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.