Abstract
Constitutional Conciliation Commission (Anayasa Uzlaşma Komisyonu—AUK) of Turkey, established after the 2011 general elections but called off after the commission could not overcome an impasse on a number of issues, was nevertheless a significant experience in Turkey’s constitutional development. One of the issues that led to the deadlock in the commission was the controversy over unamendable articles. A point of divide among the four parties that made up the commission was whether the new constitution would maintain the eternal clauses of the present constitution that entrench the republic form of the state, its characteristics, and its language or whether it would not include any irrevocable articles. Except the republic’s first constitution of 1921, the three constitutions of modern Turkey included unamendable constitutional provisions, which had previously led to political and constitutional controversies. The subject of unamendable articles was one of the last issues that the commission discussed before the 25 months of enterprise was dissolved. This article traces the evolution of unamendable articles in Turkish constitutions, examines the political parties’ proposals for the draft constitution and analyzes the debates conducted within AUK. It concludes that members of the AUK held irreconcilable positions with respect to unamendability and unamendable articles, which contributed to the breakdown of the negotiations.
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Notes
- 1.
Hein (2015).
- 2.
The issue of unamendable articles do come up rarely outside of these dates because the members of the commission decided to follow a roadmap in which these contentious issues were deliberately postponed to latter stages of drafting.
- 3.
Yazıcı (2001), pp. 22–32 and 36–40.
- 4.
The Law on Constituent Assembly (June 30, 1981) charged the assembly with drafting the electoral law, political parties law and took on legislative functions. Özbudun (2005), pp. 19–50.
- 5.
It was headed by General Kenan Evren, then the Chief of General Staff and also included the commanders of the army, navy, air force and gendarmerie.
- 6.
The previous Turkish constitution, the Constitution of 1961 was also a direct result of military intervention and was prepared under military influence. However, in terms of its adoption process the 1961 Constitution is considered more “representative”. The House of Representatives of the 1960–1961 period included opposition parties and other institutions while the Consultative Assembly of the 1981–1982 period members of all political parties were prohibited from becoming members.
- 7.
During the 1960–1961 period, National Unity Committee (NUC) the military committee that executed the takeover did not have such absolute power over the House of Representatives Özbudun and Gençkaya (2009), p. 20.
- 8.
Özpek (2012), p. 153.
- 9.
Provisional Article 1, 1982 Constitution of Turkey, Law no 2709. The permanent formula for electing the president was via the parliament indirectly. Evren’s presidency deviated from this as he was elected directly by the referendum.
- 10.
Yazıcı (2001), p. 6. As a result of constitutional overhaul that transformed Turkey’s parliamentary system to an executive dominated presidential system with weak checks and balances in April 2017, such criticisms have lost their relevance.
- 11.
Göztepe and Çelebi (2012), p. 17. As the authors point out, an exception to this was the demand expressed by former prime minister and later former president Turgut Özal to change the parliamentary system and adopt presidential system, p. 18.
- 12.
Cengiz (2014), p. 682.
- 13.
The 2008 constitutional amendment regarding the principle of equality (Article 10) and right to education (Article 42) was annulled by the Turkish Constitutional Court. If one includes this revoked amendment, the parliament has actually passed 18 amendments. See Roznai and Yolcu (2012), p. 175.
- 14.
- 15.
For more on the process of the 1995 amendment-making, see Doğanay (2007), p. 388.
- 16.
See Özbudun and Gençkaya (2009), pp. 31–72.
- 17.
- 18.
- 19.
Yüksel (2007).
- 20.
Coşkun (2013), p. 95.
- 21.
- 22.
Atikcan and Öge (2012).
- 23.
AKP during this period asked a group of scholars to draft a new constitution. Özbudun and Gençkaya (2009), pp. 104–106.
- 24.
Coşkun (2013), p. 109.
- 25.
In response to the petition of a group of members of the parliament, the Constitutional Court reviewed the constitutional amendment package and annulled for the provision that limited judges and prosecutors “to vote for only one candidate” on the account that it was a violation of rule of law, which is one of the principles stated in the unamendable articles. However, the court refused to review the package as a whole on formal grounds. See Tarık Olcay, “Unamendability of Amendable Clauses: The Case of the Turkish Constitution” in this volume.
- 26.
