April 16, 2014

TURKEY’S SEPTEMBER 12, 2010, REFERENDUM


This article considers the reasons for and the overall impact of holding a national referendum in Turkey on September 12, 2010, for a series of constitutional amendments passed by the governing AKP (Adalet ve Kalkinma Partisi or Justice and Development Party). Although the measures were publically accepted with nearly 58 percent approval, the prospects for the drafting of a new constitution based on political consensus to replace the military-created 1982 document remain weak. While the opposition parties and the judiciary perceive the reforms as a government initiative to politicize the judiciary, the AKP is focused on taming a politically motivated “juristocracy.”

 

On September 12, 2010, approximately 77 percent of Turkey’s eligible voting population took part in a national referendum for a series of constitutional amendments proposed by the country’s governing AKP (Adalet ve Kalkinma Partisi or Justice and Development PartyAKP). These included a package of 30 amendments to the country’s current 1982 constitution, promulgated by a military junta during the country’s last coup-led government. On the whole, it can be argued that these changes will help the country’s democratization drive by shedding restrictions placed upon individual and associational liberties by a military government. Referendums in Turkey are rare occurrences but have been utilized by the AKP twice since assuming office in November 2002 (and prior to this, in 2007). Of the participating voters, approximately 58 percent were in favor of 30 amendments to significant portions of the constitution, which among other things would affect the composition of, membership, and appointment to the highest judicial bodies in the country.

While the substance and mechanics of the referendum are interesting from the perspective of electoral politics, the very necessity and reason for holding the referendum is more significant in this case. Following eight years of incumbency, it can be argued that the AKP’s ability to legislate has been increasingly challenged by state institutions such as the judicial branch, as opposed to opposition political parties. A number of important legislative and/or constitutional changes proposed by the AKP have been challenged and in some instances struck down by Turkey’s Constitutional Court. Furthermore, the court was instrumental in pursuing a narrowly unsuccessful closure case against the AKP in 2007. It also succeeded to annul key constitutional amendments that would have allowed for the wearing of headscarves in universities.

On account of the AKP’s comfortable majority in the national assembly, the main opposition parties, namely the CHP (Cumhuriyet Halk Partisi or Republican People’s Party) and the MHP (Milliyetci Hareket Partisi or Nationalist Action Party), have been unable to prevent the passage of legislation they do not support. Thus, they have had to resort to alternative legislative checks. For example, the CHP and the president have referred legislation to the Constitutional Court for annulment. In addition, the court itself has heard a closure case against the AKP, based on arguments presented by the special state prosecutor.

The central concern of this paper is to account for the reasons a referendum was held and its overall significance. At the basic level, a referendum was held because AKP parliamentarians lacked the minimum number of votes necessary to amend the constitution.[1] President Abdullah Gul, therefore, referred the matter to a public referendum.[2] The AKP, which drafted the amendments, pointed out that the proposed changes were vital for improving Turkey’s democratic standards.[3] This article, however, argues that the amendments were put before a national referendum in order to constrain the ability of the judicial branch to delay, even strike down, the legislative initiatives of the governing AKP.

As a result of the referendum, the principle of separation of powers has been strained. Until the end of President Ahmet Necdet Sezer’s term in 2007, it was believed that he and the Constitutional Court were the only remaining forces engaged in scrutinizing the activities of the legislature and the government, both of which were dominated by the AKP. President Sezer played in important part in sending back numerous pieces of legislation to parliament for reconsideration, and referring a record number for annulment to the Constitutional Court.[4] These were actions that fall under the constitutional job definition of the office of the president.

Sezer has since been replaced by Abdullah Gul, who served as foreign minister in the first AKP government (2003-2007). With the change of guard, as the main opposition party, the CHP has led the charge. The CHP has argued that the AKP is seeking to use democratic procedures and institutions to subvert democratic rule and impose its own hegemony. After having replaced Sezer with “one of their own” (Gul), there is little to stop the AKP from churning out any laws it sees fit. Moreover, opposition parties in parliament lack the number of votes to prevent the passage of laws, and the office of the president is manned by a former AKP member.[5] Both former CHP chairman and its current chairman (Deniz Baykal[6] and Kemal Kilicdaroglu[7]) suspect the AKP’s actual intentions are slowly to transform Turkey into a type of Muslim democracy by using democratic procedures to remove all impediments standing in their way.

