A Carthaginian constitution is needed!

Thursday, August 9, 2007, Turkish Daily News

Orhan Kemal CENGIZ

After the elections we immediately began discussing the need for a new constitution. Unfortunately the way these discussions started carries great potential for confusion about the substance of the matter. Whether we need to remove Kemalism and Atatürk from the preamble of the Constitution is an absurd debate at this juncture and deliberations for a new constitution must not be handled like this.

I hope the AKP government and Parliament will begin by reflecting on the essence of the matter rather than continuing to come up with debates like this in the same disorganized and confusing manner. Do we need a new constitution? Why do we need a new one? What is wrong with the current one? How should we prepare this new constitution? I think we should start by asking these questions, and so these are the questions I aim to answer briefly here.

As you probably know, almost all the constitutions Turkey has had were ones prepared and adopted under “extraordinary” circumstances. Because of the constitutional history of Turkey, which is quite similar to that of Latin American countries, Turkish constitutions, including the current one, were designed as “power maps” rather than as documents of fundamental principals and bills of rights that establish the rights of citizens vis-à-vis the State.

As the power balance has changed so have the constitutions. Apart from several completely new constitutions in the last 50 years, we also have made countless amendments to each of them to adapt them to the realities in Turkey, and these amendments have made our anti-democratic constitutions incoherent. Thus the outdated, incoherent and anti-democratic Constitution of 1982 (which is still in force) itself spells the need for a new constitution. But the EU harmonization process also makes a new constitution a priority for Turkey. Yet the AKP government’s approach and understanding of what is necessary for a new constitution is far from the democratic constitution-making process. I am also surprised at the silence of the professors of constitutional law in Turkey who know very well how this work is done in democratic countries. No one in Turkey is talking about preparation; instead they have immediately focused on what the content of the new constitution should be.

Procedure matters The 1982 coup d’état constitution was accepted after a referendum in which more than 90 percent of Turkish voters voted in favor of the constitution. A referendum does not make a constitution democratic; the crucial thing is the level of the participation of people in the preparation process.

What we need now in Turkey is to explain to all our citizens why a new constitution is necessary. Then the AKP should seek consensus with all the other political parties on the “fundamental principals” on which this new constitution will be based. The next step should be convening a kind of “preparatory assembly” which will represent all sections of society and the only task of which will be to work on the preparation of Turkey’s new constitution. That the preparatory assembly includes representatives of all parts of Turkish society should be considered the utmost priority.

And these steps are not enough. Freedom of speech and freedom of expression should be guaranteed at all levels for everyone involved in the discussion. If one considers how many taboos we have, the importance of free speech will be appreciated. Preparing a constitution is an act that resembles establishing a state from the very beginning. And if the Constitution is to be a people’s constitution then all fears and concerns should be put aside for these discussions. Of course, in a deeply divided country it is not easy to find broad common ground, but if the government understands the serious nature of preparing a new constitution, it will not be impossible to find consensus, even if it is only narrow.

Making a new constitution requires substantial preparation if it will be democratic. Without gearing up for a long and arduous process it is not possible to talk about a new and a democratic constitution. The government does not have to draft a new constitution. If they want to make it they have to follow a participatory preparation process that I discussed very briefly above. What we need is a constitution that all Turkish people, including our judges, feel respect for and feel bound by.

Aristotle’s explanation what made the Constitution of Carthage great is still valid for us: “The superiority of their constitution is proved by the fact that the common people remain loyal to the constitution.” Therefore the matter is not only to come up with a democratic constitution but also to be able to give the people the feeling that this constitution is theirs. What we need is a “Carthaginian constitution,” not temporary amendments and the only way to achieve this is to make sure that everyone contributes to the process!