70
Constitutional Changes under
the AKP Government of Turkey
O. YEGEN*
* Oya Yegen holds a PhD in
Political Science from Boston
University. She is part of the pro­
ject ‘Constitutional Politics in
Turkey’ at Humboldt-Universität
zu Berlin and teaches part-time
at Okan University.
1 Before the 2015 elections,
Erdoğan asked 400 deputies for
a mandate to write a new consti­
tution, but when the AKP had
lost its parliamentary majority in
June 2015, it seemed unlikely
that it could muster the votes ne­
cessary to change or replace the
constitution. Unable to form a
government, AKP regained its
majority as a result of the
November 2015 snap elections
that took amidst violence. See
Öniş 2016 for more on two
recent parliamentary elections of
Turkey. The snap elections held
on November 1, 2015 came after
AKP lost its parliamentary majo­
rity and the parties failed to form
a coalition government.
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Following its electoral win in the snap elections of November 2015, the
Justice and Development Party (Adalet ve Kalkınma Partisi – AKP) govern­
ment of Turkey reiterated its intention to write a new constitution that
above all else would enable the country’s transition from the present par­
liamentary to a presidential form of government.1 Recent developments
indicate that the AKP is drafting a new constitution unilaterally. The
failed coup attempt on July 15, 2016 has provided the impetus for the go­
verning party to push through a comprehensive constitutional change,
possibly a new constitution. According to the current plans underway, the
AKP will be ready to submit the proposals for changes to the constitution
in early 2017 and possibly hold a referendum in the spring of 2017.
Turkish constitutional history bears successful examples of inclusive and
consensual constitutional change, exemplified by constitutional amend­
ments in 1995, 2001 and 2004. Although the AKP initially preferred mul­
tiparty cooperation for constitutional change, gradually the process has
led to polarization across the political spectrum. This article will provide
an overview of constitutional changes that took place under the AKP go­
vernment with a focus on the crisis-ridden moments of constitutional
change in 2007, 2008 and 2010. Although there are also precedents of
confrontational constitutional change under a civilian government, such
as an amendment in 1987, this article will demonstrate that constitutional
politics became increasingly hostile over the years during the AKP
governments.
The article first summarizes the recent developments, which indicate that
the AKP’s plans to transform the parliamentary system to a presidential
model with a partisan president is underway and that Turkey is likely to
go through tumultuous months centered around constitutional change.
Next, the article outlines the history of constitutional change under the
AKP government, analyzes the impetus behind the governing party’s
constitutional reform agenda and its enthusiasm for a new constitution.
TV CR JANUARI 2017 BIJ DE BUREN 71

The article argues that as the governing party abandoned the goal of con­
stitutional change for the sake of democratizing the existing text and ap­
proached it as a means of responding to crises, amendment-making in
Turkey transformed into one of the most divisive issues.
The current constitution, the 1982 Constitution, albeit amended exhausti­
vely, is a product of military coup (1980-1983). Unlike other countries
such as Spain, Brazil and South Africa, the transition to an electoral de­
mocracy was not accompanied by constitutional replacement. Instead,
constitutional change in Turkey took place in the form of gradual amend­
ment-making that was initially motivated by Turkey’s accession process to
the European Union (EU). However, a detailed analysis of constitutional
change under the single-party government of AKP reveals that constituti­
onal change did not necessarily always aim to rectify the democratic defi­
cits of the 1982 Constitution. Especially after the EU project got sidelined,
amendments that were aimed at removing authoritarian features of the bij de
buren
constitution and enhancing democracy became secondary to amend­
ments that aimed to respond to a political crisis. The following analysis
will critically address the nature of constitutional change under AKP,
uncover the actors involved in the process and outline the motivation
behind specific constitutional amendments.

1. Transformation of Turkey’s Political System: A

Presidential Model for Turkey?

