Abstract

Constitutional Conciliation Commission (Anayasa Uzla^ma 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.

Modern constitutions are harder to change than other legal texts. Entrenchment clauses, “eternity clauses” exist in 59 constitutions of 193 constitutions of the world, making up 30.6% of all.^[1100] Turkey is one of those cases. The country’s recent attempt at drafting a new constitution, among other constitutional issues brought about a renewed discussion about the unamandable articles: Does an ordinary parliament have the power to change the unamendable articles in the process of

¹Hein (2015).

“Are these on record? Because in the future these will be discussed from con­stitutional law perspective” says Suheyl Batum, during one of the commissions session. True, the minutes of the commission offers an excellent opportunity to examine the practical and normative considerations that arise regarding unamend­ability. 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 breaking with tradition, the new constitution would not include any irrevocable articles. The debate took place in two different time periods during the latter stages of the commission.^[1101] First stage was in April 2013 and April 17 was the first date the entrenchment clause was exhaustively debated without getting any consensus. The second stage was in late August 2013 where for three days (August 21, 26, and 27), the commission discussed the substance of articles regarding the form, characteristics, and the symbols of the Turkish state as well as the una­mendability. As the section on these debates demonstrate, a central question regarding the technical amendability of these clauses, i.e., the debate over original constituent power and derived constituent power clouded the debate over the substance of these articles.

In this chapter, I trace the use of unamendable articles in Turkish constitutions with a special emphasis on the present ones, examine the political parties’ proposals, and analyze the debates conducted at the AUK. The chapter begins with a historical account of Turkey’s piecemeal constitutional change, starting off with Turkey’s 1982 Constitution, the amendments introduced to the constitution, and amendment-making procedures adopted by Turkey so far. The second section dis­cusses in detail the question of unamendability in Turkish constitutional history that legally and politically has led to conflicts at times. The third part examines Turkey’s constitution-making after the 2011 general elections and offers some insights about its shortcomings. The fourth section examines the issue of unamendable provision, whether from a legal point it is possible to change the unamendable articles, whether the new constitution is to have unamendable articles, and how the substance of these articles (formerly unamendable or still unamendable) is to be formulated. I argue that parties held irreconcilable positions with respect to unamendable articles, which contributed to the breakdown of the negotiations.

1