after World War II, and to a lesser extent in Post-War Germany and in colonies once they gained their independence). From mid- twentieth century onwards democratic processes of constitution-making became the norm in which the principal responsibility has been assigned to a parliament or to a constituent assembly. Since the last quarter of that century, the emphasis has shifted to the active and qualified popular participation—whether as individuals, social organizations, or communities.

In order to successfully repeal the 1982 Constitution and to make a new civilian and democratic one in Turkey, all democratic actors must, as a prerequisite, acknowledge  popular right to make a constitution and to partake in the entire process. Especially the political parties represented in the parliament should spend the greatest effort to ensure the popular participation in the constitution-making process and to produce a constitution that reflects the popular will and meet popular demands.