The Debate on Unamendable Articles

Before the commission held its first meeting, Cemil £i$ek, President of the Parliament and the chair of the constitutional process held a structured session that brought together professors of constitutional and public law and discussed the method of making a new constitution.^[1197] A central issue of the debate among the scholars was the question of whether the parliament possessed the constituent power to make a new constitution or if it was limited to amending power to revise the constitution.

Centered around the distinction between primary constituent power and derived constituent power, the participants of the meeting also raised the issue of una­mendable articles with regard to this matter. The scholars that maintained that an ordinary legislative (derived) power lacked the power to make a new constitution without first there being a “legal (constitutional) loophole” were in the minority. Challenging the necessity of a new constitution, Professor Canikoglu raised the question of whether the conditions that demand the birth of the authority of con­stituent power were present. Arguing that a “legal (constitutional) loophole” is absent, she maintained the impossibility of the parliament to claim the authority of constituent power and warned that a constitution born from such legal uncertainty would suffer from legitimacy problems in the future. Reasoning that only if the conditions that necessitate the abrogation of the 1982 Constitution exists, then it would be possible to proceed with making a new constitution; she highlighted that it would require to endow the Parliament with the authority of constitute power via a legislation that would allow it to function as a constituent assembly elected by a popular vote.

More than one-third of the professors specifically raised the issue of una­mendable articles and considered whether they pose an obstacle to drafting a new constitution and whether in this new constitution they should be maintained. A controversial matter was the question of how an ordinary parliament that lacks constituent power and possibly utilizing the existing constitution’s mechanism for amendment, could remove or alter the unamendable articles. The majority of the professors that argued in favor of maintaining the unamendable articles asserted that it was the essence of these articles that needed to be safeguarded, meaning the principles of the republic and not the articles in their entirety.^[1199] Professor Goren considered it to be a deceitful and unlawful act for the derived constituent power, the parliament, to change the unamendable articles. However, he argued that it could be possible to make refinements on these articles, provided that the core remains unaltered. Stressing the importance of legal continuity, Goren argued that the principles outlined in these articles have remained constant since the 1924 Constitution and their unamendability is a prohibition against the annihilation of the Constitution’s identity and the legal foundational order. Only by safeguarding these principles, Goren argued, it would be possible to prevent the manifestation of contestation and societal tension.

Eleven of the 24 professors that attended the meeting called for a preliminary legislation or a document of understanding that would strengthen the legal base of the ordinary parliament’s power to write a new constitution.

A thorough review of civil society organization’s inputs regarding unamendable articles is beyond the scope of this study. However, reports published elsewhere indicate that some of the civil society organizations were in favor of maintaining the three unamendable articles of the current constitution, while most agreed that the first three articles could be kept provided that the clause prohibiting their amend­ment (Article 4) do not necessarily remain.^[1200]

The commission began to work without resolving the debate on whether the Turkish parliament or the AUK had the original constituent power to write a new constitution in the first place and whether it could do so in consideration of una­mendable articles of the 1982 Constitution. It was also not clear whether the draft that would be ultimately produced by the commission would rely on the amendment-making rule of the constitution (Article 175) and/or public referendum. TESEV-the chief think tank of Turkey, early on recognized that “the most funda­mental obstacle before the progression of the new constitutional process consists of the “irrevocable provisions” of the Constitution”.^[1201] Thus, they recommended to address this issue and “to add a clause to the new constitution that sets out the rules for enacting the new constitution and states that a public referendum would be held to pass the new constitution, irrespective of the results of the parliamentary vote; or for the current Parliament to draft and pass a bill to legally define the terms of making a new constitution”.^[1202] However, such calls from academicians and civil society actors were disregarded and the commission embarked upon drafting without clarifying these crucial legal points.

Thus, it was only in April 2013 that the commission began to deliberate about the unamendable articles of the 1982 Constitution. Note that this was after the AUK’s self-imposed deadline at the end of March had passed.^[1205] The political parties’ proposals submitted before the deliberations began, indicated their different positions regarding the first three articles and the fourth article on unamendability.^[1206] The right-wing nationalist party MHP did not propose any change of any kind in the first four articles. Both AKP and BDP did not have any provision on unamendability. The AKP’s proposal maintained the gist of the first three articles but did introduce changes,^[1207] the CHP proposed some minor changes regarding the wording^[1208] and the BDP’s proposal offered the most comprehensive change.^[1209] The main discussion on the issue of unamendability took place on April 17, 2013^[1210] and after it was understood that the consensus could not be reached, the commission moved onto next articles. By the time, the commission held its session on “unamendable articles” of the 1982 Constitution, it had agreed on 59 articles.^[1211] However, none of these included the difficult topics such as citizenship and mother language.

