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Development and International Relations Supervisor10th Semester The Master Thesis Per Lunde

1. Introduction

“I prefer a man who will burn the flag and then wrap himself in the Constitution to a man who will

burn the Constitution and then wrap himself in the flag.”1 This quotation is said by American

congressman Craig Washington. The importance of a constitution for a country is greater than many

ethical norms for many people. However, what happens when the constitution is not representing

everyone's rights or undermines some of the norms such as democracy and freedom of speech just

like it is claimed to be with the Turkey's new constitution, which is also claimed to promote the

democratization.

This descriptive-normative driven thesis mainly focuses on the new constitution of Turkey and its

amendments. I will be focusing on the problematic amendments which are claimed to undermine

the democracy related to the jurisdictional system and promote one side of the political arena. The

new constitution is accepted by the referendum which was held early September, with 58% “yes” to

42% “no”. Both of these numbers are representing a large amount of people of Turkey with almost

seventy-five million population. After the conflictual passing of the new constitution, enforcement

of amendments especially on the jurisdictional system increases new conflicts regarding the rights

of women, the freedom of speech and democratization.

The main focus of this research will be related to the relationship between Turkey and the European

Union, since the European Union (EU) described the amendments necessary even though there was

a huge protests to them. In that emphasizes, I will focus on the concepts of democracy, jurisdiction,

legitimacy and fragmentation in society with definition's of the European Union. Moreover, I will

focus on the political arena of Turkey by introducing the sides of AKP, CHP and MHP. In the road

to European Union membership, the new constitution's implementation is based on two scenarios as

a result of Turkey's fragmented politics. One scenario suggests that jurisdiction, democracy and

secularism is being attacked by the amendments and the other one suggests AKP's agenda and the

new constitutional amendments are relevant with the European Union's requirements for

membership.

The hypothesis is “Turkey's fragmented politics and society increases the legitimacy issues of the 1 http://thinkexist.com/quotations/constitution/

Esin Deniz Esmerok 1


new amendments of the new constitution, even though the European Union defines them as

necessary” which is driven from the question of “how does the constitutional amendments are in

debate of legitimacy although the European Union defines them as necessary”. The focus of

legitimacy is firstly examined with the principles of the legal legitimacy and secondly the normative

legitimacy. Turkey's journey with the European Union has been going on for fifty years. Moreover,

the negotiation process completed its 5th year last October. However, the reform process is

proceeding too slow. The thesis will mainly focus on the obstacles of the new constitution and

democracy in Turkey, even though Turkey has been trying to join the European Union. Especially,

the political perspective will be used in order to understand the current atmosphere and the situation

in Turkey's fragmented politics.

Moreover, the thesis will include the theoretical frameworks to pursue finding a truth on the new

constitution and its enforcement in descriptive design. The constitution theory will be used to

emphasize on the new constitution of Turkey. Empowerment and participation will be used in

understanding the referendum on the new constitution and the efficiency of political participation.

Also, the legitimacy concept will be used in order to give deeper understanding to constitutional

amendments and the article's interpretations by the political parties, and as an addition to them

theories of democracy will focus on the passing and the implementation of the constitution to the

areas such as the rights of women, the freedom of expression and the jurisdictional system. The

constructivism will be used to examine the principles of the EU and how the new constitution is

competing with those principles. Furthermore, the conceptual framework will be analyzed with a

normative point of view.

Now, I will move to methodology chapter to give a guideline to reader for understanding the thesis'

characteristics and structure.



2 Methodology

Methodology of the thesis is based on providing reading friendly information on the process of the

thesis writing. In brief, it contains the information about the characteristics and the classification of

the research, hypothesis, the research design, quantitative vs qualitative, validity, credibility of data

and sources, scope and delimitation and theoretical framework. This chapter aims to give a

guideline for the hypothesis “Turkey's fragmented politics and society increases the legitimacy

issues of the new amendments of the new constitution, even though the European Union defines

them as necessary.”

2.1 Characteristics and Classification of Research

In this thesis, I will be using mainly three characteristics of research which are empirical research,

logical and analytical research. “Empirical research is based on direct experience or observations by

the researcher.”2 This characteristic of the research will be used to explain the European Union (EU)

Commission Turkey Team's comments on the new constitution, which I have gathered in the

meeting while I was doing my internship in Brussels in a Turkish Non-governmental

Organization(NGO). Those will be my direct observations from Turkey Team's attitude towards the

new constitution. “Logical research is based on valid procedures and principles.”3 Logical research

includes the theoretical and conceptual framework of the thesis. Theories such as empowerment,

participation, democracy and legitimacy will be used. For instance, empowerment and participation

will be used in understanding the referendum on the new constitution. Also, the concept of

legitimacy will be used in order to give deeper understanding to constitutional amendments and its

legitimacy in Turkish society. Also, theories on democracy will be used in order to examine the

situation in Turkish society such as human rights, jurisdiction system, freedom of speech. Moreover,

concepts of democracy, jurisdiction, rights and freedoms, fragmented politics will be included in the

thesis with a normative point of view of Turkey and the EU. Finally, “...analytical research utilizes

proven analytical procedures in gathering the data.”4 Analytic procedures refers to collecting data,

2 Paler-Calmorin & Calmorin 2007: 13 Ibid.4 Ibid.: 2



which are most commonly historical and descriptive. Background information on Turkey and the

EU relations, democracy, the constitutional changes and the fragmented politics will be explained

further. The documents will be collected with classification techniques such as library research and

field research.5

2.2. Problem Formulation

The thesis aims to focus on the constitutional situation of Turkey. Specifically;

1. How does the fragmented politics of Turkey plays a part in conflictual passing of the new

constitution within a normative perspective?

2. After the constitutional referendum in Turkey: What are the effects of the constitutional

amendments to the current situation of the concepts; democracy and judicial system in

Turkey regarding the EU membership accession?

On judicial system

On democracy regarding the fundamental rights, political participation, freedom

of speech, secularism and the claims of the hidden agenda of AKP.

Revolving around those questions, a hypothesis is formed in order to conduct a normative,

descriptive and educational thesis.

2.2.1 Hypothesis

Theme: The passing of new constitution in Turkey were conflictual with the referendum results 58%

“yes” to 42% “no”. In the road to European Union membership, the new constitution's

implementation is based on two scenarios as a result of Turkey's fragmented politics. One scenario

suggests that jurisdiction, democracy and secularism is in danger by the amendments' subtext

hidden agenda and the other one suggests AKP's agenda and the new constitution are relevant with

the European Union's requirements for membership.

5 Paler-Calmorin & Calmorin 2007: 13



Hypothesis: Turkey's fragmented politics and society increases the legitimacy issues of the new

amendments of the new constitution, even though the European Union defines them as necessary.

Dependent Variable: Fragmented politics of Turkey, fragmented society of Turkey. “Dependent

variable is observed and measured to determine the effect of the independent variable.”6

Independent Variable: Definitions of democracy, jurisdictional and constitutional universal

principles for advancing the membership to European Union. “Independent variable is the stimulus

variable which is chosen by the researcher to determine its relationship to an observed

phenomenon.”7

Control Variables: There are many control variables to this research. The ones will be focused

under the scope of the thesis are the historical changes in the constitution's of Turkey and their

implementations, Turkey's search for democracy, the relationship between Turkey and the European

Union during the negotiation process, AKP's and CHP's roles in Turkish politics and their

interpretations of the constitution, the current situation of Turkey after the new constitution

regarding the concepts of democracy and jurisdiction. “Control variable is controlled by the

investigator in which the effects can be neutralized by eliminating or removing the variable.”8

Reasoning: The new constitution is considered as a positive attitude to accession process to The

European Union by member states; however the amendments' legitimacy are not fully accepted by

all groups that are existing within Turkey's society; which is claimed to have a secret agenda of

AKP regarding the problems of democracy, jurisdictional structure and secularism.

2.3 Research Design

Basic definition of the research design is given by two scholars; Yin and Bryman. Yin defines it as

the logical sequence that leads to conclusion by combining the empirical data and the question that

thesis intended to answer.9 Within Yin's definition, there is a guideline for researcher to follow and 6 Paler-Calmorin & Calmorin 2007: 157 Ibid.: 148 Ibid.: 169 Yin 1994: 19



reach to conclusion. Also, Bryman also emphasized on research design by defining it as a

framework “... for the generations of evidence that is suited both to criteria and to the research

questions in which the investigator is interested.”10

I am going to be more specific on this chapter in order to give information on research process.

Research process includes problem/objectives, hypothesis, theoretical/conceptual framework,

assumptions, review of related data, research design, data collection, analysis/interpretation and

summary.11 I will be using descriptive design for this thesis in order reach my research objective. “A

research objective is a statement of purpose because this is the guide to be accomplished by the

researcher.”12 Within my research objective, I am going to be emphasizing on the new constitution

of Turkey and its relationship to the EU membership and domestic political affairs of the country

with a normative perspective. Normative perspective always has the risk of being one sided. “Any

efforts to evaluate and describe political instructions and actions in terms of moral and ethical

criteria … [is] normative.”13 Also, within my objective, I am aiming to create sufficient information

on Turkey's current politics and previous affairs in relations to the EU, since many master programs

and students fail to include in their programs. In order to write a normative and informative critical

thesis on this particular subject, I chose to use the descriptive design as my research design.

Descriptive method design “... describes the nature of the situation as it exists at the time of the

study and explores the course of a particular phenomenon.”14 In other words, it focuses on the

current situation and try to describe a new truth. The truth may be in different forms such as

increased quality of knowledge and a new generation. As it stated before, within the objectives of

the research increasing the quality of the research is important for this thesis. Descriptive design

aims four main intentions that are “... providing facts on which scientific judgments may be based,

providing essential knowledge about the nature of objects and persons, closer observation into the

practices, behavior, methods and procedures [and] playing a large part in the development of

instruments for the measurement of many things.”15

10 Bryman 2004: 2611 Paler-Calmorin & Calmorin 2007: 1712 Ibid.: 3013 Steinberger 1985: 914 Rivera Jr & Rivera 2007: 5615 Paler-Calmorin & Calmorin 2007: 70



Moreover, two types of descriptive design methods will be highly used in this thesis that are

descriptive-status and descriptive analysis. Descriptive status is the approach to the problem solving

by seeking to answer to real facts relating to existing conditions; whereas descriptive-analysis is the

“... method determines or describes the nature of an object by separating it into its parts.”16

Descriptive-analysis is the suitable way of examining the current situation of the fragmented

politics by separating them into parts. In other words, when we look at the new constitution as a

whole, it is valid for the EU to find it necessary, however, when we separate them into parts, there

are different scenarios for implementation of the amendments. One claims that AKP has a hidden

agenda after the amendments, the other claims, AKP is doing everything on track with the previous

goals of foreign Turkish politics such as the full membership to the EU.

2.4 Quantitative vs Qualitative

Those two strategies have differences in their ways of empirical research and data collection. In

other words, qualitative research strategy is commonly used in social sciences; whereas,

quantitative research strategy is mainly within natural sciences.

Quantitative research strategy emphasizes on quantification in the data collection and analysis of

the data. Qualitative data collection is defined as “... a research strategy that usually emphasizes on

words rather than quantification in collecting and analysis of data, and that it rejects the practice and

norms of the natural scientific models.”17 In other words, it is characterized as subjective that the

individual's interpretations are very important. On the other hand, the quantitative research method

“... entails a deductive approach, which incorporates the practices and norms of natural scientific

models and embodies social reality as an external, objective reality.”18 That simply suggests that the

method is characterized as objective that it seeks precise measurement and analysis of concepts with

surveys.

Both of the methods are useful and important for researchers. For this descriptive design, I will be

using the qualitative research method, mostly because of the time limitations. With a longer period

16 Paler-Calmorin & Calmorin 2007: 7117 Bryman 2004: 21-2218 Yin 1994: 19



of time for the study, both of the methods can be used. Yin claims, “... regardless of whether one

favors qualitative or quantitative research, there is a strong and essential common ground between

the two.”19

2.5 Validity, Credibility of Data and Sources

In this thesis I will be using both primary and secondary sources. Primary sources consists of

interviews, experiments and field observations. Secondary sources are all documents including

books, articles, reports and internet pages. It is always important to keep in mind that data is always

made by someone for someone and some purpose. In descriptive design, it is always important to

keep this in mind for validity and credibility of data. It keeps the researcher from too much

subjectivity.

Moreover, the secondary sources are such as books ans news will be translated from Turkish-

English. The sources will be translated are chosen mainly for background information in order to

create an objective perspective. Moreover, the ones which will be used for analysis will the news

for defining the facts that have happened in Turkey without their interpretations. Even if an

interpretation is translated, it will be mentioned as a point of view, not as an absolute truth to avoid

biases. Also, the texts will be used as quotations and paraphrases.

For validity, it is crucial to keep in mind that “... there is veracity or truthfulness of the responses.”20

Every interview, news and reports do not carry the validity, that is the reason of long time to search

for the data. “Reliability means the extent to which a research instrument is dependence,

consistence and stable.”21 It is important to keep these facts in mind and be critical to secondary

sources. In my case, even my own observations might be subjective towards Turkey's fragmented

structure, since I was born in a democrat family.

2.6 Scope and Delimitation

19 Yin 1994.:1520 Paler-Calmorin & Calmorin 2007: 5121 Ibid.: 55



The scope of the thesis based on the new constitution of Turkey and its relation to the EU

membership. I will be focusing on the concepts such as implementation of the amendments,

democracy, legitimacy, jurisdictional system, fragmented politics of Turkey and political parties.

The effects of amendments on civil society and economy will not be inside the scope of the thesis

due to some limitations. Furthermore, the focus on the amendments will only consist the

problematic ones.

The main reason for the limitations are the time and cost-efficiency. Due to the limited time, I will

not be able to use surveys or questionnaires. Moreover, the presumptions on this subjects will be

carefully examined since they might be biased. On the other hand, presumptions are helpful to draw

a guideline and choosing the theories.

Final limitations are on the internship information, that the emotionality causes subjectivity. It is

important to keep in mind of the researcher's background and ideology in normative writings. Also,

it is important to keep in mind that the translated Turkish documents are always written for someone

and some purpose and the interpretations of them might cause subjective points in the thesis.

2.7 Theoretical and Conceptual Framework

Theoretical and conceptual framework is crucial in thesis writing since it is important to check the

theories and reality. “Theoretical and conceptual frameworks provide clear explanation regarding

the relationship of variables.”22

First of all the constitution theory will be used to focus on the compatibility of the principles with

the new constitution of Turkey. The principles such as legal legitimacy and the democracy will be

used for further deeper analysis of the new constitution. Afterward, the concept of fragmented

politics and normative legitimacy will be used in order to see the different interpretations of the new

amendments. Meanwhile, the new constitution is claimed to promote the democratization process of

22 Paler-Calmorin & Calmorin 2007: 35



Turkey which is following the norms of the EU. The structure and the norms of the EU will be

examined within the principles of the constructivism theory.

In the conclusion; with the evidence in seen the light of the current situation of Turkey, the thesis

will focus on the scenarios, that had been plotted whether the new constitution is a step forward for

the democratization for the EU membership or the new constitution has a hidden agenda of

dissolving the secular state of Turkey.



3. Background Information

In this chapter, I will be giving background information on Turkey and the EU. The information on

Turkey will mainly focus on the previous constitutions relation to democracy, political parties and

amendments and the new constitutional amendments. Moreover, the information on the EU will

include the brief summary of Turkey and the EU relation and the policies of the EU on accession,

the democracy criteria and the constitution.

