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Constitutional
Reforms in Turkey:
Everything Remains as it Was
The constitutional reforms,
over which there has been month long speculation, have finally passed
through the “venerable” Turkish parliament. Jurists had beforehand
said of the 37 article reform package: “All puffed up and hollow
inside”.
Some articles on political freedom
included in the package had caused much furore. These concerned
freedoms of opinion and the press, the death penalty, immunity for
members of parliament and international agreements. But they were
either removed through intervention by the general staff and the
MHP coalition partner (the Party for Nationalistic Movement), or
they were blocked in the Turkish parliament.
One of the reform proposals concerned
press freedom and freedom of opinion. These freedoms were supposedly
to be provided by amending a sentence in the constitution’s preamble.
The sentence had read as follows:
“No opinion or view point will receive
protection which is contrary to Turkish national interests, Turkish
existence, the principle of the indivisibility of the country and
the people of the state, the historical and ideal values of Turkism
and nationalism and the principles and revolutions of Atatürk….”.
The government had suggested that instead
of “opinion or view point” the term “action” would be used. In this
way opinion alone would apparently no longer be an offence. However,
the general staff was against such a change. They were against citizens
freely expressing opinions because they were convinced that this
would “weaken the campaign against terror”. Actually it would be
better for the state if its citizens could not think at all - then
they would all be like the “Good Soldier
Schweik“:
“I
don’t think, my commanding officer thinks!”
Because the MHP were of the same opinion
as the general staff, the constitutional commission used the vaguer
term “activity” rather than “action”. In this way any “activity”
against the above taboos (“Turkish national interests, the historical
and ideal values of Turkism and nationalism, Atatürk’s principles
and revolutions” etc.) would be forbidden and liable to punishment.
This means nothing other than the continuation
of the system of prohibitions. What is being prohibited here is
not violent acts or the glorification of violence, but rather any
kind of activity against the above – any kind of political or cultural
act even of a peaceful nature. If for example a political party
puts on its agenda the peaceful resolution to the Kurdish question,
or calls for a federation or autonomy for the Kurds or even just
cultural rights, this would be seen as “activities dividing the
country and the people of the state”. The party would be closed
down and their leaders would be punished. Even if such opinions
did not come from a political party but from a private person, it
would not be any different. Therefore, on the basis of this ruling,
oppression and arbitrariness will be able to continue as before.
Even if the term “action” could be used
instead of “activity”, things would not be any different. Any political
or cultural activity is also an action or act. There can only be
freedom of opinion when the right exists to express and make known
opinions. This again is an activity, an action.
What should be prohibited is any attempt
or action which brutally imposes opinions onto others. This is called
violence.
It can therefore be seen that with this
reform the prohibitions on freedom of opinion have neither been
lifted nor eased. Claims to the contrary are nothing but further
attempts to fool the public, both at home and abroad.
The preamble to the current constitution
is in any case a monument to racism.
In this part of the constitution “Turkish
Nationalism” is explicitly referred to as a principle and anything
else is rejected. Isn’t that racist thinking? And this in a country
with numerous ethnic groups other than Turks and where Kurds make
up one third of the total population.
From its beginning, the constitution
bases itself on one single ethnic group and by doing so excludes
the others. “The historical and ideal values of Turkism” do not
provide any protection to the others. It refuses to acknowledge
them and provides no rights for them. This is racism, chauvinism.
This is a situation known only under fascist regimes.
In the 1930s the Turkish Justice minister
Mahmut Esat Bozkurt said:
“The
proprietors and masters of this country are the Turks alone. The
others have no rights; and if they have a right then it is to serve
the Turks”
These audacious words apply in their
entirety to the methods being used today. The constitution’s preamble
basically says nothing different.
* * *
The amendments in Articles 26 and 28
on press freedom and freedom of opinion also bring no changes because
of the constitution’s preamble. The old prohibitions and the undemocratic
structure remain as before.
It says in Article 26 that freedom of
opinion can be restricted on grounds such as risks to “national
security, public order, safety of the general public and the indivisible
unity of the country and the people of the state”. What can’t be
included under such abstract terms! It was after all such rules
and conditions which have until now made meaningless any freedom
of opinion. The state established its policies of oppression on
such pretexts.
Police and state prosecutors have used
such as grounds to investigate comments, articles, illustrations
and caricatures. Courts have permitted this, imposed penalties and
confiscated and banned publications.
In the same Article it says that “Publications
which are conveyed over radio, TV, cinema or any other similar methods,
are required to be authorised”. What can’t be included under “similar
methods”? The system functions only on the basis of permits and
bans.
