The Middle East Channel

Turkey’s referendum: thwarting the specter of coup d’etat

On Sunday September 12th, 2010, Turkey voted "yes" in a referendum to a package of amendments by a wide margin (58 percent yes; 42 percent no) with a high level of participation (77.5 percent) despite the pro-Kurdish Peace and Democracy Party's (BDP) boycott. The amendments were designed to restrict the power of the military and the judicial bureaucracy in Turkey that originated from the 1982 junta-made Turkish constitution. The immediate political consequence of the referendum will be a serious relaxation of domestic political tensions, which have been undergirded for over 50 years by the one constant in Turkish politics: the ever present threat of military coup.

Referendum results will affect Turkish domestic politics and Turkish foreign policy in fundamental ways. Domestically, the results will bolster democratic reforms by preventing the judicial bureaucracy's ability to play an obstructionist role. Moreover, the referendum was a de facto conditional vote of confidence for the ruling AK Party's foreign policy given the recent difficult months Turkish foreign policy has had to face. The results will be interpreted as moral and political support for the government's "zero-problem with neighbors" policy.

The referendum ultimately has to be viewed within the lens of Turkey's long battle against military rule. Indeed, modern Republican Turkish history is rife with successful military coups, including those in 1960, 1971, and 1980 (it was the latter coup which gave birth to the current constitution). Add to these the so-called "post-modern coup" of 1997 and the failed "e-coup" attempt in 2007, and one begins to understand that the possibility of a coup d'etat has been the specter of Turkish politics, laying in wait behind the scene and haunting political figures for decades. With the passage of the new constitutional amendments, the rule of law will have to be respected by all members of Turkish society, including the military.

Of singular importance to a democratic Turkey is the ability to now carry forth with a reckoning of its past through the full range of the law (i.e. trials) -- something that was impossible with the hitherto assured immunity for those who enacted the 1980 coup. A dark chapter in Turkish history can now be closed and a brighter more democratic future awaits it. In the long-run, the strength of Turkey's political institutions and the latitude of Turkey's civilian leaders to legislate and govern will be increased.

Turkish Prime Minister Tayyip Erdogan's track record for dealing with the pressure of military elites shows that a strong civilian political leader can do away with the threat of a coup. However, with this vote, the strength of political leadership vis-à-vis the traditional state elites will not be restricted to Erdogan's personal charisma. Instead, by eliminating the supremacy of military and civilian bureaucratic power over Turkish domestic and foreign policy, these amendments will give legal and structural guarantees to political figures, transforming Erdogan's personal success against state elites into an institutional characteristic of the Turkish political system.

The next step is the establishment of a new democratic constitution as promised by Erdogan. Up until now, substantive changes in the constitution have not been possible because of the highly politicized structure of the Constitutional Court. By changing the structure of the Constitutional Court, Sunday's vote will allow Turks to draft a new constitution after the 2011 elections. Sunday's vote paves the way for (if not guarantees) a civilian constitution in Turkey for the first time in 50 years.

A crucial, but often neglected, aspect of the constitutional debate has been the use of the referendum itself -- which has proven to be an important vehicle for structural democratic change in the Turkish political system under Erdogan's guidance. Back in 2007, after the e-memorandum by the military, which aimed to prevent then-Foreign Minister Abdullah Gul from acceding to the Presidency, Erdogan rejected the will of the military elites, challenged them, and called for an early election. After the election, Erdogan solved the impasse over the presidential election process by putting to a referendum the disagreement between his party and the state elites.

Referendum's had been used before in Turkish politics, but never to so directly challenge the will of traditional state elites. It was Ergodan's savvy politicking in shepherding the general public mood through referendum that allowed him to so effectively assert his party's aspirations. The result was impressive: Gül became president. In 2008, when Erdogan's party came close to being shut down due to a closure case opened by the judicial bureaucracy, Erdogan resorted to the same method: referendum. Sunday's vote proved that this method is one of the most effective, legitimate, and creative methods to change political dynamics in Turkey.

On the international scene, in the last six months, Turkish foreign policy and U.S.-Turkey relations experienced difficult times. The current political leadership has been under pressure from multiple international actors. Sometimes, this pressure was felt inside the country, as the integrity of AK Party's proactive foreign policy framework was brought into question. One example of this was the critique by the main opposition leader Kemal Kilicdaroglu on an Israeli TV Channel. The referendum results, giving a de facto stronger mandate to the AK Party's leadership for the rest of its term, display the public support for the AK Party's foreign policy. 

