Turkey has begun the process of drafting a new constitution. A new constitution means redefining the state and society and remaking basic political choices. Therefore, preparing a constitution is a turning point for a nation.
Constitutions have two main functions: to restrict political power by rule of law and to safeguard fundamental rights and liberties. Democracies carry the risk of a political party acquiring power through elections then shifting to an undemocratic, oppressive regime by wielding power to advance its own political aims. Constitutions offer structural and institutional arrangements to lessen this risk.
Of course, a constitution is not a magic wand. If the prerequisites for democracy are absent, if the culture of democracy has not taken root and democratic institutions have not been established, the constitution may prove inadequate to serve its intended purpose. Conversely, if the prerequisites for democracy are present, democracy will survive regardless of the constitution. However, there is a third choice: in hybrid countries like Turkey, where some prerequisites for democracy are present and some absent and the culture of democracy has not taken root in the true sense, the constitution serves an even weightier function. A good constitution may strengthen democratic institutions and advance democracy. It can help create a framework to ensure coexistence of different social segments. Conversely, a poor constitution may cause democracy to collapse.
In view of Turkey’s realities, a poor constitution has the following attributes:
Serves the purposes of the political power rather than restrict it;
Is a uniform nation-state constitution ignoring ethnic and religious differences in society;
Does not provide robust safeguards for rule of law;
Reflects ideological preferences of the state;
Fails to protect fundamental rights and liberties;
Fails to safeguard the principle of separation of powers.
A number of basic needs have led Turkey to begin the process of drafting a new constitution. Foremost among these are problems caused by the 1982 Constitution. Written during the reign of a military administration, the 1982 Constitution reflects the Zeitgeist of that period. It’s impossible to satisfy the conditions of a modern democracy in Turkey through an authoritarian constitution designed to protect the state from citizens with a uniform nation-state mindset and laws passed under it. The myriad of amendments subsequently made to the 1982 Constitution not only failed to eradicate traces of the authoritarian mentality dominating it, they damaged its integrity. Far from meeting public expectations, the 1982 Constitution cannot meet present day requirements of globalization. This problem stems not only from the 1982 Constitution, but also from laws passed under military rule, many of which are still in effect. Therefore, there is a need not only for a new constitution, but also for amending all laws that are the legacy of the 1980 coup.
Another reason why a new constitution is needed is that the current regime in Turkey is not one that would rightfully be referred to as “democracy” even though Turkey has an elected government. International observers categorize Turkey as a hybrid country rather than a democracy. It’s difficult to speak of democracy in a country where all power is concentrated in a single entity, the press is not free and justice is subject to the whim of political power or religious communities. A new constitution is needed in order to re-constitute this hollowed-out democracy as befits the word “constitution”.
The process of preparing a constitution also defines its character. From the Ottoman Empire to today, constitutions have been prepared from top down as a result of military coups or bureaucratic initiatives.
Now, the new constitutional process we’re in offers us the chance to make a democratic constitution from bottom up, one heeding demands of the public. A process that’s both reconciliatory and participatory is required for a democratic constitution.
The Constitutional Consensus Commission formed in the Grand National Assembly of the Republic of Turkey (TGNA), in which the four political parties having parliamentary groups are represented equally by three members each meeting under the leadership of the Speaker of Parliament, is a suitable body for creating a consensus-based constitution. As per its rules, this Commission takes all decisions unanimously. If a draft adopted by the Commission is to be changed later, all four parties must approve the change. These procedures effectively serve to ensure consensus provided that this set-up functions as intended and political parties remain true to their word.
The Commission received opinions on a new constitution verbally and in writing from the civil society for six months. It held meetings across Turkey almost every weekend. These drew large audiences as a forum where constitutional matters were discussed and ideas expressed. The Commission thus put together a sizable database. When the initial draft of the constitution is ready, the public will be consulted for their opinions. The draft will be submitted to a referendum after adoption in parliament.
This method answers the question of “who will make a new constitution” or “whether the TGNA is authorized to make a new constitution as a principal founding power.” I don’t think the drafting of a new constitution will meet any setbacks on the grounds of legitimacy as this has been entrusted to a Commission with representatives of the four political parties with parliamentary groups in the TGNA and the Commission’s procedural approach to drafting the constitution is one involving participation of all social groups, heeding views, and reflection of the will of the people – briefly, an approach that keeps the public in the picture along the way.
The opinions of the public created a valuable database for the Commission. They are backed with a wealth of constitutional knowledge in international fields as well, which is a major source of inspiration for the Commission.
The bottom line is: the required infrastructure is there for making a democratic and libertarian constitution based on consensus and participation. A strong foundation has been laid. The building needs to be placed on top of it, which is the task of the Commission and the four parties.
Naturally, each political party subscribes to a different outlook and strives to have its views reflected in the constitution. Understandably, it’s difficult to reconcile draft articles originating from different outlooks. What’s important is whether these political parties agree on the ultimate goal. In other words, do the goals of these parties all converge upon preparing a libertarian and pluralist constitution to replace the 1982 Constitution – one focusing on the individual and conforming to universal norms? If so, then they can find solid ground for negotiation and reconciliation in the Commission.
For this to happen, representatives of the parties must trust each other in the pursuit of a common goal. They must avoid undermining trust and place greater weight on actions to enhance it.