On the opposite side, both the AKP and some liberal circles of political thought have stressed that the office of the president and the judicial branch have become politicized themselves and have overstepped their constitutional mandates.[8] With respect to the office of the president, the AKP continuously asserted that Sezer was using his powers to undermine the will of the democratically elected representatives of the people (in which sovereignty rests as stated by the constitution).[9] The judiciary, mainly with reference to the high courts–Constitutional Court (Anayasa Mahkemesi), High Court of Appeals (Yargitay), Council of State (Danistay), the Court of Numbers (Sayistay), and the Supreme Board of Judges and Prosecutors (Hakimler ve Savcilar Yuksek Kurulu, SBPJ)–has been accused of making political rulings against AKP-sponsored laws and engaging in politics. The overall result is that following eight years of AKP rule, the principle of separation of powers is under severe strain, to the extent that both the government and the named state institutions are locked into a perpetual battle to undermine the authority of the other. Ultimately, during the AKP era, the political battleground has been less defined by parties competing against one another, and more by the incumbent fighting against state institutions.

 

THE SEPTEMBER 12 REFERENDUM

 

The referendum date may have been intentionally set by the Higher Electoral Council (Yuksek Secim Kurulu) to coincide with the thirtieth anniversary of the country’s last coup d’état. The procedural explanation for holding the referendum was simple: In order for a constitutional amendment to pass, it must conform to the requirements of article 175 of the 1982 constitution. Thus, if an amendment receives over 367 parliamentary votes (two-thirds of 550), the president can either send it back for reconsideration, submit it to a national referendum, or sign it into law. If the proposal receives between 330 and 367 votes (three-fifths and two-thirds majority), the president can either call for a national referendum or send it back to parliament for reconsideration. In either case, in the event of a public referendum, the proposed amendment must obtain a simple majority to be accepted. In contrast, if the president were to send it back to parliament, a minimum of two-thirds (367/550) of the votes would be necessary to send it back for the president’s second consideration.

The AKP proposed a total of 30 amendments, affecting some 23 articles of the constitution. During voting in parliament, the proposed amendments consistently received between three-fifths to two-thirds majority. On May 7, 2010, after two rounds of parliamentary voting, the final package was accepted, with 336 votes in favor and 73 opposition votes.[10] While the MHP voted against the changes, the CHP and the pro-Kurdish Peace and Democracy Party (Baris ve Demokrasi Partisi, BDP) did not participate in the voting and boycotted the event.[11] The AKP relied entirely on its own votes to pass the package and referred it for presidential approval.

After a few days of deliberations, Gul decided to submit the changes to a public referendum.[12] The constitutional amendments covered a broad array of issues. They can be broadly split into two categories (see Table 1). The most controversial of these relate to the composition of and appointment to the top judicial institutions, namely the Constitutional Court and the Supreme Board of Prosecutors and Judges (SBPJ), which oversees the appointment of judges and prosecutors across the country. The other amendments were democratization measures, primarily intended to improve the rights of workers as well as women and children, removing special privileges for the military, and making it increasingly difficult to close down political parties.

These constitutional amendments are extensive and far-reaching. Since the promulgation of the constitution in 1982, many of the articles have been amended. Yet the AKP’s intention since the mid-2000s has been to draft a new constitution, rather than constantly amend the present one. In the run-up to the June 2011 general elections, the AKP made promised that the next step would be a new constitution.[14] The rationale behind this was two-fold. First, this would allow Turkey to comply fully with the democratic requirements of the EU accession process. The present constitution, commissioned by the 1980 junta, has frequently fallen short of EU scrutiny, particularly in reference to individual and associational freedoms.[15] Second, independent of EU considerations, Prime Minster Tayyip Erdogan has made frequent statements that Turkey and its citizens deserve to live under the umbrella of a fully developed democracy. This, he argued, could not be achieved living under the shadow of a junta-created constitution. Thus, in the run-up to the 2007 elections, the AKP commissioned esteemed constitutional scholars to draft a new constitution, under the direction of Prof. Ergun Ozbudun.