The referendum's result is likely to end discussions in Washington over the direction of Turkish foreign policy. The constitutional amendments were prepared in line with EU integration measures and they represent structural changes opening the way for accelerated EU reforms. If the current government can deliver on its promise to continue and increase the democratic reform process, we can expect Turkey's accession talks with the EU to gain momentum. Accordingly, the talk of Turkey's "axis shift" should subside in the long run as an important consequence of this referendum.

Overall, the referendum will make Turkey a more democratic and open society through the implementation of democratic reforms. Most importantly, it will make it clear that Turkey will be governed by civilian political leaders. Now, instead of delving into vicious ideological discussions of the ghosts of Turkey's past, it is time to watch how democratic changes are implemented and a new constitution is drafted to establish the rule of law.

Nuh Yilmaz is the director of the Washington D.C. office of SETA, a non-profit think tank based in Ankara, Turkey.

The Middle East Channel

Turkey’s referendum: creating constitutional checks and balances

In recent months, commentators have given warning of creeping Islamization in Turkey's domestic and foreign policy. Descriptions of the new "swagger" in Prime Minister Recep Tayyip Erdogan's approach to the Middle East are paired with allegations of an increasingly authoritarian style of government by the ruling AKP party. Many have seized upon this weekend's constitutional referendum in Turkey as evidence that the country's secular establishment has been displaced and Islamist forces are consolidating power. While the referendum followed a period of intense political polarization, this simplistic account of Islamist forces arrayed against embattled secularists is both wrong and dangerous.

The twenty-six constitutional amendments at issue in the referendum are difficult to criticize on substance. They include provisions that: empower civilian courts while reducing the jurisdiction of military courts; strengthen gender equality and protections for children, the elderly, veterans and the disabled; improve privacy rights and access to government records; expand collective bargaining rights; and remove immunities long afforded to those responsible for the 1980 military coup. The overwhelming effect of these provisions amounts to civilianizing the military coup-era constitution, strengthening individual freedoms and undertaking much-needed judicial reform. Unsurprisingly, then, the European Union gave its strong support to the amendment package and President Obama called to congratulate Prime Minister Erdogan on the outcome of the referendum.

Why, then, should these amendments have been treated as controversial? The main objections centered on two elements: procedurally, the amendments were offered as a single package rather than allowing the electorate to vote on each provision individually. More importantly, opposition groups saw provisions for changes to the composition and selection process of the constitutional court and a board to oversee judicial appointments as an attempt at court-packing that would undermine judicial independence. While procedurally it might have been preferable to offer the amendments for referendum individually, the substantive concerns about the judiciary are the core of the controversy and they are largely baseless.

The amendments in question increase the size of the Constitutional Court from 11 permanent and four alternate justices to 17 permanent justices. In addition, the democratically-elected parliament is accorded a role in the appointments procedure for the first time, enabling them to nominate candidates for three of the 17 seats on the expanded Court. With a parliamentary role in appointing fewer than 20 percent of the justices, this hardly amounts to court-packing even were the AKP guaranteed a durable parliamentary majority. Moreover, the transition to an expanded Court will occur by awarding the four current alternate justices -- chosen under the pre-amendment procedures favored by the opposition -- permanent seats. That leaves only two new seats to be filled on the expanded Court and they will be selected by the parliament from among nominations from the judiciary and bar associations. If there is to be court-packing by the government, evidently it will not be in the immediate aftermath of this referendum.

What, then, accounts for the politically poisonous atmosphere around the judicial reform provisions of the amendment package? The opposition's base concern is that the elected branches of government must be kept in check by unelected guardians of the Republic who safeguard the privileges of the Westernized elite.

The Court's record has displayed a willingness to intervene against democratic preferences. The starkest examples of the judicial check on democratic initiatives were the Court's annulment in 2008 of constitutional amendments enabling headscarved women to attend universities and its closure in 2009 of the principal political party representing the country's Kurdish citizens. Such decisions led some Turks, particularly among the urban elites of the Western cities, to view the Court as a guardian -- together with the military and parts of the state's civilian bureaucracy -- of their preferred understanding of secularism and nationalism. What has been at issue in the political contestation between the AKP and these elites is not whether secularism and nationalism are to remain constitutive elements of Turkey's political order, but rather whether the system can tolerate a reinterpretation of these values that would be more accommodating of private religious expression and ethnic and cultural pluralism.

Whatever the intentions harbored by members of the AKP or the opposition, the reforms represent another step in the direction of improved fundamental rights, judicial accountability and civilian control over government. While the test of some of these reforms will be in the implementation, there is much to celebrate for Turks as the thirtieth anniversary of the 1980 military coup ushers in a welcome set of amendments and confirms the ongoing commitment of the Turkish electorate to the path of political liberalization.

Asli  Ü. Bâli is acting professor of law at the UCLA School of Law and an editor of Middle East Report.

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