Elveda Anayasa [Farewell Constitution]

Elveda Anayasa [Farewell Constitution] Books on Turkish constitutional law tend to be heavily doctrinal, descriptive, and politic ally unengaged, which makes Kemal Gözler’s recent work on the constitutional amendment package of April 2017 somewhat unusual: Elveda Anayasa, which roughly translates as “Farewell Constitution,” was published a month before the referendum took place. Apart from the book’s annex, drawn from Gözler’s earlier work on the differences between parliamentary and presidential systems of government, the book deals with the recent amendments to the Turkish Constitution, and more generally with the legal and political atmosphere preceding the referendum, to expose what Gözler argues was the real motivation behind the proposal: a subtle destruction of the constitutional system’s separation of powers arrangements. The book is divided into five chapters. In Chapter 1, Gözler asserts that the amendments, contrary to what is commonly assumed, do not establish a presidential system of governance. Noting that a presidential system is typically marked by a strict separation of powers, that is, by a clear distinction between the legislative and executive organs of the state, he argues that the amendments, would do the exact opposite: the amended Article 116 now allows the president to dissolve the parliament, and the parliament to dissolve the presidency, both without cause. In both cases, the result is that new elections must be held for both the presidency and the parliament (at 15–16). The idea of each branch being able to dissolve the other, if anything, is reminiscent of a parliamentary system. However, Gözler astutely observes that discussions of systemic/institutional features obfuscate what is really going on: the unification of all three branches of government under an executive presidency. To begin with, while the president has the unconditional right to dissolve the parliament, the parliament can exercise the same power only with a three-fifths majority. Further, under the new system, parliamentary and presidential elections must be held on the same day, a requirement that is likely to result in the coordination of electoral campaigns to prevent a potential scenario in which the president has a different party affiliation than the parliamentary majority. This, for Gözler, is proof of the amendment package’s real motivation: subordinating the parliament to the presidency (at 17–19). As for the judicial branch, the new composition of the Council of Judges and Prosecutors, the state organ responsible for judicial promotions and demotions, reveals the government’s ambition to subordinate the judiciary to the presidency: of the total thirteen members of the council, four are directly appointed by the president. In addition, the minister of justice, a presidential appointee, heads the council and his undersecretary, a bureaucrat also appointed by the president, is also a member of the council. The remaining seven members are appointed by the parliament, already under the control of the executive (at 19–22), placing the judiciary under the effective control of the president. Gözler concludes this chapter, inspired by the writings of Montesquieu, with a discussion of how the absence of true separation of powers will result in a loss of individual liberties (at 25). While empirical data indeed seems to be on the side of Gözler,1 the author does not explain how and why, as a general matter, a decline in separation of powers arrangements causes a similar decline in individual liberties, especially considering the voluminous scholarship on how authoritarian regimes consciously choose to preserve (at least some) individual liberties, usually in order to deflect national and international criticism.2 Chapter 2, titled “On the Silence of Consti t utional Law Scholars over the Constitutional Amendments” and without going into any “naming and shaming,” categorizes the Turkish constitutional law community into three camps: (i) the rather small number of scholars speaking out against the amendments; (ii) those not disclosing their personal view on the matter; and (iii) those openly advocating the amendments (at 39). Gözler quite confidently and rightly asserts that while the overwhelming majority of Turkish constitutional law scholars were against the amendment package (at 38), the ones who garnered most of the media attention were those speaking in favor of it. The author points to the general decline in free speech, and the cases of recently dismissed academics, including some reputable constitutional law scholars, as reasons for the general silence of the intellectual community over the amendments (at 35–36). Gözler also bemoans how in addition to the silence of scholars, the media paid considerable attention to laypersons unqualified to speak on the amendments (at 41). While one cannot help but agree with the author on how the silence of the legal community indeed decreased the quality of discussions surrounding the amendment package, listening to the opinions of laypersons, too, is valuable, even if only to assess the public legitimacy of the proposals. Nevertheless, it is undeniably true that most of the media gave disproportionate coverage to those supporting the amendment package, while those against it received considerably less airtime. Both sides of the referendum campaign resorted to erroneous claims, and Gözler describes these in detail in Chapter 3. The campaign against the amendments propagated the idea that the amendments would result in the abrogation of both the Republic and the unitary state, the latter of which would be achieved by the