Promoting consensus in the Turkish process of constitutional making.
For reasons that lie in the way that the semi-authoritarian 1982 Turkish Constitution was designed, and the way that from almost the beginning PM Turgut Ozal exploited its democratic potential, the country has been on a very long path of democratic transition that could exploit the original constitution’s largely (but not completely) parliamentary amendment rule, itself amended in 1987, to enact gradual, never completed, yet highly significant packages of constitutional changes. The story, resembling aspects of the Brazilian, Chilean and Mexican transitions should be more fully known abroad. In Turkey democratic transition was complicated by the emergence of religiously based identity politics, as well as the process of of the country’s accession to the EU. Yet, until 2004 in spite of some well-known authoritarian interruptions (all short of a full fledged military coup as in 1960 and 1980), and deformations throughout due to the pressure of conservative institutions, the three processes re-enforced one another. Most importantly for me, the political legitimacy of a purely parliamentary process of constitution making was generated by the consensual procedures, politically constrained but not required by law, that were used to negotiate and pass constitutional reform packages that were at times vehemently opposed by authoritarian institutions of the regime. To give one example, the transformation of the power to close political parties by the Constitutional Court was achieved in 2001 in spite of the vocal objection of the then leadership of that powerful Court. The symbol of the consensual approach was the All Party Accord Commission, an extra, but not illegal parliamentary body whose job was to secure the agreement of the major party political forces around reform packages. This was a remarkably successful effort: illustrated by overwhelming votes for comprehensive packages of reform in 1995 and 2001. Note that in terms of the constitution’s rules of standing, as a result of consensus no parliamentary forces were available to appeal to the Constitutional Court, as long as the president’s agreement could also be secured. The parliaments after 2002 lost their multi-party form due among things to the distortions always inherent in the electoral rule with its 10% threshold, a characteristic product of the authoritarian constitution makers of 1982. Yet as late as 2002 when T.R. Erdogan was allowed to take a parliamentary seat via a constitutional amendment, and 2004 when yet another package was negotiated, the consensual approach at least among the remaining parliamentary parties, in particular the AKP and CHP was upheld. It was only with the destructive struggle over the presidency in 2007, that amendments were finally passed on the bases of primarily the votes of a single majority party, that could then use a referendum to confirm its will in the face of a presidential veto. Note that here there were two forces, both “Kemalist” that could and did appeal to the Constitutional Court regarding the supposed unconstitutionality of amendments providing among other things for the direct election of the president of the republic. It is often forgotten now, that the Court, also supposedly Kemalist, after an earlier decision against the AKP, regarding quorum requirements, upheld the amendments allowing the referenda to proceed!
The struggle of the opposition against the AKP obtaining the presidency could be seen in two equally relevant ways: as the desire of authoritarian forces based in state institutions to retain control over this important governmental position, and the desire to stop one party (at that time having 34% of the votes) from being able to monopolize all important governmental positions. The presidency had important appointment powers, and participates in the constitutional amending process. The answer to the dilemma could have been a choice of a distinguished figure in no way identified with either state institutions or the AKP. Once the election of A. Gül was secured, a consensual path of constitution making could have nevertheless been attempted. Since the making of the last great amendment package, Turkey’s European partners have come to strongly insist that only a completely new, civilian constitution could satisfy their requirements. The step from partial amendment packages to the project of a new constitution was perhaps unavoidable. But the appointment of a governmental “extra-party” committee by the AKP alone to draft such a document was probably a mistake, in a country where the responsibility was previously and rightly understood as that of the parliament and not the executive. The illogical passing of amendments to articles 10 and 42 of the old Constitution at a time when one intended to entirely replace it, on the bases of an alliance between the nationalist MHP and AKP, was an even greater one. The CHP now had the motivation, and the legal standing to appeal to the Constitutional Court asking not only to rule against the amendment but in effect to freeze the entire process. After the headscarf case went against the AKP, had the subsequent closure case against the party been successful both results would have been attained. To me the biggest surprise is, that after the failure of the closure case, the AKP itself seems to act as if the process were now frozen. As unjustified as that assumption may be, it would be a self-fulfilling prophecy if the reasons had to do with a diminishing interest in democratization when the party’s more particular constituency oriented goals were temporarily blocked. Actually claims on both sides contribute to the danger.
