Thirty years later, on Sept. 12, 2010, a referendum will be held on a reform package that will amend a substantial part of the Constitution drawn up by the military in 1982. If the amendments are ratified by the electorate, Turkey will move a significant step towards consolidating its democracy on EU norms by further broadening individual liberties and restricting the tutelary powers of the state elites.Between 2002 and 2004, Parliament adopted, by a consensus between the Justice and Development Party (AKP) and the main opposition Republican People’s Party (CHP), constitutional amendments that removed the legal basis of the political role of the military, broadened basic rights and freedoms and recognized Kurdish identity by lifting bans on teaching and broadcasting in the Kurdish language. Those reforms, which constituted nothing less than what has been called a “silent revolution” in Turkey’s republican history, opened the way for Ankara to start accession negotiations with the EU in 2005. The current amendments adopted in May by Parliament but subjected to ratification in the referendum to be held on Sept. 12 are aimed at further broadening basic rights and freedoms while curbing the tutelary powers of the high judiciary.
This time the main opposition the CHP has not only opposed the amendments for further democratization initiated by the AKP parliamentary majority but applied to the Constitutional Court for the amendments to be deemed unconstitutional, claiming they are in violation of the independence of the judiciary and is now calling on its followers to vote against it in the coming referendum. Political parties are divided between the pro and con camps. All of the main opposition parties, with different arguments, oppose the amendments. Alongside the hard-line secularist CHP, the hard-line nationalist National Movement Party (MHP) is campaigning against the amendments. Pro-Kurdish parties are divided. While the main pro-Kurdish party represented in Parliament, the Peace and Democracy Party (BDP), has taken a position against the amendments, the smaller pro-Kurdish parties, the Participatory Democracy Party (KADEP) and the Rights and Freedoms Party (Hak-Par), have declared their support. The BDP, on directions from Abdullah Öcalan, the imprisoned leader of the Kurdistan Workers’ Party (PKK), has called on its followers to boycott the referendum, while the PKK has threatened to escalate violence to undermine the referendum. The governing AKP, which initiated the reform package, the pro-Islamic Felicity Party (SP), the pro-nationalist Grand Unity Party (BBP), Turkish and Kurdish liberals and democrats and a large part of civil society organizations have, on the other hand, declared their support for the adoption of the package.
The Constitutional Court surprised the country last week when it rejected the CHP’s appeal and made only minor changes in the draft law on constitutional amendments subject to ratification by the referendum. The ruling of the court is highly controversial because it grossly violates the Constitution it is bound with in two respects. First of all, it passed judgment on a draft law over which it has no jurisdiction over, as clearly indicated in the opinion of the court’s rapporteur, who advised the court to reject the appeal. Secondly, it disregarded the constitutional provision that clearly stipulates that the court has jurisdiction over procedural aspects and not the substance of constitutional amendments.
There is no doubt that Turkey needs to adopt an entirely new and democratic constitution that will guarantee democracy, rule of law, individual freedoms and minority rights. That constitution should empower the Constitutional Court to have jurisdiction over both the procedural and substantial aspects of constitutional amendments. The Constitutional Court should, however, be bound to the principles of liberal democracy and not by principles of an authoritarian reading of Kemalism, the state ideology of Turkey, which sharply conflicts with the demands of an increasingly liberalizing, globalizing and democratizing society. The constitutional amendments concerning the judiciary subject to a referendum on Sept. 12 may not be fully in line with the preferences of liberals, but will certainly help improve not only the independence but also the impartiality of the judiciary.
The adoption of the constitutional package by a referendum on Sept. 12 will certainly be a step towards further consolidation of a liberal democracy in Turkey.