creation, through presidential decrees, of a federal state. This latter claim, as Gözler convincingly shows, has no basis because none of the amendments purports—even when read quite expansively—to establish federal units within the country (at 47–48). The author is equally dismissive of the first claim that the amendments would deal a severe blow to the Republic, explaining that democracy, not the Republic, is the victim of the amendments (at 44–46). From the author’s standpoint, this is understandable: Gözler defines “republic” as a concept utterly divorced from democracy, merely denoting the opposite of monarchy and hereditary rule. Here, Gözler fails to take note of the particular meaning associated with the term “republic” in Turkish legal and political discourse, often intertwined with general and substantive notions of democracy and the rule of law, and not merely an antithesis of hereditary rule.3 Read in this second and more expansive sense, contrary to Gözler’s claim, it is not unreasonable to argue that the amendments do deal a blow to the idea of Turkey being a republic. In the second half of the same chapter, the author criticizes what he perceives to be erroneous claims made by the campaign in support of the amendments: he focuses on the misuse of comparative law, specifically the American presidential system, as an aspirational model (at 56–70).4 Gözler shows that the claims of some presidential aides that the amendments would create an executive akin to the US president are untenable for a number of reasons. Some of these include the fact that the Turkish president can appoint justices to the Constitutional Court, judges to the Council of Judges and Prosecutors, and other high-level bureaucrats without the consent of the legislature, whereas in the American system, “the advice and consent of the Senate” serves as a significant check on the president’s power to make similar appointments. Moreover, in the USA, the federal budget must be approved by Congress, whereas under the new constitutional amendments, if the Turkish Parliament fails to approve a budget plan, the preceding year’s budget, adjusted for the new year’s inflation rate, automatically goes into effect, thereby stripping the legislature of a significant control mechanism. The author goes into further detail to show how, contrary to the assertions of the government, the new amendments bear no resemblance to the US system of government, which leaves the reader with deeper insights on the (ab)use of comparative law by politicians in the form of invocations of other polities’ constitutionalist systems in either shallow or inaccurate ways. Chapter 4 of the book deals with the question of whether the constitutional amendments can be described in David Landau’s terms as an instantiation of “abusive constitutionalism.”5 The author is ready to answer this query in the affirmative, chiefly because the amendments go against the two themes central to the idea of constitutionalism: entrenching separation of powers and ensuring fundamental rights and freedoms. Despite all this, Gözler espouses a cautious approach, arguing that only time will conclusively tell whether or not the amendments are truly abusive in nature (at 84, 99). This caution and the author’s belief in the need for a retroactive assessment of the amendments as only way to identify with certainty the abusive nature of the amendments serve to expand on Landau’s thesis, as it emphasizes the difficulty of exposing an abusive constitutionalist endeavor while still in the making, as opposed to identifying abusive constitutionalism ex post facto. Further, the author contributes to Landau’s analysis by broaching the subject of unintended consequences of abusive constitutionalism (at 99–104): according to Gözler, if and when authoritarians fall out of favor, the constitutional space conducive to repressive rule becomes inhabited by others, possibly by opposition forces, which, in turn, could make use of the generous tools of state power to perpetuate the repression, all made possible by the initial abusive constitutionalist undertaking by their predecessors. The final chapter discusses some procedural issues related to the referendum, ultimately concluding that there are valid reasons to call this a constitutional plebiscite rather than a referendum. According to Gözler, a constitutional plebiscite diverges from a referendum in two major ways: (i) plebiscites typically take place under antidemocratic conditions, and (ii) plebiscites usually turn into a vote of confidence for a single, charismatic person in power, as opposed to voting on a legal text (at 108). Given that the referendum took place under emergency rule, and there were numerous reported incidents of violence against campaigners opposed to the amendments, as well as statements by incumbent politicians equating the opposition forces to terrorists, the author concludes that the context in which the referendum was held was not entirely free and fair (at 115–122). Further, the author draws our attention to a particular violation of the Turkish Constitution that occurred during the parliamentary deliberations on the proposed amendments: in direct contravention to art icle 175 of the Constitution, which stipulates that all votes on constitutional amendments (including those votes on whether to put the amendments to a referendum) shall be secret, some Members of Parliament (MPs) from the governing party voted openly—a violation that is well-documented through many photographs, some of which are printed in the book (at 127–129). Gözler rightly asks if it is reasonable to demand from society at large to follow the law and the Constitution