If there is one over-riding criticism of the 1982 Turkish Constitution it is that it is a mirror reflection of how such a document should work. It embodies a principle of exceptionalism so that the state can indeed behave in a “systematically arbitrary way.” It protects the state from the individual and provides opaque barriers behind which state institutions hide from the public gaze.Examples? It was only in 2002 that marital law was lifted in the last of the largely Kurdish provinces of the Southeast but even then this does not mean that a state of normalcy has returned: The 2009 EU progress report laments that “the armed forces have continued to exercise undue political influence via formal and informal mechanisms” and cites attempts to interfere with the judiciary. The Turkish Armed Forces (TSK) Internal Service Law and the Law on the National Security Council, in the report’s words “grant the military wide room for maneuver by providing a broad definition of national security.” The EU Commission progress report, as Lale Kemal pointed out in a recent column, mentioned a 1997 secret protocol (called the Protocol on Cooperation for Security and Public Order [EMASYA]) which allows some internal security operations to be carried out without civilian oversight.
More examples? There is a whole spate of legislation (Article 301 is the one people know best) which are designed to protect state institutions and even the abstract notion of “Turkishness” from criticism and which have been used to target dissidents and generally restrict freedoms of speech. And of course a final set of examples are the Ergenekon investigations, which even if a fraction of the accusations are true, point to a “deep state culture” whereby a whole echelon of officialdom along with allies in public life, felt themselves empowered to ignore even what laws there are and to control the direction of public policy through a series of criminal and even violent acts of provocation in which good people gave their lives.
I write all this as an additional comment to the discussion which Yavuz Baydar has recently introduced into these columns, in which he expresses exasperation with a new debate over whether Turkey is not now in danger falling into a system of “civilian tutelage.” He makes not-so-gentle fun over those who fear that once their own unaccountable power is dismantled, the nation risks falling under the control a new, majoritarian tyranny.
The irony of course is that criticism of the democratic system comes from those who themselves once benefited from having direct access to power -- the newspaper editor who could pick up the phone to government ministers to demand why the subsidy check for one of the parent company’s companies was still in the post, or who willing leased his front page to the misinformation unit of national intelligence in exchange for other favors. But of course a greater irony is that bureaucratic tutelage and the autonomy of the Turkish military is very far from being dismantled. To quote from the EU report: “No progress has been made on strengthening legislative oversight of the military budget and expenditure.” Procurements are excluded from parliamentary scrutiny. Auditing is ex-post factum and the report complains that a 2003 provision for the internal audits of security institutions has yet to be implemented.
What we should take seriously is the concern that the 1982 Constitution, along with its arbitrary powers, be allowed to stand. Those who penned and supported it know exactly what sort of monster they created and like Dr. Frankenstein are nervous that it is about get the wrong brain. The real controversy is not whether the Constitution needs to be reformed but whether it can be reformed piecemeal rather than root and branch.
