On the Silence of Turkish Constitutionalists in the Face of the Amendment

—Kemal Gözler, Professor of Constitutional Law, Retired from Uludag University Faculty of Law, Turkey.

[Editor’s Note: This piece was originally published in Turkish on the website of the author, anayasa.gen.tr, on February 20, 2017. It was translated into English by a friend of the author, who would like to remain anonymous.]

Constitutional Amendment Bill Number 6771 of January 21, 2017 (the “Amendment”), which thoroughly changes the Turkish governmental system and affects 69 articles of the Turkish Constitution, has been submitted for referendum. It will be put to a vote on April 16, 2017.

Everyone speaks. The only ones who do not are the constitutionalists!

“Footballers” and “pop singers” speak; constitutionalists are silent!

Why are those who are supposed to speak silent on a subject discussed by everyone?

Once upon a time, we had colleagues who appeared on television as often as anchormen. Where are they now?

Once upon a time, we had colleagues who waged war on military tutelage, who kept harping on concepts such as democracy and human rights. Where are they now?

Some time ago we had an “Association of Constitutional Lawyers” which organized a magnificent “International Congress on Constitutional Law” with the participation of 18 foreign countries and more than 500 participants, where 132 experts, 40 of which are from abroad, made presentations throughout 4 days.[1] Where is it now?[2]

Why are the constitutionalists silent?

They are silent, for they are afraid.

Okay fine, but why are constitutionalists afraid?

Is this fear ungrounded? Is it a misgiving? No, it is not. It is a realistic fear. Constitutionalists are afraid because they might lose their jobs; they might be subjected to disciplinary proceeding; they might be taken into custody or get arrested.

Has it not been merely two weeks since four constitutionalists (Prof. Dr. İbrahim Kaboğlu, Assoc. Dr. Murat Sevinç, Asst. Dr. İlker Gökhan Şen and Dr. Dinçer Demirkent) were dismissed from public service via State of Emergency Decree No. 686 published in the Official Gazette on February 7, 2017?

İbrahim Kaboğlu was a senior constitutional law professor, aged 67, who worked as the Head of the Department of Constitutional Law at Marmara University, one of the greatest law faculties of our country. He has in the past – during the Justice and Development Party period – served as the President of the Prime Ministry’s Human Rights Advisory Council. Kaboğlu was expelled from his post by State of Emergency Decree No. 686 due to his “membership to, affiliation and junction … with terrorist organizations” and his passport has been seized. After all that happened to Professor Kaboğlu which constitutional lawyer in Turkey can feel safe?

How could an assistant or associate professor speak up in a country where one of the most senior constitutional law professors is fired from his post? How could an assistant professor in his 30s with little children risk losing his job? How could an associate professor in her 40s trying to pay her housing mortgage find the courage to speak up?

Some other academics are discouraged by fraudulent disciplinary proceedings. A professor subject to a disciplinary proceeding starts spending his or her energy on preparing a defense. Not to mention the enervation and distractibility he or she experiences. In these proceedings the administration not only pushes the limits of law, but also those of mercy and conscience. Only one example amidst dozens or maybe hundreds: In five months, five disciplinary proceedings have been initiated against a colleague from Ankara University Faculty of Law.[3] It cannot be known how much such disciplinary actions scare the academic they target; however, it is certain that they make the other professors of the same university lapse into silence.

People are not only afraid of losing their jobs or being subject to disciplinary proceedings, but also of being taken into custody, having their phones wiretapped, home visits and being arrested. These also are not misgivings but realistic fears. Have many academics not been taken into custody just because they have expressed their opinions? Have they not been arrested? Our government claims without any doubt that our country has an unabridged freedom of expression and that nobody is imprisoned based on their opinions. Nevertheless, nobody but government supporters finds this statement credible. The fact is that whether a country has freedom of expression cannot be determined based on the number of people in prison. Taking only one faculty member out of one thousand at a university is sufficient to scare and silence the remaining 999 faculty members.

As Montesquieu said 268 years ago, freedom is “tranquility of mind”. Here are Montesquieu’s words:

The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.[4]

* * *

Fear suffocates the academic and intellectual life of the country. Everyone has come to a stage where they fear their own shadows. Scientists are afraid of their own writing. Authors censor their own work. Those who are supposed to write, out of fear, either write nothing at all or publish their work in a roundabout and self-censored way. Never mind writing an article criticizing the government, people have come to a point where they even fear writing one or two sentences expressing their genuine thoughts on Facebook or Twitter.

Fear not only constrains the scientist from writing books or articles, but also from teaching at the university. It has always been difficult to teach constitutional law in this country. It has gotten more difficult in the last year. Students report their professors to the rectorates because of their speeches in class via anonymous petitions. The rectorates take these denunciations seriously and initiate proceedings against the professors. How can professors freely teach at the university now? Teaching at the university has lost its charm in this country. Teaching at the university resembles walking around with explosives in hand! Entering the lecture hall is as dangerous as entering a minefield! What meaning does a face-to-face lecture have in such a psychological environment?