3.1 General Information on Turkey

Turkey is geographically located in Southeastern Europe and Southwestern Asia with the strategic

location of controlling the Turkish Straits which connects the Black Sea and the Aegean Sea. Total

borderline is 2648 kilometers. The government type is republican parliamentary democracy. Turkey

has 81 provinces with the capital city Ankara. President is Abdullah Gül and the Prime Minister is

Recep Tayyip Erdoğan, moreover the cabinet is appointed by the president with the nomination of

the prime minister. The

president is elected for

five years with the option

of second term eligibility,

that the prime minister is

appointed by the

president from the

members of the

parliament. Legislative

branch is Türkiye Büyük

Figure 1- Map of Turkey23

Millet Meclisi- Grand National Assembly of Turkey (GNAT), where there are 550 seats and the

members are elected by popular vote to serve for 4 years. As an addition to this, the real growth rate

of Growth Domestic Product (GDP) is 7.3% and GDP per capita (calculated with purchasing power

parity) 12,300 dollars. The unemployment rate is 12.4%, population below poverty line is 17.11%

23 http://www.mountararattrek.com/hometr.htm



with the population of 78,785,548. Finally, among that population, the ethnic groups distribute as

75% is Turkish, 18% is Kurdish and the rest is minorities.24

3.2 Constitutions and Democracy Search in Turkey

Turkey's republic area begin in 1921 Constitution. On the other hand, from the beginning this

constitution was seen temporary, because it was considered as the war period constitution. By 20 th

April 1924, the new constitution of Turkey was in force with the main importance of the addition of

“the law of fundamental organization”. With this constitution, GNAT was recognized as the

representative of the Turkish nation. Moreover, with 1924 constitution, the legislative organ of the

Turkish Republic is recognized as council and the executive organ was defined as the president.

However, the multiparty system was a new concept for Turkish Republic and it did not fit the

council, which allowed council to have absolute support. Between 1950s and 1960s, GNAT's

decision making was controlled by the majority superiority in the parliament. In other words,

parliament became superior than the executive organ.25

When this area is focused on, there was a meeting between two Turkish Universities Ankara and

İstanbul Law Faculties in 1958. Within this meeting, faculty members presented a package of

changes to existing constitution. For 1924 constitution, it is important to mention that constitution

was accepted without a referendum, GNAT's approval was found satisfactory. On the other hand,

during those times, Turkey had infant industry and the politicians were inexperienced, which lead

the military coup in 1960. The government which was formed by the military coup rejected the

amendment package and ordered Ankara University's Political Science department members and

judicial organ to work together on amendments. One of the most important amendment was on the

effort of uniting the national identity of the country by referring to people as “citizens” instead of

“Turks”.26

The 1961 Constitution separated the activities of legislative, executive and judicial organs. Double

24 https://www.cia.gov/library/publications/the-world-factbook/geos/tu.html25 Özsoy 2000: 2526 Ortaylı 2011: 33-34



council system was enforced, (GNAT and Senate of Republic) which lead the legislative organ to

slowdown its activities. 27 Moreover, the amendments of the constitution was heavily criticized by

claiming that Turkey was not ready for the foresight of the amendments on organizations, right to

debate and freedom of speech. Even the citizens of Turkey mainly supported the interference of the

military between 1960s and 1970s. In 12th September1980 Turkey faced with the second military

coup in its history and the political parties and the parliament were shot down.28

The 1982 Constitution is considered to be a “response constitution”. With this constitution, the

double council system was removed to fasten the activities of the legislative and executive organs.

Furthermore, it also aimed to put a stop to the political fragmentation in 1961 to 1980.29 The writing

style of the constitution was not legal. Especially on the issues such as the fundamental freedoms

and organizations, it had complications for citizens and jurisdiction organ to interpret and conduct

the provisions. However, the citizens were hoping to end the military pressure on their daily lives,

so the amendments were passed by 92% “yes” responds in referendum. Militaristic involvement in

the process of the new constitution affected the structure of the constitution and this is the only

constitution that involves comments rather than provisions.30

First party of the Turkish Republic was formed before the establishment of the republic, in 1922.

When Atatürk who was the founder of the Turkish Republic was the president of the country,

multiparty system was tried to be applied however, the attempts were failed. During the era of the

second president İsmet İnönü, the domestic politics were left alone due to the threats of the World

War II.

Finally after 1945, the multiparty system attempts got serious and between 1945 to 1980, 80

political parties were established. The most important representative of the Turkish political left

Republican Party of the People(CHP), the center-right Democratic Party (DP), the right Welfare

Party(RP) were established during that time. The Welfare Party was shut down during 1990s and

instead of that Felicity Party(SP) took its place, some time after that a group of people inside from 27 Özsoy 2000: 2528 Ortaylı 2011: 3529 Özsoy 2000: 2630 Ortaylı 2011: 36-38



this party formed the Justice and Development Party(AKP).

The political fragmentation in Turkish politics also formed during that time. Members, who were

not happy with the management of the party, were resentful to the other members or could not find

what they had looked for in the party, separated and formed different parties which ended in little

groups of political parties and political fragmentation. The participants of the military coup of 1982,

tried to stop the fragmentation of the political parties because they had realized it would become a

greater problem in the future. During 1980 military coup, participants tried to control the veto

power and allow the Turkish political left and right to enter in the elections with one party from

each. However, it was considered as one of the biggest symbols of the lack of democracy in

Turkish history. After the political pressure of 1980, 10 new political parties are formed. On the

other hand, the military coup 1982 constitution did not allow members of the political parties to

switch from one party to another. That is the reason, members resigned from the political parties

and formed new parties. All in all, those acts increased the speed of the political fragmentation.

Until 21st century, twelve elections were conducted and six different systems used in those elections.

The persistent system for elections could not be applied, that increased the injustice and because of

the high level of benchmark for entering the parliament, some ideas and groups were not

represented in the council.31 By reaching to 21st century, it is seen that in 77 years 57 times the

government has changed. Public opinion on this generally formed around the idea that the political

fragmentation's origin was conducted in the 1950s. However, the statistics show that after 1982

military coup to 2000, 13 times the government had collapsed and re-established. The main reason

for that can be the interest relations of the parties rather than attempts to find solutions for the

existed problems. 32

As an addition to all, one of the most crucial cause of the fragmentation in Turkish politics is that

the main political parties lost their voters' support. The rate of votes, the political parties were not

sufficient for one party to form government in the parliament, which caused unwanted coalitions.

Only party benefited from that era was Nationalist Party of the People (MHP), they collected the

voters of the main parties who were tired of the passiveness of their parties.33

31 Özsoy 2000: 34-3732 Ibid.: 4733 Ibid.: 63-66



With the 12th September 2010 referendum, once again Turkish Constitution had amendments.

Western part of Turkey mostly rejected the amendments, but the eastern side of Turkey strongly

supported the new constitution. Constitution was passed with 42% “no” to 58% “yes”. With the

conflictual passing of the constitution, Turkey faced with the problems with concepts such

legitimacy, democracy, jurisdiction and the foreign politics.34

3.2.1 Republican Party of the People (CHP)

'Before the establishment of Turkish Republic, the founder of Turkey Mustafa Kemal Atatürk

formed the party based on his principles; nationalism, republicanism, secularism and populism.

Afterward, statism and revolutionary were added to his principles and the symbol of the party

because of that included six arrows.

Party's revolutions on the areas such as education and legal system are the basics of Turkish

Republic. Those revolutions are the frontiers of the economic development and industrialism.

Moreover, after World War II, the party was also the pioneer for the transmission period of the

multiparty system for democratization, even though the party was the only political party which had

the absolute power over GNAT. In 1950s, the role of the opposition was undertaken and it was the

crucial period of institutionalization of the political life in Turkey.'35

With 1960s modernization period in Turkey, urbanization, immigration and industrialization were

triggered and CHP defined itself as the center of the left. During 1970s CHP's definition of itself

also transformed into the “democratic left” and adopted the principles of social reforms. Moreover,

CHP adopted the global principles of the social democracy, and also supported the international

activities of the Socialist International and European Socialists Party.36

CHP is currently the opposition party in GNAT and they have lost last two elections in Turkey. 34 Ortaylı 2011: 3935 http://www.chp.org.tr/?page_id=6736 Ibid.



Although CHP is still considered as the party of Atatürk and his principles and they transformed

from being “party of the governments” to “party of the people” and from “party of order” to “party

of revolutions”.37

3.2.2 Justice and Development Party (AKP)

'The party was formed in 14th August 2001, also frontiers of the party are Tayyip Erdoğan, Abdullah

Gül and Bülent Arınç. Except the members of Welfare Party and Felicity Party, AKP also gathered

the names from other parties of the center-right. With 3rd November 2002 elections, party got the

majority of the votes and constructed the 58th government under the leadership of Abdullah Gül.

During that time, Erdoğan was politically banned and that is the reason, he was not the head of the

party. In 2003, his political ban was removed and he was elected from Siirt to attend GNAT. On 11 th

March 2003, Gül was resigned from the government, and on 15 th March 2003, Erdoğan established

the 59th government of Turkish Republic.

Party was criticized of carrying the “national opinion” movements traces. National opinion

movement was formed by Welfare Party and supported an isolated Turkey within its own values and

beliefs and also an open market without interest rate. Publicly, Erdoğan announced that they are no

longer supporting the national opinion movement. Another criticism to the party was claimed by the

right oriented party MHP and left oriented CHP, that the steps which AKP had taken to the EU

accession was jeopardizing the national interest of the country.

On the other hand, in 2004 local elections, AKP won once more with majority of the votes.

Moreover, in the 2009 elections, AKP again collected the majority of the votes except the support of

the Aegean Region, Southern Anatolian Region and Thrace Region.'38

Even though, AKP is heavily criticized of having the national opinion movement and

37 http://www.chp.org.tr/?page_id=6738 http://genelsecimler2011.com/adalet-ve-kalkinma-partisi-akp-tarihi/6042030



fundamentalist background, AKP's Statute included the chapters referring to Republicanism as the

only regime of Turkey and the sovereignty solely belong to the citizens of Turkey. Moreover, the

Statute included that the rule of law is the main authority in Turkish Republic.39

Furthermore, Turkish political life is based on the principles of Atatürk and AKP would protect the

norms and values of Turkey which continue from the establishment of the Republic.40 Furthermore,

AKP is a “human” centric political party, which means, AKP was only established to serve the

citizens of Turkey. The happiness, the felicity, the security and the health of the nation are the main

goals of the political party. All the citizens under the name “the Republic of Turkey” would be

treated equally.41 AKP respects all the citizens' race, religion, language, perspective and freedom of

speech; and all citizens have the fundamental rights.42

Furthermore, The Statute contains chapters on right to strike and freedom of speech. All the citizens

are free to chose their life styles and they have the right to strike and freedom of speech within the

rules of the Constitution. All citizens are subjects to law and their equal under the rule of law.

Fundamental rights are not subjects to change or voting.43

AKP considers the source of economic growth is human beings. Moreover, the party defines the

role of government in economy as regulatory and supervisory. The unequal distribution of income

and unemployment are problems of socioeconomic perspective. The government should be aware of

the advantages of the globalization and should take measures of protection from the downsides of

the globalization.44

The AK Party cares about the representative democracy's components as it should be pluralistic,

participatory and the quality of contestants should be considered. The efficient implementation of

these features and the establishment of a high quality and supervised public administration, depends

39 The Statute of AKP 2002: Art. 4.140 Ibid.: Art 4.241 Ibid.: Art. 4.342 Ibid.: Art. 4.443 Ibid.: Art. 4.844 Ibid.: Art. 4.10



on the civil society organizations' importance and indispensability.45

3.2.3 The Judiciary System in Turkey

The judiciary system of Turkey contains four main courts; the courts of justice, the administrative

courts, the military court and the constitutional court. The courts of justice mainly focuses on the

subjects that matters to private law. Those matters can be in two different forms; civil or penal. The

civil court of the peace is the lowest civil court which operated with a single judge. The civil court

of first instance are basic courts with the jurisdiction over civil trials which are not assigned to the

civil court of the peace. Those courts specializes on different areas such as labor disputes, land

disputes, traffic disputes.46

The lowest criminal court is the penal court of the peace and the trials which are excluded from this

court's jurisdiction is taken by the the penal court of first instance. Furthermore, the central criminal

court has the jurisdiction over the criminal offenses including the imprisonment more than five

years or capital punishment. Final court of that are the state security courts which has the

jurisdiction over the matters with the involvement of national security.47

The council of state is the highest administrative court which has the jurisdiction over the public

law involving a government agency or ministry. Those courts have 22 subordinate courts and 33 tax

courts. Military courts have the jurisdiction over military or military personal. Three separate courts

are in use; the military criminal courts, military criminal court of cassation and a supreme military

administrative court. Final court in Turkey is the constitution court which was established in 1961.

The role of the court is to ensure all the legislation and executive actions is confirmed by the

constitution. The rule of the constitution court is superior than other courts.48

45 The Statute of AKP 2002: Art. 4.1346 http://faculty.cua.edu/fischer/ComparativeLaw2002/collins/History%20of%20Turkey.htm47 Ibid.48 Ibid.



3.3 The Constitutional Amendments

With 12th September 2010 referendum, 26 amendments were passed. Those amendments will be

briefly mentioned in this chapter in order to be analyzed in 5th chapter.

The positive discrimination against women, children, elderly, disabled or war veterans should not be

accepted against the equality principle.49 Moreover, the personal information of the citizens would

be gathered according to the law. Citizens would have the right to demand their personal records to

be removed.50 The ban on overseas output, in other words, banning citizens to go out of the borders

of Turkey would be able to be given by only jurisdictional ways. Military service statue or tax debts

would not be subjects to this matter. 51This amendment aims to protect the rights of free movement

and protect the structure of families.

The workers would have the right to be in various amounts of unions in the same sector.