Parliamentary arithmetic alone cannot explain the variance in procedure especially during the dominant party (AKP) period. Between 2007 and 2011, when the AKP broke the pattern of inter-party compromise tradition of 1990s and 2001, it had increased its electoral support but the percentage of parliamentary seats of AKP had become smaller. See Arato and Tombus (2013). During the making of 2004 amendments, AKP had almost two-thirds of parliamentary seats to amend the constitution, but received the support of opposition parties. However, later, when AKP pushed through the 2010 amendments via a referendum, it had less parliamentary seats (less than three-fifths).
- 27.
According to Doğanay, it is not possible to simply consider the 1995 amendments a result of EU influence. It would be better “described as a general undertaking shaped by the will of the Turkish parliament itself since we cannot talk about clearly defined and dictated standards of democratization of the EU before the Helsinki summit”, Doğanay (2007), p. 389. EU standards played a much crucial role in 2001, see Gönenç (2004), p. 109.
- 28.
Kalaycıoğlu (2011), p. 265.
- 29.
Ibid, pp. 269–270.
- 30.
Oder (2012), p. 82.
- 31.
- 32.
Arato (2010a), p. 476.
- 33.
Oder (2014).
- 34.
Ibid. See also Oder (2012) for a comparative anlaysis of constitutional amendments packages that amended or abrogated a significiant portion of the 1982 Constitution, from the perspective of EU impact.
- 35.
Kalaycıoğlu (2011), p. 268.
- 36.
Tanör (2012), p. 168.
- 37.
Özbudun (2005), p. 30.
- 38.
Cengiz (2014), p. 8. Language restrictions for speech and press (Article 26 and 28 that banned “language prohibited by law” without specifying Kurdish) are amended in 2001.
- 39.
Keyman (2012).
- 40.
The results of the survey conducted by A&G research company and TEPAV (Economic Policy Research Foundation of Turkey) is reported in Levent Gönenç, ‘Towards a Participatory Constitution Making Process in Turkey’ (TEPAV Policy Note, January 2011) <http://www.tepav.org.tr/upload/files/1296466407-8.Towards_a_Participatory_Constitution_Making_Process_in_Turkey.pdf>.
- 41.
For a detailed discussion of different proposals, see Erdem and Heper (2011). A major criticism directed at this study is that it fails to include the 2009 draft prepared by DİSK—Confederation of Revolutionary Workers Unions Devrimci İşçi Sendikaları Konfederasyonu, in Turkish. See Göztepe and Çelebi (2012), p. 18.
- 42.
“Social Demand Grows for a New Constitution,” (TEPAV, 2 March 2011) <http://www.tepav.org.tr/en/haberler/s/1982>.
- 43.
The next section summarizes different positions promoted by civil society organizations, academicians, think tanks, and other platforms.
- 44.
The 1924 Constitution’s Article 104 regarding the amendment-making rules, forbid an amendment to Article 1 of the Constitution stating the form of the government as a republic. After the 1945 amendment that reinstated the constitution after translating it to modern Turkish, the article also added that such an amendment cannot be proposed. The 1961 Constitution’s Article 9 similarly stipulated that “the provision of the constitution establishing the form of the state as a republic shall not be amended nor shall any such proposal be made”. See Onar (1993) for more information on unamendable clauses in 1924 and 1961 Constitutions.
- 45.
It is important to highlight that the decision to expand the scope of the unamendable provisions was taken by the National Security Council—the chamber made up of coup organizers. The draft prepared by the Consultative Assembly, the civilian chamber had only included the republican form of state as the irrevocable provision of the constitution and against the possibility of double amendment, self-entrenched the unamendability clause. See Onar (1993), p. 11 and Köybaşı (2013), pp. 334–335.
- 46.
See Özbudun (2009), p. 533, and Olcay, “Unamendability of Amendable Clauses: The Case of the Turkish Constitution” in this volume. As Olcay rightfully points out, “the practical importance of the question of unamendability in the Turkish Constitutions has not been regarding textual changes to the unamendable provisions themselves, but rather on amendments to normally amendable provisions”.
- 47.
Belge (2006), p. 653.
- 48.
Gözler (2008).
- 49.
The 1969 amendment (November 6, 1969) was annulled on procedural grounds (Decision of June 16, 1970, No. 1970/31). The court rejected the application (Decision of April 3, 1971, No. 1971/37) for annulment with regards to form and substance in the 1970 amendment (April 17, 1970). See Olcay in this volume.
- 50.
