A New Constitution for New Turkey

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By BARIN KAYAOĞLU

September 27, 2010

As I mentioned in my previous post, if Turkey is to become a free, egalitarian, and prosperous country, it needs to do more than the cosmetic constitutional amendments passed on September 12.

The most important point with the new constitution should be – in line with the fundamental rationale of constitutionalism – to limit the power of the state and to protect citizens from the arbitrary policies of the state.

To that end, the new constitution for new Turkey should include the following

 1) Freedom of Expression

Freedom of expression has always been a troublesome matter in Turkey. One of the greatest paradoxes of Turkey’s recent history has been that parties such as the Democrat Party, Justice Party, Motherland Party, and Justice and Development Parties came to power with promises of ‘freedom and democracy’ but soon turned back on their word and put pressure on the press and the opposition.

Freedom of expression is a very important need for a democratic country because only when ideas are declared without hindrance can citizens and officials be aware of the country’s problems and find solutions. For this reason, the boundaries of freedom of expression must be expanded in Turkey. Except for racism and advocating violence, individuals’, political parties’, and NGOs’ right to express and defend their opinions must be guaranteed. And this can only be possible if freedom of expression makes into way into the constitution in a more forceful manner.

 2) Other Basic Rights and Liberties in the Realm of State-Citizen Relations

In the relations between the state and its citizens, the latter and not the former must come first. Similar to the point about freedom of expression – and without mentioning any group by name, all citizens’ ethnic, religious, linguistic, and cultural rights must be guaranteed. In a modern and democratic country, citizens must be able to broadcast and publish in whatever language they want – whether it’s their mother tongue or not. This is not a blessing bestowed upon them by the state but citizens’ most natural right. In a similar fashion, the criterion for building places of worship should be limited to being in tandem with municipal zoning plans and architectural aesthetics. 

3) Secularism

The separation of religion and the affairs of state, as well as citizens’ freedom of religion and conscience, is an essential component of a modern democracy.

Therefore, Turkey has to take its secularism away from French-style laïcité and bring it closer to American-style secularism. Under the latter system, not only does the government not control religious affairs (the state-funded Directorate of Religious Affairs funds mosques and appoints prayer leaders, known as ‘imam’), but it does not impose a religious viewpoint on its citizens (compulsory classes on religion in primary and secondary schools). In the words of the American founding father Thomas Jefferson, Turkey needs ‘a wall of separation’ between religion and the state.

With the strengthening of secularism in the new constitution, Turkey will have to do the following as well: Abolish mandatory classes on religion in primary and secondary schools; decrease (or even close down, if need be) the number of imam-hatip high schools for training prayer leaders (the need for clerics can be met from universities’ theology departments); ease restrictions on Kuran schools, which attract students mostly during the summer anyway; allow women to enter universities with their headscarves; and allow minority groups – Muslim and non-Muslim – to train their own clerics under the same guidelines as mainstream Sunni Muslims.

4) Ending the State’s Decisive Role in the Economy

It’s not a coincidence that Turkey suffered from intense political crises along with great economic crises in the late 1950s, the late 1970s, and around 2000-2002. When World War II ended, Turkey shared similar socio-economic characteristics with Portugal, Spain, and Greece. Today, its per capita income and human development index is behind those countries. (Sadly enough, Taiwan, South Korea, and Malaysia, which were behind Turkey in the 1950s, have also surpassed Turkey.) The simple reason why these countries are ahead of Turkey today is that politicians, who seldom know anything about the economy, had a limited influence on economic decision-making. In the said countries, rather than acting as the biggest investor, the state has guided private entrepreneurs.

The time has come for the Turkish state to discontinue its role as an economic player and assume the role of a monitor and guide.

In this respect, the Turkish state’s practice of overtaxing citizens – be they entrepreneurs, farmers, workers, professionals, or government employees – has to stop. For years, the state in Turkey has used its citizens’ precious tax liras to build new government housing or guest houses or purchase private jets and cars rather than providing better services. From now on, the state in Turkey has to stop acting like a black hole of fiscal deficit that sucks up money and seriously improve education, healthcare, public order, national security, the court system, and social security.

Only a Turkey where economic rights are taken as seriously as political and social rights can become democratic, free, just, and prosperous. For this reason, the new constitution specifically needs an article to prevent the state from imposing arbitrary fees and taxes on its citizens, something to the order of: ‘In a given fiscal year, the state can collect only one item of tax from any revenue, commodity, or service. Any additional taxes can only be imposed for once during a war or a national emergency, such as a natural disaster.’ (Let us remember that the ‘Special Consumption Tax’ was passed after the 1999 earthquake, ostensibly to last for ‘only one year.’)

5) Separation of the Legislative and Executive Branches of Government; Parliamentary Immunity; President’s Duties, Responsibilities, and Term of Office

If we are to take Atatürk’s maxim ‘sovereignty unconditionally belongs to the nation,’ then boosting the effectiveness of the Grand National Assembly of Turkey is a necessity. To that end, party central committee’s discretion in determining candidates for the general elections should be curtailed.