Furthermore, the last decision on collective bargaining of the officials would be decided by the

public officials of the conciliation committee instead of the Council of Ministers. The collective

bargaining reflections to retired citizens would be edited by the law. As an addition to this, the union

would not be responsible for the damage which may occur during a strike. Strikes that seek political

interest, solidarity strikes, general strikes, slowing down the business or resistance would not face

constitutional obstacles. Under GNAT's ruling, the Public Inspection Agency would be formed. This

agency aims to solve the complaints about the management by compromising instead of carrying

them to jurisdictional organs.52 Every citizen in Turkish Republic have the right to petition. The

petition would be given directly to the Public Inspection Agency. The organization of the Public

Inspection Agency, its duty, mission, the operations to the review of petitions, also chief inspector's

and public inspectors' qualifications, principles and procedures, would be edited by law.53

The members of the parliament who are found responsible for the political party closure and banned 49 Constituent Assembly of Turkey 2010: Art. 1050 Ibid.: Art. 2051 Ibid.: Art. 23- Art. 41 52 Ibid.: Art. 5353 Ibid.: Art. 74



from political life, would operate independently until the end of their terms of office. Also, the

political bans would be reduced to three years from 5 years. Instead of closing down the political

party, the Constitution Court would cut off the complete amount or a portion of State Aid to political

party depending on the degree of the trial. This action is subject to the trial of closing down the

political party and can not be a trial by itself. Dissolution of political parties would be possible by

the final ruling of the Constitution Court to the trial, which can be authorized by two thirds of the

majority in the commission that is formed with the president of the parliament and five members

from each political parties that are represented in the GNAT, after the request of the Supreme Court

Chief Prosecutor. Also, the term “permanently dissolved” is removed from this article.54 The article

on the cancellation of the membership to the parliament is completely removed from the

constitution.55

The president for GNAT would be in his terms of office for two years for the first time, in the case

of re-election the president would continue his duties for the next general elections.56 The Council

of State and the Administrative Courts would not be able to conduct inspections under the reason of

“pertinence” and establish provisions under the reason “interest of public”. When the High Military

Council terminates a military officer's services, the person can apply to other courts other than

militaristic ones. Colonels and generals who leave their positions due to promotion or lack of staff

positions, would not be able to return to their previous positions.57

The government officials would be able to include their personal rights into the collective

bargaining documents. Moreover, the officials would be able to go to trial about their disciplinary

punishments by applying to jurisdictional organs.58 The inner inspectors in the Ministry of Justice

would only be inspecting justice services and public prosecutors. The judicial inspectors would be

responsible for review and investigation.59

The Constitution Court would have 17 members. The Accounting Bureau and the attorney bars 54 Constituent Assembly of Turkey 2010: Art. 6955 Ibid.: Art. 8456 Ibid.: Art. 9457 Ibid.: Art. 12558 Ibid.: Art. 12859 Ibid.: Art. 144



would send nominees and GNAT would appoint three of them. Other fourteen members would be

appointed by the the president of Turkish Republic. From those appointments, four of them, who

must be senior executives, attorneys, first class judges, public prosecutors or rapporteurs of the

constitution court with five years of experience would directly by the president. Four members from

the Court of Appeals, two from the Court of State, one from the Military Court, one from the High

Council of Military and last three would be academicians who are approved by the Ministry of

Education. Furthermore, the members of the Constitution Court would serve for twelve years and

members who are 65 should retire. Citizens who have failed in every jurisdictional organ in Turkey

would be able to make application to the Constitution Court before taking the case to the European

Court of Human Rights. The president, the chief of the staff and the president of GNAT would be

subject to the Supreme Court, in those cases the constitution court can act as the Supreme Court.

Also, the subjects such as the cancellation of the articles in the constitution and the dissolution of a

political party would be possible by the twelve votes of the seventeen members.60

The military court judges should not consider “the necessity of the military services” while they are

ruling.61 The supreme board of judges and prosecutors would have 22 original members and 12

alternate members. The Ministry of Justice committee chairman and the undersecretary of Ministry

of Justice would be the natural members of the board. Four members would be appointed by the

president of the Republic of Turkey among attorneys and people, who practice law. Three members

from the Supreme Court, two members from the Council of State and one member from the Turkey

Justice Academy would be a part of the Board. Moreover, the Board would have seven senior

criminal judges and prosecutors; three senior administrative judges and prosecutors as its members.

The judges and prosecutors who are removed from their professions can file complaint to the

Board.62

Last amendment is regarding to economic and social council that this should be an constitutional

institution. Participants of the 12th September 1980 military coup and the judicial organs of that

period should be subject to trial.63

60 Constituent Assembly of Turkey 2010: Art. 146-147-14861 Ibid.: Art. 15662 Ibid.: Art. 15963 Ibid.: Art. 166



3.4 Brief Overview of Turkey – the EU Relations

After the establishment of the European Economic Community in 1958, Turkey applied for

membership in 31st July 1959. Later on, the Council of Minister of the Community granted Turkey

with an association agreement. On 12nd December 1963, Turkey and the Community signed the

Ankara Agreement which is the guideline for the integration period for the membership and the

Agreement came into force on 1st December 1964.64 Ankara Agreement is established “... to

promote the continuous and balanced strengthening of trade and economic relations between the

Parties, while taking full account of the need to ensure an accelerated development of the Turkish

economy and to improve the level of employment and living conditions of the Turkish people.” 65 In

other words, the Agreement defined the steps of the Customs Union as the preparation phase, the

transition phase and the final phase.

The preparation phase is easily completed, later the transitional phase needed more detailed

provisions. Because of that the Additional Protocol was prepared for the framework for the Customs

Union that is the free movement of goods which is the dissolving of customs between the

Community and Turkey and the reduction of the other duties to the European level. As an addition

to this, European Community accepted Turkey to reduce the duties gradually since Turkey had

infant industry, where European Community reduced them immediately. However, after the first

reduction, Turkey did not oblige the requirements which did slow down the process.66 The

relationship between Turkey and the Community had frozen due to Turkey's lack of compatibility

with the requirements. In year 1985, the transitional period did not completed and the will of Turkey

for the membership raised concerns. Especially after the military coup, the membership discussions

deeply dimmed for a long term. In year 1987, the accession period had its u-turn, since the new

government of Turkey announced that their priority in the foreign arena was the full membership to

the Union. 14th April 1987, the government decided to re-apply for the full membership,

disregarding the previous events. 67

After the re-application, the Council gave Turkish request to the Commission and their reply was to

64 Ankara Agreement 1968.65 Ibid.: Art. 266 Nuray 25/10/10: 267 Ibid.



complete the requirements of the Customs Union and the additional requirements until 1995. In 31st

December 1995, as a consequence of the Association Council's adoption of decision 1/95, the

Customs Union between EU and Turkey was completed.68

The completion of the Customs Union was not enough for the full membership, consequently

Turkey kept her foreign policy attached to her priority. On the other hand, after the positive efforts

of Turkey, On Luxembourg European Council Summit in 1997, Turkey was not declared as a

candidate due to the fact that Turkey was not fulfilled the Copenhagen Criteria. Turkey continued

the reform process and responded that the EU should also keep their commitments. “This was a

reaction to being left out of the enlargement process encompassing 12 countries and also the

inclusion of Cyprus among the six initial countries with which negotiations would commerce.”69

Finally on 1999, the Helsinki European Commission Summit, Turkey was announced as a candidate

which smoothed the relationship between Turkey and the European Union. After that the

negotiation framework was introduced to Turkey which defined the adoption of acquis

communautaire that is all rights and obligations regarding EU, its administrative structure and

necessary institution reform process.70 Meanwhile the Commission would monitor the period and

check the ability of Turkey for fulfilling the Copenhagen Criteria.

The enlargement policy of the EU was also a guideline for the accession period for Turkey. The

enlargement policy is the principles of liberty, democracy, human rights, fundamental freedoms and

rule of law. Any country which respect the principles can apply for the full membership. For

negotiation process to start, the EU requires the countries to be compatible with the Copenhagen

Criteria. The Copenhagen Criteria promotes EU principles, a functioning market with ability to

cope with competition pressures and the ability to assume obligations of membership. Furthermore,

within the enlargement policy, the candidate countries are expected to adopt the rules of the EU and

the administrative structure. The countries should be able to transpose the EU legislation and the

implementation and enforcement should be effective at administrative and jurisdictional levels.

Moreover, the EU is responsible for protecting its own decision-making structure, institutions and

68 Nuray 25/10/10: 3-4-569 Ibid.: 770 Nuray 26/10/10: 1



policy making from the new members' possible negative impacts.71

In December 2002 The Copenhagen European Council Summit, the Commission suggested Turkey

for the Council to check whether Turkey fulfilled the Criteria or not. In 2004, after the

recommendation of the Commission, Turkey was declared that she has fulfilled the Copenhagen

Criteria sufficiently by the Council.72 The negotiations started under 25 chapters. In 2006, Turkey

failed to manage the relationship with Cyprus, The Council banned 8 chapters and also added that

none of the chapters would be closed until this problem is solved. Furthermore, five other chapters

are banned by France and other four by Cypriot Greeks, that adding up to 17 blocked chapters.

Now, thirteen chapters are opened and three chapters are under opening benchmark.73

One of the obstacles between the EU and Turkey has the utmost importance, that is the issue of

Cyprus. Cyprus had been an issue in Turkish history for many times. In 1993, it became crucial

dispute between Turkey and the EU, the EU demanded the problem to be solved. Even more, in

1997 Luxembourg Summit, the membership of Cyprus to the Union was assumed that it would

appease Turkish side and the Greek Cypriots to solve the issue.74 It did not work out. Moreover, for

Turkish accession, Greece played a huge role and she “... persuaded its 14 members in the Union to

add resolving the resolving of the division of Cyprus to the list of short term actions that they

(Turks) must carry out before the start of membership negotiations.”75 This issue was not originally

included in the Copenhagen Criteria, but Greece's pressure on the EU caused the member states to

pursue Turkey about this subject. Moreover, in 2004 the United Nations suggested a method for the

island, that two sides should be unified under one sovereign state; which is called the Annan Plan.

75% of Greek Cypriprs votes “no” and 64% of Turkish population voted “yes” in the referendum on

the Plan. Because of the result, Turkey believed that EU “... failed to fulfill its promises to Turkish

Cypriots in return for their cooperative attitude towards resolving the conflict under the auspices of

United Nations (Annan Plan).”76

The issue of Cyprus had a direct effect on the accession period, where “... the EU leaders in 2006

71 http://ec.europa.eu/enlargement/the-policy/process-of-enlargement/index_en.htm72 Nuray 26/10/10: 273 Ibid.: 374 Çarkoğlu&Rubin 2003: 19375 Ibid.76 Ilgaz&Toygür 2009: 10



decided unanimously not to open negotiations in 8 chapters and not to provisionally close any

chapters until Turkey fulfills its obligations deriving from the Additional Agreement – which

basically implies extending customs union to Republic of Cyprus.”77 Turkey, on the other hand,

rejects the extension of Customs Union to other side of the island and blocks the transportation from

Cyprus ports. Moreover Turkey claims that if this is a violation of Customs Unions, so does the

imposed quotas on Turkey's trucking which are imposed by Greek Cypriots. In near future, this

dispute do not look bright and the conflict between Turkey and Cyprus carry the accession process

to a dead end.

3.5 The EU on Democracy and Constitution

The main treaties of the EU manifest themselves as the basic rules of the EU like constitutions. The

Lisbon Treaty re-writes the rules of the EU. The current document had undergone stages of

preparation, negotiation and ratification. The treaty brought institutional innovations and policy

changes.78

One of the changes is citizen's initiative, which means, if one million Europeans present a petition

to the European Commission(EC) that the Commission would have to be look at the ways of

introducing proposals. Alternatively, the EC could force the Union's executives to look at the ways

of repealing legislation. Another adjustment is on law-making, which is the European Parliament

would be an equal in terms of law-making with the Council of Ministers, where member state

national governments are presented. Moreover, the treaty indicates some changes on policy-making,

which the European Parliament would be on equal legislative footing on policy-making with the

Council regarding the EU agriculture and fishery policies, trade policy, legal immigration and the

EU structural funds. 79

Also, with treaty, the national parliaments gain an increased role in the EU policy-making by giving

them eight weeks in which to argue their case if they feel a draft law oversteps the European Union 77 Ilgaz&Toygür 2009: 1078 http://www.unizar.es/euroconstitucion/Home.htm79 http://europa.eu/lisbon_treaty/glance/index_en.htm



authority. Furthermore, instead of six months rotation, a permanent council president would chair

the EU summits for two and a half year renewable term. Another topic is the high representative for

Foreign Affairs and Security Policy, that the second new job created within the treaty. In other

words, the most powerful EU foreign minister will chair the meeting of foreign affairs ministers,

which oversee multi-billion EU aid budget and run the proposed European external Action Service.

As an addition to this, the double majority in council votes is presented in the treaty that changes

the voting arrangements in the Council of Ministers. In other words, instead of voting by unanimity

measures can now be carried out if they have 55% of votes in the Council from countries

representing 65% of the EU population. 80

Moreover, any new president of the EC would be elected by the European Parliament. The treaty

introduces the charter of fundamental rights that become legally binding which means, all laws

must adhere to them. The United Kingdom and Poland have certain opt-outs on this point.

Countries, first time in history, have the right to withdraw themselves from the membership to the

EU. In social areas new horizontal social clause is presented which ensures the EU policies would

take place into account of promoting high levels of employment. In addition to this, new provisions

are mentioned in treaty on civil protection, humanitarian aid and public health. Also, within the

treaty, first time within other treaties, there were references to new challenges of the world such as

energy solidarity and climate change. The importance of the treaty lies within its goals. It aims more

democratic and transparent Europe. Moreover, it promotes more effective decision making process,

which increases the efficiency and the legitimacy. Rights and freedoms are underlined and solidarity

and security are the terms which the treaty stressed on. In future, with the implication the treaty, the

EU plans to be a global trend setter, a more active player rather than being an observer.81

The EU defines democratization as a continuous phenomena, in other words, it is a gradual process

related to countries' socioeconomic and cultural contexts. Each country has different model. It

should be locally driven and consistent with the universal human rights principles. The EU

promotes democratization within 3 pillars; political dialogue, mainstreaming democratic values in

all EC development instruments and specific financial and technical assistance programs that

80 http://europa.eu/lisbon_treaty/glance/index_en.htm81 Ibid.



focuses on four key aspects.82

First pillar is promoted by helping governments to implement democracy and human rights

principles into their development programs and explaining them the possible benefits of the EC

assistance in this period. Second pillar focuses on the principles such as political participation,

representation, accountability, transparency and equality which should be implemented on planning,

design, implementation and monitoring of all policies and programs. Last pillar has four key aspects

which are the fair elections which should be transparent, the promotion of the importance of

institutional and organizational capacities of parliaments, the support to freedom of speech within

an independent and professional media and the specific need for the pluralistic political systems.83

However, the democratic control mechanism in the EU is also subject to criticism.

On the subjects of elections and referendums, “... the voters positions on European matters have

appeared to be strongly correlated to the popularity of national governments.”84 Elections in 2004

showed a 20% decrease in the voters amount, which signaled the problematic beyond the national

interests among parliaments. Two reasoning had been discussed, the first one claims that citizens

have very low trust on the European Affairs and to the ones who govern. The second view is more

optimistic, that median voters are deeply satisfied with the current situation and did not need to vote

at all. Still, it can be discussed that the domination of national parties are blocking the ways of

traditional left/right cleavages which increases the need for unified public space at the European

level “... where the public opinion would feel it relevance to express their personal preferences.” 85

The EU's solution to it was in the Lisbon Treaty which allowed “... new powers bestowed on

Parliament”86; however, this time criticism shifted the issue of electing directly the president of the

Commission, which claimed to be “... politicizing the Commission [that] would be incompatible

with the Commission's function as arbiter of the Treaty application, and its exlusive power of

legislative initiative.”87

82 http://ec.europa.eu/europeaid/what/human-rights/index_en.htm83 Ibid.84 Micossi 2008: 685 Ibid.: 786 Ibid.87 Ibid.



On the subject of democracy, it is crucial to discuss the role of national parliaments. Implication of

treaty modifications need the central role of national parliaments, it is also important for the

constitute of the Union's primary law. The treaty increased the role of national governments, on the

other hand, promoted the power of the European Parliament that “... national parliament control is

inevitably weaker over the council decisions regarding the Union directives or policies where

majority voting is the rule.”88

The EU does not have one power center, the power is spread out over multiple centers and used

through various decision-making procedures. The Lisbon Treaty enables the European Parliament to

intervene in decisions. “Power in the Union is not organized according to the division of power

paradigm typical of Western democracies, but according to a model where different powers re

shared among stakeholders, as in pre-modern Europe politics: member states, the European

Parliament, Community, technocrats.”89 Even though the various power centers are functioning in

the EU, the Commission is defined as the technical power which acts as an executive agency and a

judge more than a government in order to be the guardian of the treaty.

