Monday, September 13, 2010
Well, the ballots have been counted and the "Yes" side carried the day in Turkey's national referendum yesterday. The final vote was 58% in favor of 'Yes' and 42% against, a major victory for Turkish Prime Minister Tayyip Erdogan and his AKP government.
The referendum, as I discussed in my post yesterday, permits Turkey's AKP government to expand the country's constitutional court from 11 to 17 members in a move reminiscent of FDR's court-packing scheme from 1937.
The AKP was able to win such a big victory by first securing the support of people who are already inclined to vote for the AKP, and then attracting the support of non-AKP supporters by including several anti-military planks in the referendum (people could only vote on the entire package of amendments, rather than vote on each amendment individually). Thus, in addition to giving the AKP enormous powers in shaping the judiciary in Turkey for generations to come, the package voted on yesterday also allows for the leaders of the 1980 coup to be put on trial (something which was not allowed according to the coup-era constitution that Turkey is still working under). Military officers can now also be tried in civilian, rather than military, courts (see imperfect but serviceable English translation of the amendments here).
Most
people in Turkey hate the idea of their country being run by unelected
generals, and that's why they overwhelmingly approved Turkey's
constitution in 1982—-the constitution gave the generals a continued
say in Turkish politics, but approving it nevertheless paved the way
for a return to civilian rule. Likewise, I think the anti-military
message of the "Yes" side in this vote appealed to a lot of non-AKP
supporters. Just sixteen months ago in municipal elections, the AKP won just 39% of the vote, so the 58%
that voted in favor of the referendum package must have included a
large number of people who don't consider themselves AKP voters.
Outside of Turkey there are two main narratives coming out of this vote. On the one hand, there are the neo-cons who see "Islamofascists" hiding under every bed. They see the AKP as an "Islamic" party and are naturally suspicious of everything that the AKP does.
On the other hand there are the more sophisticated observers who are more sympathetic to the AKP, mainly because the AKP is taking on Turkey's military leaders through the Ergenekon trial and other means. These people recite the usual talking points: Turkey's "secular elite" constitute an "undemocratic" Kemalist dictatorship that the AKP and others are heroically trying to overturn, blah, blah, blah....
Look, for example, at Juan Cole's discussion of the referendum results in Informed Comment. Reading this piece, you'd get the impression that the only "elite" in Turkey is the "militant" secular elite—as if the monied supporters of the AKP do not represent a financial and political elite of their own! To talk so uncritically about the "secular elite" of Turkey—much of which consists of school teachers, civil servants, and others who are scraping to get by financially—represents an attitude about Turkey rooted in 1983.
Apparently, people seem to think that democratic life will somehow be better in Turkey under the auspices of an authoritarian political party than under the military-bureaucratic coalition that has been running the Republic of Turkey for most of its existence.
The AKP is only fighting fire with fire in its prosecution of the Ergenekon trial, but if the party is successful in crushing the influence of the military my fear is that this influence will be filled by the AKP itself, not civil society more generally. Anyone who thinks the AKP is solely interested in advancing the cause of democracy in Turkey should pay more attention to the party's attacks on the media.
Yes, it's bad that the military in Turkey has, for years, pushed certain types of political movements ("Islamic" parties, "Kurdish" parties, "Marxist" parties prior to the 1980s) out of the political process. And, if many of the country's current military leaders had their way, they'd close the AKP right away.
But how does that make the AKP "democratic?" How does providing the AKP with the power to add 6 members to the constitutional court "expand the range of liberties" (to use Cole's term) in Turkey?
We've seen this before. The Ergenekon trial began as an investigation into state crimes against citizens, and has since been transformed into a weapon used against the AKP's political enemies not only in the military, but also in the media and in civil society. But the AKP has constantly characterized the trial as a fight against "coup-plotters" in the military and elsewhere, charges which have been repeated thousands of times by people writing on Turkey who nevertheless don't seem to know much about Turkish politics.
"Yes" poster evoking execution of former Turkish PM Adnan Menderes. The poster reads "Yes for democracy and against military coups"
Now we're getting "democracy" and "liberty" coming out of a referendum that, once again, puts power in the hands of the AKP. Once again, the AKP has raised the specter of military intervention (the date of the referendum, Sept. 12, is the anniversary of the brutal military takeover of 1980) to convince enough people that this power should be in the hands of the AKP, rather than the permanent government. And, once again, guess who is swallowing this narrative uncritically?