There is a formidable task ahead for the party in power. Opposition parties cannot make a constitution on their own, but a party in power can make its own constitution with little effort. However, this will not be a democratic constitution reached by consensus. At best it will produce an imposed constitution serving interests of the incumbent party – which, incidentally, does have such an option available. The duty of the incumbent party during the constitution-making process is to demonstrate that it doesn’t plan to follow such a course. This is the only way to create confidence among political parties.
There are basic prerequisites for the new constitution to be a modern, libertarian and democratic one.
The first is that like many other countries, Turkey is a multicultural society. Cultural differences create identity differences and different identities are reflected upon politics, demanding recognition. Today, individual rights and liberties include recognition of differences and preventing them being used for discrimination. Will the new constitution be a multicultural model of society in which differences are accepted and protected and every individual is treated equally? Will it unite these differences around a common identity? Will it create a framework for coexistence? Such a framework can only be viable if different cultural groups are convinced their values can be brought to life in the system. In other words, will the new constitution transform society into a polyphonic orchestra that plays harmoniously?
Following is the second prerequisite for a libertarian and democratic constitution. Today the political administration holds a concentration of power. This is contradictory to the principle of separation of powers, a pillar of democracy. The classic concept of separation of powers, where power is divided among legislative, executive, and judicial branches, is inadequate in the today’s approach to democracy. Power must also be shared with the press and civil society. In Turkey, there is both a vertical and horizontal concentration of power. In the vertical concentration of power, the administration gathers power of the state in itself, putting the judiciary under its control and reducing the legislature to a department of the executive. The state bureaucracy is one with the administration. In the horizontal concentration of power, the press is transformed to a “yea-sayer” or “intimidated” press. Self-censorship becomes normal. All institutions – economic, cultural, and scientific – are subordinate to the incumbent administration. Under such circumstances, this is not a true democracy. Will the entity in power abide by a new constitution and agree to change from a majoritarian understanding of democracy regarding democracy as confined to elections to a pluralist democracy – or from concentration of power to the sharing of power? Will it, for example, agree to the introduction of constitutional safeguards for an independent judiciary it does not control or inclusion of institutional pluralism in the constitution or involvement of civil society in the functioning of the legislature?
The Commission is still debating the fundamental rights and liberties section. Discussions on articles on rights and liberties of the individual are almost complete. Political, economic and social rights are being discussed next. Discussions held and articles drafted so far have not always been reassuring as far as laying down the basic tenets of a libertarian and democratic constitution is concerned.
During discussions on the article on equality and non-discrimination, the Justice and Development Party (AKP) and Nationalist Movement Party (MHP) objected fervently to the proposal by the Republican People’s Party (CHP) and Peace and Democracy Party (BDP) that sexual orientation and ethnic origin be counted in discriminatory acts. The parties’ revulsion to the terms “sexual orientation” and “ethnic origin” in the wording of the constitution did away with the chance of consensus. Failure to agree on such a basic concept as “equality” was not a good start.
There are other examples. In the article on freedom of thought and expression, the CHP wants restrictions against disclosure of thoughts to be based on exceptional and tangible reasons such as violence and hate speech, while the AKP and MHP propose open-ended and non-specific reasons for constraint such as public morals and order.
Likewise, the CHP suggests that court orders to confiscate publications be based on concrete and extraordinary reasons such as violence, sexual exploitation of children and open assault on human rights-based, democratic and secular constitutional order, the AKP and the MHP argue that reasons such as public morals and order also be applicable for confiscation orders.
Whether public morals are justified grounds for constraint is a dilemma arising in every debate on any article on fundamental rights and liberties. While the CHP and BDP maintain that morals are a subjective concept varying among societies and individuals and no one should impose their morals on others, the AKP and MHP insist that public morals, including religious values, be included.
In addition to differences in parties’ perspectives on liberties, others rooted in ideologies are reflected in the process.
For example, in the article on freedom of religion and conscience, the AKP opposed the CHP’s proposal that, “The state shall remain unbiased toward all religions and faiths in its actions. It shall respect social pluralism based on diversity of religions, faiths and beliefs. The state shall take necessary measures to instill and maintain mutual respect and tolerance between religions and faiths and between believers and non-believers” which was intended to itemize the elements of secularity and give it a more democratic and lenient profile. The AKP demanded deletion of the CHP-MHP proposal envisaging a basic order of state not being based on religious doctrine.
The BDP’s efforts to include proposals for education in the native language or use of the native language in articles unrelated to freedom of education led to suspension of these articles. The article on children’s rights was unaddressed for the same reason. When the BDP tried to insert the phrase “in the language of choice” in the article on disclosure and dissemination of ideas, the other parties objected on grounds that there was no such prohibition in place.
The MHP’s reactions geared to protect the state are in every article to do with fundamental rights and liberties of individuals.
Deliberations of the Commission advance by parenthesizing sentences or clauses that do not have consensus. Some parentheses are easily removable, but some stem from deep-seated differences. The parenthesized provisions will be re-addressed once the section on fundamental rights and liberties is completed.
There’s a political price to be paid for interrupting the process of drafting a new constitution that the public is participating in, hoping its expectations will be met. Therefore, political parties have to reach consensus by negotiation. As attention to the process deepens and public pressure on the Commission grows, it will be more difficult for parties to back out of the process or to seek a new one.