Concluding Remarks
The Turkish Constitutional Court’s judicial activism in constitutional amendment cases blended with its extension of the scope of the unamendability clauses faced wide and occasionally harsh criticism.
The orthodox normativist viewpoint interprets the unamendability clause much more narrowly, as well as rejecting outright the Court’s authority to review constitutional amendments. However, if Carl Schmitt’s positive concept of constitution is adopted for the sake of argument, it can rightly be argued that the constitutional amendment power should not be regarded as competent to harm or destroy the values and principles that are regarded as the content of the positive constitution. Therefore, Schmitt’s distinction between the constitution and constitutional laws is but one theory that could justify the Court’s argument in this respect. Yet, Schmitt does not regard the judiciary as the legitimate body to protect the democratic fundamental decision, which makes up the positive constitution, against contingent democratic majorities. For him, this authority for oversight belongs exclusively to the popularly elected head of the executive.Recall that the drafters of the 1982 Constitution chose to considerably expand the scope of unamendability not only to the characteristics of the republic, but also to include the integrity, official language, flag, national anthem, and capital of the state. At the same time, they regulated the Constitutional Court’s authority over constitutional amendments in a most specific manner by restricting it to three criteria of procedural technicality. Consequently, it is safe to say that Article 4 is a limitation on the constitutional amendment power without a binding force in the legal sense. It is rather a political check on the Turkish parliament—just as it was in the 1924 Constitution, where the republican form of the state was unamendable but there was no mechanism prescribed for the judicial review of any legislation.
Acknowledgements I would like to thank the participants of the Unamendable Constitutional Provisions workshop at Ko? University, and in particular Richard Albert for serving as the discussant for the earlier workshop draft of this chapter with invaluable comments and suggestions, and Bertil Emrah Oder and the anonymous reviewer for written comments. I am grateful to Asli Ozcelik and Thomas Raine for their help and suggestions.