Blog of the International Journal of Constitutional Law

Turkey’s New Majoritarian Difficulty

On September 12, 1980, the Turkish Armed Forces took control of the Turkish government in a bloody coup d’état. Exactly thirty years from that date, on September 12, 2010, Turkish voters approved by 58% of the vote a package of twenty-six amendments to the 1982 Constitution, which was ratified following the coup. The amendments implement a sweeping set of reforms—from empowering the Parliament to pass affirmative-action laws for women to expanding the constitutional right to privacy.

The governing Justice and Development Party pitched the referendum package as a set of reforms intended to democratize the anti-democratic 1982 Constitution. According to Mr. Erdogan, who is the Prime Minister and the head of the governing party, the referendum package would decrease the influence of counter-majoritarian institutions, such as the Turkish Armed Forces, on the political process. The referendum happened to coincide with Seker Bayrami (or Eid ul-Fitr), a religious holiday that marks the end of Ramadan, when much of Turkey’s secular elite was on vacation and away from their registered polling places.

The referendum was a resounding success for Mr. Erdogan. Its results were celebrated by the governments of the United States and European states as a testament to Turkey’s vibrant democracy and the strength of its candidacy for the European Union. Although a majority of the amendments are a cause for celebration, two amendments raise grave concerns. These two amendments take aim at Turkey’s once-independent judiciary, which has been an ardent protector of secularism in a nation troubled by a fundamentalist past and threatened by a fundamentalist future.

First, the amendments permit the packing of the Turkish Constitutional Court by increasing the number of seats on the Court from eleven to seventeen. Before the referendum, the President could appoint six of the eleven Justices only from a short list of judges compiled by various independent judicial institutions (including the Turkish High Court, the Turkish Council of State, the Turkish Military High Court, and the Turkish Military High Court of Administration). This process ensured that the appointment of at least six members of the eleven-member Court—i.e., the majority—remained largely insulated from political influence.

The referendum added six new seats to the Court and gave the power to appoint all six Justices to the political branches. One of these six members will be appointed directly by the President. The remaining five will be selected either by the President or the Parliament from short lists of judges compiled by various other institutions. Short lists for four of these remaining five Justices will be compiled by government-friendly institutions—such as the Higher Education Council (charged with supervising Turkish universities) and the Turkish Court of Accounts (charged with auditing accounts on behalf of the Parliament)—whose members are selected directly by the political branches or whose interests are aligned with the current governing party. The new constitutional amendments thus convert what used to be a 6-5 balance on the Constitutional Court in favor of Justices selected by counter-majoritarian institutions into an 11-6 balance in favor of Justices selected by majoritarian or majoritarian-influenced institutions.

Second, the amendments also permit the packing of the Supreme Board of Judges and Prosecutors by expanding the Board from seven to twenty-two members. The Board serves an important counter-majoritarian function because it appoints prosecutors and judges to the Turkish High Court and the Turkish Council of State. The High Court especially will play an important role in the next few years because it likely will hear the appeal of what has been dubbed the “case of the century” in Turkey: Ergenekon (named after a mythical valley in the Altay Mountains that Turkic tribes used as a shelter). Under the Ergenekon indictments, numerous individuals have been wiretapped, detained, interrogated, and arrested for allegedly conspiring to overthrow the Turkish government. Among those arrested are former military generals as well as professors and journalists who have vocally criticized Mr. Erdogan and his party.

Surprisingly, a majority of the Turkish secular elite blames, at least partially, the United States for the referendum results. The secularists believe that the United States has been supporting Mr. Erdogan and his party to pave the way for the establishment of a moderate and democratic Islamic Republic in Turkey. The secularists’ theory goes as follows. As things stand, Turkey’s strictly secular regime is too distinctively areligious to be a persuasive model of governance for Islamic countries of the Middle East. If, however, Turkey’s secular regime were replaced with an Islamic—yet moderate and democratic—republic, the United States might more effectively use Turkey to exert a positive influence on Middle Eastern countries that espouse Islamic law.

