9th INTERNATIONAL CONFERENCE ON “THE EUROPEAN UNION, TURKEY AND THE KURDS” – Brussels (B), European Parliament, 5th & 6th December, 2012

The New Constitution – what Democratic Legitimacy? What’s missing? – by Professor Sevtap Yokuş, Kocaeli University, Turkey

It is meaningful to start the discussions of a new constitution with the question of why is there a requirement for a new constitution? In this way, idea of the new constitution will be clear and in relation to that it will also be clear that which methods shall be followed.

A democratic constitution in Turkey can be an important step in resolution of many social-political problems in democratic ways. A civil constitution might still create a positive psychological impact on the individuals in Turkey, in a country that is administered with a military coup constitution for many years. With a new constitution, an opportunity to get rid of many constitutional clauses, that are being obstacles to a democratic progress for so long, will be created.

There is a much more vital reason of conducting the debates on the new constitution with the basis of why do we need a new constitution and whether the new targeted constitution will meet the requirements. Accordingly; a new constitution for Turkey can only be “new” if it can prevent the conflicts that blocks the social peace and a solution or at least a first step to prevent further divisions.

When constitutions in Turkey are investigated in a perspective of historical process, it can be seen that the politics of uniformication of individuals are followed since the Republic, and all the legal rules, particularly the constitutions, are providing a ground in this direction. Political conditions, and the created legal order, have led to an increasingly fragmented society. The political environment since the establishment of the Republic, has developed a concept of a uniform and acceptable citizen and therefore “marginalised” the remaining sections of the society. In this sense, even the 1961 Constitution has actually played an important role in serving to the social division by means of institutionalizing the military tutelage, despite its liberal content and emphasise on the freedom of the individual. Period of implementation of the 1961 Constitution has also been a period of fully fitting of the bureaucratic caste. The bureaucratic caste based on the military, has identified and developed an acceptable citizen prototype with a “modern” naming at individual level. Acceptable citizen is someone who is Turk, Sunni and secular, strictly following the values of Turkish Republic and ideology set by Ataturk. People who do not fit into this prototype, Kurds to begin with, are seen as a threat to the regime. The 1982 Constitution, which is in use for almost 30 years, is built upon the principal of protecting the government precisely for this reason. In this respect almost all the prohibitions has been developed in the context of “the indivisible integrity of the state with its territory and nation” and “secular republic”.

The 1982 Constitution, with its authoritarian content and totalitarian reflection at the implementation, has maximised the social divisions. The 1982 Constitution, due to the prohibits in its content, has destroyed a mind set which is in favour of the spirit of freedom, and regarding the excluded segments of society, the prohibitionist and a sharpness based on denial inside its content, conflicting segments, conflicts are deepened. The constitution, with its exceptional regime that opens the door to a different layout, has led to unlawful order.

The content of 1982 Constitution, which destroyed the freedoms, have been discussed since its entrance into force. 12 September Constitution is the one prepared to provide the aimed. The Constitution has been prepared in accordance with the law that was created before itself and named as the laws of September 12. It is a Constitution that reflects the will of the de-facto power caused by the military coup. This will, in the process of preparation, has dominated the content of the Constitution. During the preparation phase, final form of the clauses were given by the National Security Council, the discussions against it were prohibited, and transformed into an imposition at the referendum stage. “The Beginning” which creates the basic philosophy of the Constitution, the state was clearly blessed.

Even though the “sacred Turkish state” phrase from “The Beginning” has been removed from the scope of the constitutional amendments in 1995, “The Beginning” is still in force based on the same philosophy and the same content. oreover, “The Beginning”, according to the 4th article of the Constitution, seems to be within the scope of the clauses that cannot be changed, cannot be offered to be changed.

Ideology of the Constitution

Philosophical preference of the Constitution of 1982 is not being away from all the ideologies and create a constitutional structure that allows ideological pluralism. However, this is mainly expected from the democratic constitutions. The term “Colourless Constitution” comes from this. The philosophy of “Military Coup Constitution of 1982” and the ideology of this philosophy, starting with “The Beginning” section of the Constitution, has affected all the clauses. Accordingly, the main axis of the Constitution of 1982 contained the official ideology of Kemalism, nationalism and political statism. This ideology aimed at the uniform citizen facing towards the individual. As an extension of this ideology, Turkish-Islamic synthesis model provided for individuals set the mode of application of the principle of secularism. Therefore the acceptance of religion is only envisaged as much as it serves to the main ideology.