Next the debate that took place over these four days will be analyzed to identify the points raised by members of different parties, trace whether arguments evolved as a result of negotiation and determine to what extent the issue of unamendability interacted with other matters of drafting a new constitution.

On the one hand, the members of the commission debated whether they had the power to change the unamendable articles of the constitution; as some formulated whether they had the original constituent power or were limited to derived con­stituent power. On the other hand, the content of these clauses were debated. The earlier sessions (specifically April 17 and August 21, 2013) centered around the issue of unamendability. However, the issue also appeared even when the com­mission moved onto discussing the substance of the general principles of the state (the first three articles). Instead of going chronologically, the analysis here sum­marizes and highlights some of the points raised by the members of the AUK. AKP from the beginning advocated that the new constitution should not have any una­mendable articles and the fact that the current constitution had them was not a legal obstacle for drafting a new constitution. Ahmet lyimaya’s early statement that if needed, the 1982 Constitution can be abrogated was not raised once the commis­sion began to seriously discuss these articles. AKP maintained two points regarding the legal implications of unamendable articles in the existing text and whether they propose an obstacle.

Some constitutional law scholars, also embrace the argument that Article 4 does not actually offer an absolute entrenchment but that it allows for change in the wording and expression, provided that its attributions regarding the characteristics of the Republic remain unaltered.^[1212] Thus, an ordinary parliament that does not claim to possess original constituent power could also make such changes to its wording. For instance, according to Yazici, changing the wording from “respecting human rights” to “based on human rights” would only strengthen the commitment to human rights. The constitutional law professor also holds the view that “public peace, national solidarity, and justice” define the “state respectful of human rights”, rather than the state per se.^[1213] Professor Goren, during the structured meeting between the public law professors and Speaker of the Parliament before the com­mission began its deliberations, also argued that it is possible to introduce some modifications to Article 2, provided that these do not infringe upon the character­istics of the republic.^[1214] However, others disagree. For instance, according to Kemal Gozler, each of these statements defines one characteristic of the state.^[1215] Riza Turmen ponders why the drafters of the 1982 Constitution did not simply said that Article 4 prohibits Article 1, 2, and 3 and asks whether it is possible that the unamendability clause offers not an absolute entrenchment but a qualified one. Another question that Riza Turmen brings to the table is whether the prohibition against Article 2 also covers the preamble- because Article 2’s definition of the republic includes the phrase “based on the fundamental tenets set forth in the preamble”. According to Ahmet lyimaya, the answer is positive and the preamble through that provision must also be unamendable. However, according to Suheyl Batum, the preamble is outside the scope of unamendability. It is a rather interesting point raised by Turmen since the preamble was amended before in 1995 and 2001.

§entop makes a similar argument regarding the unamendability of Article 3, defining the symbols of the state—including the language.^[1216] According to §entop, unamendability clause does not prohibit Article 3 in its entirety, but its provisions and thus allows changes to its wording- therefore it is possible to change the wording to “official language is Turkish”.^[1217] Besides these points, AKP represen­tatives make references to Constitutional Court’s past decisions based on the unamendability clause. In essence, raising the “enhancing judiciary’s power objection” that Roznai defines, AKP argues that judicial enforcement of una­mendability has historically led to political problems and Constitutional Court’s assumption of political and ideological judicial review.^[1218] Moreover, AKP members question why even after the drafters of unamendable articles have left this earth the clauses must remain, raising the “dead hand” objection^[1219]; argue that unamendability may become problematic when new principles arise or the existing ones become void and contend that the provisions of the current unamendable articles are internalized, thus do not need entrenchment since we can trust the people who have embraced and internalized them. Another argument that AKP puts forward in favor of eliminating unamendability in the new constitution is what Roznai describes as “the revolutionary or forcible objection”.^[1220] According to Professor Yusuf §evki Hakyemez, AKP’s consultant, denying the TGNA the power to draft a new constitution because it does not have original constituent power and because the existing constitution includes unamendable articles, incite recourse to extra-constitutional means.^[1221] AKP members also bring forward “the limited effectiveness of unamendability” argument,^[1222] providing a scenario where an amendment is introduced to Article 2 or 3, with a high majority in the parliament and since the Constitutional Court does not carry ex officio review, if nobody authorized by the constitution to apply for annulment do not take the matter to the court and time lapses for application, the Constitutional Court fails to provide juridical oversight over unamendability.^[1223] Finally, a point raised by an AKP member holds that constitutions are not sacred texts that can protect, through unamendability, a country’s social structure.

