Major reforms cast as a power grab

Turkey’s constitutional vote is being seen in part as a referendum on Recep Tayyip Erdogan, the prime minister [EPA]

The plot lines of Turkey’s constitutional referendum make for a complicated read.

On one side, the ruling Justice and Development Party (AKP), which opponents paint as Islamist, is urging a “yes” vote on a package of amendments that will promote individual and human rights, increase access to the courts, and decentralise judicial authority. The European Union (EU), which one day may welcome Turkey into its ranks, has approved of the reforms.

On the other, opponents, including the leaders of the Nationalist Movement Party (MHP) and the Republican People’s Party (CHP), who stake their “no” campaign on the legacy of Turkey’s secularising and modernising founder, Kemal Ataturk, now find themselves arguing against the amendments from an anti-reformist position.

And Turkey’s Kurdish leadership, who arguably benefit most from proposed changes that make it more difficult to ban political parties, having seen Kurdish politicians repeatedly thrown out of parliament by judges, are trying to boycott the entire referendum.

Meanwhile, the public remains largely unenlightened, as the public debate in Turkey ahead of the nationwide vote turned vitriolic and oversimplified.

A case in point: The CHP was widely criticised for spreading around a poster in the town of Avcilar comparing a vote in favour of the amendments to support “for Muslim women to cover themselves like nuns” – a reference to the AKP’s Islamist reputation and unsuccessful attempt to lift a ban on women wearing headscarves in public places.

Meanwhile, prime minister Recep Tayyip Erdogan, the AKP’s chairman and public champion of the referendum, has compared prospective no voters to “defenders” of the 1980 military coup that produced Turkey’s most recent constitution.

The outcome of such political ping-pong is a confused citizenry low on information and lacking a firm grasp on what is at stake.

“Erdogan has not done a good job clarifying the whole content of the amendment[s],” suggests Birol Baskan, a visiting professor at the Georgetown University School of Foreign Service in Qatar. “So basically the masses are lost in the political discourse now. They don’t know what’s going on.”

Shuffling the legal deck

The debate over the amendments, which modify or repeal 24 articles of Turkey’s constitution which have already been approved by parliament and modified by a court, essentially boil down to the changes they set out to the way the country’s judges and prosecutors are chosen, evaluated and investigated.

Parliament, almost 47 per cent of which is occupied by the AKP, voted in favour of the amendments in the spring, and the legislation survived a summer challenge by the CHP and the Democratic Left Party (DSP) in the Constitutional Court.

Turkey’s judiciary and military class have long been sources of support for the secular Kemalist ideology that officially governs Turkey’s state institutions. Though the changes laid out in the proposed amendments would bring the judiciary more in line with liberal democracies in Europe and North America, tinkering with the makeup of the court has stirred fears among some in Turkey that Erdogan and the AKP intend on chipping away at the secular state.

Under the current constitution, the president controls all 15 appointments (11 sitting judges and four substitutes) to Turkey’s Constitutional Court – the highest legal body in the country for rulings on the constitutionality of laws and the venue for any criminal case that may involve the president, cabinet members or other judges. No Western liberal democracy, including the entire membership of the EU – which Turkey hopes to join – has a system that similarly cuts the legislature out of the judicial appointments process.

“The whole purpose was to … insulate the state institution against the ups and downs of politics,” Baskan said. “And so far it has been very successful.”

By law, the president chooses his appointments from a variety of candidates nominated by other state institutions: One comes from a university, and three others from within the president’s own administration, but seven must be jurists nominated by other courts.

Samih Idiz, a columnist for the Turkish Milliyet newspaper, said the government has argued that this appointment system means the judiciary “has established itself as some kind of self-perpetuating organisation,” with the overwhelming majority of the arbiters of the country’s constitution coming from established legal cadres.

This insulated institution decides weighty issues that bear on Turkey’s future. Unsuccessful attempts to ban the AKP, the latest flaring up in 2008 after Erdogan pushed the headscarf issue, have twice been made before the Constitutional Court. The court has banned Kurdish political parties on at least four occasions since 1993.