Moreover, popular dissatisfaction with the democracy in the EU is also connected to the ideas of

“constitutionalists” or “non-majoritarian” mechanisms, which allow executive and legislative

powers independent from the majority politics. Increasing the role of the Parliament and the Court

leads central banks and regulatory agencies to be bounded to parliamentary scrutiny. In other words,

“it follows a federal organizational model and is firmly grounded in economic policy theory; it

conveniently frees national political system from the onus of applying unpopular legislation that

may harm widespread interests and removes the exercise of such powers from the preview party

politics.”90

Next chapter will be explaining the theories and concepts in order to reach the analysis of the thesis.

After that, it will be reader friendly to combine theories and the background information to answer

the main questions, which this thesis is looking forward to.

88 Micossi 2008: 889 Ibid.: 990 Ibid.: 11



4. Theories and Concepts

This chapter aims to explain the concepts and theories which are going to be used in analysis

chapter. In order to understand the relationship between real life matters in background information

and the theories to work on thesis questions, this chapter holds a crucial importance.

4.1 The Constitution Theory

“The constitution theory [involves] tracing in the constitutional rules on the development of the

state institutions, and in turn, the impact of political events and state institutions on the

constitutional system.”91 The theory defines the concepts of state and constitution referring to them

as set of policy structuring rules and the emphasized on the importance of institutions and rules

which they follow. Furthermore, the theorists claim that lack of public authority causes a tie

between the civil society's demands and competence of state institutions. That requires the re-

organization of political institutions of public society.92

“Constitution theory is traditionally regarded as a normative inquiry concerning the interpretation of

the constitution and the role of the Supreme Court in democracy.”93 The study of the relationship

between the constitution, rules and the government actions are made by the descriptive-explanatory

component, which is a normative component. Within this study, all government institutions are

included; the president, the Congress and regulatory agencies. Furthermore, the political morality

and the textual interpretations within politics are the building blocks of the theory.

The modern concept of state is driven from Europe in order to accommodate the socioeconomic

changes of Industrial Revolution and the emergence of new groups in society. The concept of

modern state shifted “... the normative concept of constitutional order from one of the congressional

government and a Supreme Court free to interpret any provisions of the Constitution to one of

91 Griffin 1991: 66192 Ibid.: 66293 Ibid.: 663



presidential government and a Supreme Court largely restricted to these provisions of the

Constitution dealing with individual rights and separation of powers.”94 Also the modern democratic

state contains public institutions, rules and individual holding offices that is responsible to citizens

in legal sense. Moreover, the below text emphasizes on the significance of independent jurisdiction

in order to create provisions to promote individual freedoms and separation of powers.

Mainly, the constitutional theory focuses on the sovereignty and the public authority. Excluding the

state from this concept would mean the neglect of constraints of individual behavior and passive

role of the past choices of the state. In other words, the past of a state hold a significant importance

to understand the reactions of the society to the constitution and it helps theorists to examine the

individual behaviors and interests of the political entities in sociological concept.95 Furthermore, the

past of a country is regarded as weak and strong as having the “... capacity to act or not; [that]

strength or weakness refers to the ability of the state to act autonomously from civil society.” 96 That

refers to a weak state as it is dominated by interest groups.

To focus on the relationship between the constitution and the political system, theorist are advised

readers to determine which rules are a part of the constitution. “The common sense definition of

constitutional law that takes account of [the] phenomenon is the text of the constitution plus the

settled interpretations developed by the federal court.”97 The constitutional law is basically the text

of the constitution; however, the interpretations of the text is left out of that study. The

constitutional theory claims that in order to avoid the problem of descriptive and causal concept in

favor of normative concepts, it is important “... to understand the characterization of the set of

constitutional rules that follows is not intended to advance normative thesis.”98 In this perspective, it

allows the researchers to discard the questions such as “do we have an unwritten constitution,

should we recognize extra textual values”. It will be explained further in the criticism of the theory,

however, in brief, the exclusion of the normative interpretations of the constitutional text or the

history of a country, would leave out the existing problems in the society.

94 Griffin 1991: 66695 Ibid.: 66796 Ibid.97 Ibid.: 66898 Ibid.: 669



In addition to this, the policy structuring rules are a part of every state, which are “... any [rules] that

can influence a wide variety of policy outcomes.”99 The law of the constitution should be common

for all other entities in the state, and to all of the rules of government. However, it is crucial to state

that the constitutional law is beyond the framework legislation and the policy structuring rules;

those are just a part of it. “State laws concerning political parties and voter legislation clearly have

the potential to affect national political outcomes”, that is the reason of why they can not be

considered as a part of constitutional law.

4.1.1 Criticism

As all the normative studies might face, the normative theorist are at the risk “... unless it can be

shown that they refer to a system that actually exists.”100 In other words, the normative studies are

subjective and without any prove they fail to examine the real world within the theoretical

framework. The interpretations of the constitution or the different views in the society should be

available in order to conduct proper hypothesis for the constitution research.

Moreover, the constitutional theory is deeply criticized because of its attempt to exclude the past of

the nations. Working on the constitutions of a specific state needs the history of the political

regimes, socioeconomic structures and general history. “Describing a specific state is a historical

task.”101 Exclusion of the historical content is not helping the researchers and brings shallow

information.

Also the descriptions such as political system is too broad. It is easy to define a government with

the current one in the office instead of permanent institutions and problems of them. The previous

studies on the constitutional theory had failed to include state and its dynamics.102 Furthermore, “the

framework legislation is different from ordinary legislation that it does not formulate specific

policies for the resolution of specific problems.”103 The framework is so far away from the reality

and excludes the normative concepts of the society. Within the concepts there is not legitimacy

99 Griffin 1991: 669 100 Ibid.: 663101 Ibid.: 666102 Ibid.: 667103 Ibid.: 668



problems and there is perfect harmony between regulatory agents.

Even though it is claimed that state laws concerning political parties and voter legislation are not a

part of the constitutional law; “ … the state election laws [do] play an important role in determining

the structure of the national state.”104 Behavioral consent of the constitutional law restricts the views

of constitutional system.

4.2 Legitimacy

Habermas and Offe's claims on the legitimate state definition is that “... the state must sustain the

process of accumulation and the private appropriation of resources; on the other hand, it must

preserve belief in itself as the impartial arbiter of class interest, thereby legitimating its power.”105

My focus within the legitimate state concept will be on the legitimacy of the constitution. He

legitimacy of the constitution evolves around different concepts of legitimacy; legal, sociological

and moral.

4.2.1 The Legitimacy of the Constitution

First of all, the legal legitimacy is based on legal norm, that means “... which is lawful is

legitimate.”106 In other words, any law which is constitutionally invalid can not be binding.

However, there are cases that legal legitimacy of judicial rulings might be incorrect and lack of

reason. In this case, legitimacy “... may depend on standards that allow a larger margin of judicial

error.”107

In a sociological perspective, the legitimacy is measured by “... a constitutional regime,

governmental institution, or official decision posses legitimacy in a strong sense in so far as the

104 Griffin 1991: 669105 Coetzee et al. 2001: 204106 Fallon, Jr. 2005: 1794107 Ibid.: 1795



relevant public regards it as justified, appropriate, or otherwise deserving for personal reward.”108 In

other words, with Max Weber's traces, it is claimed to be active belief of citizens that the authority

deserve respect or obedience. It is sometimes generated from habit or self-interest.

Final component of constitutional legitimacy is the moral one that is “... a function of moral

justifiability or respect worthiness.”109 When a decision is appropriate for legal legitimacy, it still

might be illegitimate morally. Moreover, within this theory, the theorists claim that legal regimes

gain supporters in the absence of better realistic alternatives,110 that lowers the standard of

government's legitimacy. Some philosophers and theorists emphasize on this as the citizens are

morally obligated to obey all the rules of the governments, if only the rules are within their criteria

of legitimacy.111 In other words, people describe the laws as legitimate when they believe that the

rule setters are morally legitimate within their beliefs. However, the government officials who have

taken oath to obey the constitutional law and the citizens, who have not taken any oath are both

equally binded by the constitutional law.112 The general conclusion is that the law is not supposed to

be morally legitimate that sometimes to protect someone's freedom, the law must limit some other's.

Within the concept of legal legitimacy, Weber defines legitimacy as social stabilizer. He presented

three approaches with legitimacy. First of them is attitudinal approval that is “... the rules are

accepted because of internalized belief in the rightness of these norms.”113 The second one is the

behavioral approval that “... you play by the rules e.g because that is the way for you to come

forward.”114 The final one is the cognitive approval which means that “... people get aware of the

way in which things are. [This] does not mean that people approve, but cognitive recognition can

produce behavioral consent.”115

4.2.2 Theorizing Democratic Legitimacy of the EU

In this chapter, I will be introducing the concepts of legitimacy, objects of legitimacy and the 108 Fallon, Jr. 2005: 1795109 Ibid.: 1796110 Ibid.: 1798111 Ibid.: 1800112 Ibid.: 1801113 Stryber 2001: 8701114 Ibid.115 Ibid.



variables of legitimacy with a close relationship to the EU.

First focus is on the concepts of legitimacy. The concept of legality is purely juristic issue. In other

words, it checks if the stated legal regulations have been violated. This concept depends on

judgments of national or supranational identities. Within the EU; the European Court of Justice is

that identity. “In connection with the EU, two dimensions of the legality can be differentiated,

namely the compatibility of the primary legal basis of the EU treaty with the national constitutional

law and, secondly, formal compliance with the law in the legislative and executive decision-making

process within and among the EU institutions.”116

Other concept within legitimacy is acceptance that is sometimes defines as the belief in legitimacy.

The legitimacy of a state solely depends on the support of citizens. To measure it empirically, public

opinion surveys can be used. In relation to the EU, it depends on citizen's support to their own

country's membership to the Union.117

The last concept is the normative justification is characterized by the subjective norms. That is the

reason, it is found the most controversial concept. In other words, even though a specific matter is

legally legitimate and protected by law, in case of not related to the individual's subjective norm, it

can still found to be illegitimate. In relation to the EU, the specialists argue that the EU should

increase the citizen's opportunities to decision-making process in order to close the gap of

normative legitimacy deficit.118

I will be focusing on the objects of the legitimacy by emphasizing on political system in the EU, the

Eu institutions and the Eu political decisions. By focusing on the political system of the EU, the

criticism of the individuals' subjectivity will be eliminated in order to express a profound

information on political system. It is mainly focuses on the constitution of the EU and its

institutional reforms.119

The legitimacy of the EU institutions are solely based on how they are applying the reforms of the

116 Wimmel 2009: 6117 Ibid.: 7118 Ibid.119 Ibid.: 8



constitution. In other words, when the institutions fail to adhere to applicable law, they “... do not

enable democratic participation.”120 On the other hand, the EU institutions are legitimizing

themselves “... by providing effective problem-solutions, or act and make decision with a high

degree of transparency.”121

The argument on the EU policy decisions are more empirical subjects. This can not be analyzed

with a whole perspective or just focusing on the institutions. Some decisions can be legitimized by

the certain variables of the legitimacy within themselves.122 To understand the legitimacy concept of

the EU, I will focus on the variables of the legitimacy. The main variables of the legitimacy are

participation, process and results.

The democratic legitimacy of the systems always depend on the variable participation. Citizens

participation to the decision-making process can be direct or indirect. To influence the formulations

of the policies can be done by electing representatives. Elections are free, fair and secret; but to

what extent those elections conduct a collective identity is the question. In other words, it is

clashing with the ideas of the normative legitimacy. Even in the EU terms, referendums or inclusion

of civil society to decision-making process still can be illegitimate according to the normative

perspective.123

Moreover, the variable process is dependent on institutional decision-making process. In this

subject with the new treaty promoting the rights of the European Parliament, has legally legitimized

the decision-making process. Some critical perspectives are based on the discussions such as “to

what extent national parliament should be more integrated into legislative process, to what extent

transparency in the decision-making processes and access to information play a role.”124

“The last variable makes democratic legitimacy of a political system dependent on the quality of its

results; that is a decision-made and their consequences resulting from the political process.”125 In

120 Wimmel 2009: 8121 Ibid.: 9122 Ibid.123 Ibid.: 10124 Ibid.: 11125 Ibid.



another saying, it follows a case that has included the citizen's participation is managed, how it has

processed and functioned and what is the result from it. In the EU level, the rule of law, security, the

creation of the permanent peace and economical growth, the compatibility of policies are guarantied

by the legal legitimacy and the belief in the legitimacy. However, the results of the process can

always carry the risk of being subject to normative legitimacy.126

4.3 Democracy

The concept of democracy is a very broad subject, that is the reason, I will be limiting areas of

democracy which are relevant to the thesis.

One of the studies on democracy claims that the concept has three aspects of democracy. Those are

“... democracy as a political system – or more specifically as a form of regime, democracy as a

prevailing norm for decision-making in political organizations and associational life [and]

democratic attitudes, tolerance, fair treatment at the individual level.”127

In this thesis, democracy's all aspects will be used; especially the normative and attitudes aspects.

Normative aspect of the democracy will be used as descriptive-explanatory component in this

research and the attitudes will be helpful with legitimacy to emphasize on the new constitution.

Dahl emphasizes on democracy by defining it as a complex phenomenon which have different

meanings. Especially, he focuses on various types of constitutions and underlines that different

constitutions can be democratic, moreover, there can not exist only one type of democratic

constitution.128 Furthermore, Dahl characterizes the democratic process and claims the democratic

process should include the effective participation between members of political parties, equal voting

system, consciousness of policies, control over political agenda (every political party should be able

to set the agenda of the politics freely and fairly) and all citizens should have citizen's rights as its

126 Wimmel 2009: 11127 Dengbol-Martinussen 1997: 196f128 Dahl 2001: 38



criteria.129

Furthermore, the democracy presents the opportunities such as participation, fair elections,

information transfer, control over the agenda of the country and the involvement of all adults to

political system.130 Also, Dahl claims that the classical democracy presents free jurisdiction,

fundamental rights, general freedom, freewill, independent moral features, humanistic development

and the protection of human rights and the modern democracies also presents peace and welfare as

an addition to those.131

Moreover, Dahl defines democracy as political system and dictates its core characteristics as “...

meaningful and extensive competition among individuals and organized groups for the major

positions and government power, a highly inclusive level of political participation in the selection of

leaders and policies, at least through regular and fair elections, such that no major adult social group

is excluded; and a level of civil and political liberties – freedom of expression, freedom of press,

freedom to form and join organizations – sufficient to ensure the integrity of political competition

and participation.”132

Democracy in developing countries is claimed to be promoted because it is seen as a response by

civil society, social movements or to globalization. The emphasis is on the empowerment. 133

Turkey' democratic movement is a response to globalization and her journey with the Union for

fifty years. As an addition to this, democratization is also promoted by the formulation of social

movements and the strengthening of civil society in any form. “It is important to note that in the

countries where decisive changes have taken place, these changes have gone in the direction of

strengthening the independent organizations of its citizens, whether in form of political parties or in

the form of interest organizations representing economic groups like the business community or

labor.”134

129 Dahl 2001: 39130 Ibid.: 40131 Ibid.: 48132 Dahl 1971133 Thomas 2005: 658134 Dengbol-Martinussen 1997: 185



One of the most important factors in democratization is power relations and interest conflicts

between the rural and the urban population. Ruling class can take over the needs and demands of

rural class use their rights. Generally the rural population is still agricultural and the income gap is

too high; whereas the focus of the urban population seems to be to maintain their rights and powers.

The contradictions and conflicts of interests between the urban and the rural populations weakens

the democratic institutions and process. 135

All in all, Dahl finally focuses on the question of “why” regarding the concept of democracy and he

defines ten most important advantages of the democracy. First one is that democracy aims to protect

the political system from the possible take over of dictators. Also, democracy provides fundamental

rights to citizens which non-democratic regimes would or could not provide. Democracy promotes

the privacy of citizens much more than other alternatives. Furthermore, democracy helps the

citizens to protect their core interests. Only a democratic government can give the opportunity of

choosing their destinies that citizens has the chance to live under the laws that they have chosen.