in a political setting where MPs, who take an oath to uphold the Constitution prior to assuming office, violate the rules themselves. Overall, the book serves as a courageous intervention, as it provides a concise and accessible summary of the procedural and substantive irregularities of the recent constitutional amendments that were put to referendum in a setting where most scholars are—understandably—hesitant to be expressly critical of politically high-stake matters such as this amendment package. The book provides at once a testament, one hopes, to a shift in the tone of Turkish constitutional law scholarship from one that is prosaic and distanced to a more lively and politically engaged way of writing, as well as an opportunity to develop our thinking on key issues such as abusive constitutionalism and constitutional referenda—topics with which comparative constitutional law scholars continue to struggle. As the author quotes, in 1748, the famous French lawyer Montesquieu, commenting on the need for separation among the three branches of government, wrote: “Among the Turks, where the three powers are united in the person of the sultan, an atrocious despotism reigns” (at 22). While Gözler quite pessimistic ally writes “[i]t is feared that what Montesquieu wrote of the ‘Turkish land’ in 1748 is about to become true in 2016’s Turkey” (at 23), one hopes—now with the passing of the amendments with less optimism—that the near future will somehow prove the author wrong. Footnotes 1 See, e.g., Freedom House, Freedom in the World 2017: Turkey (2017), available athttps://freedomhouse.org/report/freedom-world/2017/turkey. 2 See, e.g., Marina Ottaway, Democracy Challenged: The Rise of Semi-Authoritarianism 185 (2003) (arguing that recent authoritarian regimes purposefully provide a limited space for free expression of discontent to create the image of a pluralistic society). 3 See representativelyBülent Tanör & Necmi Yüzbaşioğlu, 1982 Anayasasına göre Türk Anayasa Hukuku [Turkish Constitutional Law According to the 1982 Constitution] 74–76 (12th ed., 2012). 4 I have made a similar argument elsewhere. See Cem Tecimer, Abusive Comparativism: “Pseudo- Comparativist” Political Discourse as a Means to Legitimizing Constitutional Change in Turkey, Verfassungsblog (May 15, 2017), available athttp://verfassungsblog.de/abusive-compara tivism-pseudo-comparativist-political-discourse-as-a-means-to-legitimizing-constitutional-change-in-turkey/. 5 David Landau, Abusive Constitutionalism, 47 U.C. Davis L. Rev. 189 (2013). © The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Journal of Constitutional Law Oxford University Press

Elveda Anayasa [Farewell Constitution]

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Oxford University Press
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© The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
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1474-2640
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Abstract

Books on Turkish constitutional law tend to be heavily doctrinal, descriptive, and politic ally unengaged, which makes Kemal Gözler’s recent work on the constitutional amendment package of April 2017 somewhat unusual: Elveda Anayasa, which roughly translates as “Farewell Constitution,” was published a month before the referendum took place. Apart from the book’s annex, drawn from Gözler’s earlier work on the differences between parliamentary and presidential systems of government, the book deals with the recent amendments to the Turkish Constitution, and more generally with the legal and political atmosphere preceding the referendum, to expose what Gözler argues was the real motivation behind the proposal: a subtle destruction of the constitutional system’s separation of powers arrangements. The book is divided into five chapters. In Chapter 1, Gözler asserts that the amendments, contrary to what is commonly assumed, do not establish a presidential system of governance. Noting that a presidential system is typically marked by a strict separation of powers, that is, by a clear distinction between the legislative and executive organs of the state, he argues that the amendments, would do the exact opposite: the amended Article 116 now allows the president to dissolve the parliament, and the parliament to dissolve the presidency, both without cause. In both cases, the result is that new elections must be held for both the presidency and the parliament (at 15–16). The idea of each branch being able to dissolve the other, if anything, is reminiscent of a parliamentary system. However, Gözler astutely observes that discussions of systemic/institutional features obfuscate what is really going on: the unification of all three branches of government under an executive presidency. To begin with, while the president has the unconditional right to dissolve the parliament, the parliament can exercise the same power only with a three-fifths majority. Further, under the new system, parliamentary and presidential elections must be held on the same day, a requirement that is likely to result in the coordination of electoral campaigns to prevent a potential scenario in which the president has a different party affiliation than the parliamentary majority. This, for Gözler, is proof of the amendment package’s real motivation: subordinating the parliament to the presidency (at 17–19). As for the judicial branch, the new composition of the Council of Judges and Prosecutors, the state organ responsible for judicial promotions and demotions, reveals the government’s ambition to subordinate the judiciary to the presidency: of the total thirteen members of the council, four