A system where parties’ local organizations nominate a majority of candidates through primaries would allow members of the Assembly to feel indebted to their constituents rather than their party leaders. And this would allow the representatives of the nation to break free from party leaders’ grasp and empower the legislative branch with its primary duty: to check the executive branch.

Another important duty is upon the Assembly: to control government expenditures. To that end, under the new constitution, a new commission, to work in tandem with the Assembly’s Planning and Budget Commission, must be formed ‘to control government accounts.’ The people’s money can be best protected by its representatives.

Deputies’ immunity from prosecution should be limited to the speeches they deliver. At moment, only deputies and party leaders who could not be re-elected have their cases sent to courts. Continuing this untenable practice means weakening the nation’s trust in its Assembly. The new constitution must include the relevant measures to tackle this problem.

Finally, the presidency: Even though it would be wise to continue electing the president of the republic through popular vote, the president’s term of office should be limited to six years (at the moment, the term of office is five years with a possibility for re-election). More important, to end the practice of re-election would protect the president from allegations of ‘political concession.’

Furthermore, as things stand, the Turkish president has too many duties and responsibilities, many of which are irrelevant. For example, while appointing university rectors are at the discretion of universities’ board of trustees in many countries, in Turkey, it is the president who must appoint university rectors. Also, the president’s status as commander-in-chief of the armed forces, his appointing of the Chief of General Staff, provincial governors, and ambassadors may pit the next president – who will be elected in a popular vote for the first time – against the popularly elected government. These matters, which may cause a jurisdictional dispute, have to be clarified by the new Constitution.

6) The Judiciary

Significant political pressure exists on the judiciary in Turkey. If that were not the case, so many judges, public prosecutors, and lawyers wouldn’t complain about the problem in public so frequently. Similarly, during the debates about the recent constitutional reforms, many people complained that the AKP government would eventually solidify its grip on the judiciary. Interestingly, few people honestly stated the fact that the constitution, in its present form, already enabled political pressure over the judiciary.

To be sure, the judiciary in Turkey must be independent and oversee the acts of the legislative and executive branches of government. But to argue for the judiciary to have nothing to do with the other two is unrealistic. All modern and progressive countries uphold the notion of ‘checks and balances’ as much as the separation of powers in their constitutions.

These ideas can be blended together in the new constitution as such: Especially with the Constitutional Court and the Supreme Board of Judges and Prosecutors, 1/3 of their members could be chosen by members of the judiciary; 1/3 could be appointed by the President; and 1/3 could be appointed by 2/3 of the members of the National Assembly (to ensure a broad consensus). Such an arrangement would allow both to the judiciary to elect the most qualified members from its ranks and also end criticisms directed at the judiciary for being ‘elitist.’

Finally, and perhaps the most important subject regarding the judiciary, in order to ensure citizens’ trust in the court system, measures to have the courts try cases in a timely manner must be adopted. As things stand, even the simplest case takes years to adjudicate. But late justice is no justice at all. And in a place where citizens do not trust the justice system and take matters into their hands is not a place where ‘the rule of law’ prevails. The new constitution must definitely do something about this issue.

7) Civilian-Military Relations

Since the beginning of multi-party politics, one of the most troublesome aspects of democracy in Turkey has been the military’s powerful status within the system. The existence of a military that has carried out so many coups and still claims to be ‘the guardian of democracy and the secular Republic’ has no place in a Turkey that values democracy and individual rights and liberties. (At any rate, it is debatable whether the coup of September 12, 1980 actually fulfilled that ‘guardianship,’ given the fact it gave Turkey ‘mandatory classes on religion’ in primary and secondary schools.)

In the run-up to the referendum of September 12, 2010, one AKP’s most frequent slogans was to ‘end coups.’ But it is open to dispute to what extent the current government in Turkey actually wants (or is brave and sincere enough to) place the military under the control of elected officials.

As a matter of fact, there are only a few simple measures that need to be taken to that end and they do not even require a constitutional amendment. One is to subordinate the Chief of General Staff to the Minister of National Defense – rather than the Prime Minister as it is the case today. Another measure would be to change the wording of Article 35 of the Internal Service Code of the Turkish Armed Forces (‘the duty of the Armed Forces is to protect and defend the Turkish homeland and the Republic of Turkey as defined in the constitution’), which has served as the legal pillar for past coups.

In 21st-century Turkey, the duty of the Turkish Armed Forces isn’t baby-sitting politicians (since that’s the people’s duty) but to protect national security. No other group or institution in Turkey could carry out that critical mission.

Despite its problems, Turkey is the only country in its region with a Muslim majority and a political and legal system that is both secular and democratic. Today, there is an urgent need for constitutional amendments to address the shortcomings of this model. If political parties and civil society groups are sincere about democracy and moving Turkey forward, the task before them is plain to see.

Barın Kayaoğlu is a Ph.D. candidate in history at The University of Virginia. He welcomes all comments, questions, and exchanges. To contact him, click here.

You can follow him on Twitter (@barinkayaoglu) and Facebook (BarınKayaoğlu.com).

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