As support for their theory, the secularists point, for example, to President Obama’s phone call to Mr. Erdogan following the referendum. During the phone call, President Obama congratulated Mr. Erdogan and acknowledged “the vibrancy of Turkey’s democracy as reflected in the turnout for the referendum.” Although President Obama’s comments focus on voter turnout and are not a ringing endorsement of the substance of the amendments, neither are his comments a careful repudiation of the new provisions that threaten the independence of the Turkish judiciary.

Will Turkey be the next Iran—a once-secular country that, in an aggressive spurt, becomes Islamic following a nationwide referendum? It is too early to tell. But one thing is clear: The amendments ratified with the referendum give the current government significant leeway to enact laws that may push Turkey towards a fundamentalist future.

–Ozan Varol, Chicago-Kent College of Law, USA


3 responses to “Turkey’s New Majoritarian Difficulty”

  1. Ran Hirschl Avatar

    Thanks for an interesting, timely analysis, especially the “US-led moderate Islamic republic” thesis, although I must confess that to equate the changes Turkey is undergoing to the Iranian revolution of 1979 is a bit of a stretch, no? Also, the portrayal of the Turkish judiciary and prosecutorial apparatus as independent umpires or a-political organs may be a bit naive. Both have long supported the Kemalist vision of modern Turkey; the Constitutional Court in particular has been a close ally of the army and of the secular-nationalist values. It delivered key rulings on an array of contested issues from religious party closures or near-closures to unconstitutionality of constitutional amendments, the Court has been a bastion of militant secularism. So while the AKP-led constitutional manoeuvres surely are strategic, the judiciary has not been a passive, neutral force either. That the historically powerful, now threatened secular-nationalist elites do not like the looming changes to the Constitutional Court or to the Supreme Board of Judges and Prosecutors is absolutely understandable given that such changes weaken an important bastion of support for their worldviews and policy preferences.

  2. Ozan Varol Avatar
    Ozan Varol

    Thank you for your thoughtful comments, Ran. I agree with you that Turkey is not quite like Iran—at least not yet. But I do think there is some cause for concern. Parliament members from the now-dissolved Welfare Party, which is the predecessor to the current governing party, have made public statements such as “[But] will the transition be peaceful or violent; will it be achieved harmoniously or by bloodshed?” (Necmettin Erbakan) (Apr. 13, 1994); “If you want the solution, it’s sharia” (Hasan Huseyin Ceylan) (March 14, 1993); and “I will fight to the end to introduce sharia.” (Ibrahim Halil Celik) (May 8, 1997). Mr. Erdogan was a member of the Welfare Party before the Constitutional Court dissolved it. Since then, Mr. Erdogan and his supporters have significantly dialed down their rhetoric (perhaps fearing another dissolution order by the Constitutional Court). But their newfound temperance doesn’t mean that they have abandoned their ideals (for example, they attempted, unsuccessfully, to criminalize adultery in 2004).

    As for your second point, there is no question that the Constitutional Court has been, as you suggest, a bastion of strict secularism in Turkey. But there is a difference between protecting a principle (strict secularism) and being dependent on or influenced by the political branches. In my view, the Turkish Constitutional Court has primarily done the former, without being the latter. The Court, as you note, has rendered some hotly contested rulings, such as those that struck down laws permitting the wearing of Islamic headscarves in public universities. And in doing so, the Court has injected itself into the political process, which in turn has led to the court-packing plan in the recent constitutional amendment package. The Court’s support of strict secularism has certainly had political ramifications, but politics, at least until now, has left the Court’s independence intact.

  3. Andrew Arato Avatar
    Andrew Arato

    Belatedly, I agree with Varol.

    Hirschl conveniently leaves out that the CC refused to dissolve the AKP. Hence it political independence can be asserted more securely than before. It also sustained the aKP ultimately in the issue over the presidency, despite the earlier quorum decision. Finally, it allowed the referendum to proceed, including its own packing.

    I would only add to Varol, that the most immediate result of the packing has been the adding of obviously targetter 4 substitute justices to the full membership of the court. The Court is now packed. Does this mean constituionalism is already lost. Not necessarily because
    1. Packed courts can disappoint their packers (Murphy, Jackson in Korematsu; several Indian justices in the Kesavananda Review Bench and the Indira Gandhi Election case)
    2. The lectorate coming June may deprive the AKP of the 3/5 cosntituin making majority

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