magnify

I·CONnect

Blog of the International Journal of Constitutional Law
Home Analysis Is Turkey in the process of adopting a new constitution or a large scale constitutional amendment? Some questions concerning constitutional theory
formats

Is Turkey in the process of adopting a new constitution or a large scale constitutional amendment? Some questions concerning constitutional theory

–Ali Acar, PhD Student at European University Institute  [ali.acar@eui.eu ]

Turkey is currently undergoing a process of drafting a new constitution. The lack of legitimacy of the present, 1982, constitution, which was originated from the 1980 military coup d’état, renders adoption of a new contitution necessary in the public opinion. There are high public expectations for the new constitution in terms of assuring democratic standards.

The process for the new constitution officially started on 19th October, 2011. In order to carry out the task of drafting, a parliamentary committee of constitutional reconciliation was established. The committee is composed of an equal number (three) members from each of the four political parties sitting in the current parliament, plus the president of the parliament who serves as the president of the committee. According to the rules of procedure the committee itself adopted, consensus/unanimity is required for each matter to be put into the draft constitution.

Some of the political parties, led by the governing Justice and Democratic Party (AKP), and the (pro-Kurdish) Peace and Democracy Party (BDP), argue that the process should lead to a totally new constitution (here in the technical/constitutional law sense of the term), while others, the Republican People’s Party (CHP) and the Nationalist Action Party (MHP), seem to hold the view that the drafting process should be directed toward a large scale constitutional amendment. In other words, the majority of the current composition of the Parliament, represented by AKP, seems to assume to itself the constituent power of a constitutional assembly, even though this claim is dubious from the perspectivess of the CHP and MHP. Of course, these different opinions will have some important consequences, which I will come below.  (By the way, the current composition of the Parliament resulted from the election of June, 2011, held for the regular term of legislative election.)

The said committee seems to now to have reached an impasse, since the consensual/unanimous decision-making rule does not resolve the different and apparently irreconcilable opinions of the political parties, especially on some particular issues. Of them, the Kurdish question and some of the proposals for its solution (such as public education in one’s mother tongue and local autonomy), and the form of government (the AKP’s insistence on presidential or semi-presidential system) are the most controversial. If the committee fails, the AKP will most probably instigate its own plan to pass the new constitution. It is not very clear at this stage if it would pursue a large scale constitutional amendment or a new constitution in the technical sense.  The AKP argues for the latter, but in a perplexed and an unconvincing manner. And this causes some complex questions concerning constitutional theory, to which I will come shortly below.

Since the political impasse is being noticed by the AKP leaders, they now make statements that they will set in motion their Plan B, according to which they will bring their own (new) constitutional proposals, including presidential or semi-presidential system, to the agenda of the Parliament very soon. However, they seem to be confused in answering one question: how will they do that, i.e. how will they adopt the new constitution in the technical sense of the term? The assumption of the constitution-making power in the current Parliament was not, at the beginning of the process, so problematic given the fact that the drafting task was being performed by the constitutional reconciliation committee and consensus was required in the committee. This challenging matter did not bring about a serious discussion, either in the public or in the scholarly debate.

However, if the committee fails and the AKP initiates its own plan, this will be a cause for concern and give rise to confusion with regard to the constituent power of the Parliament. In fact, the AKP is causing this confusion and increasing it by some of its efforts. In this sense, the most important reason of the confusion stems from the following: as the AKP is aware that, to argue for the adoption of a new constitution in the technical/constitutional law sense, they must somehow argue that the Parliament holds the constituent power. The basis for this argument for them, however, is the amendment mechanism of the present (1982) constitution. It is clearly seen in the statements and efforts of the AKP leaders that they will try to get the minimum votes required for passing constitutional amendments. This is the AKP’s confusing and unconvincing justification in asserting to adopt the new constitution.

The amendment mechanism requires at least 330 MPs’ affirmative votes (three-fifths majority) out of total 550 votes, and AKP has 325 votes.[1] It seems highly possible that AKP can compromise with BDP to pass the constitutional amendments, as their total votes are enough to do so. However, whether that would mark a new constitution in the technical sense of the term must be carefully considered. The CHP and MHP do not oppose using the amendment mechanism of the 1982 Constitution since they believe that what is being done is a large scale constitutional amendment.

AKP’s reliance on the amendment mechanism of the present constitution leads to a serious contradiction in terms of the idea of constituent power. Although the AKP assumes the current Parliament has the constituent power, they rely on an already-existing constitutional rule. However, the very definition of the constituent power suggests that the constituent power does not need, (or to put better, can ignore) any legal basis in adopting a (new) constitution. Otherwise, it will be challenged as to whether it in fact holds the constituent power. Or to put it differently, a power, assuming in itself the constituent power, but nevertheless trying to find a legal basis in an already-existing (constitutional) rule will be hardly coherent and convincing in its assumption. Therefore, the current phase of the AKP’s attempt to pass a new constitution brings about an odd or atypical situation to the very idea of constituent power.

