BACKGROUND: There has long been a general acknowledgment that the current Turkish constitution, which was promulgated in 1982 during a period of repressive military rule, needs to be either radically overhauled or replaced completely. After its landslide election victory in July 2007, the AKP began work on drafting a new constitution. In early December 2007, Prime Minister Recep Tayyip Erdoğan promised that the draft would be made public by the end of the month. But, in early 2008, the AKP abruptly abandoned the draft in favor of attempting to amend the 1982 constitution to lift the ban which currently prevents women wearing the headscarf from attending university.

The reasons for the timing of the AKP’s current attempt to amend the constitution appear to be threefold. First, a desire to be seen to be implementing reforms in the hope of its revitalizing its jaded image in the run-up to the 2011 general election; second, fear of another closure case; and third, an attempt to assert governmental control over the judiciary.

Many of the AKP’s critics – including elements in the state establishment – are opposed to another closure case against the party on the grounds that it would boost the party’s popularity and lend it democratic credibility at a time when its image has been badly tarnished by allegations of corruption and the abuse of power, economic mismanagement and fiascos such as the collapse of its  “Democratic Opening” to  the  Kurdish minority. Nevertheless, in recent months there have been persistent rumors in Ankara that another closure case is being prepared against the AKP.

The EU has repeatedly called on the AKP to reform the Turkish legal system, including restructuring the Supreme Board of Prosecutors and Judges (HSYK)  In April 2009, a 30-page report commissioned by the EU detailed a number of problems in the judiciary that needed to be addressed. But it was only when the HSYK challenged the authority of the Justice Ministry that the AKP decided to act.

In 2007, İlhan Cihaner was appointed the public prosecutor in Erzincan and began targeting the activities of Islamic networks in the province, such as the İsmailağa community and the powerful Fethullah Gülen movement. During the course of his investigation, Cihaner claimed to have uncovered evidence that members of the networks, including individuals close to the AKP, were involved in a number of criminal activities, such as running illegal Quran courses and fixing state contracts. Although it has no legal powers to do so, the Justice Ministry attempted to persuade Cihaner to drop his investigation. When he refused, he was stripped of his powers and the case transferred to Osman Şanal, the public prosecutor in Erzurum. Cihaner was subsequently charged with membership of the alleged “Ergenekon terrorist organization”. He is currently in prison awaiting trial.

The HSYK currently consists of the Justice Minister, the Justice Ministry Undersecretary and five members of the judiciary. The latter reacted to Cihaner’s dismissal by holding a meeting and stripping four public prosecutors perceived of being sympathetic to the AKP – including Şanal – of their powers. The AKP reacted furiously, accusing the five members of the HSYK of being politically motivated and questioning the legality of their decision to remove the four public prosecutors from their posts. Regardless of the truth of the accusations, the incident underlined how the judicial system has become an ideological battlefield between the AKP and its sympathizers on the one side and the remnants of Turkey’s hard-line Kemalist establishment on the other.

Despite their numerous absurdities and manifest abuses of the law, cases such as the Ergenekon investigation – and more recently the so-called “Sledgehammer” and “Cage Plan” arrests – have demonstrated the dramatic decline in the political influence of the Turkish military, which has been powerless to prevent scores of serving and retired personnel being detained and imprisoned. 

In the absence of an effective political opposition, many secularists regard the higher echelons of the judiciary as the last bulwark against what they believe is the AKP’s ambition to seize complete control of the apparatus of state and dismantle Turkey’s official ideology of Kemalism. In this context the most controversial parts of the AKP’s constitutional reform package have been those which deal with restructuring the HSYK and the Constitutional Court.

IMPLICATIONS: The reform package announced on 22 March contains several provisions which are wholly or partially compatible with the demands of the EU, although there are also others which simply contradict the EU’s recommendations. More significantly, the AKP has been highly selective; it has either advocated changes or retained clauses which restrict the room for maneuver of its opponents and increase its own influence, while refusing to contemplate any reforms which would curb its own power.

The package provides for the establishment of an Ombudsman and responds to a long-lasting demand of the Turkish women’s movement by proposing to amend Article 10 of the constitution to remove the legal obstacles to positive gender discrimination, although there is no indication of whether or not positive discrimination will actually be introduced. Similarly, the package proposes changing Article 53 of the constitution to allow civil servants to join trade unions, but stops short of giving them the right to strike.

