Government and Constitution “How should a New Constitution be Written?”
Süleyman ŞENSOY
Süleyman ŞENSOY
TASAM Başkanı / Chairman
Release Date : 12/25/2008

No one has seen the government at any time. But it always exists. Government cannot be reduced to a physical place or structures. It cannot either be reduced to any administrative organization nor to any human beings, which are the implementers of law in the material practice. Government is indeed the written rules of law itself. It involves numerous forms of relation concerning life and it is bounded to written rules. As such, government is the reflection of life in the mirror of law.

Government is the totality of written rules of law. However these rules are not the ones kept together randomly. Rules of law are essentially arranged in order, one on the top of the other, in a hierarchical way, and in this sense the juridical image of government resembles that of a pyramid.  The three different geographies of the old world Aztec, Egypt and China saw the constructions of pyramids by the commands of monarches who ended the feudal periods. It was because pyramids symbolize hierarchy, order and uniqueness. Most important part of the government consists of general, objective and abstract rules of law, called as “act”. As in the rest of the world, the legislature in Turkey forming these rules of law is TGNA (the Turkish Grand National Assembly). But in order for these general, objective and abstract rules of law to be implemented, Council of Minister, the head of administrative organization composed of hundreds of government officers,  has to make “regulations”.  After the regulations, Prime Ministry, government departments and public corporations prepare “statutes” so as for the act and the regulation in their profession to be implemented. There is no doubt that the statutes shall not be inconsistent with the regulations, and the regulations shall not be inconsistent with the acts.  In the material truth of life, government  officers produce “administrative operations”  whenever they establish relations with citizens. And these administrative operations shall not be inconsistent neither to statutes nor to regulations and acts.  In this respect, government is a complicated unity consisting of numerous administrative operations together with hundreds of acts and regulations, and many more statutes. And on the top of this unity, there comes the “constitution”. Constitution is the superior rules of law standing on the top of the hierarchy of law. No rule of law can be inconsistent with the constitution in any juridical system. As one can understand so far, constitution is a fundamental juridical text, attributing its color and smell to the government and hence to the juridical system, an so to the life itself. 

Constitutions have three basic functions: Firstly constitutions tell who or what is the governmental power in the main principles. Secondly they protect individual’s rights and liberties against the governmental power by providing written-normative baseline for them. And thirdly, constitutions determine how the governmental power (legislation-TGNA, implementation-Presidency and Council of Ministers, adjudication-decision free courts) shall be organized and how to use it. At this juncture, constitution’s being a vitally important text comes out naturally. 

But we should know in what kind of a process, and by which actors a constitution was written as much as we should know about its content. So, to know the making technique of a constitution and the actors of it is an meaningful as to know about its content. Nowadays Turkey seems to be focused on the arguments  for a new constitution. No doubt that the making process and the route to follow in writing technique is of so much importance, just as its material rules.

The comparison between 1961 and 1982 Constitutions reveals this theme immediately. 1961 Constitution was written by a “Constituent Assembly”, established after the 1960 insurrection. First component of the Constituent Assembly was the “National Troop Committee” composed  of soldiers, actualizing the coup d etat. Second component was the “House of Representatives” which had a comparatively more figurative quality. House of Representatives was a relatively democratic structuring in which representatives from various political parties (apart from the closed Democratic Party), associations and non-governmental organizations were at present. In the constitution-making process, there should be a relation between National Troop Committee and the House of Representatives, based on equality – not hierarchically. The 1961 Constitution was prepared in this process and came into force with the approval of public. And it has found its place in the world’s constitutional history as a very liberal and modern constitution, especially with the influence of its democratic quality.

But the making process of the 1982 Constitution is much more different.  National Security Council, the first wing of Constituent Assembly writing the Constitution, consists of Chief of Defence Staff who started the coup d etat and other force commanders. Second component of the Constituent Assembly, “Advisory Council” has 160 members. 120 of these members are selected by the National Security Council (NSC) from the list that governors convey. And the rest 40 members are determined by the NSC itself. As such, the Advisory Council which is the civil wing of the Constituent Assembly, has no civil members in it. Because one condition to be a member of the Advisory Council is not to be a member of any political parties, ever since 11th of September 1980. 1982 Constitution was totally written in an isolated environment with no different parties in it. What’s more, there is a hierarchical relation between NSC and Advisory Council in which NSC is superior. Again before the presenting of constitution to referendum, there was no attempt to start negotiations or political discussions. It is so natural though that this constitution, written in an antidemocratic process,  has antidemocratic rules. And maybe because of this reason, 1982 Constitution has seen many changes since it was accepted and most of its articles have been put through partial or comprehensive revisions.

Today, during all these “new constitution” discussions, what’s more important than the content of the constitution is it’s making process and the technique of writing. The new constitution draft  engrossed by Prof. Dr. Ergun ÖZBUDUN upon the demand of Dear Mr. Prime Minister has enkindled the constitution discussions even more. But it is difficult to claim that the ongoing process is a healthy one. Most of all political will has to choose one of these two ways: “a comprehensive Constitution change” or “ a new Constitution”. Today it is possible for all, but the first three articles of constitution to be changed in the process that again the constitution allows for. Undoubtedly, the approval of 2/3 of all TGNA members and the ratification of the President is mandatory for these changes. Another way might be to write a “totally new Constitution”, and  the Constituent Assembly has to gather for it, too. Forasmuch as TGNA can change the constitution under certain circumstances, but cannot write a new one. Right at this point, political will has to make an exact, clear choice. As long as this choice is not done, Turkey will lose its time with unnecessary political arguments.  As it is well known, there are plenty more constitution drafts coming after that of Prof. Dr. Ergun ÖZBUDUN. Political party groups, bars, universities and a variety of nongovernmental organizations are working on different drafts independently. It is not an healthy process. Because  bringing together different drafts and different point of views will not bring about conciliation. It will only intensify arguments.

On this point what has to be done is not to adjoin different points of view but to  create a conciliation environment  by bringing together these different points of view in a sole platform and a single draft. If there will be a new constitution, there has to be set a new constituent assembly. This assembly which will involve representatives from political parties and non-governmental organizations, has to take a place on the top of a wider platform having hundreds of members, and then different sides must reach a compromise through the one-by-one assessment of ten hundreds of ideas and contributions. The new constitution draft which AKP (The Justice and Development Party) political party group will present is going to face other drafts as a reaction. As it is almost impossible run a conciliation between these complete and systematic drafts, it will also effect the legitimacy of the draft prepared by the AKP group. However a constitution prepared through the contributions of different sectors on each of the articles, and lasting at least in a few years period, will both have an incontestable legitimacy and will start an “education” period in terms of civil society. Political arguments will be meaningful in such a process and if there will be held a referendum, it’s approval will be much easier. Also such a conciliation environment  will provide different social, ethnic, religious, linguistic and communal groups to know and understand each other better. This method will not only be the protector of a democratic constitution, but also that of social peace and integrity.

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