The Constitutional System of Turkey: 1876 to the Present (review)

This is a short but fact-filled analysis of the current 1982 Turkish constitution written by the generals who seized power in 1980 and why it needs to be replaced. "It is generally agreed that the basic philosophy of the 1982 Constitution was to protect the state and its authority against its citizens rather than to safeguard individuals against the encroachments of the state authority" (p. 19). Thus, most observers agree that it needs to be replaced by a more democratic one that reflects Turkey's new political maturity, and promotes greater civil liberties befitting a candidate for EU accession, while also contributing to a solution to the long-festering Kurdish problem. Ergun Özbudun, a professor of political science and constitutional law at Bilkent University in Turkey, has an enormous amount of experience regarding this subject and reflects it ably in this excellent analysis.

His first chapter surveys Turkey's constitutional background where he notes that Turkey "is the first Muslim-majority country that combines a reasonably stable democratic regime with a thoroughly secular legal system" (p. 1). After briefly examining the constitutions of 1876, 1921, 1924, 1961, and the present one in 1982, however, the author points out that the constitutional record "has been marred by periods of absolutist monarchy (1878-1908), de facto authoritarian single-party domination (1913-1918), established single-party regime (1925-1946), and military interventions (1960, 1971, 1980, 1997). These interruptions are perhaps a key to Turkey's failure to consolidate a liberal democracy" (p. 17). He also notes a "pattern of revolution from above where major political and social reforms were initiated by the state elites ... [and that] none of these constitutions were made by broadly representative and freely elected constituent or legislative assemblies" (ibid.).

His second chapter analyzes the basic characteristics of the present 1982 constitution, which are authoritarian, statist, and tutelary, and protect "the national and unitary state and the principle of secularism, the two basic pillars of the Kemalist ideology" (p. 124). Article 4, for example, declares that the Preamble and the first three articles that established the present system are unamendable. Thus, although several articles of the 1982 constitution do list fundamental civil liberties also found in modern Western constitutions, the grounds for restricting them are so severe and numerous that the document has been satirically referred to by some of its many critics as a "yes, but Constitution" (p. 50). In addition, as the price for relinquishing power to the civilians, the military obtained important "exit guaranties" (p. 20) regarding its powers, privileges, and immunities.

Furthermore, political parties have to conform to these rules regarding the indivisible and secular integrity of the country or risk being banned under the Law on Political Parties, which is a product of the 1982 Constitution's mentality. "The Turkish Constitutional Court has implemented these provisions with an excessive zeal and rigidity. Thus, it has closed down ... 19 parties under the 1982 Constitution" (p. 24). In addition, a new Anti-Terrorism Law (2006) has the potential to make anybody who expresses an idea contrary to the official state ideology guilty of being a "terrorist," even when the accused may be completely opposed to the use of violence. Thus, by the end of 2011, thousands of ethnic Kurds or those in sympathy with them were in prison for violating various provisions of this law even though they had acted only peacefully.

As recently as December 11, 2009 the Constitutional Court banned the pro-Kurdish Democratic Society Party (DTP). Even more strikingly, in 2008, the Court came within just one vote from banning the governing Justice and Development Party (AKP) of Prime Minister Recep Tayyip Erdogan because of its supposed challenge to secularism when it enacted an amendment to the Constitution legalizing the wearing of head-scarves in universities. If the ban had been carried, the Court would have implemented a judicial coup that would have overturned the results of the national elections held on July 22, 2007...