Yes, the military is being weakened, but look who is getting stronger and stronger.....
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"The referendum, as I discussed in my post yesterday, permits Turkey's AKP government to expand the country's constitutional court from 11 to 17 members in a move reminiscent of FDR's court-packing scheme from 1937."
My sense is that the AKP-court-packing potential of the expansion of the constitutional court is too easily overstated. As I understand it, it's not the case that parliament and president will get to pick the six new members as the earlier post suggests. The four substitute members of the current court will bcome full members, which takes its membership up to 15. (Granted, this process isn't without its problems - a few weeks ago on my blog I highlighted concerns about the manner in which Alparslan Altan became a substitute member of the court earlier this year.) These 15 members will continue on the 'new' court under the old rules - the new 12-year term limits won't apply to them.
So that leaves two new members out of 17 to be appointed. That on its own doesn't sound like a recipe for overnight court-packing in my view. (Also, though I'm still not entirely clear as to the mechanics of these two new members' appointment, in most cases court members are selected from short-lists provided to the president/parliament, rather than being chosen on a purely discretionary basis.)
A second question relates to the impact of the changes on the longer-term development of the court in the years/decades ahead, as old members retire and new ones are appointed under the provisions just approved. Here, the most controversial change has been the granting of appointment/selection powers for three judges to the parliament. Now as long as the AKP is dominant in parliament, then this change clearly increases the party's power in relation to appointments to the court. But for the opposition to suggest that it entrenches that kind of AKP power on a quasi-permanent basis suggests an alarming (and in my view unwarranted) degree of pessimism about the prospect of a non-AKP government being elected in Turkey. As the balance of power in parliament shifts, so will this judicial influence.
A less party-focused criticism of the move to give parliament a role in selecting the court's judges is that it gives the executive too much power over the judiciary - the argument being that the Turkish parliament is a creature of the executive. That latter point may well be true, but I don't see how it can be the case that new powers for the legislature _increase_ the executive's hold over the constitutional court, because under the old system the executive (president) already appointed everyone to the court.
None of this is offered in active support of the changes. I'm just not sure that they're as drastic a departure from the status quo as is sometimes suggested. (Also, all of the above relates to the constitutional court - I'm less clear about the details and implications of the changes to the Supreme Board of Judges and Prosecutors (HSYK).)
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The four substitute members of the current court will come full members, which takes its membership up to 15. (Granted, this process isn't without its problems - a few weeks ago on my blog I highlighted concerns about the manner in which Alparslan Altan became a substitute member of the court earlier this year.) These 15 members will continue on the 'new' court under the old rules - the new 12-year term limits won't apply to them.
So that leaves two new members out of 17 to be appointed.
...
So this isn't problematic? This is something that you'd be okay with in your own country?
Who appointed the four substitute members to their current positions? Are they, or most of them, not AKP appointees? I have no idea, but perhaps you do.
I don't know, perhaps I'm too cynical but my sense is that the AKP wouldn't have proposed these changes unless they felt they were in the interest of the AKP and the issues that they identify with. You don't feel this way?
Next year the AKP wants to propose a new constitution and, one day, the Ergenekon business is going tocome to an end. A packed court ruling on the side of the AKP could really end up being helpful both domestically and abroad.
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Of course it's still problematic, and in relation to the substitutes, I've flagged in thecomment the fact that there are alarm bells ringing about at least one of them. But the fact that it might not be as problematic as is sometimes suggested is important - all we have on offer in terms of Turkish constitutionalism are degrees of problematic, so the exercise of trying to gauge as accurately as possible just how problematic any particular proposal is has its merits. It's in that spirit that I threw into the mix a few of the procedural elements...
My main point was simply that the effect of the changes isn't as stark as AKP/Erdogan waking up the morning after the referendum with a blank piece of paper on which they can write the names of whomsoever they'd like to see placed on the court.