The proposed amendments would change Article 146 of the Turkish constitution to expand the court from 11 to 17 members and allow parliament to appoint three of the new judges. Two of the new, parliament-chosen jurists would still be required to come from another court, but one need only be a lawyer nominated by a bar association president. The amendments would also set a 12-year term limit for members of the Constitutional Court.

A new tutor

Students opposed to the amendments hold a sign reading ‘university says no to the AKP liars’ [AFP]

The second controversial set of changes would shift the makeup of the Supreme Council of Judges and Public Prosecutors, which approves new judges and state prosecutors as well as oversees their promotion, dismissal and potential investigation. The council, currently made up of five judges picked by the president, would expand to 22 members. The president would choose four, who must only be lawyers, while the large majority of the rest would be judges chosen by their peers and other prosecutors.

The president of the council would remain the minister of justice – a presidential appointee – but would be newly empowered to open investigations into judges and public prosecutors.

Cuneyt Ulsever, a columnist for the English-language Hurriyet newspaper who is against the amendments, wrote that these two sections, dealing with the Constitutional Court and Supreme Council, “weigh more for the future of this country” than all of the remaining amendments.

Although the two sections might, as their supporters say, move the country away from “military tutelage,” Ulsever warned that they will replace it with “civilian tutelage”.

The “tutelage” rhetoric stems again from the concept of an ultra-insulated judiciary built to keep the Kemalist ship on course, no matter who might be in power. To allow political winds to buffet Turkey means the country might soon find itself shifting course away from secularism, or even allowing internal ethnic divisions – such as that between Turks and Kurds – to grow.

“Those advocating the maintenance of the status quo are concerned that a democratic regime which is free from such tutelary ‘filters’ and meets universal democratic standards may lead to the emergence of an Islamic regime or to secession, either gradually or rapidly,” Ergun Ozbudun, a prominent lawyer recruited by Erdogan to help design a draft for an early version of the constitutional amendments, wrote in a recent report for the Turkish Economic and Social Studies Foundation.

Predictably, Turkey’s judges are not pleased with the plan to shake things up.

“The judiciary is no one’s backyard. Never has been and never will be,” Hasan Gerceker, head of the Supreme Court of Appeals, told a gathering of judges on Monday at a ceremony marking the opening of the judicial year. “With the constitutional amendments, the conflict between the courts and the executive power will increase, as the amendments ignore the courts’ will and cut their authority within the judiciary.”

Power to the people

In addition to changing the makeup of the Constitutional Court and country’s judicial and prosecutorial watchdog, the amendments would limit the power of military courts, open up access to the legal system for more people and make it harder to disband political parties – a common occurrence in Turkey.

While the current constitution – passed in 1982 after the coup by national referendum – allows military courts to try civilians in special cases mostly related to security issues, the proposed amendments specifically disallow that practice, restricting the jurisdiction of military courts to military personnel only and leaving the rest to civilian courts.

The amendments would also allow the Constitutional Court for the first time to hear cases brought by private citizens, similar to the way in which landmark constitutional decisions in the US, such as the desegregation of schools, grew out of individual cases that eventually found their way before the Supreme Court and were decided there.

“Anyone who claims that any of their fundamental rights and freedoms guaranteed under the constitution and falling under the European Convention of Human Rights has been violated by the public authorities can apply to the Constitutional Court,” according to the proposed amendment, as long they have exhausted other legal remedies. The new constitution, if passed, would also allow litigants to petition the Constitutional Court – which usually sits in a smaller group – to sit in a full assembly for a second review of their decision.

Political parties, which have long faced a tenuous existence in Turkey, would enjoy more protection under the amended constitution. Presently, the Constitutional Court may ban political parties and annul constitutional amendments with a three-fifths majority vote – seven of the 11 judges.

