Arato: The Turkish Constitutional Crisis and the Road Beyond

Arato: The Turkish Constitutional Crisis and the Road Beyond

Guest editorial

Andrew Arato


We should be deeply worried about Turkeys unfolding constitutional crisis, that could end in many things: the continuation and even conclusion of the long democratic transition; military coup with entirely uncertain consequences; or, in between them an unproductive stalemate. Obviously only the first can enable Turkey to become a member of the European Union, and remain the much needed bridge it already is between the West and the Islamic World (if these categories have any meaning). Outsiders can help, but only by trying to understand the roots of the crisis, and the role played by each side in creating it, the Kemalist elite and the AKP, the party of government that has Islamic roots, neither of whom should be caricatured at least by foreign observers. That each played a role can be clearly seen through the terms and causes of the constitutional crisis, to the analysis of which I would like to restrict myself here.

Let me role the political film backwards. Readers will surely know that there is currently a judicial process at the Constitutional Court, initiated by the head prosecutor of the Supreme Court, seeking to close the AKP party and ban from politics over 70 of its politicians including PM Erdogan and President G. They may not know that, though under legal constitutional jurisdiction (Articles 68 and 69), the charges involve an incredible mange of private statements, fully legal political acts including passing laws and constitutional amendments, and imputations of intentions that are entirely unsupported. Thus the attempt to close the AKP is not legally but politically inspired, and would reverse the results of the last two democratic elections in which the party received between 3/5 and 2/3 of parliamentary seats (though, as I would also stress, given a disastrously bad Turkish electoral rule on the bases, of 37, and 44 % of the votes). Readers will also know from Mr. Eissenstats article if not before, that on June 4 the same Constitutional Court has invalidated rather innocuous amendments to Articles 10 and 42 to Turkeys Constitution, intending to permit legislation and/or administrative decisions allowing the wearing of headscarves in the universities, according to him a decision that almost certainly transgressed to sphere of authority of the Court. I think the decision, remarkably enough not yet published in full, was technically very questionable but certainly within the jurisdiction of the Court. The big question now is whether this decision foreshadows the closing of the AKP as the majority of Turks think or, as I maintained in a long interview in the liberal Milliyet on 12 June (Haziran) the Court has now established the option of switching to a more constitutional path of defending the constitution (and enforcing consensual change) than the nuclear and self-contradictory option of party closings. Historical experience against logic are in conflict, and I admit the weight of prior history that has involved 18 party closings, but never of a majority parliamentary party that has such broad international support in Europe and America, may win out. But let me try to justify the logic, or my logic anyway.

The makers of the Constitution of 1982 established a dual, semi authoritarian or semi democratic state, with important reserves of power outside the constitution. Starting with the elections of 1983, and then constitutional changes already in 1987 Turgut al managed to expand the democratic dimension, leading to a great reform process from 1995 to 2004, that in several rounds that involved the consensual participation of all parliamentary political parties, managed to significantly but by no means completely constitutionalize political powers in the system. Today people stress several military and indeed judicial interventions in this period, that we can see only managed to slow down the rate of change, exclude parties that would reappear in new forms and under new names, but nevertheless confirming the existence of important political centers that could continue to act outside all democratic accountability and constitutional restraints. From 2000-2001 especially, the Turkish parties and governments were under increasing European pressure to eliminate these authoritarian residues, and it was then that the idea of a gradual amendment of 1982 Constitution was replaced by that of a new civil or civilian Consitutiton.

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