Democratic Forms of Constitution Making
From the 18th century to the present constitution making with democratic claims has taken the form of elected or delegated conventions (as first in the U.S.), revolutionary or elected constituent assemblies (as first in the U.S. and then more famously in France), executives using plebiscites (as first in the version of Bonapartism), regular parliaments (again first in some U.S. states), and now, most recently, from Spain and Poland to South Africa and Nepal, multi stage efforts involving round table negotiations, interim constitutions and non-sovereign elected assemblies. As in a 2000 work [1], I still think that the democratic credentials of the Bonapartist-plebescitary option, practiced in Turkey in 1960 and 1982 e.g., are always highly suspect, indeed indefensible. And I still think that a hierarchy among the other types from the point of view of their affinity to genuine democratic participation and openness can be constructed. But what strikes me today is that even in the cases of the most democracy friendly types, the American convention model and the most recent type brought to culmination in the Republic of South Africa there are versions (many Latin American adoptions for the first case and the Iraqi use of the multi stage model) that involve hidden authoritarian imposition and the instrumentalization of democracy.[2] Conversely, the more serious and less visible legitimation problems of constituent assemblies and ordinary parliaments engaged in constitution making are not insoluble, especially if the relevant actors are capable of learning from the other two types.
Thus I would today argue that, and this is what is relevant to Turkey, it is the solution of the problem of legitimacy that tells us the most about the democratic nature of constitution making, rather than the choice of models. The latter is to an important extent path-dependent. An American type convention turned out not to be possible, despite its immense influence at the time, during the collapsing French old regime. But when a country like Sweden reforms its constitution (in 1974), it will not replace parliament by a constituent assembly. Nevertheless, within each type (except Bonapartism) I would argue that through mechanisms like pluralism, consensus, publicity, (often) legality, and new elections under an appropriate electoral rule relatively high levels of legitimacy can be secured that are a better index of democracy than reference to an abstract entity, the people, that never can act in its own name. If I still say that some types, the two multi-stage ones, are the best, this means only that they structurally in the best position to generate legitimacy. (They are curiously also the ones most likely to perceive that they have a legitimation problem; because of the non-democratic character of the first stage.) But ultimately the same legitimation re-sources (again: pluralism, consensus, publicity, legality, and new elections under an appropriate electoral rule) are available to the two types I favor less: constituent assemblies and regular parliaments. These two are admittedly different types of processes. Parliamentary constitution making can be multi stage, unlike the work of a revolutionary constituent assembly.
Thus in principle different legitimation resources can be used at different steps. This advantage however is compensated by the fact that in routine parliamentary constitution making the difference between extraordinary and normal politics is threatened, a distinction that is most clear of all in the case of a revolutionary constituent assembly.[3] A regular parliament as a result can easily lose sight of the enhanced need for legitimation (or dissolve legitimacy in legality) when one makes the basic, rather than the ordinary law, the common framework for potentially long periods under which different governments should be able to govern. Yet constituent assemblies also have a potential blind spot regarding the problem of legitimacy, one that they share with processes dominated by a Bonapartist executive. In the one case because of revolutionary credentials, in the other because of the faith in charismatic leadership it is easily assumed that the legitimation problem is automatically solved. The fact that both approaches commonly use plebiscites and referenda however indicates that they nevertheless seek short-cuts also to democratic legitimacy, that are hardly plausible whenever the plebiscite is constrained and deformed by the power of a provisional, i.e. necessarily dictatorial government. It is a peculiarity of referenda, that no votes always appear to be more an expression of democratic autonomy than yes votes.
Interestingly then the common problem of constituent assemblies and constitution making parliaments may be that they either do not perceive the legitimation problem at all or think they can solve it through short cut solutions. This happens with constituent assemblies because of the resource of an original (revolutionary or charismatic) legitimacy, and with regular parliaments because of their legal right to shape the constitution through amendment rules.
