Turkey’s constitutional negotiations unravel before they even begin

Constitutional reform continues to be on top of the political agenda of the ruling AKP. Despite a shared interest of some of the political parties for change, the paralyzing social and political conflicts in Turkey render compromise, and therefore constitutional reform, unlikely – writes professor Varol.  

On the heels of an electoral victory on November 1, 2015, Turkey’s Justice and Development Party (Adalet ve Kalkınma Partisi) (AKP) swiftly began preparations for drafting a new Constitution.  The AKP’s quest for a new constitution has long been in the making.  It is part of a larger constitutional reform agenda that the AKP has been spearheading since assuming power in 2002.  A new constitution has featured prominently in many AKP election platforms and also appears in AKP’s “2023 Political Vision,” an aspirational document referring to the 100th anniversary of the Turkish Republic’s founding. 

The current Constitution, ratified in 1982 following a military coup, is widely viewed as illiberal and a blemish on Turkey’s democracy.  Although the Constitution has been amended 17 times since 1982 with changes to 113 different provisions, the AKP remains determined to begin from scratch with a new founding document drafted by civilians.

The 1982 Constitution undeniably contains illiberal elements.  For example, it fails to adequately protect the rights of ethnic and religious minorities, and exalts national security and national unity over individual rights and liberties.  But the AKP’s quest for civilianizing the Constitution to remove its military taint rings hollow.  The Turkish military, once a formidable force that staged multiple coups, has already been brought to heel through extensive legal-constitutional reforms as part of Turkey’s accession process to the European Union and criminal prosecutions against hundreds of military officers.  Many argue, instead, that AKP’s vision for a civilian constitution is democratic window dressing for a nefarious agenda to erode checks and balances, weaken the opposition, and create a strong presidency to bolster the powers of Recep Tayyip Erdoğan, the co-founder of AKP who became President in 2014.  AKP’s 2023 Political Vision openly declares that “a presidential, semi-presidential or party-affiliated presidency choice should be selected and implemented.”

The Turkish Constitution, like most other constitutions, describes only how it may be amended, but contains no procedures for its total replacement.  If a constitutional amendment is approved by two-thirds of the Parliament (367 votes), the amendment becomes effective immediately, without a popular referendum.  Alternatively, if the amendment obtains approval only from a three-fifths of the Parliament (330 votes), the amendment must be submitted to a popular referendum before it becomes effective.  The AKP has committed to following these procedures in ratifying a new Constitution.

Despite AKP’s enthusiasm for a new constitution, the 317 seats it obtained in the November 2015 parliamentary elections falls short of the required supermajority.  As a result, shortly after the elections, Prime Minister Davutoğlu began making rounds with opposition political leaders to build consensus on drafting a new document.  He separately met with two opposition leaders from the Republican People's Party (Cumhuriyet Halk Partisi) (CHP), which controls 134 of the 550 seats, and the Nationalist Movement Party (Milliyetçi Hareket Partisi) (MHP), which controls 40 seats.  The leaders agreed to establish a Constitution Conciliation Commission comprising three representatives from each of the four political parties represented in the Parliament to begin the constitutional negotiations.  Davutoğlu was also scheduled to meet with representatives from the Peoples’ Democratic Party (Halkların Demokratik Partisi) (HDP), which controls 59 seats and in part represents the Kurdish minority in Turkey.  But Davutoğlu cancelled the planned meeting.  He accused the HDP of fomenting violence and polarizing the country by supporting the Kurdistan Workers’ Party (PKK), which has fought an off-and-on battle with the Turkish government for nearly three decades.

The AKP’s plan was for the new Constitution Conciliation Commission to pick up from where its predecessor left off.  In October 2011, the AKP-led Parliament had authorized a Commission to draft a new constitution.  Although the Commission reached a consensus on 60 provisions in the new constitution, the constitution-making attempt failed due in large part to AKP’s insistence on transitioning to a presidential system.

Version 2.0 of the Constitution Conciliation Commission held its first meeting on February 4, 2016.  In an effort to avoid the deadlock that prematurely ended the 2011 constitution-making attempt, the AKP suggested a six-month limit to the constitutional negotiations.  But this time limit was rejected by the opposition parties.

As I predicted in a previous analysis, consensus making has proven elusive.  It took only three meetings for one of the opposition parties to pull out of the Commission.   On February 16, CHP representatives walked out of the constitutional negotiations, accusing the AKP of attempting to strong arm the other parties to agree to a presidential system. The CHP representatives announced that “they refused to give concessions on the founding principles of the constitution and the parliamentary system.”  CHP’s leader, Kemal Kılıçdaroğlu, later added: “What is the use of sitting around a table on an issue which we will not vote for and will not accept?”  On the same day, the Commission Chair declared that the Commission was dissolved.

Prime Minister Davutoğlu and President Erdoğan were both unmoved by the Commission’s dissolution and refused to relent.  Davutoğlu asked the Commission to resume the talks and added:  “We need to keep a framework at the table so every issue can be discussed without preconditions,” impliedly referring to CHP’s refusal to discuss a transition to presidentialism.  The same day, Erdoğan also made a personal appeal to lawmakers to resume negotiations and reiterated his confidence that agreement would be reached on a transition to presidentialism.  He added, “We will release our new constitution within the framework of building of the ‘New Turkey.’ The presidential system will be realized in this way.”