September 12 Constitution which is prepared as a continuation of the 1982 coup, created as if the state of emergency period will be going on all the time. The main purpose was to make the way of thought that dominate the September 12 permanent through the constitution. To do this, all measures have been taken. In fact the legal arrangements that are previously taken out of the Constitution and put into implementation and afterwards taken into protection via temporary clauses, which was made permanent as well, has defined the legal structure. Many laws such as State of Emergency Law, Election Law, Political Parties Law, Law on Associations, the Law on Meetings and Demonstrations, the laws that will determine social and political life were created during the period of September 12, the Constitution has institutionalized this order that is created through legislations and also gave immunity to this order.

The ideology of Kemalism and the understanding of nationalism of Atatürk, which are the main axes of the ideology that defined the philosophy of the Constitution, fed into various clauses of the Constitution.

“The Beginning” of the constitutions reflect the philosophy that prevails the content. “The Beginning” of the 1982 Constitution embodies the spirit of the dominant ideology with the following statements: In the first paragraph as “… this Constitution, the founder of the Republic of Turkey ….” in the fifth paragraph continues as “No activity… Turkish national interests ….”.

Nationalism which is one of the main axes of the ideology that Constitution is based, is expressed in the form of Ataturk nationalism and according to the official statements this understanding of nationalism does not contain any reference to ethnic origin or race. It means that you need to understand the definition of citizenship in the Constitution like that. However, the different clauses of the Constitution refute this thesis from inside. The 26/3 and 28/3 clauses of the constitution that are repealed by the constitutional amendments of 2001 were among such clauses. Furthermore, in clause 42/9 which is still in force, it is also clear that the Turkishness phrase in the constitution is based on ethnical meaning. The Turkishness phrase in the Clause 134 is also directed completely towards its ethnical meaning.

Clauses of the Constitution, legislations, court decisions, and considered together with implementation, it can be more clearly seen that the Turkishness phrase is based on an ethnic basis. The most direct example of this, was the law 2932 which prohibits the languages other than Turkish. The fact that this clause was repealed, does not alter the ethnic meaning of the Turkishness phrase. The decisions of the Constitutional Court, for instance the Turkishness interpretation of the Act 81 of Political Parties law, are shifting towards the definition of ethnic community.

“The indivisible integrity of the state” which is formulated as an extension of nationalism and taking the prohibitive role for the all the fundamental rights and freedoms, accepts the nation as something heterogeneous and far away from being pluralistic. The statements in this way appears in “The Beginning” of the seventh paragraph of the Constitution as “all Turkish citizens …”. This approach is especially materializing in the decisions of closure of political parties by the Constitutional Court. The things like secularism in accordance with constitutional ideology and the Turkish-Islamic synthesis and implementations in this way are making up a dimension of ideology of the Constitution.

Some clauses of the Constitution are serving to the unification of the official ideology together with the religion. It can also be called as organizing and maintaining the official religion in this way. The constitution makes a number of initial statements related to this at the beginning. According to the fifth and sixth paragraphs of  “The Beginning” : “…….” These statements materialise the mentioned ideological dimension.

The fact that religious instruction is made mandatory at primary and secondary schools by the Constitution (Article 24/4); the fact that Ministry of Religious Affairs is part of the general administration, and also in accordance with the clause 136 of the Constitution, vision of making the national solidarity and integrity as the main aim, are all the clauses that are results of the efforts for the unification of religion with the official ideology.

Political statism and glorification of the state are among the basis of ideology of Constitution. Democratic constitutions are based on limiting of the government against the individual rights and freedoms. Whereas the 1982 Constitution was a constitution enshrining the state. This principal has been clearly stated in the first paragraph of “The Beginning”. “The Holy State” phrase before the Constitutional amendment was replaced with the “Great Turkish State” after the 1995 amendment. This amendment, obviously, did not carry a meaning that is different from the previous, did not created a change in the target of protection of the state against the citizen rather than vice-a-versa.

In line with the requirement of implementing the official ideology, the web of constitutional prohibitions with regards to rights and freedoms, have been used and are still being used as the implementation tools of the ideology that the constitution defines. The constitution made the area of rights and freedoms unusable in order to place the ideology that it contains and also to make permanent the homogeneous society that it wants to create.