One change to Articles 26 and 28 of
the constitution has been really exaggerated. It concerns the sentence,
“Nothing may be published in a legally banned language”, which is
now to be omitted. Some of the press have labelled this change as
“freedom to the Kurdish language”. The reality looks completely
different. The original sentence, which intended to ban the Kurdish
language, was put into the constitution by the fascist junta from
1982. Later a rule was enacted under law no. 2932 banning Kurdish
but without explicitly referring to it.
The Kurdish language was not free even
prior to the junta period, i.e. before the enactment of these special
regulations. This was contrary to Article 39 of the Lausanne Treaty,
whereby all citizens of Turkey have the right to use their native
languages in their private lives and in publications. The regime
banned the Kurdish language in all spheres of life thereby violating
this Article. Kurdish publications are not permitted. From time
to time, even speaking Kurdish in the market place has been made
a punishable offence.
Of course the Kurds have opposed such
oppressive measures. Particularly since the beginning of the 1960s
they have persistently attempted to produce Kurdish books, newspapers
and magazines. The regime tried, with so-called bans, to block any
legal channels to do this. But they achieved nothing. This was because
of opposition by Kurdish intellectuals who used their language when
publishing, and because of criticism from abroad which led to the
regime having to take a step back. Firstly, law no. 2932 was revoked.
The constitutional basis of the law is now also to be removed. But
even if this is considered to be a step back, it is still too early
and too optimistic to be able to claim that the obstacles before
the Kurdish language has now been removed. The regime do not intend
such. Immediately following the amendment the leader of the second
largest coalition partner, the MHP, said that this change does not
in any way mean that Kurdish was now permitted but rather that things
would remain as they had been.
As can be seen, this is again nothing
more than window dressing. Government policies towards the Kurdish
question, particularly towards the Kurdish language, have not been
altered. The old primitive, repressive policies will continue.
Anybody not of this opinion are being
overtly optimistic if they believe that the government sincerely
wish to lift the hurdle against the Kurdish language and fulfil
the Copenhagen Criteria and, at the same time, meet the requirements
in the EU entry partnership document. The days and months before
us will reveal the true intentions of the Turkish regime. If the
government really were to pursue such honourable intentions, they
would declare this publicly, they would lift the obstacles in the
law of the Turkish Radio and TV High Council (RTÜK) which are in
opposition to Kurdish radio and TV, and justify these changes with
action.
Even while these amendments were taking
place, Kurdish books continued to be confiscated and newspapers
banned.
The problem is also not just whether or not there
are publications in Kurdish. As long as there is no freedom of opinion,
as long as the Kurdish question can not be openly discussed, such
publications cannot enjoy any security; the regime can still hinder
and silence them on all sorts of pretexts. For example, a TV station
in Diyarbakir was closed down for one year by RTÜK for broadcasting
a Kurdish folk song, not because the song was in Kurdish but because
it was “separatist and inflammatory”. A court eventually judged
that the song had no political content and was just a popular love
song – meanwhile a year had already gone by.
* * *
An immediate reform which the EU had
required from Turkey was the lifting of the death penalty. The government
reluctantly planned changes to Article 38 but did not manage to
completely revoke this penalty. What resulted was precisely what
always happens; i.e. the opportunity was spoiled and the outcome
mere window dressing. The new version of the Article reads: “No
death penalty can be imposed except in cases of war, the risk of
imminent war or for terrorist offences”.
Considering that the Turkish regime
deem political offence to be terrorist offences, then it is clear
what this means. It means that the death penalty has only be revoked
for normal offences. It can still be used for political offences.
But the death penalty has still not been completely revoked for
normal offences. It can still be used in “cases of war and the risk
of imminent war”.
Why in cases of war? Why is there suddenly
the death penalty here when, according to international law, even
prisoners cannot be executed in times of war. And what does “the
risk of imminent war” mean? This is an abstract phrase and for a
country such as Turkey, which historically has been consistently
under states of war and states of emergency with poor and tense
relations with its neighbours, it would not be difficult to declare
a permanent “risk of imminent war”.
The end effect is that the death penalty
has not been abolished at all in this country.
* * *
One development hoped for in the latest
constitutional reform was freedom of organisation and the prevention
of the banning of political parties.
In a democratic country political parties
should not be banned as long as they do not approve of violent methods.
In Turkey, however, political parties are closed down because of
their opinions and programmes. The country has, over the years,
become a political party graveyard.
But the latest constitutional reforms
have not produced any democratic progress in this respect. The change
here is nothing but insignificant touching up. The old grounds for
closure still remain. The obstacles to freedoms of opinion and discussion
within political parties, continue with unabated severity.
Furthermore, new penalties for political
parties were introduced in the reform, such as the withdrawal of
state funded financial aid. Parties which the regime do not like
will be excluded from such aid. In this way a new basis has been
established for inequality between competing political parties.