Buoyed by support from Davutoğlu and Erdoğan, the Chair of the Constitution Conciliation Commission called on the political parties to return to the bargaining table and expressed hope that “the CHP will give a positive response to this call.”  But he was quick to add that the constitutional negotiations would move forward at all costs - with or without CHP.  Davutoğlu also made this position clear in a subsequent statement:  “Of course, we’d prefer to draft the new constitution with a high level of representation by joining all four parties. But if the CHP abstains from joining the commission, we believe a new constitution that Turkey needs can be drafted by a commission formed with the other two parties.” 

But any hopes of a swift return to the bargaining table were quickly dashed.  MHP announced that it would not participate in the negotiations without CHP.  Although MHP leader Devlet Bahçeli believes that CHP should return to the bargaining table, he made it clear that he does not share the AKP’s insistence on forging ahead:  “As the MHP, we believe that a preparation for a constitution [without the CHP] will not yield results and even if it yields results, it will not be inclusive.”  The other party to the negotiations, the HDP, also believes in an inclusive, four-party Commission, and shares the CHP’s skepticism about a presidential system.  Although the HDP’s Co-Chair, Selahattin Demirtaş, has acknowledged the need for a new, more liberal Constitution, he has also argued that the AKP’s proposal is not a presidential system, but a one-man system, impliedly referring to President Erdoğan.

At this point, the constitutional negotiations are at a standstill.  This may appear to be a positive development for the opponents of presidentialism, since the standstill preserves the parliamentary status quo.  But this is a Pyrrhic victory.  As I argued previously, despite the angst that the possibility of presidentialism has generated both domestically and globally, adopting a presidential system is nothing but a red herring. President Erdoğan has already informally consolidated control over the Turkish political system, and will continue to do so, regardless of any formal changes to the constitutional text.  If the concern about formally installing presidentialism in Turkey is the risk of presidential overreach, that risk has already materialized.

On Sunday, March 6, Prime Minister Davutoğlu announced that his government would unilaterally draft a new constitution, “find the 330 (votes) and take it to a referendum.”  Recall that the AKP has 317 deputies in the Parliament, which is 13 votes short of the 330 votes required to submit the new document to a referendum. The 13-vote gap may appear small, but the parties in the Parliament view each other with deep suspicion, which makes defections by individual party members unlikely.  Even if the AKP backs off from its insistence on formal presidentialism, several other major points of disagreement can easily block AKP’s attempts to obtain the 13 votes it needs for a referendum.  

The 2011 attempt at constitution-making revealed deep conflicts—not only over the formal adoption of presidentialism—but also the status of the unamendable provisions in the Constitution, the definition of Turkish citizenship, religion-state relations, and the rights of the Kurdish minority.  For example, although CHP is committed to creating a more rights-friendly document, it has refused to tinker with the unamendable provisions in the Constitution, which, among other things, define the Republic as a democratic and secular country, with Turkish as its official language.  The HDP’s constitutional platform focuses primarily on bolstering the rights of the Kurdish minority, officially recognizing Kurdish as a language, and amending provisions that define Turkish citizenship in ethnic terms (Article 66 states, “Everyone bound to the Turkish state through the bond of citizenship is a Turk.”).  But the nationalist MHP is against any changes in the definition of Turkish citizenship and language and also remains opposed to formal presidentialism.

Overall, the CHP and MHP appear to be more inclined to maintain the status quo.  Although the HDP and the AKP are both pining for constitutional changes, their agendas for reform differ significantly.  In addition, a deep seated hostility exists between the HDP and the AKP, which makes any compromise between the two parties unlikely.  Most recently, the AKP proposed lifting the parliamentary immunities of five HDP deputies, including HDP co-chairs Selahattin Demirtaş and Figen Yüksekdağ, for allegedly supporting the terrorist group PKK.  Moreover, any signs of compromise between the two parties may be viewed as undermining the wishes of their respective core constituencies.  

These political conflicts have shown no signs of abating since the 2011 constitution-making attempt.  If anything, they have gotten worse.  The country is more divided than it has ever been in recent history, much of which is fueled by President Erdoğan himself.  He often uses abrasive rhetoric, particularly during election campaigns, to paint opposition parties as traitors or terrorists and energize his base.

There are several other elephants in the constitution-making room.  The once-stable Turkish economy is floundering. A ceasefire between the government and the PKK collapsed in July 2015, resulting in the resumption of a decades-long conflict.  Kurdish towns in Southeastern Turkey have been under intermittent curfew.  Suicide bombings across the country over the past year—most recently on Sunday, March 13, in Ankara—attributed to Kurdish militants or the Islamic States have shook the country and claimed hundreds of lives.  Turkey has also had to confront an influx of over two million refugees from Syria. 

The AKP’s insistence on a new constitution in this polarized and crisis-ridden environment demonstrates the growing hubris of its political leaders and ignores political realities.  Constitution-making requires consensus, and consensus requires compromise and some level of trust between negotiating parties.  These elements are absent from the current political discourse.  At least in the near future, it will be exceedingly difficult for the political parties to move beyond the paralyzing social and political tensions and generate the type of consensus necessary for a new constitutional text.

Ozan Varol is a native of Istanbul, Turkey, and an Associate Professor of Law at Lewis & Clark Law School in Portland, Oregon.  He is a scholar of comparative constitutional law, with his recent scholarship focusing on constitutional transitions and constitutional design.  He has authored more than a dozen book chapters or law review articles, and two forthcoming books with Oxford University Press:  The Democratic Coup d’État (monograph) and Comparative Constitutional Law:  A Global and Interdisciplinary Approach (co-authored textbook).  You can follow him on Ozan Varol's personal website and on Twitter, @ProfessorVarol.  He expresses his gratitude to Çağatay Akkoyun for his research assistance.