In Crisis

Turkey's Constitutional Court recently overruled its National Assembly and declared that two constitutional amendments passed in February were in fact unconstitutional. The Assembly is entitled to amend the Constitution with a 65 percent majority, and the judges conceded that I's had been dotted and T's crossed. They just disliked the  amendments' content. In the next three months, the court will also decide whether Turkey's AK Party government, duly re-elected with an overwhelming majority last July, shall continue to govern. If they decide no, they will dissolve the AK Party and ban its leaders, the prime minister and president included, from politics. The situation is now the very definition of a constitutional crisis, and anyone who thinks Turkey's future important should worry.

The court's recent action is legally bizarre and arguably unconstitutional itself. Article 148 of Turkey's Constitution specifically says that in reviewing constitutional amendments, the judges may only consider "whether the requisite majorities were obtained" and other requirements complied with. The same Constitution, however, also contains three "unamendable" articles. One of these, Article 2, says Turkey is a "democratic, secular and social state governed by the rule of law." The judges have yet to publish their reasoning, but pretty clearly they will argue that the amendments they struck down effectively amended this article.

Strictly speaking, the amendments do no such thing. What they do is establish that a person's right to higher education may not be abridged "because of their apparel" (Article 42), and require that "In their actions, state institutions ... shall observe the principle of equality before the law" (Article 10). The court, however, in the tradition of activist judges, looked through the language of the amendments to their intent: to make it harder to bar young women who wear a headscarf from university. (Note that the language also protects the right of women not to wear a headscarf.)

Most commentary boils the issue down to whether young women attending university in headscarves change Turkey from a "secular" to a "non-secular" state, thus violating Article 2. The court says yes,  while polls consistently show that 70 percent of Turks think otherwise. This majority wants the headscarf ban lifted and also support secularism.  Presumably they would amend Article 2 to preclude the court's extreme reading of it. But Article 2 is unamendable.

The real issue is whether those who voted to approve the Constitution in 1982 had any moral right to impose unamendable clauses on their descendants. Few true democrats would think so. It is one thing to make amending a constitution hard, quite another to render it impossible. Remember, too, that the plebiscite approving today's Constitution was conducted under military tutelage. There is little doubt that today's judges reflect the original, controlling intent of 1982's generals.

So what now? Most believe the court has the bit between its teeth and will both dissolve the AK Party and banish Prime Minister Tayyip Erdogan, its charismatic leader. In this they will have the support of the generals and (at most) 20 percent of the electorate. However, the AK Party's voters—47 percent of Turks, in last summer's poll, and probably more today—will not disappear. Almost certainly there will be new elections, and they will vote for a successor party, which is permissible under Turkish law. Legally, too, a banned Erdogan can run as an independent and even remain prime minister. Then the issue of the Constitution will reappear.