The Turkish Process: From Consensus to Impasse
Constitution making models are path determined. For reasons that lie in the way that the semi-authoritarian 1982 Turkish Constitution was designed, and the way that from almost the beginning PM Turgut Ozal exploited its democratic potential, the country has been on a very long path of democratic transition that could exploit the original constitution’s largely (but not completely) parliamentary amendment rule, itself amended in 1987, to enact gradual, never completed, yet highly significant packages of constitutional changes. The story, resembling aspects of the Brazilian, Chilean and Mexican transitions should be more fully known abroad.[4] In Turkey democratic transition was complicated by the emergence of religiously based identity politics, as well as the process of of the country’s accession to the EU. Yet, until 2004 in spite of some well-known authoritarian interruptions (all short of a full fledged military coup as in 1960 and 1980), and deformations throughout due to the pressure of conservative institutions, the three processes re-enforced one another. Most importantly for me, the political legitimacy of a purely parliamentary process of constitution making was generated by the consensual procedures, politically constrained but not required by law, that were used to negotiate and pass constitutional reform packages that were at times vehemently opposed by authoritarian institutions of the regime. To give one example, the transformation of the power to close political parties by the Constitutional Court was achieved in 2001 in spite of the vocal objection of the then leadership of that powerful Court.[5] The symbol of the consensual approach was the All Party Accord Commission, an extra, but not illegal parliamentary body whose job it was to secure the agreement of the major party political forces around reform packages. This was a remarkably successful effort: illustrated by overwhelming votes for comprehensive packages of reform in 1995 and 2001.[6] Note that in terms of the constitution’s rules of standing, as a result of consensus no parliamentary forces were available to appeal to the Constitutional Court, as long as the president’s agreement could also be secured. The parliaments after 2002 lost their multi-party form due among things to the distortions always inherent in the electoral rule with its 10% threshold, a characteristic product of the authoritarian constitution makers of 1982. Yet as late as 2002 when T.R. Erdogan was allowed to take a parliamentary seat via a constitutional amendment [7], and 2004 when yet another package was negotiated, the consensual approach at least among the remaining parliamentary parties, in particular the AKP and CHP was upheld. It was only with the destructive struggle over the presidency in 2007, that amendments were finally passed on the bases of primarily the votes of a single majority party, that could then use a referendum to confirm its will in the face of a presidential veto. Note that here there were two forces, both “Kemalist” that could and did appeal to the Constitutional Court regarding the supposed unconstitutionality of amendments providing among other things for the direct election of the president of the republic. It is often forgotten now, that the Court, also supposedly Kemalist, after an earlier decision against the AKP, regarding quorum requirements, upheld the amendments allowing the referenda to proceed![8]
The struggle of the opposition against the AKP obtaining the presidency could be seen in two equally relevant ways: as the desire of authoritarian forces based in state institutions to retain control over this important governmental position, and the desire to stop one party (at that time having 34% of the votes) from being able to monopolize all important governmental positions. The presidency had important appointment powers, and participates in the constitutional amending process. The answer to the dilemma could have been a choice of a distinguished figure in no way identified with either state institutions or the AKP. Once the election of A. Gül was secured, a consensual path of constitution making could have nevertheless been attempted. Since the making of the last great amendment package, Turkey’s European partners have come to strongly insist that only a completely new, civilian constitution could satisfy their requirements. The step from partial amendment packages to the project of a new constitution was perhaps unavoidable. But the appointment of a governmental “extra-party” committee by the AKP alone to draft such a document was probably a mistake, in a country where the responsibility was previously and rightly understood as that of the parliament and not the executive. The illogical passing of amendments to articles 10 and 42 of the old Constitution at a time when one intended to entirely replace it, on the bases of an alliance between the nationalist MHP and AKP, was an even greater one. The CHP now had the motivation, and the legal standing to appeal to the Constitutional Court asking not only to rule against the amendment but in effect to freeze the entire process. After the headscarf case went against the AKP, had the subsequent closure case against the party been successful both results would have been attained. To me the biggest surprise is, that after the failure of the closure case, the AKP itself seems to act as if the process were now frozen. As unjustified as that assumption may be, it would be a self-fulfilling prophecy if the reasons had to do with a diminishing interest in democratization when the party’s more particular constituency oriented goals were temporarily blocked. Actually claims on both sides contribute to the danger.
The legal claims and legitimacy problem of the parliamentary majority
The normative claim of the parliamentary majority, firmly in the hands of the AKP government, reduces to a fairly classical mixture of elements of legality and legitimacy. The legal claim, summed up by the phrase, Turkish public law does not distinguish between a constituent and an ordinary parliament or Grand National Assembly seems to be sustained by the constitutional texts of 1960 and 1983 that indeed make no such a distinction. Accordingly, the amending power under art. 175 is the full constituent or constitution making power that can entirely replace as well as partially alter the Turkish constitution. While I am tempted to call this an argument for legitimacy out of narrow legality, let me qualify that by two statements. There is an independent legitimacy claim here, though it should be in my view rejected. And in the Turkish case, the legality claim is itself fallacious.