The oddness of the AKP’s position, however, does not end at this point. What is more bizarre is that AKP is inclined to ignore, in submitting their constitutional proposals, the eternal clauses of the present constitution (the first three articles); they want to change or abandon them. Even though this might seem to be consistent with their own position — namely that the current Parliament has the constituent power — the dependence on the amendment mechanism weakens this position. Furthermore, according to constitutional law literature and also the case-law of the Turkish Constitutional Court, it is not possible to amend the eternal clauses by relying on the amendment mechanism. Furthermore, according to a recent decision by the Turkish Constitutional Court, even Article 4 of the 1982 constitution, which determines the eternal status of the first three articles, cannot be amended. [2] Here, therefore, arises another important challenge awaiting a credible legal argument.

In conclusion, AKP wants to make some fundamental political decisions (in Schmittian terms) in Turkey. However, it appears that they do not know how to do that legitimately. They, while trying to rely on one specific rule (the amendment clause) of the present constitution, ignore other important ones (the eternal clauses). Thus, the following questions need to be answered, both in general constitutional theory and specifically before attempting to pass a new constitution in Turkey:

Can such a complex and bizarre attempt in Turkey in adopting a new constitution be considered as legitimate? Considering that the constituent power does not need any legal foundation to pass a new constitution; thus legality does not have any role to play in the process, then how can it make sense to rely on an already existing constitutional rule? Can the amendment clause of the 1982 constitution be simply considered as a legitimating point in adopting the new constitution, and if so, can it also make it legally possible to ignore the rest of the Constitution? In that case, will this result be considered merely as an apocryphal act of sovereignty (to quote a Schmittian term)? And will that apocryphal act of sovereignty need to be upheld by an express public support, i.e. referendum?  If not, will that constitution be considered as a democratic one? In passing, it is relevant to state that recently some of the AKP leaders suggest that if they get more than 367 affirmative votes (see footnote 2) in adopting the new constitution, it may not be put into the referendum; and this will in line with the current constitution. Thus again, if such an end result (the new constitution) is not sent to the referendum, will that be a new democratic constitution? Can the simple assumption of the constituent power be enough to adopt the new constitution? Does it not need to be supported by an express public opinion, or is a tacit one enough?  Is there any other way to adopt a new constitution in a relatively well-functioning democratic system out of a way which comes about democratically and for the specific purpose of constitution-making, i.e. by a constituent assembly established by free and equal suffrage and for the specific purpose of constitution-making? These questions need to be considered and answered in the process undergoing in Turkey. On the other hand, if the AKP can accomplish its goal of passing the new constitution, do constitutional lawyers (and political theorists) need to re-consider the concept of constituent power, or maybe abandon or replace it with something else; Hart’s rule of recognition or some modified version of it, maybe?

I am aware that I have not offered any answer to these questions. This is simply because I do not have any, yet. But at the same time, it is in fact difficult to have answers in the middle of the constitution-making process going on in Turkey, as it is still ambiguous what the process will turn out to be. Yet, those questions, I believe, are worth thinking about. I wanted to share these initial questions and concerns, as they might be interesting to the international academic world, and to get some useful feedback.



[1] According to the amendment mechanism (Art. 175), if a constitutional amendment is passed by three-fifths, but less than two-thirds majority (367 votes), the President shall send it to the referendum or send it back to the Parliament for re-consideration. If a constitutional amendment is passed in the first place, by more than two-thirds majority, the President can either accept and signed it into law or send it to the referendum or send it to the Parliament for re-consideration. In the first case i.e. the adoption of a constitutional amendment by three-fifths majority, the referendum is obligatory, whereas in the second (adoption by the two-thirds majority) it depends on The President’s discretion. If a constitutional amendment sent back by the President to the parliament for re-consideration is adopted again (and this time can be adopted only) by 367 votes, this time the President shall sign it into law or can send it to the referendum.

[2] File No: 20080/16, Decision No: 2008/116, published in the Official Gazette on October, 22, 2008.

Suggested citation: Ali Acar, Is Turkey in the process of adopting a new constitution or a large scale constitutional amendment? Some questions concerning constitutional theory, ICONnect blog, May 13, 2013, available at http://www.iconnectblog.com/2013/05/is-turkey-in-the-process-of-adopting-a-new-constitution-or-a-large-scale-constitutional-amendment-some-questions-concerning-constitutional-theory/

 

Print Friendly
Published on May 13, 2013
Author:          Filed under: Analysis
 

12 Responses

  1. […] article has been published on ICONnect Blog before and is crossposted here with kind […]

  2. Tom Ginsburg

    Might one characterize the AKP strategy as covering all bases? Something like the following: We, the parliament, claim to have the pouvoir constituent, but, just in case you dont believe that, we will follow the amendment procedures of the previous [illegtimate] constitution? Their supporters might go for the first argument, while their opponents might go for the second.

    • Serkan Yolcu

      Prof. Ginsburg, this is exactly what AKP is planning. Besides, apart from the debates on constituent power the real issue is to reach a political consensus..if AKP continues to insist on “presidential system”, the technical constitution making process will not matter, but the govermental system would have been changed by majoritarian way.

