Abstract
This article seeks to address the increasingly pertinent concern of how to form a satisfactory liberal stance in the face of certain democratically mandated policies of non-liberal and even sometimes illiberal governments. To that end, a close analysis is provided of a particular debate that generated controversy in certain liberal circles in Turkey during the run-up to the referendum on constitutional amendments in 2010. Identifying and evaluating 5 factors which seemed to have influenced the opposing positions in the debate, the article tries to demonstrate how disagreement over the ‘correct’ liberal position entails differences in overall judgement of the political situation and assessment of the circumstances.
Introduction
On the political and intellectual scene in Turkey, it is not difficult to come across figures one may label as small ‘l’ liberals, people who embrace a broadly liberal lifestyle but nevertheless demonstrate highly illiberal reflexes when faced with certain social and political developments. Adopting a broadly liberal position in their private lives and on many issues, such as those related, say, to gender equality and freedom of expression, such ‘liberals’ do not shy away from advocating highly illiberal measures to counter certain policies of the democratically elected government. It is interesting that, despite its seeming inherent incoherence, this position has gained considerable strength since the rise of political Islam in the 1990s and the beginning in 2002 of the Islamist-rooted AK Party rule. Prominent as it is among certain sections of the population in Turkey, and also a contributing factor to the current weakening of democracy in Turkey, the above-defined ‘illiberal liberal’ position will, however, not be the focus of this article. 1
What will rather be scrutinized here will be the standpoint of those who will be called Turkey’s ‘liberal liberals’. When analytically examining an intellectual position rather than specific particular political and intellectual figures, the stance of ‘liberal liberals’ can best be characterized as one that tries to produce a properly liberal response in a political environment dominated by a governing party whose ideology is found clearly wanting if judged by liberal standards. Here what is meant by a ‘properly liberal response’ comprises at least two aspects. First, there is the acceptance that the AK Party is not expected to rule as a liberal government, and hence the mistake of criticizing an avowedly non-liberal party, self-defined as ‘conservative democratic’, for not being liberal is avoided. Second, having recognized this, there is the desire to build a position that will engage with this political reality without at times searching for or advocating illiberal and undemocratic ways. Although, especially when it comes to Islam and democracy, many liberals (and not only in Turkey) make the first mistake easily enough, for our purposes here it is the second aspect that requires more urgent analysis. In other words, the question that needs to be addressed seems to be this: When a democratically elected government, whose ideology is found wanting and whose motivation is suspect by liberal standards, carries out (albeit insufficient) reforms of partial democratization, what should be the liberal stance? More specifically, how should liberals situate themselves in a complex political environment where many democratically mandated policies typically have not only desirable components but also aspects with potentially illiberal consequences? These questions indeed reveal the peculiar predicament that is faced by the Turkish liberal. General academic discussion, when addressing the liberals’ dilemma, almost always revolves around finding the best ways of integrating into liberal democracy those who do not hold liberal values. However, another liberal dilemma, much more important for our purposes, is related to determining the liberal response to the democratically mandated policies of non-liberal and even sometimes illiberal governments.
The task of this article is to try to shed some light on this second dilemma through a close analysis of a controversy that was generated during the run-up to the referendum in September 2010 on the proposed amendments to the Turkish Constitution. The particular aspect of the debates during this period that will be scrutinized here concerns a position that was labeled as ‘yetmez ama evet’, loosely translated as ‘insufficient but acceptable’. This position, which was largely adopted by non-AK Party supporters, treated the government-endorsed proposals as falling short of achieving the goal of the ultimately desired level of democratization of Turkey, but nevertheless supported the initiative as ‘a step in the right direction’. While this stance generated, and continues to generate to this day, great controversy, the heated discussions around it ignored an important facet which this article also aims to cover. This is that any analysis of this type of argument for accepting the amendments to the constitution needs necessarily to include its similarly structured opposite version, i.e. a position which also accepted that the reform package was incomplete in important ways but saw this insufficiency as a reason to oppose the proposed reform. This second stance can therefore be formulated as producing a conclusion of ‘insufficient therefore unacceptable’. By discussing the two differing versions of the same argument, it is hoped that some clarity will be achieved on the above-mentioned predicament faced by the Turkish liberal. What are the conditions that help determine whether one finds an initiative as an admittedly limited step still to be supported, or as ‘not good enough’ and hence to be opposed in order to strive for a better one?