Once the drafted document had been completed, it was to be shared with both the public and civil society organizations, prior to being submitted to a national referendum. However, due to the nature of domestic political constraints at the time, the initiative was shelved in 2008.[16] Following the acceptance of the amendments, the AKP declared that a primary focus of its electoral campaign for the 2011 general elections would be the promise of a new constitution in its third term of office. In contrast, the opposition political parties, specifically the CHP and MHP as well as the judiciary and factions within the military, viewed this as a nefarious attempt by the AKP to show its true colors. The new primary document was viewed by them as a means to undermine the core secular principles of the country (as outlined in the first three articles of the constitution) and would lead Turkey down the dark path of political Islamism.[17]

 

THE CONTENT OF THE CONSTITUTIONAL AMENDMENTS

 

Had the amendment package been brought forward in a disaggregated fashion, where one could vote for each proposed amendment (i.e. a “yes” or “no” for each proposed amendment), the debate surrounding the referendum could have been less divisive. First, the reforms would alter appointments to and the composition of Turkey’s highest judicial bodies. Under the new provisions, the president is entitled to appoint 14 out of the 17 members of the court under the following terms: three from the High Court of Appeals, two from the Court of Numbers, one from the Military High Court, three academics, five from the legal profession, and two ordinary citizens who are university graduates.

This in itself may not be problematic. However, the appointments to and the composition of Supreme Board of Judges and Prosecutors (SBPJ) poses problems, since this is the sole body overseeing the appointment of judges and prosecutors. Under the new provisions, the minister of justice and the permanent secretary are “natural members” of the board. As representatives of the government, it has been suggested that political influence in judicial appointments be inevitable and that ultimately, the independence of the judiciary has been weakened.[18] A worst-case scenario would be if the SBPJ were increasingly to appoint government-friendly judges and prosecutors. In turn, when the president was to appoint members to the Constitutional Court, he could do so by appointing members who supported the government.[19]

In other words, Abdullah Gul, an ex-AKP foreign minister and prime minister could appoint members to the court who are sympathetic to the AKP. In sum, this would remove all foreseeable barriers to the government’s legislative and political agenda. Critics of the judicial amendments have stated that the AKP is imposing total hegemony over not only the political, but also the judicial system.[20] This worst-case scenario, however, rests on the present state of affairs, where the current president is Abdullah Gul. There is no guarantee that Gul or another AKP supporter will be elected as the next president. In 2007, constitutional amendments were passed to mandate the election of future presidents by popular voting.[21] Furthermore, the ability of political parties and/or private citizens to petition the Constitutional Court will continue to allow legislative initiatives to be referred to the Constitutional Court for annulment.

Members of the judicial community, who have voiced their objections to the government, have argued that the reforms amounted to nothing more than political interference and the curtailment of judicial independence.[22] A few days after the referendum, MHP Chairman Devlet Bahceli stated Turkey had entered “a dark period” in which the politicization of the judiciary was taking place.[23] A similar point of view was taken by the CHP, whereby Deniz Baykal stated that under the AKP, Turkey was living through a “civilian coup d’état” and that “we [the people] are leaving the fate of the constitutional court and the SBPJ to the hegemony of Tayyip Erdogan.”[24]

Among the many political battles waged by the AKP since assuming office in November 2002, its clashes with the judiciary have been the most intense and continuous. The higher courts have struck down key legislative initiatives put forth by the governing party, such as the headscarf and higher education reforms, in addition to trying to shut down the AKP and oust Erdogan from politics. Erdogan also was imprisoned and banned from politics after serving as mayor of Istanbul during the 1990s for reading a poem which was alleged to incite public violence. Emboldened by public acceptance of the amendments, it is not inconceivable that Tayyip Erdogan and the AKP are interested in pacifying a judiciary that is perceived to be hostile toward their political mandate.

