The Turkish Republic has never been ruled under a democratically designed constitution. Its 1924 constitution was based on a model that concentrated executive and legislative powers while failing to ensure the independence of the judiciary, and it coincided with Mustafa Kemal’s orientalist efforts to remove Turkey’s cultural and linguistic diversity. The 1961 constitution expanded civil liberties but simultaneously laid the groundwork for military and judicial tutelage over elected officials. And the present constitution was essentially drafted by the military and approved after a 1982 referendum held under repressive laws preventing the expression of any views intended to influence voters to say no.
Despite many amendments, Turkey’s present constitution contains so many objectionable provisions (some of which cannot be amended, and nor can their amendment be proposed), and so many broad and fuzzy exceptions to basic human rights, that it is often jokingly referred to as the “yes, but, constitution.” In a 2008 Resolution, the Parliamentary Assembly of the Council of Europe noted that a “full revision” of the constitution is needed in order to bring it “fully into line with European standards.”
Democratisation is essential for the resolution of the Kurdish Question in Turkey. This fact has been painfully underlined in recent years as Turkey’s tentative but important steps to meet some legitimate Kurdish demands, such as the introduction of broadcasting in the Kurdish language, have been rolled back and political parties advocating constitutional change, such as the HDP, have been attacked and hobbled. Without functioning democratic institutions, it is difficult to see how serious progress on issues like Kurdish linguistic human rights and self-government can be secured.
The case, then, for a new constitution that recognises Turkey’s diversity is an easy one to make. But the constitutional amendments on which Turkish citizens will vote on April 16th are about as radically anti-democratic as one can imagine: in Erdogan’s words, they will “concentrate all power in one person.”
The substance of the constitutional amendments
Despite the blathering of the President’s apparatchiks, it is perfectly clear that a vote in favour of Erdogan’s dream amendments is a vote to commit democide.
The Council of Europe’s Venice Commission for Democracy Through Law notes that the amendments “lead to an excessive concentration of executive power in the hands of the President and the weakening of parliamentary control of that power”. The separation of powers between the President and the Assembly will be “illusory” because in practice he will in all likelihood command a majority in the Assembly and have the power to reward certain members of parliament with prestigious ministerial positions. The Assembly will not be able to “exercise virtually any supervisory power over the President and the cabinet”. As if that wasn’t bad enough, the President will also be able to exert serious pressure on the Assembly through his power to “decide whether and when to dissolve parliament.”
The President will have a broad power to bypass the Assembly and make laws by decree, subject to some very vague limitations. The Constitutional Court will not be given the express power to decide whether or not the President has exceeded those limitations. Even if Turkey’s Constitutional Court was called upon to decide whether or not the President had gone beyond his decree-making powers, the fact is that the constitutional amendments will seriously undermine the independence of the judiciary. Under the proposed amendments, the President would have the power to appoint almost half of the members of the Council of Judges and Prosecutors, while the remaining members would be appointed by the Assembly, which is likely to be controlled by the President. That, according to the Venice Commission, “would place the independence of the judiciary in serious jeopardy.”
In conclusion, the Venice Commission notes that the role of the Assembly “risks becoming marginal” and the political accountability of the President would be “limited to elections, which would take place only every five years.” Furthermore, the amendments would “weaken an already inadequate system of judicial oversight of the executive.” Strikingly, the Commission underlines “the dangers of degeneration of the proposed system towards an authoritarian and personal regime.” Human Rights Watch expresses similar concerns: “The changes would effectively make permanent many of the emergency powers the president has assumed.”
The process of adopting the constitutional amendments
Erdogan is using some of the oldest and most well-known methods in order to whip and tempt Turkish citizens into approving his amendments: vote for me and I will make you prosperous; vote for me and I will vanquish our many enemies in brutal fashion; vote for me because, despite what it might look like, I truly love you. I am ‘the people’. All you have to do is surrender your critical faculties and your freedom to me, and I will give you the world.
These greasy offers are invariably backed up with threats and acts of violence, as “naysayers” are lumped together with the State’s official enemies: the PKK and FETO, which do not enjoy the right to life. According to Erdogan, “naysayers” will be punished in this life as well as the next. In the case of Kurds – the victims of many of Erdogan’s atrocities – they know perfectly well what happens when the President does not get his own way, having voted the “wrong way” in 2015 elections. Resistance comes with very serious costs.
All of this takes place against the backdrop of striking repression aimed at journalists, academics, broadcasters, political parties, local municipalities and just about anybody who dissents from Erdogan’s plans. According to reports, in the last six months alone a total of 2,673 cases have been filed against individuals for “insulting the president” under Article 299 of the Penal Code (incidentally, a crime that can apparently be committed in private, since Article 299(2) makes specific reference to public insults).
Human Rights Watch notes that there is “no level playing field” in the run-up to the referendum as the independent media in Turkey has been “all but silenced.” Critical outlets like Daily Zaman were taken over by AKP trustees under emergency decree laws, turned pro-government overnight, and eventually closed-down. Even the most elementary international law standards on the conduct of referenda, such as the principle of equality of opportunity, are being ignored as the might of the State and its religious institutions are used to promote a certain outcome and media impartiality rules have been cancelled.
Something as basic as the process of adopting the constitutional amendments in the Assembly was done in violation of Turkey’s own constitutional rules, which require voting to take place via secret ballot. The Venice Commission points out that this serious flaw in the procedure “casts a doubt on the genuine nature of the support for the reform and on the personal nature of the deputies’ vote.”
Erdogan has, by his own admission, been dreaming of this authoritarian system since the 1990s. There are suggestions that he will not be deterred by a no vote, and who knows what depredations he could resort to if all of his scheming comes to naught. Whatever the outcome on April 16th, Erdogan and his allies will not suddenly reverse their antidemocratic project, which long pre-dates the failed coup. But if his plans encounter a major obstacle on April 16th then there could be opportunities for democratic forces in Turkey to reverse their country’s dangerous democratic decline. If a majority of Turkish citizens accept his bargain, then the consequences are too grim to contemplate.
History suggests that making a slavish bargain of this kind will not end well.