Are the changes in the AKP's interests? Yes. And they will continue to be so as long as AKP remains electorally dominant (longer, of course, if it were to push through a new constitution that were morecomprehensively in its interests). That said - maybe I'm being naive, or getting the electoral and parliamentary arithmetic wrong here - but the results of the last two general elections flattered the AKP. Their underlying support is less than their parliamentary majorities in the last two parliaments would suggest, and I think they may struggle to retain an overall majority in 2011. Much rests on whether the opposition manages to get and keep its act together, and learns to peel voters back away from the AKP. To be honest, at the moment I'm more concerned about the democratic/constitutional risks to Turkey from the lack of an effective/intelligent/disciplined opposition than I am about the amendments that have been just passed.
On the new constitution, here again I hope the opposition gets on the front foot pretty quickly both in terms of the mechanics that will be used to draft the new constitution (e.g., by calling Erdogan's democratic bluff and pushing for a broad constituent assembly, rather than waiting to see an AKP proposal), and in terms of what they want to see in there (e.g., on separation of powers, role of religion, individual rights). At the moment, the AKP is running rings around everyone in terms of positioning itself as the party of democratising reform. The strategy of focusing solely on the non/anti-democratic potential of their reforms doesn't work - they need to be countered with alternative proposals backed up with a credible account of why they're more desirable/democratic/etc...
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Perhaps one could look at what the judiciary did under the former set up to see what AKP is after. From memory:
-- The 367 and headscarf decisions.
-- The closure case.
-- Interference with privatizations and land sales.
-- Attempts to change Ergenekon prosecutors.
-- Ordering and conducting searches for possible abuses of power in surveillance and wire tapping.
-- Going after various cemaat organizations in Erzincan.
-- (this partially tongue in cheek, though that it is so is revealing) The lawsuit about the PM giving about US$ 1M each to members of the Turkish national basketball team.
So we can probably expect the following:
-- Interference by the constitutional court will be minimal or non-existent for the new constitutional amendments. This is essential if the 'unchangeable' articles will be changed.
-- Privatizations and sales will go forward unimpeded. This is more important than people might realize because a lot of support (domestic and foreign) can be bought by even a few hundred acres of Istanbul real estate and a zoning variance. (This is why people here just laughed at the news about the $25M donation by Iran. People believe that just controlling Istanbul Metropolitan Municipality gives a political party access to far more with no real risk.)
-- Ergenekon prosecutors will be safe and will have the ability to keep on doing whatever it is they were doing.
-- If the cemaats will be bothered at all, it probably won't be on the initiative of prosecutors alone. (The AKP itself might choose to break their power, but it is unlikely that we'll see prosecutors do this at inopportune times for the AKP.)
I am not sure one really needs to change many judges for these. Whatever influence was exerted to the judiciary from elsewhere is probably tamed now, anyway. On top of that, when the avenues for professional advancement have been re-routed, the professionals' behaviour might change.
There is also the idea that the ability for individuals to apply to the Constitutional Court will stop people from going to the ECHR (my understanding is that the domestic options have to be exhausted before the European court will hear cases). Now that people are beginning to apply to the ECHR for long Ergenekon detainments and such, perhaps that amendment is not as innocuous as it appears. Keeping the judicial process inside Turkey for an additional few years may be crucial.
I haven't done any research on any of this, so piles of salt are rcommended. I'd wecome corrections.
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Bulent, good points all around--I hadn't heard about the lawsuit re the FIBA finals losers. I couldn't agree with you more re the AKP not really needing that many more sympathetic judges.
Aengus: Yeah, I agree that constitutionalism in Turkey, as is the case everywhere else in the world, means dealing with degrees of problematic. But we're talking about a constitutionalist tradition in the OE/TC going back to the 1870s--this isn't something that started yesterday.
The AKP isn't doing what it's doing simply because of an imperfect or ill-developed tradition of constitutionalism, but rather because they want the advantages that will come with a sympathetic judiciary. They know exactly what they're doing.
I agree with you re the AKP's placement of itself alongside the buzzwords of "democratization" and "civilian rule." As long as the CHP looks like it's looking to the military to solve the AKP, they're not going to improve their electoral fortunes.
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Jim, a few links:
On the lawsuit about the PM's generosity: http://stresabi.wordpresscom/2010/09/16/tam-destek/
Another thing and this probably ties in with Aengus's point in some vague sense. Our 'liberals' appear to be unprincipled, and the opposition is illiberal anyway so the following series of events happen w/o anyone screaming bloody murder: http://kamilpashacom/?p=3387comment-6193
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