Only a democratic state would let its citizens to chose their moral criteria. Moreover, democracy

can promote political equality. Modern democracies decrease the possibility of wars. Finally,

democratic states grow economically faster than the non-democratic states.136

4.3.1 Conservative Democracy

Lately, the conservative democracy term had been used globally. It had carried different meanings

but most likely is is described as an attitude that the real profound meaning of the term is within a

political ideology which gives the term its conceptualizm. The early ideas emerged at the end of 18th

century and the beginning of the 19th century. As an addition to this, the reactions to the

transformation of political and socioeconomic concepts are the pillars of the conservative

democracy concept. Instead of French type of conceptions, the theorists promote the society's

characteristic and conceptualize the human beings as the free primary actors of the political life. 137

135 Dengbol-Martinussen 1997: 187136 Dahl 2001: 63-64137 Aydoğan 2003: 25



After the European school of theoristsi the theory has its philosophical roots in the Anglo-American

school with Russell Kirk. During that time period, the conservative democracy term gained an

authoritarian and moderate characteristics. The European school is criticized by the Anglo-

American school for rejecting all kinds of reforms and being too reactive to real world. The Anglo-

American school is considered to be more flexible and open minded about the the change. 138

Edmund Burke's traditional theories on the conservative democracy reject the interference of the

government but promotes the religious authority, traditions and beliefs of society. Moreover, the

pillars of his ideas are the importance of the religion, the risk of inequality with the suppose of

reform, the importance of rank and the division of labor and their necessity, the protection of private

property; the view of society as organism rather than mechanism and finally the crucial significance

of the past and its continuity.139

The difference between the European school and the Anglo-American school is driven from the

different perspectives of English and French revolutions. The Anglo-American school of theorists

defines the French revolution as the break of the past. Instead of that, they favor English revolution,

since the revolution changes the royal family tree and keeps the regime. They used traditional rules

to repair the relationship between the king and the society.140 Moreover, they claim that the French

revolution deletes their historical heritage and allows empty minds to build up the new regime. 141

On the other hand, the European school is more theocratic and describes the French revolution as an

unique event in the history and it showed the power of human beings by destroying all the

obstacles. Building up a nation and conquer of a nation has close relationship and that can be a good

example for social engineers of society.142

The classical conservative thought imposes hierarchy, aristocracy, the hierarchy between the state

and the society and the holiness of the religion as the main representatives of the theory. Th new

wave of conservative thought combines liberalism and the ideas of Burke and slides to democracy

138 Türk 2003: 123139 Zürcher 2003: 40140 Aydoğan 2003: 26141 Beneton 1991: 16142 Aydoğan 2003: 28



and open market economy. It is more sociological than philosophical. Turkish conservatism was

born within nationalism and what is described as sacred. They promote the open market economy

and economical relation's freedom in social life and they support an authority to restore the order.143

4.3.2 Secularism: Kemalist Secularism and the Modern Turkey Secularism

The concept of secularism is not easy to explain. The secularism in traditional sense holds three

aspects. “One, the autonomization of politics in the modern state, i.e., in “Christian terminology”

the institutional separation of state and church. Two, the decline of the cultural relevance that

religion plays in integrating modern societies. Three, the privatization of religion, reducing religious

beliefs to a means of the individual of mastering the contingencies of modern life.”144 Before I start

with the details of Kemalist secularism, it is important to mention that Turkish secularism is build

with the theory of justice, which is “...the state can favor no particular religion and no penalties or

disabilities may be attached to any religious affiliation or lack thereof. The notion of a confessional

state is rejected.”145 This is important to be established from the beginning, because sometimes

secularism in Turkey is presented as a specific arrangement between politics and religion to justify

the political Authority of Turkey's Kemalist state elite.146 Atatürk defined secularism as an crucial

part of modernization and social change. “Kemalist secularism is not to be understood as the

encouragement of atheism; however, neither was it simple matter of separation of religion and state

in order to promote westernization.”147 Moreover, secularization did not happen only in courts and

schools, but also encouraged the separate division “ulema” to function as facilitator of Islam.

Islam was not the target of Kemalist secularism but the fanaticism itself was aimed to be ripped of

from Turkey's society by the reforms. Some of those policies are:

• “Establishing the Directorate of Religious Affairs: Under this new institutional framework, all

religious staff had to be trained, employed, and controlled by the state.

• Adopting the Swiss civil code.

• Reforming the educational system: The Unity of Education law was one of the most powerful

143 Aydoğan 2003: 41144 Jung 2006: 4145 Mahoney 2010: 3146 Jung 2006: 5147 Landau 1984: 126



tools to indoctrinate the entire nation with the state ideologies of secularism and westernization. All

religious schools were outlawed, and even private institutions were subject to state-monitored

curriculum. All Islamic schools and private meetings to study Islam were outlawed.”148

Instead of focusing the past of secularism in Turkey, I will move on to 1982 Constitution and to

modern Turkey secularism. In 1982 Constitution, one of the articles included the irrevocable

establishment if the secular principle. It is dictated “...as required by the principle of secularism,

there shall be no interference whatsoever of sacred religious feelings in State affairs and politics”149

in the constitution. Furthermore, the article four declares the provisions of the first three articles that

“...the republican form of the state, its characteristics, territorial and national integrity, and the

declaration of Turkish as state language – are not subject to any amendments.”150 With this article,

secularism, nationalism and the political legacy of the Kemalist revolution would be protected from

upcoming constitution amendments.

Secularism in the modern Turkey is a little tricky. As an illustration, I will begin with some

background information on the current prime minister of Turkey, who had a heavy conservative

political history. Tayyip Erdoğan was sentenced to ten months of prison with the conviction of

“crime against the state” because of his speech in 1990. That might increase the question whether he

believes in secularism or not.

Another important information is secular institution of religion in Turkey. Turkey has Diyanet – a

Presidency of Religious Affairs that conducts provisions regarding religious matters such as

construction of mosques but not related to the matters of churches and synagogues. Moreover, it is

crucial to state that the modern secularism is not totally blocking the religion out, as an illustration

“the Turkish government regulates curricular materials for the mandatory religious instruction that

students receive in publicly funded schools.”151

“In some ways the Turkish model of secularism resembles the French conception of laicite

according to which religious institutions are regulated by the state in order to maintain the strict

148 Tatari 2004: 7149 Jung 2006: 7150 Ibid.151 Mahoney 2010: 4



separation of religious and secular power.”152 On the other hand, with the ruling of AKP, the debates

on Turkish secularism has heated. Especially, many Kemalist secularism supporters are openly in

argument about the headscarf. “Many secularists claim that political institutions in Turkey are under

threat by people who seek to institute religious based conceptions of political authority by

disguising these aims in secular garb.”153 The allowance of the people who use head scarf’s entering

to the political entities are defined as political symbols. Using headscarf for symbolism undermines

political system of Turkey and struggles that had occurred in the past of democratic movements.

“There is a long tradition of suspicion, based in part on a fundamental lack of trust within Turkish

civil society, that politicians with a hidden agenda are using democratic means to achieve a

religiously motivated agenda.”154

The new amendments of the new constitution were criticized for undermining the traditional

principles such as secularism. In other words, it is suspected to be have a hidden agenda towards

removal of fourth article in the Constitution. Moreover, the amendments on military and jurisdiction

backed up many conspiracy theories towards the new amendments.

On the other hand, it is also important to point out the view on Diyanet. In another saying, the

secularist's support to Diyanet shows that they are not against Islam if the institutionalized Islam

reaches the criteria of secularism “...that of promoting the republican ideals of the secular Turkish

Constitution.”155

Moreover, some secularists think within the modern Turkey, Diyanet's decisions are not carrying the

essential means to end of a secular state. “State policies with content that affirms the religious

convictions of some citizens while entailing the falsity of religious convictions held by others

violate the demand for equal treatment. Religious equality is a political value of great importance.

Politicians and philosophers who defend Diyanet have the burden of showing that, in the context of

contemporary Turkey, the equal treatment requirement as it applies to religion has to be temporarily

suspended as a means to a political culture in which liberal values can flourish.”156

152 Mahoney 2010: 4153 Ibid.: 5154 Ibid.: 4155 Ibid.: 5156 Ibid.: 6



For reader's friendly purposes, I will be focusing on headscarf issue a little bit more within

secularism. In debate, the headscarves are claimed to be political symbols and underneath it, there is

a message of abolition of secular political authority. Also, “...wearing a headscarf is a violation of

norms of civility which require citizens and state officials to abstain from invoking religious reasons

in debates over law and public policy and rescinding the headscarf ban will expose women to

serious pressure and thus erode the right to a fair opportunity to choose one’s own religious

convictions.”157 Within this subject, the other concepts such as democracy clashes with secularism.

As this is also the same criticism to referendum, that the result is from a democratic attitude, bu the

final output will or will not have hidden agenda of religious pressure on people are subjects to

normative studies. The fear from Sharia is causing suspicion. Secularism, in that case, is the only

fortress of modernization.

4.3.3 Political Fragmentation

The definition of the political fragmentation is generally explained within the concept of

geographical differences. In other words, when the jurisdictional systems of the areas changes, the

political fragmentation increases.158

The political fragmentation which is related to this thesis, is not driven from the geographical

obstacles or the diversity in jurisdictional systems. The term is driven from the non-democratic

treatments which have occurred in the process of the multiple party mechanism. Later on, the

constitutional law forced the politicians to leave and form a new party due to the resentment within

the political parties or ideological difference. Sometimes, it is also defined as the interest relations

had caused the fragmented politics, which lead traditional left and right wings of political arena to

spread in to small pieces.159

4.4 Empowerment and Participation

Empowerment and participation are two approaches which are emerged within the theory post-

157 Mahoney 2010: 7158 Weiher 1991: 31159 Özsoy 2000: 63-64



structuralism or alternative development. In this thesis, I will be focusing on specifically those two

approaches within the political participation and empowerment of the people through out the

political processes. However, I will give brief information on the post structuralism in order to

understand the influences on the participation and the empowerment.

The post-structuralism had effects on many disciplines such as politics, art and social sciences. The

theory is a “... generic term used to refer to all those theories that rejected the principles of

structuralism.”160 The theory mainly focusing on understanding the relationship between the

individual events and the actions. Even though the theory is too broad, it is crucial to point out the

Foucault's ideas on the power relations in order to understand the normative stance of this thesis. He

argues that social relations are determined by power, for instance between “... a teacher and

student; doctor and patient; parent and child”161. In this thesis, it will be between the political

officials and the society or the rural population and urban population. Moreover, he describes power

that can be in multiple directions such as bottom to top or top to bottom, unlike the structuralism.

Also, as it is stated in alternative development theory, this perspective is actor oriented.162 This

means that unlike the descriptions of structuralism, in post-structuralism citizens have a chose to

change their destinies. This is also similar to the democracy concept, where people are defined as

independent. People have the the possibility of choosing and changing the social structure.

Structuralism, on the other hand, describes citizens as helpless and their roles in the society is

defined and is not subject to change.

Furthermore, the approach of participation is used in many areas just like the post-structuralist

ideas. Participation is also used in political arena. First, the concept is emerged within the

development studies and spread to other principles. Basically, it can be summarized as the

involvement of the people and groups in to the decision-making processing that they can influence,

direct and follow the provision and implementations of the decisions.163 As an addition to this,

Oakley defines empowerment within the participation approach to social relations. In other words, 160 Sim 2001: 341161 Lavalette and Pratt 2006: 146162 Berg 22/09/09: 30163 Oakley 1991: 6



he involves the empowerment of the actors in the society who can address the needs of the people

who are not in ruler class or elites of the society.164

Mainly before political participation, this approach is related to the empowerment of people in order

to reduce poverty. With the political perspective it focuses on expression of “...the excessive rights

that a certain group of people has appropriated for itself in the social order.” 165 It has the similar

motive with democracy to establish the equality and bring an order to power relations.

Another actor oriented approach empowerment aims to “... enable people to develop skills and

abilities to become more self-reliant, and to make decisions and take actions essential to their

development.”166 Empowerment ideas are applied to politics and it requires the increase in the

number of political actors in the society. Specifically “... the rise of civil society as a collective

actor, working for political agendas outside the established framework of party politics.”167 Once

again, it promotes the democratization of the politics within the politics.

Furthermore, the principles of empowerment claims that the political party system establishes the

interest of parties, they neglect the needs of the society such as the problems of poverty,

unemployment and inequality. Friedmann believes that “... the attention should be given to

satisfying the “basic needs” of people for food, water and shelter rather than to simple growth

maximization and those who were concerned with the “outer limits” of the planet's resources.” 168

On the other hand, he emphasizes on the obstacles in society that are generally emerged because of

the variation of people's backgrounds, beliefs and traditions, he claims that “... [empowerment]

requires a strong state,”169 that the local governments should be in touch with the society to learn

their issues and central government can conduct surveys and questionnaires. Within the scope of

this thesis, that can be referred to referendum.

164 Oakley 1991: 21165 Sadan 1997: 123166 Karl 2000: 3167 Friedmann 1992: 1168 Ibid.: 3169 Ibid.: 7



As an addition to this, he claims that the interest of the rural poor and the urban poor is different.

The lack of understanding to the difference causes “... problems in spelling out the meaning of

“standard of living” and of “security””170. That can cause the isolation of one group of citizens or

people to give up on their democratic rights and freedoms in exchange of security, that the political

parties are failing to present.

4.4.1 Criticism

The first criticism on the post-structuralism is driven from the claim that the post-structuralism is

just a reaction to the structuralism, which is not a theory of itself.171 In other words, it is claimed to

be a mixture of theories such as deconstructionism, feminism and postmodernism. Moreover, the

criticism also made on the concept of political equality that the post-structuralism basically focused

on the gender equality rather than the general equality in the political arena. It is based on the

feminist research and lack of originality.172

Within the approach of participation it is criticized because of its lack of focusing on the power

relations. In other words, it is claimed that the the exercise of power between different partners can

be a source of conflict. There is always a risk of elite take over and neglect of rural class. 173 Similar

to the criticism of participation, empowerment is also criticized for being ambiguous on power

relations.

As an addition to this, empowerment is criticized for “... ambiguity and lack of distinction from

participatory, collaborative, stakeholder involving and utilization focused approaches, particularly

in practice.”174 Participation or empowerment of a specific group of people is questioned whether it

is democratic or not. Furthermore, empowerment principles are emphasized on small groups of

people, “... what happens when these groups try to address the broader society”175 is still ambiguous

170 Friedmann 1992: 10171 Young 1981: 5-6172 Lewis & Kanji 2009: 56-57173 Ibid.: 84174 Sharkey 2005: 27175 Ibid.: 28



and lack of normative study on that subject limits the involvement of democracy and legitimacy.

Moreover, the empowerment is claimed that “... can never be truly objective”176, because it would

always be promoting one single purpose. It is similar in the constitution amendments conflicts in

Turkey since the constitution promotes democratic applications; however, also new applications to

the jurisdiction system. Total participation of human beings are promoted, but to what extent or to

which purpose is still on the table and causes it to be conflictual.

4.5 Constructivism

“Constructivist insights as applied to Europe are shedding light on issues – the nature of political

order, the (re)construction of identity, the formulation of political community – of more general

interest.”177 The constructivism is not the theory which have started the studies on the EU; however

it has considered as the turning point of the studies since it is considered as the theory which shows

the impacts of the Union on European countries. The school of constructivism is based on four

different views; conventional, interpretative, critical/radical and post-positivist.

