Turkey’s ruling AK Party is close to pushing through constitutional reforms that would limit the jurisdiction of military courts and give the office of the president more power in selecting judges for the Higher Council of Judges and Prosecutors. The Islamist stance of the AKP clashes with Turkey’s secular foundations, which the opposition has accused it of trying to undermine. Meanwhile, the EU has welcomed the reforms.
Under the new reforms, military officers would be tried in civilian courts, including the Supreme Court, for the first time. Furthermore, the Higher Council would be expanded to 21 members from the current 7, and would be selected by the President. The Constitutional Court would be expanded from 11 to 17 members, of which the President would pick 14.
The Turkish military has played a key role in the country’s politics, intervening a number of times to protect the legitimacy of the republic’s secular foundations. For example, the current constitution was drafted after a military coup in 1982.
If the reforms pass, it will be interesting to see how it affects the republic’s legitimacy. The current scholarship on constitutional change is dominated by two basic models: reform and revolution. Reform can be explained as a top down transformation of the government in which the core of the system is preserved. Revolution, on the other hand, involves a rupture between legal orders, where the previous constitution no longer applies in the post-revolutionary moment.
Both reform and revolution suffer from problems of legitimation. According to Carl Schmitt’s analysis in his Verfassungslehre (Constitutional Theory, 1928), the constitution inscribes the fundamental basis of a state, which cannot be changed through parliamentary procedure alone. In other words, Schmitt understood constitutions to be fundamental principles impervious to reform on the basis of their own rules, and therefore unchangeable by ordinary political tinkering. Such a change, were it to go through, would be legal in an abstract, positivist sense, but would lack political legitimacy.
The problems of legitimation in cases of revolution are even more obvious: once there is a rupture in a constitutional order, from where does the new group in power get the rules for forming a government? Historically, a number of answers have been given, including universal natural law, divine inspiration, and the process of class struggle. None have proven insurmountable to their challengers.
However, a third model has also been theorized to describe instances where legal continuity comes alongside a replacement of legitimacy. The first of these is said to have been the transition of Spain from under Franco’s rule in the late 1970s. It also includes the post-1989 transitions to parliamentary democracy in the former Soviet bloc, and in the present times, the constitutional transition and negotiations in Nepal. Constitutional scholar Andrew Arato described these “revolutionary reforms” as usually featuring some kind of provisional governing agreement formed under existing rules, therefore differing from purely revolutionary moments. An assembly responsible for drafting a new constitution would be formed through free elections, but also under pre-existing rules. Finally, constitution making would be a multi-step process, in order to allow for gradual improvements.
So the question is, do the new Turkish constitutional changes fundamentally alter the republic’s legal structure? Not being too familiar with the Turkish constitution and the structure of the country’s government, it it difficult for me to say. From a Schmittian lens, these parliamentary reforms would be illegitimate since they are both merely procedural in origin and challenge the secular basis of the republic. However, it seems to me that there is nothing concrete in the reforms themselves that leads to a specifically Islamist undermining of Turkish secularism. In other words, the reforms are an internal restructuring of government procedure, and can possibly favor the AKP while it is in power, but probably will not fundamentally shift Turkish politics away from secularism and toward Islamism. As such, since the reforms do not aim to transform the legal structure or institute a drastically different legal order, they are fundamentally conservative in nature.