I start with the legitimacy claim, that would be the superior one of the two claims, in my view, if it were valid. It is based on the notion of popular sovereignty. The parliamentary majority, accordingly, has been elected by and therefore expresses the will of the majority of the Turkish people who have the right to give themselves any constitution that they please. There are four things wrong with this claim. First, least importantly, while the 1982 Constitution does not require referenda in the case of amendments, when the president does not agree, or when there are only 3/5 but not 2/3 of the parliamentary votes available, referenda are required. So at the very least it is either the president and a parliamentary supermajority together, or a supermajority and the electorate together that represent the people in the constituent sense. There is a presumption, though no requirement here that some important amendments should be ratified in referenda. The president could after all use his powers, even when he agrees with an amendment, to force popular ratification just because he considers the change so significant. Second, even more importantly, the AKP majorities of both 2002 and 2007 were artifacts of the very exclusionary electoral law with a 10% threshold that eliminated many otherwise viable parties from parliament. In one case 34, in the other 47% of the votes were turned into nearly 2/3 and then over 3/5 of the seats, though admittedly in the second case the MHP deputies supplied the missing part of the 2/3.
Third, and philosophically this is what is crucial, in terms of the best interpretation of democratic theory, from the American Revolution and the French Declaration of Rights to the present, no body, no institution, no person should be able to claim to fully embody the sovereign people, whose place must remain “an empty place”.[9] The 2 multi stage models of constitution making (The American and the South African) structurally favor this best, anti-usurpation interpretation of popular sovereignty. But are these two path-dependent roads open to Turkey? In my view one dimension of these processes has been available: the search for consensus. Here the fourth objection to the legitimacy claims of the parliamentary majority comes into play: in Turkey parliament has not acted from 1983-2004 as if its legitimacy claims underwriting the power to make the constitution could be reduced to merely its legal powers, or even as if this power could be exercised by a single force in a single stage process. The important constitutional changes of this period were generated in several important stages of negotiation and drafting. And at each important stage very high, generally all party consensus requirements were strictly observed.[10] In my view one can speak of, in terms of criteria developed by Sir Ivor Jennings, of an emerging convention of the constitution, requiring high level party consensus for all important acts of constitution making.[11] This convention is not a matter of law, but one of constitutional legitimacy.[12]
Now to legality. The theoretical idea that no organ of government can fully embody the sovereign will of the people is in fact expressed by Turkish public law too, if not necessarily in the most desirable manner. The Turkish GNA is not even legally speaking a constituent assembly because the constitution of 1982 (as its predecessor of 1961) contains unchangeable provisions (arts.1-3, entrenched by 4) that are all off limits to the amendment rule, article 175. Such absolute entrenchment is not unique: the French 3rd Republic with its republican government clause ( Art. 2 of the Constitutional Law of August 14, 1884) is Turkey’s predecessor, but an even more important forerunner is the Grundgesetz, with its whole list of unchangeable provisions (according to art 79(3): arts.1-20; and the principles of federalism) Thus the argument from legality is even more obviously problematic than the one from legitimacy.
Acts of power, even when neither legitimate nor fully legal can nevertheless produce constitutional law.[13] The world is indeed “full of constitutions” drafted in all kinds of ways.[14] But who is to enforce legality and legitimacy against the government? Or is the law, like “the divine and natural law” under absolutism, to be enforced only by the self-enforcement of the parliamentary sovereign? As the German reference shows, and as a group of important Indian cases demonstrates even more emphatically, today the defender of the differentiation of three tiers of constitutionalism (constitution making- amending – legislation) advocated by Carl Schmitt in the 1920s is, pace Schmitt, where it is defended at all, can only be the Constitutional Court. In Germany e.g. potential and indeed actual enforcement of these types of provisions has been assumed, without explicit authorization, by the Bundesverfassungsgericht, (the German Federal Constitutional Court that has currently a very important amendment passed by parliament in front of it, one incorporating the Treaty of Lisbon.) In India the struggle ended, after the defeat of the Court in Mrs. Gandhi’s authoritarian emergency, with the victory of a Court that could not rely on unchangeable articles in the Constitution of 1948 (the case of Minerva Mills 1980).[15] In Turkey however there are both special problems with this jurisdiction, as well as general ones shared with Germany and India. The special problem has to do with the fact that article 148 of the Turkish Constitution dealing with the powers of the Constitutional Court permits review of amendments only on formal, or, more clearly, on procedural grounds. Interpreted narrowly this would leave the unamendable provisions substantively at the discretion of the amending power itself, or give the Court only the weapon of militant democracy, i.e. party closings to pre-emptively guard the “basic structure of the constitution”. These are two undesirable alternatives, as I argued in several small pieces and interviews, and it is laudable that the Court now eschewed both. But aside from its legal problems in Turkey, does not the third option of substantively reviewing amendments, as in Germany and India, imply that the Court itself has assumed the constituent power, or has claimed to embody democratic sovereignty?
