Freedom Research Association opened the discussion on how a participatory constitution-making process should be and received the opinions of relevant experts at the roundtable meeting it held. The report “How Turkey Should Make a New Constitution?” was compiled from the views expressed at these meetings. The aim of the report prepared by Assoc. Prof. Ali Rıza Çoban is to present a roadmap on how democratic participation and consensus will be ensured and which methods should be used in this process by discussing the constitutional debates in Turkey through constitutional amendments and the preparation of a new constitution.
In the report, constitution-making methods were emphasized, and it was discussed whether a new constitution is necessary or a partial amendment would be sufficient. After revealing the possible options in this regard, a two-stage constitutional amendment/making process was proposed.
In the first stage, the transition to a government system in line with the limited state ideal that will prevent abuse of state powers, reorganize the relations between the legislature and the executive, and make changes to ensure the independence of the judiciary is proposed. In the second stage, it is suggested to reconsider the Constitution within the framework of an inclusive constitutional identity. However, as a result of this process, it has been concluded that making a new constitution is not obligatory and that this stage can be completed through partial amendments. In both stages, it was discussed how a participatory constitutional amendment should be, which actors can participate in the constitution-making process, and when and how.
With the 2017 constitutional amendments and the radical change of the government system, the restrictive character of the Constitution has largely disappeared. As a result of the failures in the short implementation of the new system, the leaders of the six political parties declared a common will to return to the parliamentary system. Therefore, if the opposition is successful in the elections to be held in less than a year, it will want to make a system change quickly. However, the new administration should bring forward to the society, not a text in which its wishes and elements are reconciled; but an inclusive constitution that will ensure social peace. In this way, a long-lasting constitution can be created that will meet the needs of the country.
In this context, the participation of the people in the constitution-making process is essential. It is envisaged that the more participatory the constitution-making process is, the clearer and more consistent the draft will be and that it will be as inclusive and long-lasting in terms of fundamental rights, especially minority rights. Therefore, while planning the accession process, several questions such as the social conditions of the country, its main problem areas, political context, social and historical experiences, resources, time constraints, the main objectives and nature of the constitutional reform should be taken into account, and the inclusion of different segments should be paid attention to.
In this framework, public participation should not be understood only as voting in the election of the body that will make the Constitution or voting in the approval of the final text. On the contrary, the public should be consulted on both how the Constitution will be made as well as its content and be informed on critical issues; media campaigns, national dialogue initiatives, and other creative methods should be used effectively in this context.
For a constitution that will contribute to social peace, strengthen democracy, and ensure the rule of law and the separation of powers, the process should not be rushed by being aware of the difficulties that arise from political polarization and social division, the public should be informed at each stage, a constitution draft should be prepared and accepted by ensuring consensus that is possible through patient and well-intentioned negotiations. For the inclusivity of the Constitution, participation of all segments of society, especially of marginalized groups, such as the disabled, women, youth, and the poorest segments of society, should be ensured.
Another aspect being considered is the transparency of the process. Constitution-making is not a process carried out by political elites behind closed doors as it used to be. Therefore, the public and civil society should be enlightened at every stage of the process by complying with the conditions of age. These actors should play an active role in the procedures and processes to be followed in the election of the constitutional body. From the public consultation meetings to the results obtained, the process should be carried out publicly at every step. Transparency should also include allowing media access.
However, a participatory constitution-making process is not free from risks. Discussions with poor timing, actors, and content can increase polarization rather than contribute to reconciliation and block the process in the early stages. Radical political groups in particular can agitate the topics discussed, making critical issues to be agreed upon into means of separation. Therefore, trust is a crucial concept for successful constitution-making. The trust of the people towards the process and the decision-makers, as well as the trust of political actors in each other, is the prerequisite for making a successful constitution. Trust gives institutions legitimacy. Therefore, constitution-making should be designed to allow the time needed to build trust.
At this point, transparency is one of the fundamental elements that will ensure the public’s trust in the process and the actors. In addition, the words, behaviors, and attitudes of the actors participating in the process also play a decisive role. Therefore, whether a commission or a constituent assembly created it, bodies directly involved in the constitution-making process should be composed of people who are free from corruption and doubts; and respected by the public with their knowledge and experience.
Apart from inclusiveness, another function needed in the new Constitution is a limitation. The current Constitution has lost its limited function with the presidential government system adopted after the 2017 constitutional amendments. Therefore, changes that will increase the supervisory functions of the legislature and strengthen the effectiveness of political parties and civil society in the legislative processes are required. An institutional framework that will ensure the judiciary’s independence and accountability should be urgently established. It is also necessary to establish mechanisms that will ensure the accountability of corrupt judiciary members acting arbitrarily. Institutions that will ensure the public administration’s objectivity, impartiality, efficiency, and accountability should be made functional; independent audit bodies should be revised following their purpose. All this must be reformed simultaneously with the government system.
