How genuine is Erdoğan’s discourse on a new and civil constitution?

The rhetoric of a “new and civil constitution” and “liberation from the coup constitution,” frequently voiced by ministers appointed by President Erdoğan and AK Party officials since 12 September 2023, is not resonating with the public. The weakest point of Erdoğan’s discourse is the ambiguity regarding the reasons behind proposing a new and civil constitution.

Although the Article 88(1) of the constitution amended in 2017 does not permit it, President Recep Tayyip Erdoğan persists in proposing a new and civil constitution. Despite his AK Party officials’ efforts his proposal for a new constitution is not gaining traction with the public as former AK Party MP Şamil Tayyar confirms. However, I predict every means will be tried until the very last moment solely to enable Erdoğan to run for president again.

Constitution, Hüda-Par’s threat and the six-month limit

Hüda Par Chairman and Istanbul MP Zekeriya Yapıcıoğlu’s suggestion to open the first four unamendable articles of the constitution to debate is tantamount to a threat! Erdoğan’s statement at a ceremony organized by the Turkish Contractors Association (TMB), “As far as we are concerned, there is no debate regarding the first four articles of the constitution,” may be construed as saying “We may agree to keep the first four articles as they are, should you agree to change the others” an effort to foist acceptance for the lesser of two evils.

Shortly thereafter on 21 September 2024 memurlar.net reported that the AK Party was planning to create a proposals and suggestions box within the Turkish Grand National Assembly (TBMM), for a period of six months, after which the drafting of a new constitution would commence. It is also reported that as the opposition was not expected to make positive contributions the AK Party would work on their own drafts together with the Nationalist Movement Party’s 100-article proposals. In other words, it informs us that the AKP is preparing to impose its draft constitution on the people.

It appears that following Erdoğan’s wishes the Speaker Mr. Numan Kurtulmuş will engage the TBMM to drafting a new and civil constitution when the new legislative term begins on 1 October.

What he could not say himself?

Hüda Par, whose chairman posed for a photograph with the President Erdoğan and the MHP Chairman Devlet Bahçeli at the Malazgirt Victory celebrations, is a minor partner in the People’s Alliance. Its chairman, Mr. Yapıcıoğlu, gained parliamentary immunity as he was elected as an MP from the People’s Alliance list in the 2023 elections.

By suggesting amending the first four articles of the Constitution, which enshrine the principles of republicanism, secularism, the unitary state, and the rule of law, I believe Yapıcıoğlu voiced the true desires of those who consider Erdoğan the “ruler of Muslims.”

It is perplexing that Erdoğan, in his speech at the TMB ceremony, chose to say “As far as we are concerned, there is no debate regarding the first four articles of the constitution,” when he could have clearly and strongly stated, “Our republic, which is aligned with Atatürk’s principles and reforms, and our unitary, secular, and social state governed by the rule of law, is our red line; there is no tolerance for the weakening or abolition of these provisions”, as is his tolerance of Mr. Yapıcıoğlu saying “Even if we don’t agree with it or find it correct, we must approach different opinions with tolerance.”

Concerns about democracy, secularism, and the rule of law

The concerns of those who possess even a superficial understanding of the pillars of the republic set out in the preamble guaranteed by the first four articles of the constitution, are justified. In his article in Cumhuriyet, Sinan Meydan, who also questions the ulterior motive behind the new and civil constitution discourse, expresses these concerns as follows:

“Today, those who want to change the first three articles of our constitution, which cannot even be proposed for amendment, aim to abolish the unitary, secular, and democratic social state governed by the rule of law, the Republic of Turkey. The political Islamist AK Party government and its allies want to transform the unitary, secular, modern Republic of Turkey, established by Atatürk, into a religious-political structure they call ‘New Turkey.’ With the presidential system, we have effectively returned to a form of monarchy. The principle of secularism, which is the character of the Republic of Turkey, is being eroded more and more each day. The political Islamist government and its allies are ultimately aiming to complete the transformation of the secular Republic with a constitutional amendment.”

It is obvious that Erdoğan’s given reason of “wanting to liberate our nation from the coup constitution and open the way for Turkey,” without even hinting at how a new constitution will solve the country’s problems, is not sufficient to allay the concerns voiced by Sinan Meydan.

Erdoğan needs to defuse doubts and distrust and must convince the public, his opponents, his supporters, and even a significant segment of AK Party administrators that he truly wants to bring forth a genuinely civil constitution. This, hinges primarily on convincing that he is bound to the constitution’s first four articles, preamble, and the Atatürk principles.

The first three articles of constitution, preamble, and Atatürk principles

The first three articles of the constitution, prohibited from amendment by the fourth, are as follows: (1) that the state is a republic, (2) that Turkey is a democratic, secular, and social state governed by the rule of law, bound by the preamble, (3) and that the state is unitary, its language is Turkish, and its capital is Ankara. The following is found in the preamble:

(a) Atatürk’s understanding of nationalism and his reforms and principles,

(b) That no business that conflicts with Atatürk’s nationalism, his principles, and reforms, or the understanding of civilization that these represent, will be shielded from them,

(c) The absolute supremacy of the national will, and the unconditional independence of the Turkish people,

(d) No person or institution wielding that will can exceed or the constitutional provisions of freedom, democracy, and the rule of law,

(e) the separation of powers does not imply a hierarchy of superiority among the state organs but rather refers to a civilized division of labour and cooperation limited to the exercise of certain state powers and duties, with supremacy residing solely in the constitution and laws.

