New Constitutionalism: Process Matters

Constitutions define the key principles for the convention and functioning of governments: in other words, they provide the ‘assembly instructions’ of governments (Alexander Reference Alexander2011: 15). Typically, constitutions also establish the foundations of citizenship and state–individual relations by, inter alia, defining fundamental rights and freedoms enjoyed by individuals. There is no standard formula for constitution-making nor is there a list of essentials that every constitution should include. Every nation writes its own idiosyncratic constitution, shaped and informed by its very individual political history and societal experiences.Footnote ¹

Constitutions are a typical feature of the Westphalian nation state. Constitutions that guarantee democratic elements – most notably free elections, an independent judiciary, fundamental rights and freedoms, minority rights and citizen participation to decision-making – are also considered to be beacons of democratic governance (see, for example, Dahl Reference Dahl2000: 119). However, a seemingly democratic constitution does not guarantee democratic governance on its own. For instance, African nations that suffered outbreaks of government-led violence and in some extreme cases, genocide, have had constitutions with democratic elements that were adopted in response to international pressure (Posner and Young Reference Posner and Young2007: 127). Also, as a general characteristic, authoritarian governments and dictators adopt constitutions that impose limitations on executive powers. Those constitutions distribute property rights among the members of the ‘launching organization’ to prevent potential future challenges to the government (Albertus and Menaldo Reference Albertus and Menaldo2012). Although a democratic constitution does not guarantee democratic governance, arguably the UK constitutes the only example of democratic governance without a constitution strictu sensu (Elkins Reference Elkins2010: 972).

Constitution-making is conventionally understood to be a significant historical episode or a ‘constitutional moment’. This constitutional moment follows a dramatic political event that transforms the societal dynamics from their very core, thus rendering the previous constitutional settlement superfluous (Forbath Reference Forbath1999: 1925). For instance, American constitutional history is considered to have progressed through three key constitutional moments: the founding, the Civil War and the New Deal (Ackerman Reference Ackerman1991, Reference Ackerman1998). Constitutions are highly entrenched laws that determine the structure of the government and the fundamental principles of state–society relations, and thus they are considered to be in need of greater legitimacy than are regular laws (Hart Reference Hart1967; Kelsen Reference Kelsen2009). Although there is no ideal formula for constitution-making, the process typically combines elite deliberation with public participation, mostly in the form of a referendum, to achieve the required legitimacy (Fishkin Reference Fishkin2011: 242). The end result is considered to be a social contract between individuals on how they will be governed now and in the future until a new ‘constitutional moment’ emerges (Hume Reference Hume1987: part II, essay XII; Rousseau Reference Rousseau2008).

The conventional understanding does not fully reflect the dynamics of constitution-making in diverse post-modern societies. Given the complexities of multinational, multicultural, multilinguistic societies, constitutions neither only determine the assembly structures of governments nor do they only define fundamental rights and freedoms. Additionally and crucially, they ‘play a foundational role by expressing the common identity and norms of the nation’ (Lerner Reference Lerner2010: 69). In light of this crucial function, the process of constitution-making becomes all the more important. The process ought to involve an essential deliberation between different societal clusters in search of their common identity (Hart Reference Hart2001: 154; 2003). Thus, the process needs to be more open and participatory than the traditional social contract approach considers necessary.

