10 February 2021 12:26
There is a serious, devious trap as far as the inviolable articles are concerned and a serious concealment. This is the stifling of Turkey’s thirst and pluralism as it strives for democracy.
Serpil İLGÜN
İstanbul
With plenty to occupy the political and social agenda, what with the HDP adding to the intensifying flurry of visits within the Nation Alliance, the power holder’s heavy handed response to the Bosphorus University protests, increasing food prices and unemployment, the blocking of workers’ and wage earners’ struggle in quest for rights, uncertainty as to whether schools will open and a whole host of other issues that could be added, President Erdoğan shifted the political agenda with his mooting of a new constitution at the start of the week.
What lies behind the mooting of a new constitution to which partner Bahçeli gave full support the following day? How can a new constitution be discussed and debated in an atmosphere in which an arrest order is passed even for the exceptionally polite note, “You are blocking the road” stuck to a car windscreen because the car owner was a prosecutor? What should be the framework of a democratic, egalitarian constitution?
We spoke to CHP Member of Parliament and Parliamentary Constitutional Commission Member Prof. Dr. İbrahim Ö. Kaboğlu.
Erdoğan’s mooting of a new civilian, democratic constitution is being treated as a tactical attempt to talk his way out of the strained situation he finds himself in, a changing of the agenda, etc. What is your take? Is Erdoğan changing the agenda or does he wish to perfect his monopoly over the state and government through his party chairship?
On hearing Erdoğan’s comment, I thought, “I wonder if the realization might have finally sunk in with Erdoğan that non-existent constitutional organs cannot be operated as if they exist.” The experience of the past two and a half to three years shows this to be a non-starter, it does not work and the time has come for a constitutional initiative and for self-criticism. Erdoğan said a second thing. He said, “Transparency,” he said, “Lucidity.” I said, if so, “This is also important.” Because, you’ll recall, the 21-article talks held in November 2016 were done behind closed doors. Who held them, where they did so and where the minutes are – these are absent. If so, he also wants to compensate for this. He said a third thing, did Erdoğan. He said, “All parties.” Saying all parties encompasses the whole gamut from the AKP to the HDP. This means that the legitimization of the HDP is also on the cards. As such, Erdoğan’s words brought question marks to mind. I mean the constitutional question cropping up like this has not happened until today. Is self-criticism being undertaken over what they call the Presidential System of Government (PSoG), while we call it the creation of a monopoly over the state and government through party chairship? While wondering whether an approximation of the constitution to a constitutional democracy and a cleansing, a purging, of rules contrary to a constitutional democracy was in the offing (of course, I, as a jurist, do not impute intention but try to read the words proffered objectively), the evening television screens, mention having been made of the constitution a mere hour ago, saw a barrage of interpretations that it was a plot and almost minute-by-minute constitutional debate including the Palace-hanger on media and persons with academic credentials. But it is curious that People’s Alliance-partner Bahçeli made an announcement the following day and this put paid to talk redolent of some kind of democratic initiative Erdoğan’s pronouncement had prompted, because he said, “We have our red line and this is the PSoG! We are changing the constitution to fortify this.” In terms of method, Bahçeli pressed the button in 2016 saying, “The President is violating the constitution and committing a constitutional crime. Let the President either align himself with the constitution or let us change the constitution along presidential lines” and the constitution was amended along presidential lines.
Is Erdoğan now the first to press the button?
Yes, the President fired the first bullet. And Bahçeli set the bounds before 24 hours had passed. I don’t know if there were prior discussions among the duo but I have to suffice with the announcements made by Mr Erdoğan and Mr Bahçeli. As such, rather than an encompassing and embracing constitutional initiative within society to be conducted transparently through negotiations with the participation of all parties, what was said was, through compulsion, “We’ll make regulation that perfects single-man rule” out of the provisions of Article 104 onwards that is undemocratic, i.e. contrary to Article 2 of the Constitution. This amounted to him having said, “We might also change the other provisions of the constitution so as to facilitate single-man rule.” With this so, of course, we come face to face with a truth, painful as it may be. This is that Mr Bahçeli is also essentially becoming partner to an implementation he had said amounted to the commission of a crime four years earlier. If a crime was being committed, then the commission of a crime in personal terms was involved. Now, given that more blatant constitutional violations are involved compared to the situation at that time, the commission of a serial constitutional crime is involved here.
Along with the need to adapt the Constitution to the PSoG, Bahçeli said, “The Republic of Turkey is a national and unitary state based on a single people, single state, single country, single flag and single language and the new constitution must preserve this!” Haven’t these words put paid to the promise of democracy?
