Acar, Ali

Ali Acar

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Constitutional Renewal in Turkey:Some Questions ConcerningConstitutional TheoryAli Acar 2013-05-14T13:48:32Turkey is currently undergoing a process of drafting a new constitution. The lack oflegitimacy of the present, 1982, constitution, which was originated from the 1980military coup d’état, renders adoption of a new contitution necessary in the publicopinion. There are high public expectations for the new constitution in terms ofassuring democratic standards.The process for the new constitution officially started on 19th October, 2011. Inorder to carry out the task of drafting, a parliamentary committee of constitutionalreconciliation was established. The committee is composed of an equal number(three) members from each of the four political parties sitting in the currentparliament, plus the president of the parliament who serves as the president ofthe 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 theprocess should lead to a totally new constitution (here in the technical/constitutionallaw sense of the term), while others, the Republican People’s Party (CHP) and theNationalist Action Party (MHP), seem to hold the view that the drafting processshould 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, eventhough 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 comebelow.  (By the way, the current composition of the Parliament resulted from theelection of June, 2011, held for the regular term of legislative election.)The said committee seems to now to have reached an impasse, since theconsensual/unanimous decision-making rule does not resolve the different andapparently irreconcilable opinions of the political parties, especially on someparticular issues. Of them, the Kurdish question and some of the proposals for itssolution (such as public education in one’s mother tongue and local autonomy), andthe form of government (the AKP’s insistence on presidential or semi-presidentialsystem) are the most controversial. If the committee fails, the AKP will most probablyinstigate its own plan to pass the new constitution. It is not very clear at this stageif it would pursue a large scale constitutional amendment or a new constitutionin the technical sense.  The AKP argues for the latter, but in a perplexed andan unconvincing manner. And this causes some complex questions concerningconstitutional theory, to which I will come shortly below.- 1 -Since the political impasse is being noticed by the AKP leaders, they now makestatements that they will set in motion their Plan B, according to which they will bringtheir own (new) constitutional proposals, including presidential or semi-presidentialsystem, to the agenda of the Parliament very soon. However, they seem to beconfused in answering one question: how will they do that, i.e. how will they adoptthe new constitution in the technical sense of the term? The assumption of theconstitution-making power in the current Parliament was not, at the beginning of theprocess, so problematic given the fact that the drafting task was being performedby the constitutional reconciliation committee and consensus was required in thecommittee. This challenging matter did not bring about a serious discussion, either inthe public or in the scholarly debate.However, if the committee fails and the AKP initiates its own plan, this will be acause for concern and give rise to confusion with regard to the constituent powerof the Parliament. In fact, the AKP is causing this confusion and increasing it bysome of its efforts. In this sense, the most important reason of the confusion stemsfrom the following: as the AKP is aware that, to argue for the adoption of a newconstitution in the technical/constitutional law sense, they must somehow arguethat the Parliament holds the constituent power. The basis for this argument forthem, 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 tryto get the minimum votes required for passing constitutional amendments. This isthe AKP’s confusing and unconvincing justification in asserting to adopt the newconstitution.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 highlypossible 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 anew 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 1982Constitution since they believe that what is being done is a large scale constitutionalamendment.AKP’s reliance on the amendment mechanism of the present constitution leads toa serious contradiction in terms of the idea of constituent power. Although the AKPassumes the current Parliament has the constituent power, they rely on an already-existing constitutional rule. However, the very definition of the constituent powersuggests 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 asto 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 basisin