Openness in this sense has two meanings: firstly, openness means inclusiveness (Hart Reference Hart2001: 155–6). Different clusters of society should be engaged in the debate through creative processes, including civil society participation and direct democracy methods such as citizens’ initiatives (Wiener and Della Sala Reference Wiener and Della Sala1997). Epistemic communities need to partake by injecting ‘ideas’ that would give a relatively non-political context to the debate, contributing to the release of tensions between opposing groups (Evans Reference Evans2009). It has also been argued that international law provides individuals with a right to participate in constitution-making, even though this emerging right currently lacks legal teeth (Hart Reference Hart2003). This open and inclusive process could be accompanied by closed negotiations if political actors find this necessary to overcome problems in reaching consensus in contentious matters (Ginsburg et al. Reference Ginsburg, Elkins and Blount2009: 216). Game theoretical approaches confirm the effectiveness of a series of open and closed negotiation phases in reaching consensus (Stasavage Reference Stasavage2007). Additionally, diversity within the different groups taking part in the debate may render consensus easier to achieve. For instance, women, minorities and LGBT members from different social and political backgrounds suffer from similar inequalities, and so alliances between them help a consensus to be reached between their otherwise opposing political groups (Dodrowolsky and Hart Reference Dodrowolsky and Hart2003).

Apart from the strong emphasis on inclusiveness, new constitutionalism does not indicate an ideal avenue for constitution-making: specially convened assemblies as well as regularly elected parliaments can perform the function. However, in the latter scenario the parliament will naturally be inclined to draw the limits of its own powers more generously (Ginsburg et al. Reference Ginsburg, Elkins and Blount2009: 212). By the same token, if the executive has a strong position in the existing regime it will be likely to reserve for itself an even stronger position in the new constitution (Ginsburg et al. Reference Ginsburg, Elkins and Blount2009: 212). Additionally, constitutional debates before regular political institutions may be bundled with negotiations on daily political matters, rendering constitutional debates vulnerable to different kinds of political bias. Thus, if a political institution writes the draft constitution, this should be preceded by an open and inclusive constitutional debate on a different platform (Ginsburg et al. Reference Ginsburg, Elkins and Blount2009: 212).

Secondly, openness means open-endedness. New constitutionalism perceives constitution-making to be an essential process of continuous debate and negotiation in search of consensus rather than a single detached moment of historical significance (Hart Reference Hart2001: 169). Informed by the recent constitution-making experiences in South Africa, India and Israel as well as the peace-building process in Northern Ireland, new constitutionalism strongly argues against the imposition of strict deadlines on constitution-making, particularly in polarized societies (Hart Reference Hart2001, Reference Hart2003; Lerner Reference Lerner2011; McEvoy and Morison Reference McEvoy and Morison2002). The imposition of strict deadlines results in significantly reduced incentives for different clusters to seek consensus, as strict deadlines render the achievement of consensus highly unrealistic where there are existing differences in opinion. In extreme cases deadlines might even result in the outbreak of violence (Lerner Reference Lerner2010: 73). South Africa’s search for a non-discriminatory constitution is considered a prime example of constitution-making in countries with deep conflicts: the constitution finally came into force in 1998, after a phased process and seven years of negotiations, during which the country was governed with an interim constitution (Hart Reference Hart2003: 8). Nevertheless, the open process of constitution-making is worth the time and the effort: empirical studies find a direct correlation between the openness of the constitution-making process and the democratic nature of post-constitutional governance (Ginsburg et al. Reference Ginsburg, Elkins and Blount2009: 216).

The constitution that is designed as a result of an open process might not have perfect internal consistency. In fact, leaving certain matters ambiguous is encouraged if that is what is needed to avoid the intensification of current conflicts (Lerner Reference Lerner2010). If consensus cannot be achieved in certain issues despite all efforts, those issues should be left open to be resolved either by future generations or institutions that will enforce the constitution, most notably the judiciary. Openness in constitution-making is expected to result in more effective judicial enforcement: individuals who take part in the process will associate themselves more strongly with the constitution and will seek judicial enforcement when their rights and identity enshrined in the constitution are breached (Ginsburg et al. Reference Ginsburg, Elkins and Blount2009: 216).

