On the horizon of the debate on a new and civil constitution

A full 45 years have passed since the 12 September military coup that made this society accept the current constitution, which presently regulates Turkey's social contract, that is, the relations, institutions and powers between the state and citizens or among citizens themselves. When the coup seized power by force of arms 45 years ago, the first thing it did was abolish the existing constitution. It actually drew its legitimacy and its job description from that constitution, yet by force of arms it produced for itself a right and authority that did not arise from that constitution, and thereby wiped out that constitution and all the duties it defined.

In doing so, it was in effect reminding the people of the country once again of a tragic truth in the history of constitutions. Constitutions, also defined as a social contract, are texts to which society is the last party to be brought in, and for which often only the signature of approval is extracted by force. When the 12 September constitution was put to a referendum after being written (or rather, had written) by the coup makers during an extremely oppressive dictatorship, the people were in any case left no option other than to approve it.

Even so, everything had to conform to its definition, and the people's approval had to be obtained at the highest level. After all, a text that builds and legitimizes a state, even when it has been forced through, is one that even those who object to it cannot act without referring to in its current form. Süleyman Demirel, who opposed the 12 September Constitution most fiercely, nevertheless never let this constitutional text out of his hand and constantly referred to it.

This is the paradox we face before the constitution, or before law in general. However bad it is, however much we object, it is effectively valid in the present situation. This validity operates independently of who imposed it and by what methods. The tragic side of the matter is that, even if it is called a "social contract," no country's constitution has been prepared and put into force with the participation of society. In this process, which Prince Said Halim Pasha had also pointed out earlier, "society" is in fact a code name for bureaucratic or oligarchic elites (the military, the treasury, the ulema).

The 12 September Constitution is a very bad constitution because of the way it was made and its content, but it is our constitution at the moment. Even though it has been changed a great deal. Very few articles remain unchanged, yet whatever kind of constitution it is, it does not go away from that 12 September spirit. Many of its articles, which were subject to criticism from the moment it was made, have been changed. On its 30th anniversary it underwent a comprehensive change of 26 articles. In 2017 it underwent an even more comprehensive, system-level change, but here we are again, in these days, on the horizon of a constitutional amendment.

The agenda of a completely civilian constitution, far from the spirit of the 12 September Coup, which has been on the agenda for some time, is in fact an agenda that has been routinely repeated in our country for nearly 20 years. One of the best things we have learned in this period is that, as citizens, all of you take part in the conversation on preparing an ideal, good constitutional text. That is, because the channels for citizens' participation in the constitution-making process are open, everyone has formed an opinion about better constitutions.

In response to the President's call for everyone to contribute to making a new and completely civilian constitution, Hüda-Par organized a workshop in Istanbul on Saturday under the title "In Search of Social Consensus." Throughout the day, politicians and academics, addressing a quite distinguished audience, took serious tours of the horizon on the method, content and conditions for a new constitution "worth attempting."

"Worth attempting" is actually my own phrase, but it is a phrase that can best describe the concerns underlying the considerations made in general. After all, once it has been declared from the start that the preamble and "unamendable" articles of the current constitution will once again not be touched, whether the changes to be made are worth it is a legitimate question. Because the 12 September spirit is precisely in those first articles, or in the "unchangeability, the non-proposability even of changing" of those articles.

What is interesting is that the great majority of those articles are not at all a matter of debate. No one objects to the flag, to Ankara being the capital, or to the country being a social state governed by the rule of law. But the presence of a person's name in a constitution, and moreover a "nationalism" attributed to him whose meaning there is not even any consensus on, will always form the excuse for every kind of authoritarian politics or practice. Placing an unchangeability clause on a constitutional text means both mortgaging the will of future generations and demeaning the reason and will of present and future generations, just as befits 12 September coup-making.

Yet the world on whose horizon we stand is a world that is changing rapidly and in which knowledge, technological development and human relations are going toward a very different place. In this world, it is not possible for a society whose constitution is bound from the outset by a very vague ideological dogma (unchangeability) with debatable content to gain a serious place.

At the workshop, in their opening speeches, the former Speaker of the Parliament Mr. Mustafa Şentop and Hüda-Par Chairman Zekeriya Yapıcıoğlu stated that sufficient reasons for a new constitution had emerged and had accumulated more than enough.

Özgür-Der Chairman Rıdvan Kaya drew attention to the reality of the muhajirs (migrants), who have reached a population and settlement in Turkey that can no longer be ignored, and said that the rights of muhajirs should also be taken into account in the constitution.

In the sessions of the workshop, where Mazlumder Chairman and jurist Kaya Kartal and Mehmet Göktaş were also among the opening speakers, Hüseyin Sudan, Abdurrahman Eren, Emir Kaya, Ahmet Sait Öner, Muharrem Coşkun, Saffet Köse, Kaya Kartal, Hamza Türkmen, Abdulmuttalib Arpa, İlhami Sayan, Halil İbrahim Çelik and Adnan Akalın set out their criticisms of the current constitution and their proposals for a new constitution through presentations under headings such as "The Problem of Authority and Method in Making a New Constitution in Light of Turkey's Constitution-Making Experience," "What Is the State? What Is It For?", "What Kind of Constitution? Manifesto, Representation, Originality," "Protection of the Family and the Fitra," "Ethnic Identities and the Constitutional Order: Principles and Approaches," "Is an Inclusive Constitution That Does Not Impose an Ideology Possible?", "The Right to Faith-Based Economic Activity," "Cultural Rights and the Protection of Cultural Rights," "Restructuring Education: Continuity, Change, Need and Expectations," and "Personal Data and the Protection of Privacy."

In the workshop's final declaration, while a call was made with the words "Now is the time to step out of the shadow of the coup constitution and to make a civilian, participatory and just constitution. Academics, jurists, political parties, civil society organizations and all segments of society must shoulder this historic responsibility; they must build a new future together," in my view Hüda-Par also made its most fundamental proposal with the following sentences:

"Turkey's constitutional identity, historical heritage and social values must be taken into account in building it. Sociological norms must be reflected in positive norms and transferred into the system. In this context, the fact that our nation is an inseparable part of the Islamic ummah must not be disregarded in the constitutional conception. In harmony with the principles of universal human rights and the rule of law, the new constitution must reflect this belonging not as a discrimination but as a reference that strengthens society's bond with its historical, cultural and spiritual roots."