TURKEY STILL SUFFOCATING UNDER SEPT. 12 COUP CONSTITUTION

Today’s Zaman
Sept 12 2008
Turkey

The coup d’état of Sept. 12, 1980, the military intervention that
has had long-lasting effects in Turkey, where three full-blown coups
and two unarmed interventions have taken place so far, asserts its
spirit to this day through the 1982 Constitution, which is still in
place and has persistently eluded any change to its essence, despite
hundreds of amendments over the years.

Moves to change provisions protecting the generals behind Turkey’s
Sept. 12, 1980 coup have ended in misery for those involved, attempts
to pass a new and more democratic constitution have been blocked
and endeavors to lighten the military’s control over politics —
the strongest legacy of the Sept. 12 coup — have all failed so far.

As long as Turkey is ruled by the constitutional framework set forth in
the 1982 Constitution, the country won’t be able to escape the trauma
of coups, experts say. On the 26th anniversary of the Constitution,
prepared under the custody of the army, Turkey is still haunted
by discussions over whether the country will face another military
intervention in the near future.

The country has managed to rid itself of its fears that it is
surrounded by enemies, that Turks’ only friends are Turks, that Armenia
can never be visited and that the country is under continuous threat
of becoming Iran, Algeria or Malaysia; but it hasn’t been able to get
out of the jam of the 1982 Constitution. Constitutional law expert
Professor Levent Köker, who was a member of the group that made
the latest attempt to rescue the country from the constitution of
tutelage, told Today’s Zaman that opportunism is one of the primary
reasons why constitutional reform has been blocked by the opposition.

Another constitutional law expert, Professor Mustafa Kamalak, told
Today’s Zaman that with each and every event in Turkey’s political
life, the Turkish people further realize the necessity of getting
rid of the current Constitution. "But the power that prepared it does
not realize this need," he added.

After its landslide victory in the July 22, 2007 elections, the
incumbent Justice and Development Party (AK Party) tried to create
the necessary momentum to replace the Constitution altogether, but
its efforts created a reverse effect. The Republican People’s Party
(CHP) and the Nationalist Movement Party (MHP) are not supporting any
amendments to the Constitution, let alone a complete rewriting of it.

One of the bad habits the 1982 Constitution taught Turkish
politicians is opportunism. The Constitution itself was a product of
self-seeking generals and bureaucrats, and politicians educated into
that constitutional framework adopt the same kind of opportunism in
relation to constitutional reform, Köker states. He recalls the draft
constitution prepared by a group led by former Higher Educational Board
(YOK) President Erdogan Tezic in 1993 and the draft prepared by the
Turkish Bar Association (TBB), saying: "On issues like Ataturkism,
their drafts included articles even more radical than the draft we
prepared. But today these people are stepping back. This means they
are acting according to the circumstances. This means they didn’t
have fundamentally democratic demands. If they had principles, they
wouldn’t change according to the context," he told Today’s Zaman. In
the past former Constitutional Court President Mustafa Bumin had
proposed a new structure for the top court under which some of the
members would be elected by Parliament. The draft prepared by the
AK Party included a similar article, but Bumin then claimed such a
change would harm the independence of the judiciary.

Though he accepts that the Constitution needs further changes,
Professor Hikmet Sami Turk does not believe that the country needs a
brand new constitution. "The first three articles of the Constitution
cannot be changed in principle. So whatever constitution you make,
you will start with them; it won’t be a new one," he said. According to
Turk, the current form of the 1982 Constitution cannot be regarded as
having been prepared under military tutelage. "[The 1982 Constitution]
narrowed individual freedoms, but several changes were made regarding
basic human rights issues. The 1987 changes were important. They were
followed by amendments in 1995 and 2001 that abolished the limitations
imposed upon human rights. Today’s Constitution is incomparably
better than the 1982 Constitution. But change is inevitable. Society
is changing," he told Today’s Zaman.

As Turk says, the resilience of the 1982 Constitution is a product
of its articles, which outlaw even the suggestion of changing them. A
loose definition of secularism is one of the stumbling blocks facing
any meaningful constitutional reform, since any legal regulation can
be related to a loosely defined secularism. After losing a battle over
a constitutional amendment on the headscarf issue, the AK Party also
knows that real change in Turkey’s deficient democracy and inefficient
system of governance can be realized only through a complete package
that will be brought before the public, not the Constitutional Court.

Kamalak agrees with Turk that a lot has been done to improve the
status of human rights in the Constitution. "Despite this, the
patronizing soul of it, the perception that denigrated the public,
is still there. That is why a new constitution cannot be proposed or
passed," he said.

Confederation of Public Sector Trade Unions (KESK) President Sami
Evren issued a written statement yesterday, saying Turkey carries
the shame of having a Constitution that protects the people behind
the 1980 coup. He claimed that so long as those responsible are not
brought to justice there will be new coup plotters in the country. "In
order to save us from the impact of Sept. 12, we have to encourage
steps toward preparing a new constitution to replace the Constitution
that was created during the coup process," he said.

Mehmet Sogancı, a member of the Turkish Union of Engineers and
Architects’ Chambers (TMMOB), said in another written statement
yesterday, "It won’t be possible to establish a real democracy and
rule by the public will as long as all the elements continuing and
feeding from the perpetrators of the Sept. 12 coup and the regime of
fear created by it are not eliminated."

Köker said the trauma of the 1980 coup could be eased by the
Constitutional Court if it had the wisdom to interpret the Constitution
in a more democratic and libertarian way. "But the Constitutional
Court pushed its limits toward narrowing down freedoms. This made
comprehensive constitutional reform even more urgent," Köker said.

Turk thinks the urgency of constitutional reforms is only related to
institutional reforms. "The ombudsman institution needs to be set in
the constitutional framework. The Supreme Board of Prosecutors and
Judges [HSYK] and the Constitutional Court need structural changes,"
he said.

Recalling that significant changes were made to the 1982 Constitution,
Köker said: "These were like patches on the overall thing. We need
to make a more comprehensive change in the Constitution."

–Boundary_(ID_0dq/oCoviBOb5R s+CtiUSQ)–