Politically Weighted Courts in Turkey “Bad News” for Democracy

Andrew Arato is an expert in constitutions, a pressing topic in Turkey right now.

I read the news about the Turkish referendum on constitutional reforms with great interest. Turkey is a bridge between East and West.  Europe meets Asia in modern booming Istanbul. It’s a place where the commitment to democracy and to an open Islam is the official policy of the governing Justice and Development Party.  It’s a place of great hope and promise, where instead of the clash of civilizations, there is dialogue and reinvention. But it is also a place where people committed to secularism worry about the prospects for their modern way of life.  I tried to follow the news reports about what happened, but they were unclear.  I understood that a sweeping package of constitutional reforms were approved, that the referendum purported to bring the Turkish constitution up to European standards, but also that the opposition was claiming that the package was a systematic power grab.  Is this a sign of democratic progress as the ruling party spokesman declared, or is it, as the opposition declared, a significant regression?  I called my friend and New School colleague, Andrew Arato, a distinguished expert on constitutions, who has been working with a group of young scholars on constitutional issues in Turkey.  He agreed to answer my questions. I opened by asking him whether the referendum results were good or bad news?

I think bad. The successful Turkish referendum of September 12 was ultimately about court packing. Not only is the manner of choosing judges for the Court now altered, but six new judges presumably friendly to the government will be added to the Court within 30 days.

This is a point missed by almost all Western commentary on the event. Court packing is always bad business. The way is now almost open for the AKP (Adalet ve Kalkınma Partisi, the ruling Party with leaders who have an Islamist, but are committed to membership in the European Union) to remake the country’s secular constitution entirely on its own.

I understand that it is never a good idea to have a political party, let alone a political leader, even one that we passionately support, to have the power to remake a constitution at will. FDR was one of the greatest Presidents in our history, but when he was having a hard time getting his New Deal reforms through the court and tried to pack it with his supporters, it was in retrospect a good thing that the American public and their representatives turned on him.  So the general concern I get.  But do you have particular reasons to be concerned?

It was indeed wrong for Roosevelt to try control judicial outcomes by Court packing.  But the meaning of this device is especially troublesome in potentially more authoritarian settings, for example, the introduction of formal apartheid in South Africa, and during Mrs. Gandhi’s emergency in India. In South Africa, the parliament was about to deprive the colored (mixed race) voters of their franchise, and the Appeals Court resisted. This was overcome by packing  both the court and the Senate. As to Mrs. Gandhi, at issue were both her so-called corrupt practices in an election, as well as the Court’s ability to defend rights against the easy amendment possibilities of the constitution. In the end the Court won, but only after a destructive emergency when the democracy was almost lost.  The packing of the court in Turkey is reminiscent of these two dangerous cases.

Further, it is not obvious that the Turkish electorate would have voted for this type of scheme had it been honestly presented. It was not. The Court packing and changing provisions were only two articles of a highly attractive twenty  six article package that the voters could approve or reject only as a whole. The people had to choose between all or nothing.  This tragically repeats the approach of the military dictator, General Evren, in 1982.  Then: vote for military’s constitution if you want one good thing (namely the end of the junta’s rule) or continue the military dictatorship.  Now: the population had to confirm an immense increase in the power of the ruling party if it wanted any of the many goodies in the package…

The AKP has operated as a moderate Islamic one (they say conservative) so far. But, there is no guarantee that it would continue to do so when it has the power to change the constitution of the country at their will.  The project to combine the secular traditions and institutions in Turkey with the religious commitments of the vast majority of the Turkish population is now apparently going to go unchecked by any political or social force other than the ruling party.

Why just apparently unchecked?

I qualify my judgment for three hopeful reasons. First, because even a packed Court may still act like a Court. The eternity clauses of Turkey’s present constitution concerning secularism and republicanism, plus the preamble involving the separation of powers (incorporated in an eternity clause) still gives the Constitutional Court a foothold to control constitution making, if it wishes to. While the apartheid regime did control its newly named  judges, Mrs. Gandhi in the end did not.

It’s possible that just as in the United States there is no guarantee that the appointed judges will act in the way their patrons want.  They may actually take their constitutional responsibilities seriously using their own judgment.

And there are the relevant European institutions, which until now seem to have been fooled by the package. But, once its real meaning becomes clear, I think they will not be fooled and the response could be devastating.

And further there is the matter of the Turkish electorate itself, it has means to respond and defend the constitutional order.

Nonetheless the key problem remains – the referendum permits Prime Minister Recep Tayyip Erdogan and President Abdullah Gul of the ruling party to pack the court.  The editors of  The New York Times naively call on them to “not pack the court with political loyalists and religious extremists.” I fear that was the very point of the exercise.