The Turkish Constitution as a Disrespected Idol

Tarik Olcay

Lecturer at Dundee Law School

Slinging the constitution across the table to the Prime Minister in a national security council meeting may not be the only way to trigger a national crisis, but it is one that requires the existence of a codified constitution. The ability to (literally) throw down the constitutional gauntlet might be all there is to be gained from having a codified constitution, if Brian Christopher Jones’s main argument in Constitutional Idolatry and Democracy is taken to the extreme. However, major political actors in Turkey ascribe much value and authority to the text of their Constitution, seeking answers to constitutional problems in formal constitutional reform, while at the same time having no qualms about outright violations of the Constitution.

It is not unusual for the people of Turkey to translate political issues into the need for new constitutional designs or values. For a long time, there has been a consensus that the Constitution must be reformed extensively, and political parties consistently include the promise to make a new constitution in their election manifestos, including the governing AKP and the secularist-nationalist CHP. In addition to several previous reforms, the Constitution was subject to two major reforms in 2010 and 2017. The 2010 reform was mostly seen as a step towards political liberalisation and democratisation (a view not universally shared) with its introduction of inter alia mechanisms of ombudsman and constitutional complaint, as well as new rights such as personal data protection and children’s rights. The 2017 reform, on the other hand, introduced executive presidency with vast powers over the three branches of the state, helping to consolidate authoritarianism. Notwithstanding these reforms, drafting a new constitution is, in one way or another, always on the agenda in Turkey.

The current Constitution is regarded as lacking democratic legitimacy as it was drafted by a military junta in 1982 with little democratic input and is seen as more authoritarian and state-centric in its approach to restricting rights and liberties in comparison with its antecedent, the 1961 Constitution. In the last decade, two formal processes of constitution-making, one more serious than the other, have been carried out and failed. Most recently, in November 2020, a far-right politician accused his own party of engaging in a secret informal constitution-drafting exercise with opposition political parties, including the pro-Kurdish HDP. Of course, when political actors—government and opposition alike—talk of the need for a new ‘constitution’, they merely mean a new constitutional text—a formally new Constitution. The recent history of constitutional change and constitutional violations in Turkey suggests that such focus on formally reforming the Constitution may be misguided given that constitutional identity has been reshaped through political and sometimes unconstitutional means.

Three examples demonstrate the pointlessness of focussing exclusively on the constitutional text to understand constitutional functionality or constitutional change. These examples illustrate a rather rigid constitution formally being the supreme law of the land whilst its provisions are disrespected and disapplied in actual practice.

The first example is the de facto introduction of presidentialism, which was followed by the aforementioned constitutional amendment in 2017 formalising this change. President Recep Tayyip Erdogan has long been a proponent of presidentialism, and after his election as President in 2014 he insisted that unlike Presidents since 1960, who fulfilled a largely ceremonial role in Turkey’s parliamentary system, he would be an active President who used the full extent of his powers. Moreover, he refused to abide by the then constitutional requirement of political impartiality, and invited law-makers “to update this de facto situation in the legal framework of the constitution”, an instruction finally followed in 2017. As President, Erdogan played an active role in supporting the election campaign of the AKP, the governing political party in Turkey since 2002, for the June 2015 parliamentary elections through state-funded rallies in tens of provinces, asking the electorate for “400 MPs” (amending the Constitution without a referendum requires a majority of two-thirds in the Turkish Parliament, which translated to 367 MPs at the time). With a temporary setback in the June 2015 parliamentary elections that delivered a hung Parliament, Erdogan was successful in consolidating his presidential powers with popular support, including through the referendum on the 2017 constitutional amendment. In this way, a constitutional violation operated as a constitutional change that preceded its formal recognition.

Another example is the lifting of the ban on Islamic headscarves on university campuses. A major constitutional crisis ensued after the deputies of the AKP introduced a constitutional amendment to lift the headscarf ban in 2008. After the Turkish Parliament passed the constitutional amendment bill, the Constitutional Court struck down the bill in its infamous Headscarf Decision on the ground that the amendment had violated the unamendable principle of secularism, which it considered an integral part of Turkey’s constitutional identity, and consequently prevented the lifting of the ban. This was one of the judgments that fuelled the global debate on unconstitutional constitutional amendments, but what is less well-known about this saga is that, two years later, the headscarf ban was lifted by a formal letter sent by the chairman of the Higher Education Council to Istanbul University. What could not be achieved with a formal constitutional amendment and created a constitutional crisis was therefore achieved by a simple administrative act (a mere piece of secondary legislation) in 2010.

Most recently, and from a constitutional law perspective perhaps most significant, a criminal court in Istanbul refused to comply with a judgment of the Constitutional Court. The case in question involved Enis Berberoglu, a former member of the Turkish Parliament accused by the government of espionage, whose parliamentary immunity had been lifted with a constitutional amendment in 2016. In Berberoglu’s constitutional complaint, the Constitutional Court had found that, as the criminal court of appeal handling his case, the Turkish Court of Cassation’s failure to respect his parliamentary immunity, which had been restored after his re-election in 2018 as a member of the Turkish Parliament, had violated his political rights and the right to liberty and security. The Constitutional Court accordingly ordered the criminal court in Istanbul to initiate a retrial. However, in clear defiance of the constitutional text, which provides in Article 153 that “[t]he decisions of the Constitutional Court are final … [and] shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on real persons and corporate bodies”, the criminal court rejected Berberoglu’s request for retrial. This time, it was criminal court judges who refused to comply with the clear instruction of the constitutional text, no doubt with the confidence that the government would be on their side.

Whilst the political actors’ promises to solve Turkey’s constitutional problems come almost exclusively in the form of reforming or replacing the constitutional text, these three examples demonstrate that seeing constitutional functionality and constitutional change only through the constitutional text is a futile exercise at best. In just over a decade, the constitutional text has been expected to play catch up with de facto constitutional change: what has been once regarded as fundamental constitutional change has occurred infra-constitutionally without amendments to the text, while some of its provisions have been outrightly disapplied by a court. One may simply dismiss such constitutional change and constitutional practice as unconstitutional, but that does not explain how the constitution operates in the way that it does.

One of the major achievements of the AKP could be to have understood Jones’s point, that what really matters is not the constitutional text but the habits, attitudes and processes that develop around it, while at the same time realising that people are indeed infatuated with the written word. No doubt they have been successful in turning these two valuable lessons into a tool to consolidate constitutional power. For those observing how constitutions operate, it might be useful to draw the conclusion from the recent experiences in Turkey that even in constitutional systems where the constitutional text is valued in principle and its supremacy is not challenged explicitly in the constitutional discourse, the written text is still not in itself capable of providing for healthy politics or preventing constitutional abuse.

Tarik Olcay is a Lecturer at Dundee Law School.

Suggested citation: Tarik Olcay, ‘The Turkish Constitution as a Disrespected Idol’ IACL-AIDC Blog (14 January 2021) https://blog-iacl-aidc.org/cili/2021/1/14/the-turkish-constitution-as-a-disrespected-idol