From the Kanun-ı Esasi to today

The Constitution in our hands, 39 years after its adoption by a referendum, has moved considerably away from its first text as a result of the changes that have taken place so far. Although the radical 26-article amendment, this time taken to a referendum under conditions as democratic as possible on the 30th anniversary of the 12 September coup that had the Constitution accepted by society under extraordinary conditions, changed many things, in the end it stood like a patch on the coup constitution.

Yet among these 26 articles was even the abolition of the article 15 of unprosecutability that those who carried out the coup had put in to make themselves untouchable. Thanks to this, the coup leader Kenan Evren and Tahsin Şahinkaya, who was alive in those days, were even tried and convicted. With the amendment taken to a referendum in April 2017, the structure of the system in Turkey changed. A shift was made from the parliamentary system to the presidential system. But even this change, however fundamental, remained in the end a redaction on the same text. In fact, even if all of it had been changed, the point Turkey has reached today is the demand to be rid of a constitutional text that stands like a contract the coup-makers made a society sign by force, and to replace it with a constitution that truly free citizens will prepare together, participating with their free will. For that reason, the new constitution path opening before us is in fact, in full accordance with the spirit and definition of a constitution, a social contract process. For this process, a profile of citizen who is sufficiently strong, free and capable of debate has, sociologically, taken shape today.

Speaking of precisely this citizen profile, it is worth going back to the beginning of the history of constitution-making in Turkey and speaking of some debates held at that time, especially some contributions and criticisms of Prince Sait Halim Pasha, one of the last Ottoman Grand Viziers.

The first thing that Sait Halim Pasha's account of the constitutional process draws attention to and warns about was that, although a constitution, by its very definition, derives its legitimacy from the dimension of a social contract, society was in fact far removed from this affair. And society's being far from this affair was, according to the Pasha, first of all because society was still very far from the idea of a constitution and because the demand for a constitution was in fact coming not from society but from certain elites. Thus we can see that the dimension from which we suffer today with regard to the constitution is also the most important problem of our constitutional history.

In fact, the Kanun-u Esasi adopted in 1876 also came onto the agenda in an environment in which Sultan Abdülaziz had been removed from the throne as a result of a coup and murdered in a manner made to look like suicide. What was asked of II. Abdülhamid, who was put on the throne in his place, was to proclaim the constitution. He proclaimed the Constitution, if only for a short time, but two years later suspended it until 1908, when the II. Meşrutiyet would be proclaimed.

Said Halim Pasha draws attention to the fact that this constitution was prepared by the ministers of the time and some leading officials

at the most severe time of absolutist rule and in silence, on their own, by secretly agreeing among themselves. According to the demand in vogue among this stratum of officials, with it they would reduce the despotism of the sovereign and create a force that would provide a balance against his authority and influence. For the fact that the destiny of the state was in the hands of a personal and arbitrary administration was regarded as the main reason for the country's lack of progress. Ostensibly, the will of the nation was being brought to the fore against the despotism of the sovereign, and a constitution, by definition, put forward such a new balance of power. This very proposal of a new balance of power had in itself acquired serious legitimacy, rightfulness and validity.

But according to Said Halim Pasha, the real aim of the constitutional initiative that set out from this valid situation was in fact far from truly achieving such an aim. Because the sultan's despotism in question was a problem not for the nation but for the stratum of officials who put the Constitution forward. Not only was there no serious sign that the nation had such a demand; it was also quite clear that the nation, with its low level of education and organized in tribes and clans, would have neither the knowledge nor the skill to use the rights, freedoms or possibilities that such a constitution would provide it. The stratum of memurin, on the other hand, were in fact pinning their hopes precisely on this incapacity of the nation, because they expected that the authority to use the rights that the nation, out of its incapacity, could not use would be transferred to themselves.

According to the Pasha, those who made the constitution were very well aware of this, and from the start hoped for nothing other than opening a broad and useful field for their own tutelage with the new constitution. By leading the constitutional process, to the capacity of "representative of the state" that they already possessed and never relinquished, they added the capacity of "protector of the law and the nation," and thereby made the nation an instrument for themselves against the sovereign.

The constitution thus would in fact have had an effect that reinforced the despotism of a quite different segment, the Ottoman bureaucracy.

Said Halim Pasha tries to show, through very powerful sociological observations and findings, how this first constitutional experience of Ottoman society could have effects exactly the opposite of what was claimed. His first finding was that the constitution was not a demand of the nation, but, although it legitimized itself as though it were the nation's wish, was a result of a desire to establish a stronger despotism over the nation.

Let us continue in the next article to convey his other findings that deserve attention in every constitution-making process.