Decision of June 16, 1970, No. 1970/31 and Decision of April 3, 1971, No. 1971/37. See Gözler (2008).
- 51.
During the debates on the 1961 Constitution, the speaker of the House of Representatives specifically argued against inclusion of characteristics of the state among unamendable provisions. Onar (1993), p. 10.
- 52.
Gözler (2008), pp. 95–97.
- 53.
Decision of April 15, 1975, No. 1975/87; Decisions of March 23, 1976, No. 1976/1963 and October 12, 1976, No. 1976/46; Decision of January 28, 1977, No. 1977/4; Decision of September 27, 1977, No. 1977/117. See Gözler (2008), pp. 42–45 and Olcay in this volume.
- 54.
Roznai and Yolcu (2012), p. 196.
- 55.
See Yayla (1983), p. 133.
- 56.
- 57.
According to Albert, this presents as a “design flaw” as the unamendable provisions are susceptible to double amendment. See Albert (2015), pp. 7–8.
- 58.
See Özbudun (2014), p. 33.
- 59.
- 60.
Decision June 5, 2008, E. 2008/16; K. 2008/116, Resmi Gazete 22.10.2008 no 27032. Sevinç (2012), p. 10.
- 61.
Decision July 7, 2010 E. 2010/49.
- 62.
Özbudun (2008a).
- 63.
Buquicchio (2010).
- 64.
Yüksel (2007), p. 356.
- 65.
Türk Sanayicileri ve İşadamları Derneği in Turkish. Its report before the 1991 elections have maintained the view that the ordinary parliament has the authority to draft a new constitution. The report, prepared by nine constitutional law scholars refer to Turkey’s 1924 Constitution as a precedent for such authority where the parliamentary Constitutional Commission prepared a draft that was ratified without a public referendum. Bülent Tanör, one of the drafters of this report, argues in his book that to deny that the ordinary parliaments cannot make a new constitution would be to make the claim that only in the aftermath of revolutions and through the establishment of “constituent assembly” a new constitution can be drafted. See Tanör (2012), pp. 172–173.
- 66.
Yazıcı (2001), p. 58.
- 67.
See also Yüksel (2007),pp. 357–363.
- 68.
Yazıcı (2001), p. 60.
- 69.
Arato (2010a), p. 476.
- 70.
In early 2007, the ruling AKP government asked a group of experts to draft a new constitution, criticized for both its content and the unilateral process of drafting. Discussed above, the draft constitution was set aside. See Table 1 for the timeline of events in Baburoglu and Göker (2014), p. 374. See also Yüksel (2007).
- 71.
‘Turkey's main opposition CHP rules out compromise over constitution’ (Hürriyet Daily News, 16 February 2009) <http://www.hurriyet.com.tr/english/domestic/11015880.asp>.
- 72.
- 73.
Besides the criticism directed at the 1982 Constitution, one of the main contentions of proponents of new constitution is that “none of the three Republican Constitutions (those of 1924, 1961, and 1982) was made by a freely chosen and broadly representative constituent assembly through inter-party negotiations and compromises”, see Özbudun (2012), p. 39.
- 74.
Cengiz and Hoffmann (2012), p. 255.
- 75.
Labor, Democracy and Freedom Bloc, Emek Demokrasi ve Özgürlük Blogu, in Turkish.
- 76.
Considering that the voter turnout in the 2011 elections was 87.6%, in the new parliament 83.14% of the Turkish electorate is represented. Barın (2014), p. XXIV.
- 77.
Arato and Tombus (2013).
- 78.
The four political parties that have groups in the parliament were asked to identify three deputies by October 11, 2012 to join the commission.
- 79.
Turkey had relied on a similar model of establishing an ad hoc conciliation commission during the two successful amendment-making processes of 1995 and 2001.
- 80.
Oder (2014), p. 137.
- 81.
Ibid.
- 82.
For the Working Methods of the Constitutional Conciliation Commission, see TBMM Anayasalar Sitesi <http://yenianayasa.tbmm.gov.tr/calismaesaslari.aspx>.
- 83.
The platforms are not legal entities.
- 84.
- 85.
The website set up for the constitution was available at https://yenianayasa.tbmm.gov.tr/default.aspx but has been renamed. Documents are preserved at TBMM Anayasalar Sitesi. For proceedings, see Komisyon Tutanaklari https://anayasa.tbmm.gov.tr/tutanak.aspx.
