The Unamendable Amendments and Its Discontents

Under the 1924 and 1961 Constitutions of Turkey, the only irrevocable provision was the republican form of the state.^[1143] The 1982 constitution has expanded the scope of unamendability and included two other articles that define the character­istics and symbols of the Turkish state.^[1144] However, the controversy over una­mendability in Turkish constitutional law stems not necessarily from the articles but from the Turkish Constitutional Court’s reliance on them to engage in substantial review of constitutional amendments despite an express prohibition of substantial review of amendments.^[1145] Unlike the implicit limitations expressed by the “Doctrine of Basic Structure” in India, in Turkey the unamendable articles provide for explicit limitations on the amendment powers.

The Constitutional Court of Turkey, first established under the 1961 Constitution, since its inception has been an assertive actor that challenges gov­ernmental laws and constitutional amendments.^[1146] The original 1961 Constitution did not have a provision on the judicial review of constitutional amendments.^[1147] The omission has led the Constitutional Court to assume such authority and review the 1969^[1148] and 1970 amendments with respect to both form and substance.^[1149] The court’s judicial review of the 1970 amendment was the first instance in which the court declared itself competent to review constitutional amendments’ compatibility with the unamendable article of the 1961 Constitution regarding the republican form of the state as protected by Article 9.^[1150] In addition, the Court adopted a wider interpretation of the concept of “republican form of state” to include the charac­teristics of the Turkish Republic, such as the rule of law, secularism, social state, and democracy.^[1151] Although in this particular decision, the Court did not find incompatibility with “the republican form of the state” in the 1970 amendment that postponed senate elections for a year, it was a notable case of court’s broad interpretation of its power.

In response, an amendment that explicitly prohibits the Constitutional Court from reviewing the substantial constitutionality of constitutional amendments passed in 1971. Despite the restriction to review the constitutionality of constitu­tional amendments with respect to their form, the court did make five decisions that reviewed amendments with respect to substance, while claiming that they were exercising procedural review.^[1152] The court argued that these constitutional amend­ments violated Article 9 which prohibited amending the republican form of the state and as Roznai and Yolcu acknowledge “the Constitutional Court brought in sub­stantive review through the back door”.^[1153] It was within this context that the 1982 Constitution broadened the scope of unamendable articles but limited the Constitutional Court’s power to review to form; however, this time explicitly outlining what is included in the formal review: requisite majorities for the proposal and in the ballot, and the prohibition on debates under urgent procedure.

The 1982 Constitution of Turkey describes the principal characteristics of the state in the first three articles.^[1154] Article 1 establishes that “The State of Turkey is a Republic”. Article 2 describes and lists the characteristics of the state as “a democratic, secular, and social state governed by rule of law, within the notions of public peace, national solidarity and justice, respecting human rights, loyal to the nationalism of Ataturk, and based on the fundamental tenets set forth in the preamble”.^[1155] Article 3 enumerates its symbols and declares, “The State of Turkey, with its territory and nation, is an indivisible entity. Its language is Turkey. Its flag, the form of which is prescribed by the relevant law, is composed of a white crescent and star on a red background. Its national anthem is the ‘Independence March’. Its capital is Ankara”. Finally Article 4, protects these provisions and states that these shall not be amended, nor shall their amendment be proposed”.

Until the controversial ruling of the Constitutional Court in 2008, the court rejected three requests for substantive review, once in 1987 and twice in 2007.^[1157] However, with the 2008 decision, the Court declared that the two constitutional amendments regarding the principle of equality (Article 10) and the right to edu­cation (Article 42) that aimed to end the headscarf ban for female university, were unconstitutional because they were contrary to the characteristics of the republic as provided in the unamendable Article 2 of the Constitution.^[1158] The 2008 decision of the Constitutional Court is also significant for the fact that the Court in its reasoning stipulated that, Article 4 because it was made by the original constituent power and if amended it would render the unamendable articles meaningless, is itself also unamendable.^[1159] In a separate 2010 decision, it further clarified its position vis-a-vis the unamendability article and explained that Article 4, as the assurance of the first three unamendable articles has innate unamendable quality.^[1160] Constitutional Court’s decision, in a way, brought to a halt the debate among constitutional scholars whether through a double amendment procedure it was possible to cir­cumvent the existing entrenchment of the constitution. Because the unamendability clause (Article 4) itself was not self-entrenched against amendment, some have argued that through a two-stage procedure, it was possible to first repeal the una­mendability provision prohibiting the first three articles’ amendment, and then amend the formerly unamendable articles. Constitutional Court in its decisions clarified that Article 4 was tacitly self-entrenched.

After the Turkish Constitutional Court invalidated the 2008 amendments, despite the preclusion against substantial review, it became another rallying point for the critics of the 1982 Constitution.^[1161] Venice Commission referred to the broad con­ceptualization of the characteristics of the Turkish Republic in the unamendable provisions as problematic because it has become “basis for the review of consti­tutional amendments in a manner that has no parallel in other European states.”^[1162] Through the utilization of unamendable articles, constitutional change has become a significant matter of political contention between political parties.^[1163] However, the discontent is not limited to the Constitutional Court’s reliance on these articles to assume substantive review power. Different partial and total proposals produced by civil society organization reveal that none call for maintaining the 1982 Constitution’s eternal clauses in their entirety.

Turkish Industrialists and Businessmen Association’s (TUSIAD)^[1164] 1992 report before the 1991 elections recommended a constitutional amendment that would limit unamendability to the principle of Republican state before the ordinary par­liament embarks upon a project of drafting a new constitution. The report also advised that the vague notions stated under Article 2, such as “public peace” and “national solidarity” are eliminated, and ideological provisions such as “nationalism of Ataturk” are removed and reference to “fundamental tenets set forth in preamble” that are difficult to identify and agree upon is abolished. The TUSIAD report also changed the provision on language, to “official language” under Article 3. The Union of Chambers and Commodity Exchanges of Turkey (TOBB) 2000 report maintains the Article 4, the intangibility clause prohibiting amendment but makes subtle changes to first three articles.^[1165] Turkish Union of Bar Associations (TBB) 2001 study maintains the unamendability clause protecting the first three articles but provides for it under article 184 of its proposal.

These reports and constitutional draft studies do share some common features. First, all proposed changes to unamendable articles of the 1982 Constitution. Second, all texts referred above do eliminate “public peace” and “national solidarity and justice” notions from the second article on characteristics of the Republic. Third, all drafts do change the provision from “state language” to “state’s official language” under Article 3.^[1167] It is important to note that proposals for constitutional change are not limited to these drafts. By the time Turkey embarked on a consti­tutional change effort in 2011, the fate of unamendable articles under a possible new framework was unknown.

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