First one the conventional constructivism is emerged in USA. The theory “... examines the role of

norms, and in fewer cases, identity in shaping international political outcomes.”178 This view

suggests that the political outcomes of the EU is based on the common norms and identities in the

Union; however, the part of the identity is the problematic side of that theory. Second one is the

interpretative constructivism; that pointed out the role of language in constructing social reality. As

an illustration “... instead of examining what factors caused what aspects of a state's identity to

change, interpretative constructivists would explore the background conditions and linguistic

constructions that made any change possible in the first place.” For instance, Soviet Union's identity

is also studied by this approach, identity is examined by claiming its emergence from texts and

novels in Russian History.”179

Third school of the constructivism is the critical and radical one, that keep linguistic measures, “...

176 Sharkey 2005. 177 Jorgensen, Pollack & Rosamond 2007: 57 178 Ibid.: 58179 Ibid.



but adds an explicit normative dimensions by probing a researcher's own implication in the

reproduction of the identities and world he/she is studying.”180 That one actually focuses on the

critique of the conventional constructivism, where the theorists had failed the include the power

relations between the countries. It allows to add the past of the country's into the perspective.

The last school is the post-positivist constructivist theorists, that the theorists, “...instead of starting

with certain givens [and] exploring their causal impact on outcomes, they might explore the

discursive practices that makes possible certain EU norms in the first place.”181 That focuses on the

historical background and the patterns of growth in Europe, to explore the similarities which made

the EU to be formed at the first place.

Moreover, the background of the constructivism is separated into two different perspective. One of

them is the strong constructivism where the the ideas are based on the facts. For instance, “the

social practices in the laboratories that isolated a relevant phenomenon, the social practices involved

in the classification and explanation of that phenomenon, the organization of the scientific

community in and throughout which information about various claims is conveyed and circulated,

and so forth.”182 In other words, the strong constructivism is interested in the consequence of the

events rather than its cause. That includes the radical and criticized conservatism. The weak

constructivism is defined as the ideas about the causes of the phenomenon.

Moreover, some of the theorist claim that the basis of the constructivism is normative. Also, the

normative background of the theory suggests that there is not an absolute scientific norms in the

process. Especially, the causality of constructivism is broad subject and the answers are not always

singular. In other words, there is no right answer to theoretical debates but many answers with many

critiques.183

When the constructivism is focused on the EU, the “... constructivism, like rational choice, is not a

substantive theory of European integration per se, but a broader meta theoretical orientation with

implications for the study of the EU.”184 Within that concept, the theorist claim that the informal

180 Jorgensen, Pollack & Rosamond 2007: 58181 Ibid.:59182 Khalifa 2010: 46183 Ibid.: 50-51184 Pollack 2005: 365



norms and the rules has the effect of constitution among the citizens to shape their preferences and

identities, which they call logical consequentiality.185 The rational choice approach is driven from

the conventional constructivism and highly criticized due to its limitation of norms as the sole

constructor of the EU.

On the other hand, the post-positivist constructivist rejects the ideas of rational choice. The ideas

are criticized for being “up in the air” and that the theories are not based on real life experience.

They claim that norms are subject to change and even more, during the years the EU itself had

changed. In addition to that they describe the change in the EU is the common component to

explain the construction of the Union.186

Finally, the theorists claimed that the unification of the approaches are the best answers to

constructivist theories are aiming to answer. In other words, the theories can engage with each other

within four theoretical conversations;

“...competitive testing, in which competing theories are pitted against each other in

explaining a single event or class of events;

a “domain of application” approach, in which each theory is considered to explain some

subset of empirical reality, so that, for example, utility maximizing and strategic bargaining

obtains in certain circumstances, whereas socialization and collective preference formation

obtains in others

a sequencing approach, in which one theory might explain a particular step in a sequence of

actions (e.g., a constructivist explanation of national preferences) while another theory

might best explain subsequent developments (e.g., a rationalist explanation of subsequent

bargaining among the actors); and

“incorporation” or “subsumption,” in which one theory claims to subsume the other so that,

for example, rational choice becomes a subset of human behavior ultimately explicable in

terms of the social construction of modern rationality.”187

185 Pollack 200:365186 Ibid.: 366187 Ibid.: 367



4.5.1 Criticism

The first important critique on that theory is on the conventional constructionist’s failure to

underline the impact of identity. In other words, if the one identity in the European society

dominates the other one, the persuasion mechanism dominates the political outcomes.188 It is against

the European constitution, which promotes democracy and equality.

Furthermore, even though critical and radical theorists focused on the power relations between

countries in the Union, once again the post-positivist theorists failed to include the current position

of the Union after the last enlargement policy. Last enlargement allowed the Union to let members

which have not experienced the similar histories and development patterns in the past. It is

mentioned in the chapter 3.

Another criticism is on the differentiation of the weak and strong type of constructivist theories,

theorists claim that “...some middle path between strong and weak constructivism is possible.”189

the critiques are gathered around the social constructivism that both the consequences and the

causes are relevant to each other. Exclusion of one them is causing the diversity between the

constructivist schools.

Finally, the application of the theory to the construction of the EU is criticized between the different

schools. At the end they tried to apply constructivism with a combined perspective. On the other

hand, the conventional constructionist ideas are highly criticized for being non-democratic and

harming the principles that the EU is standing for.190

188 Jorgensen, Pollack & Rosamond 2007.: 59189 Khalifa (2010): 47190 Pollack (2005): 366



5. Analysis

In this chapter, I will be focusing on the main questions of the thesis in three parts. The first part

will focus on the theories and the applications of them into the real concepts. The second part will

be emphasizing on the problematic articles of the new constitution of Turkey within the perspective

of fragmented politics in Turkey. Finally, the last part will contain two sub sections and it will

explain the effects of the amendments on the current situation of Turkey, which will be supported

with real events.

5.1 Applications of the Theories

The theories which are explained in the chapter four are not always easy to apply to real life events.

The theories such as the constitution theory or constructivism are focusing on the concepts rather

than using approaches. That is the reason it will be easy to apply them to the reality.

For instance, the constitution theory focuses on the relationship between the constitution and the

Supreme Court. In its claims, it is dictated that the lack of public authority causes anarchy and the

constitution should play the role of descriptive and explanatory role as the rule setter to prevent that.

That is exactly the main reason of Turkey's previous constitutional changes. The lack of public and

political authority caused fragmentation in the society and in the absence of rules Turkish political

and economical system failed. For two times, Turkey had undergone military coups to maintain the

order into the society. After those coups, new Turkish constitutions were formed under the military

regimes.

However, it is important to focus on the criticism of the constitutional theory here, because the

constitutional theory had excluded the historical background of nations in its research. On the other

hand, it is almost impossible to explain the new constitution if the research is only limited to the

current amendments. Also, the theory excluded the concepts of legitimacy and a common

description of democracy. Even though the previous constitutions were favoring the rule of

Supreme Court and the importance of democracy, the referendums were held under the military



pressure and people voted to get through the pressure which was explained in chapter 3.2. It is

against the democracy concept and makes the amendments of the constitution legitimate to some

extent.

On the other hand, the constitution theory also focuses on the independence of the Supreme Court

but fails to make assumptions on the legislative system. For instance, Turkey's benchmark to enter

to the GNAT is 10%. It is one of the highest benchmark ratio in the world. Because of that last

elections only three parties were able to past the benchmark, and the one before that had only two

successors. Since the president can directly appoint four of the Supreme Court members, and GNAT

is appointing the president, how democratic or legitimate is the provisions of the Supreme Court can

be subject to question.

As another theory which is closely related to the constitution theory is the democracy. The concept

of democracy within the scope of this thesis focuses on it as the norm for decision making in

political organizations and associational life as it is explained in chapter 4.3. The universal

democratic constitution concept will be further be discussed in next sub-chapter. In this sub-section

I will be focusing on the universal democracy and the type of democratic differences in Turkey.

Most crucial separation point is the role of religion in the democracy. The universal democracy

principle dictates that favoring one religion is not democratic. On the other hand, Turkish

government is formed by AKP who defines themselves as the conservative democratic party. The

conservative democracy is explained in chapter 4.3.1 profoundly. Turkish conservative democracy

is attached to nationalism and the sacred principles of the religion. For instance, the religion of the

citizens is written in their national ID cards. As it is defined in the theory, Turkish government also

promotes the rule of the Supreme Court. On the other hand, the importance which the government

had put on religion awakens the fear of sharia that explained in chapter 4.3.2.

CHP's counter arguments against the conservative democracy is mainly based on the universal

values of the democracy. Especially, in Turkey which is multicultural country, mainstreaming one

religion might cause exclusions. That is the reason the Kemalist secularism is favored by the left

political parties. Kemalist secularism indicates that the nation can not favor one religion and

political organizations can not be attached to religion. That ideology rejects the political symbols to



be used in governmental institutions such as headscarf. Under the AKP ruling, headscarf became

legal in universities and the arguments of head-scarf’s allowance to GNAT is still on the table. The

meaning of the head scarf issue is extremely normative. As I had mentioned in my methodology, I

had been raised with left side political views in Turkey's so-defined the modern city Izmir, the

fortress of CHP. In my perspective, there might be some clothing, but the head scarf had been and

will be an issue of symbol for religious propaganda. The allowance them to the universities is

against the Kemalist secularism.

Also, the democracy theories claim that every political and social group should have time to express

their views. The theory fails to include the benchmark problem into their studies. In Turkey, many

of groups of people are not presented in the GNAT due to this problem. Even more, citizens are

aware of that factor, and they feel obligated to chose between the major parties. The other parties

generally can not even get close to the benchmark. Also, the fragmentation in the political parties,

especially in the left side causes the votes to be separated and it gets too hard to unify them.

As an addition to this, other aspects of the conservative democracy is similar to the universal

principles of democracy. Turkish conservative democracy also favors fair elections. This also brings

the approaches of political participation and local empowerment. The democratic approaches

automatically promotes those principles. This is also similar in Turkey, for instance, the elections,

the referendum and the public opinion surveys are aimed for those approaches.

On the other hand, the criticism of those concepts are also relevant to this thesis. The political

participation can always have the risk of being dominated by the elites of the society which is

explained in 4.4.1. For instance in Turkey, during last elections AKP distributed coal to the

Anatolian cities. Meanwhile, CHP's election strategy was based on secularism. Turkish income gap

causes citizens to chose between their livelihoods and their ideologies. Many of the citizens reaction

to CHP's strategy was that it was ignorant of Turkish economical situation. The western major cities

of Turkey generally has higher incomes, that was the reason why, CHP had a victory over those

cities. As it is mentioned in the 4.3, where the urban population was looking for rights whereas the

rural class was looking for livelihoods. On paper, it is safe to say that the elections were democratic

and legitimate but the motive behind those votes are subject to questioning. The legitimacy of that

elections are again related to normative legitimacy.



The implication of the legitimacy concept is a bit tricky. The legitimacy of the new constitution is

legitimate within the concepts such as attitudinal approval, behavioral approval or the cognitive

approval. In Turkey case, the right wing politicians and the true supporters of AKP has the

attitudinal approval. For instance, because of the article on collective bargaining, the unions votes

“yes” to the referendum, that is behavioral approval. The citizens who promotes Kemalist

secularism and the universal principles of democracy has the cognitive recognition, they are aware

of the current situation, but within democracy, the rule of law is valued more than personal

ideologies which creates behavioral consent on the amendments.

The legal legitimacy of the constitution is legitimate according to the theory. The lawful is always

legally legitimate. On the other hand, the normative legitimacy is a different perspective. Every

legal legitimate components can not have normative legitimacy. Moral legitimacy theorist claim

that people who have different beliefs and norms describes subjects differently. One may find one

of the articles in the amendments legitimate and the other one illegitimate. It is important to

underline that people describe subjects to have normative legitimacy if the subject is legitimate

within their own beliefs. Beliefs and norms can be affected by education, lifestyle and background.

The normative legitimacy is important but subjective in real life. The normative legitimacy will be

helpful while focusing on the interpretations of the amendments by the political parties with

different perspectives. It is also important tool to examine the scale of the political fragmentation in

the society.

As an addition to the whole, the constructivism should be used in order to examine the accession

period of Turkey and the new constitution's compatibility. Constructivist also divided into groups

while they are focusing on the EU. The theory is not the fundamental theory to theorize the Union,

but it is useful for the enlargement policy. For instance, the conventional conservatism suggests the

similar identities are the obligatory components for the Union membership. However, the identity

implicates the common norms and beliefs. Within this perspective, Turkey can not be a member,

since the Turkish identity and mainly the religion is completely different from the Europeans. It is

important to specify though that excluding one nation because of its religion or background is

discrimination and it is non-democratic. It rejects the European Union's fundamental pillars such as

democracy and freedoms. As an addition to that, the last wave of enlargement caused various



troubles to the EU even though the countries had common beliefs and partially similar identities.

Because of the last wave enlargement policies, the EU changed its policy to a much more harsh and

strict policy.

As it is suggested in the constructivism, the theory should be used with many approaches. For

instance, the last treaty aimed to neutralize the power struggle within the Union, which is stated by

the critical and radical constructivism. Meanwhile, the post-positivist constructivism is favored

because, the theory suggests that the EU to focus on the practices which make the certain EU norms

possible in the first place. It is mainly based on democracy, protection of human rights and

promoting fundamental freedoms. Driven from that, the new constitution of Turkey is approven by

many EU officials since in many articles the democracy concept is issued and promoted. However,

the diversity of interpretations of amendments and the situation of the jurisdiction system and the

enforcement pace of the amendments are still worrying Turkey's accession to the EU.

5.2 How does the fragmented politics of Turkey plays a part in conflictual passing of the new constitution within a normative perspective?

As it has been explained in chapter 4, the normative legitimacy of the articles in the new

constitution has various interpretations. Main reason is that the political parties defines legitimacy

within their normative understanding of the governmental structure. After the package of new

constitution was presented because of the fragmented feature of politics in Turkey, the oppositions

CHP and MHP rejected the amendments. Moreover, within AKP, some of the amendments were

criticized heavily. CHP mainly expressed their opinions as some of the articles were necessary

whereas some are non-democratic. MHP's objection was built upon nationalism and they claimed

that the passing of the new constitution would be the beginning of the non-democratization

movement.191

AKP's inner conflict was on the article of the “positive discrimination against women and children”

which was explained in chapter 3.3. Some of the members of the party claimed that the article have

implementations within Islamic and jurisdictional perspectives. On the other hand, the government

supposed to protect rights and freedoms of all citizens and stating the women and the children in the 191 http://www.euractiv.com.tr/politika-000110/article/cemil-cicek-anayasa-paketini-gorucuye-cikardi-009442



article might be interpreted as discrimination. Even though this article was aiming to protect the

structure of the family in the Turkish society. In Islamic perspective, it is claimed that in case of

heritage the men are favored and in the case of marriage, the women are indicated to be paid

“mihir” for getting married. Islamic officials claim that the collective look to religion is more

reasonable, because the issue of equality is not mathematical. Especially, women in the work place

is claimed to be overprotected since it is not the main priority of women, if there should be a

privilege it should be given to men in the work place. They claimed that this article was a way of

trying to get the praise of Europe.192

On the other hand, alongside to Islamic perspective, within AKP, the jurists emphasize on the

meaning of the article. They claimed that the the ideology on this article might be interpretable

variously. It might be understood as the men and the women are not equal. Even the women is

positively discriminated, the men are still left behind. Within, legislative manners, it is against the

constitutional theory. Also, they claimed that when the ratios of women work force is taken into the

consideration, the positive discrimination against women is needed. But this article will not be able

to solve the problem of violence against women in Turkey, which will be explained in the next

chapter with facts of recent events in Turkey.

