a network of constitutionalists from countries throughout the world
By Tarik Olcay, PhD candidate in Legal Theory and Public Law at the University of Glasgow. Tarik Olcay also works as a Graduate Teaching Assistant at the University, and his doctoral research looks at the justifications of constitutional unamendability.
The legal blogosphere is well informed on the upcoming referendum on the constitutional amendment that seeks, among other things, to transform Turkey’s parliamentary governmental system into a sui generis system, namely ‘presidentialism à la Turca’. The details and worrisome implications of the constitutional amendment have been widely covered. The dangers of reverting to the pre-parliamentary period, perpetuating the diminished role of the judiciary, bypassing constitutional checks and balances, and the lack of process and output legitimacy in the devising of the amendment have all been adroitly pointed out.
As it stands, the constitutional amendment provides not simply an executive presidency, but equips the popularly elected president with powers that amount to an almost total control of the legislative, executive, and judiciary. In her analysis published on this blog last month, Selin Esen highlighted this aspect by pointing out the elements of the amendment entrusting the president with the power to designate the candidates in elections in his or her capacity as the leader of a political party, substantially broadening his or her executive powers, and giving the president direct and indirect role in appointing most members of the Constitutional Court and the judicial councils. The controversial substance of the proposed amendment, which is to be voted in a referendum on April 16, has thus been discussed.
An important formal aspect has, however, been overlooked. Apart from an interest in the substance of the proposed constitutional change, those of us studying constitutional amendment were on the alert to observe a brand new constitutional amendment case — and a very comprehensive one at that. Alas, the CHP, Turkey’s secularist main opposition party, dashed our hopes by deciding instead to appeal to “the nation’s justice”.
Our anticipation, however, was not without foundation. The past half century of Turkish constitutional history has seen many legal battles over constitutional amendments. It is no overstatement to place Turkey among the most fruitful case studies for the doctrine of unconstitutional constitutional amendments. Since 1970, the Turkish Constitutional Court, although not explicitly authorised to do so, engineered ways to substantively review and strike down constitutional amendments under three different constitutional settings, based upon the unamendable constitutional clauses. The latest cases in which the Court invalidated constitutional amendments were in 2008 and 2010. Following a vast change in the composition of the Court, however, the Court stated unanimously in a 2016 decision that it lacked the authority to exercise substantive review of constitutional amendments.
I do not suggest that had the CHP applied to the Constitutional Court, the Court would have (or should have) struck down the bill — at least not based on the reasoning that its substantive content violates the unamendable clauses in the Constitution, as the Constitution explicitly constrains the power of the court to three specific criteria of procedural propriety when it comes to reviewing constitutional amendments. Yet the CHP’s decision is telling with regard to the current constitutional state of affairs.
There is no question the CHP think the constitutional amendment is unconstitutional. In their dissenting opinion in the Constitution Committee report, by making express references to the aforementioned 2008 decision of the Constitutional Court and to the German, Italian, Swiss, Bulgarian and Indian cases of limitations on the constitutional amendment power, the CHP contended that the proposed amendment violated the unamendable principles of a democratic republic governed by the rule of law and the separation of powers, and that the amendment amounted to a ‘civil coup d’état’. They went so far as asserting that, as per article 4 of the Constitution, the amendment should not have even been proposed to the parliament and should not be debated.
There is also little reason to believe that the CHP are no longer of the opinion that constitutional review of constitutional amendments is justified. A more realist reading is that the CHP had no hope in the post-July 15 Constitutional Court, which controversially dismissed two of its own justices who are currently imprisoned, rejected requests to review the constitutionally questionable decree-laws and is near-silent with regard to more than 60,000 constitutional complaints, mostly from those dismissed or detained without due process in the aftermath of the coup attempt. The CHP might have also chosen simply not to fuel the backlash of the rhetoric that the CHP are afraid of the popular decision and resorted to law’s bureaucracy by taking the amendment to the Court. The CHP’s choice to appeal to ‘the people’ instead of the Court, however, signals their despair of any prospect of today’s court’s constitutional guardianship (unless the CHP have shifted from their historical position of arguing for the Court’s authority to review the substance of constitutional amendments).
As generally acknowledged, the constitutionality of a constitutional amendment and the judicial review of a constitutional amendment, although correlated, are different issues. Regardless of the justiciability of constitutional amendments in a particular jurisdiction or as a matter of principle, one can argue that certain constitutional amendments are so fundamental that they cannot be allowed within the framework of an existing constitution. Departing from the view that it is democratically problematic to regard a constitutional amendment as unconstitutional, this line of thought argues for the preservation of a constitution’s identity by limiting the constitutional amendment power. Carl Schmitt, for instance, referred to such changes as constitutional annihilation or constitutional elimination. More recently, such changes are argued to be unconstitutional constitutional amendment, constitutional dismemberment or non-revolutionary constitutional transition, rather than constitutional constitutional amendments.
Many elements of Turkey’s proposed constitutional amendment do make changes to the entrenched essential features of the Constitution, most evidently the principle of the rule of law. From this perspective (one shared by the CHP in the Constitution Committee report) the amendment in question is unconstitutional. The peculiarity of this amendment is that it does not simply effect changes to the core principles of the 1982 Constitution of Turkey as enshrined in the unamendable clauses, but impairs the all-important constitutionalist elements within the constitution, especially by designing an alarmingly asymmetrical separation of powers in one person’s enjoyment. Kemal Gözler has commented that if the amendment is approved, the amended constitution will be a ‘façade’, ‘fake’ or ‘trap-’ constitution as it will fail to limit the governmental power and protect citizens against the state. This is, then, not only an unconstitutional but an anticonstitutional constitutional amendment, as it seeks to do away with the constitution’s constitutionalist commitments.
One of the referendum campaign slogans of the AKP reads “[vote] YES to destroy the ‘law’ obstacle”, alluding to an allegedly more efficient executive presidency with virtually no legal checks. I, for one, am inclined to be charitable enough to regard this as a campaign gaffe, as the AKP still at least take the trouble to effect this change through somewhat constitutional means. The gaffe, however, is illustrative of how the law, or constitutionalism for that matter, is seen through the lens of the AKP’s conception of democracy. There will be no question on the ballot paper, but those heading to polls on Sunday had better be aware that they are voting whether to remove the ‘constitutional’ from ‘constitutional democracy’.