Turkey’s Constitutional Reform Process: Its Background And Potential

All four constitutions of the Turkish Republic, including the 1921 ‘emergency’ constitution, were drafted under strong military influence (McLaren and Cop Reference McLaren and Cop2011). This was particularly the case for the 1961 Constitution and the 1982 Constitution, which came into force as direct results of the 1960 and 1980 military coups, respectively. The Turkish constitutional law literature distinguishes between the two constitution-making processes, since the process leading to the adoption of the 1961 Constitution is considered relatively more democratic than the adoption process for the 1982 Constitution (Tanör Reference Tanör2012; Varol Reference Varol2012). Nevertheless, neither process involved an open public deliberation that satisfies the conditions of openness and inclusiveness as understood by the theory of new constitutionalism.

In addition to the anti-democratic process leading to its adoption, the 1982 Constitution is notoriously authoritarian in its substance. Essentially, the Constitution builds the institution of citizenship on a nationalistic notion of Turkishness, denying the cultural, religious and linguistic diversity that underlies society. For instance, the Constitution defines every individual bound to the state with citizenship as a ‘Turk’ (Turkish Constitution: Art. 66). Likewise, the Constitution recognizes Turkish as the language of the state, rather than the official language (Turkish Constitution: Art. 3). In various provisions the Constitution allows limitations to fundamental rights and freedoms for vaguely defined reasons, such as threats to national security, public order and public health. The Constitution establishes a number of non-majoritarian institutions with oversight powers at the expense of parliamentary democracy. The National Security Council, comprising civil and military executive officials, had been the most infamous of those institutions, particularly before the 2001 constitutional reforms that limited its powers (see Turkish Constitution: Art. 118).

Constitutional reform has been on Turkey’s political agenda since the late 1990s. The EU has played a major role in facilitating reform by applying strict conditionality in this area and demanding specific reforms in the context of Turkey’s accession process to the EU (see European Council 2001, 2003, 2006, 2008). The treatment of the Kurdish minority has played a key role in the conditionality. In addition to suffering from the low level of minority rights in Turkey’s constitutional architecture, the Kurdish issue has a substantial human rights dimension. Continuous terror and violence in the predominantly Kurdish-populated south-east of Turkey since the 1980s has provided a pretext for grave human rights violations in the region and internal displacement (Kurban and Ensaroğlu Reference Kurban and Ensaroğlu2010: 17–18). Naturally, Turkey’s potential EU membership in the face of the armed intervention in the Kurdish issue also threatens the EU’s security interests. Thus, in the first ever progress report drafted by the European Commission, the military approach to the Kurdish issue was identified as the key part of Turkey’s non-compliance with the political criteria to become an EU member (European Commission 1998).

Primarily in response to EU conditionality, the Turkish Parliament has amended the Constitution 103 times so far. Of course, this is not to say that the Turkish political elite and civil society had no role in the reform process. Nevertheless, the prospect of economic and political stability offered by Turkey’s potential EU membership provided a window of opportunity for a coalition between Turkey’s liberal political elite and the government to push through extensive constitutional reforms. Similarly, the prospect of EU membership helped the government to keep the domestic veto players, most notably the military and the bureaucratic elite, at bay; and to adopt reforms that were otherwise considered contentious (see Kirişci Reference Kirişci2011; Kubicek Reference Kubicek2005, Reference Kubicek2011).

Those reforms changed the Constitution in wide-ranging and substantive areas, from fundamental rights and freedoms to judicial due process and the organization and powers of non-majoritarian state institutions (Kalaycıoğlu Reference Kalaycıoğlu2011: 269–71). With regard to Kurdish minority rights, the only notable achievements were the abolition of the state of emergency in the south-east and the provision of state broadcasting and private courses in Turkish (Cengiz and Hoffmann Reference Cengiz and Hoffmann2013: 423). Although these reforms were limited, they were well received by the Kurdish community as they signified the recognition of a Kurdish identity after many decades of suppression (Bahçeli and Noel Reference Bahçeli and Noel2011: 108).

