Languages of Politics and the Constitution:

An Analysis of the Turkish Debate on the New Constitution

-DraftPrepared fort he Annual Meeting of MESA, November 22-25, 2014,
Washington DC

Inroduction

Attempts for a total renewal of the Constitution of Turkey failed.

Initiated in April 2007 by what I have called elsewhere a politicalconstitutional crisis1, the events have resulted in a clear and explicit
consensus that Turkey must replace the current, 1982 Constitution
bearing still the authoritarian (or, following Arato, Bonapartist2)
characteristics of the military regime of September 1980 with a new,
civilian and democratic one. The consensus on the need for a total
constitutional renewal has gained a further political significance when,
by October 2011, a parliamentary reconciliation committee was set up
under the Chairmanship of the Turkish General National Assembly
(TGNA) Speaker. Comprising three members from each political party
represented as a group in the TGNA, the Committee has made its own

1 Levent Kker, Turkeys Political-Constitutional Crisis: An Assessment

of the Role of the Constitutional Court, Constellations, Vol. 17, No. 2,
2010, pp. 328-344.
2 Andrew Arato, Democratic Constitution Making and Unfreezing the Turkish
Process, http://www.resetdoc.org/story/00000021646 (November 10, 2014).

rules regarding how it is going to proceed with the task of preparing

the draft new constitution. Among the self-made rules of this ad hoc
Committee, one relating to the principle of unanimity in finalizing the
draft constitution and the other pertaining to the procedure of
enactment of the new draft strike out: Adopting the rule of unanimity
on all its decisions, the Committee also stipulated that it is not bound
with the established restrictions effective for constitutional
amendment. The Committees explicit rejection of the binding power of
amendment rules on the grounds that they are working not on
constitutional change but total constitutional renewal has been a very
conscious expression that they were acting not as representatives of
constituted but of constituent power.

Despite this parliamentary consensus in the beginning, the

Committee failed to produce nothing but a meaningless consensus on
some 60 articles on the noncontroversial principles and rules about
human rights and fundamental liberties. The Committee failed to go
any further because political parties representing nearly the 90+
percent of the total vote in 2011 elections have failed to establish a
consensus as to the reasons why Turkey needs a new constitution.

What follows is an attempt at understanding critically how this failure

came about. In order to accomplish this task, it is necessary first to put

forward the reasons why Turkey needs a new constitution, and this is
what I try to do in the first section. I have to make myself clear
beforehand, however, that the reasons I mention are reasons shared
by all political parties and groups who accept that Turkey needs a
totally new constitution.

Since I try to understand critically why the constitutional renewal

process failed, I attempt to sketch out conceptually how the political
parties approached the issues. Here I use the Schmittian and Eastonian
conceptualizations3 on the relationship between politics and the
constitution, and try to show that the parties of the establishment (i.e.
CHP and MHP) share a predominantly Schmittian approach to the
constitution, whereas AKP adopts an Eastonian approach). HDP
(formerly BDP), the party of Kurdish political movement now trying to
become an umbrella organization for all opressed and marginalized
groups in society) has a predominantly moral (and thus legitimacy
oriented) perspective albeit some with Eastonian flavor when dealing
with the negotiation process to resolve the PKK (and the Kurdish) issue.

In the concluding (third) section of the paper I would like to stress the
significance of a Habermasian approach in dealing with the specifics of

3 My choice of Schmittian and Eastonian conceptualizations is inspired

by Gianfranco Poggi, The Development of the Modern State (London:
Hutchinson, 1981).

the Turkish constitutional renewal process, situation the issues in the

context of what I call, if I may, supranational constitutionalism,

Reasons for Turkeys Need for a New Constitution

The current 1982 Constitution has been an outcome of the military

regime established after the 12 September 1980 coup. The
Constiution, thus, entrenched the extremely authoritarian tendencies
of the military, setting up institutional mechanisms to minimalize
political participation of diverse societal groups with what has been
deemed to be harmful to the foundations of the Republic.

Despite the fact that the 1982 Constitution has been amended so
many times in so many ways, it still fails to accommodate to the
requisities of an advanced democracy meeting the criteria of Europe
(i.e. Council of Europe of which Turkey has been a member since its
inception in 1949 and the EU, which Turkey still at least on paperaspires to become a full member in the future). In addition to (and to
many observers resulting from) this failure to meet the requisites of an
advanced democracy, Turkey has been unable to resolve issues
stemming from cultural pluralism, failing to establish a judicial culture
to foster rule of law, and overcentralized governmental institutions
with a rather inappropriate system.

