Restoration without the Constitution

The academic literature on comparative democratic backsliding is admittedly quite saturated, with a multitude of terms, often used interchangeably and imprecisely, being cast around casually and without much attention to nuance. Democratic backsliding, authoritarianism, illiberalism, democratic erosion, and the like are only some of the buzz words of our academic litany to describe the recent wave of democratic regression (regression being just another term!) a number of countries such as Poland, Hungary, and Turkey have been experiencing. A fresh and timely field of inquiry, much less saturated than democratic backsliding, is constitutional restoration, to use Professors Arato and Sajó’s terminology.

In this post, I want to use the Turkish political scene as an example to reflect on possible strategies toward restoring constitutional democracy. Kim Lane Scheppele has observed that autocrats across the world “use the same toolbox of tricks.” It is now an opportune moment to think about a different toolbox of tricks, this time of anti-autocrats, that would reverse autocratic regression – and the Turkish experience may be a good starting point because, as Ece Göztepe, Silvia von Steinsdorff and Ertug Tombus have observed in their contribution to this debate, after what is now almost a two-decade long rule by the governing party, there are strong indications that a strong reshuffling in Turkish politics is in the works. Perhaps most importantly, the main opposition party, thanks to the support of other opposition parties, secured significant electoral wins in the last mayoral elections in 2019, defeating the government which lost control in key cities across the country such as Istanbul and Ankara. Additionally, even those opinion polls traditionally very generous to the government suggest a declining support for President Erdogan and his party.

I argue, firstly, that it is a combination of factors that has led to this moment of changing fortunes in Turkish politics – a combination that sheds light on what tactics may successfully be employed by opposition forces who wish to put an end to autocracies. Secondly, I claim that constitutional restoration in Turkey does not require formal constitutional change.

Why Constitutional Restoration is Now Possible

So, what are the factors that have led to a situation in which constitutional restoration in Turkey might indeed be realistic?

First and foremost, the AKP government itself is spearheading its declining support: pressuring the nominally-independent Central Bank to lower interest rates, the government’s out-of-the-ordinary economic policy is currently causing a Turkish currency crisis. The AKP’s decline is thus largely not the result of successful campaigning by the opposition but of internal feuds within the party, the party’s sharply declining popularity overseas, and a general sense of fatigue after being in power for nearly two decades. The most symbolic testament to this fact is perhaps that two parties have already arisen out of the AKP: former Prime Minister and AKP MP Ahmet Davutoglu formed the Future Party (tr. Gelecek Partisi) and Erdogan’s former Minister of Finance, Ali Babacan, formed the Democracy and Progress Party (tr. DEVA Partisi).

Second, Turkey’s various opposition parties have formed strategic alliances against the AKP. Ironically, this was propelled by the AKP’s own amendment to the election law in 2018 that enabled political parties to openly support other political parties in elections. The AKP had amended the election law to secure the right-wing Nationalist Action Party’s (tr. MHP) support. While the amendments enabled a de facto AKP-MHP coalition, the same amendments also made possible for the main opposition Republican’s People Party (tr. CHP) to form a strategic alliance with the center-right Good Party (tr. Iyi Parti) as well as the Felicity Party (tr. Saadet Partisi) and Democrat Party (tr. Demokrat Parti). In addition, this formal alliance is supported by the base of the pro-Kurdish party HDP (tr. Halklarin Demokratik Partisi). What is most remarkable about this alliance is its ideological and political diversity. The Felicity Party is a remnant of Turkey’s Islamist political parties (all banned in the past by the Turkish Constitutional Court), whereas the Republican’s People Party is defined by its secular base. And while the HDP advocates for the rights of Turkey’s Kurdish minority (as well as for other minorities) the Good Party’s political ideology can roughly be described as a secular Turkish nationalism with a party base not particularly known for its support of minority rights. Despite such fundamental differences, these opposition parties have succeeded in forming and maintaining an alliance centered around one immediate goal: to oust the AKP government (in a de facto coalition with the MHP) at the ballot box.

