Coup against the Republic in the Shadow of Constitutional Debates

After the elections, the government's agenda is dominated by the local elections of 2024 March and the "New Constitution". Although discussions on the elections are held on every platform, discussions on the Constitution either do not take place at all or remain quite shallow. It must be admitted that it is now quite difficult to discuss a topic on a scientific level in the country. People of whatever political persuasion have confined themselves within the boundaries of a certain ideological camp and are far from the virtue of tolerating and respecting the truths they do not want to hear. The simplicity of blaming the public for this situation carries the danger of leaving many factors out of the equation. Nevertheless, I do not want it to be inferred from what I have said that the people are not at fault at all. Let us now try to look at the Constitutional debates, which are of vital importance for the future of the country, from several perspectives.

The starting point of the problem can be considered as the change that sovereignty has undergone in the historical process. In the first state societies, sovereignty was considered to be divine, but over time, it became more earthly and began to derive its source from the people. As a natural consequence of this approach, it is necessary to accept the existence of a contract in which people give up some of their individual interests for the sake of social interests, based on the necessities of living as a community. The equivalent of this contract in today's institutionalised legal states is the constitution. Therefore, the generally accepted view on the constitution today is the contract approach. However, the constitution may not exist as a written text in every country. England is one of the most well-known examples of this.

The fact that such a contract, which protects the common interests of different ethnic, class, religious and ideological communities in society in the name of the common good, makes it necessary to look at the making of the constitution in terms of the representation of all differences. For this reason, political powers do not have the authority to "make a constitution". However, "constitutional amendments" can be made provided that certain formal conditions are fulfilled. Constitution-making requires a constituent assembly, which can only emerge as a result of major social changes. In states of law, which are considered to have completed their institutionalisation, if this change is forced by the society, it is called a revolution; if it is forced by a certain sovereign power, it is called a coup d'état. Nevertheless, in some cases it may not be very easy to make this characterisation. For example, the conditions for the emergence of the 1961 Constitution are not the same as the conditions for the emergence of the 1982 Constitution. 

The Constitution of the Republic of Turkey is a constitution subject to the classification of "strict constitution", which clearly states that the first three articles in the General Principles section cannot be proposed to be amended. Nevertheless, some members of parliament who swear allegiance to the Constitution do not hesitate to make statements that target the first three articles and constitute constitutional offences. In a country where people, no matter who they are, do not hesitate to commit offences, there is a fundamental problem in the implementation of the law. This problem is in contradiction with the principle stated in Article 6 of the Constitution that sovereignty belongs to the nation unconditionally and unconditionally. In fact, this situation is valid for every legal text that is not implemented/violated, and for legal texts that become valid without being in conformity with the Constitution. The constitutional judiciary exists for this purpose and provides judicial review of legislation. 

Governments represent only the executive dimension of the sovereignty belonging to the nation. In the event that the constitutional judiciary functions properly, I believe that the articles submitted to the popular vote in the 2017 referendum should not have been made in violation of the fundamental qualities of the republic listed in the second article of the constitution and Article 6. Nevertheless, the acceptance of this referendum, which was accepted in violation of the law, by the society is nothing but adding a different dimension to the constitutional crime. Unfortunately, the government and the opposition have been complicit here. In an environment where the laws were not applied, objections made through legal means were deemed sufficient. 

Let us come to the issue of making a new constitution. The making of a new constitution is an issue that can be realised by a constituent assembly. In the structure of constituent assemblies, representation of different social classes, different groups, different beliefs and different political views is essential. However, when we look at the current TBMM structure, it is seen that it is far from reflecting the required fair participation. In other words, even if the current parliament is labelled as a constituent assembly, even if it is accepted that there has been a political coup d'état in the country and that the rulers are omnipotent, a constitution that will reflect the will of 85 million people to live together is doomed to remain a figment of the imagination. The recent election results clearly show this.

There are several paths open to the opposition here. However, the possibility of the opposition acting as a bloc is almost non-existent. If a truly law-based approach is preferred, no party should fall into the trap of "making a constitution", in which case the government's only option is to proceed with a comprehensive constitutional amendment. The constitutional amendment option is no less dangerous than the constitution-making option. The parliamentary arithmetic shows that some amendments can be passed without being submitted to a referendum. Here, especially when the possibility of constitutionalisation of anti-secular practices appears, it seems possible that the total number of political parties that may side with the AKP may reach the number that would make constitutional amendment possible.

Paragraph 4 of Article 175 of the Constitution stipulates that "The law on constitutional amendments adopted by the Parliament with three-fifths or less than two-thirds of the total number of its members shall be published in the Official Gazette to be submitted to a referendum, unless the President returns it to the Parliament". In other words, an amendment proposal that receives 360-400 votes in the Parliament must be submitted to a referendum. In the case of an amendment accepted by two-thirds (400) or more votes, the President of the Republic has the option of ratifying or submitting it to a referendum. In the current arithmetic of the TGNA, the possibility of adoption of amendments with a 2/3 majority cannot be ruled out.

Under normal circumstances, an amendment that contradicts the qualities of the republic ("democratic, secular, social state of law") enumerated in the second article of the Constitution is expected to be rejected by the Constitutional Court. This is because these principles are not vague concepts that can be interpreted as they wish. There is a huge corpus universally established for each of them. On the other hand, there is no guarantee that the Constitutional Court will not give a "rejection" decision in the cancellation cases that may be filed regarding the amendments, because the Republic of Turkey seems to have structurally lost its rule of law characteristic with the new system. Unfortunately, the fact that the principle of the rule of law is written in the Constitution seems to be only a make-up that the country has applied for its outward appearance.

In addition to all these, although it is unlikely to win re-election after the economic difficulties, the AKP may pursue a strategy of polarisation around the constitutional amendments and deepen the divisions among political parties. As a result, the most likely outcome could be AKP's success in big cities in an environment where electoral alliances are not favoured. In any case, constitutional debates will remain on the agenda until the local elections. 

The AKP's accusation of the 1982 Constitution as a "coup constitution" can be seen as an anachronistic discourse. It is clear that the spirit of the Constitution is far from a libertarian approach in the amendments made so far. However, one should not ignore the fact that the AKP is a product of this Constitution. Especially when considered together with the recent repressive practices of the government, the public has formed a strong opinion that the AKP is using the issue of freedoms to hide a background. 

Although it is not expressed at every opportunity, we are witnessing many practices and discourses that lead us to believe that this background targets the unitary nation-state structure of the Republic of Turkey. It must be admitted that we have not come to this point all of a sudden. The Turkish people have been rendered like a "boiled frog", defenceless and insensitive to attacks on the values that normally hold a nation together. In an environment where even democratic reactions are associated with terrorism, where the intellectual accumulation of a country has been laid at the feet of a handful of Arab capital, it has also become difficult to discuss science. A huge wave of migration that would change the demography of the country has been watched. Now the next step is to prepare a Constitution that will legitimise the current situation.

A Constitution, which will probably be drafted under the umbrella of the current Turkish Grand National Assembly despite all objections and submitted to the referendum, will be embellished with some sauces and will include regulations that will render the nation-state identity and secular structure of the Republic of Turkey insignificant, if not deal the final blow to it. Then, those who defend the nation-state will be criminalised and discredited through media operations of a magnitude that we have never seen before the referendum. I am one of those who believe that the name of Gazi Mustafa Kemal Atatürk, the Eternal Leader and founder of the Republic of Turkey, who will never be removed from the heart of this nation, will also be trivialised in the text. But I don't want to think that they will succeed, at least on my own behalf...

With respect and love...