(a) Non-recognition of cultural diversity and its political-public

significance
As for the issues stemming from the contradictions between the
pluralist nature of society and the lack of adequate political institutions
and mechanisms, namely the Kurdish issue, the issues reflected by the
political demands of the Alevi communities, the non-Muslim
communities, the LGBT movement, etc., suffice it to cite that the
Constitution stipulates that the Republic has been established as a
nationalist state.

Referring to Ernest Gellners conceptualization of nationalism as a

political ideology aiming at a marriage between the nation as a
homogeneous cultural entity and the sate as a political unit4, one can
easily see that the Turkish Constitution tries desperately to legitimize
the creation of a homogeneous nation by using the power of state
institutions controlled instrumentally by the military and civilian
bureaucracy in the absence of strong societal forces.

From a legal point of view, the Constitution has entrenched the

creation and maintenance of a homogeneous nation in several ways

4 Ernest Gellner, Nations and Nationalism, Itacha, NY: Cornell

University Press, 1983.

like: (a) prohibiting the use of languages other than Turkish as mother
language in primary and secondary instruction (Art. 42); (b)
stipulating compulsory religious education in schools to control the
formation of national consciousness [an instrument which seems to fit
in the historical line of development initiated by the Republic which
replaced the Office of eyhlislam with that of the Presidency of
Religious Affairs to control the faith, worship and morality of citizens]
(Art. 24); (c) banning political parties and other societal group
formations on issues of identity (Art. 68); (d) accepting the Treaty of
Lausanne as an exception to these prohibitionist stipulations, but
treating the rights of non-Muslim citizens of the Republic in a context
which subjects their rights guaranteed by Lausanne to a condition of
mutuality.

(b)Overly centralized administration

The Constitution, following the nationalist political choices of the

founders of the Republic, institutionalizes an overly centralized
administrative system. According to the Constitution, Turkish public
administration is to be founded on the principles of decentralization
and the unity of administration. According to the Constitution,
decentralization, which is formation of autonomous local
administrative bodies, has been subject to the tutelary control of

central state administration to sustain the unity of the state. Thus, the
Turkish Constitution strikes out as a unique example in many
developed European democracies (like taly and France, in addition to
Spain) that have adopted decentralization or regional government
as foundational principles.

(c) Problem with the Independence of the Judiciary

The poor human rights record of the Republic in European Court of

Human Rights data indicates that there has to be something gravely
mistaken in the Turkish judicial system. This is what some researchers
refer to as the lack of an adequate legal (judicial) culture. Although
this may seem at first sight not as a problem of the Constitution as
such, the system adopted originally by the Constitution on the
formation and role of various branches of courts, the norms regulating
the legal profession, all have been so designed as to promote a statist
culture, that is judges mostly preferring to make decisions favoring
the protection of the establishment.

This statism as a dominant element in Turkeys judicial culture might

have been effected in a positive manner by the constitutional
amendments of 2010 which changed the rules of the legal profession.
This being said, however, the AKP governments recent reaction to

some recent decisions in a way to reverse this important move towards

an independent judiciary has been quite discouraging.

(d)The Problem with the Governmental System

Until the 1982 Constitution, Turkish governmental system has assumed
always a form of parliamentary supremacy. In contrast to the
parliamentarianism of the 1924 Constitution regarding the TGNA as the
sole representative organ of national will, the 1961 Constitution
provided for a purely parliamentary system with a bicameral
legislature and a ceremonial presidency. The 1982 Constitution, on the
other hand, established a president with significant powers over other
branches of government but without any sort of accountability. This
strikes out as peculiarly unique system which is neither
parliamentarian, nor presidential, nor even semi-presidential. As an
outcome of the April 2007 crisis, the president is now elected not by
TGNA but by direct popular vote, a constitutional change that drew the
Turkish system closer to semi-presidentialism. Still, however, existence
of a powerful but unaccountable president with a cabinet government
(a peculiarly Turkish system sometimes called parliamentarianism
with a president raises issues to be resolved by a new constitution.
(e) Internal Contradictions

In addition to the issues mentioned above, there are inner

contradictions some of which have resulted from the comprehensive
amendments of 1995, 2001, 2004, and 2010.

First contradiction is between the territorial definition of the state

(Articles 1 and 3) and the reference to an ethnic polity in defining
citizenship (Art. 66).

Second and highly significant contradiction is between the nationalist

Constitution and the supremacy of international human rights law
(Art. 90). This contradiction is further exacerbated by the adoption of
constitutional complaint in 2010, which opened a way for
transformation of Turkish Constitutional Court from an institution of
Republican guardianship to a human rights court at a national level.