The legal claims and legitimacy problem of the Court
With respect to assuming jurisdiction, the Court in my view has a stronger legal argument than does parliament, but this is somewhat compensated by an even more problematic set of claims – straight out of Schmitt’s textbook – concerning legitimacy, that is ultimately both dangerous and unclear. The legal claims are based on the existence of the 3 unchangeable articles, whose revision cannot even be proposed according to the Constitution. Thus no procedure can be valid that proposes to change or that actually amends them, even if the otherwise required parliamentary majority is achieved. Moreover, no procedure to alter any other part of the constitution that would derogate from articles 1-3 can be valid either. Thus if changes to article 10 or 42 or any other article actually attacked secularism or the republican nature of the state, the procedures used would be unconstitutional. Otherwise an Islamic state and a monarchy could be established in some other part of the constitution, derogating from articles 1 and 2. Finally, and admittedly this is a point I did not anticipate earlier, the Court very cleverly has noted that the only way to decide whether the right procedure was used is to look if the substance of the amendment in question attacked the substance of articles 1-3. So substance could not be off limits, in an epistemological sense, in the case of amendments that have relevance to the unchangeable provisions. Because only by looking at substance can in such cases one decide whether the procedures were not satisfactory.[16] This is what I called, on the suggestion of some law students in Frankfurt, turning substance into procedure. Many people in Turkey will not like hearing this, but I think the argument so far is full-proof.
It is another matter whether the Court really found the substance of Amendments to 10 and 42 at variance with article 2 of the Constitution (in a somewhat tenuous argumentation), or, even if it did, whether it would not have been wiser to have followed the Marbury, Kesavananda and Maastricht Court judges in firmly asserting the jurisdiction, but allowing the amendments “as long as” (Solange I and II is the popular term of reference to another famous pair of decisions by the German Court) certain conditions of legal protections were set. The Court itself uses the absence of legal protections for secular minority women in a Moslem majority country, and the improbability of the parliamentary majority later generating these even in the face of repression and abuse.[17] Thus it could have used its power to guide legislation in the desired direction, instead of invalidating it altogether.
More relevant for the moment is the relationship of the Court’s legitimacy claims to the freezing of the constitutional process. In a democracy, when a Constitutional Court enforces either a two or a three tier constitutionalism it is fully conscious of course of invalidating the act of freely elected representatives that often make legitimacy claims as in Turkey. One would have to be very stupid not to anticipate the counter argument, that the Court is putting itself in the place of the constituent power, and indeed in the case of amendments (but not only) Kelsen’s description of constitutional review as merely negative legislation is not really tenable. From John Marshall to the Turkish Constitutional Court the response of the judges themselves is often based on a preservationist argument: we are acting not our own behalf, but to preserve the work of the original constituent power (the Court speaks of the “primary constituent power”) against mere legislation, or here even the amending power, in both cases against the acts of mere constitué, constituted powers. The problem in Turkey, is that the past defended seems to be that of the authoritarian Bonapartist constitution makers who have produced the 1982 Constitution, and in particular its unchangeable articles that are being enforced against the democratically elected representatives in the current parliament.
