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A liberal promise (September 2007)

Ergun Ozbudun, constitutional expert
Ergun Ozbudun, constitutional expert

After this clear popular verdict, Turkey's political turmoil appeared to be at an end. The AKP had a comfortable majority in parliament. In August, the Government announced that work would begin on a new, so-called "civilian" constitution, based on the protection of individual rights rather than the statist ideology that had prevailed in the Turkish Republic since its founding. There had been widespread calls for constitutional reform from Turkish civil society, and of course from the EU.

The AKP charged Ergun Ozbudun, a well-known professor of constitutional law at Bilkent University in Ankara, to set up a working group to prepare a draft constitution. Ozbudun chose Levent Koker, Yavuz Atar, Fazil Husnu Erdem, Serap Yazici and Zuhtu Arslan. While the group members are not politicians, they can best be described as liberal academics with an interest in introducing European standards into Turkey. (Hurriyet 31 August 2007).

The working group presented its draft constitution in September 2007. Consultations with the bar associations, universities, NGOs and journalists followed. The Ozbudun draft was based on a very different political philosophy than the current constitution. This was obvious right from the preamble. The current constitution begins as follows:

"In line with the concept of nationalism and the reforms and principles introduced by the founder of the Republic of Turkey, Ataturk, the immortal leader and the unrivalled hero, this Constitution, which affirms the eternal existence of the Turkish nation and motherland and the indivisible unity of the Turkish state, embodies…"

The Ozbudun constitution proposes a very different preamble:

"This constitution, which guarantees universal rights and freedoms stemming from human dignity that aim at enabling individuals to live together in peace and justice, which considers differences a cultural wealth and rejects all varieties of discrimination, which takes national unity as the basis and devises rules and institutions of the democratic and secular republic on the basis of human rights and the rule of law, was adopted with the free will of the Turkish nation as a symbol of devotion to the target of a modern civilization set by the founder of the republic, Mustafa Kemal Ataturk."

There are many other important changes:

  • Fundamental rights and freedoms can only be limited under conditions permitted by the European Convention on Human Rights (ECHR).
  • The rules governing party closure are amended to make shutting down a party more difficult. Under the new proposed constitution, a party can only be proscribed if its programme is clearly contrary to the constitution, and after it has received a formal warning. Even in the case of a party's closure, its parliamentarians will not have their mandates revoked.
  • An amendment to the composition of parliament will ensure that even small parties will be represented. Turkey's parliament has 550 seats. Under the new system, 450 will be appointed through direct election by constituencies, but the remaining 100 will be chosen through proportional representation. The distribution of these 100 seats will reflect the overall percentage of votes each party received in the election. Winning 1 percent of the national vote will therefore be enough for parliamentary representation.
  • The 1982 constitution's definition of 'Turkishness' is revised. It currently reads: "Everyone bound to the Turkish State with the bond of citizenship is a Turk". Under the new proposal: "Everyone bound to the Turkish Republic with the bond of citizenship is called a Turk regardless of religion or race."

From the moment it was first presented, the draft met with intense political opposition. As the leading liberal columnist Sahin Alpay wrote:

"The fierceness of the opposition and the absurdity of the accusations raised against the draft are basically indicative of the military-civilian bureaucracy's resistance to a possible loss of constitutional privileges, and have absolutely nothing to do with the defence of secularism."

(Sahin Alpay, 1 October 2007)

Ozbudun himself noted:

"There are circles who claim that an Islamic state will be founded in Turkey and that there is a threat of separatism in Turkey. All such claims are nonsense. Such rumours arose due to the fact that certain circles are fearing a loss of power due to the new draft Constitution."

(Ozbudun in Today's Zaman)

AKP Deputy Chairman, Dengir Mir Mehmet Firat has stated that the current Constitution, given it was drafted after a coup in 1982, is "antidemocratic and anti-individual". He added:

"Yet they now claim that the AK Party cannot amend the Constitution. They imply that we are risking a coup d'état if we attempt to change it."

Today's Zaman

AKP deputy chairman Dengir Mir Mehmet Firat also announced at a conference in the US in early March 2008 that the AKP would soon table the new draft constitution for discussion before the parliament's Constitutional Commission

(Today's Zaman).

But does the Government have the numbers to change the constitution? There are 550 seats in Turkey's Grand National Assembly, two of which are currently vacant. The AKP holds 340 of those seats.

Article 175 of the constitution outlines the procedure for amending the constitution and when a referendum is required:

(3) The President of the Republic may refer the laws related to the Constitutional amendments for further consideration. If the Assembly adopts the draft law referred by the President by a two-thirds majority, the President may submit the law to referendum.

(4) If a law is adopted by a three-fifths but less than two-thirds majority of the total number of votes of the Assembly and is not referred by the President for further consideration, it shall be published in the Official Gazette and shall be submitted to referendum.

A two-thirds majority in parliament requires 367 affirmative votes; a three-fifths majority only 330 votes. Even without the support of other parties, the government has the numbers for a three-fifths majority – the lower threshold where a referendum is mandatory.

The AKP has already succeeded in one referendum on 21 October 2007, in which 69 percent of the population voted in favour of the government's proposal to have the president elected by popular vote.

There is therefore every chance that the government could succeed in changing the constitution. If anything is holding it back, it is fear of the reaction from the military establishment. In a democracy aspiring to join the European Union this is not a good reason.

Parties in the Grand National Assembly

Party

Number of Seats

AKP

340

CHP

98

MHP

70

DTP

20

DSP

13

Independents

5

BBP

1

ODP

1

Vacant

2

Total

550

Source: http://www.tbmm.gov.tr/develop/owa/milletvekillerimiz_sd.dagilim

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