After providing a brief discussion of some of the amendments voted on during the referendum, this article will examine 5 factors which seemed to have influenced the positions under discussion. Differences over considerations concerning (1) urgency of the situation; (2) aftermath of the referendum; (3) assessment of the relative political gains; (4) the agenda and motivation of the ruling party; and (5) proper procedure and deliberative process, seemed to have determined by and large the stance that was taken. Both positions in the debate admittedly favored a liberal perspective, but differences over the assessment of these 5 factors played a critical role in producing opposing positions. A critical scrutiny of the role these criteria played in the debate will therefore help clarify the questions around a ‘proper liberal response’.
It may be objected that as of 2016, the question of what a liberal stance should be vis-à-vis ‘insufficient’ reforms lost any urgency or even relevance. Currently, respected academic commentators refer to the ‘grim state of democracy in Turkey’, 2 with media freedoms and judicial autonomy having become ‘prime sites for democratic backsliding’. 3 The position of a ‘liberal liberal’ is now less open to agonizing debate: the liberal response to many initiatives and laws in Turkey became one of opposition. Indeed, these seem to be the days when Turkey’s illiberal liberals say with some satisfaction ‘We told you so’. The concluding section will briefly address this state of affairs and remark that the ‘illiberal liberal’ route, with its catastrophic consequences for liberal values, cannot and should not be entertained by liberals.
I The referendum of 2010
On 12 September 2010, 26 amendments to the Turkish Constitution, drafted by the governing AK Party, were put to the vote. With a participation rate of just over 77%, the changes were accepted by 58% of the voters. The reform package, thus receiving endorsement from a clear majority, was hailed by its supporters as an important step for the democratization of the country and the civilianization of the regime. It was maintained that the amendments would help unhinge, if not overthrow, the two stumbling blocks on the way to an established democracy, i.e. the ever-present shadow of ‘military tutelage’ and the threat of ‘juritocracy’ represented by extensive acts of ‘judicial activism’. Yet for the holders of the two positions to be analysed below, while this aim of the reforms was obviously laudable, the package was falling short on a number of issues. Before proceeding with a detailed discussions of these positions, it may therefore be necessary to discuss briefly some of the amendments put to referendum.
What needs to be stated at the outset is that the reform package lacked a certain coherence. The amendments ranged from reinforcing the protection of minors to lifting limitations on litigation against the coup makers of 1980, from eliminating certain restrictions on freedom to travel abroad to increasing the size and structure of the Constitutional Court. Subjecting furthermore this somewhat mixed package to a single vote made a nuanced and focused public discussion very difficult. More important for our specific purposes here, evaluating the content of the package, many of the amendments seemed lacking in significant ways. For instance, unions representing state employees were given the right to bargain collectively but not the right to strike. Similarly, the introduction of the ombudsman was welcomed by many, but doubts appeared over its autonomy, as the election for the office entailed simple, rather than qualified, majority voting in parliament, giving the ruling party an undue influence. On the other hand, the amendment which annulled the article protecting the coup leaders of 1980 from prosecution was seen as mainly lacking in substance, since with many institutions introduced by the leaders of the very same coup untouched and in full operation, a proper democratic coming to terms with the legacy of military rule seemed impossible. As for the changes to the size and structure of the Constitutional Court and the High Council of Judges and Prosecutors, these were perhaps the most contentious amendments. The latter would be opened up to a more democratic selection process, but its autonomy as well as its accountability would be subject to serious restrictions. For instance, not only would the role of the Minister of Justice be increased, but also no decisions by the High Council of Judges and Prosecutors other than those pertaining to dismissal of judges and prosecutors for misconduct would be open to judicial review. The Constitutional Court would also undergo a similar change in size and the selection procedure of judges. Here, too, what was seen as troubling in the proposal by many was the greatly expanded power of the president (an elected post after recent changes) in the selection of judges. Finally, amendments such as giving power to civilian courts to try military personnel, as well as allowing military officers expelled by the Higher Military Council to appeal in court, were seen as steps towards greater democratic control of the armed forces. Yet here again institutions symbolizing the presence of the military in the system, such as the National Security Council, were left outside the scope of any reform proposals.