- 86.
- 87.
Examples of these include the meetings of New Constitution Platform, Federation of the Civil Servant Associations, Turkish Union of Chambers and Commodity Exchanges (TOBB), and Economic Policy Research Foundation of Turkey (TEPAV) and the survey of Memur-Sen. See Uçum and Genç (2012).
- 88.
A related criticism is that the parliamentary permanent Constitutional Commission and the General Assembly are the legal authorities to refer to for constitutional change. However, such political committees have been used successfully for partial constitutional change in 1995 and 2001.
- 89.
According to Ginsburg, Elkins, and Blount, constituent legislatures, legislatures that also function as constitution-making bodies are more commonly observed (by itself and together with other actors) than constituent assemblies (by itself and together with other actors). See Ginsburg et al. (2009), p. 201.
- 90.
In the literature, there is a general skepticism against ordinary legislatures functioning as constitution-making bodies, see Elster (2006). A legislator that is elected to represent a constituency and presumably its local interests may not have the qualities that one might look for as a constitution-maker. Also, it is assumed that a legislature when designing the structure of government may choose to empower the parliament. Ginsburg, Elkins and Blount test this institutional self-interest but do not find support that legislative-centered processes are more likely than constituent assemblies to aggrandize the legislative branch. See Ginsburg et al. (2009), p. 213.
- 91.
Oder (2014), p. 138.
- 92.
Ibid.
- 93.
Uçum and Genç (2012).
- 94.
Cengiz (2014).
- 95.
Bozkurt (2012).
- 96.
It was decided beforehand that the commission would begin their work on less contentious issues and those deemed most controversial would be referred to party leaders. Hayatsever (2012).
- 97.
See Oder (2014) for a thorough analysis of the failed process.
- 98.
For a full list of participants and the minutes of the meeting held on September 19, 2011 see TBMM Yeni Anayasa Internet Sitesi <http://yenianayasa.tbmm.gov.tr/docs/anayasa-hukukculari-ile-toplanti.pdf>.
- 99.
Oder (2014), p. 137.
- 100.
Kentel et al. (2012).
- 101.
According to TESEV’s report, a small segment of these civil society organizations (such as KAMU-SEN) also are against the idea of drafting a new constitution. Uçum and Genç (2012).
- 102.
Ibid.
- 103.
Ibid.
- 104.
In South Africa, the political parties had established such an understanding of constitutional principles before they held the elections for a constituent assembly.
- 105.
Cumhuriyet ‘Anayasada kriz önlendi’, (Cumhuriyet, 9 May 2012) http://www.cumhuriyet.com.tr/haber/diger/341104/Anayasada_kriz_otelendi.html.
- 106.
The original tentative deadline was the end of 2012. Radikal ‘Anayasa’da Kader Günü’ (Radikal, 1 April 2013) <http://www.radikal.com.tr/turkiye/anayasada_kader_gunu-1127494>.
- 107.
To review political parties’ proposals, see Yeni Anayasa TBMM <http://yenianayasa.tbmm.gov.tr/siyasipartiteklifleri.aspx>. Also see Barın (2014), pp. 7–14 for a comparison of the 1982 articles, AKP, CHP, MHP and BDP proposals and each of their final proposals and in cases where consensus is reached, the agreed provision of the commission.
- 108.
Regarding Article 2, AKP proposed to eliminate “public peace” and “national solidarity and justice”, “loyal to the nationalism of Atatürk,” and “based on the fundamental tenets set forth in the preamble” and strengthen the human rights provision by replacing “respecting human rights” with “based on human right”. Regarding Article 3, AKP changed the provision on language, from “state language” to “official language” and instead of stating ““The State of Turkey, with its territory and nation, is an indivisible entity”, AKP proposes “The State of Turkey is an invisible entity as a territory and nation”.
- 109.
Regarding Article 2, CHP proposed only a subtle change to replace “respecting human rights” with “based on human right”. CHP proposal did not introduce any changes to Article 3.
- 110.
BDP proposal did not include the Article 1, which proclaims, “Turkish state is a Republic,”—the rationale being that the phrase “Turkish Republic” is stated in the following provisions. BDP’s proposal for Article 2 highlights that the Turkish Republic recognizes plurality and maintains impartiality. It also adds that the administrative structure of the state is based on the principle of decentralization and the state’s territorial integrity is inviolable. BDP’s maintains the symbols of the state as it is dictated in the 1982 Constitution but expands the provision on language to include that state’s official language is Turkish, all citizens have a duty and a right to learn the official language, regional parliaments may decide to use a second official language, everyone in their private life and relations with public offices have the right to use their mother tongue along with the official language, and the state is obliged to respect, protect and ensure that all languages that make up the cultural heritage of the country is used and developed.
