In my last post, I quoted Juan Linz and Al Stepan outlining the kind of conditions that need to prevail in order for a country to engage in a process of “free and consensual constitution-making”. I think the chances of Turkey meeting (or even approaching) this benchmark are non-existent or thereabouts.
That Turkey is soon to embark upon the process of writing a new constitution is, or ought to be, a remarkable development. This is not how these things tend to happen. New constitutions are generally written ‘hot’, following a crisis such as revolution or war. This lends the constitution-making process an inevitable air of significance (albeit one that the resulting documents and their implementation don’t always manage to live up to).
Turkey, by contrast, is coming to its constitution-making cold. Yes, the country is riven by heated differences. And yes, its democracy remains unconsolidated. But it has managed to muddle through, for decades now, with a series of demonstrably problematic constitutions. And this muddling through appears to have been habit-forming. Because when the party leaders speak of the constitution-making that now lies ahead, there is no sense of a country on the cusp of something new, as surely there ought to be. (In theory, we are talking about Turkey’s first properly democratic constitution here. In theory, this is big deal stuff.) Rather, drafting the new constitution appears, for government and opposition alike, to be just another item to squeeze into a crowded legislative calendar.
Of course, writing a constitution isn’t legislative business in any ordinary sense. But before looking at the relationship between constitutions and legislatures a bit more closely, I want to touch on the question of having a mandate for constitution-making.
I do so in the context of the recent suggestions, from both president Abdullah Gül and CHP leader Kemal Kılıçdaroğlu, that a new constitution might be drafted before the general election that’s due in the summer of 2011.This proposal doesn’t seem to have made any headway. But the fact that it was mooted at all speaks volumes about the way in which this country’s political class views the public’s role in the constitution-making process.
At this stage, the current parliament has no business writing a new constitution. Arguably when elected it had the authority to do so, but that authority has by now been exhausted, following the 2008 headscarf amendment crisis and the recent passage of the 12 September referendum. There are only so many times that parliament can credibly return to the constitutional well without seeking to renew its mandate from the electorate.
This isn’t just an dry point of principle. From the opposition’s point of view, it’s one of raw politics too. The 2007 elections took place in depressingly exceptional circumstances, and the votes that were cast reflected those conditions. If Mr Kılıçdaroğlu thinks that the framing of a new constitution should be entrusted to a legislature elected on the basis of a 47 per cent vote for the governing AKP, then more fool he.
Turkey is not alone in turning to its legislature to craft a new constitution. Most new constitutions are written in this way. That doesn’t make it the most desirable way of doing things. Jon Elster, who has given these questions more attention than most, suggests that the use of legislatures rather than specially convened constituent assemblies generally comes down to a lazy choice of the path of least resistance. “When a legislature is in place, why not use it?”*
A potent argument against using a legislature as a forum for constitution-making relates to the compositional differences that ideally ought to exist between the two. Elster:
In modern societies, an important function of the legislature is to provide the basis for an effective government. It is widely agreed that for that purpose, one wants an electoral system that limits the number of parties represented in the assembly. Majority voting or proportional voting with a high threshold are generally agreed to promote this end. To the extent, however, that the task of a constituent assembly is to promote free and unconstrained deliberation among all concerned parties, with a large variety of interests being represented, proportional voting with no threshold or a low threshold is more desirable.
Turkey, with its ten per cent electoral threshold, conforms more than most countries to the pattern of a restrictively composed legislature. In the current parliament, the effect of the threshold is that 18 per cent of 2007’s voters are unrepresented. Even this is a marked improvement on the results of the 2002 elections, when a shocking 46 per cent of votes were eliminated by the threshold.
The undemocratic nature of the threshold is now widely recognised in Turkey, and its removal for elections to future legislatures is likely to feature prominently in debates about the new constitution. That being so, its retention as a feature in the more fundamental exercise of writing a new constitution should raise eyebrows.
What is the alternative to relying on standard operating procedures in the legislature to draft Turkey’s new constitution? In an ideal world, properly proportional elections would be used to create a body tasked solely with working on the draft of a new constitution. This body would exist concurrently with the legislature, which would continue to fulfil its day-to-day role in the running of the state.
Such a constituent assembly would have an unambiguous and unpolluted mandate to draw up a new constitution. It would also, according to Bruce Ackerman, impose more powerful democratising incentives on participants than would operating within the legislature. Reflecting on the framing of America’s constitution, Ackerman states that:
By establishing a convention apart from ordinary organs of government, the revolutionaries did more than isolate the problem of constitutional order from the many short-term issues that bulked large on the political agenda. The very creation of the separate forum created new and powerful political incentives for a successful conclusion of the experiment in constitutional formulation.
These incentives operated in a very personal way that all politicians can understand: quite simply, the revolutionary leaders risked making fools of themselves if the convention dissolved without achieving an acceptable constitutional text. … They were self-consciously creating an incentive structure that maximised the chances of success by imposing new penalties for failure.**
To repeat what I said at the outset, I think the chances of Turkey implementing anything like this kind of arrangement are as close to zero as matters. Next year’s elections won’t be properly proportional and so won’t ensure the broadest possible degree of representation in constitutional debates. And the elections will be to a standard legislature rather than to a separate constituent assembly.
Dishearteningly, the absence of these features won’t result from reasoned discussion, nor even from a conscious decision to take the line of least resistance. There is simply no sense that the mechanics of constitution-making are even on the radar as something requiring political attention.
Ackerman notes that “a piece of paper calling itself a constitution can be many things: an empty ideological gesture, a narrowly legalistic document, or a profound act of political self-definition.” Turkey desperately needs a democratic constitution of the third variety. But in all likelihood it it will end up with something much more closely resembling the first. I would like to be proved wrong, but ultimately the democratic interests of the country’s politicians (both in the sense of their curiosity and their incentives) appear to be much too shallow to deliver us any more than that.
* Jon Elster, “Legislatures as Constituent Assemblies” in The Least Examined Branch: The Role of Legislatures in the Constitutional State.
** Bruce Ackerman, The Future of Liberal Revolution.