Leiden, prid. Non. Apr. MMDCCLXX A.U.C.,
As the polls show, Erdogan had his way, and Turkey has taken another step towards autocracy. Although much has been said about autocratization in Turkey, and the role the constitutional amendments have in this process (an excellent summary of the constitutional amendments, by Jochanan Mussel, can be found here), this referendum is also a clear warning for those who believe ‘the people’ should rule without limitations. While any democracy needs to have a government responsible to the people, populism can lead to democracies in which the majority terrorize the minority. The latter is exactly what is happening in Turkey, which shows the importance of barriers to constitutional change and liberal democracy, which guarantees political rights beyond the right to vote to citizens. Meanwhile, even though a majority voted in favour of the constitutional amendments, the amendments are by no means legitimate. Firstly, the constitution was essentially changed by what amounted to little more than a simple majority, and secondly, some political rights should not be taken away, even if a majority supports revoking those rights.
The procedure taken to amend the constitution has been to pass a bill in parliament, which needed to be passed with a 3/5 majority in parliament, which initiated a referendum which needed to be passed with a simple majority (so 50%+1 votes). The bill which initiated the referendum was supported by the AKP and the MHP, who together collected around 61% of the votes, thus commanding 357 out of 550 seats in parliament (while only 339 out of 550 voted in favour). Today, in the referendum, a small majority of 51.3% voted in favour of the constitutional amendments. This implies that there were quite a few AKP and MHP votes who either did not bother to show up, or are against the increased powers for Erdogan (indeed, many MHP voters do not support the amendments). So, one could say that with such a large majority in parliament and with a majority among the population the constitutional amendments have been passed entirely legitimately. The amendments have been accepted by a majority after all?
Nevertheless, although legal, this constitutional amendment is anything but legitimate. The difference between populist-democracy and liberal-democracy is very apparent here. Populist-democrats only care about whether a majority of the people has voted for the current government, which grants the government legitimacy to use unlimited powers. A liberal-democrat also cares about rights beyond voting power. Any individual should have freedom of speech, religion, and association, the right to a fair trial and the possibility to sue the government in fair trials (and IMHO also freedom of gender and love) and measures which aim to take away these rights are illegitimate regardless of whether a majority of the people supports taking away these rights. In the case of Turkey the prospects for democracy were already dire, but the constitutional amendments will be the capital sentence for Turkish democracy.
There are two ways in which we can attack the legitimacy of the constitutional amendments. Firstly, compared to other countries, the barrier for constitutional amendments in Turkey is very low. Only 330 of 550 members of parliament have to support the bill which initiated the referendum. Moreover, this bill was introduced after the elections, rather than before. This means that the 2015 parliamentary elections were not specifically about the constitutional amendments, but mostly about the conveniently timed flare-up of the war with the Kurds. This means that the 60% majority in parliament in favour of the amendment is not at all a reflection of people’s support for the constitutional amendments, as the referendum results show. Subsequently, only 50%+1 of the votes in the referendum were necessary to pass the constitutional changes. In essence this means that only 51.3% of the Turkish population supports the referendum, which is a tiny majority to change the constitution. To compare this to a case I know much better, in the Netherlands to pass a constitutional amendment, the lower and upper house first need to pass a bill with a simple majority which initiates the debate on the constitutional amendment. To pass the amendment, it needs to be passed by a 2/3 majority in the lower and the upper house after new elections for the lower house. Moreover, the Netherlands has an even more proportional system than Turkey, which means that 2/3 of the lower house corresponds closer to 2/3 of the population. Furthermore, the elections for the lower house do not occur at the same time as the elections for the Provinciale Staten, who then elect the members of the upper house in a similarly proportional way, which means both a 2/3 majority several years ago and a 2/3 majority right now need to support the amendments. This means that citizens are aware of the proposed constitutional amendments when voting for the lower house, and that at the very least 2/3 of the population needs to support the amendments, if not more. The hurdle to change the constitution is very high, as it should be, because the constitution includes the most sacred rights citizens have. In Turkey a simple majority was able to snatch away the rights of a very large majority, in spite of the requirement to have a 3/5 majority in parliament to initiate the amendment process, which makes the constitutional amendment completely illegitimate.
Secondly, it is always illegitimate to revoke the earlier mentioned rights, except under very specific crisis circumstances, for instance as present in England during WWII. Even if 99% of the population decided to take away the freedom of speech, religion and/or association of 1% of the population this decision is illegitimate, unless this 1% consists of active and violent Nazis, anarchist terrorists or ISIS supporters. Even though a majority voted to take away the rights of the other 49% of the population, it did not have the right to do so in the first place, even if it could legally do so. After all, Eichmann was acting completely legally while being at least complicit, and probably very guilty, in the murder of many Jews. The law can never serve as evidence for what is right, it can at most reflect what is right.
I hope this episode will serve as a stern warning to those who believe in populist-democracy, and who believe that a simple majority can legitimately rule a country without limitations. The abolition of democracy will happen eventually, unless the populists lose their populist feathers or the populists are defeated. As Plato noted, populist-democracy is the capital sentence for democracy.
Meanwhile, while the referendum results have been a huge setback for the Turkish opposition and the prospects for democracy in Turkey, the referendum results do not at all legitimize Erdogan’s slow murder of democracy. While rights can legally be taken away, doing so with the means Erdogan used is not more or less legitimate than illegally taking away those rights. The fight for democracy is not over yet, although in Turkey freedom is in peril and I hope that Turks will defend it with all their might.
Bottom Line: Just because a majority happens to revoke the rights of the minority, does not mean this is legitimate. Autocracy is never legitimate, not even when a majority supports it!
P.s. By now it is clear the referendum was probably rigged, however, even if it had not been rigged, it would have been illegitimate to pass the constitutional amendment by simple majority.