It seems we are moving into uncharted territory with the possible referendum scenarios the ruling Justice and Development Party (AK Party) is pondering on the eve of national elections, scheduled for mid-2011.
Judging from the increased tension in Parliament recently and the staunch opposition, who dug their heels in deep in the face of back-to-back reform initiatives by the government, we can anticipate that tempers will flare up further, possibly bringing the representative body to a standstill until the next election.
To call for a public referendum for any constitutional change, Parliament needs to pass the proposal with at least 330 votes. The government has 338 deputies, but the problem is that there might be defectors in the party ranks as the vote will be held by secret ballot. The AK Party could secure support from the pro-Kurdish Peace and Democracy Party’s (BDP) 20 deputies, but that is still far from certain. The BDP may make unacceptable demands, such as having the jailed leader of the outlawed Kurdistan Workers’ Party (PKK) be a party in the government’s reconciliation talks, in return for such cooperation.
The questions still remains, however, whether the opposition has a right to submit the proposal to the Constitutional Court for review after it secures 330 votes on the floor. There is no precedent for this as no party in Parliament has made such a request to the court in the past, and no authority exists in the law to do so. It makes perfect sense for Parliament to take the court out of the discussion in matters that will be directly referred to the people. If the legitimacy of the court lies with the people, the court should keep silent when the people are about to speak unless there is the possibility of a flagrant violation of fundamental rights enshrined in the Constitution.
Nevertheless, we have the notorious example of an “invented 367” rule in the past for the election of the president in 2007. Though there was no precedent for that rule, either, and most legal scholars agree there was no basis for it in the law, the top court still agreed with the opposition and upheld the 367 rule. In the constitutional change asking for the removal of the ban on headscarves, the court again overstepped its authority and usurped legislative power by ruling on the substance of the change — which was adopted by 411 votes — even though the Constitution explicitly says the court cannot rule on the substance of changes that receive over two-thirds of the votes in Parliament. It should have conducted its review on a procedural basis only.
Therefore, we have two wild cards here in our hands. One is the opposition who have become accustomed to saying “no” to any and every proposal put forward by the government. The other is the activist judiciary, which certainly does not hesitate to go beyond the text and spirit of the law. Unfortunately, it is difficult to predict the outcome in advance as the rules of the game constantly change in Turkey. I guess the final arbiter will be the people who will cast their votes in the next general election and in all likelihood punish those whom the public view as obstructive to the progress of the country.
When I talked to the Venice Commission president, Gianni Buquicchio, two weeks ago in Strasbourg, he seemed to be a bit perplexed as to why the government has not put the draft constitution to a vote. “You need to revise the Constitution. Your government was very motivated to change the Constitution. It seems there is a draft which appears to be a good one. I do not understand why this draft has not been put forward for discussion and possible adoption in Parliament,” Buquicchio said.
In all fairness to Mr. Buquicchio, it does not seem as easy as it looks from the outside. When you think you have enough numbers to push forward for more democratic rights and a new constitution, you might be puzzled as to how different scenarios come into play to prevent these attempts from happening. In his own defense, Buquicchio, being a former secretary of the commission and having dealt with Turkey in the past, knows Turkey well enough to accuse the opposition of not supporting the government in this endeavor. “The opposition parties should play a constructive role. I can’t imagine all parties would be in favor of [change], but I think there could be some parties who are in favor of progress for Turkish society,” he underlined.
He is right in the sense that all other parties, with the possible exception of the BDP, are in favor of the government’s overhaul of the Constitution. The problem is they are not represented in Parliament nor do they have any say in the proceedings. As it stands, we are deadlocked in Parliament with two opposition parties who hold the key to progress in the country. The Republican People’s Party (CHP) acts as a guardian of the old regime and is a frequent visitor to the Constitutional Court to get laws, passed by Parliament and approved by the president, abolished. Party officials have applied to the court 150 times in the last eight years.
The Nationalist Movement Party (MHP), on the other hand, not only escalates tension in the streets and inflames public opinion on matters such as the Kurdish initiative and European Union membership but also rushes to the defense of the military, which has until recently exerted enormous influence over politics.
There are encouraging developments happening on either side of the political spectrum and we might see new parties emerging to replace old schools of thought. Hoping for new leaders for the existing parties would require being out of touch with reality as the current Political Parties Law gives absolute power to party leaders to maintain their grip on power as long as they desire. Hence, the next elections will be crucial for Turkey’s future and will certainly hold the key to solving the stalemate in our political platform, beleaguered by bickering and personal quarrels.