The above discussion of some of the amendments helps highlight two aspects of the reform package on which both the positions of ‘insufficient but acceptable’ and ‘insufficient therefore unacceptable’ seemed to concur. First of all, both sides accepted that, taken individually or as a package, the proposed amendments represented an improvement on the status quo. There was a prima facie affirmation of the content of the reform package and an acceptance that, compared with what it replaced, it represented a better state of affairs. What was also common to both positions was that the amendments, though better than the status quo, were not far-reaching enough. As briefly pointed out above, almost all the important changes remained incomplete in crucial ways. These two points of agreement, i.e. that the reform package represented an improvement and that it nevertheless fell short of what was desirable, clearly distinguished the positions under discussion from simply ‘yes’ or simply ‘no’ responses in the referendum. For the standpoints under scrutiny here, therefore, there was neither a wholehearted acceptance of the reform initiative as sufficient and desirable (‘yes’ without any reservations) nor an unqualified rejection of it for independent (political) reasons. This being the case, what then becomes particularly interesting to inquire is how and why the ‘insufficient but acceptable’ camp opted to embrace the package while the ‘insufficient therefore unacceptable’ side chose to oppose it.
It is also worth asking at the outset whether one determining factor in explaining the diverging positions in this debate can be an assumed difference over the benchmark used for assessing the insufficiency of the amendments. Both sides seeing the reform package as falling short, it needs to be inquired whether it was the degree of insufficiency, i.e. the distance between the current proposal and what was deemed desirable (‘achievable good’), that was the underlying cause for the difference in the adopted stances. For example, it is clear that the greater the distance judged to be between the proposed reform and the (realistically expected) desirable alternative, the more likely a person would be to adopt the ‘insufficient therefore unacceptable’ position. Evaluating the debate, it seems that it was not the differing yardsticks and hence the degree of insufficiency that led to the disagreement. By and large, it will be correct to argue that for both sides there seemed to be no dispute over the standard by which the content of the reform package was judged. There was therefore no explicit disagreement over the realistically expected desirable alternative, and the debate around the two positions hardly made any reference to differences over the benchmark used for evaluating the reform proposal.
On another important note, it did not seem either that the different evaluations of the nature of ‘incompleteness’ of the proposed amendments determined the eventual positions. That is to say that, first, the main disagreement was not due to certain specific items being found lacking to significantly differing degrees. The discussions were not centred on the insufficiency of particular aspects of the package, or on how certain specific articles fell short of what was desirable. Second, nor was it the absence of an amendment considered so vital (by one side) that seemed to be at the core of the dispute. So, to a great extent, the details of the particular components of the reform initiative, such as which specific proposal did not go far enough or what crucial amendment was missing, were not at the root of the disagreement. What rather produced the opposing conclusions were the different overall assessments of the package in its entirety. Such assessments were in turn influenced by a number of distinct factors, and so it is these factors, as will be discussed presently, which were at the root of the divergence between the positions of ‘insufficient but acceptable’ and ‘insufficient therefore unacceptable’.
II ‘Good enough’ vs ‘not good enough’
Differences in the evaluation of at least 5 different factors seemed to lie at the center of the fundamental disagreement. As will be dealt with in succession below, these were: (1) political urgency of the situation; (2) expectations over the aftermath of the referendum; (3) assessment of the relative political gains following from the acceptance of the reform initiative; (4) the agenda and motivation of the ruling party; and (5) adequacy of the proper procedure and deliberative process.
1 Urgency
Undoubtedly one important factor influencing the evaluation of the package was the differing assessments of the urgency of the current political situation. For many, the ruling in July 2008 by the Constitutional Court that the governing AK Party was the focus of ‘anti-secular activities’ and that for that reason was to be fined was still fresh in memories. Indeed, in the same ruling by the court, the party had narrowly avoided closure by a 6 to 5 decision. As rumours circulated of another similar court case to be opened soon against the government, the threat of a ‘judicial coup’ seemed credible as well as imminent for many, and the constitutional amendments were thought to introduce an important democratic safeguard. Under such conditions of urgency (not to mention the ever-present perceived threat from the military), measures for further democratic control of the judiciary and indeed the civilianization of the regime could and should not be deferred. The argument was therefore that, even though not fully satisfactory, the reforms could not be sacrificed to the desire of providing a much better alternative. There was therefore greater ‘tolerance’ for the incompleteness and insufficiency of the amendments. The overall effect of the reform would be a step in the right direction, addressing an urgent issue while providing a much-needed, if not totally adequate, protection against credible and imminent threats.