AKP members do not rely on “undemocratic objection”,^[1224] which rests on the argument that unamendability clauses ‘deny citizens the democratic right to amend their own constitution and in so doing divest them for the basic sovereign rights of popular choice and continuing self-definition’.^[1225] A rather strong objection, the reason that AKP members’ and similarly BDP members’ decision not to raise the “undemocratic objection” is most probably because they do not want to perpetuate the suspicion that these two parties actually may prefer to change the foundational principles and symbols of the republic, if they are not immunized against amendment.

There are differences among the positions of CHP representatives. Atilla Kart gives examples of other countries that do have unamendability but argues that while it is possible to do some improvement and strengthening with the first three articles, their unamendability must be protected. Riza Turmen, for instance, believes there can be consensus on the issue of unamendability. However, from the beginning of the debate on unamendable articles, the fellow representative Suheyl Batum argues that only the amendment mechanism outlined in the constitution can be used and every article of the constitution can be changed and replaced except the una­mendable article because the commission is exercising derived constituent power. His argument rests on several, sometimes contradictory points. He argues that the external interference of the prime minister to the constitution-making process and his declaration that if the other parties reject the presidential system, AKP plans to introduce its own amendment has made the original constituent power argument meaningless. He reasons that a commission that cannot agree on the constitution’s provisions regarding the executive, legislative and judiciary branch is only able to offer a partial constitutional change and as such, there is no original constituent power. He contends that AKP is planning to take the amendments agreed so far to a referendum and thus what the commission is engaging in is an exercise of derived constituent power.^[1226] He also anticipates that the real intention is to be able to amend the first three articles one day and that is why AKP (and BDP) are against unamendability. Batum insists on the distinction between original and derived constituent power. On August 26th meeting, he warns against double amendment/ two-stage process, where first the parliament amends the unamendability clause and then the unamendable articles. Able to convince his fellow representatives from the party, CHP members decide to withdraw back their proposal to introduce changes to first three articles, as long as there is no consensus on the issue of unamend­ability. CHP establishes unamendability as its “red line”—a matter it refuses to derogate from under any circumstances.

MHP from the beginning argues that the unamendability must be maintained (as well as the substance of these articles). Their argument rests on the contention that what the commission is tasked to do is to draft a constitution for an established state, and not to establish a new state, and thus the unamendable articles as well as unamendability must be maintained. A second argument provided by MHP is that the political parties during their electoral campaign (the 2011 general elections) did not elaborate on the content of “the new constitution”, did not express their posi­tions on the unamendable clause, and hence do not have original constituent power. The normative argument MHP makes in favor of maintaining unamendability rests on the fear that Turkey may face a threat to its integrity and the unamendability clause protects the foundational philosophy of the Turkish state.

BDP, like AKP also advocates that there should be no unamendability clause in the future constitution. BDP representative Meral Dani§ Be^ta^ believes that the distinction between original and derived constituent power is theoretical and the parliament has the optimum representativeness. Bengi Yildiz argues that una­mendability is outmoded, constitutions are not sacred and inserting unamendability only puts handcuffs on the future generations. A point raised by BDP members several times is that if the military regime can make the claim of constituent power, so can a parliament freely elected. BDP is especially troubled about the fact that it was the National Security Council (NSC), the chamber made up of coup organizers that decided to expand the scope of unamendable provisions when the Consultative Assembly, the civilian chamber had only included the republican form of state as the irrevocable article. A point that is also raised by AKP members with reference to “five generals”, insinuating the members of the NSC, is that coup-makers have attempted to rule for generations to come. Against this reliance on unamendable provisions as “paternalistic devices” that the generals planted based on the belief that the republic was under threat, BDP and AKP argue that maintaining the unamendability provision convey the impression that trust cannot be placed on the public and its representatives and only the coup-makers may provide the most solid shield against threats to the republic.^[1227]