This environment poisons the soul of universities. Never mind writing books-articles, even breathing is difficult in such an environment.

Do not suppose that every constitutional lawyer at the university has difficulty breathing. Some of them live the happiest days of their lives. This is because the pressure on the faculty member is applied selectively. Dissenting faculty members are subjected to this pressure while supporting faculty members are cherished and rewarded by the government in various ways.

* * *

The fact that the majority of constitutionalists are scared and silent certainly does not mean that they support the Amendment. Likewise, many constitutionalists stringently criticize the Amendment in safe environments and social circles. However, they are afraid of publicly expressing these criticisms; they conceal themselves. It is clear that no civilized discussion can take place where people fear and conceal themselves and thus truth cannot be found.

Freedom of expression cannot co-exist with fear; where there is no freedom of expression, there can be no discussion; and where there is no discussion the truth cannot be revealed. As the old Turkish saying goes “barika-i hakikat müsademe-i efkardan çıkar (sparkles of truth spring from the conflict of ideas).” The conflict of ideas entails freedom.

There is no public discussion amongst the constitutionalists regarding the Amendment, which will be put to vote on April 16. There is only continuing propaganda in favor of the Amendment. A majority of our colleagues opposing the Amendment cannot express their opinions out of fear. The government and mainstream media do not let the voices of those who find such courage be heard. As a matter of principle, I do not go on television. However, I have heard that our colleagues who usually go on television have not been invited on purpose. Right now in Turkey there is no “discussion,” no “conflict of ideas,” but only a one sided propaganda in favor of the Amendment.

* * *

Are there no constitutionalists in Turkey who discuss and openly object to the Amendment against all odds? Of course, there are a few.[5] For example, Prof. Dr. İbrahim Kaboğlu and Assoc. Prof. Dr. Murat Sevinç are amongst these. Prof. Dr. İbrahim Kaboğlu has published many articles against the Amendment in BirGün newspaper and on his website in recent months. Assoc. Prof. Dr. Sevinç wrote many articles against the Amendment at Diken in the last month before being expelled from the university. What happened afterwards? They were fired!

There are colleagues who still speak up against all odds. However, their numbers are few, and voices weak. The primary reason of the weakness in their voices is the fact that mainstream media shows no interest in their words. We can only read their pieces in Cumhuriyet newspaper and at websites such as T24, Diken, Bianet, GazeteDuvar and Odatv. The secondary reason of this weakness in their voice is themselves. They write their pieces in fear and adhere to self-censorship. This leads to insipid, ineffective writings.

* * *

To tell the truth, an important part of us, Turkish constitutionalists, regret being constitutionalists today. From time to time, I wish that I was an expert of Roman law instead of constitutional law; that I examined Codex Justinianus instead of the Constitution of the Republic of Turkey; that I examined the duties and powers of the Emperor Justinianus instead of those of the President of the Republic of Turkey.

Apart from exceptional examples such as Marie Curie, probably no subject has impaired the scientist examining it more than constitutional law impairs the constitutional lawyer. Being a constitutional lawyer in this country is an occupation as dangerous as being a bomb disposal expert.

Today legal security does not exist for the majority of constitutionalists at Turkish universities. In such an environment what the majority of constitutionalists do is not scientific research or writing books or articles but merely trying to survive! We are waiting for this period to pass as soldiers staying in trenches in the hope of avoiding bullets. Whoever is left standing at the end of this period will be deemed successful! Once there was a series called “I, Claudius” on television which narrated the life of Roman Emperor Claudius. Claudius’s period is a period of plots. Most of the emperors end up being murdered. Many have been killed from Claudius’s family, too. When a senator blames Claudius by saying “you are not fit to be Emperor,” he answers in the following manner: “I at least have lived with the imperial family who has ruled this empire ever since you so spinelessly handed it over to us. … As for being half-witted: well, what can I say, except that I have survived to middle age with half my wits, while thousands have died with all of theirs intact.”[6] It seems that, unless these days are over, there will be very few constitutionalists in Turkey who reach their middle ages without being expelled from their positions in the university.

* * *

Turkish constitutional law doctrine does not deserve its status today. Turkish constitutional law doctrine has never been so dominated by an atmosphere of fear in the history. Turkish constitutional law doctrine should not maintain such a miserable silence regarding this constitutional amendment. Our deceased predecessors would take sticks and drive us away from their chairs.

Since the ghosts of deceased brave members of Turkish constitutional law doctrine will not show up and save our dignity, we have to do this ourselves.