Moreover, CHP's concern on amendments were not only that chapter. CHP had claims on, for

instance the article 20 in the new constitution, that the personal information on citizens would be

gathered and would be deleted if there was a sufficient amount of demand from the citizen. CHP

claimed that in the existed constitution, the private lives of citizens were already protected. The new

provisions are implementing the sense of “a hidden thread”. This article will legitimize the listening

private conversations and using them if there was necessity. It is against the universal human rights

and fundamental freedoms. Furthermore, data would be collected by the commission which will be

formed later by the ruling party, in today's case; the AKP. Ironically, people, who voted for their

political representatives, will be able to controlled by the ones that they have elected. In a

democratic regime, the fear of being tracked down will emerge. This article is non-democratic.

Solely, the inspections on people's private lives is not a democratic movement.

Furthermore, the 23th article on banning citizens to go out of the borders of Turkey also have its 192 http://www.ozgundurus.com/Haber/Soylesi/01082010/Anayasa-Degisikligindeki-Pozitif-Ayrimcilik-Maddesi-

Tartisiliyor.php



flaws. To be more specific, this term is used in criminal cases to avoid people to flee from

jurisdictional legislation. It includes various types of crimes such as murder, robbery, crimes against

the state. People who are standing trial because of those crimes will be able to leave the country

unless the trial is finalized. It gives people opportunity to flee and it affects the jurisdictional system

in Turkey. In that sense, people who have committed those crimes including tax fraud would vote

yes for this article. However, the normative legitimacy is open to questioning. Is it more democratic

or is it lowering the power of the constitutional law.

As an addition to those, the allowance for workers to the various numbers of unions is another issue

in the new amendments. The argument on this subject is created by CHP that this article is not

crucial nor practical. The allowance is claimed to be creating a active various interest groups along

side with the political power. By this action, the government will have control over the unions and

the monthly payments to several unions would overestimate the budgets of the unions. In other

words, the the unions might face with the treat of losing their initiatives within the union. If the

members of the union are not committed to the initiatives, there will be a risk of losing the upper

hand for workers' rights. Moreover, this article takes away the right of legislative action by the

union on behalf of their members since the members are not solely members of the one union. In

this perspective, the CHP advised worker's to rethink and veto this article.193

Similar to this article, also the article on the collective bargaining has been criticized. The existing

constitution gave the government officials the right of collective meeting with the government.

Moreover, the right to strike was also attached to that right. With the new amendment, the right to

strike will be completely removed from the constitution and as an addition to this, the word

“meeting” has been changed to “bargaining”. According to this new provision, when both sides can

not reach to compromise, the conciliation committee would make a provision on behalf of them.

From this point of view, it is actually a step backward for the government officials. As an addition

to that the right to strike for workers also changed according to the new provision by stating that the

possible damages from the strike of workers will only be the responsibility of workers. In that

sense, the provocations to workers will only damage the workers itself. The unions will take no

responsibility in those cases anymore. The claims on this issue is evolving around the fact that the

rights of the workers will be diminished by promoting the unions which will act as a feudal network

193 http://www.r-demir.com/makalelergsboncekilergoster.aspx?m=156



which controls the workers. As it is mentioned in the criticism of empowerment and participation,

the possibility of the manipulation to the union is on the table.

Also on the article of the right to petition is conflictual, since the existing constitution gave the

citizens the right to petition through the petition committee inside GNAT. The only problem here is

the new system is blur. In other words, the citizens who act as the public defenders will supply

petitions but how will this new committee which is formed within AKP ruling and protected by the

constitutional law, evaluate those petitions is vogue. Since the administrative courts does not have

the right of conducting inspections under the reason of “pertinence”, it is important that this article

should include the path of the inspections towards the public inspectors' petitions.

Furthermore, opening up the high military council to the civil inspection might look democratic at

the first glance. However, how the civil courts will have the understanding of the militaristic

processes is open to criticism. Especially, the civil judges can have different interpretations of the

militaristic trials. If the civil jurisdiction involves in the business of the Armed Forces of Turkey,

especially, the civil jurisdiction is accused of being one sided, the results can be drastic for the

future of Turkish Army. As an addition to that, the crimes including the state security, constitutional

system and order are not subjects of the military courts. In Turkey, the government and the military

is in open conflict and letting the civil courts to take the cases of the military courts is subject to

questioning. This article is posing as reducing the power of military courts, however, the recent

situation in Turkey demonstrates that it is also attacking the structure of the military. CHP is also

promoting reduction of political power of military, but the reducing the power of the military courts

is not democratic and suspicious, if the recent Ergenekon Trial is over-viewed, which will be

discussed in the next chapter.

The most important conflict is arisen from the new proposed structure of the Constitution Court. It

is crucial because the proposed structure leaves the authority of the Constitution Court to the hands

of executive system. The reason of it is that the large number of the members of Constitution Court

is chosen by the executive board which is the government. Within that structure, it implies that the

governments beliefs and norms change, the judges' stance on the issues also will be changed. It is a

violation of many concepts such as democracy and legal legitimacy. In other words, the

Constitution Court would lose its independence. Moreover, the appointed members of the



Constitution Court will not be necessarily chosen from the top jurists, random professions will be

applicable for the job. For instance, one of the institutions in Turkey after the 1982 military coup is

the institution of higher education. After the closure of the institution because of corruption and aim

of getting rid of the 12th military coup institutions, the members of that institution had been

appointed as members of the Constitution Court. It is pointed out that when an institution is closed

because of the high level of corruption, it is puzzling to appoint its old members to the Constitution

Court.194

Also the new provisions on the High Council of Judges and Prosecutors was conflictual. It is

conflictual and non-democratic because non of the democratic states in the world had the minister

of Justice and its secretary as the members of the High Council. When the minister is the president

of the council, it implies that there is political intervention to high jurisdiction. In other words, it

increases the effects of executive branch to the High Council and the provisions of the High Council

is driven by the executive branch. However, in a democratic state, the jurisdictional branch is

supposed to be independent from all political effects. This is against the concept of democracy

whether it is universal or conservative perspective.

CHP defines the spirit of the constitution as broken in many aspects. It is claimed to be prepared

based on private interests rather than universal constitutional principles. The nature of the changes

are based on civil control rather than civil protection. Moreover, instead of pluralistic democracy,

the majority dictatorship is promoted. Instead of promoting the superiority of judges, the superiority

of government's judges are promoted. The jurisdictions' three main pillars are shaken:

independence, neutrality and freedom. Final claim is that the new constitution was supposed to

unify the Turkish society and create a collective democracy based constitution; but instead of that it

is causing diversity and discrimination in the society.195

As an addition to this, the other opposition party MHP also rejected the new constitution. Mainly

they had claimed that for more democratic state, there is a clear need for a new constitution.

However, they claimed that the new constitution would only be more discriminating. In other

words, they combine their views with nationalist views and reject the constitution mainly because

the new constitution will allow the democratic opening for Kurdish people. Kurdish problem is not 194 http://www.r-demir.com/makalelergsboncekilergoster.aspx?m=156195 Ibid.



in the scope of this thesis, as a consequence I will not be focusing on that opposition.

Their most important claim is that AKP manufactures already existing constitutional laws within a

compromising language, and adds non-democratic features. They dictates that many of those new

amendments are already in the social state principles and Turkish Criminal Law. Especially, the

amendments on elderly and disabled citizens are aiming to create a pretty picture because Turkey

had been a member of United Nations and Turkey had edited those chapters in order to reach the

conformity for membership. The existing law had not been enforced by AKP government.196

Furthermore, the new constitution had been criticized for leaving the crucial problems such as head

scarf issue, the problems of the graduates of imam preacher schools, unequal opportunity within

education system. For instance, before the draft of the new constitution was prepared, MHP

suggested to include head scarf allowance for female student into the universities to “positive

discrimination” article. On the other hand, draft of that provision was rejected in the GNAT. Also,

even though the new constitution opens the jurisdictional provision towards the ones who were held

responsible for 12th military coup, AKP rejected to work on the “timeout” principle in the

jurisdictional system. Eventually, that allows the responsible citizens to exempt from the trials.

Moreover, just like CHP's opposition, MHP also reacted to ban to strike for government officials.

They claimed that during 2002 elections, AKP had promised that to the officials, however, within

new amendments, they deliberately excluded that article. The collective bargaining would result no

different than the previous provision of the collective meetings. Without the right to strike, the

collective bargaining will not bring healthy results, since in a case of conflict, the conciliation

committee which is formed by AKP government will say the final ruling. Furthermore, they have

claimed that the Public Inspector Organization will pose as democratic, however, because the

members of the organization will be appointed by the ruling party, it will be directly chosen by

AKP. Again, it is non-democratic. In other words, it will increase the rate of AKP stuffing in the

GNAT.

The difference of the oppositions of CHP and MHP is on the article, which makes the closure of the

political parties harder. CHP dictates that it was a necessary amendment that will increase the scale 196 http://www.euractiv.com.tr/politika-000110/article/mhpden-agir-uyari-anayasa-deigisikligi-ile-demokrasi-krizi-

cikar-008734



of democracy in Turkey. On the other hand, MHP defines it as an attack to nationalism of Turkey,

that the article allows Kurdish separatist organizations to form a party and be in GNAT. As an

addition to that they were concerned about the fact that when citizens who had committed crimes

against state in the GNAT will gain the exempt from jurisdictional trials. MHP claims that it will

increase the rate of separatists, crimes against state and citizen who cooperate with the terror

organization PKK in GNAT. MHP claimed that AKP is using the democracy concept as a shield to

build a majority dictatorship. Even more, they had added that the president of the country is

invisible and works as a government official under AKP. Because of the number of members in

GNAT, AKP uses the majority to control legislation. It is a criticism of benchmark level for GNAT.

As an addition to this, MHP claims that the new provisions on the High Council of Prosecutors and

the Constitution Court will give privilege to AKP to control jurisdiction, along side to its control

over legislative and executive branches . In other words, AKP will be free from political trials if

they have power to appoint their own judges to the highest courts. Also, the new amendments add a

sentence to the constitution 'the provisions of the Constitution Court can be inspected' which is

against the structure of the Turkish Legislative History. Within this perspective, it allows the

citizens who had been banned from the political life to return to politics. Even more, since the

Minister of Justice would be the president of the High Council of Judges and Prosecutors, the

jurisdictional system is suspected to be compromised. Finally, MHP also rejected the amendments,

because of the loosening on the provisions of bans to go abroad. MHP believes, the new provision

on that subject is encourages citizens to commit crimes.197

On the other hand, even though the provision on the jurisdictional system is heavily criticized, the

high level of judges gave an public statement that no matter who decides the appointments to the

High Council of Judges and Prosecutors or the Constitution Court, the judges and prosecutors

should be trusted because they are committed jurists. Instead of criticizing the sided judges and

prosecutors, they claim that the flaws in the Turkish Jurisdictional System should be spotted. 198

However, in a political arena like Turkey, especially with her past, it is not easy to trust people's

professionalism or goodwill they have for democracy and the solely sovereignty of the rule of law.

Next sub-part will focus on the current situation of Turkey, after the conflictual passing of the new

197 http://www.euractiv.com.tr/politika-000110/article/mhpden-agir-uyari-anayasa-deigisikligi-ile-demokrasi-krizi-cikar-008734

198 http://www.usak.org.tr/makale.asp?id=1670



amendments even though it had been highly rejected by two opposing political parties.

5.3 After the constitutional referendum in Turkey: What are the effects of the constitutional amendments to the current situation of the concepts; democracy and judicial system in Turkey regarding the EU membership accession?

After the conflictual passing of the new constitution, the arguments on jurisdictional system and

democracy are heated. Within the scope of this thesis, it is not possible to emphasize on every result

of the constitution; however, I will try to focus on the most problematic ones. This sub-chapter will

be divided into two sub-sections. First I will focus on the jurisdictional system, especially, the

Ergenekon Trial which is also an important concern for the EU accession period. Secondly, since

the new constitution is presented as a more democratic guideline for rights of women and

fundamental rights such as the freedom of speech and empowerment of the non-governmental

organizations such as worker unions; I will focus on the latest situation on those areas.

On Jurisdictional System;

In chapter 3, I have profoundly focused on the amendments and in the previous chapter the

opposition parties' reactions to the changes are presented in order to explain different perspectives

on militaristic courts and the Constitution Court. The main focus in this chapter will be on the

Ergenekon Trial, which is considered as the fight between the AKP and the military.

The Ergenekon Trial has started in 12th June 2007, after the discovery of hidden weapons in İstanbul

and later the investigation had been started with İstanbul Head Prosecutor Zekeriya Öz's orders. The

first trial held in 20th October 2008. “The suspects are accused of membership to a criminal

organization that allegedly plotted to overthrow the country's Islamist-rooted AKP government. The

plans included spreading chaos and mayhem, plotting an armed uprising, and staging a coup. There

are also suggestions that members might have been involved in the attack on the Council of State in

2006, and perhaps in other political murders. The indictment, made public in June 2008, claims

Ergenekon is behind a series of political assassinations over the past two decades. Suspects have

been accused of being members of a so-called "terrorist organization" which was planning other

bombings and assassinations designed to force military action and topple the Islamic-oriented



Justice and Development Party (AKP) government.”199

The nature of the trial is highly criticized, because the trial is emerged right after the trial against the

AKP concerning the closure of the party. The military members claimed that the trial was gathered

due to weaken Turkey's army. Mainly, they claimed that the weapons which were discovered in

various spots could not be buried because when the weapons are buried, their functionality is

damaged. On the other hand, the trial went deeper, and there were some traces of illegal gatherings

around retired military officials in order to plan a coup if there would be one that is necessary. It is

one of the reasons as it explained in chapter 3 for the EU to alert the Turkish government about the

involvement to the Turkish politics. That is against the universal principles of democracy.

The trial based on the assumptions that the Ergenekon is a armed organization which plans a coup

against the government by arming the civil society. The organization was accused of being

responsible for attempt to bomb the newspaper “Republic” and assassination of Mustafa Özbilgin,

the former member of the State Council. Also, attempted assassinations to the Nobel prize winner

Orhan Pamuk, the writer of Yeni Şafak newspaper Fehmi Koru, Diyarbakır Mayor Osman

Baydemir and DTP president Ahmet Türk are accusations towards the organization. Those

accusations are not proven and still in trial.

The reactions towards the trial divided Turkish society. Main reactions evolved around the idea of

showing the Armed Forces of Turkey as terror organization and weakening it. Due to the timing and

the citizens who are in the custody, the trial is recognized as political. Because of the invasion of

citizen's privacy by wiretapping, it created fear within society. Especially, with the new

constitution's article on people's privacy that the wiretapping can be used if it is defined as

necessary. The citizens are scared of using telephones. Moreover, the trials are suspected to be

unfair since the trials are held in jail and only one company is allowed to watch the trials as press,

moreover, the defendants are limited to have three lawyers and the citizens who are under arrest and

have pending trials would be stand trial separately. Finally the durations of the trials are criticized

heavily since the defendants Kuddusi Okkır had stood trial for a year and after five days of his

release he passed because of a heart attack.200

199 http://www.ataturktoday.com/RefBib/ErgenekonCaseSummary.htm200 http://www.ataturktoday.com/RefBib/ErgenekonCaseSummary.htm



After the new constitution got into force, the EU presented their concerns on political criteria on the

length of pre-trial detentions. “The time lapse between arrests and the presentation of indictments to

the court in these investigations fueled concerns about effective judicial guarantees for all

suspects.”201 In other words, if there is a planned coup or armed organization, the trial would

promote the democratic institutions and the rule of law. On the other hand, the pre-trial period

within this case is increasing the concerns since the proceedings are ignoring the judicial process

and the rights of defendants. So far, 270 people including 116 militaristic officials were charged.