This important critique is based on the text of the Constitutional Court decision, but in the form just stated it is not entirely right. If we are to debate about original intent at all, there is also an argument to be made that the Court in defending activist review is in fact acting against the intentions of the Evren junta, turning constitutional meaning against that original intent. Prof. Özbudun inadvertently brings attention to this fact when he relies on the intent, and the narrow text of the authoritarian framers, who, as he is in good position to know, wanted to block the road to the type of constitutional review used in the previous period that indeed involved the review and invalidation of several constitutional amendments at least in part. If he is right, the question becomes (similarly as in the case of the electoral rule!): to whom did the junta of 1980-83 wanted to give a free hand to vis a vis the Court; and why does the AKP wish to rely on that very empowerment? According to C. Belge in an article moreover highly critical of the Constitutional Court, a September 1971 amendment that first mentioned review restricted to form had as its goal an attack on judicial independence. The amendment was a product she admits of a military imposed cabinet.[18] This amendment was bypassed in 1976 and 1977 by the Court, when invalidating parts of other amendments based on Art.9 (that played the same role as the current article 4 vis a vis the republican character of the state in art.1 and elsewhere arguably), actions that were perhaps behind the formulation of article 148 in 1982. Belge documents in fact that the invalidation of the key amendment in question (and, referring to art. 9, all amendments supposedly challenging the structure of the regime!) occurred in a period when the Court was unusually solicitous of civil rights, according to her because of a temporary left and Republican alliance! Thus the important precedents for the Court’s 2008 action come from its most progressive period.[19]
Moreover, the unchangeable three articles of the 1982 Constitution, as against a group of provisional articles now gone from that Constitution, that indeed expressed the will and interests of the junta of 1980-3, only re-affirm the common project of Turkish state-makers from the 1920s. These should be open to re-negotiation of course in today’s changing circumstances; but it makes some sense that their transformation cannot in law, and ought not in legitimacy be a matter of simple constitutional amendments. The preservationist argument that should not insist that interpretation is only negative legislation, must always concede therefore that the interpretive act is not final. While it is preserving the past, this must be done also in the name of a future that can reverse both the past and the interpretation itself. Thus, the Court’s appeal is not to only to a past, but even more to a future constituent power that should not be seen in similar terms to the Bonapartists of 1980 or even 1960. It is here however that the argument of the Court fails the country, and is untenable in terms of the current state of constitutional theory. On the one side their references to the “primary constituent power” and to the unchangeable articles as incorporating its “fundamental choice…regarding the political order”, recalling the theory of Carl Schmitt, are radically underdetermined procedurally. Even worse, by stressing revolutionary breaks, “ruptures of political regimes” in the operation of the constituent power “outside the legal framework”, even closer to the spirit of Schmitt, one gets the decided impression that implicitly the model of the past is used also to provide concrete standards for the future. To oppose one form of usurpation, by parliament, the Court seems to be raising another to a standard, one by the Bonapartist junta of 1980-1983 (or perhaps the two juntas, of 1960 as well as 1980!) speaking in the name of the people, using a constrained referendum. Or, to be more fair, the Turkish people seem to be given the choice of undergoing a coup or making a complete political revolution if they wish to fundamentally change or renegotiate their constitution, and the state definitions inherent in the first three articles. A bad choice, when the citizens of the country could have been offered the path of enhanced legitimacy already embarked upon, but for the moment disrupted. The implication is therefore unfortunately that if they desire neither coup nor revolution, they have to put up with a frozen constitution as long as the Court is its guardian. And, with the future closed, this would amount to a form of legitimation in terms of a particular past that indeed cannot trump a more democratic present, even when imperfectly represented by parliament.
And (a modest) Proposal(s) for Change
The key to unfreezing the process, and answering the Court requires taking up the challenge in terms of the legitimacy problem, but giving that problem a different solution than proposed by the Court in terms of its doctrine of “primary” (i.e. revolutionary) “constituent power”. This in my view can be done by returning to what has characterized the most successful recent phase of constitution-making in Turkey: consensus and multi-stage process. But given the breakdown of consensus between today’s dominant parties, the process may have to be a new type.
The key point is that if constitutional change were really desired, the best road would be a consensual one. But there may be alternative ways of attaining this desideratum, and my proposal is only one possible approach. I start with TÜSIAD’s idea of a Convention of civil society that in my view represents an adaptation not only of American (now: European!) but also recent round table approaches to constitution making. It has two problems, rooted in the path determined nature of the models. First it is difficult to determine who should be represented in a convention. For different reasons, the American (delegation by states or provincial public bodies) and round table (choice by ruling party, and further co-optation) models are not available. Membership in civil society is notoriously indeterminate. Secondly, the co-operation of the body that recommends and the body recommended to, guaranteed historically by significant overlaps in membership, would not be easy to achieve: civil society’s convention and parliament could have two entirely different sets of members. One could include party groups in the convention, but this would not solve the problem of engineering the over-all composition.