This standpoint was rejected by those who held that an easy acceptance of the existence of ‘extraordinary times’ clouded a proper assessment of the package. It was argued that an opportunity for a thorough reform did not arise too often and the possibility of a package of changes of much deeper significance should not be easily discarded. As there were strong signs of a societal consensus on the desire for a more comprehensive overhaul of the constitution, this chance for instituting measures of greater democratization should not be wasted. The problems partially addressed by the proposals on offer were serious but also long-standing and hence required more complete and permanent solutions. Considering the situation to be somewhat less urgent, there was therefore greater caution against proceeding with undue haste and settling for a ‘second-best’. While being careful not to fall into the trap of causing interminable delays, greater consensus could still be reached on a package resulting in endorsement by a larger section of the population. Finally, for those who argued against the proposed amendments in their current form, in light of the assessment of the situation to be less urgent, there seemed to be no convincing explanation as to why ‘more’ could not be achieved under the current circumstances. The existing incompleteness of the package of amendments therefore led many to focus on what it missed out rather than what it achieved.
2 Aftermath of the referendum
A second source of difference underlying the opposing positions vis-à-vis the proposed amendments followed from different expectations of what would follow the adoption of the reform package. The main disagreement was over whether acceptance of the package would increase the momentum for more reforms or whether it would produce the opposite effect and indeed reduce the potential for further democratization. One side argued that this change was, albeit incomplete, still positive, and by providing support to the governing party, the endorsement would be instrumental in creating an atmosphere conducive to further reforms. With the moral authority gained by supporting the proposals in their current form and the demonstration of goodwill, a momentum would be garnered to press for further changes. By placing themselves in the reforming camp, the supporters of the amendments would solidify their place in the society and make the reaching of the ultimate goal, i.e. the writing of a new constitution much more respectful of liberal freedoms, much easier to attain. Instead of being ‘nay sayers’ at such a critical juncture, a positive contribution would result in the creation of a much-improved society-wide dialogue and a broad alliance for further reforms.
However, from the perspective of the ‘unacceptable’ camp, the fear was that the moral authority of being in the ‘yes’ camp, to the extent that it existed, would not translate into the creation of a powerful stance insisting on greater reforms. The amendments, if accepted, would constitute a step which would not facilitate but hamper further changes. The somewhat half-baked proposals would, rather than creating a momentum for change, pacify and institute ‘reform-fatigue’ in those sections of the society whose support was crucial for further democratization. As it was not easy anyway to mobilize such a polarized society for large-scale reform, the acceptance of an inadequate improvement over the status quo would risk stalling additional attempts at initiating greater democratization. A partial improvement risked bringing about a loss of urgency for many, not least within the governing party. This opportunity for thorough reform, once squandered in such a haphazard way, would be very difficult to recreate as the more urgent priorities of the government would be met. Under such circumstances, there would be the risk that the pressure felt by the government would be naturally lessened. The agenda of the government and perhaps inevitably of the society would be dominated by more narrow concerns and the drive for democratization and greater freedoms would lose its force and focus.
3 Distribution of relative political gains
Closely tied to this issue concerning the expectation about the aftermath of the referendum were the differing evaluations of the relative political gains resulting from the acceptance of the reform package. The distribution of the relative gains and its likely impact on the future political arena was therefore at the root of the disagreement. For those who adopted a positive perspective on the acceptance of the amendments, the resulting political benefits would possibly favor the governing party more, but from a realistic outlook that could not be objectionable. It was not reasonable to expect an electorally very successful party to ignore or even downplay its own interests in any political initiative. Yet what was important was to adopt a broader perspective and grant that the amendments (reforms) would bring about greater civilianization and deepening of democracy in the country. To give one example, following the acceptance of the amendments, the government, being currently the democratic authority in charge, would gain greater power over the appointment of judges as a result of greater democratic authority over the process. At the same time, however, the introduction as part of the same reform package of the possibility of individual appeal to the Constitutional Court was a major gain from a liberal democratic standpoint. As the example would suggest, it was possible and indeed necessary to appreciate the gains that the amendments in their totality would bring about without being overly concerned, not to say obsessed, about how the governing party was strengthening its position.