A similar accusation of politicization can also be made against the judiciary itself. The unsuccessful attempt by the state prosecutor to close down the AKP in 2007 for allegedly being a “focus of anti-secular activities” was arguably politically motivated and based on unsubstantiated and circumstantial evidence.[25] This was followed by the Constitutional Court’s attempt to prevent Abdullah Gul’s accession to the presidency on procedural grounds, based on a controversial interpretation of the constitutional article outlining the parliamentary election of the president.[26] Yet the court’s mandate is limited to verifying whether legislative items conform to procedure rather than verifying the content of material passed. Many critics at the time, even analysts less than sympathetic to the AKP, argued that the sole basis of the court’s attempt to prevent Gul from becoming president was based on political objections to him holding that office.

Yet an irony exists. The legal establishment is accusing the AKP of politicizing the rule of law. This is very debatable. On the other hand, it can be perceived that the legal community is trying to repel the advances of the AKP by making political rulings, thus stepping outside their own defined zone of operation. Following both the attempt to shut down the party and to prevent Gul’s appointment, the challenge to AKP rule does not appear to be coming from an effective political opposition in the form of parties but rather from a politically determined juristocracy. Such behavior is not without support. Supporters of the Constitutional Court argue that their rulings constitute the last line of defense in a parliament that has no effective opposition party to prevent AKP majority rule. Both the CHP and the MHP lack the numbers within the national assembly (even combined votes) to challenge the incumbent’s legislative agenda. The judicial community’s political challenges can be understood as taking place in the absence of effective parliamentary or presidential checks on the government.

The non-judicial amendments did not arouse much public criticism. Externally, the EU welcomed the provisions, stating that these were the most significant and far reaching reforms since the end of 2004, when the AKP passed a whole series of EU harmonization laws. Many circles, including oppositionist forces such as the CHP, welcomed the democratization measures. During parliamentary discussions, CHP Chairman Baykal petitioned Erdogan to exclude the judicial provisions from the series of amendments.

In return the CHP may have been willing to support the remaining proposed changes.[27] This included repealing provisional article 15, which removes special political and prosecutorial immunities for Turkey’s military junta of 1980-1983. Until then, the head of the junta, Kenan Evren, and his colleagues had been immune from prosecution relating to all their acts during their time as military leaders. A further welcomed reform related to the trial of military personnel by civilian courts for criminal related matters as well as banning the trial of civilians in military courts in times of peace. As outlined in Table 1, additional notable reforms included allowing state employees to enter into collective bargaining agreements and allowing individual workers to belong to more than one trade union.

 

THE REFERENDUM RESULTS

 

 

The political campaign climate proved intense and vitriolic. Voters were presented with two choices: a simple “yes” or “no” for the entire package of constitutional amendments. From the beginning, both the CHP and the MHP stepped outside the confines of the referendum’s content and relayed the message that a “yes” vote would be the start of a slippery slope designed to end Turkey’s secular regime and lead to an AKP dictatorship. The BDP was more strategic, stating that it would only support the measures if the amendments included items relating to solving the Kurdish problem (such as the principle of Kurdish autonomy). A few days prior to voting, BDP Chairman Selahattin Demirtas called upon its supporters to boycott the election, as there were no specific provisions that satisfied the party. The AKP’s message was relatively simple. They argued that the measures were designed to improve the quality of Turkey’s democracy; “vote yes if you want to live in a freer society.”

Of the near 52 million eligible voters, the turnout was approximately 77 percent.[31] Approximately 58 percent of those who voted cast their ballots in favor of the amendments, while 42 percent voted against them. The nearly eight-percent majority (fifty plus eight) corresponds to approximately six million votes, giving the amendments a clear sign of societal acceptance. Out of the country’s seven geographic regions, five voted in favor, with the Mediterranean and Aegean regions voting “no” (51 and 56 percent respectively).

A further breakdown shows that of the 81 provincial districts, 19 voted “no,” which were unsurprisingly concentrated in the Aegean, Mediterranean, and Thracian regions. Of Turkey’s three largest cities, only Izmir voted against the amendments (63 versus 37 percent). Istanbul came out with 55 percent in favor, nearly matching the capital Ankara, with 54 percent in favor. In terms of strongest support by percentage, Eastern (81 percent) and Southeastern Anatolian (84 percent) regions emerged with the strongest numbers. These figures should not be taken out of context, however, as the majority of voters in these regions did not turn out to vote. Indeed, in provinces such as Hakkari, only six percent of electorate showed up. In Sirnak the figure was 22 percent; in Diyarbakir, just 33 percent. It can be argued that the BDP’s call to boycott the elections had a significant impact, as the regions and provinces cited are heavily populated by Kurdish citizens.

