Professor Kaboğlu: This system will not work
CHP MP Professor İbrahim Kaboğlu is going from constitutional theorising to parliament and constitutional practice. Kaboğlu says, “The ruling party and People’s Alliance will see in practice that the text of the new constitution is not sustainable. Turkey’s future lies in democracy and the rule of law.”
CHP Istanbul MP Prof. Dr. İbrahim Kaboğlu is entering parliament with his grounding in constitutional doctrine and constitutional practice. He is modest enough to say, “I hope I will make a contribution towards democracy.” We come together at the Constitutional Association in Kadıköy to assess the elections. I find the scholar trying to complete his writing tasks from which he was separated while campaigning for the election. During our interview, he finds out the place of his room in parliament in a phone call from Ankara. We have conducted numerous interviews about the state of emergency and constitutional amendment following his dismissal from Marmara University under a decree with the force of law. I am once more left in amazement at his belief in the law and the courteousness that marks his style. On the other hand, his application to the state of emergency commission has remained unadjudicated for months. He still does not even have a passport. He was unable to attend the Constitutionalists’ World Congress held in Seoul two weeks ago at which he was a session chair and speaker. With an eye on the coming days, Kaboğlu opines, “Implementing the Constitution and respecting the Constitution will bring about an amelioration in Turkey on its own, because just now the Constitution is suspended.”
The election has ended. What comes now?
According to the Constitution, legislative power cannot be transferred. In spite of everything, the legislative organ must and can exercise its own powers. A struggle must be waged for this. While amending the Constitution, they said, “We did this to make parliament strong.” They also spoke of a “strong parliament” in the election campaign. It is now the time to give a reminder of all this. If you are consistent, it is time to say, “You perform your executive duties and let us perform our legislative duties.” The opposition lacks the strength on its own. At least a portion of the ruling party’s MPs must also believe this. Otherwise, if they remain beholden to the two leaders, it will be necessary to remind them of their leader Erdoğan’s electoral pronouncements.
What is your take on the discussions experienced in the CHP immediately after the election?
The discussion that emerged is a vicious circle because the most consistent party in the election period was the CHP. Given that the goal was to return to a parliamentary regime, the President must be impartial and must not be a party chair. A party chair is standing for President. The President must be above daily politics and be the President of the entire country. Talk such as of Muharrem İnce moving in to chair the party amounts to the CHP abandoning its parliamentary regime goal. This goal must not be abandoned so fast. The ruling party and People’s Alliance will see in practice that the text of this new constitution is not sustainable.
Why is it not sustainable?
The early election is a sign of this. There is no reason for the elections slated for November 2019 to have been brought forward. I have been unable to find the answer to this as a constitutionalist. You are violating the text of the constitution you yourselves have made and cannot explain to the public why you have done so. In this violation, Bahçeli was more reasonable. He spoke of 26 August for the election. If I had been a member of the Supreme Election Board, I would have suggested, “Let us have another two months.” They should have said, “Time is needed to enable us to perform this task in accordance with the Constitution.” Maybe they said so, maybe they did not dare. We have no way of knowing. Millions of university students were set to take exams. In a business that concerns a population of ten million including the families, you take a decision like two people pushing the car’s brake backwards and forwards. These are not commonplace things. Then, the most important component of a free election, canvassing, could not be conducted.
The president was able to, though.
One side in any case is constantly canvassing. He has the monopoly over television. The screens are suddenly cut off. This situation has virtually turned into a law of physics.
"The will of the people is being mocked with seven elections in eight years"
What is your take on the early election decision?
You make constitutional amendments in a state of emergency period. You amend the constitution by non-constitutional means. You also confess to having won the referendum thanks to the state of emergency. As if this were not enough, you do not abide by the timetable laid down in the Constitution you yourselves have made. You do not lift the state of emergency but speak of lifting the state of emergency in the middle of the campaign to get votes. You make use of all these things to preserve your power. And you call this a free election. Let us recall the 16 April referendum. The elections were to be held on 3 November 2019. The harmonisation laws were to be enacted within six months. The parliamentary elections and presidential elections were to be held together if parliament brought them forward. The failure for the harmonisation laws to have been made in one year is a violation of the Constitution through negligence. Two people took the early election decision that was the prerogative of parliament. Parliament approved this after six days. But, the reason is not announced. When there is talk of the election, the President says “We must go to the polls.” This lacks credibility because Turkey has never stopped polling. We have become polling addicts. Most people cannot count the number of elections held in the 2010’s. Seven elections in eight years. This amounts to an abuse of elections. You are constantly sending people to the polls and rob elections and referendums of all seriousness and democratic function. You are simply mocking the will of the people.