The Turkish constitution making process, if we are not to assume a revolutionary break, is determined by a legally parliamentary path. Consensus in such path is generally promoted by the structure of multi-party parliaments, the strategic secret of the previous process in Turkey that has nevertheless come close to having produced a “convention” of the constitution, i.e. a normative requirement. The electoral rule with its 10% cut-off, in the current period of polarization, stands in the way of the operation of this consensus requirement, by potentially removing its strategic supports, and creating the illusion that it was only a matter of strategy previously. One solution therefore could be to change the electoral rule. It would be wonderful if the governing party would commit itself to this reform, to the dramatic reduction of 10% threshold to say the German 5 or the Hungarian 4%, long considered very important by Turkey’s European partners. Parties of course hate to lose the advantages they gain from disproportional electoral systems. But in case the AKP could come to understand the potential gains involved, for the next election at least, according to current law this would involve a constitutional amendment, one that should be able to pass by Court scrutiny. Nevertheless it may be too tempting to use the problems involved as the excuse for not going down this road, and foregoing a much greater majority in seats than votes.
If that is the case, the AKP should consider using the electoral results in the next elections, without any threshold, for the election of a constitutional convention of all the parties. The 10% threshold would still apply for the simultaneous election of the regular TGNA, and many of the same members could serve in both bodies.[20] Such a national all-party convention’s composition would come part of the way towards TÜSIAD’s proposal, but unlike the drafting body of that proposal it would be legitimated by a national vote. The membership of this convention would in a significant way overlap with that of the regular parliament, and that would be highly desirable given the need for the two bodies to converge toward a single constitution. It would be desirable to have among the decision rules of the convention voting by high qualified majorities, and an extensive committee structure voting by consensus, similar to the earlier All Party Accord Commissions. If civil society organizations chose to contest such election, and perhaps pool their lists, they could gain representation in the convention, though not likely in the regular parliament. Given recent electoral results, the convention would surely include all the small parties, but the biggest party would still have the biggest bloc. That party would be doubly protected. As everyone else in the convention it would be protected against being outvoted by the supermajoritarian decision rule in the plenum, and the consensual voting in the committees. But also, not to violate Turkish public law, the proposal should be passed by the current parliament, most likely as a statute amending the electoral law that would make it clear that the convention had the right only to recommend a draft to the next parliament (this is the contemporary meaning of constitutional convention, in any case). That new parliament which according to the 10% threshold the biggest parties would control would still have to pass the constitution in the regular way, with the right to further amend its provisions. One would hope that such a right to amend would be used in a very limited way, not to re-start the constitutional struggle anew.
As in the case of the recent Convention for the Future of Europe in relation to the intergovernmental process, electing a convention as proposed here, would not be a violation of art.175, the amendment rule. Even if the Constitution of 1982 does not know of any such convention (any more than did the articles of Confederation of 1787 or the European Treaties of 2000), there is no reason why a new body to recommend could not be added to the existing process. While the convention would recommend a new civil(ian) constitution, parliament would be passing it under article 175 as an amendment of the constitution of 1982, presumably followed by a ratificatory referendum under that article. Having been attained through high consensus, there would be hopefully not enough dissenting deputies left to have standing to appeal to the Constitutional Court for review. Since the Constitution would be the work of all parties, the threat of party closing would also lose its relevance. The process (depending on its results of course) would thus satisfy the most stringent European demands, while at the same time representing the culmination of an original Turkish process of constitution making over the last 20 years.
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NOTES
[1] Civil Society, Constitution and Legitimacy (Lanham, Maryland: Rowman and Littlefield, 2000)
[2] Constitution Making Under Occupation (New York: Columbia, 2009)
[3] The most important current argument for a two level constitutionalism is to be found in the works of Bruce Ackerman, especially We the People 2 volumes.
[4]Important interpretations however have been presented by scholars like Özbudun and Yazicki, Gönenc, as well as Genckaya.