an already-existing (constitutional) rule will be hardly coherent and convincing inits assumption. Therefore, the current phase of the AKP’s attempt to pass a newconstitution brings about an odd or atypical situation to the very idea of constituentpower.The oddness of the AKP’s position, however, does not end at this point. Whatis more bizarre is that AKP is inclined to ignore, in submitting their constitutional- 2 -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 consistentwith their own position — namely that the current Parliament has the constituentpower — the dependence on the amendment mechanism weakens this position.Furthermore, according to constitutional law literature and also the case-law ofthe Turkish Constitutional Court, it is not possible to amend the eternal clauses byrelying on the amendment mechanism. Furthermore, according to a recent decisionby the Turkish Constitutional Court, even Article 4 of the 1982 constitution, whichdetermines 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 (inSchmittian terms) in Turkey. However, it appears that they do not know how to dothat legitimately. They, while trying to rely on one specific rule (the amendmentclause) of the present constitution, ignore other important ones (the eternal clauses).Thus, the following questions need to be answered, both in general constitutionaltheory and specifically before attempting to pass a new constitution in Turkey:Can such a complex and bizarre attempt in Turkey in adopting a new constitutionbe considered as legitimate? Considering that the constituent power does notneed any legal foundation to pass a new constitution; thus legality does not haveany role to play in the process, then how can it make sense to rely on an alreadyexisting constitutional rule? Can the amendment clause of the 1982 constitution besimply considered as a legitimating point in adopting the new constitution, and ifso, can it also make it legally possible to ignore the rest of the Constitution? In thatcase, will this result be considered merely as an apocryphal act of sovereignty (toquote a Schmittian term)? And will that apocryphal act of sovereignty need to beupheld by an express public support, i.e. referendum?  If not, will that constitution beconsidered as a democratic one? In passing, it is relevant to state that recently someof the AKP leaders suggest that if they get more than 367 affirmative votes (seefootnote 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 democraticconstitution? Can the simple assumption of the constituent power be enoughto adopt the new constitution? Does it not need to be supported by an expresspublic opinion, or is a tacit one enough?  Is there any other way to adopt a newconstitution in a relatively well-functioning democratic system out of a way whichcomes about democratically and for the specific purpose of constitution-making,i.e. by a constituent assembly established by free and equal suffrage and for thespecific purpose of constitution-making? These questions need to be consideredand answered in the process undergoing in Turkey. On the other hand, if the AKPcan accomplish its goal of passing the new constitution, do constitutional lawyers(and political theorists) need to re-consider the concept of constituent power, ormaybe abandon or replace it with something else; Hart’s rule of recognition or somemodified version of it, maybe?I am aware that I have not offered any answer to these questions. This is simplybecause I do not have any, yet. But at the same time, it is in fact difficult to have- 3 -answers in the middle of the constitution-making process going on in Turkey, as it isstill 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, asthey might be interesting to the international academic world, and to get some usefulfeedback.[1] According to the amendment mechanism (Art. 175), if a constitutional amendmentis passed by three-fifths, but less than two-thirds majority (367 votes), the Presidentshall 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-thirdsmajority, the President can either accept and signed it into law or send it to thereferendum or send it to the Parliament for re-consideration. In the first case i.e. theadoption of a constitutional amendment by three-fifths majority, the referendum isobligatory, whereas in the second (adoption by the two-thirds majority) it depends onThe President’s discretion. If a constitutional amendment sent back by the Presidentto the parliament for re-consideration is adopted again (and this time can be adoptedonly) by 367 votes, this time the President shall sign it into law or can send it to thereferendum.[2] File No: 20080/16, Decision No: 2008/116, published in the Official Gazette onOctober, 22, 2008.——This article has been published on ICONnect Blog before and is crossposted herewith kind permission.- 4 -