Moreover, the unchangeable three articles of the 1982 Constitution, as against a group of provisional articles now gone from that Constitution, that indeed expressed the will and interests of the junta of 1980-3, only re-affirm the common project of Turkish state-makers from the 1920s. These should be open to re-negotiation of course in today’s changing circumstances; but it makes some sense that their transformation cannot in law, and ought not in legitimacy be a matter of simple constitutional amendments. The preservationist argument that should not insist that interpretation is only negative legislation, must always concede therefore that the interpretive act is not final. While it is preserving the past, this must be done also in the name of a future that can reverse both the past and the interpretation itself. Thus, the Court’s appeal is not to only to a past, but even more to a future constituent power that should not be seen in similar terms to the Bonapartists of 1980 or even 1960. It is here however that the argument of the Court fails the country, and is untenable in terms of the current state of constitutional theory. On the one side their references to the “primary constituent power” and to the unchangeable articles as incorporating its “fundamental choice…regarding the political order”, recalling the theory of Carl Schmitt, are radically underdetermined procedurally. Even worse, by stressing revolutionary breaks, “ruptures of political regimes” in the operation of the constituent power “outside the legal framework”, even closer to the spirit of Schmitt, one gets the decided impression that implicitly the model of the past is used also to provide concrete standards for the future. To oppose one form of usurpation, by parliament, the Court seems to be raising another to a standard, one by the Bonapartist junta of 1980-1983 (or perhaps the two juntas, of 1960 as well as 1980!) speaking in the name of the people, using a constrained referendum. Or, to be more fair, the Turkish people seem to be given the choice of undergoing a coup or making a complete political revolution if they wish to fundamentally change or renegotiate their constitution, and the state definitions inherent in the first three articles. A bad choice, when the citizens of the country could have been offered the path of enhanced legitimacy already embarked upon, but for the moment disrupted. The implication is therefore unfortunately that if they desire neither coup nor revolution, they have to put up with a frozen constitution as long as the Court is its guardian. And, with the future closed, this would amount to a form of legitimation in terms of a particular past that indeed cannot trump a more democratic present, even when imperfectly represented by parliament.
The Turkish constitution making process, if we are not to assume a revolutionary break, is determined by a legally parliamentary path. Consensus in such path is generally promoted by the structure of multi-party parliaments, the strategic secret of the previous process in Turkey that has nevertheless come close to having produced a “convention” of the constitution, i.e. a normative requirement. The electoral rule with its 10% cut-off, in the current period of polarization, stands in the way of the operation of this consensus requirement, by potentially removing its strategic supports, and creating the illusion that it was only a matter of strategy previously. One solution therefore could be to change the electoral rule. It would be wonderful if the governing party would commit itself to this reform, to the dramatic reduction of 10% threshold to say the German 5 or the Hungarian 4%, long considered very important by Turkey’s European partners. Parties of course hate to lose the advantages they gain from disproportional electoral systems. But in case the AKP could come to understand the potential gains involved, for the next election at least, according to current law this would involve a constitutional amendment, one that should be able to pass by Court scrutiny. Nevertheless it may be too tempting to use the problems involved as the excuse for not going down this road, and foregoing a much greater majority in seats than votes.
If that is the case, the AKP should consider using the electoral results in the next elections, without any threshold, for the election of a constitutional convention of all the parties. The 10% threshold would still apply for the simultaneous election of the regular TGNA, and many of the same members could serve in both bodies. The membership of this convention would in a significant way overlap with that of the regular parliament, and that would be highly desirable given the need for the two bodies to converge toward a single constitution. It would be desirable to have among the decision rules of the convention voting by high qualified majorities, and an extensive committee structure voting by consensus, similar to the earlier All Party Accord Commissions. If civil society organizations chose to contest such election, and perhaps pool their lists, they could gain representation in the convention, though not likely in the regular parliament. Given recent electoral results, the convention would surely include all the small parties, but the biggest party would still have the biggest bloc. That party would be doubly protected. As everyone else in the convention it would be protected against being outvoted by the supermajoritarian decision rule in the plenum, and the consensual voting in the committees. But also, not to violate Turkish public law, the proposal should be passed by the current parliament, most likely as a statute amending the electoral law that would make it clear that the convention had the right only to recommend a draft to the next parliament (this is the contemporary meaning of constitutional convention, in any case). That new parliament which according to the 10% threshold the biggest parties would control would still have to pass the constitution in the regular way, with the right to further amend its provisions. One would hope that such a right to amend would be used in a very limited way, not to re-start the constitutional struggle anew.
As in the case of the recent Convention for the Future of Europe in relation to the intergovernmental process, electing a convention as proposed here, would not be a violation of art.175, the amendment rule. Even if the Constitution of 1982 does not know of any such convention (any more than did the articles of Confederation of 1787 or the European Treaties of 2000), there is no reason why a new body to recommend could not be added to the existing process. While the convention would recommend a new civil(ian) constitution, parliament would be passing it under article 175 as an amendment of the constitution of 1982, presumably followed by a ratificatory referendum under that article. Having been attained through high consensus, there would be hopefully not enough dissenting deputies left to have standing to appeal to the Constitutional Court for review. Since the Constitution would be the work of all parties, the threat of party closing would also lose its relevance. The process (depending on its results of course) would thus satisfy the most stringent European demands, while at the same time representing the culmination of an original Turkish process of constitution making over the last 20 years.
|Andrew Arato is t he Dorothy Hart HirshonProfessor in Political and Social Theory, at The New School for Social Research in New York. His interests include the politics of civil society; constitutional theory; comparative politics of constitution making; religion, secularism and constitutions.
Professor Arato’s academic profile.