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6.14.2011

Electoral Politics and Turkey’s New Constitution

On Sunday, June 12, 2011, Turkish voters headed to the ballot boxes to cast their votes in parliamentary elections. According to preliminary results, the incumbent Islamist-leaning Adalet ve Kalkinma Partisi (AKP) (Justice and Development Party) comfortably won a third consecutive term in office, obtaining 49.9% of the popular vote and 326 of the 550 seats in the Parliament.

AKP’s electoral victory was widely expected. But the question remained whether AKP would obtain the requisite supermajority in the Parliament to unilaterally draft and ratify a new Constitution. During the campaign, AKP steadfastly committed itself to drawing up a new Constitution to replace Turkey’s 1982 Constitution, which was drafted following a military coup. Many secularists in Turkey shared AKP’s commitment to scrap the 1982 Constitution, which is viewed among many as a blemish on Turkey’s democracy, and draft a new, more democratic Constitution. But the secularists feared that AKP might use this opportunity to alter, among other things, the theoretically non-amendable constitutional provisions that protect the nation’s secular regime and replace Turkey’s parliamentary system with a presidential one, for which Prime Minister Recep Tayyip Erdogan had publicly voiced his support.

The Turkish Constitution may be amended in one of two ways. If the new Constitution obtains approval by a two-thirds majority in the Parliament (367 seats), the Constitution may be ratified without the need for a popular referendum. If the Constitution is not approved by a two-thirds majority, it could still be submitted for ratification by a popular referendum if approved by a three-fifths majority (330 seats).

The preliminary tally of 326 seats falls short of the supermajority that AKP needed to unilaterally ratify the new Constitution in the Parliament. AKP will thus need the cooperation of opposition parties to rewrite the Constitution. This need for collaboration was apparent in Prime Minister Erdogan’s post-election victory speech. During the campaign, Mr. Erdogan had stated that he “will not waste time” by consulting with opposition parties in drafting the new Constitution. In his victory speech, he significantly dialed down his pre-election rhetoric and adopted a more conciliatory tone. In devising the new Constitution, Mr. Erdogan proclaimed, he would “embrace” the opposition parties and consult with all facets of society, including political parties, civil society organizations, and academics. He promised a Constitution that would appeal to all 74 million Turkish citizens.

Stay tuned for new developments in the upcoming months as Turkey begins the process of drafting its new Constitution.

-- Ozan Varol, Chicago-Kent College of Law

3 comments:

  1. Dear Ozan,

    very interesting contribution. I'm particularly interested to see how the constitutional court would treat any such changes. The fact that 1982 Constitution limits its competence only to the review of the form rather than substance of the amendments didn't seems to stop it from the substantive review of the "veil amendment" in 2008. Would you think that the fact that this is a full revision rather then an ordinary amendment procedure would change anything?

    Nedim Kulenović

    ReplyDelete
  2. Dear Nedim,

    Very interesting question, but one with no easy answers. As an initial matter, it's not clear to me that the Court would have jurisdiction to engage in the judicial review of a completely new Constitution. The 1982 Constitution authorizes the Court to review the form of constitutional amendments, but doesn't speak to its jurisdiction to review wholesale revisions. But constitutional silence on jurisdictional matters hasn't stopped the Court from assuming jurisdiction in the past. For example, the Court began to review and strike down constitutional amendments in the 1970s even though the then-existing Constitution was silent on the Court’s jurisdiction over constitutional amendments.

    Even if it assumed jurisdiction, my guess is that the Court would be more hesitant to strike down a wholesale revision of the Constitution than an ordinary constitutional amendment. But if the new Constitution attempted to alter the non-amendable provisions in the existing Constitution (e.g., the secular nature of the state), I wouldn't be surprised if the Court stepped in to strike down those specific provisions.

    Another source of uncertainty stems from the court-packing plan passed in September 2010 (after the "Headscarf Amendment" decision to which you refer). That court-packing plan changed the structure of the Court by adding six new permanent seats. It remains to be seen how the new judges will alter the balance of the Court.

    Ozan Varol

    ReplyDelete

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