Professor of Constitutional Law, Bertil Emrah Oder, gives her views on efforts to rewrite the Turkish Constitution in an interview with Hurriyet Daily News:

16 September 2011

The lack of trust will make it hard for political parties to agree on a new constitution, says expert Professor Bertil Emrah Oder. Issues about the Kurdish problem as well as secularism will prove difficult to reach a consensus, she adds, voicing her concern that Turkey might end up with a ‘majoritarian’ constitution rather one built on pluralism.
The  constitutional works in the Parliament should be transparent, Professor  Bertil Emrah Oder (L) told the Daily News ahead of their visit to Ankara  where she will attend the meeting of Parliament’s president with experts.

Issues about the Kurdish problem and secularism might prove difficult to agree on in efforts to rewrite the Turkish constitution, according to an expert on constitutional law. The unitary nature of the state could be a point of disagreement between the pro-Kurdish party and the rest of the parties in Parliament according to Professor Bertil Emrah Oder, dean of Koç University’s Law Faculty. Oder, who is among the academics invited by the parliamentary speaker to a meeting about renewing the constitution, expressed doubts about the methodology as well, in a recent interview with the Daily News.

For the first time Turkey will engage in an effort to rewrite its constitution in the absence of any major turning point like a war or a military coup. What does that mean for Turkey?

We don’t always need major events. There are also what we call consolidation works to amend constitutions to make them more consistent. Switzerland has opted for that approach. Until 2010, Turkey also had its consolidation works, as several amendments were made based on a consensus that came with support from the public and the political parties. In 2010 we passed to a confrontational and majoritarian model. The 2010 amendments carry the stamp of the largest group in Parliament of the time. It would have been better if they had continued that consolidation process by piecemeal constitutional changes. Why did Switzerland, with its wider culture of consensus, opt for that model? Because it is easier to reach a consensus.

But with the piecemeal approach you may end up with a patchwork that might not be effective.

Patchwork is not always bad. We are talking about a constitution, a document that should have a long life. That type of a political legal document needs to be prepared in a process that is open to discussion by representatives from all walks of life. There is currently a deep lack of trust. We will sit at the table as if we trust each other.

But maybe the work on the constitution could be a solution to these conflicts?

There is certainly a need to revise the constitution to make it more democratic. But I have my doubts about the method and on the points of consensus among the sides. In the South Africa model, they first agreed on a very short document that covered the principles upon which they reached a consensus. So there was a preliminary memorandum of understanding. Then they prepared the constitution according to these principles. Then there was an effective debate.

In Turkey unfortunately I doubt there is a trend toward having a majoritarian constitution. The sides will act as if they are willing to agree on points where they are apart, and then we’ll have an outcome based on the views of the group with the majority. But that type of constitution will lack legitimacy.

What would be your suggestions for making a legitimate constitution?

As in the South African model, we can start from a consensus document on the lowest common denominators. We should work on it piece by piece. We should start from the issues with the largest consensus to issues that will be harder to agree on. So the main commission can have sub-commissions. All the work should be transparent. All the deliberations of the commission should be shared with the public. They can be put on the Internet. Another requirement for making a democratic constitution is the presence of a free and competitive debate environment. Yet we have serious problems about that type of environment in Turkey, despite progress made on freedom of expression.

What should be new about this constitution?

The introduction of the constitution should be new. It should foresee a political system based on freedom and equality. An encompassing citizenship, one that does is not based on discriminatory criteria of ethnicity, religion or philosophical convictions.

What is your view about the debate on the first three unalterable articles of the constitution?

Our constitution says Turkey respects human rights. But until changes in 2001 this principle lacked content. So the focus of the debate is wrong. The first three articles can stay as long as their content is reflected in the rest of the constitution with a democratic perspective. The unitary state is defined in the constitution as unalterable. But a unitary state is not a stumbling block in front of developing local administration, strengthening local initiatives or strengthening participation of local people, for instance in issues like building a power plant in a region. The unitary characteristic of the state can be reshaped with a democratic view, in a way that can strengthen local governments.

Which are the areas that will need particular focus?

The definition of citizenship. The current formulation is perceived by different groups as an ethnic definition despite the fact that it has not been perceived as such by the Constitutional Court. We can have a formulation that has no reference to ethnicity. We need reforms on freedoms. Freedom of expression, including freedom of communication that should cover informatics, needs to be tackled with a more libertarian view. We can touch on the monopolization of the media as well.

What are the areas that will be harder to reach a consensus on?

I believe it will not be that difficult to agree on freedom issues. It will also be easy to agree on a neutral language about citizenship. The issue of the unitary state will be much more problematic, where the (pro-Kurdish) Peace and Democracy Party might differ from the rest of the parties. The BDP is talking about autonomy, which will not be accepted by the other parties. Secularism will be another problematic area. I see signs of consensus on the fact that the headscarf issue should not be dealt with in the constitution but in the laws. But I don’t see similar signs as to the function of the Religious Affairs Directorate; for example on Alevis and the status of the cemevi (the Alevi house of worship), which lacks official recognition.

Constitution should be gender equal

The introduction to the new constitution should include policy areas that have long been neglected, such as gender equality and a sustainable environment, said Professor Bertil Emrah Oder, a constitutional expert. “We need guaranties that are specific to Turkey on gender equality,” she said. Gender equality, which is the least safeguarded, should absolutely be included in the constitution as a priority policy, she added.

The Turkish constitution lacks norms that should require implementing gender equality policies, said Oder. Despite the fact that Turkey is party to the Convention on the Elimination of Discrimination against Women, Turkey is not a country where women are efficiently present in political and public life, she said. “Gender equality should not only be dealt with in Article 10 of the constitution, but also in articles about social life, family issues, political life, freedom to work, etc.,” she said.

Oder said a short constitution (called a framework constitution) does not necessarily lack details, adding that modern constitutions are all long (called regulatory constitutions). “They are long because they were created after World War II and automatically included a bill of rights,” she said.


A professor of constitutional law, Bertil Emrah Oder is the dean of Koç University’s Law School. She has served as a full-time faculty member in the law schools of Istanbul University and Galatasaray University.

She worked as associate director and executive member of various centers for EU law, human rights law, international relations and gender studies.

One of the few names in Turkey involved in comparative constitutional studies, Oder has extensive publications in the fields of constitutional law, European public law and human rights.

“Every day I monitored the making of the EU constitution,” she said. She is the author of the book “Constitution and Constitutionalism in the EU.”

She was a member of the opposition Republican People’s Party, or CHP, Party Assembly from December to May.