Constitutional change: all or nothing

Prime Minister Recep Tayyip Erdoğan ordered a commission of academics and experts to draft a civilian constitution ahead of the parliamentary elections held on July 22, 2007, but this initiative later failed to culminate in concrete results, creating much disappointment and despair for people who had high hopes for it. We really hope he takes it seriously this time. We also hope that this initiative to draft a civilian constitution makes sure that Turkey evolves from a third-class “national security state” or a “semi-military republic,” where all sorts of restrictions on rights and freedoms are in place, to a true democracy, etching Erdoğan’s name in history.

Unfortunately, the words “constitutional change” do not ring the same in everyone’s ears in this country. Some believe amending only those articles of the Constitution that are problematic in the face of current problems will suffice. But Turkey has been playing the game of amending the Constitution for almost 30 years and keeping itself busy with trivial issues. Indeed, every government that assumed office since 1983, after the end of the direct military regime, frequently introduced constitutional amendments to Parliament. Almost all articles of the Constitution, excluding those serving to preserve the main philosophy, spirit and fundamental issues that enable the military coup to maintain its tutelage over democracy (which are mostly related to the lawless position of the top judiciary and military within the system), have undergone amendment.

But, obviously, it is impossible to obtain a contemporary, democratic, pluralistic, participatory and libertarian civilian constitution by occasionally introducing limited amendments to a constitution that was drafted with a primitive, fascist, subversive and tutelary mentality, i.e., which was essentially tainted with despotism. If this had been possible in this way, I think we would have already attained a civilian and democratic constitution with all those amendments. However, we know well that this is not the case, and we can see that the Constitution has already been turned into a patchwork of incongruities and inconsistencies by introducing only palliative retouches to a constitution prepared by a military dictatorship and without tackling its despotic spirit and tutelary skeleton.

Then, if itemized, partial and on-demand constitutional amendments do not help this country get rid of the primitive military tutelage, what should be done instead is crystal clear: This Constitution must be given a drastic overall overhaul with a civilian, democratic and liberal perspective so that no constitutional amendment will be needed, at least in the near future. That is, we will dump into the darkness of history this distorted and perverted Constitution whose every institution is designed with an outdated mentality and which can no longer support Turkey but provides obstacles to the progress it deserves with its wording and spirit. In its place, we must draft a constitution that is civilian and democratic in its working and spirit and that is in harmony with today’s pluralistic, participatory and liberal mindset.

Without abolishing in the constitutional and institutional sense the constitutional and institutional tutelary system introduced by the military coup of Sept. 12, 1980, it does not seem likely for Turkey, which certainly has the potential to take off rapidly, to jettison the problems that have been causing difficulty for some time. Take the Kurdish issue or the non-Muslim minorities issue or the fundamental rights and freedoms issue as an example. The real reason behind all of these issues is this institutional tutelage and the subversive Constitution that sustains it. Efforts to settle these issues without tackling the spirit of the tutelary, despotic Constitution will only serve, as they did in the past, to save the day and will not have lasting and sustainable consequences.

Note that if you do not reposition the Constitutional Court as it should be in a contemporary democratic government by the rule of law via a new constitution, you cannot introduce democratic standards to the structure of the Supreme Board of Judges and Prosecutors (HSYK) as required by the rule of law. Without removing the army’s shadow on politics, you cannot achieve a democratic judiciary or a fully functional Parliament and executive power. If you fail to give a truly civilian nature to the civilian judiciary, you cannot impose contemporary legal norms on the military judiciary. If you cannot inspect expenditures related to the defense budget or if you refrain from making the military accountable to civilian authorities or if you cannot contain the military judiciary within universal legal norms, your efforts to identify and penalize the juntas or illegal networks including military officers will prove futile. Any progress you seem to make in terms of dealing with such illegal networks will amount to nothing at the hands of the odd mentality that dominates the top judiciary, which is indebted to the military coup of Sept. 12, 1980 for its existence.

In sum, Turkey’s democratic, liberal and civilian groups should realize the bitter truth: that the constitution-amending game we have been playing for the last 30 years has come to the point of “all or nothing.” Everyone should know that it is not possible to reform the judicial system by leaving out military-civilian relations or to introduce universal democratic standards to military-civilian relations by ignoring laws restricting freedoms or excluding the judiciary.