A Political Clause of Unamendability
As I explained, in three different constitutional settings, the Turkish Constitutional Court managed to find a way to invalidate constitutional amendments on the grounds that they violated the unamendability clause.
In doing so, it made use of several arguments in different cases, ranging from arguments on the nature of constitutional amendments to the definition of constituent power and the scope of the unamendability clause. In an attempt to look for a justification for the Court’s lines of reasoning, one might resort to Carl Schmitt's positive concept of constitution. In doing so, one realises that the Court's understanding of the concept of constitution through a duality of acts of original and derived constituent powers bears a resemblance to Schmitt’s distinction of the constitution and constitutional laws. Now, the concept of derived constituent power does not sound Schmittian at all. Indeed, for Schmitt, it is a fundamental error to regard a constitutionally regulated authority a pouvoir constituant.[1356] However, the TCC’s usage of the term ‘derived constituent power’ is not to stress that it is a pouvoir constituant per se, as the Turkish equivalent of constituent power (kurucu iktidar) in legal scholarship simply corresponds to law-making at the constitutional level.[1357] By establishing this distinction, the Court simply tries to create a core within the constitution, untouchable by any power, save for the people directly acting as the sovereign. In the Headscarf Decision, the TCC states that the original constituent power specifies the fundamentals of the legal order, and in a democratic system, this power belongs to the people.[1358] Therefore, presumably unwittingly, the TCC adopts Schmitt’s distinction of changing the constitution by the constituent power and changing constitutional laws by the constitutional amendment power.In the first era of the TCC's review of constitutional amendments, when there were no specific provisions in the Turkish constitution as to the constitutional review of constitutional amendments, the Court made the arguments that constitutional amendments may not be contrary to ‘the spirit of the constitution’ and ‘the fundamental values of the constitutional order’, and that they cannot violate ‘the characteristics of the republic', as the amendment of the republican form of the state was prohibited. This understanding of the constitution with intrinsic limits to its amendment is based on a view that there is a fundamental political preference that needs to be guarded against contingent majorities, which corresponds to Schmitt's idea of the positive constitution.
Another argument the TCC made while the judicial review of constitutional amendments was not expressly provided for in the constitution was that constitutional amendments were acts of ordinary legislation, and thus would be regarded as ‘laws' and subject to the same review constraints and procedures (formally and substantively). This was an implicit reference to the distinction of constituent power and constitutional amendment power, where the Court regarded itself competent to determine whether the constitutional amendment in question was in line with the spirit of the constitution and whether it was a progressive undertaking that would not cause regress to the Turkish society, presumably referring to the founding Kemalist principles. In this way, the Court made Schmitt’s distinction of the constitution and constitutional laws, only with a different label.
The TCC’s argument in justifying its review of constitutional amendments that it protects the constitution against the sovereignty of the majority illuminates the function it accords itself when taken together with the fact that the Court has not been a liberal institution that promoted rights since its establishment.[1359] Mostly in party closure and constitutional amendment cases, the TCC has a record of protecting the constitution’s political ideology over rights.[1360] Therefore, the TCC has functionally been the guardian of the constitution in the Schmittian sense, as it protected the constituent choice entrenched in the constitution against the democratic will to amend the constitution. Having said that, it cannot be regarded as a Schmittian guardian of the constitution institutionally, as Schmitt opposes granting the protection of the constitution to judicial bodies, as they lack democratic credentials by nature.
The TCC’s interpretation of the unamendability clause (Article 4) in the constitution as a legal limitation on the constitutional amendment power is a contentious one. In the constitutional amendment case of 2010, the TCC clearly expressed the scope of Article 4 and how it limits the constitutional amendment power. The substantive review of constitutional amendments, the Court argued, would be as to whether they directly or indirectly destroyed or emptied the content of the unamendable principles, and thus rendered them meaningless. Consequently, the TCC attached to Article 4 an effect stretching over the whole constitution. The Court created a test for constitutional amendments to any provision of the constitution to see whether they compromise the republican form of the state, the national, democratic, secular and social characteristics of the state, the principles of the rule of law and human rights, and perhaps even the arguably chauvinistic ‘fundamental tenets set forth in the preamble’, as referred to in the unamendable Article 2.
While the legal significance of Article 4 is far from settled in Turkish constitutional scholarship,[1361] many argue that the lack of the TCC’s authority to review constitutional amendments substantively deprives Article 4 of a legal sanction.[1362] [1363] Some others are, however, more reluctant in denying legal enforceability to the unamendability clause. Oder, for instance, suggests an original justification for a cautious substantive judicial review of amendments under the present constitutional setting. While criticising the TCC’s textual twist in Article 148 in 2008 and 2010 decisions explained above, she argues that what the purpose of the existence of unamendable clauses that incorporate the basic constitutional values requires overrides what the textual interpretation of Article 148 requires.[1364] Still, She adds the caveat that the Court should leave a greater margin of political discretion to the constitutional amendment power than it would do to ordinary legislation.[1365]
Lastly, many scholars have also argued for the double amendment procedure, i.e.
since Article 4 does not prohibit its own amendment, it is permissible to amend the unamendability clause first, and then amend the first three articles.[1366] This formalist approach, however, does not sufficiently address the question of why Article 4 exists at all. An attempt to both argue that Article 4 is legally amendable and that it serves the idea of constitutionalism, can be done through a political understanding of the constitutional provision. The first step of the double amendment procedure, namely the parliamentary procedure and debate on amending Article 4, would still serve constitutionalist purposes, compared to the non-existence of such a norm at all. Indeed, the constituent choice of entrenching unamendable clauses and simultaneously preventing the judiciary from enforcing this unamendability shows that the unamendability clause is rather addressed to the political actors, creating political accountability. The making of this constituent choice can also be strikingly seen in the Constituent Assembly’s debates. As the unamendability clause was debated in the making of the 1982 Constitution in the Advisory Council, when a deputy asked, ‘what if the unamendability clause prohibiting the amendment of the republican form of the state is amended?’, the speaker of the Advisory Council’s Constitution Committee replied ‘our dear friend should not worry, we 45 million (then Turkey’s population) would oppose this!’.[1367] The unamendability clause in the Turkish constitution, therefore, seems to carry the characteristics of a political check rather than a legal one.5