Can you give a snapshot of the election day?
A double election was held for the first time in Turkey’s history. I witnessed for the first time presidential and parliamentary elections being held on the same day, at the same ballot boxes and in the same envelopes in a country that has placed contemporary democracy in its constitution. I saw how busy the counting officials were and women, young people and the elderly waiting one after the other in queues with sacks of votes. Talk of electoral fraud comes on top of this. One example: under an amendment made to Law number 298, it was stipulated that ballot box committee chairs had to be public servants; but even in Istanbul No 1 Region I witnessed a large number of election result tallies that had not been filled in correctly. It is disagreeable to witness such things in a country that has been holding elections for 140 years. Since the night of 24 June, the Nation Alliance plus HDP, with the CHP placed in the centre, have become the ruling party’s Aunt Sally. They saw them as a coffin stone.
We can ask if comes down to repression of the fact of having lost sole power. Above all the CHP, the Nation Alliance as an opposition block and the HDP should not rise to this bait. How did the elections end and who took what vote from whom? I will not go into this. But, had the requirements of Article 67 of the Constitution and Article 3 of Supplementary Protocol No 1 of the European Convention on Human Rights been met, I would have done so. The big picture must be viewed since 2010, at the very least since 1 June 2015. If we do not do so, we will be unable to see the wood.
Did the opposition being in solidarity despite difficulties of all kinds cause disquiet?
Our duty to speak the truth is more pressing than ever. No inquiry is made as to whose money was spent on those who spoke for hours about the CHP and those giant billboards and the posters that spread around the country. I wonder how much of the National Education budget you spent on these posters. One person tries to catch fish with a rod while another throws dynamite into the stream and ruins the lake. During the campaign, Presidential Complex officials tried in one-sided speeches lasting hours on the TV screens under an order from the top to inject the people with tainted information that the new arrangement was a revolution. Correct information imparted with the aim of helping to raise public constitutional and political awareness can, however, only be screened when limited to minutes. Despite all this, the audacity to constantly attack the opposition is never absent.
What will we see when we look at the wood?
Let us first recall the following word. Exploratory. Ahmet Davutoğlu said, “We did not hold coalition talks with the CHP, we held exploratory talks.” That is, he said they deceived the CHP. While the process was continuing, the President said about Kılıçdaroğlu, “He does not know the way to the Presidential Complex for me to assign him the task.” When you say that, this means you are following an extraconstitutional path. His saying, “What did they ask for that we did not give?” in the 17/25 December period was a historic sentence. The 1 November early election decision was an operation that the President staged using Davutoğlu. The 1 November elections were embarked on under a constitutional coup. Let us not forget the Suruç, Ankara, Sultanahmet, Beşiktaş and İstiklal Street explosions, either. We have not experienced another such five months again in our history. Let me not go into the 15 July coup attempt, but we must never forget that we ended up with 15 July not due to the Constitution but because the imperative provisions of the Constitution were violated and the coupists were the government’s visible but illegal partner for ten years. So, you can win the election, but there is a need to look at the environment and conditions within which you won and how the state of emergency was used. One leader uses all the state’s resources and another leader, conversely, tries to give out messages through the peephole, from prison. Even that is felt to be an overindulgence. You are left wondering whether this is a virtual world.
Is saying, “There were no ovens in homes fifteen years ago” a sign of a virtual world?
Making society out to be stupid. He is debasing society in any case by sending it to the polls again and again. An administration that does not take the ballot box seriously cannot be regarded as being a democratic administration.
Does Erdoğan constantly go to the polls because he believes he will be elected?
You need to ask if you were not the one who accused Bahçeli of fleeing the Ecevit government. Has Bahçeli now made you flee? Did you flee because you were unable to govern the country despite having the majority? Or was it with the thought that you could only win the election if you held a snap election? If the first is true and you fled, how are you going to govern now? If you did it with the thought that you would win, this means you did it to pressurise the opposition. And this is contrary to the relevant articles of the Constitution. The upshot is that the election entails serious legitimacy issues from a constitutional point of view.
"Let us not lose our hope"
How do you assess the coming days in Turkey?