However, the government system contradicting the principles of separation of powers and the rule of law is not the only problem with the current Constitution. Within the scope of democratization, identity problems should also be evaluated within the constitutional framework. It should be discussed in detail how the current identity issues, the Kurdish issue in particular, will be addressed at the constitutional level. In addition to ethnic and religious identities, fundamental equality issues arising from sexual identities should also be included in the constitutional negotiations. In addition, liberal secularism, which will protect the impartiality of the state towards all beliefs, belief groups, and non-believers, should be guaranteed.
In addition, it should be discussed whether solutions to emerging problems, especially climate change and the social problems it causes, can be produced within a constitutional framework. Fundamental issues such as environmental problems, accessible water problems, social problems caused by developing technologies such as artificial intelligence, the effects of new production and consumption processes on business life, and new social rights should be the subject of constitutional negotiations.
Therefore, if the opposition wins the elections, a limited constitutional amendment package to change the government system and re-establish the separation of powers and the rule of law should be brought to the parliament’s agenda. A comprehensive constitutional amendment or a new constitution should be postponed to be discussed later. Because, in such an attempt right after the elections, it would be unrealistic to expect political actors who do not have a relationship of trust among themselves to be involved in a constructive constitution-making process, and it would render the whole process unsuccessful. However, this postponement should not be indefinite, it should be timed. Thus, a two-stage constitutional amendment/making process should be developed. In the first stage, changes that will be easily agreed upon and normalize the country must be made quickly. In the second stage, the fundamental change that will democratize the country and ensure social peace should be planned.
At the first stage, a constitutional amendment package that seeks the widest consensus of all political parties represented in the parliament should be brought to the parliament immediately after the elections, and the negotiation process should be opened mainly to the political parties inside and outside the parliament as well as to the civil society and the public. Such a constructive constitutional process can weaken social polarization and contribute to confidence-building among political actors.
After the specified partial constitutional amendments are made, the public can be asked whether Turkey needs a new constitution through a referendum soon, for example, six months after the mentioned partial amendments come into force. If the people vote for a new constitution, the first question to be answered will be who will make the new Constitution, that is, whether a separate constituent assembly or the current parliament.
A parliament formed by democratic elections and representatives from all parts of the political spectrum has the power to amend the Constitution and make a completely new constitution. For this reason, there is no obstacle in front of the current parliament to take action to make a new constitution. The other option is to write a new constitution and elect a constituent assembly to adopt it. Such an assembly should be formed again through general elections. However, in terms of nominating candidates, the initiative should be given to non-governmental organizations or individuals other than political parties in terms of nominating independent candidates. Specific quotas may also be envisaged for various social groups, especially women, to ensure the assembly’s plurality is formed.
In this context, the public can be asked whether the new Constitution is to be made by the current parliament or a constituent assembly in the consultative referendum that is to be held about the need for a new constitution.
Ultimately, there is no institutional guarantee in the current Constitution to prevent the arbitrary exercise of executive powers, and this situation leads to a crisis of the rule of law. Moreover, the Constitution cannot meet the identity demands of various segments of society and cannot construct a constitutional identity. All these hinder the working of the restrictive and inclusivity functions. Therefore, a constitutional amendment is needed to restore the rule of law, democratization, and social peace in Turkey.
In this context, the actions to be taken can be summarized as follows:
- The government system should be changed quickly after the elections, the rule of law should be returned to, the powers of the executive should be limited and the independence of the judiciary should be guaranteed.
- Since society and political actors are polarized and there will be no confidence that will lead to a consensus on identity issues in a short time today, a two-stage constitution-making process should happen. In the first stage, limited constitutional amendments such as the change of the government system, legislative-executive relations, and independence of the judiciary, which are easy to agree on, should be made. During this time, trust must be built between actors and segments of society for comprehensive constitutional change. In the second stage, a fundamental constitutional change or a new constitution should be aimed, and a constitutional negotiation process should be initiated, the main goal of which is to solve the constitutional identity problems.
- Both phases should be carried out within the framework of principles of participation, inclusivity, and transparency. All segments of society should be heard, and no segment should be excluded. Sufficient time and resources should be allocated to the participation and information of the public and civil society. An environment of trust should be created for actors to participate in the process through constructive negotiation and consensus.
- For a successful constitution-making process, healthy communication should be established between the political elite and the society, and appropriate mechanisms should be developed. The body that will prepare the constitutional amendment proposal should be composed of people with high representative ability, social prestige, and expertise and be able to engage in constructive dialogue with society and other actors. Society should be informed at every stage of the process, the opinions of society should be sought through every possible means and feedback should be provided to the public on the results.
In terms of content, it is expected that a text to be created in this way should be clear and consistent, comprehensive of rights, and contain institutions that prevent abuse of power. It is envisaged that a text adopted and embraced by all social segments will be long-lasting and have the qualifications of limitation and inclusivity expected from a constitution.