Constitutional Renewal in Turkey: Some Questions Concerning Constitutional Theory

Constitutional Renewal in Turkey: Some QuestionsConcerning Constitutional Theory verfassungsblog.de /constitutional-renewal-in-turkey-some-questions-concerning-constitutional-theory/Ali Acar Di 14 Mai 2013Turkey 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 contitutionnecessary in the public opinion. There are high public expectations for the new constitution in terms of assuringdemocratic 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 equalnumber (three) members from each of the four political parties sitting in the current parliament, plus the president ofthe parliament who serves as the president of the committee. According to the rules of procedure the committee itselfadopted, 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) Peaceand Democracy Party (BDP), argue that the process should lead to a totally new constitution (here in thetechnical/constitutional law sense of the term), while others, the Republican People’s Party (CHP) and theNationalist Action Party (MHP), seem to hold the view that the drafting process should be directed toward a largescale 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 thisclaim is dubious from the perspectivess of the CHP and MHP. Of course, these different opinions will have someimportant consequences, which I will come below.  (By the way, the current composition of the Parliament resultedfrom 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-makingrule does not resolve the different and apparently irreconcilable opinions of the political parties, especially on someparticular issues. Of them, the Kurdish question and some of the proposals for its solution (such as public educationin one’s mother tongue and local autonomy), and the form of government (the AKP’s insistence on presidential orsemi-presidential system) are the most controversial. If the committee fails, the AKP will most probably instigate itsown plan to pass the new constitution. It is not very clear at this stage if it would pursue a large scale constitutionalamendment or a new constitution in the technical sense.  The AKP argues for the latter, but in a perplexed and anunconvincing manner. And this causes some complex questions concerning constitutional theory, to which I willcome shortly below.Since the political impasse is being noticed by the AKP leaders, they now make statements that they will set inmotion their Plan B, according to which they will bring their own (new) constitutional proposals, including presidentialor semi-presidential system, to the agenda of the Parliament very soon. However, they seem to be confused inanswering one question: how will they do that, i.e. how will they adopt the new constitution in the technical sense ofthe term? The assumption of the constitution-making power in the current Parliament was not, at the beginning of theprocess, so problematic given the fact that the drafting task was being performed by the constitutional reconciliationcommittee and consensus was required in the committee. This challenging matter did not bring about a seriousdiscussion, 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 toconfusion with regard to the constituent power of the Parliament. In fact, the AKP is causing this confusion andincreasing it by some of its efforts. In this sense, the most important reason of the confusion stems from the1/3following: as the AKP is aware that, to argue for the adoption of a new constitution in the technical/constitutional lawsense, they must somehow argue that the Parliament holds the constituent power. The basis for this argument forthem, however, is the amendment mechanism of the present (1982) constitution. It is clearly seen in the statementsand efforts of the AKP leaders that they will try to get the minimum votes required for passing constitutionalamendments. 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 constitutionalamendments, as their total votes are enough to do so. However, whether that would mark a new constitution in thetechnical sense of the term must be carefully considered. The CHP and MHP do not oppose using the amendmentmechanism of the 1982 Constitution since they believe that what is being done is a large scale constitutionalamendment.AKP’s reliance on the amendment mechanism of the present constitution leads to a serious contradiction in terms ofthe idea of constituent power. Although the AKP assumes the current Parliament has the constituent power, they relyon an already-existing constitutional rule. However, the very definition of the constituent power suggests that theconstituent 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 theAKP’s attempt to pass a new constitution brings about an odd or atypical situation to the very idea of constituentpower.The oddness of the AKP’s position, however, does not end at this point. What is more bizarre is that AKP is inclinedto ignore, in submitting their constitutional proposals, the eternal clauses of the present constitution (the first threearticles); they want to change or abandon them. Even though this might seem to be consistent with their ownposition — namely that the current Parliament has the constituent power — the dependence on the amendmentmechanism weakens this position. Furthermore, according to constitutional law literature and also the case-law ofthe Turkish Constitutional Court, it is not possible to amend the eternal clauses by relying on the amendmentmechanism. Furthermore, according to a recent decision by the Turkish Constitutional Court, even Article 4 of the1982 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, itappears that they do not know how to do that legitimately. They, while trying to rely on one specific rule (theamendment clause) of the present constitution, ignore other important ones (the eternal clauses). Thus, the followingquestions need to be answered, both in general constitutional theory and specifically before attempting to pass anew 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 legalitydoes not have any role to play in the process, then how can it make sense to rely on an already existingconstitutional rule? Can the amendment clause of the 1982 constitution be simply considered as a legitimating pointin adopting the new constitution, and if so, can it also make it legally possible to ignore the rest of the Constitution? Inthat case, will this result be considered merely as an apocryphal act of sovereignty (to quote a Schmittian term)? Andwill that apocryphal act of sovereignty need to be upheld by an express public support, i.e. referendum?  If not, willthat constitution be considered as a democratic one? In passing, it is relevant to state that recently some of the AKPleaders suggest that if they get more than 367 affirmative votes (see footnote 2) in adopting the new constitution, itmay 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 simpleassumption of the constituent power be enough to adopt the new constitution? Does it not need to be supported by2/3an express public opinion, or is a tacit one enough?  Is there any other way to adopt a new constitution in a relativelywell-functioning democratic system out of a way which comes about democratically and for the specific purpose ofconstitution-making, i.e. by a constituent assembly established by free and equal suffrage and for the specificpurpose of constitution-making? These questions need to be considered and answered in the process undergoing inTurkey. On the other hand, if the AKP can accomplish its goal of passing the new constitution, do constitutionallawyers (and political theorists) need to re-consider the concept of constituent power, or maybe abandon or replace itwith 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. Butat the same time, it is in fact difficult to have answers in the middle of the constitution-making process going on inTurkey, as it is still ambiguous what the process will turn out to be. Yet, those questions, I believe, are worth thinkingabout. I wanted to share these initial questions and concerns, as they might be interesting to the internationalacademic world, and to get some useful feedback.[1] According to the amendment mechanism (Art. 175), if a constitutional amendment is passed by three-fifths, butless than two-thirds majority (367 votes), the President shall send it to the referendum or send it back to theParliament for re-consideration. If a constitutional amendment is passed in the first place, by more than two-thirdsmajority, the President can either accept and signed it into law or send it to the referendum or send it to theParliament for re-consideration. In the first case i.e. the adoption of a constitutional amendment by three-fifthsmajority, the referendum is obligatory, whereas in the second (adoption by the two-thirds majority) it depends on ThePresident’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 itinto 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.——This article has been published on ICONnect Blog before and is crossposted here with kind permission.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Acar, Ali: Constitutional Renewal in Turkey: Some Questions Concerning ConstitutionalTheory, VerfBlog, 2013/5/14, http://verfassungsblog.de/constitutional-renewal-in-turkey-some-questions-concerning-constitutional-theory/.3/3

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Constitutional Renewal in Turkey: Some Questions Concerning Constitutional Theory

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