Even outside the constitution, i.e.
the political party and election laws within the Turkish penal code,
there are many regulations which severely restrict political party
activity. For example, according to the political party law there
are grounds to close down a party if it pronounces that there are
in Turkey cultures other than Turkish. Accordingly, a political
party may not refer to attacks against Kurdish culture and may not
demand their ending.
Therefore, the constitutional reforms
have also not brought any improvements in respect of freedom of
organisation. The system of bans continues as before.
* * *
The reforms to Article 18 of the constitution
concerning the Turkish National Security Council (NSR), an institution
currently placed above parliament and the government, are also only
cosmetic with the situation remaining unchanged.
Turkey has suffered for years under
the influence this institution has imposed on civil politics. What
the generals say happens in the council. The NSR does not only determine
national security policies but also the entire interior and foreign
policies on all important issues. The NSR determine the “policy
documents on national security” which are kept secret from the
public but which are binding on everyone including parliament and
the government. Parliament may not pass any legislation which contradicts
these documents. The legal basis for this is contained within the
law on the general secretariat of the national security council.
Turkey’s democratic community have been
long demanding the abolition of this institution. The EU’s entry
partnership document also requires that the revoking of the abnormally
influential status of the National Security Council and that it
be transformed into a advisory body of the government.
However, the only change is that the
justice minister is to be included and that the deputy prime minister
is giving voting rights. This will not change anything.
* * *
The constitutional commission therefore
trimmed back on some sensible Articles from the government’s “all
puffed up and hollow inside” reform package, and then put them to
the plenum. The plenum then excluded a further 3 Articles eventually
accepting 34 which were completely “harmless” for the oppressive
regime, and which contribute nothing to democratisation.
One of the Articles not accepted by
the plenum was the regulation whereby international agreements would
be valid within national legislation. That means that in the event
of national laws being contrary to international agreements, the
latter would take precedence. Such a reform was also an EU-Commission
requirement. However, the Turkish parliament decided that such an
amendment was contrary to national sovereignty and therefore rejected
it. In this way international agreements, especially those concerned
with human rights, were prevented from becoming legal in Turkey.
The regime has again closed itself off to democratisation.
A further Article rejected by the plenum
was that concerning parliamentary immunity. The reform of Article
83 was intended to make it easier to revoke immunity for offences
committed which were independent of the members’ parliamentary activity.
But those worthy members of parliament would not allow this. They
want to keep the protection of parliamentary immunity for themselves.
Even if such behaviour from the Turkish
parliament is disgraceful, it isn’t surprising. It is only natural
that such men fear the judiciary. There are many amongst them who
are accused of offences such as murder, drug smuggling and corruption.
Immunity covers their offences and prevents them from being prosecuted.
These men, who uphold their rights and then persecute others for
their comments and opinions, are not ashamed to keep their own shameful
acts away from the arms of the law.
This is not the only thing achieved
by those members of this “honourable” parliament who call themselves
“the people’s representatives”. They also prevented a number of
democratic Articles which may have been disadvantageous to them,
but then quickly voted for that part of the reform package which
gave astronomic rises in their allowances. In this way their grants
were raised from 4 billion 200 million TL to 6 billion 200 million
TL. They also guaranteed themselves “first-class pensions” which
had already been rejected 9 times by the Constitutional Court.
If one considers the economic crisis
in which the country currently finds itself, and how society is
suffering from sustained unemployment and poverty, with the population
being forced to tighten their belts even more, then it is terrible
what the members of parliament have done here. What these men have
done is then described as “national will”.
This again shows the standards, or lack
of standards, of the Turkish parliament. It has proven, as the president
of the Court of Appeals, Sami Selçuk,said, that this parliament is not
capable of fundamentally reforming the constitution.
Reform only happens when the members
want to raise their allowances through a constitutional Article.
What we mean are reforms towards democratisation. This has not happened.
With only cosmetic reforms, it would have been impossible to democratise
this straight-jacket of a constitution, imposed on society by the
military junta of September 12th 1980. And in any case,
this parliament alone would not have managed such a reform.
What is needed is to replace the constitution
with one which is modern and democratic. This is only possible through
respectable constitutional experts and through the participation
of a wide section of society and in a way promoted by Sami Selçuk
– through a constitutional assembly.
Is it possible under current conditions to call such
an assembly together? Who should decide this? The sick government,
the depraved parliament or the generals with their truncheons in
their hands?
One thing is certain, only a population who demand change
and thirst for democracy can achieve this. Unfortunately, the population
are so oppressed, so defeated because of all the knocks that they
have received over the many years, that they stand completely helpless
before these events.
It will take time before there is a change to the sad
fate of the people and the country. The dough still needs more water.
Perhaps the turning point will come following an even worse collapse,
when everything is devastated.
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