What cannot even be proposed to be changed

The remarks of Constitutional Court President Haşim Kılıç, made during a chat with some journalists, to the effect that even the first three articles of the Constitution could be changed if desired, made headlines in the newspapers the next day. These remarks, which in my view were extremely apt and hopeful, were subjected to heavy criticism by both the opposition and AK Parti deputies. In the evening, at the opening reception of the TBMM, again while talking with journalists, Kılıç said that his words had been misunderstood and that he himself knew best that the first three articles of the Constitution could not be changed. Thus a very hopeful chapter that had probably been opened regarding constitutional change was closed, for now.

But since the subject has been raised, it is very useful to remind and to underline one or two points.

1. We are one of the very rare countries whose constitution contains the phrase "cannot be amended and cannot even be proposed for amendment."

2. The phrase "cannot be amended and cannot even be proposed for amendment" entered our lives in such a well-formed way as Article 4 of the Constitution in 1982, that is, together with the constitutional text prepared by the 12 September coup. Before that, too, Article 9 of the 1961 Constitution mentions a provision whose amendment could not be proposed, but this provision covers only "the constitutional provision that the form of the State is a Republic." Before that, in neither of the 1921 and 1924 constitutions, to whose writing Mustafa Kemal himself contributed and of which he was even the most important determinant, is there such an article.

Whereas the article that the 27 May coup-makers thought of putting into the Constitution for the first time in 1961 concerned only the republican form, the 1982 coup-makers greatly expanded the scope of the "untouchable articles" and wrote it in a way that could be interpreted, whenever desired, to cover almost the whole Constitution. This time they were not content with the provision that the Turkish State is a Republic; it was lengthened to include the provisions that this republic is "a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble." In the following article, the provisions that the Turkish State is an indivisible entity with its territory and nation, that its language is Turkish, that its flag, the form of which is prescribed by law, is a red flag with a white crescent and star, that its national anthem is the "Independence March," and that its capital is Ankara were also enumerated, and it was stated in Article 4 that none of these provisions can be amended or even proposed for amendment.

3. Now, of course, all of these are provisions whose amendment would hardly occur to anyone anyway. Most of them are matters to which no one in Turkey could object. But however much of a consensus matter it may be, placing a man-made provision under the protection of "not even being proposable for amendment" is both contrary to reason and means mortgaging the will of future generations. No one has the right to do this. Moreover, let us not forget that the Constitutional Court found itself a way out by directly relating some amendments made by the TBMM to the contents of these articles. Once this path is opened, there is no constitutional amendment that cannot be related to the "not even proposable for amendment" articles. Thus the entire Republic of Turkey, with its nation, its state, its TBMM and its politicians, can be bound to the interpretive tutelage of a few judges. We saw this danger; we all lived through it together.

4. But let us not go that far. If you like, let us recall once more who put these articles in place, and ask why we should be condemned to this idea of "not being proposable for amendment." Since today everything the coup-makers did is being opened to judicial scrutiny, since the act of coup-making has been condemned with all its scope and consequences, why do we continue to keep on our heads this rotten sock that those coup-makers knitted over our heads?

While the constitution made by coup-makers who have no legitimacy whatsoever is being questioned today, why should we get stuck on this heavy barrier they placed at the entrance of the Constitution? That is, if the coup-makers had placed among these "not even proposable for amendment" articles, for example, a provision that the speeches and statements of Kenan Evren would be guiding in our lives (which was quite possible under those conditions), would that too not be amendable? Can such a thing be?

5. In fact, today, with the abolition of provisional Article 15, that is, with the opening of the judicial path to the coup-makers, we have become able to see and settle accounts more easily with the mentality that built a wall of untouchability around these first three articles of the Constitution. We are in a position to see and remove both the absurdity of this idea and the fascistic lunacy it contains. The political and psychological conditions for this have come into being.

Therefore it would be fitting for the new constitution preparation process to begin by abolishing Article 4 of the Constitution (without bothering to amend it).