A careful review of the debate on unamendability that took place in Turkey’s Constitutional Conciliation Commission (AUK) reveals that although it was quite technical, as the BDP member Meral Dani§ Be^ta^ recognized, arguments were fundamentally based on political identities, ideologies and perspectives.^[1228] After discussing unamendability for two days (April 17 and August 21, 2013) and not reaching consensus, the commission decided to move onto the substance of the articles. Immediately the commission achieved consensus on Article 1 on the republican form of the state. For the next two days, the commission discussed Article 2 and 3, however, because the issue of unamendability was unresolved, the discussion revolved around that issue as well. The debate on substance did not proceed as a negotiation but with each member clinging to their party positions. The debates also deviated from the content to other general issues, debating the question of ethnicity, nation-state, the history of Kurds, the history of the republic and presidential system, reflecting how politicized the issue of unamendability is in the Turkish context. For instance, the debate on Article 2 (August 26, 2013) focused on the presidential system proposal of AKP. The second and third sessions revolved around the question of whether there is a foundational philosophy of the state, and if there is, what it is, and quickly moved to issues of ethnicity and race. The members of the commission exhausted the debate without reaching consensus. Across all political parties, members engaged in backward-looking arguments such as the Constitutional Court’s controversial decisions to review constitutional amend­ments’ compatibility with the unamendable article; the TGNA’s experience of drafting a constitution (the 1924 Constitution); the insertion of Article 2 and 3 by the National Security Members; the experience of the Independence War and the fear of history repeating itself; with references to Ottoman Empire and recent history of the Middle East. The weight of history, exemplary or alarming directed the nature of the debates.

As a result of the shortcomings of the working methods with respect to con­sensus and trust-building, every day political tensions are reflected in these debates.^[1229] The scheduled meeting to discuss Article 3 (August 27, 2013) witnessed a heated debate between members of AKP and CHP regarding CHP’s member Batum’s objection to article on “right to travel” that had previously achieved consensus among the commission member. Lack of a clear roadmap and essentially no deadlines allowed for an open-ended process in which it became possible to resume deliberations on articles already agreed-on, which are outside of the scope of the meetings. Another shortcoming of the commission that vitiated the debate on the substance of these articles is the lack of detail in principles and working methods of the commission. Absence of clear rules regarding the consultants position in the commission, led to agitated exchanges between consultant Yavuz Atar, and MHP member Oktay Ozturk and CHP member Suheyl Batum.

The issue of trust arises in different contexts. For instance, during the April 17th meeting MHP argued that if there is an agreement on the form, characteristics and the symbols of the Turkish state, then others need to inspire confidence and agree to not change the unamendable articles of the 1982 Constitution. AKP members, on the other hand, argued that there is no need to entrench articles, it is important to place trust on the public. CHP members (most notably Batum) fear several sce­narios regarding the presidential system and partial revision of the constitution through a referendum. The lack of trust precludes the members from making compromises.

In the end, the commission is not able to reach a consensus on unamendability— whether to maintain it; if so, to entrench which articles and with respect to Article 2 there is no consensus on its substance. However, with regards to Article 3 AKP, CHP and MHP agree to preserve it as it is in the constitution. AKP withdraws its proposal to change the language of the provision from “Its language is Turkish” to “Its official language is Turkish”. AKP member lyimaya resolves that regardless of what it says, the state does not have a “special” language and in any case the title of the articles says “official language”. AKP’s compromise rests on the understanding that both expressions can possibly be interpreted the same.

The debates reveal that MHP and BDP maintain their original positions regarding both the issue of unamendability and the substance of the current con­stitution’s unamendable articles. CHP members’ position changed. Although CHP was initially in favor of making wording improvements to first three articles, provided that the unamendability clause remained intact later they reverse their position and become against any change regarding the first four articles. Although CHP makes the argument that AKP is using unamendability issue as a bargaining chip for the presidential system, which has been the single most con­tentious issue brought to the table by the ruling party, the difference in opinions within CHP are also noteworthy. AKP also changes its position, it agrees to Article 3’s current formulation. BDP, at the final hour of the debate during the closing remarks states that provided that they can agree on the principles of the state, they would be willing to negotiate including the general issue of unamendability. Thus, the commission makes a full circle to the issue of unamendability without reaching any consensus on the matter.

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