Initially planned to be unveiled by June 2016, the decision to replace

Prime Minister Ahmet Davutoğlu with a more trusted ally of President
Recep Tayyip Erdoğan, Binali Yıldırım has led the drafting process to be
postponed for a few more months. Among other issues that have fueled
the growing differences between Davutoğlu and Erdoğan was the latter’s
insistence to expand the executive powers and replace the parliamentary
system with a ceremonial presidency with an executive presidency equip­
ped with sweeping powers. Since Erdoğan was elected to power as the
first popularly elected president of the country, gradually the system
became a de facto presidential regime. Thus, supporters of the shift to a
presidential system highlight the necessity to make the transformation de
jure, to reflect the actuality of the system.
Former Prime Minister Davutoğlu had stated that a twelve-member AKP
commission was going to be working on a draft proposal after holding a
preliminary meeting with constitutional law and political science profes­
sors. This step came after an ad hoc commission created in early February
2016 was dissolved after merely holding three meetings. A similar
72
2 See Ozan Varol, ‘Turkey’s con­
stitutional negotiations unravel
before they even begin’,
ConstitutionNet, March 15, 2015
available at http://www.constitu­
tionnet.org/news/turkeys-
constitutional-negotiations-
unravel-they-even-begin
3 The first three articles of the
1982 Constitution are unamen­
dable. It leads some constitutio­
nal law scholars to conclude that
it is possible to amend the consti­
tution but not replace it. See Acar
2013.
4 AKP obtained 317 seats as a
result of the November 2015 elec­
tions. The unicameral Turkish
parliament has a total of 550
seats.
5 The AKP was founded in 2001
by leaders of the conservative
right, including Recep Tayyip
Erdoğan who had previously
served as the mayor of Istanbul.
He was a disciple of Islamist po­
litician Necmettin Erbakan who
as the leader of the Refah Partisi
(RP) was pressured by the armed
forces in 1997 to step down. The
RP was subsequently dissolved
by the Constitutional Court. His
previous party, the Millî Selâmet
Partisi was closed down by the
military government after the
1980 coup. His party before that,
the Millî Nizam Partisi was dis­
solved by the Constitutional
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all-party commission had lasted 18 months between 2011-2013 and
reached consensus on 60 articles. Most of the agreed upon articles were
related to basic rights and freedoms; the commission failed to reach
agreement on topics such as the definition of citizenship, the right to edu­
cation in one’s native language and the status of unamendable articles.
Yet the most significant issue blocking the process of changing the con­
stitution in this previous attempt was the disagreement over the possible
shift to a presidential system.
Skeptics have always believed that the AKP already has a ready-to-go draft
constitution, establishing a presidential system and that the attempt to
draft one through a cross-party commission was simply to create the illu­
sion that it was willing to seek consensus, rather than impose its will on
the rest. According to this assertion, the AKP relies on the improbability
of attaining an agreement between the four political parties with such di­
vergent positions and priorities and is therefore willing to let the process
run its course and then put forward its own proposal.
The constitution does not specify a procedure for its replacement but out­
lines the procedure for amendment. Statements from AKP indicate that it
intends to follow the amendment-making procedure,2 which raises the
issue of the constituent power in light of the unamendable articles en­
trenched in the current constitution.3 Currently, the AKP is short of 13
votes 4 to call a referendum on constitutional change. According to the
amendment-making procedure (Article 175 of the Turkish constitution),
the amendments must be submitted to a referendum if the constitutional
amendment is approved by less than two-thirds (367 votes) but more than
three-fifths of the total numbers of members of the Grand National
Assembly, the Turkish parliament (330 votes). Alternatively, the amend­
ment proposal must be approved by a two-thirds majority of the total
numbers of members of the Grand National Assembly (367 votes), which
in that case becomes effective immediately unless the president calls for
an optional referendum (Table 1). Thus, the AKP has to obtain the sup­
port of parliamentarians from other parties in order to reach the quali­
fying majority. In contrast to previous attempts at constitutional change,
the governing party has completely excluded the Kurdish problem-focu­
sed Peoples’ Democratic Party (HDP) from the process.
Determined to transform Turkey’s political system and to create a more
political president, the AKP will likely seek the cooperation of the nationa­
list party, MHP. However, even with the full support of the MHP
(Nationalist Movement Party – Milliyetçi Hareket Partisi), the governing
party either has to appease the main opposition party – CHP (Republican
People’s Party- Cumhuriyet Halk Partisi) – in order to pass the two-thirds
majority or submit the matter to referendum. The AKP has successfully
TV CR JANUARI 2017 BIJ DE BUREN 73

campaigned twice to approve constitutional amendments via a referen­

dum, in 2007 and 2010. In conclusion, Turkey is expected to go through
another period of polarized constitutional change that will have long term
ramifications, for it will result in a transformed political system.
Having summarized the most recent constitutional developments in
Turkey, the next two sections will analyze constitutional amendments
that were adopted under the AKP governments, and trace how, under a
single-party rule, constitutional change in Turkey gradually abandoned
consensus-seeking and became marked with confrontation and
polarization.

Table 1: Constitutional Amendment-Making Procedure in Turkey

How to Initiate Legislative The Role of the President The Role of the Plebiscite Other
Amendments Approval Quorum Constitutional Court Referendum Hurdles
Art. 175 Proposal by at A) Three-fifths A) Send the bill back to - Review on procedural A) Obligatory -Proposal de­
(as amended least one-third of majority (but less the parliament for recon­ grounds (whether the B) Optional bated twice
in 1987) the members of than two-thirds) sideration OR Submit amendment is proposed, on the
the parliament B) Two-thirds the bill to referendum and adopted by the ne­ plenary
majority (obligatory) cessary quorum and -Secret ballot
B) Ratify the bill OR whether it is debated
Send the bill back to the twice)
parliament for reconside­ -Two-thirds majority of
ration OR Submit the the members of the TCC
bill to referendum *After the 2010
(optional) amendments