The big trap here is as follows. Our first determination initially is that the status Mr Erdoğan is still benefitting from and Bahçeli supports is external to democracy. We have to well and truly stress this. Secondly, I wish to emphasise both the danger and the contradiction inherent in the comment Bahçeli made. Bahçeli says, “We cannot let the inviolable provisions of the Constitution be assailed!” But where opinions diverge is that I say the regulation made in 2017 is contrary to Article 2 and the provisions of Articles 104 onward. So, Article 2, i.e. the article, “The Republic of Turkey is a democratic, secular and social constitutional state based on human rights,” became an article that to a large extent voided the content in 2017. Could you have conceived prior to 2017 that the Head of Religious Affairs would perform prayers with a sword! This is a dagger blow to secularism. So, here, Bahçeli, while making a show of standing up for the inviolable article, wishes to turn it into a for-show article and void its content and essence.
Secondly, talk of a single people, single language, single country… The Republic of Turkey is a single state in any case. Well, those living there by way of people? They are fellow citizens of the Republic of Turkey. There is thus no need for a procedure that goes in for marking out as Turk or not, this or that. I, as a constitutionalist, as a patriot, interpret the provisions of the Constitution in an encompassing manner. However, were I to endeavour to ignore this and reduce the Republic of Turkey in the first three Articles in the Constitution to a certain ethnicity, then I would betray Turkey’s integrity. Everyone is an equal citizen and, if we are to pledge what principles we must take forward by way of republican attainments, these are equality, fellow citizenship and secularism. Equal citizenship is at the same time constitutional citizenship. I think I can defend the integrity of the country to the extent that I can defend it within this trio. I also approach this from the viewpoint of there being different languages, different native languages, and it being possible for these languages to be spoken and be learnt. In such terms, the language Bahçeli uses is an exceptionally dangerous language. I, too, defend the unity of the Republic of Turkey, as he undoubtedly does, but this unity is to be established through ways and means that foster solutions within embracing and encompassing legal methodology. Not through constantly stressing the dominance of one ethnicity over other ethnicities.
There may be those who wonder what concern and interest İbrahim Kaboğlu, as a respected jurist and politician who has devoted his life to the constitution, feels towards the mooting of a new constitution by Erdoğan with so much by way of antidemocratic practices going on before our eyes and Constitutional Court and European Court of Human Rights rulings being disregarded?
Well, given that he is explicitly making a pronouncement of this kind for the first time, whether he will take certain steps and if he will say the following: “I will henceforth adhere to constitutional Article 138 (the rule of the independence of courts), I will not make comments before, during and following the judicial process, and I will stand down as party chair,” this is the first rule more or less implicit in such a pronouncement. Second, if he will say, “Yes, in 2017, we hastily amended the constitution out of coup-inspired trepidation or fear and pushed this through but now we’ve seen two and half years’ practice and let’s correct this a bit now, we went too far so let’s balance this out?” And, of course, with him saying, “Transparent” in that pronouncement, I asked, “Is he speaking along these lines with a view to both legitimizing and correcting this?” My interest was piqued for this reason. But Bahçeli put this on its true footing before twenty-four hours had passed.
It emerged from Bahçeli’s comments that there are two aims. The first aim is - a wide spectrum from the CHP to the HDP is saying, “We want to return to a parliamentary regime,” and everyone is making preparations and preparing drafts to this end. At the second stage they will come together, speak and engage in public debate. Erdoğan and his partner wanted to conceal this. Secondly, they wanted to add the element of legitimacy to the constitutional order under which they know fine well the amendment they made in 2017 is not legitimate and is not democratic and to make it more permanent.
Interpretations are also doing the rounds that, with it getting a bit harder with each passing day to muster 50 per cent+1, there is talk of a wish to reduce this to 40 per cent+1 by means of constitutional amendment and additionally, with it brought to mind the president can be elected at most twice, to remove this obstacle. Where do you stand?
This is an interpretation and so this is possible. Bahçeli’s comments do not dispel this. Of course, there may be a wish to change the rules of the game and this can only be through constitutional amendment. And Bahçeli says, “We are perfecting the PSoG.” Alongside this, there may also be an intention to reduce the effectiveness of the Constitutional Court even further, its effectiveness in any case reduced, and turn it into a structure that submits matters for the power holders to order on. In fact, Bahçeli said this a few months ago.
Erdoğan holding talks with certain actors within and outside the Nation Alliance has generally been interpreted as a split in the Nation Alliance. Can the mooting of a new constitution further entrench this tactic?
