The Court’s ruling affects articles 16 and 26, which would redefine the process of electing members to the Constitutional Court and the Supreme Board of Judges and Prosecutors (HSYK), both of which are strongholds of the old establishment, a state within the state that can block legislation approved by parliament and attempts to reform Turkish society away from the Kemalist model.
For critics, the Constitutional Court has exceeded its power, as it is wont to do. Indeed, Art 148 of the Constitution says that the court can only examine the form of constitutional amendments, not their content. Instead, after closely vetting the proposed amendments, it surgically altered (as the Radikal newspaper put it) two articles, 16 and 22, in order to save its arrogant existence, at a time when the old establishment is in difficulty.
Under the original package of reforms, the president would have been able to appoint experts to the Constitutional Court with a background in economics and political science. Now, he will not. This will ensure that candidates come from the establishment.
The Court also cancelled a provision that would have allowed members of the HSYK and the Constitutional Court to choose only one candidate, rather than three as it is now.
The Court did however accept the repeal of Article 15, which protected members of the military and their aides from prosecution for their role in the coup of 12 September 1981. Although symbolically significant, it will not change anything because crimes committed at the time of the coup have come under the 20-year statute of limitation.
Despite the changes made by the Constitutional Court, the reform package includes a number of other interesting innovations that have not been struck down, like the right of individuals to appeal to the highest court, the creation of the Ombudsman’s office, the possibility to negotiate a nation-wide labour contract, gender equality, the possibility of civilian courts to convict members of the military, the right for public servants to go on strike, a privacy law, and more.
As soon as the President of the Constitutional Court Hasim Kilic made public the Court’s decisions, the government reacted negatively. AKP members accused the Court of abuse of power and trampling on the rule of law because they looked at both form and content.
Soon after that, Deputy Prime Minister Cemil Cicek tried to contain the controversy, saying that the Court’s decision was certainly good, probably after the AKP leadership decided that it was better to compromise now, and bid its time.
The two major opposition parties, the CHP and the MHP, which had filed the appeal against the reform package with the Court, criticised its ruling. They probably hoped that the entire package would be struck down. In the meantime, they are planning to fight the proposed constitutional reform tooth and nail.
Various analysts agree that the Court’s decision to strike out some of the items in the reform package does not affect the bulk of the proposed changes. Items like the right to privacy, national labour contract, the Ombudsman’s Office will not be touched.
The Kurdish Peace and Democracy Party (BDP), which initially came out against the package when it was debated in parliament, is also moving towards opposition in the referendum because it does not include any constitutional recognition of the Kurdish identity.
Conversely, another Turkish nationalist party, the Great Union Party (BBP), has come out in favour of the constitutional reform. Its youth wing, the Alperen, includes members of the Grey Wolves organisation (Alì Agca was one of them).
It is important to note that the Court did not touch the proposal to repeal the article authorising the dissolution of political parties. It had already been defeated in parliament, partly because of the secret vote of dissenting government MPs, a month ago. In 2007, the ruling party of Prime Minister Erdogan came close to being outlawed.
In Turkey, the coming fall should be hot, and might include early elections (the current legislature ends in 2011). Erdogan is likely to press ahead with his plans, thanks to the current favourable situation, and take advantage of his reputation as a great reformer of the Muslim world, a model to follow, as US President Barack Obama indicated several times.
In the meantime, Europe can wait. Even young Turks are now sceptical about the Union given the positive feedback their country is getting from the rest of world.