In accordance with the ideology contained within the Constitution, “the indivisible integrity of the state with its territory and nation,” and “secular republic” are defined as the reasons for the ban of all the rights and freedoms. Even though the clause 14 of the Constitution defines these reasons for ban as applicable to all rights and freedoms, usage of some rights and freedoms have still emerged as part of the relevant clauses. In fact, even the freedom of scientific research and publication is surrounded with reasons of the mentioned ban that is required by the ideology of the constitution (Clause 130 of the Constitution).

Constitution with regard to The Regime of Freedom

The 1982 Constitution has reflected its major aim as the protection of the individual against the state to all its articles. In this respect, the regulation of rights and freedoms forming the basis of the constitutional state is the most problematic area. Through its highly restrictive regime, the use of rights and freedom has become impossible.

With its form before 2001, the 13th article of 1982 Constitution contains the general limitation clause, and through the causes determined with regard to this clause, all the rights and freedoms in the Constitution could be limited. 14th article contains the reasons of prohibition and these prohibiting causes are valid for all of the rights and freedoms in the Constitution. This clause has been limitedly amended in 2001; it keeps its main feature as general prohibitive clause. Article 15 is the clause of suspension as expressed in European Convention on Human Rights. In addition to these clauses, rights and freedoms are limited due to the causes set forth in the related article. The most important change made in 2001 in terms of limitation regime, rights and freedoms are limited only through the causes set forth in the related article by eliminating the causes of the general limitation in 13th Article. However, the limitation causes removed from 13th Article have been placed into other related articles regulating rights and freedoms, particularly freedom of expression.

Apart from the limitations and prohibitions, and even the suspensions in the Constitution, the limitation and prohibitions in the legal regulations concerning rights and freedoms have made the use of rights and freedoms impossible.

Despite the list of rights and freedoms contained in the 1982 Constitution, European Court of Human Rights resulting from the proceedings has clearly revealed the fact that such areas are unusable. In fact, such low-scale improvement efforts on the legal establishment of the rights and freedoms area in Turkey have resulted from the force of such international assignations.

Due to the enforcement of European Union accession process, a numerous changes in the law including particularly the Constitution have been reformed in order to fulfil the political criteria set for Turkey. But here the real target was to make the homework given to them rather than having a more democratic-liberal legal regulation. Fort this reason, almost all of the changes remained symbolic and was not put into practice. In fact, a number of contradictions and confusions were created in the laws so that they would not be put into practice. The practice of positive Constitutions amendments could have been possible in parallel to the laws with positive changes rather than those laws converted to confusions. As a result, the Constitution remained in force with some positive changes, which were not put into practice, but most importantly with its original non-democratic structure in which legal regulations abolish the freedoms.

The democratic constitutions in our era are social consensus-based and human rights-oriented. The balances in the universe has changed, the area of freedoms have gained different content. 1982 Constitution not only owns a primitive spirit in the face of the requirements of the era, but it is also a serious obstacle in front of the democratic openings. It has fed the conflict atmosphere through its extraordinary regime pushed beyond the law, prepared the unresolvable ground for the problems beyond the law. The prohibitionist tradition created by it has caused mental patterns even at the level of individuals.

The extraordinary regime was pushed out of the Constitution through 1982 Constitution. State of Emergency Law as 12 September law and in the Clause of State of Emergency Decree have not even been checked its compatibility with the Constitution in force. The disposals of State of Emergency were excluded from the judicial authorities. The use of authorities in the practice was in significant excess. The ineffectiveness of legal paths have been proved by the acceptance of the applications from the Region by European Court of Human Rights although the applications have not met the requirement of depleting the domestic law. Again, European Court of Human Rights has ordered intense human rights violations including mainly the prohibition of torture and security of person as the right of life. Human rights violations not only have prepared the ground for the conflicts but they have also become the reason of bringing the conflicts into the present with intense sufferings.

The Prospects from New Constitution on the Basis of Social Peace

In Turkey, there is in an “acute” way of conflict beyond the conflicts happening at the highest level

due to many social groups, ethnic and religious reasons. We face with a society with various demands divided from each other enough to make a lot of different endpoints due to these conflicts. In these circumstances quest for a new constitution means a special case for the construction of the constitution in a divided society. Thus, there is a need to give answers to a couple of questions.