The parliament adopted the majority of the reforms between the recognition of Turkey’s EU candidateship in 1999 and the stalemate in accession negotiations that emerged in 2005 after Cyprus’s EU accession as a divided island: a period when the EU’s commitment to Turkey’s membership was relatively credible. Since then Turkey–EU relations have deteriorated for various reasons, including: the increasingly sceptical rhetoric of some EU member states (such as Austria, France, Germany and the Netherlands) towards Turkey’s accession; the eurozone financial crisis that rendered EU membership a less desirable prospect for Turkey; and the Turkish government’s increasing policy focus on the Middle East region.

Once the credibility of Turkey’s and the EU’s commitment to membership waned, the Turkish government responded to EU conditionality only selectively and strategically, to adopt the reforms that would increase the government’s powers vis-à-vis other state institutions, most notably the military and the judiciary (Cengiz and Hoffmann Reference Cengiz and Hoffmann2013: 428). Additionally, once the EU’s conditionality declined, state authorities, particularly the judiciary, began to apply the adopted reforms only poorly. For instance, the amended Article 90 of the Constitution attributes primacy to international law, including the European Convention on Human Rights, over national law. This gives a substantial opportunity to the Turkish judiciary to improve the protection of fundamental rights and freedoms through legal interpretation without further amendments to Turkey’s civil and criminal legal regime being necessary. Nevertheless, the judiciary has ignored specific judgments of the European Court of Human Rights in various matters, such as women’s right to carry their own surname after marriage,Footnote ² systematic domestic violence as a form of discriminationFootnote ³ and the arbitrary blocking of websites that infringes freedom of expression.Footnote ⁴

Despite the substantial reforms that amended nearly half of the Constitution, an entirely new constitution drafted by civilians was still deemed necessary in order for Turkey to recover fully from the stigma of the coup and the authoritarianism it injected into the country’s governance (Erdoğan and Yazıcı Reference Erdoğan and Yazıcı2011: 6). The prime minister and his Justice and Development Party (AKP), in particular, built their campaign for the 2011 elections almost entirely on the promise of a new constitution (Cengiz and Hoffmann Reference Cengiz and Hoffmann2012). Nevertheless, the specific constitutional changes that the Justice and Development Party wanted to implement were not revealed, apart from the party’s goal to replace the existing parliamentary democracy with a semi-presidential regime. Rather than openly discussing constitutional reform in the electoral discourse, the Justice and Development Party and the prime minister used the promise of a new constitution as a strong rhetorical argument to demand from the electorate the two-thirds parliamentary majority required to amend the constitution singlehandedly.

The governing party’s preference for the semi-presidential regime did not stem from the regime’s superiority but from a constitutional anomaly in Turkey’s parliamentary democracy: a publicly elected president who enjoys only symbolic powers. Originally, the Constitution had envisaged that the president would be elected by the parliament, as is usual in parliamentary democracies. Parliament amended the election procedure in 2007 after non-majoritarian institutions – the Constitutional Court and the military – interfered in the election of President Abdullah Gül. The prime minister and his party wanted to see this anomaly corrected through constitutional amendments extending the elected president’s executive powers. This should ideally have been done before the 2014 presidential elections, presumably to allow the prime minister to run for office (Aktar Reference Aktar2013).

The constitutional reform initiative is unique in the history of the Turkish Republic. For the first time, civilian democratic institutions alone are drafting the constitution without the military overshadowing the process. In parallel to the constitutional reform process, the Turkish government has launched peace talks with the paramilitary Kurdistan Workers’ Party. In a breakthrough development the Kurdistan Workers’ Party initiated the process of withdrawing its armed militants from Turkish territory (The Guardian 2013). The peace talks are a substantial reversal of the government’s increasingly nationalistic approach to the Kurdish issue after the 2011 general elections. For instance, initially the government rejected the idea of incorporating Kurdish linguistic and minority rights in the constitutional reform discourse, which resulted in hunger strikes by Kurdish politicians and prisoners (The Economist 2012a). The Turkish government’s ambitions to lead the democratic reform processes in its region after the Arab Spring are well known (Öniş Reference Öniş2012). The more recent experience with the Syrian crisis showed once again that the government was not able to take a confident stance in regional politics while the Kurdish issue continued to be its Achilles’ heel: after the withdrawal of Syrian forces from Kurdish towns along the Turkish–Syrian border, the towns were governed by the Kurdistan Workers’ Party’s Syrian wing, the Democratic Union Party (PYD), adding to the security issues facing south-east Turkey (The Economist 2012b). Thus, the peace process was initiated in response to the cost–benefit framework of regional politics, rather than as part of a pure commitment to minority rights.