Moreover, so far, non of the defendants are sentenced to any punishment. As a consequence of that,

the concerns on the trial had been increased that the trial is weak and it might have traces of the

AKP's hidden agenda.

Also, especially after the passing of the new constitution, on 31st March 2011, the prosecutor of the

trial was expected to give his provisions on important defendants who are former members of the

Armed Forces of Turkey, but instead of that the prosecutor had been promoted and a new prosecutor

was appointed to the case. The final ruling on that part of the trial is postponed. In other words, the

custody period of the defendants, once again extended. That action increased concerns within the

AKP also. The member Bekir Bozbağ gave a statement and claimed that if the prosecutor Zekeriya

Öz did not request his duties to be changed, then this action would increase the delays in the trial.

Even though the prosecutor was promoted, it reflected on the trial process and this is non-

democratic. Furthermore, Bozbağ claimed that he is a jurist and he was deeply irritated with the

action since he believed that this is undermining the power of the rule of law. The new constitution

gave the right of appointing the prosecutors to the GNAT, and the use of that to detect the on going

trials are harming the functioning of the democratic institutions in Turkey.202

The former prosecutor Zekeriya Öz claimed that the Ergenekon trial would not end after his

contribution to the trial is ended. He had been claimed as an exemplary jurist, who was supported

by every political party in GNAT. Some opposition party members claimed that even though he was

promoted, it was meant to stop his ruling on the Ergenekon Trial, since the trial is not reaching to an

end. On the other hand, the other side of the argument claims that Öz had been a true face of

democratization in Turkey, and as a necessity of democratization, he was supposed to be promoted.

201 Turkey Progress Report 2010: 7202 http://www.euractiv.com.tr/politika-000110/article/ergenekon-savcisi-zekeriya-ozun-gorevi-degistirildi-016915



The timing of the promotion is irrelevant with the accusations.203

Overall, after conflictual passing of the new constitution, one of the main concerns was related to

the appointments in the High Council of Judges and Prosecutors. The appointment of Zekeriya Öz

supported the concerns. The new prosecutor had not reached to a provision, but the delay in the

process is not helping the democratization process in Turkey regarding the EU membership. Even

after the constitution, Turkey still needs to define procedures of its legislation with European

standards.

On democracy regarding the fundamental rights, political participation, freedom of

speech, secularism and the claims of the hidden agenda of AKP

One of the very heated arguments one the new constitution was on the article which is about the

“positive discrimination against women”. This article was assumed to improve the role of women in

Turkish society and develop the ideology of “family” within society. Unfortunately, the article was

defined inadequate that the violence against women had raised drastically. To be more persistent,

the latest study in march had shown that 48,5%204 women in Turkey are subject to violence.

Moreover, the murder of “Ayşe Paşalı” in 7th December 2010 took the situation up to a new place

and started new concerns when the murder was investigated. The first attempt of Paşalı to divorce

her husband was in 2006, but the family members tried to smooth the relationship and she decided

to withdraw her requests. In 2009, Paşalı's husband beat her and raped her over a discussion. In

trial, he declared his regret and the court let him go. In 2010, they got divorced. Paşalı started to get

threads from her ex-husband, couple of times the husband kidnapped her. She applied to the court

and the court rejected her protection plea because the marriage was no longer binding. On 7th

December 2010, Paşalı was murdered by her ex-husband.205

203 http://www.postmedya.com/news_detail.php?id=35751204 http://www.setimes.com/cocoon/setimes/xhtml/tr/features/setimes/articles/2011/04/11/reportage-01205 http://www.internethaber.com/ayse-pasali-cinayeti-davasinda-karar-346460h.htm?interstitial=true



This case showed the situation in many other aspects. One of them is the inefficiency of the police

force and the decision-making of the court. If this murder did not take too much place in the media

and arisen questions, Paşalı's murder was not going to be charged as “intentional killing”. The

violence against women was not in the new constitution and the “positive discrimination” did only

concern the work place environment. After Paşalı's murder, many other stories like hers started to

get louder in televisions and newspapers. The non-governmental organization related to violence

against women “Mor Çatı” had found the opportunity to increase the awareness of the citizens.

After that tragic event the Criminal Law had changed, and the crimes of violence against women

became subjects to the Central Criminal Court and the punishments got harsh. Paşalı's ex-husband

stood trial for intentional murder and he sentenced to lifetime prison. However, this is not presumed

as victory since the violence against women is still a big issue in Turkey. With 77 million

population, there are only 66 shelters for women.

Another threat to democracy is pointed out by the EU is related to the Ergenekon Case and the

actions against the freedom of expression. After two journalists Nedim Şener and Ahmet Şık was

taken into custody, the EU Commission gave a written statement. The statement claimed that the

latest actions of Turkey against freedom of speech had raised strong oppositions. Even though the

constitution was a step into right direction, the legal legislation of that area should be re-arranged to

reach the criteria of the EU. Those actions against journalists are non-democratic. Meanwhile, the

prime minister of Turkey gave a speech and clarified that the custody actions was not the AKP's

request but the Constitution Court which have new members appointed by the AKP.206

On 25th March 2011, the Constitution Court decided to ban Ahmet Şık's unpublished book. The ban

emerged a lot of democracy related questions. In none of the democratic states, a book which is not

even published could have been banned from public by the Constitutional law. The book was found

by the police force while Ahmet Şık was investigated through the Ergenekon Trial. The violation of

personal privacy and the freedom of speech a new level of lack of democracy in Turkey. The plot of

the book evolves around a religious leader Fethullah Gülen and how he got promoted within his

206 http://www.dw-world.de/dw/article/0,,14889169,00.html



society. 207

After the passing of the new constitution, the progress report of Turkey dictated that the freedom of

expression is not effected by the constitution. However, the decision of the Constitution Court

against journalist are raising concerns. Moreover, the report indicated that there are still large

number of cases related to this subject is submitted to European Court of Human Rights. They

defined the press and journalists to be on a critical level, especially after the critical claims to the

government which was made by Doğan Press Group was subject to the tax fine. 208As an addition to

that the Swedish parliament claimed that there are 27 articles in the new constitution which causes

the violations against the freedom of expression. Moreover, the arrest of two journalist within the

Ergenekon Case is highly criticized by British and Swedish parliaments. Swedish the Foreign

Affairs Minister Bildt gave a statement and he claimed that the arrest of two journalist increased the

concerns higher which will affect Turkey's position in the accession period.209 Overall, the

prosecutions and convictions of the Turkish journalist, media owners, writers and publishers had

been increased rapidly. The constitutional law does not guarantee the rights of the citizens. The

internet web page bans were also a concern in the report, which has taken a new level within last

couple of months.

On 2nd May 2011, Turkish freedom of press had one of the hardest impacts to its independence. The

new “Media Law” was passed and it defined new restrictions to internet usage in Turkey by the new

Constitution Court. Within the Regulations on Consumer Rights in Electronic Communication

Sector, the law is defined in the chapter the procedures and principles on the use of the internet

safety. The law indicates four different types of filtration; family, children, local and standard

packages. Every internet user must chose one between four. This filtration process is the similar

process which had been used in public usage of internet, that allows users to access only the

authorized web pages that the server had chosen before. If the internet user tries to discard the

filtering, it will be considered as crime. The law will be in force in 22nd August 2011.210

207 http://www.etha.com.tr/Haber/2011/03/24/guncel/yazar-ve-yayinci-orgutleri-dusunce-ozgurlugune-uyu/208 The Progress Report of Turkey 2010: 19-20209 http://www.haberfx.net/isvec-parlamentosunda-turkiyede-dusunce-ozgurlugu-tartisildi-haberi-374391/210 http://www.hurriyet.com.tr/planet/17808137.asp?gid=381



The Technology and Communication Committee has not set the criteria of the filter yet. However,

the Constitution Court dictated that it is solely up to the committee. Once again, the committee will

be appointed by the government in force. Around the globe, this implication is only used by the

countries which the internet defined as “weak”; China, Cuba and Iran. European Security and

Cooperation Organization, world media representative Mijatovic presented a statement on that

subject. He claimed that this implication limits citizen's ability to reach any information that they

need on the internet and also it gives the authorities to establish boundaries within internet. Internet

users supposed to be able to decide what they want to search within internet and democratic states

should not use filters.211

The internet ban had been a subject to the EU concerns for a long time, since many of the web

pages were banned in the internet. However, the internet filtering is taking it to a new level. It is

against to the concepts of democracy and even though it has legal legitimacy in jurisdictional sense,

the normative legitimacy suggests that it is rejecting the universal principles of democracy. Within

the constructivism, the one of the norms and principles which allows the Union to be in the first

place are the freedom of speech and Turkey's latest situation on that causes many criticism about the

membership to the EU. It is important to underline, that the Constitutional Court is the creator of

that law, and the Court is appointed by the ruling government which has the power from the

constitution that is defined as the right step to democratization.

Overall, the new constitution was mostly claimed to threaten the secularism of the country.

However, the real conflict is about the democracy. Even MHP was more interested in discussing the

head scarf problem than AKP. The main issue is not about the secularism, which is not attacked. On

the other hand, the loss of independence in the Constitution Court scares people who are defending

the secular state after the bans on freedom of speech and lack of interest to violations to women.

The main issue in the thesis was defined as the new constitutions' implementations on the

jurisdictional system and all the problems which had been mentioned in analysis is arisen from the

jurisdictional system.

211 http://www.hurriyet.com.tr/planet/17808137.asp?gid=381



Political fragmentation in Turkey had caused different interpretations of the new constitution.

However, within the examples it is not east to say that democratization is promoted. Which of the

interpretations are right or wrong is subject to normative legitimacy and it does not have one true

answer. On the other hand, it is crucial to underline that in accession period to the EU membership,

Turkey should be open to democratization, promotion of rights and freedoms. Any indications

against it should be dissolved. Otherwise, the commitment of Turkey to the membership should be

in question.



6. Conclusion

In conclusion, the findings of this research is limited. In the scope of the thesis, if I emphasize on

the scenarios, it is appropriate to say that there is not traces in the new constitution of the hidden

agenda of the AKP. The hidden agenda is assumed to be the plot to dissolve the secular state of

Turkey. The threats to secular state of Turkey is mainly triggered by the statements of the AKP

members which is out of the scope of the research and the fear of the events in the history.

However, the findings of the research suggests that the new constitution has conflictual articles. The

article on the structure of the jurisdictional system causes the utmost impact of the conflicts. In

other words, the provisions of the Constitution Court, mainly on the freedom of expression

manifests concerns. Those concerns are related to the democracy issue in Turkey. Democratization

movement in Turkey is happening slower than its anticipated time line. Recent events on that area

are diminishes the process regarding Turkey's foreign policy goal which was defined as the EU

membership.

Turkey's reform period to reach the level of the EU members always has been problematic. Other

than the issue of Cyrus, the switch in Turkey's foreign policy and Turkey's internal concerns have

been effective on that area. There had been tough periods of adjusting to the reforms that had been

done in order to earn the membership. The research did not focus on the society's fragmentation of

the country, rather I limited the scope to the political fragmentation. On the other hand, it has the

utmost importance to mention the fragmented society which contains many ethnic backgrounds and

its effects on the reform process. Due to the social fragmentation, the enforcement of the reforms is

undergoing though time and it takes more time than other candidate countries. The harmonization of

the society is complex and it is generally blocked by the polarization inside the society. For

instance, the referendum results of the new constitution is an example for the polarization.

Also, the recent situation between Turkey and the EU effects the reforms processes. The public

opinion is changing due to the EU's reactions to the accession period. The rejection feeling which is

driven by the comments of national governments in the EU makes Turkish society to lose faith in



the accession and to the fairness of the EU. However, the public opinion is very subjective and any

positive effect in the relations within Turkey and the EU will also affect the the public opinion.

As an addition to that, Turkey's foreign affairs increased the conflicts regarding whether Turkey is

changing its foreign policy and switching to the East. The free trade agreement between Turkey and

Syria caused that concern over Turkey's priorities about the Union. The Minister of Foreign Affairs

of Turkey, on the other hand, assures that the priority is always on the full membership but Turkey

is also playing in the global arena. It is mainly resulted from the fact that Turkey's economical

situation had been improved so much in ten years and in the current situation, Turkey can actually

make its own decisions.

It is important to mention that the new constitution is not promoting the harmonization in the

society. Especially, in seen the light of the latest provisions of the Constitution Court increases the

polarization in the society. Nevertheless, because of the decrease in the power of the military, the

EU considers the new constitution as a democratic step. Consequently though, the provisions of the

new constitution causes many other conflicts which are also recognized by the EU.

As an addition to this, it is also important to mention the pressures of the global environment on the

EU. The problems related to the economic governance, financial institutions, social cohesion,

climate change, unemployment, aging, energy, political leadership and competition are threats to

every country. The European model of state intimidated by those threats and the worries such as

mass employment, fear of Islam and fundamental terrorism and anxieties about the new waves of

immigration are increased in the society of the EU regarding inner concerns about Turkey's

accession other the new constitution, the democracy, the rights and freedoms.

When I go back to the scenarios, I think, the new constitution have a hidden agenda regarding the

democratic understanding. In other words, the implications are not aiming to bring religious

dictatorship, but instead of the universal principles of the democracy, the principles of the

conservative democracy is planned to be more effective in the Turkish politics. The bans on authors,

internet or the increase of the age limit for alcohol promotes the religious superiority in the society.



It simply pressures people's lifestyles and invades the privacy of the citizens. Even more, there is an

article that legitimizes the invasion of the privacy. I believe, the construction of the pillars of the

conservatism and supporters for that view by creating interest groups are more important than the

efforts for the full membership. The interest groups are being created by giving them more rights

within the scope of the new constitution such as the rights that are given to the Union which are not

actually promoting the worker's interests.

The question of “what will happen now” is ambiguous. The new constitution is actually favors the

ruling party. What happens if the upcoming elections actually changes the ruling party is

predictable. Under the CHP ruling, the fear for conservatism and secularism will no longer be an

issue. However, the new constitution would still be non-democratic. It would still favor one side

and discriminate the other one. Even though people tent to confuse what is democratic or what

should we call democracy within our belief of democracy, it is crucial to see that the new

constitution would only bring polarization and more inequality. Moreover, in Turkey's situation with

the terror inside its own borders, the social polarization and the conflict between military and the

ruling party should be dissolved. Turkey has more serious problems that the interest conflicts

between the fragmented politics' parties.

The future of Turkey is not totally dark and hopeless. On 22nd March 2011, the elections will have

give chance for Turkey to elect new politicians. The only hope for Turkey is more transparent and

educated politicians. The principles of the EU should be guidelines for the new politicians for the

future of Turkey. The outer support is not dependable and Turkish society will learn to elect their

own politicians. On the other hand, it is also important to mention, that this year, I believe there will

not be more reforms regarding the EU accession. Last four mounts, the AKP was busy promoting

what they have done, the CHP – what they will do and MHP – what they would never do. After the

Belgian presidency, with the failure of non-chapter opening, Turkish government has done nothing

about the EU because of their election strategies. Afterward, for a year, it is still unlikely to wait for

priority to shift back to the EU membership.



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