Türkiye’s century-old constitutional system has been repeatedly strained and has drawn calls for a renewal that would shake off the influences of military rule from four decades ago, this time with an eye for minority rights and to reflect modern social realities.

President Recep Tayyip Erdoğan, who secured another five-year term in office in May, has pledged to deliver a new libertarian constitution, arguing that a "coup mentality that has plagued Türkiye" since the 1980s was holding the country back.

The authoritarian and anti-democratic shadow of the 1980 military coup still looms over the republic 40 years after the fact through the Constitution of its creation, experts say and emphasize that the need for a fresh start has now come to "a boiling point."

"The current Constitution is inevitably bound for an overhaul in today’s democratic Türkiye," said Cem Duran Uzun, a constitutional lawyer and academic at Ankara Medipol University, and a law and human rights researcher at the Foundation for Political, Economic and Social Research (SETA).

"The necessity is further exacerbated by the fact that the Turkish nation has acquired the will and know-how to create a civil constitution through a democratic, inclusive and negotiant method," Uzun told Daily Sabah in an exclusive interview.

Primary cause

For Ferhat Küçük, lawyer and a Ph.D. candidate in constitutional law at Marmara University, there has "always been and will be a necessity for a civil constitution" and this time, it must be written by Parliament in consultation with the expectations of all societal factions and various institutions like political parties, universities and nongovernmental organizations (NGOs).

Such inclusion of demands in the creation process before the document goes up to the people for a referendum would "certainly cultivate a much broader legitimacy and social acceptance for the constitution," Uzun added.

Since its founding, the modern Turkish state has been governed under four constitutions, with the first adopted in 1921, changing in 1924 and 1961 before the Constitution of 1982 was implemented by the military junta that staged the bloody 1980 coup. It was a dark period in Turkish political history marked by the detention of hundreds of thousands of people, mass trials, torture and executions.

The 1982 constitution subsequently led to the establishment of military tutelage, a system of government above the democratic political administration, which maintained its grip on all governmental institutions until today, evident in instances like the creation of the military judiciary, the National Security Council, and the direct affiliation of the general staff to the president. It has been broadly criticized for overlooking the significance of human rights, the rule of law and the authority of the Constitution. "It wasn’t made democratically even if it passed with 93% at the referendum," Uzun said. "Proven by the debate around demilitarizing it that has been ongoing for 40 years."

The document has since seen nearly 20 amendments over the years to keep up with global and regional geopolitical conjectures. Most notable changes were introduced via referendums in 2010 by enabling the trialing of the 1980 coup plotters in civil courts, and in 2017 by replacing the parliamentary system with an executive presidency.

Küçük believes every alteration of the 1982 Constitution over the past two decades has "largely contributed to the demilitarization of Türkiye and pared off the influence of military tutelage on civil institutions."

According to Uzun, the amendments have reaffirmed the democratic legitimacy of the law but they were made "to the extent the putschists’ constitution has allowed" and extensive additions have altered the document to the point many articles were nullified or became contradictory with several others, highlighting the discrepancy between the time of their implementation and modern Türkiye.

"The fact that laws established by coup plotters remain in force is a shameful blight on the Turkish nation that the political institution must get rid of," Uzun urged, hence the need for not more amendments but a "wholly new blank page."

Potential additions

Türkiye has attempted constitutional overhauls in the past, notably in 2007 when the Justice and Development Party (AK Party) employed a committee headed by renowned constitutional professor Ergun Özbudun, per Erdoğan’s request, to produce a draft consisting of 134 articles.

Özbudun at the time described it as a civil, democratic constitution elevating human rights to universal standards and regulating institutional relations based on the parliamentary system. It was, however, shelved before it could go to Parliament due to harsh criticism from opposition circles for "negating the principles of a social state" and being "a liberal thesis."

Küçük argued any potential articles in the new document Erdoğan’s government would propose in the coming months could be gleaned from Özbudun’s draft.

Uzun, however, listed a reform or a strengthening of the presidential system per Erdoğan’s remarks about potential shortcomings in the past five years it has been in force. This would also come with boosting the lawmaking and inspectional capabilities of Parliament and implementing regulations to augment governmental competence.

"I can easily say articles regulating the freedom of thought, expression and science and arts should be rewritten," he added.

Immovable articles

As for the Constitution’s immovable first three articles, Uzun argued modifying or discarding the first three articles is not pivotal in the search for a new constitution at the moment. "Moreover, parties and alliances in the current Parliament show no desire for changing these articles either."

Küçük’s view is that achieving the desired change without modifying the articles is possible but he believes the articles should, in fact, be "moved," especially as pertaining to the Kurdish problem, which can be summed as the struggle of the Kurdish community, neglected by decades of nationalist administrations in post-Ottoman Türkiye, to achieve equal rights like using their own language and following the traditions of their ancestors.

Describing Türkiye as "the remnant of an empire," Küçük said the government should be able to respond to the mother tongue of all various ethnicities living here on the same maturity level.

"That’s the only way you can be a great state with all your problems: when your self-confidence and self-assuredness are strong and you have made peace with yourself."

While he was holding a rally in Kurdish-majority Diyarbakır province a few months back, Erdoğan himself assured the new constitution would "embrace the dreams of all people in a Türkiye where no one can be marginalized due to their origin, belief, language or attire."

Ultimate solution

On whether a new constitution could remedy the rights of certain groups in Türkiye the 1982 constitution overlooked, Küçük argued Türkiye is yet to figure out the principles of "the indivisibility of the state" and "laicite," which formed the baseline for the current document.

"The Constitutional Court has in a way put the issue to bed with its rulings but there’s no guarantee it won’t be revived in the near future," he said.

Uzun agreed that wielding a democratic approach while preparing the constitution that would prioritize human dignity and guarantee fundamental rights and freedoms against the state would help prevent similar victimizations in the future.

Hurdles

Erdoğan’s ruling AK Party and its partner, the Nationalist Movement Party (MHP), plan a two-step initiative to raise the proposal for a new constitution at Parliament and bring the opposition around.

In October, when the 28th legislative term kicks off, the first step will include the constitutional guarantee for the right to wear the headscarf and "the code of marriage between man and woman." Later, the civil constitution proposal will land on the floor, which insiders have said could revive a constitutional consensus commission of 2012 that had sought to regulate some 60 articles to no avail.

Uzun was not optimistic about a smooth ride at parliamentary discussions. He acknowledged a common desire from all parties for a new constitution but pointed to the scales of power and discrepancy between the demands of party groups that would render writing a draft "very difficult."

A three-fifths majority is required to pass a constitutional draft at the 600-member Parliament and that is before it can qualify for a referendum.

However, Uzun said Turkish politics can quickly change tune and different alliances could easily emerge.

"Even if the current outlook isn’t so positive, keeping this desire for a new constitution alive is certainly the best for Türkiye’s democracy."