- 111.
The members of the commission do deliver their opinions on unamendable articles before that date (April 17, 2013) as well. However those sessions such as on March 18, April 8, and April 16 were not specifically conceived to be on these issues.
- 112.
The commission had discussed and written down 113 articles with reservations.
- 113.
For example, according to Sevinç, Article 4 does not require maintaining the first three articles verbatim. He argues that the article allows for changing the wording in order to introduce expressions to strengthen it, as long as the core of the articles are maintained. This solution, according to Sevinç, can provide for a more liberal reading of the unamendability clause and work around the Constitutional Court’s decision that Article 4 is indeed, although tacitly, self-entrentched. See, Sevinç (2012), p. 36. Also see Yazıcı (2001), pp. 60–61, for a similar reading of the article.
- 114.
Additionally Yazıcı argues that these notions (public peace, national solidarity and justice) do not have the same legal weight as “democratic, secular and social state”, Yazıcı (2001), p. 62.
- 115.
See explanations by Professor Zafer Gören during the meeting held on September 19, 2011 at TBMM Yeni Anayasa Internet Sitesi <http://yenianayasa.tbmm.gov.tr/docs/anayasa-hukukculariile-toplanti.pdf>. p. 17.
- 116.
Ibid, p. 61.
- 117.
Another argument raised by Şentop is that the unamendability clause does not offer full protection against amendment. He draws a scenario where an amendment to Article 2 is passed in the parliament with the approval of 500 deputies, where the president does not take it to Constitutional Court for review and there is not enough members of the TGNA to take it to Constitutional Court. Then the Article 4 will not be able to protect the unamendable clauses. August 21, 2013 minutes.
- 118.
See Professor Gören’s similar reasoning during the meeting held on September 19, 2011 at TBMM Yeni Anayasa Internet Sitesi <http://yenianayasa.tbmm.gov.tr/docs/anayasa-hukukculariile-toplanti.pdf>. p. 17.
- 119.
The argument raised by AKP representatives fall under what Roznai summarizes as “enhancing judiciary’s power objection”. See Roznai’ s article in this volume for more on the subordination objection raised against unamendability.
- 120.
See Roznai’s article in this volume for more on “dead hand” objection.
- 121.
See Roznai’s article in this volume for more on the revolutionary or forcible objection raised against unamendability.
- 122.
Professor Hakyemez’s argument (April 17, 2013) rests on a report by TÜSİAD published in 1991 and also includes reference to TGNA’s prior experience, in 1924, in drafting a new constitution.
- 123.
See Roznai’s article in this volume for more on the limited effectiveness of unamendability argument.
- 124.
According to Article 149, access to apply for annulment is granted to the largest opposition parliamentary group and one- fifth of the members of Parliament as well as the president and the prime minister. The right to apply for annulment lapses sixty day after publication of the contested law in the Official Gazette, Article 150.
- 125.
See Roznai’s article in this volume for more on the undemocratic objection raised against unamendability.
- 126.
Albert (2010), pp. 664, 667.
- 127.
Related to this, Batum argues that AKP is under some type of mandate from Abdullah Öcalan and Murat Karayılan (leaders of PKK—the outlawed Kurdistan Workers’ Party) to pass the amendments as quickly as possible.
- 128.
Stephan Michel and Ignacio N. Cofone “Credible Commitment Or Paternalism? The Case Of Unamendability” in this volume.
- 129.
Özgür Sevgi Göral, one of the consultants to the commission, argues on August 27, 2013 that the unamendability is not an issue where there is an established scientific view, as positivists claim and adds that the scientific judgment does include political opinion.
- 130.
Oder (2014), p. 139.
- 131.
Oder (2014), p. 139.
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Yegen, O. (2018). Debating Unamendability: Deadlock in Turkey’s Constitution-Making Process. In: Albert, R., Oder, B. (eds) An Unamendable Constitution?. Ius Gentium: Comparative Perspectives on Law and Justice, vol 68. Springer, Cham. https://doi.org/10.1007/978-3-319-95141-6_11
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