Political Party Approaches to Constitutional Renewal

Now I may turn to the ways in which political parties approach to the
reasons for the need for a new constitution in Turkey. As already
mentioned, despite the fact that all parties recognize the need for a
new constitution, their perspectives especially on the reasons for (and
thus on the content of) a new constitution differ. The question I pose
here is how can we account for these differences? Instead of taking

each political partys vision in its own terms, I endeavor to situate the
issues within a broader frame of conceptualizing the relationship
between politics and the constitution.

(a) Carl Schmitt in Turkey (?)

Most of the reasons outlined above, most notably that pertaining to the
denial of the political significance of cultural pluralism on the one hand
and the internal contradiction between the supremacy of human rights
law and national unity as entrenched on the other, require an
encounter with the nationalist ideology that determines the
foundational principles of the Turkish Constitution.

Here, one cannot help but see the presence of a specifically Schmittian
problem. Carl Schmitt, a prominent legal and constitutional theorist of
Weimar Germany, prioritizes the concept of the political vis--vis the
normative constitution. For Schmitt a political decision on us (the
nation) and them (others) must be made before a positive
constitution is enacted. In other words, for Schmitt, the very existence
of every single constitution depends on a prior decision on and will of
the nation. Thus, for Schmitt, a constitutional renewal can take place

only under conditions in which a change in the political decision has

become inevitable.5

Viewed from within this angle, reasons for Turkeys need for a new
constitution embody a necessary requirement of replacing the earlier
political decision made by the founders of the Republic in the early
1920s and 1930s.

Historically speaking, the political decision in Turkey has been a

definition of Turkish national identity in ethnic (Turk) and religious
(Islam) terms. In the Treaty of Lausanne, just a few months before the
Republic was proclaimed, the southern and southeastern borders of
Turkish territory and the boundaries of citizen identity (non-Muslim
minorities) have been drawn on religious terms. In the process of
adopting the first Constitution of the Republic, all Muslim citizens have
been deemed to be Turks, while non-Muslim minorities have been
regarded as Turk only as bearers of Turkish nationality. This meant that,
for quite well known historical reasons which I cannot dwell upon here
for reasons of space, the political decision on the Turkish national
identity required the state control over the religious sphere to
transform the predominantly religious worldview of the new citizenry.

5 Carl Schmitt, The Concept of the Political, Chicago: The University of

Chicago Press, 1996; and Carl Schmitt, Constitutional Theory, Duke
University Press, 2008.

Thus, basic tenets of Kemalist ideology formulated in the 1930s

became constitutionalized in 1937 and provided for the foundational
principles (Turkish nationalism and secularism (laicism) of the state.
It should be noted also that this foundational political decision
remained relatively intact in subsequent Constitions of 1961 and 1982.

As of today, the struggle of the Kurds for political recognition and the
rise to power of a pro-Islamic political party, all are seen as threats to
the Republican establishment. Thus, CHP and MHP share a common
political attitude that a constitutional renewal cannot amount to a
transformation of the foundational political decision on the Turkish
nation-state. From the perspective of these parties, two main pillars of
the Kurdish issue, lifting the ban on education in mother language and
regional autonomy cannot be accepted. MHP is more open and direct
on its evaluation of Kurdish political demands as targeting the
territorial integrity of nation.

The ruling AKP on the other hand seem to have an ambivalent attitude.
Ambivalent in the sense that, as a political party emerged historically
from within a pro-Islamic movement, they have a tendency to redefine,
thus in this sense renew the foundational political decision on
national identity in more religious (Islamic) terms, while as a kind of
catch-all party controlling the state apparatus ready to make

concessions to the status quo. (An example of this was, after the
reaction of CHP and MHP representatives reaction, AKPs withdrawal of
its own proposal accepting Kurdish as mother language.) Still, it is
the opinion of the present author that AKPs aim at redefining the
national identity on Sunni-Muslim terms is getting more and more
visible publicly. Thus, in this sense, AKPs approach to constitutional
renewal is also Schmittian, not in the sense of protecting the status
quo, but rather of re-writing it on a different political decision on
national identity.

(b)The Eastonian Dimension: Constitution-Making as Business

In November 2012, AKP submitted to the TGNA a proposal for

presidentialism, or as Ahmet yimaya, a jurist, a prominent MP and
the Chair of TGNA Committee of Justice, described more correctly
Turkish style presidentialism. The proposal is still on the table and
the party still declares that they hope to garner enough parliamentary
seats to amend the Constitution accordingly.