    • Ali Acar

      But then a question immediately arises, as I put it in the post, i.e. what about the eternal clauses? In another words, if one agrees with the AKP’s position of following the amendment mechanism, but nevertheless believes that the process is directed towards an extensive revision, then the controversy as to whether AKP can amend or abolish the eternal clauses will not be resolved.

  3. Andrew Arato

    Excellent on the deadlock, and what AKP is trying to do on two tracks.

    Two things. The piece overemphasizes the difference between amendment and making a new constitution. There is no contradiction between using an amendment rule and making a constitution in general. Some constitutions allow total revision, by using the same or a higher level rule. Spain for example. In Hungary this was done twice, in 1989 and 2011. In turkey there is a special issue though, as the author says, namely the eternal clauses. These would indeed allow court review of even a new constitution, working in effect like the 34 principles in south africa.

    Secondly, even Schmitt, who in any case should not be followed, does not require illegality or extra legality. He only says that it is besides the point, that legality is not required and would not be the source of authority. Oman can is the only one in turkey, and maybe strap yazici who are commend illegality. But this is surely not the AKP position.

    • Ali Acar

      I take Prof. Arato’s remarks very seriously as to whether the end result of the process (a new constitution or an extensive revision) can be subjected to judicial review by the Constitutional Court. However, if one adheres to the view that it is a new constitution and if the eternal clauses found in the present, 1982, Constitution are abolished, then suggesting that judicial review is still possible will be problematic. Therefore, I do still think that the distinction between the claim of adopting a new constitution or extensive constitutional amendment is important, at least on the basis of the Turkish constitution, if not in constitutional theory in general in such a situation.

  4. Andrew Arato

    That was Osman Can, and SErap Yazici

  5. Adem K Abebe

    This piece raises an important question: the difference between the constituent power and the amending power!!

    1. Often a constituent power adopts a new constitution with a mere majority vote. And in some cases referendums are held! Amendments on the other hand require more than majority vote, plus in some cases a referendum (as is the case in Turkey)! As such, is it possible to argue that the amending power requires broader consensus than the constituent power. The amending power may be theorised as a superior constituent power? Of course, this assumes that the parliament approving amendments or a new constitution is democratically elected!

    Also perhaps Kelsons idea of revolutions may be of help here. Can we consider the changes brought about by amendments as fundamental or revolutionary, in which case there validity cannot/should not depend on compliance with existing constitutions?

    2. The idea that the constituent power should operate without legal limits may theoretically sound viable. In practice, however, the existence of some limits may actually enhance the legitimacy or wide acceptance of a constitution! Or at least some limits may be necessary to create the conditions to constitute the constituent power!! A good example is the making of the South African Constitution! The validity of the final constitution actually depended on its compatibility with the 34 principles that were adopted by competing parties, none of which could claim any formal democratic legitimacy! Precisely, the validity of the final ‘legitimate’ constitution depended on its compatibility with ‘illegitimate’ principles! Nonetheless, agreement on the principles was necessary not only for starting the constitutional writing process but also for ending apartheid!!

  6. Andrew Arato

    Problematic?

    And who will decide whether it is open to constitutional review? The court! Admittedly it is a packed court, but even packed courts can pack surprises.

    The parity based constitutional commissions job by the way is to make a new constitution. But the power to make anew constitution is unlimited only if we adhere to a theory like Schmitts. We should not. The German court e.g does not accept this view re art. 146.

    I don’t know why anyone should be pushing this outmoded position, clearly obsolete after South Africa.

    • Andrew Arato

      The only secure way to avoid a court review is to get a high level consensus, so there are not 110 or so votes available to those opposed. Then no one has standing to go to the court. But calling a new constitution is only a verbal trick, and need not work.

    • Ali Acar

      I am aware that at the end of the day it is not the power of any concept (even of the constituent power) which determines the outcome. It is the sociology/praxis which lies behind it. In this sense, then I am wondering if Prof. Arato will dis/agree with my suggestion/question that constitutional lawyers should reconsider or maybe abandon the concept of constituent power. And instead of it, Hart’s rule of recognition may be espoused and it can play a role to account for the situation, like the one in Turkey. Because I think that Hart, somehow, explains this sociology, but of course the concept of rule of recognition itself may appear to stand in need of revision or adaptation to constitution-making situation.

  7. Andrew Arato

    I just reviewed the last note here, sorry. I do not agree with david dyzenhaus and others that the concept of the constituent power should be abandoned. You sem to identify it, as does he, with the schmittian notion. It is that notion that should be abandoned. The concept is older than schmitt and has had a subsequent history too.

    I would define it after spain, cenral europe and south africa as strongly enhanced legitimacy in constituent legislation. A combination of authority and power. High consensus is the way to achieve that. In turkey that would have been possible, as in the90s, had the akp give up its presidentialist ambition.

Leave a Reply

Your email address will not be published. Required fields are marked *