We can do this. In this regard, especially members of the field with the title of professor have a lot to undertake. We, Turkish constitutional law professors, must speak up now! How many years do we have left? What is it that we are so afraid to lose?

Let us speak up today. Tomorrow may be too late!

I do not think I have the right to directly target my colleagues who keep silent despite everything. There are elderly professors, some with health issues. Likewise, we might have in that silent fraction colleagues who continue their silence not out of fear but due to the principle of neutrality. Their choices should be respected. However, we have other colleagues who do not have a principle of silence and have issued statements in the past regarding all political issues. The assertion that they keep their silence as a matter of principle today does not carry conviction.

* * *

Turkish constitutional law doctrine has a limited number of members. Everybody knows everyone else more or less. The fact is that the overwhelming majority of this field opposes a presidential system for Turkey. However, today some of these members do not find the courage to state their opinions expressly and they keep silent. Today some of those who support the presidential system (in the past and today, even though they are the minority) speak; they even get red-carpet treatment from the government and mainstream media. Naturally, they have nothing to fear. Their freedom of expression is “complete”! However their numbers are few.

I would also like to state here that some of our colleagues defending the Amendment also serve as Chief Advisor to the President of the Republic; therefore, there is a “conflict of interest.” Their words should be doubted for this reason alone. It is uncertain whether they defend the presidential system for the sake of duty or because of their conscience. Likewise the same “conflict of interest” exists for academics who defend the Amendment while performing various administrative duties in different public agencies and boards.

If all constitutionalists could freely speak today in Turkey, we would all together see that the overwhelming majority of constitutionalists, including an important section of those who have collaborated with the Justice and Development Party in the past, are against the governmental system offered by the Amendment.

* * *

Although the majority of the constitutionalists have not spoken up to today, everybody and his brother speaks about the Amendment. Those who do it most often and in most ballyhooing fashion are “footballers” and “pop singers.” The majority of the people speaking about the Amendment on television do not possess any academic titles and do not have PhDs in constitutional law. As a matter of fact, an important section of the “lawyers” speaking on television are ordinary attorneys at law without any specialization in constitutional law. Completely out of the blue, experts on the presidential system have materialized. Almost none of them have books or articles published in the field of constitutional law. In fact, the majority are not even graduates of a law faculty.

On the other hand, scientists who have studied the field of constitutional law and written hundreds and thousands of pages in it are confined to silence.

It is not possible for a society which silences the constitutionalists and lets the “footballers” and “pop singers” speak regarding a constitutional amendment to find the right governmental system for itself.

Suggested citation: Kemal Gözler, On the Silence of Turkish Constitutionalists in the Face of the Amendment, Int’l J. Const. L. Blog, Mar. 16, 2017, at: http://www.iconnectblog.com/2017/03/on-the-silence-of-turkish-constitutionalists-in-the-face-of-the-amendment/

---

[1]    This information was received from the website of the Association, http://www.anayasa.org.tr/index.php?option=com_content&view=article&id=13&Itemid=119 (last visited February 20, 2017).

[2]    It is also worth noting that the other association founded by the constitutionalists in Turkey, “Association of Constitutional Law Studies (Anayasa-Der)” did not remain silent in the face of this Constitutional Amendment, but instead prepared a report of 26 pages entitled “A Technical-Scientific Report” regarding this Amendment and published this report on its own website on 13 January 2017: http://anayasader.org/turkiye-cumhuriyeti-anayasasinda-degisiklik-yapilmasina-dair-kanun-teklifi/ (last visited February 20, 2017).

[3]    The example was taken from parliamentary question no. 7/9654 dated December 1, 2016 submitted in the Turkish Grand National Assembly by the member of parliament Sezgin Tanrıkulu: http://www2.tbmm.gov.tr/d26/7/7-9654s.pdf (last visited February 20, 2017).

[4]    Charles de Montesquieu, The Spirit of Laws (1748) (Translated by Thomas Nugent) 1752, Book XI, Chapter 6 .

[5]    The fact that I only mention Prof. Dr. İbrahim Kaboğlu and Assoc. Prof. Dr. Murat Sevinç here is not because these two colleagues are the only constitutionalists opposing to the Constitutional Amendment, but because they have been expelled from public service via a state of emergency decree very recently. There are many other colleagues who have objected to the Constitutional Amendment in recent months. I do not wish to make a list of opposers here by mentioning their names. This is primarily because the list I make might be incorrect; secondly, if I name the opposers, an opposite list of “silent constitutionalists” can be deduced from such list and I believe that I do not have the right to do this.

[6]    “I, Claudius” 1976 BBC Television adaptation of Robert Graves’s “I, Claudius and Claudius the God”, Episode 1.11: “Fool’s Luck”, https://en.wikiquote.org/wiki/I,_Claudius_(TV_series) (last visited March 5, 2017).