Court in 1970. After the RP was

also closed on the grounds that it
2. Consensus without Deliberation: Constitutional had violated the principle of se­
Reforms Under Majority Rule (2002-2004) cularism enshrined in the con­
stitution, Erbakan again formed
a new party the Fazilet Partisi
The 1982 Constitution had been amended seven times before the AKP (FP). After that was also closed
down by the high court, the
came to power (Table 2). Although the first instance of amendment-ma­ Islamic movement split into two
king in 1987, under the single party government of ANAP (Mother Land factions. While the supporters of
Erbakan established another po­
Party – Anavatan Partisi), was not the result of a consensual process, the
litical party, the Saadet Partisi,
other two most significant instances of amendment-making, the 1995 and supporters of Erdoğan who des­
cribed themselves as conserva­
2001 amendments, were the result of consensus between political parties.
tive democrats with Islamic roots
These amendments were approved under a coalition government, especi­ – but not necessarily Islamists –
ally the amendments adopted in 2001. EU conditionality was an impor­ formed the AKP.
6 This was the result of the ten
tant factor in this respect (Table 3). percent electoral threshold,
The 2002 elections ended the era of coalition governments in Turkey and which leads to electoral distorti­
ons. The CHP, the other party
produced a strong majority government. A conservative party with that passed the threshold and en­
Islamist roots, the AKP,5 swept to power with 34 percent of the votes, the­ tered the parliament won one-
fifth of the vote but acquired one-
reby gaining 66 percent of the seats in parliament.6 The political parties
third of the seats (Sayari 2007,
that made and unmade the coalitions of the 1990s withered and the 200-201).
74 BIJ DE BUREN JANUARI 2017 TV CR

7 In addition to the CHP which

obtained 178 seats, nine inde­ elections produced a two-party parliament, with the AKP five seats short
pendents were elected. of the two-thirds majority needed to singlehandedly pass constitutional
8 Erdoğan was imprisoned for
reciting a poem with Islamic amendments.7 However, the AKP that was on the path to become Turkey’s
overtones in 1997 when he was dominant party was not necessarily the old guards’ – i.e. the military, the
mayor of Istanbul, and had
served four months in jail in
the presidency and the judiciary – preference of government. Thus, after
1999 on the crime of inciting re­ the elections of 2002, we see that certain actors in society frequently
ligious hatred. Although he was
resort to the institutional constraints available to them and that amend­
one of the principal leaders that
had established the AKP in 2001, ments are passed only if they are able to survive through concerted
he was barred from participating opposition.
in parliamentary elections as the
constitution banned those that
were convicted of ‘ideological
and anarchist actions’. Table 2: List of Constitutional Amendments to the 1982 Constitution
9 The Supreme Board of
Elections decided to cancel the Law No Date Number of Amendments
elections in one province – Siirt,
which provided the AKP with the 3361 May 17, 1987 4
opportunity to run Erdoğan as 3913 July 8, 1993 1
their candidate in the resche­
duled election after the constitu­ 4121 July 23, 1995 15
tional change. 4388 June 18, 1999 1
10 According to the amendment-
making rule of the 1982 4446 August 13, 1999 3
Constitution, the president has
4709 October 3, 2001 33
the power to send back the laws
on amendments to the 4720 November 21, 2001 1
Constitution to parliament for
4777 December 26, 2002 3
reconsideration. However, it is
possible for the parliament to 5170 May 7, 2004 10
override the presidential veto if it
musters a two-thirds majority of
5370 May 27, 2005 1
the total number of members. 5428 October 29, 2005 5
11 Özbudun and Gençkaya
2009, p. 64-65. 5551 October 13, 2006 1
12 The sale of deforested lands 5659 May 10, 2007 1
was carried out by introducing
amendments to ordinary 5678 May 31, 2007 7
legislation. 5697 October 16, 2007 2
13 See Sayari 2007, p. 206. Hale
and Özbudun (2009, 38-39) 5982 May 7, 2010 26
report the results of a 2006
6214 March 17, 2011 1
survey: ‘while slightly over half
of the respondents see the AKP
as a party that believes in a de­
mocracy (53.7 per cent), a party
that defends fundamental rights
and freedoms more than other During this initial phase, we witness one self-serving constitutional
parties (50.8 percent), and a amendment in 2002 that lifted the ban on candidates with past convic­
party that protects the rşghts of
people with Islamic lifestyles tions. It changed the clause that prevented Recep Tayyip Erdoğan’s elec­
more than other parties (53.3 per tion to parliament8 and provided for an interim election.9 This partisan
cent), a substantial proportion of
them see it as a party that inten­ amendment deviated from previous constitutional changes, as it catered
ds to impose an Islamic way of to one individual and did not have democratization, liberalization or EU-
life (50.3 per cent) that seeks EU
membership to legıitimise an
conditionality as motivation. The amendment proposal was approved with
Islamic political systen (45.2 per the support of the opposition party CHP (Republican People’s
TV CR JANUARI 2017 BIJ DE BUREN 75