 

CONCLUSION: THE IMPACT AND SIGNIFICANCE OF THE 2010 REFERENDUM

 

 

The immediate observation that can be made is to acknowledge a comfortable victory for the AKP. A six million vote majority can be interpreted as a sizeable acceptance in a procedure that requires a simple majority in order to come into force. More cautiously, at the time of writing, the results are indicative of the continued popularity of the AKP government after some eight years in office. During the referendum, voters were asked not to elect their governors nor did they have the opportunity to vote on each amendment; they were asked simply whether they were for or against the proposed amendments as a whole package.

Figures 2 and 3 above show a close resemblance to one another. However, the furthest conclusion that can be drawn is to say that 58 percent of the valid votes were in favor of accepting the constitutional amendments passed by the government. This bears a resemblance to the 2007 general election landscape; however, the referendum alone should not be seen as a measure of overall popular support for the AKP. While voters in a referendum are only offered a binary choice (“yes” or “no”), in general elections, voters have a greater choice of parties to choose and vote for. Hence, the 58 percent cannot be seen as an indicator of the overall electoral support for the government.

Immediately following the vote, EU authorities praised the results and congratulated the AKP government for taking bold steps toward significant political reform. The EU’s Commissioner for Enlargement Stefan Fule called the measures a “step in the right direction,” but commented on the need for further reforms in the areas of freedom of religion and expression.[32] Similar voices of praise were offered by Turkey’s Western allies, notably the United States.

These reactions are not surprising as the content of the amendments address significant aspects of Turkey’s EU accession process and represent the highest number of political reform initiatives carried out since harmonization measures in 2004-2005 were passed. On the other hand, the tone and outcome of the referendum has been tainted by increased polarization. Forces in favor, (mainly government) and against the proposed constitutional amendments have fought bitterly to convey their opinions to the public.

The chances of the AKP and the CHP building a strong political consensus over constitutional reform and/or the creation of a new constitution following the June 2011 elections will be difficult. While the CHP perceives AKP reform attempts as little more than the will of the parliamentary majority, the AKP is accused of pushing through its agenda without reaching a political consensus. Since winning the 2011 elections on June 12, the AKP has prioritized the promulgation of a new constitution. To this end, a parliamentary “reconciliation committee” has been created. Representatives from all political parties, including the CHP, will be represented and the committee is intended to serve as the focal point for the drafting process. The government has declared that it wishes to see the process completed by December 31, 2012. In order for this to succeed, the AKP will require the support of opposition parties, which in turn will be dependent upon its ability to compromise.

 

*Dr. Sinan Ciddi is the Executive Director for the Institute of Turkish Studies, based at Georgetown University, Washington, D.C.

 

NOTES



[1] See below for procedures regarding constitutional changes.

[2] The President did have the option to send the proposed changes back to the parliament for reconsideration.

[3] Tayyip Erdogan stated that persons who did not support the amendments were supporters of the 1980-1983 coup and coup-makers in general. See “Erdogan: Hayir diyen Darbecidir,” NTVMSNBC, September 7, 2010, http://www.ntvmsnbc.com/id/25129484/.

[4] When he left office, Sezer vetoed a total of 62 pieces of legislation and blocked 447 executive appointments, more than double the amount of any of his predecessors.

[5] Throughout the AKP’s two terms in office, the party has had a comfortable majority in parliament. In the its first term, it held close to two-thirds of the 550 seats, while in its second term, this figure fell slightly to approximately 330 seats.

[6] Baykal argued that the AKP was interested in gaining “control over the judiciary.” See “Baykal’a gore Referandum evet olursa,” April, 29, 2010, http://www.netteyim.net/haber/Siyaset/baykala_gore_referandum_evet_olursa-haberi-177246.html.

[7] Kemal Kilicdaroglu warned that a yes vote for the proposed constitutional changes would help transform Turkey into an “authoritarian regime.” See “Turkey’s RPP Lashes Out at JDP’s Constitutional Amendments Ahead of Referendum.” European Forum for Democracy and Solidarity, September 2, 2010, http://www.europeanforum.net/news/947/turkey_rsquo_s_RPP_lashes_out_at_JDP_rsquo_s_constitutional_amendments_ahead_of_referendum.

