Constitutional amendments under the justice and development party rule.

• Author: Coskun, Vahap
• Position: Essay

Conventionally, constitutions serve two main purposes. First, they determine who exercises power under what circumstances. They provide the structure of governance; regulate the organization, limits, and inter-relations of institutions that are authorized to exercise

governmental power.

Second, constitutions aim to guarantee and safeguard individual rights and liberties. Modern theories of constitutionalism are based on the idea that human beings hold inherent universal rights. There rights simultaneously serve as the basis of moral claims intended to enhance social life and, along with popular consent, represent the foundation of the legitimacy of political regimes. (1) As such, constitutions are expected to acknowledge these universal rights and to safeguard them against government authority whose potential to violate human rights is an ever-present possibility.

In this context, the Constitution is an official document of the highest legal authority that protects individuals' rights and liberties and imposes legal restrictions on the sovereign's actions and transactions.

As such, the fundamental purpose of constitutionalism is to replace arbitrary rule with a government in which rule of law is given primacy and power is constrained by various rules as well as legal and institutional mechanisms. To provide a more concrete definition, constitutionalism "requires that the state's basic functions be distributed among various organs and offices, fundamental rights be constitutionally acknowledged and safeguarded, government authority be subjected to certain legal norms and independent courts be established as an ultimate warranty of all aforementioned requisites." (2)

Unfortunately, Turkey's 1982 Constitution, which still remains in force, fails to comply with the values of modern constitutionalism. Particularly keeping the Constitution's original text in mind, the following holds: The government authority that drafted the 1982 Constitution chose to protect the interest of the state instead of the individual, privileged the state authority instead of individual liberties. Consequently, the text of the Constitution contained a number of statements incompatible with the principles of democratic government and the rule of law. While restrictions became the rule in Turkey's 1982 Constitution, liberties represented exceptions to the rule. In this conceptualization, the state was perceived as a sacred end in itself, instead of an instrument as it is conventionally considered. The government's legitimacy rested on a notion of a "divine/holy state" as opposed to the people's will. The Constitution violated the first principle of rule of law by subjecting governmental acts to judicial review. The text recognized the authority of military courts in addition to the country's civilian judiciary and thereby strengthened the military tutelage regime.

"In short, it would be possible to conclude that the 1982 Constitution in its original form did not constitute a 'guarantist' constitution that restricted arbitrary exercises of government authority and safeguarded liberties in accordance with the philosophy of constitutionalism, and instead represented a 'pseudo constitution' that effectively sought to mobilize, not restrict, government authority." (3)

Drivers of Change in the 1982 Constitution

The 1982 Constitution envisaged a political life along the lines of the official ideology, strived to design a homogeneous society and effectively blocked all efforts to promote a more liberal society. As such, it was a practical impossibility for a legal text of this nature to remain unaltered and committed to its fundamental values. The Constitution received heavy criticism from all social groups as soon as it entered into force, who voiced their demand for amendments. Consequently, successive governments began to amend the original text shortly after its adoption. Legislators amended the 1982 Constitution a total of 21 times since its first amendment in 1987.

There were three main reasons behind the subsequent and comprehensive efforts to amend the 1982 Constitution: First, the restoration of civilian rule in the country relieved some of the state-imposed pressures on society. The military junta that came to power with the 1980 coup, transferred the power to a civilian government with parliamentary elections in 1983, only after having shut down all existing political parties, and outlawed all forms of civilian political activism,. Without a doubt, the restoration of civilian government did not eliminate the influence of the junta completely. However, the holding of elections, re-emergence of civilian organizations and the revival of political life all contributed to the increasingly vocal critique of the 1982 Constitution that served as an embodiment of the military's authority. As a result of these new developments, legislators either amended or abolished certain parts of the Constitution that imposed restrictions on democratic politics. For instance, the first amendment to the constitution, in 1987, repealed Article 4 that banned a group of former politicians from practicing politics. With the reversal of this article, which was supposed to be temporary to begin with, the banned politicians were able to become active in the political sphere once again, as they had been prior to September 12, 1980.

Moreover, the winds of globalization outside Turkey's borders intensified identity-related popular demands in the country. Up until the 1990s, constitutional amendments remained an issue in which certain academic circles and politicians--almost exclusively--held an interest. The rise of globalization in the 1990s, however, motivated excluded, disadvantaged and isolated identity groups across the world to break their silence. Turkey, too, experienced the various repercussions of this new global trend: People of all cultural identities, whom the political system had ignored, denied, suppressed, and excluded rose to the occasion and challenged their previously uncontested standings. Consequently, the question of constitutional amendments evolved into an area of interest for the general population beyond academic and political circles. Turkey's Kurdish, Alevi, non-Muslim, religious Sunni communities, and others demanded their governments to recognize their particular identities and expand their liberties. The sole means to meeting such popular demands was to amend the Constitution.

Finally, Turkey sought to participate in the Customs Union and to subsequently join the European Union. The country's bid for EU membership inevitably called for a reconsideration of its entire body of law. After all, one of the most important prerequisites of EU membership was to develop a democratic political system that respected human rights. Turkey, in the process of accession to candidacy was forced to raise its democratic standards to European standards. Ensuring democracy and the rule of law necessarily entailed a variety of institutional reforms whose main precondition was to amend the 1982 Constitution. Closer relations between Turkey and the European Union resulted in constitutional amendments and legal changes. According to Ozbudun and Genckaya, the EU was particularly influential over constitutional amendments between 1998 and 2006. In this context, The EU became the leading external factor behind Turkey's democratization and served as "an incentive for the democratization" of the country. (4)

The Justice and Development Party and the 1982 Constitution

The 1982 Constitution, which failed to reflect the sociological realities of the Turkish society, the aspirations of the country and the global developments of the time, had been the subject of heavy criticism from various perspectives since its adoption. Reformist political parties attempted to amend the 1982 Constitution in order to meet society's ever-growing demands. Similarly, the Justice and Development Party prioritized the drafting of a new Constitution as an item on its political agenda since its establishment.

According to the Party, it was necessary to eliminate "the laws of the state" and establish the rule of law, to foster confidence in the legal system, and to consolidate the country's democracy. A new and liberal Constitution had to replace the 1982 Constitution in order to attain the above-mentioned goals. In this respect, the Party had to make progress in its efforts to draft a new Constitution. The Justice and Development Party program made reference to this objective in its following section:

"[Our Party] shall prepare an entirely novel draft Constitution that responds to the population's needs, corresponds with the standards of democratic countries in terms of the principles of democracy and the rule of law, and aims to establish a new 'social contract.' The draft shall represent a document that projects the people's will and demands onto the state organization on democratic footing as opposed to a new attempt of 'constitutional engineering." (5)

The Justice and Development Party won a landslide victory in the 2002 parliamentary elections. Due to Recep Tayyip Erdogan's ineligibility to participate in the elections, Abdullah Gul formed the first JDP government. Turkey's 58th government, headed by Prime Minister Gul, pledged to draft a new Constitution:

"We shall draft a new participatory and liberal Constitution to replace the existing Constitution that no longer meets our country's needs. Our new Constitution shall represent a notion of democracy and the rule of law with strong popular legitimacy, high compatibility with international--most notably European Union-norms, an emphasis on upholding individual rights and liberties and a pluralistic and participatory democracy at its core. We shall pay attention that the Constitution will be brief, clear, and comprehensible in terms of its form." (6)

In December 2002, the Parliament amended the Constitution to abolish the...