cent), that did not soften the

Party- Cumhuriyet Halk Partisi) but despite the veto of President Ahmet Islamist-secularist conflict (44.4
Necdet Sezer.10 The ideological divide between the two parties in the par­ per cent), tha seeks to infilrate
the bureucracy with Islamic
liament manifested itself when the AKP proposed that it would allow the cadres (43.8 per cent), and that
management of state forests by private persons and the sale of public intends to reverse advances in
women’s rights (36.7 per cent)’.
lands, which technically and scientifically were no longer forests as of 31 14 The program stated ‘We shall
December 1981 (Articles 169 and 170). The proposal was not addressing draft a new participatory and li­
beral Constitution to replace the
any of the much-criticized aspects of the constitution, such as restricted
existing Constitution that no
rights and freedoms, an empowered presidency, or the status and powers longer meets our country’s
of the military. The motivation behind the constitutional amendment was needs. Our new Constitution
shall represent a notion of demo­
the calculation that the sale of deforested lands would bring in an estima­ cracy and the rule of law with
ted 25 billion dollars in revenue. However, the CHP, which is a social de­ strong popular legitimacy, high
compatibility with international-
mocrat party with a nationalist base, vehemently opposed it.11 The presi­ most notably European Union
dent vetoed the proposal twice and the AKP did not take the risk of going norms, an emphasis on uphol­
ding individual rights and liber­
to a referendum. Ultimately, the amendments were put aside.12 Here, the ties and a pluralistic and partici­
ideological affinity between the President and the CHP provided the op­ patory democracy at its core. We
shall pay attention that the
position party with an additional veto power. The relationship between
Constitution will be brief, clear,
the AKP and CHP, the two parties in parliament, growingly came to be and comprehensible in terms of
defined by the polarization between the pro-secular forces and pro-Isla­ its form’ (quoted in Coskun
2013, 98). Similar pledges were
mist forces in society and politics.13 Although the AKP government’s pro­ made after a new government
gram after the 2002 elections highlighted that their aim was drafting a under the prime ministry of
Erdoğan was formed. See Gül
new constitution, it was only after the 2007 early general elections that Hükümeti Programı (58th gover­
AKP unveiled a draft constitution.14 nment) available at http://www.
tbmm.gov.tr/hukumetler/hp58.
In its initial years in the parliament, the AKP acted with caution and prag­ htm and I. Erdoğan Hükümeti
matism, did not seek any radical changes, did not push ideological poli­ Programı (59th government) avai­
lable at http://www.tbmm.gov.tr/
cies and overall tried to avoid confrontations with the military and the ju­
hukumetler/hp59.htm.
diciary. For instance, despite the fact that the AKP could muster the ne­ 15 Sayari 2007, p. 206. AKP also
cessary quorum, it did not seek to revoke the ban on the headscarf for did not resubmit an education
bill (regarding Imam Hatip scho­
female university students – ‘a politically charged and highly symbolic ols that provide religious educati­
issue that has polarized Turkish politics for nearly two decades’.15 Deemed on) that was vetoed by President
Sezer on the grounds that it vio­
an outside actor, the traditional power holders of the Turkish state, lated the principle of secularism.
namely the President’s office, the Constitutional Court, the military, the A statement by the military obta­
ined after several university rec­
mainstream media, and the universities remained suspicious of the AKP, tors held a meeting with a senior
despite its claims of moderate Islam and promotion of a liberal market general, considered the AKP’s
plans to reform the university
economy and EU membership.16
admission system a threat to na­
All the same, in 2004 a parliamentary consensus was reached to introdu­ tional security (Shambayati and
ce a series of constitutional amendments. The driving force behind these Sütçü 2012, 116). Prime Minister
Erdoğan said ‘As a government
amendments was the on-going EU. The AKP embraced full membership we are not ready to pay the price’
of the EU as one of its goals and the opposition party CHP supported (Jenkins 2007, 350).
16 Coşkun 2013, p. 99-100.
membership as well. The high public support for EU membership meant However, it is important to note
that the armed forces could not intervene in the political process.17 that several AKP policies during
its first government did raise
The reforms abolished one article and amended nine articles. The concerns about its self-ascribed
amendments eliminated all references to the death penalty in the democratic and liberal outlook.
76 BIJ DE BUREN JANUARI 2017 TV CR

