Potentials and Pitfalls: Moving Forward with Constitutional Reform

The constitutional reform package is expected to be discussed in the General Assembly on Monday. Earlier this week, the parliament's constitutional commission approved all the articles in the package, following a few missteps by the AKP that occurred when the party introduced the proposal to parliament after visiting opposition political parties and listening to some input from government institutions and civil society groups. [For the package as it stood March 30 (revisions have been made since), click here.] [For background, see March 26 and March 7 posts.]

The CHP and the MHP have both opposed the package, while the Kurdish BDP has tried to use its leverage to make the package more comprehensive. Opposition from the CHP argues the package is little but an attempt by the AKP to consolidate its power, threatening the separation of powers so that it can assure its own dominance in electoral politics, and for some, realize an anti-secularist agenda. The MHP has stood by its position that the constitution should be amended, but that the process should follow the next set of parliamentary elections, currently slated for July 2011. In the interim, the MHP has proposed a compromise commission in which future amendments might be discussed. Some figures in the judiciary, most notably Supreme Court of Appeals Chairman Hasan Gerceker, as well as establishment judicial organizations such as Judges and Prosecutors Association (YARSAV), have been quite vocal in their opposition, not hesitating to register their objections publicly. [A bit of a sidenote, but revealing of some of the animosity at play here, is a recent lawsuit filed by Constitutional Court President Hasim Kilic after former Supreme Court of Appeals Chief Prosecutor Sabih Kanadoğlu referred to Kilic as a "goat."]

Liberals and reformers have widely supported the reform package as a small step in the right direction, though there is plenty of criticism that the package should go further and a fair amount of concern that the AKP is, at least in part, acting its own interests so as to protect itself from a future closure case. Some reformers have argued that the piecemeal reform process currently underway, especially given the perception that the government is acting in its own self-interests, is a waste of valuable political capital, and that the whole constitution should be amended. There are certainly both short and long-term interests at work here for the government, and of course, the short-term interest of saving itself from a possible closure case and giving government-friendly procescutors more control in the Ergenekon investigation is at the forefront of much of the criticism. The AKP government is particularly vulnerable to some of the arguments since the reform package was introduced soon after its standoff with the judiciary and military in February and rumors of a possible closure case. When the government did not include lowering the current 10 percent threshold parties must meet to enter parliament, it did little to endear itself with skeptics. Yet, despite the imperfection of reform efforts at hand and interests involved, there are plenty who are willing to go along with the AKP's efforts to see the proposed reforms into law.

Starting Monday, the package will be subject to a first round of discussions in parliament to be followed by a second. At the end of the second round, which is not expected until mid-May, a plenary vote will be held on each proposed amendment, followed by a vote on the reform package as a whole. The AKP currently controls 3/5 of the parliament, and should it get 3/5 of the vote on all of the amendments and the package vote (330 votes), the package will land on the desk of President Gul. At this point, President Gul will have 15 days to examine the amendments and send them to a popular referendum. Under newly passed law reducing the time frame in which a referendum can be held following such a move, a period of 60 days will pass wherein the CHP, should it get the support of 110 MPs (CHP holds 97 seats), may be able to appeal to the Constitutional Court to annul or stay some of the amendments in the package. However, such a move by the party would not cancel the referendum. Though there is still some question as to whether the CHP could do this, former President Sezer recently gave the government a bit of a victory when he weighed in that the CHP must wait for the referendum before making such an application. The referendum would not occur until, at the earliest, late July, meaning that there will be plenty of time for any number of developments in the interim. In short, we are in for a long, and likely tumultuous, next few months.

A bit of a stir occurred soon after the package was introduced to parliament when CHP leader Deniz Baykal requested that President Gul break the package into parts should it end up on his desk with 3/5 of parliamentarians support, but short of the 2/3 required for the amendments therein to come law. The CHP does not want to see the articles pertaining to the appointment of judges to the Constitutional Court and officials to the Supreme Council of Judges and Prosecutors (HSYK) become law, but again, these are at the heart of the reform process and are the principal articles drafted by the short-term interests most acknowledge to be the impetus behind the whole reform effort. While Gul has this authority, it is unlikely that he will make such a move. As to the possiblity of a similar "compromise" between the CHP and the AKP, the chances of a deal being brokered are slim to none. Curiously, Baykal has recently added more conditions to the "compromise" offer, asking that the key articles be dropped from consideration until the next parliamentary elections and making his offer all the less palatable. Some experts have argued that there is merit in breaking the referendum into parts, that all would likely pass refeerndum, and that such a happening would certainly add more legitimacy to the process (for example, see Ayse Karabat's reportage on a recent panel held by the Foundation for Political, Economic and Social Research (SETA)).

As to process, there is also concern about civil society not being more involved in the process, though the government did change some elements in the package -- most notably, those pertaining to rights/protections for women and children -- after hearing from some groups. The civil society end-of-things -- far from peace, love, and granola -- has not been without disturbances. A demonstration organized by the Platform for a Civil and Democratic Constitution ended with tear gas and clashes with police when things went awry last Saturday. The demonstration drew representatives and members of the BDP, the Socialist Democracy Party (SDP) along with the Human Rights Association (İHD), the Confederation of Trade Unions of Public Employees (KESK), Young Civilians, the Turkish Medical Association, the Peace and Democracy Movement and the '78'ers' Initiative.

Two pieces worth a read are Atilla Yayla's recent op/ed in Today's Zaman, and Bilgi University Professor Ilter Turan's analysis in a publication of the German Marshall Fund's On Turkey series. Yayla looks at constitutional reform efforts as a re-setting of the balances between democratic and bureacratic power, the latter of which has been dominant in Turkey's constitutional history. Turan's analysis is more holistic, and while drawing the same point, presents a balanced, concise analysis of the constitutional reform package and the process at hand.