(f) Secularism shall be safeguarded, and religious sentiments cannot be exploited in state affairs, politics, or public services.

The first three articles remain but aren’t adhered to

A significant part of the public rightly believes that the first three articles and the provisions in the preamble are not being heeded but eroded. This is because:

(a) The fact that the state has been concentrated in the hands of the president, who wields the judiciary’s and legislature’s power while maintaining the chairmanship of the party with a natural majority in clear violation of the democratic state principle in the second article, the separation of powers, and the principle of the absolute supremacy of the national will found in the preamble provisions.
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(b) The failure to implement the decisions of the European Court of Human Rights and the Constitutional Court is a blatant violation of the principle of the rule of law in the second article, as well as the preamble which states that the Constitution is supreme. The emergence of a group that does not comply with decisions despite the Constitution obligating them clearly violates the principle that the national will is supreme and that sovereignty belongs unconditionally and unreservedly to the Turkish nation.

(c) Principle of a secular state in the second article and the provision in the preamble stating that “sacred religious sentiments shall never be involved in state affairs and politics” are violated as some state officials afford less recognition to Atatürk and his brothers-in-arms; recent military graduates who chanted, “We are Mustafa Kemal’s [Ataturk’s] soldiers,” are being investigated; the opinions of some religious scholars influence government decisions and how the state is governed; heeding religious rulings against compounding interest from the early years of Islam instead of making decisions economic science prescribes, and factoring religious beliefs and references from religious orders into public appointments and other similar situations.

What is the reason that necessitates a new constitution?

Erdoğan has, so far, not stated what he desires to change in the constitution, why and in what way. Given that amendable provisions of the constitution concerning (i) the legislative power, (ii) the executive power, and (iii) the judicial power have all been amended under the AK Party’s and in Erdoğan’s rein over 20 years it is exceedingly difficult to infer why Erdoğan proposes a complete overhaul.

Constitutions are not romantic texts or documents to be altered and rewritten on a whim. Constitutions come about from a nation’s historical experiences, sometimes through hard-won gains and struggles involving the entire society. Therefore, completely rewriting a constitution on a whim is never wise. Without compelling conditions and a mature diversity of thought in public discourse, even small amendments to the constitution should not be made.
Indeed, proper rules can only be achieved when the dynamics are accurately established, and different views have been fully discussed and negotiated.

What is missing from the current constitution, what is wrong with it, or what aspects are inadequate? Why don’t Erdoğan and his bureaucrats share these issues with the public?

What is it that Erdoğan’s new constitution will do that will open the way for Turkey? Does he propose making the judiciary completely independent from politics, particularly from ruling politicians? Does he suggest that the judiciary will be free to hold accountable ministers, the president, and his aides without needing permission to investigate or lifting immunity? Will he address Turkey’s historical unsustainable government, the lack of fair representation? Does he propose to strengthen the independence and full accountability of state institutions? Has he found a method to eradicate corruption he plans to implement?

What differentiates a civil constitution from a coup constitution?

Many opposing politicians and some scholars argued that the amendment to the Constitution in 2017 during the state of emergency was tantamount to a coup.

To call a constitution a “civil constitution,” it needs to be negotiated through entirely civilian methods, reach a consensus without any imposition or coercion, differences must be overcome through compromise and persuasion, and be adopted and embraced by an overwhelming majority of society.

The 1982 version of the current constitution was drafted by a committee of constitutional law professors chaired by Professor Dr. Orhan Aldıkaçtı, at the behest of the generals of the military junta. However, the generals of the junta decided and directed how it should be drafted. Therefore, it is justifiably called a coup constitution.

Today, it would be fair to say that the President Erdoğan enjoys powers comparable to that of the generals of the junta in 1982.

In 2021 Abdülkadir Selvi reported that Erdoğan had commissioned the draft constitution from one of his bureaucrats namely Professor Dr. Yavuz Atar, Deputy Chairman of the Presidential Board of Education Policies. In the event Erdoğan succeeds would it not be just as much of a coup constitution?

Bureaucrats are not civilians and the Constitution they write will never be a civil constitution. Rather it would be another type of coup constitution dictated by Erdoğan and implemented by his bureaucrats, rather than soldiers, wielding state power and resources. In other words, Turkey will jump in the fire of a bureaucratic coup while trying to escape the pan of a military inflicted coup constitution.

Erdoğan’s only chance

Erdoğan may receive positive reaction from his counterparts only if he identifies and agrees with them on the fundamental problems that can be resolved only by a new constitution or amendment.

Türkiye suffers from two major issues that require constitutional amendment:

(1) The first is the deterioration of the balance of the state under the Turkish-style presidential system, hastily passed in 2017 without adequate debate or consideration. It is necessary to acknowledge this and establish a system of checks and balances between the presidential and parliamentary systems.

(2) The second is the judiciary’s inability to perform its natural duties, leading to instability and corruption in governance and casting serious doubt on its impartiality as it has become almost an extension of the executive. Additionally, hindrances on the judiciary’s functioning such as the prerequisite of a superior’s permission for the investigation and prosecution of public officials and lifting of immunity to pursue elected politicians, the president, and ministers have left a large hole in the rule of law. Making the judiciary fully independent, transparent, accountable, and capable of delivering high-quality service should be Turkey’s most important and urgent priority.

If Erdoğan propose a comprehensive constitutional amendment on these two fundamental issues, he will attract significant support from both the public and their opponents.

Erdoğan’s proposal would be Turkey’s greatest benefit if he focuses on these two issues and proffers constitutional amendments to properly address them.

 

Translated by Charles Ediz Gün