These include the attempt to cri­

minalize adultery in 2004 as constitution; permitted affirmative action for women; abolished the state
well as its attempts to restrict the security court; allowed for extradition of Turkish citizens in cases of of­
sale of alcohol, which were seen
as examples of its Islamist fenses under the International Criminal Court jurisdiction; eliminated
agenda. the Chief of the Military Staff’s right to appoint a member of the Board of
17 Jenkins 2007, p. 349. It
should be noted that the 2004
Higher Education; allowed for the Court of Accounts’ auditing of the
amendments were a continuati­ Armed Forces; and, most significantly, established that international
on of the process that had produ­
agreements take precedence in case of conflicts between international
ced the 1995 and the 2001
amendments. See Kalaycıoğlu p. agreements and domestic law concerning fundamental rights and
2011, 208 and Gönenç and liberties.
Kontaci 2005, p. 118.
18 According to Bali 2013, p.
673, the AKP’s first term wit­
nessed ‘a relatively smooth coha­
bitation between the elected 3. Polarization and Battling Veto Powers: Confrontational
branches of government and the Constitutional Change (2007-2010)
military, judiciary, and civilian
bureaucratic elites’.
19 Between 2004 and 2007 two From this point onward, the Turkish amendment-making process shifted
amendments were adopted. In
away from constitutional changes aimed at removing non-democratic pro­
2005, amendment reorganizing
the Supreme Board of Radio and visions, which had defined the amendment-making processes in 2004,
Television (RTÜK); another one 2001 and 1995. In particular after the AKP’s first term (2002-2007),18
in 2005 expanded the parliamen­
tary supervision of the govern­ constitutional change would either consist of the adoption of a minor or
ment budget. A 2006 amend­ technical reform or of an antagonistic modification responding to a politi­
ment lowered the minimum age
of holding public office. See cal crisis faced by the government.19
further See Özbudun and The first crisis erupted over the election of the new president, in the
Gençkaya, 2009, p. 97-103.
20 Uran 2010, p. 3.
spring of 2007. The possibility of a president from the AKP cadre led to a
21 Kumbaracıbası 2009, p. 58. harsh reaction among the secular forces of the country on the grounds
22 Shambayati and Sütçü 2012,
that the office of the presidency should be occupied by someone that re­
p. 114-115; Gönenç 2008, p. 513
23 According to the constitution, presented the values of the secular state.20 Although the post is largely ce­
the necessary quorum to elect remonial, the president has important appointive powers and certain le­
the president is a two-thirds ma­
jority (367 votes) for the first two gislative powers such as the power to issue decrees with the force of law,
rounds and for the third and the right to call referendums for constitutional amendments, to sign or
fourth rounds an absolute majo­
rity (276 votes) were necessary. send back laws and to file suits at the Constitutional Court for the review
In order to avoid infinite rounds of the constitutionality of laws among other powers.21 President Sezer had
of presidential election in the
parliament, in the event that the
used these powers vigorously as a check on the government.22
parliament failed to elect one of Resenting the candidacy of a AKP-president, the opposition party CHP at
the candidates, new general elec­
a certain point controversially claimed that the two-thirds majority was
tions would be held. Since it did
not have the two-thirds majority, not only the decisional quorum, but also the necessary quorum for mee­
the AKP was counting on tings of parliament23. Based on this dubious argument, the opposition
electing its candidate in the third
round. party decided to boycott the assembly and deadlock the election process.
24 Özbudun and Gençkaya This maneuver was the first step towards a constitutional crisis. Then, the
(2009, 98) argue that it was ‘an
extremely controversial ruling’ Constitutional Court decided to annul the ballot on the basis of the con­
because according to the troversial argument that the required quorum was not met. This move in
constitution there is no special
quorum rule for the meeting of
turn compelled AKP to seek solutions through changing the constituti­
the assembly during a on.24 These developments were also accompanied by a statement from the
TV CR JANUARI 2017 BIJ DE BUREN 77