Often, the court will act against anything it views as a threat to the “Kemalist state,” Idiz said: “It means in practice that Turkey is a graveyard of banned political parties.” The new constitution would allow such decisions only with a two-thirds majority, meaning 12 of 17 judges must be in favour.

Yet the latest iteration of the minority Kurds’ political representation, the Peace and Democracy Party (BDP), has stated its intent to boycott the referendum vote, though a victory would seem to aid their continued existence.

The BDP’s predecessor, the Democratic Society Party, was banned last year by the Constitutional Court for alleged ties to the Kurdistan Workers’ Party (PKK), which is considered a terrorist group by Turkey, the US and other countries.

According to Human Rights Watch, the court found that the Democratic Society Party had “promoted Kurdish separatism” and ordered the party disbanded permanently and 37 of its members banned from politics for five years.

Selahattin Demirtas, the leader of the Kurds’ new BDP, told Al Jazeera that his group had called for a boycott because they wanted “sweeping changes to the constitution,” and the package of changes proposed by Erdogan and the AKP merely “revitalises” the legacy of the 1982 military coup constitution.

“This government wants to form their own civilian dictatorship,” he said.

Demirtas said that the existing courts are already biased against Kurds, who make up nearly 20 per cent of the country’s 76.8 million people, and that if the AKP “was to take over the judiciary, from our point of view nothing will change”.

“We want non-politicised justice, not only for Kurds but for all of Turkey,” he said. “[A boycott] would be a very effective message given to the public.”

Political winds

Recent polls indicate that Sunday’s vote will be close, though some have indicated that Erdogan and the amendment supporters have a slight edge. According to the Pollmark agency, 56.2 per cent of those surveyed earlier this week said they intended to vote “yes”.

But in several other polls, the results were not as clear.

Two polls conducted at the beginning and end of August by the Sonar and A&G agencies, respectively, yielded results that fell within the 1-2 per cent margin of error, with roughly half of the respondents on both the “no” and “yes” sides.

None of the polling agencies surveyed people in all of Turkey’s 81 provinces.

Idiz said that a poll released on Thursday by Milliyet showed the “yes” side winning handily in Turkey’s major cities, including Istanbul, Ankara, Izmir, Adana and Antalya.

Even in the city of Diyarbakir, in the heartland of Turkey’s southeast Kurdish region, Milliyet’s poll showed “yes” with 84.3 per cent of the vote, Idiz said, which would mark a major defeat for the Peace and Democracy Party’s boycott effort.

“When I was in Turkey in the summer I talked to many people from different walks of life, and what I realised was there were two groups,” Baskan said. “One groups says, ‘We will say no whatever it is,’ one group says, ‘We will say yes whatever it is,’ and the majority is confused, the majority don’t know what this referendum is about, they don’t know what is at stake.”

But Erdogan and the AKP “feel pretty politically strong at the moment,” Idiz said – otherwise they probably would have compromised with opponents who earlier promised to vote for the amendments if the AKP removed the two sections on the Constitutional Court and the judicial and prosecutorial watchdog council.

Indeed, the AKP itself is so tightly tied to the amendments that many in Turkey now consider Sunday’s vote to be more or less a referendum on the party itself. That could inflame passions at the polls – though it is hard to tell in which direction.

But the referendum results are almost sure to echo in the months following the vote. A parliamentary election is set to come sometime in 2011, and victory or defeat on Sunday will likely affect the AKP’s strategy, such as whether it feels strong enough to put the headscarf issue on the table again or continue its much-promised initiative to extend more rights to the Kurds. 

Either way, most observers seem to agree that the referendum process has been marked by a lack of public debate on such a momentous issue.

“While our views on the simple question of ‘yes’ or ‘no’ are mixed, we are in complete accord that this initiative, from its drafting last spring to its debate in recent months, has been almost completely devoid of candor, statesmanship and commitment to democratic principles,” a Hurriyet editorial said on Tuesday.

“The ruling party has cynically packed a ballot with diverse elements that should not be decided in sum … The opposition parties have callously turned the campaign into a tactical dry run in advance of next year’s general election.”