Proposed changes to Article 145 of the constitution would make serving military personnel liable to prosecution in civilian courts, rather than military courts, for all offenses except those directly related to their military “duties and responsibilities.” The package also advocates amending Article 125 to allow officers dismissed by the Supreme Military Council (YAŞ), which frequently cashiers officers suspected of Islamist activism, the right to appeal. In addition, the package proposes abolishing Provisional Article 15 of the 1982 Constitution, which prevents the prosecution of those responsible for the 1980 coup. However, the statute of limitations and the advanced age of the surviving members of the junta make it extremely unlikely that any would actually face trial.

The package seeks to make it more difficult to outlaw political parties by making closure cases subject to the approval of a special committee consisting of members of the parties in parliament. It is currently unclear how this would work in practice, although it would appear to transfer a measure of judicial authority from the courts to parliament and put smaller parties at a distinct disadvantage.

However, the reform package makes no attempt to address other long-standing anomalies. For example, the package contains no provisions to reduce the national threshold for representation in parliament from its current level of 10 percent. Nor are there any proposals to limit parliamentary immunity or address the discrimination faced by ethnic and non-Sunni Muslim religious minorities.

Most attention has focused on the AKP’s plans to restructure the Constitutional Court and the HSYK. The package proposes increasing the number of members of the Constitutional Court to 17 from 11 at present. Of these, 14 would be appointed by the president and three by parliament. As at present, six of the members would be selected from candidates proposed by Turkey’s higher courts; although the increase in the number of the court’s members would mean that they would form a numerical minority, rather than a majority as at present.

Equally controversial are the provisions for the restructuring of the HSYK, which the AKP proposes increasing to 21 members. This is broadly in line with the recommendations of the EU report of April 2009, which advocated allowing a broader cross-section of the judiciary to be represented on the HSYK, without going into details. However the EU report described the presence on the HSYK of the Justice Minister as chair of the council as being incompatible with the separation of powers. But the reform package announced on March 22 proposes retaining the Justice Minister as chair of the HSYK; thus preserving the AKP’s current influence on the council while – through the appointment of new members to the council – diluting any opposition to the government.

In order to be enacted, constitutional amendments must receive the support of 367 of the 550 members of parliament. The AKP currently has 336 deputies. However, if constitutional amendments receive the support of 330 members of parliament, the president can decide to put them to a public referendum, which would probably be held in late June 2010. 
If the reform package is passed by parliament, it appears almost inevitable that the opposition parties will apply to the Constitutional Court for its annulment. But it is currently unclear not only how the court will rule, but when it will issue a decision. If the ruling comes after the referendum, then some of the members of the newly expanded Constitutional Court could effectively be asked to vote on whether or not they should retain their posts.

CONCLUSIONS: As so often in Turkey, when it comes to the constitutional reform package, the devil is not so much in the details as in the context. Opponents of the package complain, with some justification, that it increases the control of the government and President Abdullah Gül (who is a former AKP politician) over the choice of members of the HSYK and the Constitutional Court, and thus reduces the independence of the judiciary. However, there is also considerable justification to the claim by the AKP’s supporters that, even if they have been “independent”, the higher courts in Turkey have hardly been impartial. In recent years, there have been several instances in which decisions of the higher courts appear to have been based on a specific ideology – namely a hard-line interpretation of the doctrine of Kemalism – rather than the law.

Yet, particularly since the party’s reelection in July 2007, there have also been numerous examples of the politically motivated abuse of power by AKP officials and party sympathizers in the lower echelons of the judiciary and the law enforcement system. When taken together with the self-serving selectivity of the content of the AKP’s proposed constitutional amendments, such precedents raise concerns that the package will not serve the goal of moving Turkey closer to a pluralistic fully-functioning democracy.

Gareth Jenkins, a Nonresident Senior Fellow with the CACI & SRSP Joint Center, is an Istanbul-based writer and specialist of Turkish Affairs.

© Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center, 2010. This article may be reprinted provided that the following sentence be included: "This article was first published in the Turkey Analyst (www.turkeyanalyst.org), a biweekly publication of the Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center".