presidential elections and hence

armed forces, published on the official website of the General Staff that the general rule (Art. 96) should
highlighted the institution’s perceived role as the guardian of secularism. apply, which is one-third of the
full membership. However, the
Dubbed as the e-memorandum, the April 27 statement was directed Constitutonal Court sided with
against the AKP’s official candidate, Abdullah Gül, whose wife donned the opposition CHP’s opinion
that the election of the president
the Islamic headscarf. The course of events strengthened AKP’s hands. was one of the exceptions cited
AKP maintained its majority in the early parliamentary elections 25 and in that article.
25 Following the July 22, 2007
Gül re-declared his candidacy for the presidency. In order to avoid another
elections, AKP retained its majo­
presidential election stalemate, two opposition parties, the nationalist rity and even increased its vote
MHP and the social democrat DSP,26 both of which entered the parlia­ but with a lower number of seats
(340 seats) because the nationa­
ment after the snap elections held on July 22, 2007, decided to attend the list MHP, which had failed to
parliamentary sessions but put forward their own candidates, allowing pass the threshold in the 2002
elections joined the parliament
the election of Gül in the third round.27 With the election of Gül, the pre­ along with 22 independent can­
sidency ceased to be a veto actor or alternatively we can say it ceased to be didates. The 2007 elections led
to much more proportional re­
a ‘safeguard that can force consensus by the other parties before making sults, and if we count the inde­
amendments’.28 pendents that later formed the
DTP, 85 percent of the vote was
Despite the fact that a new president from AKP ranks was installed, the
represented in the parliament
government took the necessary steps to change the constitution to allow (Hale 2008, 238).
for direct presidential election, shorten the legislative period to four years 26 The Demokratik Sol Parti was
established in 1985, the party
and establish a quorum needed for parliamentary decisions of one-third lost its support gradually after
of the elected members of parliament.29 Vetoed twice by the former 2002. In the 2007 elections, 13
DSP candidates got elected to the
President Sezer, the constitutional amendments were approved by a popu­ parliament by running as part of
lar referendum in October 2007 with 68.95% of the vote.30 The early ge­ the CHP list and resigning
afterwards.
neral elections, the Constitutional Court’s review of the amendments, the 27 Özbudun and Gençkaya
parliamentary election of the new president and the concurrent referen­ 2009, p. 101.
28 Arato 2009. 37.
dum for the 2007 amendments had led to a discrepancy, which was re­
29 Atikcan and Öge 2012.
solved by another set of constitutional amendments.31 30 The opposition CHP and
The 2007 constitutional changes regarding the election of the president Sezer had also applied to the
Constitutional Court on the
and parliamentary procedures were sudden reactions to political crises, ir­ grounds that procedural irregu­
relevant to democratization and the EU process (Kalaycioğlu 2011, 274). larities had taken place during
the parliamentary voting. The
The AKP’s legislative hegemony had provided it with the confidence to 2007 constitional amendment
push through changes at the risk of exacerbating the polarized atmosphe­ package included amendments
to five articles (Art. 77, 79, 96,
re. Thus, the constitutional amendment that changed the system of 101 and 102) and the addition of
govern­­ment from a parliamentary system to a parliamentary system with two provisional articles (PA 18
and 19). During the individual
an elected presidency came about as a result of a ‘political conflict
voting of the articles, the article
between the ruling political party and the constitutional court’.32 that provided for a shorter legis­
The whole process that defined the presidential election stalemate – the lative period was adopted by less
than two-thirds but the whole pa­
Constitutional Court’s decision, the warning by the military, the early ckage received more than the
elections, constitutional amendments and the referendum – were a series required two-thirds majority.
The court rejected the claim of
of crises that followed one after another. The constitution-making and re­ unconstitutonality. For the
ferendum processes were the result of partisan politics characterized by court’s reasoning, see Özbudun
and Gençkaya 2009, 100.
the secularist versus pro-Islamic divide in Turkish politics.33 This polari­ 31 These amendments were ac­
zed context intensified with further developments in 2008, when the tually to undo the two
78
provisional amendments that
were no longer relevant because
the president was already elected
by the parliament but they were
to be voted on in the upcoming
referendum.
32 Uran and Pasquina 2015, p.
93.
33 Atikcan and Öge 2012, p. 454.
34 Arato 2010, p. 477. The com­
mittee that prepared the draft
constitution included six profes­
sors of constitutional law: Ergun
Özbudun, Levent Köker, Yavuz
Atar, Fazıl Hüsnü Erdem, Zühtü
Arslan and Serap Yazıcı. They
were asked on June 8, prepared a
draft in a short period of time
and presented it to the AKP lea­
dership at the end of August.
The draft was slightly modified
after the committee held a mee­
ting with AKP cadres in mid-
September (Özbudun and
Gençkaya 2009, 104). The com­
mittee was formed upon the re­
quest of Prime Minister
Erdoğan.
35 It should be noted that the
ban is not based on a provision of
the constitution, nor any statuto­
ry law. Previous efforts to resolve
the issue through ordinary legis­
lation have failed. Two decisions
of the Constitutional Court from
l989 and 1991 had become the
basis for which public bodies im­
posing the ban and prohibiting
the wearing of headscarves at
universities.
36 Art. 148 provides that
‘Constitutional amendments
shall be examined and verified
only with regard to their form’.
37 Bali 2013; Roznai and Yolcu
2012.
38 Gök (2014, AI), a CHP
member of the Constitution
Commission states that the res­
tructuring of the judiciary was
‘goal-oriented’ in the sense that
AKP wanted to eliminate the ju­
diciary’s status quo approach in
order to have an impact on its
future decisions. İyimaya (2014,
AI, an AKP MP who worked on
the AKP’s proposal and was a
member of Constitution
Commission describes himself
as the architect of the reforms.
BIJ DE BUREN JANUARI 2017 TV CR
AKP faced constitutional challenges on two fronts: 1) on the constitutiona­
lity of amendments that would permit female students to wear headscar­
ves on university campuses, 2) a threat of closure to the governing AKP
for being the ‘focal point of anti-secular activities’. Both issues were cente­
red around the issue of secularism and divided around the secular-pro-Is­
lamic fault lines.
The AKP electoral victory following months of crisis in 2007 gave the
party leadership the self-confidence to pursue further constitutional
change. Able to form a single party government once again, with a new
president chosen from its ranks, the AKP abandoned its preference for
consensual constitutional change. On the one hand, it revealed plans to
introduce a new constitution drafted by a governmental extra-party com­
mittee.34 On the other hand, together with the support of the nationalist
opposition party MHP, the government pushed through another constitu­
tional change on two articles regarding the principle of equality (Article
10) and the right to education (Article 42). Although appearing neutral in
terms of content, the amendments were specifically catered to AKP’s elec­
toral base as the 2008 constitutional amendments were intended to abo­
lish the headscarf ban for female university students.35
The decision by the AKP to embark on constitutional change directed at
its own electoral base on the one hand and to convene a committee of ex­
perts to draft a new constitution without the participation of opposition
groups on the other hand, raised suspicions about the intentions of the
governing party. The opposition CHP petitioned the Constitutional Court
on the grounds that the amendments were against the unamendable arti­
cles of the constitution: in particular, the principle of secularism. Despite
the explicit limits on constitutional review to procedural grounds (not
substantive),36 the court concluded that the constitutional amendments
were unconstitutional because they were inconsistent with the constituti­
onal provision that mandates a secular state.37
Further polarizing the political atmosphere was a party closure case
against AKP. In March 2008, a Chief Public Prosecutor had filed a case
with the Constitutional Court, demanding the ban from politics of 71
AKP members for five years and closure of the party on the grounds that
it had become the ‘focal point of anti-secular activities’. The court accep­
ted the prosecutor’s indictment against the sitting government and came
within just one vote of banning the governing party, though it did vote to
cut public funding for the party.
Judicial reform became a priority for the AKP after its clashes with the
high court over the election of the president, constitutional amendments
and its averted closure case.38 From the perspective of the government,
the judiciary was systematically challenging the government’s ability to
TV CR JANUARI 2017 BIJ DE BUREN 79

