Turkey’s constitutional referendum, one year later – a series on Turkish constitutionalism, part 3

Mason Hill
JD candidate at the University of Michigan Law School

This is the third in a three part series on Turkish constitutionalism one year after the 2017 constitutional referendum. Part 1, Part 2


President Erdogan is the center of Turkish politics, and the events of the 2016 coup attempt and the 2017 Constitutional Referendum have only entrenched that reality. Erdogan’s dominance in Turkish politics should not obscure the fact that the individual office holder rather than an ideologically-grounded bloc is now the fulcrum upon which Turkish politics shifts. The Justice and Development Party (AKP) that came to power promising reform, religious pluralism and market-friendly economic policies has become a vehicle for Erdoğan’s personal ambition. After the Gezi Park protests and amid allegations of his son’s corruption, Erdogan became an increasingly polarizing personality in Turkish politics who weighed down the AKP brand in the 2015 parliamentary elections. Yet Erdoğan’s popularity returned during the pivotal moment of the  2016 coup attempt, when he appeared in a live interview with a reporter via Facetime. By the time 2017 referendum campaign, Erdoğan personally rather than AKP parliamentarians was the medium around which responses were polarized. The extension of Erdoğan’s personal control over the levers of power was particularly apparent in the referendum’s changes to the structure of the legislative and judicial branches of the Turkish government, granting legal justification to Erdoğan’s de facto force of personality regime. Developments over the past year have made clear that Turks are increasingly casting votes for and against candidates rather than parties.

In a key substantive victory for Erdoğan, the referendum package gave the President more direct control over appointment of both judges and prosecutorial staff. This change has come amidst continued purges of civil servants who are accused of aiding the 2016 coup plot and  now number in the tens of thousands. Whereas once prosecutors, policeman, and judges were chosen for their perceived fidelity to secularism and the Turkish nation state, personal loyalty  to the government is now front and center. Approval of Erdoğan as President and having allies in his administration has become a qualification that trumps all other considerations. While the President enjoyed some powers over personnel appointments before the referendum, the reforms put a structural emphasis on compatibility of judges and prosecutors with the President and parliament, branches of government that are more democratically accountable but also vulnerable to political vicissitudes. By contrast, the old system  stipulated that the military, President, parliament, and Constitutional Court could submit nominations for judicial posts in a complicated formula. The new system emphasizes Presidential supremacy in the appointment process and explicitly ties the judiciary and prosecutorial corps to the Presidential personality. In light of the reforms aimed at extending the President’s authority over parliament, whatever legislative oversight Turkish MPs might have exerted is rendered effectively null, leading observers to conclude that even Turkey’s highest courts have seen their authority severely diminished. Since the July 2016  coup attempt, two members of the Constitutional Court have been forced out, as have a quarter of the country’s judges and prosecutors.

Delegating more  control over judicial and law enforcement personnel has tied the very rule of law itself to Erdogan’s whim, as evidenced by several high profile criminal cases with political ramifications in which the judiciary’s verdicts did more to serve Erdoğan’s political purposes than to provide  justice. Erdoğan made offensive use of the criminal proceedings against Andrew Brunson, attempting to make a deal with American policymakers to swap the American pastor in exchange for the Turkish cleric Fethullah Gülen, whom Erdoğan blames for organizing the 2016 coup attempt. Apart from the merits of the case against Bunson, the fact that Erdogan would be willing to have a prisoner “swap” without seeing the criminal case to the end reveals a vision of law enforcement and  judicial processes as essentially transactional. He also weaponized the judiciary when the Turkish government accused prominent Turkey commentator Graham Fuller of terrorism and demanded his extradition to Turkey – just as Reza Zarrab, a Turkish-Iranian citizen accused of helping Erdoğan’s administration skirt sanctions on Iran, began cooperating with U.S. authorities in their investigation of high-level corruption in Turkey. Not only did the Erdoğan administration seek to undermine the authority of the case involving Zarrab, but it also sought to redirect the public conversation in Turkey. The circumstances of both cases demonstrate that the Erdoğan administration is prosecuting cases as a political tactic against Erdoğan’s foes rather than those that commit crimes of the conventional sort.

Perhaps the most compelling evidence of Erdoğan’s political dominance since the 2017 referendum is the nature of his opposition. Gone are those advocating opposition to Erdoğan on a basis of secularism and a competing vision of a republican Turkey. Erdogan’s most popular opponents are no longer the secular Republican Peoples’ Party (CHP) or the left-wing Democratic Peoples’ Party (HDP). The Nationalist Movement Party (MHP), once speculated to be the most charismatic alternative to Erdogan, has also splintered between those who voted “No” on the referendum and those who supported it. Even Meral Aksener, who opposed the referendum measure and has emerged as the most formidable foil to Erdoğan, has formed “the Good party” largely through force of personality. If Erdoğan is defeated politically, it is likely that he will replaced by another strong personality rather than an ideologically-based opposition.

A year our, it is challenging to assess the legacy of the 2017 referendum; it is particularly hard to say that is shows any meaningful reconstellation of Turkish politics given how close the vote was and the widespread allegations of electoral fraud. However, the initial year has seen attention focus abroad in an increasingly chaotic regional environment. Amidst estrangement from the United States and a dispute with the other Sunni states over Qatar, Erdoğan has found domestic support for his international policies. His approval ratings surged after the Turkish military’s incursion into Afrin the spring of 2018. In a time of crisis, Erdoğan has emerged as a figure that Turkish voters perceive as stabilizing and indomitable, attractive features in the face of crises at home and abroad.

The 1961 Constitution attempted to introduce strong civil liberties protection to maintain a stable status quo. The 1982 Constitution attempted to protect peace and security via strong and independent institutional actors’ involvement in politics. The 2017 package of reforms also promised stability, but it did so by empowering the President to override the red tape of politics, assert civilian control over a historically activist military, and take extraordinary action at a time of immense turmoil. While this might undermine the rule of law needed for true democracy, it is an understandable reaction to the perception of a “deep state” in Turkish politics that first emerged with conspiracy theories about the poisoning of Turgut Ozal in 1993 after he overruled the Turkish General Chief of Staff, came to prominence with the Susurluk car wreck in 1996, was perceived in the successful cloture cases against political parties deemed unconstitutional, and resurfaced dramatically in the 2016 coup attempt. The severity of Erdoğan’s crackdown after the coup attempt, in light of the historical sensitivity surrounding the role of the military and law enforcement in politics, created the perfect storm to allow for the ambitious reforms of the constitutional referendum to appear justified. Turning back the clock on such comprehensive changes to the political landscape would be no easy task, and Erdoğan’s trademark political ruthlessness will give opponents few openings to exploit. For the moment, Turkey will retain a constitution that empowers charismatic leaders to transform society on a regular basis, acknowledging the deep roots of personal rule in Turkish politics. As domestic Turkish politics continue to shift and lawmakers work to execute the reforms of the 2017 referendum amidst social and international turmoil, Turkey’s future will be determined as much by its foreign policy as its electoral contests. As Turkish voters head to the polls in 2019, we can expect to watch personalities continue to outweigh policy in the public discourse. For the time being, it would appear that the damage Erdoğan’s referendum inflicted on the foundations of the Turkish state has been done. It is up to Turkey’s people to determine how much further they will allow him to go.     

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