For the ‘insufficient therefore unacceptable’ standpoint, however, the situation was not this clear-cut. While the amendments, as already conceded, represented a (short-term) improvement over the status quo, this by itself could not have been the only consideration. First of all, in a way that is reminiscent of ‘ultimatum games’ familiar from economics, it was reminded that ‘better off’ did not always mean ‘good’ or ‘acceptable’. A distribution of gains that was perceived to be unfair could be an adequate (if not always a ‘rational’) reason for opposing an initiative. In other words, even though what was proposed was ‘better’ compared with what it replaced, this did not change the fact that a ‘much better’ proposal could be realistically expected and even offered. Moreover, when evaluating the long-term effects of the acceptance of the reform package, the potential advantages accruing to the governing party could be considered to be disproportionately large. The size of the relative gains seemed to be giving the governing party an important advantage that could be potentially used for illiberal purposes. While there could be an acceptance that the government would inevitably prioritize its own interests, the extent of the leverage that it would come to possess would not be healthy for liberal democracy. Therefore the danger that such a possibility would present for the future balance of power in the regime was considered to be a compelling reason to oppose the current package of amendments.
4 Motivation and agenda of the ruling party
This disagreement seemed to be very closely related to the fourth underlying criterion to be discussed in this article. This was the difference in the evaluation by each side of the motivation and agenda of the ruling party in introducing the referendum. It is worth mentioning that for holders of both positions, unlike certain sections of the outright opposition camp, there was no full mistrust of the government or extensive doubts about a ‘hidden agenda’ or ‘hiding of true (undemocratic) intentions’. It is much more correct to argue that the difference was mainly over an assessment of the acceptance of the current limits of democratic politics engaged in by the governing party. For the ‘insufficient but acceptable’ camp, despite obvious shortfalls, it was this party which had the most realistic potential to democratize the country, and hence merited liberals’ support in bringing this potential to fruition. Given that issues such as the motivation or the overall agenda of the government were also treated as largely irrelevant for the matter at hand, the concrete features of the reform package were considered to be the only aspects that needed to be focused on. Whatever motivations it may have, the government, as the principal agent of change in the country, brought about changes that improved the status quo, and hence needed to be endorsed in this endeavor. There was therefore no need to be overly concerned about what the future may hold, as this was a matter to be addressed if and when the feared developments materialized. Moreover, even if some consideration were to be given to the motivations of the government for introducing these proposals, this consideration was broadly positive, reflecting an acceptance of the well-meaning intentions of the ruling party which could not for the time being initiate broader reforms.
For the holders of the ‘unacceptable’ position, there was necessarily a need to include an assessment of the motivations of the government in introducing the amendments, and that assessment included some skepticism. From the perspective of this liberal stance, there was acceptance of the fact that the ruling party was the best-placed (not to say indispensable) partner in introducing reforms, yet its motivation and overall agenda were still relevant. Treating with greater caution the capacity in general of the government for liberal democratic politics, there was therefore concern over the implications of the implementation of the amendments. Even if the ruling party was not necessarily regarded as being on ‘probation’, there was still some apprehension over how the reforms would have an impact on the overall liberal democratic project. Accordingly, the greater was the degree of skepticism about the dominant ideology and stance of the government, the greater was the focus on the potentially illiberal consequences of the changes. Following from this, it was thought that any consideration of the current proposals needed to include expectations about the future prospects of the regime. While those who objected were not obsessed about the ‘hidden agenda’ of the government, it still remained the case that this lack of full trust resulted in opposition to an initiative that could expose the country to possible abuse of power. It was therefore clear that whether the intentions of the ruling party in introducing the reforms were to be included in the assessment of those reforms and if so whether some degree of caution was needed in the evaluation of these intentions necessarily informed the positions that were taken during the referendum.