legislate and it was operationalized as ‘an unelected veto player’ by the op­ According to him, not only socie­
position CHP and other state elites unable to block the AKP’s initiatives tal demands but also the
memory of past crises played a
in the parliament.39 Speculation in the media in early 2010 that the public role in the AKP’s proposal
prosecutor to the Supreme Court of Appeals was contemplating bringing (İyimaya 2014, AI).
39 Bali 2013, p. 691.
another case to close down the AKP prompted the governing party to pro­ 40 The constitituonal challen­
pose a constitutional change that would make it more difficult for parties ges faced by the AKP since 2007
were at the heart of this decision
to be closed. The original proposal was later supplemented with changes
with respect to the
in the composition of the Constitutional Court 40 and the High Council of Constitutional Court. Özdemir
Judges and Prosecutors (HSYK)41 and was prepared by the AKP’s legal Özdemir who served as the
general director of law under the
consultants. Justice Minister between 2008
While the most important provisions of the amendment were related to and 2011, argues that the
government’s plans to introduce
composition and appointment structure of the high courts, these were individual constitutional
embedded in a 26-article package that seemingly bolstered rights and li­ complaints also prompted the
decision to expand the
berties and the rule of law. 42 These included the introduction of the office composition of the court because
of Ombudsman and the individual complaint mechanism; strengthening the new mechanism was
expected to increase the caseload
rights of children and other disadvantaged groups; establishing a separate
of the court (Özdemir 2014, AI).
secretariat and budget for HSYK; increasing the quorum of 41 Attempts to restructure the
Constitutional Court in procedures to prohibit a political party and re­ HSYK stemmed from some
other high profile cases, in which
views of the constitutionality of constitutional amendments; strengthe­ the board had suppressed the ac­
ning the right of collective bargaining for civil servants; introduced new tivism of lower courts such as
during the investigation into the
rights such as personal data protection and right to become members of the Şemdinli incident, see
different labor unions at the same time, allowing judicial monitoring of Tezcür 2009 and Sağlam 2013.
The European Union has repea­
the Supreme Military Council’s decisions and ending the judicial immu­ tedly criticized the board and
nity of the 1980 coup-makers. 43 The opposition considered these to be called for reform, see ‘Concerns
remain about the independence,
‘window-dressing’ for the rest of the amendments, which changed the ap­
impartiality and efficiency of the
pointment structure of the Constitutional Court and HSYK and were the judiciary,’ Turkey 2009 Progress
truly divisive issues (Articles 146, 147, 149 and 159). 44 The opposition con­ Report, at 11, SEC (2009) 1334
(Oct. 14, 2009). The February
sidered the rest to be ‘sweeteners’ that were embedded to obtain more 2010 arrest of a prosecutor
votes in the referendum. 45 Although these amendments had the potential (İlhan Cihaner) and the decision
of HSYK to revoke the authority
of democratizing the constitution, the oppositional forces argued that of another prosecutor who orde­
they were simply added with the purpose of attracting the support of do­ red his arrest created an additio­
nal crisis between the govern­
mestic and international liberal opinion. ment and the judiciary.
The 2010 amendments became another example of ‘the enhanced parti­ 42 Coşkun, 2013, p. 109.
43 An article regarding the clo­
sanship and elite conflict’ that had absorbed Turkey since 2007. 46 The op­
sure of political parties could not
position appealed to the Constitutional Court once again, but this time receive the necessary 330 votes
the court’s decision did not mean annulment but partial revision of the during the voting process and
therefore was not included in the
two articles on Constitutional Court and HSYK. 47 package. Before it was put to re­
ferendum, the Constitutional
Court following the request of
the CHP and the DSP reviewed
the articles’ (Articles 8, 14, 16,
19, 22 and 26 of the package)
substance based on Article 4’s
ban on amendments to articles 1
80
through 3 and decided to partial­
ly annul two articles (Article 146
and 159 of the Constitution) that
would have restricted the
number of votes for the candi­
dates of AYM and HSYK to one
per election (Article 146, 4th pa­
ragraph- Article 16 of the packa­
ge) and would have allowed the
president to directly appoint four
faculty members of economic
and political science depart­
ments and senior executives to
the HSYK (Article 159, 3rd para­
graph- Article 22 of the package).
However, the court refused to
review the package as a whole on
formal grounds.
44 Günalp 2010.
45 Kalaycıoğlu 2011, p. 275.
46 Kalaycıoğlu 2012, p. 2.
47 Before it was put to a referen­
dum, the Constitutional Court,
upon the request of the CHP and
the DSP, reviewed a series of ar­
ticles (Art. 8, 14, 16, 19, 22 and
26 of the package) based on
Article 4’s ban on amendments
to articles 1 through 3 and deci­
ded to partially annul two arti­
cles (Article 146 and 159 of the
Constitution) that would have
restricted the number of votes
for candidates for the AYM and
HSYK to one per election (Art.
146, 4th paragraph- Art. 16 of the
package) and would have allowed
the president to directly appoint
four faculty members from eco­
nomic and political science de­
partments or senior executives to
the HSYK (Article 159, 3rd para­
graph- Article 22 of the package).
However, the court refused to
review the package as a whole on
formal grounds. The Constitu­
tional Court announced its deci­
sion on July 7, 2010. E. 2010/49
K. 2010/87
BIJ DE BUREN JANUARI 2017 TV CR
Table 3: Major Constitutional Amendments in Turkey
Year Amendments Type of Governing Subject of the amendments
Government Party or
Parties
1987 4 articles Single party ANAP Amendment procedure; electi­
majority on regulations and lifting the
ban on poltical leaders.
1995 14 articles Coalition DYP, SHP Preamble; rights and free­
and the majority doms; expansion of political
preamble rights and participation; in­
crease in the number of mem­
bers in the parliament; proce­
dures for political party clo­
sures; recourse to CC in case
of loss of membership for
deputies.
2001 32 articles Coalition DSP, Preamble; expanding the
and the majority ANAP, scope of rights and freedoms
preamble MHP and delimiting general restric­
tions on rights and freedoms;
restricted death penalty; poli­
tical participation; right to fair
trial; Turkish citizenship; judi­
cial review of military regime
laws; punishment system for
political parties; composition
of the MGK
2004 10 articles Single party AKP Elimination of capital punish­
majority ment and State Security
Courts, precedence of interna­
tional treaties on fundamental
rights and freedoms; gender
equality
2007 7 articles Single party AKP Tenure of the parliament;
majority direct election of the presi­
dent; meeting quorum of the
parliament
2010 26 articles Single party AKP Positive discrimination; rights
majority and freedoms; collective bar­
gaining for public servants;
introduction of ombudsman;
individual constitutional com­
plaint mechanism; recourse to
judicial review for Supreme
Military Council expulsion de­
cisions; restricting the milita­
ry courts’ jurisdiction; remo­
ving the immunity for the
perpetrators of the 1980 coup;
composition and appointment
structure of the Constitutional
Court and Supreme Council
of Judges and Prosecutors
TV CR JANUARI 2017 BIJ DE BUREN 81