There may be wide-ranging aims here. That is, his endeavour to split the opposition had actually started, like you say, and was attaining permanence. He has made it more visible of late with both his consultations and his speeches. But recently, especially for two months, a constitutional agenda has begun to take shape. How will the parliamentary system function, how will the government be formed and how will it be brought down? The opposition, conversely, has tried to bring the high cost of living, unemployment and poverty onto the agenda. So, the mooting of the making of a new constitution is targeting a variety of goals. One, to divert the agenda and pull the opposition apart and create doubt, and, secondly, in connection with this, as seen in the power holders’ approach to the events we have witnessed at Bosphorus University, to further accentuate that which is different, for example the LGBT, employ ostracizing discourse, stifle libertarian thinking as far as possible such as by raiding students’ homes and making arrests, and, as I have frequently mentioned, a blockage of the routes for a changeover of political power that has become more apparent since 2014. But there is a serious, devious trap as far as the inviolable articles are concerned and a serious concealment, and this is the stifling of Turkey’s thirst and pluralism as it strives for democracy. For as long as they stifle that pluralism, this means society being shaped in terms of Mr Erdoğan’s own outlook and never at all accommodating sections of society oriented towards the struggle for contemporary secular human rights and democracy.
Before the constitutional debate, debate on the political agenda was about the promise of reform in the economy, law and democracy. According to Hürriyet columnist Abdülkadir Selvi, work is in progress on fresh judicial reform and the Political Parties Law and Election Law. Both matters are of such urgency that they cannot await constitutional amendment. Why is Erdoğan in a hurry?
There is initially a need to draw a distinction between the Election Law and the Political Parties Law. From the point of view that, as we have just mentioned, the Election Law and the Political Parties Law achieve nothing under current constitutional practice. I mean, for as long as the president is party chair it is impossible for political parties to be equal because his party manages state resources and so the principle of equality of votes also vanishes. As such, it is impossible for the Election Law and the Political Parties Law to achieve anything unless the constitution is democratized and the president is separated from party chairship. If anything at all, it will have a perfecting effect on single-man rule, single-man rule set up over the state and government through the party. We must absolutely get this across to the masses.
With judicial reform, there is nevertheless a situation independent of efforts around the constitution in that the current constitutional provisions are essentially conducive to ensuring the minimum conditions for a fair trial. The crucial issue is that the administration and executive’s failure to give the courts a free hand under their political preferences, their interference. For as long as the courts have no free hand, for as long as the Turkish President says, “Demirtaş cannot be released and I will never let Kavala be released,” however much reform is made it will be meaningless.
Various problems were also experienced in the parliamentary system. How will strengthening the system surmount these problems? Can you give any hints as to the CHP’s draft constitution preparations? How will it be structured?
The strengthened parliamentary regime is not a constitutional law term. We constitutionalists actually speak of a “rationalized parliamentary regime,” that is, governments are easy to form and hard to bring down. The rules to this effect must as far as possible be drafted in concrete form in the constitution; this is how we see it. The notions of strengthened or improved are rather used politically. The point I wish to draw attention to is that it is not possible to make do with constitutional amendment revolving around the parliamentary regime. Constitutional amendment revolving around a democratic constitutional state is called for. That’s what’s being worked on anyway.
Another thing – that in fact is the thrust of my proposals – what kind of architectural structure will be in the draft constitutional text regarding for example the segments we call public organs? This is because the architectural structure, the draft, in this regard will stipulate the degree of citizens’ freedom. That is, you guarantee citizens’ rights and freedoms to the extent that you can achieve judicial independence, that you can provide for mutual balance and oversight among the legislative and executive and you enshrine citizens’ power to approve the budget. So, how, without being restricted to technical matters such as how the government is to be formed and how it is to be brought down, are we to transport for example the voter’s position into that resolve, in democratizing parliament? We must democratize the routes to parliament. We must democratize parliament’s functioning. Hence, talk just of amending the parliamentary system strikes me as restrictive and a “democratic constitutional state constitution” goes further towards meeting the kind of thing we’re aiming at. Palace media devotees say, “You want the parliamentary system but where is your majority to do this?” while in fact there is no majority on either side. Hence, the road map is important.
What kind of map?