Let us recall the two-year crisis. Families were devastated and households destroyed. Turkey was kept outside the constitutional order. The principle of personal responsibility in crime and punishment was removed. Crime and punishment were redefined. The right to a fair trial was destroyed. Society was kneaded like dough with the desire for it to be redesigned. They thus left society bereft of strength to resist and show solidarity. Of the 130,000 people to have applied to the State of Emergency Commission, maybe 30,000 or maybe 100,000 people are guilty, but we do not know. No legal procedure has been conducted. Tens of people about whom no decision has been taken have had their lives and time that will not come back again stolen from them. They have imprisoned our young colleagues in our country. Sanctions on a global scale have been imposed. Well, is this not a crime against humanity? Can the trauma suffered by a five or fifteen-year-old child in this process be wiped clean? This period is an extralegal period and we would do well not to detract from its seriousness by comparing it with other periods. In my view, soldiers suspending the Constitution is more honest. You harp on about the rule of law applying in Turkey and the judiciary being independent, then suspend the judiciary. This is far more dangerous. Now, implementing the Constitution and respecting the Constitution will bring about an amelioration in Turkey on its own, because just now the Constitution is suspended.
What is the first thing you will do on entering parliament?
I have until now been a constitutional theorist. I will now return to the position of constitutional student after some fifty years. In fact, they assigned practical work in court (the human rights report case and the peace declaration case). I have always believed in the power and efficacy of the law. Their inability to stop me from standing following the application made to the Supreme Election Council shows that there is still hope in this land. They were gunning for me until the last. Of course, as I have done even at the worst of times, I will never consign the law to the background. Regardless of how many non-believers in the law I am faced with, and how many extralegal concepts they employ. I will keep trying to explain to them that they, too, need the law.
Is it still important to be a parliamentarian in this system?
It is. I have set out to be a parliamentarian with the aim of making parliament functional. Because parliament must be made functional. It is the legislative, main organ according to our Constitution. Our historic attainments are based on the supremacy of parliament, ever since Ottoman times. We have very important parliamentary experience that does not exist in other countries. It was the first and second parliament that founded the Republic of Turkey. This parliament must regain its former esteem. I am entering parliament 48 years after registering at Ankara Law Faculty in 1970.This will be my second stint as a law student. I will be there to bring about the implementation of the law I learnt at the law faculty. Of course, this time I am not gripped with the passion to learn about the law I had in the 1970’s.
What will be your priority as the opposition in parliament?
What we need to do is constantly remind ruling party MPs of their oaths to enable parliament to constantly function as the venue for constitutional guarantee. We are faced by the fact that the Republic will be unable to advance towards its hundredth year under the constitutional amendments Turkey voted in on 16 April. There is a need for a democratic constitution that gains consent with broad agreement. I am sure that, once the state of emergency is lifted, there will be many members of parliament within both the AKP and MHP who will believe in the need for a return to a constitutional arrangement that provides for a mechanism of constitutional balance and oversight and incorporates the trio of duty, power and responsibility. The important thing is being able to get this across to them and never to close the paths of dialogue.
Do you have warnings for opposition opinion circles?
The CHP could have said, “We consent to what is in the offing apart from the undemocratic Constitution. It is the captain who saves the ship.” But, it elected to foil the ruling party’s plans and for the path of democracy. Ignoring that the AKP has fallen into a minority in parliament and that Erdoğan became President thanks the MHP with which the AKP made an alliance and attacking the CHP will mean endeavour being wasted. We must work painstakingly and in excellence and solidarity without ever losing sight of our idealism that Turkey’s future lies in democracy and the rule of law. We must steer clear of the information pollution zone they will try to drag us into.
With its end touted, the parliamentary system has become history? What are your feelings?
I expected us to get the majority. We deserved more. Losing came as a blow but what made me far sadder was that this losing was not a normal process of losing. The government has become history in the context of developments in which the constitutional order has been done away with through force and compulsion. Let us not delve into Ottoman history, but I am sad because a cross sign has been placed over the constitutional and political memory that has formed since Abdülhamit the Second for whom they have no end of praise. I love Turkey. I love it with all our historical, cultural and natural heritage. Even though I am sad as a child of this soil, as a Republic of Turkey citizen. My dual sorrow is compounded as one who has devoted his life to expertise in this subject. They have erased the constitutional order that had existed for 140 years since 1876 and the Republic of Turkey’s curriculum vitae. Turkey’s countenance will change but let us nevertheless not lose our hope.
Finally, if İsmail Küçükkaya had written to you on WhatsApp on election night, what would you have said?
I would have said, “This sorrow defies description.”
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