Analysis
March 31, 2010
Summary: Turkey’s government and
opposition are embroiled in a deep
conflict over proposed changes to
the Turkish constitution. The two
major opposition parties have made
it clear that they will not be party to
the efforts of the governing party to
amend the constitution in unaccept-
able ways. The governing party will
fight bitterly to the end to get what it
wants. The Turkish voters will have
to brace themselves for a no holds
barred battle, which is likely to be
followed by a tension-ridden referen-
dum. Peace and tranquility will not
be the words to characterize Turkish
politics in the months to come.
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Checking the Opposition, Balancing the
Judiciary: Constitutional Reform Debates in
Turkey
by İlter Turan*
ISTANBUL — Turkey’s government
and opposition are embroiled in a deep
conflict these days regarding changing
several articles of the Turkish constitu-
tion. The two major opposition parties
have made it clear that they will not be
party to the efforts of the governing
Justice and Development Party (AKP)
to amend the constitution in unaccept-
able ways. The prime minister has re-
torted that if the representatives cannot
bring about the needed changes, they
will turn to those whom they represent,
a roundabout way of saying that the
changes will be submitted to the ap-
proval of the voters. The parliamentary
procedures for constitutional change
are about to begin.
The two most recent Turkish constitu-
tions were made by military leaders
during the 1960-1961 and 1980-1983
interventions. The makers of those
constitutions, in addition to provid-
ing the country with a democratic
fundamental law, were guided by three
considerations. First, they wanted to
make sure that the constitution would
have provisions designed to prevent
the state of turmoil that had preceded
their interventions. The 1982 constitu-
tion, for example, contained elaborate
provisions limiting civil liberties since
*
lter Turan is currently a professor of political science at Bilgi University, where he also served as president between 1998-2001.
The views expressed here are those of the author and do not necessarily represent the views of German Marshall Fund of the United
States (GMF).
they were judged to have been usurped
extensively by radical rightist and
leftist groups. Second, they wanted
to delineate a domain that would be
protected against the interventions of
elected governments. This was a reflec-
tion of the orientation of the military-
bureaucratic modernizing elite that
considered some areas of governmen-
tal activity as “matters of state,” too
important to be left to the discretion
of the elected politicians. It is with this
concern in mind that the appointment
of presidents of state universities and
judges to the Constitutional Court
were made the prerogative of the
president rather than the prime min-
isters or the council of ministers, while
the designation of a list of candidates
were left to the faculty and bodies
comprised of judges. Finally, the mili-
tary rulers interjected a number of exit
guarantees to insure their immunity
after the transition to elected politics.
The framing of constitutions to
prevent the recurrence of past prob-
lems—including bans on political
rights of pre-intervention politi-
cians—an illiberal mood driven by
security concerns, and an inclination
to define the scope of governmental
decision-making narrowly have invited
Analysis
debates on changing the constitution since the restoration
of civilian politics in 1961. For example, all political parties,
agreeing that the basic restrictive, anti-democratic approach
of the 1982 constitution may not be fully transformed
through amendments, have admitted to the desirability
of an entirely new constitution. It has proven impossible,
however, to agree on a common formula for achieving this.
Soon after the AKP government was reelected, it asked a
committee of law professors to prepare a new constitutional
text. The opposition denounced the proposal as unrep-
resentative of their preferences. AKP deputies also found
faults with it. After some discussion, it was abandoned.
The current constitution requires that an amendment be
proposed by one third of the whole house (184 deputies)
and then defines two ways for its adoption. If two thirds of
the whole house (367 deputies) approves and the president
signs it, the amendment is adopted. If more than three fifths
(330 deputies) but less than two thirds are in favor, then
changes are submitted to a referendum after the president’s
approval. The first three articles of the constitution defining
the basic nature of the regime may not be amended.
Despite the difficulties involved in changing the constitu-
tion, on eleven occasions beginning in 1987, it has been
possible to form more than sufficient parliamentary majori-
ties to amend it. This experience suggests that it is possible to
build a consensus for constitutional change. Why, then, is the
attempt to change some articles of the constitution proving
so difficult and divisive this time? There are three parts to the
answer. First, possessing more than a three-fifths majority, the
government has made clear its determination to change the
constitution, if necessary by taking the changes to a referen-
dum. This uncompromising stance has obviated any desire
of the major opposition parties to get involved in the process.
But second and more importantly, there is an immense lack
of trust between government and opposition. The opposi-
tion diagnoses the central aim of the proposals as bringing
all branches under the government’s control, abolishing the
separation of powers. A deeper concern is that the govern-
ment is working to change the nature of the secular republic
by destroying the autonomy of its last two pillars: the military
and the judiciary. Not surprisingly, other proposed changes
are identified as window dressing to render the “devious” ar-
ticles more palatable. Finally, all major parties judge that pur-
suing a policy of polarization serves their electoral interests.
2
The government has proposed changes in twenty three
articles that cover a variety of topics from positive discrimi-
nation in favor of women and children to the removal of
the immunity from prosecution of members of the junta
who conducted the 1980 intervention. In addition, the
banning of political parties by the Constitutional Court
will become more difficult, government workers will have
rights to collective bargaining without the right to strike,
and the institution of ombudsman will be established. The
changes are so wide-ranging that there is something for
every political party to support. Yet the proposals have been
criticized on three grounds. Some criticism is directed at
what the proposal is lacking. Small parties, including the
Kurdish-based Peace and Freedom Party (BDP) have said
that without plans to lower the national electoral threshold
from the current 10 percent to 5 percent, it would not sup-
port any proposed change. BDP has added other conditions
for extending its cooperation. Almost all opposition parties
are agreed that the full parliamentary immunity currently
enjoyed by the members of parliament should be replaced
with limited immunity protecting only their freedom of
expression. A second criticism is directed at the insistence
of the government that all amendments be submitted to ref-
erendum as a package. Opposition parties rightly point out
that some amendments like the removal of the immunity
of the 1980 junta members might achieve 367 votes and be
adopted without a referendum. They add that contents of
the amendments are so varied that it is unacceptable to ask
citizens to vote simultaneously on changes, some of which
they might want to accept and others reject.
By far the harshest criticism is directed at the plans of the
government to change the composition of the Constitu-
tional Court and the High Council of Judges and Public
Prosecutors. By increasing its size and empowering the
president and the parliament to appoint almost all of its
members, critics argue, the Court would come to be domi-
nated by judges close to the government’s political ideology.
A similar argument is advanced regarding the High Council
whose size will be expanded from 7 to 21 and will include
presidential appointees as well as some representatives cho-
sen from among all members of the judiciary. In addition to
politicians, most unusually, the current leaders of the high
judicial organs have unanimously criticized the proposals,
in inflammatory language, as destroying the independence
of the judiciary. The prime minister has responded in
Analysis

