The referendum in Turkey last Sunday on a constitutional reform resulted in a narrow victory – 51.4 to 48.6 % – for President Recep Tayyip Erdoğan and his governing party, the Justice and Development Party (AKP). The 18 amendments to the constitution aim at transforming the political system in Turkey from a parliamentary to a presidential democracy with wide powers for the president.
The legitimacy of the outcome has however already been questioned. The election took place during a state of emergency with an on-going civil war in South-East Turkey which has left half a million Kurds internally displaced and apparently disenfranchised.
The election campaign was marred by diplomatic disputes with EU Member States. Even worse, foreign media reported that the campaign was one-sided and that those opposing the changes to the constitution were prevented from campaigning on equal conditions with the government.
European election observers have already stated that the referendum was “an uneven contest” and did not live up to Council of Europe standards. Last minute changes to the election rules – accepting ballots without the official stamp – have raised fears about fraud and will apparently lead to appeals against the outcome.
The narrow victory for the Yes-camp leaves Turkey divided in two halves. The question everyone asks now is if Turkey will develop into a stable, governable and inclusive democracy or if President Erdoğan will interpret the outcome of the referendum, despite the slim majority it granted him, as the “will of the people” to govern in its name and disregard the opinions and rights of the other half.
Unfortunately the negative scenario, with Turkey plunging into a state of authoritarian rule with no checks and balances on the excessive powers granted to the President – unheard of in any other Western presidential democracy like France and the US – is more likely to happen. A year ago media reported that even Nazi-Germany was mentioned as an example of “effective presidential rule”.
Following the failed military coup in July 2016, Turkey proclaimed a state of emergency. This was understandable and even supported by EU. But the state of emergency is still on-going. Ignoring the concerns of the EU, the government then launched a wave of purges and arrests, in most cases for political reasons because they targeted people who cannot have been involved in the coup.
According to the latest news reports up to 130 000 civil servants and state employees have lost their jobs and 45 000 have been arrested. The crackdown has affected the judiciary, the education system, media and civil society, with tens of TV-channels, news services, newspapers, magazines, and hundreds of societies and foundations closed down.
Another worrying development was the way how the changes to the constitution – altogether 18 amendments – were rushed through in the Turkish parliament in December and January. Each of the amendments was adopted by a majority of about 340 votes, out of 550 votes, which barely exceeded the threshold of 330 votes for a referendum.
The threshold was only reached because of an unholy alliance between the ruling AKP party, where everyone voted for the amendments, with no-one expressing a dissenting opinion, and the right-wing Nationalist Movement Party (MHP), where a majority supported the government.
The leading opposition party, the Republican People’s Party (CHP), voted all against the changes. The pro-Kurdish Peoples’ Democratic Party (HDP), some of whose members and leaders had been arrested for “terrorism charges”, boycotted the vote in the parliament.
A review of the Turkish constitution was long overdue but the new institution hardly meets the expectations of EU and the democratic forces in Turkey. The once promising constitutional reform process – a condition for transforming Turkey from a state-centered to a citizen-centered country with local democracy and decentralization – had been on hold in recent years.
Anyone reading the European Commission’s reports on Turkey will find a “do-list” of reform needs pertaining to parliamentary oversight of the executive and public expenditure, the scope of parliamentary immunity, the financing of political parties and election campaigns, appointments in the judiciary and the civil service, and the handling of high-level corruption cases.
The 10 % threshold for representation in parliament and municipal councils – the highest among Council of Europe member countries – is still in place.
Checks and balances?
Instead of public administration reform Turkey seems to have gotten a constitution which is tailor-made to the sitting President and his ambitions. It grants excessive executive powers to the President and allows him to rule at least until 2029 if he will be elected twice (starting from 2019). The President will not have to terminate his party membership and may continue to promote its interests.
The new constitution abolishes the independence of the judiciary by political appointments by the President and his obedient Parliament of almost all members of the constitutional court which checks the legality of new laws and the supreme board of judges and prosecutors which supervises the judiciary.
The Parliament will have limited power to exercise its traditional role of scrutinizing the government. Public accountability will be negatively affected with cumbersome rules for indicting the President for suspected abuse of power.
The referendum was presented by the government as a vote for better governance and stability in Turkey, after a long history of frequent government rotations, clashes between prime-ministers and presidents and military coups. This is all understandable but the question is if the changes meet the requirements of a modern and democratic constitution.
In an article published in The New Times International Edition (15 – 16 April) by Professor Gulnur Aybet, a senior adviser to the Turkish President, the author mentions some minor improvements in the new constitution compared to the current one dating from 1982 which “was written by the generals who had carried out a coup two years earlier.”
He claims that checks and balances on the President will be preserved in the new constitution. This might be theoretically true but is hardly likely in practice in a situation where the President continues to dominate his party and where no-one, as we have seen, dared to vote against the proposed amendments.
Soft EU statement
The European Commission which after the tension with Turkey after the failed military coup attempt prefers “to talk less about each other and more with each other” issued a soft statement directly after the first results of the referendum became known.
The statement does not mention any of the controversial elements of the new constitution or EUs previous concerns about Turkey’s turn to authoritarian rule and an “illiberal democracy” – a development which already has taken place in some of the new member states and the candidate countries.
EU will not jump into any conclusions but await the “assessment of the OSCE/ODIHR International Observation Mission, also with regard to alleged irregularities”.
It is almost clear that Turkey under the new constitution does not meet any longer the Copenhagen political criteria for EU membership, but the Commission states cautiously that “the constitutional amendments, and especially their practical implementation, will be assessed in light of Turkey’s obligations as a EU candidate country and as a member of the Council of Europe.”
Judging by President Erdoğan’s own words yesterday he does not care if EU would break off accession talks. It remains to be seen if the empowered President will heed to the Commission’s advice to “seek the broadest possible national consensus in the implementation” of the constitutional amendments.