[Reasoning for headscarf decision]
New constitution is now a must
by
ERGUN ÖZBUDUN*

As I have previously and frequently stated my views about judicial review of constitutional amendments, I do not want to be seemed redundant by discussing this topic once again. However, there is no doubt that, in a democracy, the primary power (for drafting a completely new constitution from scratch) and the secondary power (for amending an existing constitution as per the rules for such amendments) belong only to the people and their freely elected representatives, and these powers cannot be shared with any other organ or office. Yet, the Constitutional Court defines the primary constituent power as “the will ... which is produced by the interruptions in the country’s political regime that occur due to various factors and which are outside the legal framework in terms of their emergence.” This definition implies that a new constitution can only be drafted after such interruptions as military coups or civil war, an argument which defies all sound reasoning and logic. The world is full of the constitutions which are drafted by ordinary legislatures without such interruptions. We do not need to go far to find an example since the Turkish constitution of 1924 was drafted not by a constituent assembly, but by the ordinary parliament formed after an election in 1923. Indeed, the Constitutional Court’s reasoning clearly shows a contradiction as it says in the sentence following the above-mentioned definition, “In democratic countries, the primary constituent power belongs to the people.”

The court’s reasoning can be discussed with respect to elements relating to form and substance; for whatever reason, the court insists on using “content” instead of “substance.” With respect to form, the Constitutional Court argues that amendments to unamendable provisions are invalid, so it is authorized to conduct a formal review. For the court, “the fact that a constitutional amendment which cannot be proposed has fulfilled the proposal majority requirement set in the second paragraph of article 148 does not justify making a legally invalid act valid by way of numerical majority.” This reasoning is the same as the one the Constitutional Court employed when it cancelled certain constitutional amendments in 1970s. However, there is a colossal difference between the relevant provision (article 147) of the Constitution of 1961, which was in force at that time, and article 148 of the Constitution of 1982. Article 147 of the constitution of 1961, which was later amended in 1971, stated that the Constitutional Court may “review constitutional amendments in terms of constitutional requirements relating to form,” but it did not specify the scope of this formal review.

For this reason, at that time, only through a considerably forced and circuitous interpretation could one argue that proposals to amend the unamendable provisions fall within the scope of formal review, and this argument could find support only to a limited extent. Moreover, it should not be forgotten that the decisions made by the Constitutional Court at that time were criticized by many constitutional law experts.

In order to prevent this activist attitude of the Constitutional Court, the constitution of 1982 restricted the scope of this formal review in its article 148. Thus, this article states that review of constitutional amendments is “ restricted to consideration of whether the requisite majority was obtained in the last ballot; the verification of constitutional amendments shall be restricted to consideration of whether the requisite majorities were obtained for the proposal and in the ballot, and whether the prohibition on debates under urgent procedure was complied with.” The word “restricted” clearly indicates that the Constitutional Court cannot perform review for other reasons except for these three clearly specified reasons, and it is obvious that the term “requisite majority” means only purely numerical majority and does not allow the court to conduct a review seeking compliance with unamendable provisions. Indeed, in its three decisions given in the constitution of 1982 era (one in 1987 and two in 2007), the Constitutional Court correctly construed the provisions of article 148 and declined the request for cancellation.

Some arguments purported in this section of the reasoned decision bolster worries about future developments. For the court, “The amendments to any article of the Constitution, including article 4, have the potential for causing changes to the political order and the constitutional order created by the constituent power. Therefore, one cannot overlook the possibility of the legislature going beyond the limits set by article 4 of the Constitution by introducing amendments to other articles of the Constitution.” Given the fact that the concepts in the first three articles of the Constitution and the Preamble to which Article 2 refers are ambiguous and abstract concepts open to diverse interpretation, it is obvious that with this decision, the Constitutional Court has declared itself the absolute and final master of the constitutional amendment process. This is because there can be no constitutional amendment which is related to one of these concepts in some way or another. This interpretation which implies that the Constitutional Court is superior to the constituent power cannot find supporters in any Western democracy. With this decision, the Constitutional Court overstepped not only its powers, but also stole away functions that do not belong to it. The emerging situation is defined more as a juristocracy than as a democracy. The term juristocracy is a term used not as praise, but as criticism in international literature.

The reasoning followed by the Constitutional Court concerning the substance, too, is readily controversial. As it did in its previous decisions, the Constitutional Court blindly stuck to the outdated positivist and illumination-oriented brand of secularism of the 19th century and presented “rationalism and scientific methods” as necessary opposites to religious belief. Indeed, the reasoned decision talks about the possibility of the regulation “leading to pressure on people having different lifestyles, political opinions or beliefs.” There is no need to assert that a judicial decision can only be based on material facts, not on possibilities, worries or doubts. Moreover, the argument that the state organs “cannot introduce any restriction to the enjoyment of this right” is incorrect as the cancelled amendment to article 42 contains the phrases “which are not clearly specified in laws” and “the limits of this right are specified in the law,” allowing legal restrictions to be introduced. The Constitutional Court is doubtful of whether such legal restrictions would be made as it says, “Considering the fact that the lawmaker is the main political decision maker and that the majority of the country’s population are practitioners of a certain religion, it is clear that it would be difficult to use this discretionary right for restricting religious freedoms.” Here, again, the Constitutional Court has based its decision on possibilities, doubts and conjectures. What will be at the discretion of a legislature in the future cannot serve as a basis for a judicial decision; it can only serve as a basis for speculation.

It is hard to see the relevance of the phrase in the reasoned decision, “basing laws ...not on the national will, but on religious commandments.” Introducing freedom of apparel at higher education institutions cannot be described as basing laws on religious commandments, but as the expansion of freedom of religion and conscience, which is among the most fundamental freedoms in every democratic country. This does not violate the principles of secularism, but is a basic requirement of these principles as it contains freedom of religion and conscience.

Furthermore, the references to decisions of the European Court of Human Rights made in the reasoned decision so as to give the impression that it upholds international norms are far from being supportive. In Dahlab vs. Switzerland, the person in question is not a university student but a teacher who is a public servant, and the issue of whether public servants may wear headscarf has nothing to do with our case. Also, two primary reasons for the European court’s upholding of the closure of the Welfare Party (RP) are the statements made by the party’s spokespersons which can be interpreted as praising violence and the party’s project for multiple legal systems. Closing down a party on grounds that it advocates abolishing a ban, or in other words, expanding individual freedoms, cannot even be imagined within the framework of European norms. Finally, in the decision concerning Leyla Şahin, while the ban in Turkey was not found to be in a violation of the European Convention on Human Rights, this does not mean that Turkey or any other member has to impose such ban or maintain such a ban. The European court only stated that the issue is under the discretion of national decision making organs of member countries. Moreover, it should be noted that none of the countries which are members of the Council of Europe has such a ban on university students.

This decision has once again shown the seriousness of the constitution problem that faces Turkish democracy. This knot, it seems, can be solved through universal democratic and libertarian standards and by drafting a constitution that regulates the mutual powers and authorities of state organs in ways similar to those applicable in established democracies. Otherwise, Turkey will continue to be listed as “semi-democracy” or “partially free” by the international rating agencies such as Freedom House.