In any case, the two reform processes could potentially serve greater purposes than the ambitions of the governing Justice and Development Party and the prime minister. In addition to improving democracy in Turkey’s governance, the reform processes could contribute towards bridging the gaps between Turkish society’s increasingly polarized groups, including the Kurdish and Turkish nationalists, conservative Kemalists, political Islamists and religious and cultural minorities (see Toprak et al. Reference Toprak, Bozan, Morgül and Şener2009). A meaningful constitutional debate could reveal the common hopes of different clusters as well as their differing expectations of the country’s governance. This would contribute to the diminishing, if not the demise, of long-standing mutual prejudices. Accordingly, recent empirical research demonstrated that the majority of Turkish society expects the new constitution to resolve the country’s Kurdish issue. Likewise, the vast majority expects the ideal constitution to reflect a consensus between all societal clusters (TESEV 2012: 20, 29, respectively).

The reform process will also have profound effects on Turkey’s standing in Europe and the wider world: if successful, the reform process could reverse the European Commission’s increasingly sceptical evaluation of democracy in Turkey, moving towards a new high point in Turkey–EU relations (European Commission 2011, 2012). The Turkish government’s ambitions to achieve a role as a pioneer of democracy in the region after the Arab Spring are well known (Öniş Reference Öniş2012). In the shadow of the deterioration of the Turkish government’s regional policy, it is not entirely clear whether this objective can realistically be achieved (Kirişci Reference Kirişci2014; Öniş Reference Öniş2013). Nevertheless, unless it sets an example for democratic constitution-making and the protection of minority rights, the Turkish government cannot entertain a legitimate claim for such an objective.

The Shortcomings of The Ongoing Reform Process

The Justice and Development Party won Turkey’s 2011 political elections with 49.9 per cent of the vote, eventually securing the party 327 of the total 550 seats in parliament. As a result, the Justice and Development Party was only three votes short of the three-fifths majority necessary to send the new constitution to public referendum singlehandedly. However, this is according to the amendment procedure foreseen in the 1982 Constitution. Given that an entirely new constitution is to be written, a different procedure may very well be followed, providing that there is sufficient political and societal consensus. Notwithstanding the procedure to be followed, the Justice and Development Party’s parliamentary supermajority has been worrisome for those in opposition, given the party’s increasingly authoritarian governance style since its victory in the 2007 elections. Its supermajority enables the Justice and Development Party to design a new constitution reflecting its own political agenda without needing substantial cooperation of players outside the party. Naturally, a constitution designed to suit the agenda of a single political party would fail to express the identity of the entire nation and suffer from low legitimacy (Amato Reference Amato2010).

After the elections, Turkey’s Prime Minister Erdoğan gave a speech from the headquarters of his party in Ankara (his so-called ‘second balcony speech’) to address those fears (The Economist 2011). Following this, as a first step in constitution-making, a conciliatory committee of nine members was formed from the four political parties that have groups in parliament: the government Justice and Development Party, the social democrat Republican People’s Party (CHP), the Kurdish Peace and Democracy Party (BDP) and the extreme right-wing Nationalist Action Party (MHP). At the time of writing this article the progress achieved in the drafting of the constitution is almost a complete mystery due to the committee’s secretive working.Footnote ⁵ The political parties have not discussed publicly nor come to an agreement as to what kind of procedure will follow the committee’s writing of the first draft for the new constitution. The lack of open discussion of the procedure of constitution-making and the substance of reforms conflicts with the fundamental principle of openness offered by the theory of new constitutionalism. The existing low respect afforded to freedoms of thought and expression in the Turkish legal and political discourse, and the extremely short deadlines imposed on the reform process, appear to be the key reasons for the lack of discussion. Both of these issues are further discussed below.