are directly appointed by the president. In addition, the minister of justice, a presidential appointee, heads the council and his undersecretary, a bureaucrat also appointed by the president, is also a member of the council. The remaining seven members are appointed by the parliament, already under the control of the executive (at 19–22), placing the judiciary under the effective control of the president. Gözler concludes this chapter, inspired by the writings of Montesquieu, with a discussion of how the absence of true separation of powers will result in a loss of individual liberties (at 25). While empirical data indeed seems to be on the side of Gözler,1 the author does not explain how and why, as a general matter, a decline in separation of powers arrangements causes a similar decline in individual liberties, especially considering the voluminous scholarship on how authoritarian regimes consciously choose to preserve (at least some) individual liberties, usually in order to deflect national and international criticism.2 Chapter 2, titled “On the Silence of Consti t utional Law Scholars over the Constitutional Amendments” and without going into any “naming and shaming,” categorizes the Turkish constitutional law community into three camps: (i) the rather small number of scholars speaking out against the amendments; (ii) those not disclosing their personal view on the matter; and (iii) those openly advocating the amendments (at 39). Gözler quite confidently and rightly asserts that while the overwhelming majority of Turkish constitutional law scholars were against the amendment package (at 38), the ones who garnered most of the media attention were those speaking in favor of it. The author points to the general decline in free speech, and the cases of recently dismissed academics, including some reputable constitutional law scholars, as reasons for the general silence of the intellectual community over the amendments (at 35–36). Gözler also bemoans how in addition to the silence of scholars, the media paid considerable attention to laypersons unqualified to speak on the amendments (at 41). While one cannot help but agree with the author on how the silence of the legal community indeed decreased the quality of discussions surrounding the amendment package, listening to the opinions of laypersons, too, is valuable, even if only to assess the public legitimacy of the proposals. Nevertheless, it is undeniably true that most of the media gave disproportionate coverage to those supporting the amendment package, while those against it received considerably less airtime. Both sides of the referendum campaign resorted to erroneous claims, and Gözler describes these in detail in Chapter 3. The campaign against the amendments propagated the idea that the amendments would result in the abrogation of both the Republic and the unitary state, the latter of which would be achieved by the creation, through presidential decrees, of a federal state. This latter claim, as Gözler convincingly shows, has no basis because none of the amendments purports—even when read quite expansively—to establish federal units within the country (at 47–48). The author is equally dismissive of the first claim that the amendments would deal a severe blow to the Republic, explaining that democracy, not the Republic, is the victim of the amendments (at 44–46). From the author’s standpoint, this is understandable: Gözler defines “republic” as a concept utterly divorced from democracy, merely denoting the opposite of monarchy and hereditary rule. Here, Gözler fails to take note of the particular meaning associated with the term “republic” in Turkish legal and political discourse, often intertwined with general and substantive notions of democracy and the rule of law, and not merely an antithesis of hereditary rule.3 Read in this second and more expansive sense, contrary to Gözler’s claim, it is not unreasonable to argue that the amendments do deal a blow to the idea of Turkey being a republic. In the second half of the same chapter, the author criticizes what he perceives to be erroneous claims made by the campaign in support of the amendments: he focuses on the misuse of comparative law, specifically the American presidential system, as an aspirational model (at 56–70).4 Gözler shows that the claims of some presidential aides that the amendments would create an executive akin to the US president are untenable for a number of reasons. Some of these include the fact that the Turkish president can appoint justices to the Constitutional Court, judges to the Council of Judges and Prosecutors, and other high-level bureaucrats without the consent of the legislature, whereas in the American system, “the advice and consent of the Senate” serves as a significant check on the president’s power to make similar appointments. Moreover, in the USA, the federal budget must be approved by Congress, whereas under the new constitutional amendments, if the Turkish Parliament fails to approve a budget plan, the preceding year’s budget, adjusted for the new year’s inflation rate, automatically goes into effect, thereby stripping the legislature of a significant control mechanism. The author goes into further detail to show how, contrary to the assertions of the government, the new amendments bear no resemblance to the US system of government, which leaves the reader with deeper insights on the (ab)use of comparative law by politicians in the form of invocations of other polities’ constitutionalist systems in either shallow or inaccurate ways. Chapter 4 of the book deals with the question of whether the constitutional amendments can be described in David Landau’s