Six Table Constitutional Amendment Proposal

Dear friends, the "Six Table", which was formed by six political parties, announced the text of the "Constitutional Amendment Proposal" to the public at a meeting attended by all six leaders. With this text, it is seen that the issues on which the six parties are in agreement are not limited to the "Strengthened Parliamentary System". Although it is possible to say that these issues of consensus will expand more in the coming period, it should also be noted that there are limits to this expansion on the ideological plane. On the other hand, the current stage can be seen as promising to an extent that cannot be underestimated. In this article, I will try to discuss the newly announced proposal in its various dimensions. 

Constitutions are not only texts that regulate the organization of the state and the functioning of the system, they are also texts that limit sovereign power. Especially with the transfer of sovereignty from the monarchy to the people, the way this sovereignty is exercised on behalf of the people has transformed constitutions into texts in which society is shaped as a will to live together.  The "Magna Carta", which is accepted as the first historical document for the limitation of sovereign power, is seen as the inspiration of modern constitutions in terms of limiting the arbitrary powers of the king. In terms of Turkish constitutional history, the Sened-i Alliance of 1808 is considered by many historians to be one of the most important milestones on the road to constitutionalism as it was a limiting text. It is clear that the concept of "National Sovereignty", which was widely used with the French Revolution, expresses that sovereignty belongs to the nation. It should be noted here that the concept of nation defines a national personality formed by the bond of citizenship, independent of an ethnic basis. 

In structures where sovereignty belongs to the nation, the exercise of sovereignty is carried out by authorized organs. Articles 6, 7, 8 and 9 of our Constitution define these competent organs as legislative, executive and judicial. It follows that if the executive is one of (if not the only one) of the competent organs exercising the sovereignty belonging to the nation, it is imperative that executive power is strictly constitutionally limited. Usually, political powers want the legislature and the judiciary to keep pace with them in order to implement their policies more effectively. While this may seem innocent and reasonable at first, it is nothing less than paving the road to autocratic rule. The initial desire to act swiftly in the public interest gradually transforms into an uncontrollable power that acts in the interest of individuals and groups to the exclusion of the public interest. 

In Turkey, the executive-dominated spirit of the 1982 Constitution has, over time, led to the control of the legislature by the ruling powers and the eventual domination of the legislature by the executive. The mechanisms that ensured control gradually became ineffective as the legislature turned into an instrument of "fast lawmaking". In 2014, a de facto semi-presidential period began with the election of the president by the people for the first time, and with the 2017 referendum and the 2018 elections, the "Presidential Government System" came into effect, in which the President alone can exercise executive power. It is possible to say that the problem here is the concept expressed as the "spirit of the constitution". When we talk about the spirit of the constitution, it is necessary to understand the values that the constitution defends and expresses if it is interpreted as a whole beyond the verbal text. 

Constitutions are at the top of the hierarchy of norms. All other norms require the existence of another norm that presupposes them. For this reason, all legal texts cannot contradict the constitution, which is the basic text from which they derive. In order to ensure this, constitutional jurisdiction has developed in Continental Europe. In other words, the main function of constitutional jurisdiction is to fulfill the judicial review of the legislature within the context of the constitution. However, in our country, there is a constitutional judiciary that is being turned into an area of political debate. At the center of the debates lies the fact that the Constitutional Court is not wanted to review the laws enacted by a legislature under the control of the political power. For this reason, the absurd argument has been put forward that the Court can only examine the applications in terms of form and not in terms of substance. In other words, there is no problem with a law that is formally in compliance being unconstitutional on the merits. Behind these demands may be a lack of appreciation of the rule of law. However, since the rule of law is one of the qualities enumerated in Article 2 of the Constitution, it cannot be the prerogative of any citizen of the Republic of Turkey not to comply with it. In this framework, we can begin to discuss what the Six Table's Constitutional Amendment Proposal brings.

What Does the Constitutional Amendment Proposal Bring?

First of all, it should be noted that the amendment proposal in question includes the amendments envisaged within the scope of the "Memorandum of Understanding on Transition to a Strengthened Parliamentary System" announced by the Six-Party Table on February 28, 2022. In addition, there are significant changes in the language of the constitution. The titles "Rights and Duties" have been reorganized as "Rights and Freedoms". Why is this important? The first approach is dictating, oppressive and imposes duties on citizens vis-à-vis the state. In the second, a libertarian approach that protects rights and freedoms is dominant. In other words, the spirit of the constitution is changing. Another important change that supports this is the inclusion of the phrases "Human dignity, the nature and integrity of fundamental rights and freedoms" in the title of Article 12. Human dignity can be defined as a concept in the first article of the Universal Declaration of Human Rights, referring to the values that every human being should possess by virtue of being human. In addition, we can say that the expression "respectful of human rights" in Article 2 is embodied in the new amendment proposal.

Another important change that gives us an idea that the spirit of the Constitution has changed is the inclusion in Article 13 of the approach that "freedom is the principle, limitation is the exception" and in case of doubt, the interpretation will be made in favor of freedom. The constitutional guarantee of the principle of "Alternative Information", which is a requirement of democracy, makes the amendment proposal valuable. It is observed that the language has changed in favor of rights and freedoms in Articles 31, 33, 34 as well as in other articles, which shows that the spirit of the 1982 Constitution has changed significantly.

One of the most important articles of the proposed constitutional amendment is the amendment envisaged in Article 56. This article states that "Everyone has the right to health. No one shall be deprived of basic health services. The State is obliged to take all necessary measures for the realization of the right to health." With these statements, it is seen that the principle of "social state", which is one of the basic qualities listed in Article 2, has come to life. In the second subparagraph A of the same article, "environmental and animal rights" are constitutionally guaranteed. These should be seen as steps forward in terms of the current situation. 

The abolition of the Council of Higher Education (YÖK) within the scope of academic autonomy and the strengthening of judicial oversight and the judiciary are important titles and articles that bring changes. However, there is a contradiction in the new proposal. Article 101 states that the President will be directly elected by the people. However, the main pillar of this constitutional amendment proposal is presented as the "Consensus Text on Strengthened Parliamentary System". There is no equivalent in political science for the powers of a head of state elected by the people to be symbolic. It seems that a semi-presidential system will de facto exist. There is no justification to explain this contradiction in the proposal. 

Conclusion

For Turkey, which is going through a difficult period in all respects as a result of historically wrong choices, the Six-Table Constitutional Amendment Proposal contains promising changes. However, there is a fundamental contradiction that overshadows all these hopes. This contradiction is the approach to the election of the president by the people. The inclusion of a practice that has no place in the parliamentary system in a structure that you call the "Reinforced Parliamentary System" in the amendment will bring with it a great potential for instability for Turkey if the amendment is adopted. In fact, the primary condition that the opposition needs for this amendment proposal to be realized is to win the upcoming elections in the current structure and to reach the number of deputies in the legislature that can at least take the constitutional amendment proposal to referendum. 

In such a situation, the Six-Party Table should immediately explain to the public why the proposal envisages the election of the president by the people. In an environment where even the fundamental qualities enshrined in Article 2 of the Constitution are being debated, what we need most is a real establishment of the rule of law. The basis for this is a system in which the powers can control and supervise each other. Because if the law is silent, others will speak. In an environment where everyone speaks their mind, there is no way to preserve social peace and the will to live together. Therefore, we can say that it is very important to establish a system free from personal rivalries and power struggles. As the Republic of Turkey enters its second century, it cannot afford to carry an unstable system any longer. Establishing a parliamentary system that is truly based on solid foundations is of great importance for the Republic to move into the third century.