5 Procedure and deliberation
The fifth and last point of disagreement at the root of the differing positions under discussion here concerned the deliberative and procedural aspects of the debates prior to the referendum. One common source of complaint related to the existence of an atmosphere not conducive to greater participation in the formulation of the proposals, resulting in a lack of extensive consultation over the amendments brought before the public. The most notable reflection of this complaint was the objection that seemingly unrelated items were being put to a single vote, thereby eliminating the possibility of discussing and evaluating each specific item on its own merits. The necessity to take a position on the whole package was argued to have distorted the deliberative process, making it almost impossible to present more nuanced arguments. For the ‘insufficient but acceptable’ position, however, the complaint over the relative lack of deliberation, to the extent that it was correct, missed the larger reality about the fact that the package in its entirety was a positive step for the democratization of the country and remained always open to democratic revision. Further tying the position to the earlier-mentioned ‘urgency’ of the situation as well as the broadly positive appreciation of the intentions of the government, it was held that what mattered more was the ‘broader picture’, which undeniably reflected an urgent improvement of the system along democratic considerations. Consequently, concerns over procedures were thought to be of lesser significance when judged against the undeniable real gains that the reforms would produce. In other words, under the circumstances, objections over the ‘how’ of the process mattered less than ‘what’ the reform package contained.
However, the issues of the ‘how’ and the ‘what’ were closely connected for the opposite position. An assessment of the latter was inexorably linked to an evalution of the former, as greater participation and extensive consultation were deemed essential for a society-wide embrace of the referendum result. Accordingly, if the adoption of the amendments were to herald an era of more democratic politics respectful of liberal freedoms, the whole process needed to be more inclusive. This concern about the lack of adequate deliberative measures would in turn lead to greater skepticism over even the positive and independently satisfactory items in the package. Unavoidably doubts were cast over whether certain items were inserted as ‘sweeteners’ to make the package more conducive to being positively evaluated. Resulting in further suspicion about the sincerity of the ruling party, the question of why, realistically speaking, more could not really be done gained prominence. Already distrustful of claims about the utmost urgency of introducing the reforms, calls to focus on the ‘big picture’ were merely seen as attempts at hurrying an initiative without a proper and thorough democratic discussion. This then inevitably led to a greater focus on the ‘insufficiency’ of the reform package, reinforcing the tendency to oppose it.
Conclusion
Six years after the referendum, one comes accross academic works mentioning the ‘grim state of democracy’ in Turkey, with the country being given as an example of ‘democratic backsliding’. Whatever one’s view about the severity of these characterizations, it is a fact that according to Freedom House, the ‘freedom rating’ of Turkey, stable since 2005, started to worsen in 2013. Behind this worsening, and the accompanying current ‘downward trend arrow’, there is the observation of a deterioration in the enjoyment of civil liberties. 4 While it is difficult to pinpoint the exact timing of, and the underlying causes behind, this deterioration, it is clear that there is currently an intense soul-searching among those liberals who previously provided support to AK Party policies. Particularly singled out for criticism have been those political liberals who adopted the ‘insufficient but acceptable’ position during the 2010 referendum.
While the role of liberal support during the early rule of the AK Party was not insignificant, the domestic political effects of such support especially should not be overestimated. Limited in its political impact, the intellectually rich debate nevertheless reflected a common conundrum experienced by liberals: how to engage with the policies of democratically elected governments which are not necessarily liberal. Through a discussion of two liberal positions taken during the referendum debates, this article has tried to analyse the tension that best characterizes the above-mentioned conundrum. Should a proper liberal position require an endorsement of reforms that partially help the liberal cause or should it call for reluctance as a result of a fear that democratizing measures would result in a shift of power with potentially serious illiberal consequences? The conclusion of this article is that an answer to the above question is not clear-cut and depends to a great extent on an evaluation of the circumstances.
What is very clear, however, is that despite practical and theoretical dilemmas, one answer that cannot be opted for by liberals is to rely on illiberal and undemocratic means. An ‘illiberal liberal’ who may not go through soul-searching as a result of failed expectations may claim never to have been proven wrong. Yet that ‘comfort’ is acquired at the cost of a profound mistrust of democratic mechanisms. The task of building a liberal case in the face of difficult political conditions is a worthy one, and giving up on this endeavor has catastrophic consequences for, above all, truly liberal values.
Footnotes
A version of this article was presented at the Reset DOC İstanbul Seminars 2016 (“Religion, Rights and the Public Sphere”) that took place at İstanbul Bilgi University from May 24–28, 2016.