Date:Sun, 29 Aug 2010 11:36:24 +0300
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TEL AVIV NOTES - "The Countdown: Turkey's Constitutional
Editor: Bruce Maddy-Weitzman August 29, 2010
The Countdown: Turkey's Constitutional Referendum
Hay Eytan Cohen Yanarocak
On September 12, 2010 Turkish voters will go to the polls to confer
or reject government-sponsored "revolutionary constitutional
changes". These proposed changes mark the clear desire by the ruling
Islamist Justice and Development Party (Adalet ve Kalk nma Partisi;
AKP) to extend and consolidate its influence in various spheres of
Turkish institutional life, particularly the judiciary.
The decision to hold the constitutional referendum on September 12
was no coincidence, for it was the date of the military coup d'etat
carried out by the Turkish Army (Turk Silahl Kuvvetleri; TSK), an act
viewed by the AKP as perhaps the ultimate crime of Turkey's formerly
dominant military-security establishment. Indeed, in order to
understand the current situation we need to clarify and discuss the
roots of the 1980 coup d'etat and and the 1982 constitution which
emerged from it.
The 1980 coup was carried out in response to the increasingly
anarchic situation in Turkey, characterized by violence and terror
among competing radical movements from the left and right as well as
Islamic groups. Designated as "Flag Operation" (Bayrak Harekat ), its
declared objectives were to safeguard the country's unity, restore
order and eliminate the centrifugal, anti-system tendencies that
threatened to undermine Turkey's fragile democratic system. Its first
act upon seizing power was to annul the Turkish parliment, revoke the
immunities of its members, and suspend basic rights and liberties
throughout the country.
The coup was carried out by the military's senior leadership, which
established the "National Security Council" (Milli Guvenlik Konseyi;
MGK). Its actions were legitimized through reference to the"Inner
Service Law," which defined the mission of the TSK as guardian of the
Republic. Initially, Chief of Staff General Kenan Evren possessed the
jurisdictional powers of the President and Head of the MGK. Under
him, the new military government adopted the "National Security
Doctrine": culture and ideology were militarized, the public was
depoliticized, martial law measures became the norm in daily life,
public liberties and the judiciary's powers were limited, and the
jurisdiction of police forces was broadened. In essence,
the Doctrine enabled the state to infiltrate and interfere in all
spheres of society.
However, the TSK has always served as a unique case in the annals of
military interventions in civilian affairs. Notwithstanding the fact
that it has overthrown civilian governments on a number of occasions,
the TSK always eventually re-installed civilian rule.
In the case of the post-coup constitution that it promulgated in
1982, the TSK held the reins tightly, as it attempted to fashion a
more stable polity. Already, it has been amended 16 times, involving
amendments to 84 articles, and the need for further
modifications is understood by all parties. However, there is little
consensus on what those changes should be.
The AKP's proposed amendments to the constitution address the
following subjects: equality before the law; privacy; the right of
accomodation and travel; protection of families and children's
rights; collective bargaining agreements; rules governing the
functioning of political parties; the creation of an ombudsman
regarding governmental activities; the parliamentary presidium; the
judiciary; the Constitutional Court; the High Commitee of Judges and
Prosecutors, and paving the way to holding the 1980 coup d'etat
leaders accountable for their actions.
If passed, the changes will have revolutionary implications for the
judicial system. Reforms in the constitutional court and the High
Commitee of the Judges and Prosecutors will allow the country's
President, currently the AKP's Abdullah Gul, and the other bodies of
the AKP goverment to nominate the majority of the judges and
prosecutors. In essence, the AKP will gain a complete monopoly on
the country's three branches of government, rendering the principle
of separation of powers devoid of meaning.
In addition, the AKP sees the constitutional referendum as an
opportunity to block future potential coups d'etat. The proposed
amendment to article 145 stipulates that if a soldier is
accused/convictedof acting against the state's security or against
the constitution he/she will be tried/sentenced in a civil court, not
a military one. For the AKP, the necessity of the amendment stems
from the Ergenekon investigation. Ergenekon, a euphemism meaning
"ultranationalist covert network", refers to a series of indictments
against former and active senior military leaders and Kemalist
civilians who allegedly plotted to overthrow the AKP government. Most
of the accused are being tried in a military court.
Another proposed amendment is directly related to the 1980 coup.
Article 15 of the 1982 constitution gave the coup leaders immunity
from any possible future legal action against them. However, the
article was intended to have been temporary, and the AKP wants to
remove it entirely. According to Turkish constitutional law expert
and honorary chief prosecutor of the Supreme Court of Appeals, Sabih
Kanadoglu, the article should have been revoked a long time ago.
However, he also rejects the notion of prosecuting the coup leaders
because the article had been approved by 91% of Turkish voters, along
with the rest of the constitution, in a referendum. Moreover, he
believes that the law prevents them from being indicted even if the
amendment will be approved.
The proposed changes, particularly regarding the judicial system,
will seriously exacerbate divisions within Turkish society. This is
clearly indicated by the response of the oppostion parties - the
Republican People's Party (Cumhuriyet Halk Partisi; CHP), the
Nationalist Action Party (Milliyetci Hareket Partisi; MHP) and the
Kurds' Peace and Democracy Party (Barisve Demokrasi Partisi; BDP).
All are vigorously opposed to the proposed constitutional changes,
which the CHP brands as the "coup d'etat of the AKP". In seeking to
preserve judicial independence, the CHP bases its objection on the
Code of Good Practice on Referendums, of the European Union's Venice
Comission. In the Code's "specific rules" section, article 30 states:
"Electors must not be called to vote simultaneously on several
questions without any intrinsic link, given that they may be in
favour of one and against another".
By contrast, the nationalist MHP accuses the AKP of tendering the
amendments according to the European Union's and the United States'
orders. More importantly, the MHP is opposed to the proposed
amendment dealing with rules governing political parties, as it fears
that the change will enable the Kurdish BDP to advocate a more
explicitly separatist position in parliament.
For its part, the BDP is no less critical, but for different reasons.
In its view, neither the current constitution nor the proposed
amendments take into account the Kurdish reality in Turkey. BDP's
message is direct: "We won't say 'One Language, One Nation', on 12
September We will boycott the ballot box". Its ultimate goal is to
insert the legitimacy of Kurdish ethnicity and regional self-rule
into the constitution.
Much of the population at large does not understand the essence of
the constitutional referendum on which they are being asked to cast
their ballots. Hence, most will vote either according to their party
loyalty or according to their evaluation of the country's leaders
overall performance. As such, the constitutional referendum will also
provide some preliminary indication regarding the probable outcome of
the next general elections, scheduled for July 22, 2011.
In the meantime, the September 12 referendum will do much to
determine Turkey's destiny. Either the AKP will gain control of the
remaining branch of government not in its hands - the judiciary - or
its opponents will demonstrate renewed strength, enabling Turkey's
judicial system to retain its independence from the ruling authorities.
Hay Eytan Cohen Yanarocak is a Dayan Center researcher and graduate
student at the School for Historical Studies, Tel Aviv Universtiy.
TEL AVIV NOTES is published with the support of the V. Sorell Foundation
Previous editions of TEL AVIV NOTES can be accessed at
www.dayan.org, under "Commentary".
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