It is not my intention to discuss the proposal here. The point I wish to

make is that the way AKP has made this proposal shows the partys
other face: AKP regards the constitution making process not only as a
process of rewriting the Turkish national identity, but also as a process

of negotiation that would render stronger its position in power. This

attitude has become quite visible when AKP declared also that if the
Reconciliation Committee unanimously agrees on all other aspects of
the new Constitution, they would refrain from pushing a transition to a
presidential system.

In fact, a similar attitude to the meaning of constitution in general and

the specific significance of a new constitution in the Turkish context
has also been present in other, predominantly Schmittian political
party perspectives. In the course of the debates over the new
constitution, it has been a widely shared view that Turkey today needs
a truly civilian and democratic constitution replacing the existing one
dictated by the military. In the general usage of such a language, many
political actors of various persuasions shared the view that a civilian
and democratic constitution means constitution as social contract.
These political actors, most of them from within the ruling AKP circles
or its supporters, meant something like a contract negotiated and
signed eventually by parties with conflicting interests.

Either a lack of knowledge of the (natural law and) social contract

tradition ranging from Hobbes and Locke to Rousseau, Kant and
Rawls, or a casual negligence of conceptual clarity or both has
determined the attitudes of many political actors in the process,

leading them to see the constitution making process not as a

principled moral and political endeavor, but as an opportunity to be
instrumentalized for their partial political power interests.

The way the ruling AKP, the most powerful political organization in the
country with a highly significant electoral support, has handled the
issue of constitutional renewal is full of signs of this instrumentalized
perspective. Instances of this are many: Refraining from submitting to
a public political debate a fully developed constitutional proposal, AKP
managed to change the Constitution in many important respects in
2010, but later did not see these self made amendments as
conducive to its position in power and attempted to reverse some of
them. In contrast to its publicly declared statements, the party made
an abrupt shift to presidentialism and somewhat abandoned its earlier
consensus-seeking attitude and lapsing into a rather undemocratic
form of majoritarianism.

A New Constitution for Deliberative Democracy

It seems that Turkeys search for a new constitution can resume only
after the general parliamentary elections in June 2015. The question
now in on if there is a way to overcome the current deadlock caused by

the Schmittian perspectives on politics and the constitution. I am

inclined to say: yes, there is. In what follows, I will try to explain how.

The most pressing issue Turkey is coping with is the Kurdish issue. The
issue has two interrelated but somewhat distinguishable dimensions.
One is the PKK issue and the other is embedded in the Kurdish struggle
for recognition.

As for the first dimension, a negotiation process has been already

underway between the state on the one hand and calan and PKK on
the other. The logic of these negotiations do not have any significantly
constitutional dimension for the issue can easily be managed by legal
instruments like enacting new statute law or taking other
administrative measures.

The second dimension, on the other hand, is fundamental in the sense

that Turkeys non-recognition of cultural-political diversity lies at the
very heart of the Kurdish issue, among others as mentioned in the
introduction. Thus, a new definition of the state with multiple political
identities, dismantling the centralized state with decentralization
(and regionalization) as core constitutional values and institutions are
required. These are not only the prerequisites of solving the Kurdish

issue per se, but other issues stemming from non-recognition of the
political significance of cultural pluralism.

This being said, one can argue that it has become a necessity for
Turkey to re-write its constitution on a foundation that takes into
account the requirements of a post-national polity.

By post-national polity I mean the formation of a constitution not based

on a Schmittian understanding but rather on the basis of political
legitimacy as developed in the works of Jrgen Habermas. Instead of
subjecting the existence of the constitution to a prior political decision
on the national identity, Habermass approach sees constitutionally
entrenched procedures for reaching collectively binding decisions as
essential for overcoming problems stemming from cultural difference. 6
This seems to be an appropriate way for Turkeys constitutional
renewal in at least three respects: (1) It would enable a resolution of
issues of nonrecognition of cultural identitiy/difference. (2) It would
render impossible any concertration of power in the hands of a single
political actor (an individual or a group, a party, etc.). (3) It would
facilitate, also, Turkeys accession to a supranational political entity,

6 Jrgen Habermas, Equal Treatment of Cultures and the Limits of Postmodern

Liberalism, The Journal of Political Philosophy, Vol. 13, No. 1, 2005, pp.1-23 and J.
Habermas, The European Nation State. Its Achievements and Its Limitations. On the
Past and Future of Sovereignty and Citizenship, Ratio Juris,Vol. 9, Issue 2, , June 1996,
pp. 125137.

namely the EU which is to develop along in the direction described by

Habermas as a new political configuration in which the emancipatory
gains achieved in the nation-state would get new and enhanced
dimensions.