[5] L. Gönenc “The 2001 Amendments to the 1982 Constitution of Turkey” in Ankara Law Review v.1 # 1 (Summer, 2004) 94-95; H. Shambayati “The Guardian of the Regime: The Turkish constitutional; Court in Comparative Perspective” in S. Arjomand ed. Constitutional Politics in the Middle East (Portland: Hart, 2007) 117
[6] E. Özbudun and S. Yazicki Democratization Reforms in Turkey (1993-2004) Tesev Publications 2004 p.113; Ö. F. Genckaya (“Politics of Constitutional Amendment in Turkey 1987-2002” in G.H. Flanz Constitutions of the Countries of the World. Turkey Dobbs Ferry: Oceana, 2003; L. Gönenc “The 2001 Amendments to the 1982 Constitution of Turkey”
[7] Genckaya “Politics of Constitutional Amendment in Turkey 1987-2002” pp. li-liv.
[8] In an important recent article Özbudun does recall this decision, to make a contrast with and to criticize the Court of 2008. He forgets to consider that the amendments of 1987 and 2007 had arguably nothing to do with even the topics of articles 1-3. He ascribes to the present Court the will to extend their amendment jurisdiction to all important amendments. That may not be the Court’s own view of the matter, at least one should hope. See “Reasoning for Headscarf Decision. New Constitution is Now a Must” in Today’s Zaman November 16, 2008.
[9] C. Lefort Democracy and Political Theory (London:: Polity, 1999)
[10] These were the important votes: 1987: 315 to 56; 1995: 360 to 32; 2001: 474 to 16; 2002: 440 to 18 and 455 to 48) were the important votes. Source O. F. Genckaya op.cit.
[11] Sir I. Jennings The Law and the Constitution 5th ed. (London: University of London, 1959) chapter III esp. 133-136.; Superseding Dicey’s famous and still interesting treatment in the Law of the Constitution chapter XIV.
[12] The difference was best noted by Canadian judges and commentators in context of the constitutional crisis of 1982 and two court cases, the Patriation Reference and the Quebec Veto Reference. For the best single treatment see: Peter H. Russell Constitutional Odyssey (Toronto: University of Toronto Press, 2004), and see also the instructive volume of discussion edited by K. Banting and R. Simeon And NoOne Cheered. Federalism, Democracy and the Constitution Act (Toronto: Metheuen, 1983)
[13] See G. Jellinek Verfassungsänderung und Verfassungswandlung (Oldbach: Keip Verlag, 1996 [1906])
[14] See Ozbudun “Reasoning” where he uses this empirical argument against the normative claims, admittedly narrow, of the Court. The issue is whether there are legitmate modes beyond the model claimed by the Court.
[15] For the whole great story see G. Austin Working a Democratic Constitution (Oxford, 1999) 8, 10, 11, 15,17, 19 and 24
[16] E. 2008/16, K. 2008/116, (June 5, 2008, Date of publication in the Official Gazette: October 22, 2008, Gazette no:27032). I thank my students Aysel Madra and Ertug Tombus for translating major parts of this text.
[17] Ibid.
[18] “Friends of the Court: The Republican Alliance and Selective Activism of the Constitutional Court of Turkey” Law and Society Review v. 40, no. 3 (2006) pp. 668-669; and especially 679-680 for the full context
[19] At the same time, Belge backs up her own skeptical views of this invalidation through a reference to art. 9 (the entrenching article of the 1961 Constitution) by referring to the critical comments of one Orhan Aldikacti “ a conservative law professor who authored Turkey’s illiberal 1982 Constitution” whose comments however do not reflect any understanding of American judicial review. (669) Is this the original intent Özbudun affirming? Is this the type of criticism “by constitutional law experts” of that time that Özbudun has in mind? In any case, the intent does not stand up against the meaning of art. 4 or the earlier art. 9
[20] In say a 200 person convention, each party would get as close as possible to its share of the votes, with 0.5% of the vote (the natural cut-off for that size body) being worth a seat. Each party could construct its list with its eye on service in both bodies, that could be done by following the same natural order of the list for both, or by marking the candidates available for the convention.
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The final/definitive version of Andrew Arato’s essay was published in Philosophy&Social Criticism, vol 36 nos 3-4 March and May 2010, SAGE Publications Ltd, (LA, London, New Delhi, Singapore and Washington DC), all rights reserved, p. 473-488, Special Issue: “Postsecularism and multicultural Jusirdictions”, Reset-Dialogues on Civilizations Istanbul Seminars 2008-2009, Edited by: Alessandro Ferrara, Volker Kaul and David Rasmussen. Link to the issue http://psc.sagepub.com/content/36/3-4.toc