Third, in response to increasing government pressure, opposition parties have increasingly been using disruptive strategies to expose the shortcomings of the current government. These strategies include, but are not limited to, using new forms and platforms of media to voice their opposition, humor, but also populist rhetoric. It is true that the freedom of the press is in grave jeopardy in Turkey, but fortunately the “traditional” press is becoming increasingly irrelevant – which is why the opposition’s use of internet platforms such as Twitter, Facebook, and YouTube has been very successful. Another important and fairly recent strategy employed by the opposition is to turn to international actors. Calling for the support of international actors is a tricky strategy as it presents the AKP an opportunity to describe these calls as “treacherous” and “unpatriotic.” But so far, the opposition has been largely successful in this regard: one example is the AKP’s “Canal Istanbul” project, which aims to create an artificial canal as an alternative to the Bosporus Strait. If implemented, the project may significantly disrupt Istanbul’s ecosystem and create unplanned urbanization. Aware of the fact that the project needs international monetary support, the main opposition head Kemal Kilicdaroglu tweeted in several languages in an attempt to dissuade international actors from funding the project, claiming that the project is “contrary to the interests” of Turkey and that institutions that fund it “will not receive reimbursement from the treasury of Turkey”.

Constitutional Restoration without the Constitution?

Given that the moment is opportune for restoration and that the AKP is likely to lose its electoral power soon, the question of what can and should be done once a new government is formed arises.

The post-Erdogan government will, in all likelihood, not have the requisite parliamentary majority to amend the Constitution, which is why the focus should be less on the Constitution but more on (i) ordinary laws, (ii) the bureaucracy, and (iii) unwritten political practices when it comes to constitutional restoration in Turkey.

The post-Erdogan government can begin by repealing or amending certain laws that have, in the words of Göztepe, von Steinsdorff and Tombus, “impeded democratic opposition.” This includes repealing or significantly lowering the parliamentary electoral threshold of 10% of the national vote; repealing the criminal law provision on defaming the President which is the current government’s go-to legal instrument to silence varied forms of opposition; and repealing or significantly reducing the applicability of the criminal law provision on incitement to hate and animosity, whose vaguely-worded content continues to provide the regime a useful tool to suppress anti-government coverage in the news media and anti-government statements by opposition figures. The new government should also re-accede to and re-ratify the Istanbul Convention on preventing and combatting violence against women and domestic violence, even if only to symbolically gesture to domestic and international observers that it intends to depart from the policies of the ancien régime.

Moreover, the post-Erdogan government should put an end to the blatant political capture of certain bureaucratic institutions. The Radio and Television Supreme Council, which currently operates as a mere extension of the government and whose sole function is to promote pro-government coverage by levying hefty fines on opposition outlets, should ideally be abolished. If the post-Erdogan government is too meek, or – given that it would require a constitutional supermajority – unable to do that, it should, to the extent possible under ordinary law, dramatically overhaul the institution and curb most of its powers. More generally, however, higher echelons of the bureaucracy must be cleared of incompetent and unqualified bureaucrats, without alienating the entire state apparatus. This means that most bureaucratic appointments made under the many Erdogan administrations would remain in place, but only the most politically sensitive posts would be replaced with new appointees.

Equally importantly, the new government should adopt a different tone of governance: the last decade of AKP’s rule has been marked by increasingly divisive rhetoric, tickling Turkey’s well-known religious and ethnic cleavages. The new government should put an end to that and embrace an inclusive and non-confrontational rhetoric.

Midterm goals?

In an ideal world, a post-Erdogan government would abolish the turbo-presidency introduced by the AKP and revert to a parliamentary model of government. It would also abolish or dramatically reduce the competencies of many bureaucratic institutions including the Directorate of Religious Affairs, the Radio and Television Supreme Council (as mentioned above), the Council of Higher Education – and many others. All of these efforts, however, require constitutional supermajorities. Even then, it is doubtful that the new government should hasten to do all of these things at once since this might alienate significant parts of (what will be left of) the AKP’s electoral base, still a sizeable part of Turkish voters.

After all, if bringing Turkish democracy and constitutionalism to one of its nadirs has required a sustained effort by the AKP through the course of many years, if not a decade, it should be no surprise if restoration, too, proves to be a time-consuming endeavor.