[8] An influential body of individuals formed a loose alliance called “Yes but not enough” (yetmez ama evet!). Their platform tried to encourage the AKP to take bolder reforms in pursuit of a fully-fledged liberal democracy. While supporters of this alliance voted positively during the referendum, they criticized the AKP for falling short on measures such as proposing an entirely new constitution and bolder measures with respect to the Kurdish opening.

[9] This was especially the case when it came to the issue of wearing headscarves. Sezer adamantly fought against any legislative/constitutional changes that would allow the wearing of “religious garments” in the public sphere (kamusal alan). Yasushi Hazama, The Making of a State-Centered “Public Sphere” in Turkey: A Discourse Analysis, Institute of Developing Economies Discussion Paper, No. 262 (2010).

[10]Maraton Bitti Sira Referandumda,” Milliyet, May 7, 2010.

[11]Anayasa Paketine Evet,” NTVMSNBC, May 7, 2010, http://www.ntvmsnbc.com/id/25091345/.

[12]Anayasa Paketi Referanduma,” Sabah, May 12, 2010.

[14] See 2011 JDP election manifesto “Target 2023,” http://www.JDParti.org.tr/site/hedef/396/yeni-anayasa-yeni-yok.

[15] Following the public referendum, the European Commission welcomed the results. The European Commission’s Enlargement commissioner Stefan Fule stated, “These reforms are a step in the right direction towards fully complying with European Union accession criteria.” See http://www.dw-world.de/dw/article/0,,5999622,00.html.

[16] At the time, the AKP was facing a closure case brought forth by the special state prosecutor, Abdulrahman Yalcinkaya. In addition, the opposition parties accused the AKP of trying to create a constitution that would be designed to subvert Turkey’s secular regime. The government thus felt it prudent to shelve the initiative.

[17] The Chief Judge of the High Court of Appeals Hasan Gerceker harshly criticized the constitutional amendments affecting the judiciary, arguing, “the judiciary is nobody’s front or back garden” (highlighting the importance of judicial independence). “Gerçeker: Yargı kimsenin bahçesi değil,” NTVMSNBC, September 6, 2011, http://www.ntvmsnbc.com/id/25129428/.

[18] Gareth Jenkins, “Turkey’s Constitutional Amendments: One Step Forward, Two Steps Back?” Turkey Analyst, Vol. 3, No. 6 (March 2010).

[19] In Turkey, there is no confirmation process by the legislature for officials appointed by the president.

[20] See Emre Kongar, “Bir Diktatorluk Araci Olarak Referendum,” http://www.kongar.org/aydinlanma/2010/896_Bir_Diktatorluk_Araci_Olarak_Referandum.php.

[21] Until 2007, the Turkish president was elected by members of the National Assembly.

[22] This sentiment was repeatedly expressed by the Union of Judges and Prosecutors (YARSAV) in Turkey. See http://www.kongar.org/aydinlanma/2010/896_Bir_Diktatorluk_Araci_Olarak_Referandum.php.

[23]Bahceli: Karanlik Doneme Girdik,” Radikal, September 13, 2010.

[25] Critics at the time suggested that many of the arguments and alleged evidence brought against the AKP were so weak, that the entire case was put together by “googling” items on the internet.

[26] “Turkish President Vote Challenged,” BBC News, April 27, 2007, http://news.bbc.co.uk/2/hi/europe/6598067.stm.

[27]Madde Madde RPP ve NAP’nin İstekleri,” Aksam, March 22, 2010.

[28] Map format obtained from http://referandum.ntvmsnbc.com/.

[29] Source: Higher Electoral Council, Government of Turkey. See http://www.HEC.gov.tr/HEC/ReferandumSecimSonucServ.

[30] Ibid.

[31] This is considered a low turnout rate, as Turkey has a mandatory voting requirement and voter turnout is typically over 85-90 percent.

[32] “Western Powers Back Turkish Referendum Results,” Hurriyet, September 13, 2010.