Correctly informing society about a democratic and embracing constitution. And, in this context, to pledge a democratic constitution. We are embarking on the election with the pledge of a constitution without broaching whether the election is to be early or on time. And this is our draft and if we get the majority we’ll govern Turkey by these substantive rules and in such terms we want parliament to be democratic and so, just as we have proposed a reduction of the threshold from ten per cent to zero per cent, phased pledges and the resolve of the political will must be mutually consistent. Democratic opposition parties must be able to set this out. And democratic opposition parties must not be afraid of one another. I have seen in this parliament that political parties which cooperate tacitly or openly to secure a vote in the same direction either in commissions or in the plenary session give the message in the media or in society that, “We are not together.” They shouldn’t do this.
The HDP is treated both by the ruling block and under the power holders’ pressure as a party that is reluctant to be seen together on the Nation Alliance wing. We know the HDP, which is making party visits nowadays, is drawing up a draft. All right, but how is there to be discussion and agreement on demands under such circumstances?
The point that parties must take stock of here is that not every party belonging to the opposition need employ the same concepts. However, at least the Future Party, for instance, may not simultaneously employ the trio of equality, citizenship and secularism that I do, but if it has an approach that does not fly in the face of this concept or if points not included in my report are included there, the important thing is if we can come into a common alignment on the properties of the republic and a democratic and secular constitutional state based on human rights then giving meaning to them becomes easier. What is incumbent on us and is at the same time our difficulty here is to interpret as comprehensively as possible constitutional concepts. What may ease things is that, as far as I know, there are academics and constitutionalists in the Democracy and Progress Party and the Good Party. There is a fair degree of resemblance in the language we use as academics and constitutionalists. This must be worked on separately at the second stage. As such, I imagine the parties’ reports are being compiled with care, that is, an approach is adopted so as not to “conflict fully with the others.”
Will there also be a stage of this draft at which extra-parliamentary parties and mass organizations are consulted for their views?
There is such a disposition. I think there is a disposition for professional institutions, parties and mass organizations outside parliament to be included in the process somehow, and this is how it should be. We must also attach importance to participation without becoming too dissipated or pushing things down a blind alley too much.
Members of the police and intelligence agency being entitled to use Turkish Armed Forces weapons, the appointing of trustees to mass organizations and the seizure of their property, dispensing with the Istanbul Convention, the linking of all kinds of criticism with terrorists and terrorism, the further cramping of the space for politics… How can the constitution be talked about in this atmosphere?
There is no doubt that our job is far harder than before 16 April 2017. I accept that rebuilding is very hard, but our advantage is that the practice of three years has demonstrated that Turkey is ungovernable by means of this single-person rule’s party chairship. We have to be very adept in getting this across. We may not succeed at all and Turkey will in some way move into authoritarianism and, as such, we say that the constitution is a document of life. We must deal with these areas. We must make the demographic that said “Yes” in 2017 believe in the need for a democratic constitution. To this end, not what separates us, but our common ground must be accentuated. I can criticize the 1924 Constitution, but I cannot say we do not long for the majoritarian system in the 1924 Constitution. In fact, we’d even make do with the ’82 Constitution just now. I am speaking as somebody who criticized the ’82 Constitution in classes for 30-40 years. Let’s face it, even a return to before 2017 would be a noteworthy improvement. This does not mean we should return to before 2017 but there is no possible comparison between the current situation and previous situations. Hence, to the extent possible, democratic opposition similarities should be brought to the fore, democratic partnership should be fostered and human rights, a constitutional state and democracy should be accentuated. Otherwise, I have to say we cannot move beyond self-deception for as long as the refrain, “This party is more dangerous than Covid” continues.
Last November, Good Party member of parliament Ümit Özdağ, who had not yet been expelled, accused the CHP, Good Party, Felicity Party and the HDP of working on a constitution under your chairship; the parties denied this and the ruling block exploited this. Not with a view to reopening the same controversy, the power holders, who had accused the parties of working together on a constitution, are now calling on the opposition to do just this. What do you have so say about the irony this entails?
You have established a very important connection. Let me make a correction here, this was not a draft constitution but was a report in search of common principles. Secondly, as I said a little earlier, they themselves made the proposed constitution behind closed doors in 2016. So, I try to use a cautious language when speaking of the constitution here because the constitution is a serious matter that connects the present and the past. But that person used the constitution as material for blackmail with his own future in mind. I thus steered clear of getting involved too often because constitutional debate should not be engaged in with such people.
Another point is that the President didn’t say, “Except the HDP.” You sit opposite one another in legislative activity so how in such an environment are you going to say, “No, it will not take part!” as to sitting at the same table devoted to the constitution. Those holding office and position must speak more responsibly.
(Translated by Tim DRAYTON)
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