In 2011, the constitution was amended for a seventeenth time, now rela­
ting to the disciplinary process of sport federations (spurred by an on-
going bribery scandal). Most recently and more significantly, the parlia­
ment passed another controversial amendment that would add a provisio­
nal article to temporarily lift the immunities of 138 deputies currently
under investigation, rather than following the constitutional steps of hol­
ding a parliamentary debate and vote on each alleged criminal act. 48 The
amendment is seen primarily directed at the Peoples’ Democratic Party
(HDP), which champions Kurdish rights, to force the opposition party
from the parliament. 49

4. Conclusion

This article has argued that, from the beginning, the AKP era has been
marked by an increasingly confrontational approach to constitutional
change. The recent inclination of the AKP government to forego consen­
sual constitution-making, to unilaterally draft a new constitution, and to
replace the parliamentary system, is not a reversal in its approach to con­
stitutional change. In fact, as the above analysis outlines, there has been a
gradual drift away from consensus-seeking towards a confrontational ap­
proach to constitutional change that is no longer motivated by a determi­
nation to respond to the democratic deficits of the current constitution,
but by a reaction to crises or the desire to cater to partisan interests. This
has over the years culminated in a unilateral approach to constitutional
change with a focus on a switch to a presidential system.
The parliamentary proceedings from the failed attempt to write a new
constitution (2011-2013) indicate that there had been a genuine attempt to
seek consensus across parties. However, a failure to agree on the rules of
changing the constitution (including the fate of the unamendable articles)
as well as the lack of a pre-established principle on the foundations of the
new constitution together with the AKP government’s growing push for a
presidential system, had led to the breakdown of these negotiations.
Further attempts to replace the constitution following the 2015 elections
have cut short as a result of irreconcilable positions of the political parties, 48 This constitutional change
the so-called ‘red-lines’. However a new momentum seems to have emer­ adds a provisional article to the
constitution and does not modify
ged following the July 15 coup attempt directed against the AKP govern­ any of the articles of the consti­
ment. Yet, even that impetus for appeasement and consensus seems not tution. However, this temporary
article contradicts the constituti­
forceful enough for the AKP government and President Erdoğan to inclu­ on, which provides for parlia­
de the Kurdish political party, HDP, back in the negotiations for a new mentary inviolability (Law 6718).
49 In November 2016, a
constitution. Although the current parliamentary arithmetic does not
number of HDP deputies were
allow the governing party to unilaterally pass constitutional amendments, detained and later arrested.
82 BIJ DE BUREN JANUARI 2017 TV CR

the recent rapprochement with the nationalist party MHP over the shared
aversion for HDP provides a strong possibility that Erdoğan and the AKP
will be able to institute a presidential system and change a significant
portion of the constitution. If the history of constitutional change under
the AKP provides any indication of what is to come, we should expect con­
stitutional politics to be crisis-driven and confrontational.

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