terms as an instantiation of “abusive constitutionalism.”5 The author is ready to answer this query in the affirmative, chiefly because the amendments go against the two themes central to the idea of constitutionalism: entrenching separation of powers and ensuring fundamental rights and freedoms. Despite all this, Gözler espouses a cautious approach, arguing that only time will conclusively tell whether or not the amendments are truly abusive in nature (at 84, 99). This caution and the author’s belief in the need for a retroactive assessment of the amendments as only way to identify with certainty the abusive nature of the amendments serve to expand on Landau’s thesis, as it emphasizes the difficulty of exposing an abusive constitutionalist endeavor while still in the making, as opposed to identifying abusive constitutionalism ex post facto. Further, the author contributes to Landau’s analysis by broaching the subject of unintended consequences of abusive constitutionalism (at 99–104): according to Gözler, if and when authoritarians fall out of favor, the constitutional space conducive to repressive rule becomes inhabited by others, possibly by opposition forces, which, in turn, could make use of the generous tools of state power to perpetuate the repression, all made possible by the initial abusive constitutionalist undertaking by their predecessors. The final chapter discusses some procedural issues related to the referendum, ultimately concluding that there are valid reasons to call this a constitutional plebiscite rather than a referendum. According to Gözler, a constitutional plebiscite diverges from a referendum in two major ways: (i) plebiscites typically take place under antidemocratic conditions, and (ii) plebiscites usually turn into a vote of confidence for a single, charismatic person in power, as opposed to voting on a legal text (at 108). Given that the referendum took place under emergency rule, and there were numerous reported incidents of violence against campaigners opposed to the amendments, as well as statements by incumbent politicians equating the opposition forces to terrorists, the author concludes that the context in which the referendum was held was not entirely free and fair (at 115–122). Further, the author draws our attention to a particular violation of the Turkish Constitution that occurred during the parliamentary deliberations on the proposed amendments: in direct contravention to art icle 175 of the Constitution, which stipulates that all votes on constitutional amendments (including those votes on whether to put the amendments to a referendum) shall be secret, some Members of Parliament (MPs) from the governing party voted openly—a violation that is well-documented through many photographs, some of which are printed in the book (at 127–129). Gözler rightly asks if it is reasonable to demand from society at large to follow the law and the Constitution in a political setting where MPs, who take an oath to uphold the Constitution prior to assuming office, violate the rules themselves. Overall, the book serves as a courageous intervention, as it provides a concise and accessible summary of the procedural and substantive irregularities of the recent constitutional amendments that were put to referendum in a setting where most scholars are—understandably—hesitant to be expressly critical of politically high-stake matters such as this amendment package. The book provides at once a testament, one hopes, to a shift in the tone of Turkish constitutional law scholarship from one that is prosaic and distanced to a more lively and politically engaged way of writing, as well as an opportunity to develop our thinking on key issues such as abusive constitutionalism and constitutional referenda—topics with which comparative constitutional law scholars continue to struggle. As the author quotes, in 1748, the famous French lawyer Montesquieu, commenting on the need for separation among the three branches of government, wrote: “Among the Turks, where the three powers are united in the person of the sultan, an atrocious despotism reigns” (at 22). While Gözler quite pessimistic ally writes “[i]t is feared that what Montesquieu wrote of the ‘Turkish land’ in 1748 is about to become true in 2016’s Turkey” (at 23), one hopes—now with the passing of the amendments with less optimism—that the near future will somehow prove the author wrong. Footnotes 1 See, e.g., Freedom House, Freedom in the World 2017: Turkey (2017), available athttps://freedomhouse.org/report/freedom-world/2017/turkey. 2 See, e.g., Marina Ottaway, Democracy Challenged: The Rise of Semi-Authoritarianism 185 (2003) (arguing that recent authoritarian regimes purposefully provide a limited space for free expression of discontent to create the image of a pluralistic society). 3 See representativelyBülent Tanör & Necmi Yüzbaşioğlu, 1982 Anayasasına göre Türk Anayasa Hukuku [Turkish Constitutional Law According to the 1982 Constitution] 74–76 (12th ed., 2012). 4 I have made a similar argument elsewhere. See Cem Tecimer, Abusive Comparativism: “Pseudo- Comparativist” Political Discourse as a Means to Legitimizing Constitutional Change in Turkey, Verfassungsblog (May 15, 2017), available athttp://verfassungsblog.de/abusive-compara tivism-pseudo-comparativist-political-discourse-as-a-means-to-legitimizing-constitutional-change-in-turkey/. 5 David Landau, Abusive Constitutionalism, 47 U.C. Davis L. Rev. 189 (2013). © The Author(s) 2018. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

International Journal of Constitutional LawOxford University Press

Published: May 12, 2018

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