In general, the experience during the nearly two years of work by the conciliatory committee raises doubts as to whether the reform process will live up to Turkish society’s initial expectations. Turkey’s electoral system involves an unusually high national electoral threshold (10 per cent). The European Court of Human Rights advised that the threshold be lowered, since it prevents optimal representation of different societal clusters.Footnote ⁶ Accordingly, constitutional law scholars as well as opposition parties suggested that the threshold should be lowered before the 2011 elections to increase parliament’s representative power in light of the constitutional reform plans (TÜSİAD 2011). Nevertheless, the Justice and Development Party rejected those suggestions with the argument that it would weaken the stability of governance. Despite the prevalence of the issue of constitutional reform in their electoral campaigns, political parties did not openly discuss their preferred constitutional reforms in the electoral discourse (Cengiz and Hoffmann Reference Cengiz and Hoffmann2012). Thus, in light of the new constitutional theory, the initial method chosen for constitution-making appears far from satisfying the optimal conditions of procedural legitimacy: neither is the parliament – the main platform of constitution-making – sufficiently representative of different societal clusters, nor did the electorate cast its vote on the basis of a deliberate choice of constitutional reforms that it wants to see implemented.

The process also fails to satisfy the condition of inclusiveness. The Turkish regime imposes various limitations on the freedoms of thought, speech and assembly (Human Rights Watch 2010). This prevents the emergence of a liberal discourse where the public can discuss the country’s more contentious problems – such as the Kurdish issue, secularism, religious rights and minority and cultural rights – without the fear of being subject to criminal investigations (Kentel et al. Reference Kentel, Köker and Genç2012a; Reference Kentel, Uçum and Genç2012b). In order to encourage the submission of opinions by civil society and individuals, the conciliatory committee does not disclose the opinions it received to the public. This secrecy not only prevents a substantial constitutional debate but it also stands as proof of the gravity of limitations on fundamental rights and freedoms. Even though the conciliatory committee has received a substantial number of opinions and suggestions from civil society institutions as well as individuals, it is impossible to know to what extent those opinions have been accommodated in the context of the debates and negotiations taking place within the committee.

The conciliatory committee takes decisions on the basis of consensus. The choice of consensus in decision-making is promising as it ought to diminish the power of veto, and instead increase the importance of issues. Nevertheless, in the increasingly hostile Turkish political environment, consensus proves difficult to achieve (Kentel et al. Reference Kentel, Köker and Genç2012a, Reference Kentel, Uçum and Genç2012b). Differences between different political parties became increasingly prevalent after the emergence of a parliamentary crisis involving imprisoned politicians shortly after the 2011 elections (Cengiz and Hoffmann Reference Cengiz and Hoffmann2011). From then, until the beginning of the peace talks with the Kurdistan Workers’ Party, there was an upward swing in terror and violence in the south-east. Likewise, hate crimes in general have become increasingly widespread (International Crisis Group 2012). Even the country’s epistemic community – which is supposed to give a non-political context to constitutional debates by injecting ‘ideas’ – seems dangerously politically polarized: after the brutal police suppression of student protests during Erdoğan’s visit to the Middle East Technical University in Ankara, Turkish universities published opinions that were split between the protesters and Erdoğan (Yetkin Reference Yetkin2012). Given the increasing hostility, it is not surprising that the conciliatory committee has faced stalemate in the negotiation of key issues that the constitution ought to address, including secularism, the definition of citizenship and the right to education in the mother tongue (T24 2012). Presumably the uneven balance of genders in the committee adds to the difficulties facing committee members in the search for consensus. New constitutionalism proposes diverse gender representation in constitutional debates as a key strategy to achieve consensus. In strong contrast, of the nine members of the conciliatory committee there is only one female parliamentarian, from the Kurdish Peace and Democracy Party.

