A new constitution after the referendum
by
MÜMTAZ’ER TÜRKÖNE

Constitutional debates are never just about the constitution, and, similarly, a referendum is often about more, too. The current debate on the constitutional amendments is mainly centered on party competition. Political parties are trying to calculate their impact on the balance between “yes” and “no” votes while establishing how they can benefit from the situation. These calculations reflect the superficial groundwork that will be replaced by other calculations in 10 days and then be forgotten. These are simple and short-term results. On the other hand, there is a much more in-depth aspect. In addition to presenting a 26-item constitutional amendment, the referendum sends a much a more profound message about the essence of democracy, the reason for politics and the value of our lives.

A constitution prepared by the public:

Turkey has more constitutional experience than many advanced democracies in Europe. It has more than two centuries of experience in creating constitutional law and a 134-year-old constitutional past. In the midst of all this experience with constitutions, the referendum to be held in one week plays a very significant role: It is the first time that the public will be making constitutional law.

It is the first time that Turkey is holding a referendum to introduce legislation on living together and to restrict the powers of state authorities. It is also the first time that the public will be directly involved in this. Several constitutional laws have been adopted since the Charter of Alliance of 1808. The Tanzimat Fermanı (the Administrative Reforms Decree issued in 1839) was a document that ensured the protection of basic rights. The sultan personally extended protection to basic rights and made a binding promise. The Islahat Fermanı (Reform Decree) declared in 1856 was a very important document on religious freedoms. This was the first constitutional document that established equal citizenship law. A well-coordinated constitution was created for the first time in 1876. The amendments in 1909, the 1921 Law on Fundamental Organization and the 1924 Constitution were the first statutory laws prepared by Parliament. The constitutional laws that were introduced directly by Parliament fostered the founding of the republic and determined the course of main institutions. The Constitutions of 1961 and 1982 were prepared on orders from coup leaders. One of them stayed in effect for 19 years, while the other continues to govern our state order and basic rights. During this process, the public watched, approved or changed the laws through their representatives. There has never been a constitution that comes directly from the public.

Referendums

Some constitutional laws have been put to a referendum in the past as well. However, those laws were very different to the current referendum in terms of their main composition. The 1982 Constitution banned pre-coup politicians from politics and took away their political rights. The referendum held in 1987 was unique from two perspectives. Firstly, basic political rights could not be the subject of a referendum. You can’t regulate a person’s political rights according to the majority’s decision. That referendum was contradictory to the spirit of democracy. Secondly, the referendum had turned into an election between the ruling party and the opposition party instead of being a popular vote on approving or removing a constitutional provision.

Every person banned from politics took a side against the ruling party. The latest example is the referendum that was decided on before the 2007 elections and held immediately after the elections. The topic of that referendum was electing the president by popular vote. The presidential process of the current president, Abdullah Gül, became the subject of an Internet memorandum issued by the then-chief of General Staff, resulting in a political crisis. To overcome the crisis, elections were held. While the government was getting ready to hold elections it also introduced an amendment allowing the public to elect the president. The Justice and Development Party (AK Party) secured a significant victory by winning one in every two votes in the election, which enabled it to prevent a presidential crisis. But the momentum for a referendum couldn’t be stopped, and the vote was still held. The purpose of that referendum was to solve a crisis more so than to introduce a new law on basic rights and freedoms

Sept. 12 referendum

The constitutional amendment we will vote “yes” or “no” for on Sept. 12 proposes comprehensive change. The amendments regarding the judiciary, and the military in particular, will change Turkey’s constitutional order radically. In short, it is the first time that the public will be directly making a constitution. It is a first for the 200-year-old constitutional tradition. Clearly, democracy will continue on a very different course after this “first.” The public will vote on critical provisions related to our individual rights and on the oversight of state institutions that have the power to violate these rights.

It is obvious that there is more to the referendum than just amending the Constitution: It is a test of our democratic values. Do we have the maturity to govern ourselves? Do we have the power and will to keep institutions that we authorize, who we hold liable for our safety and appoint to distribute justice within the limits of democracy and the law? Can we take the initiative to determine our own fate and not leave it up to someone else?

Can we replace the Constitution that coup leaders drafted to ensure their own protection, with a new constitution that protects our future and rights? We are being asked these questions for the first time. It is the first time we are setting the rules. It is the first time we are making decisions for ourselves.

It is for this reason that it is a grave injustice to turn debate platforms on the referendum into a political circus. Attempting to make long-term political gains from the referendum is to forget democratic values. Sacrificing the public’s democratic conscience and maturity for narrow, unproductive personal conflicts means democracy becomes impossible.

Viciously axing down the tree that all political actors are nestled in will cost us a lot. The referendum is not just a simple referendum. A narrow-minded view turns the referendum into a simple means of political bickering and the search for an upper hand in the political competition. A broader view shows that this referendum will mark the beginning of the public’s experience in making constitutional law. Turkish democracy will enter a new phase in which the public will exercise constitutional autonomy for the first time. Using the referendum to settle personal accounts will squander the opportunity we have seized for the first time in 200 years -- and it will mean losing a lot. The gauge is being able to maintain debates that are limited to the constitutional provisions. We are not talking politics, we are making a decision about a kind of democracy that will be able to improve politics if it is allowed to flourish.