The content of a new constitution needs to aim the social peace as main goal in line with correcting all the negativities created by the Constitution in force. Thus, its prohibitionist, denying and fragmenting content should be replaced with liberal and open to all sorts of diversities in a unified form. The question of “what kind of constitution” is a prerequisite for a new constitution. The content of the large number of studies on the new constitution until this day is conflicting with the opening way of rights and freedoms. It can said that number of different proposals ahead of the 1982 Constitution and the democratic formations have been intended. What the new constitution drafts and reports bring up as new is important. The necessity of targeting of innovation has been expressed even during the studies on the new constitution.

Important and on-going problem in terms of the principles that emerged during the course of the new constitution is the difficulty of compromise on the issues of innovations in the constitution. The identity and cultural rights, secularism and local autonomy as a channel of direct democracy are among the leading difficult issues to compromise. This lack of consensus makes it difficult to develop a common formula on issues specified in the new constitution.

Constitutions aims to meet the political needs in the period that they appear. Thus, every new constitution reflects the political reality of the period that the constitution is regulated. The political agenda in Turkey can be summarised as political and social situation that the social peace is targeted and legal obligations are required to tackle with a couple of difficulties for social peace atmosphere. The social and political needs in Turkey urges in a number of legal transformations and innovations. From this perspective, it is possible to see following major and necessary topics to be discussed at a legal level:

A constitution that freedom is for real. In this sense, it is necessary to arrange the freedoms as wide as possible. Providing an atmosphere where all excluded and “marginalised” social groups are included and where they express themselves freely is the summary of the question of “what kind of constitution.” For example, the obstacles of education in the mother tongue which has turned into a tragedy for a significant part of society should be kept away from political debate and should be eliminated by means of legal regulations. Moreover, it should be purified from the definition of ethnic-based citizenship, which we are confronted as the subject of a political conflict, and needs to be overcome through new constitutional regulations.

Narrowing of the central government by putting the local into forward, the development of local-regional governance instead of non-democratic structures and through this way, opening the channels of direct democracy. In this context, the organization and the functioning of government at all levels to create the conditions necessary to ensure full transparency, in this way, particularly in constitutional legal regulations as the creation of “new.”

Can a new constitution created as specified by the content be a positive start for the solution of the conflict? The answer to this question, roughly, it is possible if there is a preparatory process involving all the social groups. In these current conditions, it seems difficult to achieve this. In addition, this necessity makes the method of preparation for the new constitution at least as important as the content. First of all, the construction of a new constitution to ensure the highest level of consensus and the constitution of a democratic-participatory method in order to acquire the meaning of the social contract must be determined.

Another important issue with regard to the method, throughout the preparation of new constitution, it is important to abolish the use of legislation to eliminate freedoms, which can also be called as “road cleanings.” In particular freedom of expression and association, including a series of new constitutional law on the free discussion environment that prevents the modification, conversion is mandatory. Law on Political Parties and the Electoral Act, primarily among the laws need to be changed. Moreover, for example, the Political Parties Law, in the renewal of the Constitution in force contains contradictions. The Parliament is composed missing due to the laws of the provisions of the Criminal and in such conditions; the renewal of the Constitution is on the agenda.

Extracting the legal regulations is much easier for the central government, which presents the wish of totally new Constitution. Works and efforts in this way may be the way to build confidence in the new constitution. While determining the method for the new Constitution, the experiences of different similar countries must be benefited. Without doubt, other samples cannot be expected to be matched fully but at least this might provide the avoidance of mistakes occurred in the past. In this sense, while the new Constitution is aimed for the start towards social peace, the required measures must also be taken in order to conduct the discussions on a new constitution in a peaceful way. The power representing a majority of the society is expected to stay away from pragmatic style of behaviour, instead be stable and reassuring.

The development of a scientific language on the constitutional debates developed on the basis of social peace seems to be mandatory method. Otherwise it means to be away from subjective assessments, or “sensitivities” as its common expression in Turkey. The development of objective criteria for the democratic development level can only be possible with a scientific language. Therefore, scientific-academic examination of the experiences of different countries and the adaptation of those in Turkey will be extremely developer. In this context, exclusively the Northern Ireland, South Africa and Spain samples are valuable samples for the process of building peace and solutions with regard to the constitutional developments.