equally unrestrained language. The emotional tone of the

high judges may derive from their fear that the role of the İlter Turan, Professor, Bilgi University
judiciary as a pillar of the republic and a major defender of
İlter Turan is currently a professor of political science at Istanbul’s Bilgi
the interests of the state against elected politicians is being
University, where he also served as president between 1998-2001. His
destroyed; it is not wholly unjustified. While the proposals
previous employment included professorships at Koç University (1993-
give the president and the government the power to appoint
1998) and Istanbul University (1964-1993), where he also served as the
most members of the top judicial bodies, the prime minis-
chair of the International Relations Department (1987-1993), and the
ter has expressed on many occasions that he finds it intoler-
director of the Center for the Study of the Balkans and the Middle East
able that the judiciary should scrutinize the actions of an
(1985-1993). Dr. Turan is the past president of the Turkish Political
elected government and constitute some kind of a check on
Science Association and has been a member of the Executive Commit-
them. This is not a healthy beginning for developing checks
tee and a vice president of the International Political Science Associa-
and balances, the critical component of a well functioning
tion (2000-2006). He has served as the program chair of the 21st World
democracy.
Congress of Political Science in Santiago, Chile, July 12-16, 2009. He is
board chair of the Health and Education Foundation and serves on the
Although it is tempting to think that constitution making
board of several foundations and corporations. He is widely published
and changing ought to be a deliberative process character-
in English and Turkish on comparative politics, Turkish politics, and
ized by strategic thinking, what we witness is a game where
foreign policy. His most recent writings have been on the domestic and
tactical considerations for immediate political gain fully
international politics of water, the Turkish parliament and its members,
prevail. As the Turkish Grand National Assembly begins to
and Turkish political parties. He is a frequent commentator on Turkish
discuss the constitutional amendments, it appears that the
politics on TV and newspapers.
opposition will continue to mount its ideological attacks
on the government, accusing it of undermining the secu-
About the GMF
lar republican regime. It may even turn to the judiciary,
especially the Constitutional Court, if it can find a legal The German Marshall Fund of the United States (GMF) is a nonpar-
loophole to ask the court to issue an order of stay to stop tisan American public policy and grantmaking institution dedicated
the process. The government party will fight bitterly to the to promoting greater cooperation and understanding between North
end to get what it wants. The Turkish voters will have to America and Europe. Founded in 1972 through a gift from Germany, on
brace themselves for a no holds barred battle. That is likely the 25th anniversary of the Marshall Plan, as a permanent memorial to
to be followed by a tension-ridden referendum. Peace and Marshall Plan assistance, GMF maintains a strong presence on both sides
tranquility will not be the words to characterize Turkish of the Atlantic. In addition to its headquarters in Washington, DC, GMF
politics in the months to come. has seven offices in Europe: Berlin, Bratislava, Paris, Brussels, Belgrade,
Ankara, and Bucharest.

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