The strict deadline imposed on the reform process by the Justice and Development Party government exacerbates the hostilities. As mentioned in the previous section, the government aims to replace the current parliamentary democracy with a semi-presidential regime before the 2014 elections. This strict deadline contradicts the concept of open-endedness that new constitutionalism perceives as key for democratic constitution-making in polarized societies. Under the strict deadline, a meaningful and all-inclusive debate on the country’s long-standing problems with the potential to achieve consensus seems highly unrealistic. Various political groups see the reform process as a now-or-never opportunity to push their individual agendas or to prevent the adoption of reforms they object to. As a result, individual differences rather than issues and alternative solutions to them dominate the constitutional reform debates. The increasing tensions and gap between the government and society are strongly reflected in the June 2013 protests that initially began to protect the Taksim Gezi Park in Istanbul from demolition. When faced with brutal suppression, the protests turned into countrywide resistance against increasing authoritarianism in Turkey’s governance (BBC News 2013).

New constitutionalism argues that when regular political institutions are in charge of constitution-making, they will design the constitution strategically to increase their own powers vis-à-vis other state institutions. Turkey’s current political regime is a parliamentary democracy with a particularly strong executive that enjoys a supermajority in parliament. In the light of new constitutionalism’s hypothesis, the Turkish government’s eagerness to replace parliamentary democracy with a semi-presidential regime to further increase its powers does not appear surprising. The government’s insistence on a semi-presidential regime also implies that Turkey might be replacing one authoritarian constitution with another: establishing stronger executives is a common feature of authoritarian constitutions (Albertus and Menaldo Reference Albertus and Menaldo2012: 280).

New constitutionalism does not offer an ideal avenue for constitution-making. Nevertheless, it warns against the risk of constitutional issues being mixed with daily political matters when regular political institutions, rather than specially created assemblies, take the lead in constitution-making. Turkey’s constitutional reform process seems prone to this risk, particularly with regard to the Kurdish issue. Naturally, the government’s initiative for the resolution of the country’s long-standing Kurdish issue deserves celebration. Nevertheless, the Kurdish issue does not only have a terror dimension; it is inextricably linked to the poor accommodation of the Kurds’ as well as other minorities’ linguistic and cultural rights (Kurban Reference Kurban2003). Thus it is difficult to envisage a stable solution to the Kurdish issue without a meaningful debate on the constitutional accommodation of minority and cultural rights in general. It is natural to expect the peace talks to continue in secret in order to avoid populist reactions by nationalists on both sides that could result in the collapse of the talks. This was essentially the reason for the failure of the government’s previous Kurdish initiative (Casier et al. Reference Casier, Jongerden and Walker2011). Nevertheless, at the same time as the closed peace talks, the constitutional reform process could provide a platform for an open debate between different social clusters on minority and cultural rights. This would be an effective strategy to diminish the long-standing mutual prejudices and would contribute significantly to the eventual success of peace talks. Although the Turkish government appointed a group of so-called ‘wise men’ to communicate with the public in different regions with regard to the Kurdish issue, it was a relatively late and top-down attempt; it was not directly connected to the process of constitution-making. This initiative has further deteriorated as some members of the group have become increasingly sceptical of the government’s conservative approach to minority rights (T24 2013).

Similarly, different substantive issues have received different treatment in the reform discourse in the light of the governing Justice and Development Party’s domestic and regional political cost–benefit calculations. So far, the Justice and Development Party’s institutional ambitions to establish a semi-presidential regime and more recently the Kurdish issue are the only substantive issues that induced a substantial debate. In contrast, other equally important issues for democratic governance, such as fundamental rights and freedoms and gender equality, have found no place in the reform discourse, whereas the governing Justice and Development Party rejected outright the discussion of LGBT rights (Gaystarnews 2012).

