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The Referendum? It Is a ‘Yes,’ Of Course

[Originally published in Hurriyet Daily News] Last week a Briton-turned-Turkish-citizen called me on the phone and asked what I thought about the upcoming referendum on constitutional amendments. She obviously was liberal-minded, and was wondering what would be right thing to say on Sept. 12 from a liberal point of view. “Of course a yes,” I said, and explained to her the following reasons: Let’s begin with the “no” camp. Most of them are actually not interested in the contents of the constitutional amendments in question. They are simply focused on the fact that the Justice and Development Party, or AKP, brought them first to Parliament and then to the ballot box. In other words, they just want to strike a blow at the AKP, and the reform package is collateral damage. The ‘no’ campaign No wonder the “no” campaign has turned into propaganda against the government. The leader of the main opposition, Kemal Kılıçdaroğlu, spent more words on “the prime minister’s expensive villa,” on anything else in his highly populist and equally archaic socialist tirade. The leader of the nationalist opposition, Devlet Bahçeli, is rather busy with bashing the “treason called the democratic initiative,” which is the AKP’s failed attempt to disarm the outlawed Kurdistan Workers’ Party, or PKK, the pro-Kurdish terrorist group. In many of their criticisms, I don’t agree with opposition leaders. But even if I did, I would still try to separate them from the constitutional amendment package that we will be voting for. I think that is what any responsible citizen should do. But what is there in the package? Well, much of it includes improvements that hardly anybody opposes. Egemen Bağış, minister for EU affairs, listed them neatly: “The package brings positive discrimination for women, children and the handicapped; provides individuals with the right to request the protection of their personal data; extends the labor rights of workers; establishes the ombudsman institution; limits the jurisdiction of the military courts; [and] grants the right of individual applications to the Constitutional Court.” But there are two other important amendments which the main opposition has passionately opposed. If they pass, two of the main bodies of Turkey’s high judiciary will undergo some important changes. This is really the crux of the matter, so let’s focus. The first of those two judicial bodies is the Supreme Council of Judges and Prosecutors, or HSYK. This is a board of five men who decide which judge and prosecutor will take which job in the country. They have become controversial in recent years, for they proved to be allies of the military and opponents of the government. They have faced charges of being “ideological,” and their spokesman, Kadir Özbek, recently pled guilty. “Yes we have an ideology,” he proudly said last week. “It is Atatürk’s principles.” In other words, the HSYK judges are Kemalists – those who believe not only that every single thing Atatürk did some 80 years ago was right, but also that it is fully relevant today. That’s a totally legitimate point of view in politics – along with other ideologies such as liberalism or socialism. But it is a little odd when this ideology fully dominates the judiciary. The secret of this Kemalist nomenklatura is a system called “co-optation.” Accordingly, the members of the HSYK elect the members of the two other top judicial bodies: the Council of State and the Supreme Court of Appeals. In return, these two boards elect the members of the HSYK. So, they just keep electing each other! The system was purposefully designed that way by the generals who drafted the 1982 constitution. A bit like the Guardianship of the Islamic Jurists in Iran, the generals wanted a Guardianship of the Kemalist Jurists over elected politicians. The latter kept intervening in politics, by amazing decisions such as annulling privatization laws for violating “Atatürk’s principle of statism.” Toward a ‘broad-based’ system But what does the amendment propose? Creating an “AKP judiciary” instead of a Kemalist one, as the opposition argues? Not really. In the proposed design, the number of HSYK judges would rise from five to 20. Half of these will be elected directly by thousands of judges, throughout the country with ballots. The two arch-Kemalist bodies, the Council of State and the Supreme Court of Appeals, will still elect another five. The president (who will, from now on, be elected directly by the people) will appoint four members. And the last one will be elected by the Justice Academy. So the HSYK will simply become “broad based.” Probably, some members will still be Kemalists, but others will be liberal, conservative, socialist or whatever, with regard to their political views. The same is true for the proposed changes for the Constitutional Court. It will have more members, who will be appointed by diverse sources, including not just other judicial bodies, but also the president and Parliament – as in many European countries. In short, if the amendments pass in the referendum, the Kemalist domination of the judiciary will be replaced by pluralism. And I will be more than happy to say “yes” to that.
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