Moreover, their drafting was carried out by very few people; the 1982 Constitution was written by a team of only five people. So these constitutions and the systems they created have been criticized in academia as being “despite the people and against the people” rather than “by the people, for the people and of the people.”The reform package drafted by the governing Justice and Development Party (AK Party) is not a whole constitution. It does not cover all the expectations and aspirations of the Turkish public so as to bring Turkish democracy and especially its judicial system and military on par with European and universal standards. Nevertheless, despite the fact that the proposed package is limited and reconciliatory in some respects, that it intentionally avoids for now any attempt to change the form, function and lack of accountability of certain courts and the military, it is enough to scare and incite the status quo into rejecting and mobilizing against it. For the public, on the other hand, although it is late and limited, the package is a useful and long-awaited start and a declaration of intent to normalize certain things in Turkey.
However, the proposed reforms to certain articles seem to be for psychological relief only. Take the suggested amendment to Article 125. The reform suggests that recourse to judicial review should be available against all actions and acts of the Supreme Military Council (YAŞ). But if personnel sacked by the military were to be reinstated to their earlier military position by the civilian courts, the military would make their lives a living hell.
Or take the proposed amendment to Article 15, which was included to appease the Republican People’s Party (CHP). The reform package suggests removing the provision that no allegation of criminal, financial or legal responsibility shall be made and that no application shall be filed with a court for this purpose in respect of any decisions or measures whatsoever taken by the junta or the National Security Council (MGK) formed after the 1980 coup. But considering the fact that many of the planners, makers and victims of the 1980 coup have passed away and that the statute of limitations means that cases are dropped or no longer viable after 30 years, why waste effort on pursuing the 1980 junta while the CHP and other interest groups are busy defending and protecting the coup planners of today?
Or take the way the government has avoided proposing amendments to the selection, function and accountability of certain judges, prosecutors and courts. As much as it fears more military intervention, the Turkish public is equally threatened by the growth of the “juristocracy.” Shouldn’t the government suggest the selection of judges by Parliament in line with the practice of EU countries?
If, as some higher judges have remarked, Parliament cannot make a new constitution, or if what Parliament is doing to reform, democratize and normalize is against the Constitution, then who will legislate, discuss and make laws and draft a new constitution? Are they suggesting that amendments, new legislation or a new constitution are so important that they cannot be entrusted to Parliament?
In making these points I do not mean to oppose the suggested reforms or amendments to Articles 15 and 125. Rather, it is important that we should reform our articles and constitution in such a way that future generations will not have to endure further judicial or military tutelage, complications and takeovers.
Predictably, the reform package is already being attacked and roundly rejected by the opposition parties and protectionists such as the judicial and military bureaucracy. Ironically, while the protectionist clique cannot seem to stop the military and judiciary bureaucracy from breaking the law, violating the constitution and planning putsches, they allege that amending the Constitution thorough a constitutional process is “unconstitutional.” When the military and judiciary stop interfering with the legislative and generals give up pronouncing verdicts on legal cases yet to be heard, the world and Turkey will be able to take them seriously.
After thorough public discussion, the government should not hesitate to take the package to a referendum if necessary. The public has the right to give the protectionists the answer they deserve. The suggested reforms might be limited in scope, but they are important; they may be weak, but they are a good start on the road to democratization, institutionalization, normalization, civic-mindedness, civilian rule and the supremacy of law.