Given the shortcomings of the reform process, it would be overly optimistic to expect the process to result in a constitution significantly improving democracy in the country’s governance. One might question the Justice and Development Party’s reform objectives altogether, given the party’s increasingly authoritarian governance style. Nevertheless, other political parties have failed to bring a credible and substantial claim for a more open and inclusive process. Regrettably, Turkey seems to be missing a historic opportunity not only to substantially improve the constitutional architecture of the country but also to diminish the gaps within its increasingly polarized society through public deliberation. An open and inclusive reform process could have improved the societal understanding of democracy beyond the governing Justice and Development Party’s limited reform objectives.

One substantial difference between the current reform process and other recent constitutional reforms in Turkey is the lack of reference to the EU and EU conditionality in the current process. As explained in the previous section, the EU has increasingly lost its leverage over Turkey’s democratic reform processes since Cyprus’s EU accession as a divided island in 2004. EU conditionality is an imperfect external governance tool: it follows a colonial logic in which similar conditions are imposed on countries with different sociopolitical histories; at times it is applied strategically to protect the EU’s own security and political interests, rather than with the aim of structurally improving democracy in EU candidates and it fails to engender a grassroots transformation, particularly when socially embedded norms are at stake (Cengiz Reference Cengiz2013). Nevertheless, despite its contradictions and limitations, the weakening of EU conditionality still appears to reduce the reform process’s prospects for improving democracy in Turkey’s governance. EU conditionality played a substantial transformative role in the constitutionalization of democratic norms in the Central and Eastern European countries that joined the EU in 2004, 2007 and 2013 (Sadurski Reference Sadurski2012). The European Commission has raised significant concerns with regard to the secrecy of the current constitutional reform process in Turkey as well as the limited substantive reform objectives (European Commission 2013: 6–7). Had the EU’s conditionality been stronger, under EU oversight the procedural aspects of the reform process – as well as substantive questions of democratic governance – could have received more significant treatment in the reform discourse.

Conclusion: The Future of Democratic Reform – The Need For A Constitutional Process

Constitutions are beacons of democracy. A democratic constitution does not guarantee democratic governance. However, democratic governance is rarely achieved in the absence of a democratic constitution. In diverse postmodern societies constitutions ought to reflect the common identity of the nation. Thus, the constitution-making process needs to be all-inclusive and open-ended.

Turkey’s ongoing constitutional reform process is unique in the history of the Turkish Republic. For the first time civilian institutions alone are drafting the country’s constitution. More importantly, an equally significant process has been launched to end the country’s long-standing Kurdish issue. Ideally, these reform processes would serve greater purposes than the short-term objectives of the governing Justice and Development Party and the other political parties. Most crucially, the reform processes could serve as platforms for an extensive public debate on the country’s long-standing and contentious issues. Unfortunately, the initial experiences imply that Turkey might be missing this historic opportunity. In addition to various factors that prevent the emergence of a constitutional debate, the impossible deadline imposed on the process exacerbates the already dangerous polarization in Turkish society. Given these shortcomings, the reform process is not very likely to fulfil its potential. From this perspective, despite its own contradictions and limitations, the weakening of the EU’s conditionality appears to hamper the reform process.

In light of all these, the Justice and Development Party government and other political groups need to stop treating the reform process as a now-or-never opportunity, a single ‘moment’ to push their own political agendas. They need to start giving the reform process the salience it deserves. The limitations on the freedoms of thought, speech and assembly should be lifted to engender a public debate on the country’s governance; and no strict deadline should be imposed on this debate. Rather than drafting an entirely new constitution at once, the process may entail individual amendments to the problematic aspects of the 1982 Constitution if this proves to be a more effective strategy to engender public debate and generate consensus. This will surely be a painstaking and costly process. Nevertheless, this is an unavoidable cost if the aim is to enact a truly democratic constitution that defines the identity of the entire nation as suggested by the theory of new constitutionalism.