While I am often astounded by how quickly almost all social and political discussions in Türkiye devolve into repetitive, circular arguments and the rapid labelling of opposing sides, I have yet to encounter anything that matches the speed with which every discussion concerning the 1982 Constitution, which has surfaced regularly since our childhood, transforms in this way. As soon as the agenda of amending the 1982 Constitution or drafting a new one leaves the speaker’s lips, all attention shifts immediately to the Constitution’s unamendable articles, with no other argument managing to capture interest. The point where these new constitutional debates, which are difficult to pinpoint due to the ambiguity of when the previous agenda ended, have stalled today is, unsurprisingly, closely tied to these unamendable articles.
The sirens that sounded following the statement by Zekeriya Yapıcıoğlu, Chairman of the Free Cause Party, who ran in the 28th Parliamentary General Election in May 2023 from the ruling party’s lists and was elected as an MP, when he repeated, “as if explaining to a fool,” his desire for the abolition of the Constitution’s 4th article, have temporarily quieted down following the President’s declaration: “There is no discussion on our part regarding the first four articles of the Constitution. Especially, the People’s Alliance does not have such an issue, such a concern.” However, the social and political reactions to the unamendable articles, which seem trapped in this cycle of sirens blaring and quieting with just a few sentences, are no less bound to this cycle.
I must begin by stating that I do not see a difference, in terms of the logic of constitutionalism, between the argument that “It is not right to place an unamendable provision as a mortgage on the will of the nation and future generations” and the statement, “We do not touch the provisions set by Atatürk and his comrades-in-arms; no one can discuss this.” The issue of the Constitution is, after all, as technical and worthy of attention as any issue that is seemingly diluted in Türkiye’s media and political world, perhaps even more so. In this context, I believe it is necessary to touch upon what the Constitution is, the legal framework of the discussions regarding constitutional amendments and drafting a new Constitution, the concept of unamendable articles both in Türkiye and around the world, the content of the first four articles of the 1982 Constitution, and the potential benefits to be sought in amending these articles—without extending the scope of this article beyond its reasonable length.
Constitutions can be defined as documents of social consensus that contain fundamental regulations regarding the governance of the state and its institutions. Furthermore, and in reality, the true reason behind the emergence of constitutions and their importance is the need to prevent potential interventions, particularly from the state, that could infringe upon the rights and freedoms of individuals. Naturally, examining concepts like social consensus and social contract, which are frequently mentioned when discussing constitutions, is crucial to understanding their importance and function. Similar to terms like nation, national sovereignty, and fundamental rights and freedoms, the concepts of social contract or social consensus are abstract ideas derived from theories. They are only actualized at certain moments in history through specific tools, making them open to debate.
The existence and content of social consensus, which may emerge in different forms through pluralist or majoritarian approaches depending on the structure of the society and the type of democracy it adheres to, is a concept that ensures the legitimacy of the Constitution and the proposals to amend it entirely or partially. So, under what conditions can a document represent social consensus? In a universe where time is stopped, is a social consensus text one that is accepted without exception by every citizen of that country at that moment? I think it’s clear that such a scenario is impossible, and that might be the only aspect where this idea of social consensus would be fulfilled. But can a proposal accepted by 50.01% of those alive at the time be called social consensus? I believe it will be strongly argued that a few hundred or even a few thousand people being excluded from this consensus means it cannot truly be called social consensus. Thus, if we accept that the current Constitution—i.e., the social consensus—cannot be voted on repeatedly, we must agree that achieving a certain majority under specific conditions will legitimize the Constitution and the social consensus it represents.
If defining social consensus, and thus the Constitution, were such an easy task, would it even be on our agenda today? This question becomes especially relevant when we realize that constitutional discussions are ongoing in dozens of countries, and once resolved in those nations, the issue will arise in many more. When we observe that we rarely encounter constitutions that have endured for hundreds of years—except in a few countries like the U.S., which has a less comprehensive framework constitution—we can reasonably conclude that this social consensus requires updating in accordance with changing times and conditions. So, what does it take for a country to decide to draft a constitution from scratch, as if no constitution existed before? Until twenty years ago, almost all Constitutional Law textbooks in Türkiye answered this question by pointing to extraordinary events such as war, coups, civil war, or natural disasters. The late Prof. Dr. Burhan Kuzu, who was deeply dissatisfied with the 1982 Constitution, once remarked during a live broadcast, “What should we do then? Should we pray for a coup like praying for rain just to make a new constitution?” Whether his comment was effective or not is unclear, but the domestic literature has evolved in the past 15 years. Constitutional efforts undertaken by constituent assemblies in countries like Tunisia and Chile have started to serve as examples of drafting a new constitution through democratic procedures rather than merely amending an existing one. In this section, I do not intend to lengthen this discussion by delving into the question of whether it is possible to create a new constitution. I simply want to note that there is a growing number of people who advocate the view that social consensus texts can be revised to meet societal needs. The doctrine that a nation, as the unconditional owner of sovereignty, can abandon an old social consensus upon reaching a new one has its roots in the teachings of Emmanuel Joseph Sieyes, one of the key figures of the French Revolution.
By interpreting Sieyes’ views—frequently cited by advocates of natural law—it becomes clear that a substantial number of constitutional scholars believe that nations can, during moments of social crisis, act as the original constituent power to establish a new social consensus, only to then fall back into a state of dormancy, adapting to the existing order. Here, it is important to point out that many constitutional scholars who adhere more closely to legal positivism, particularly the renowned Turkish constitutional scholar Prof. Dr. Kemal Gözler, maintain the view that constitutions cannot be abolished during ordinary periods and that those wishing to amend a constitution must abide by its provisions. This divergence in opinion may lead many to question whether Türkiye’s unamendable articles are a unique phenomenon.
It is worth noting that the first constitution in Turkish constitutional history to include an unamendable provision was the 1961 Constitution. Article 9 of the 1961 Constitution stated: “The provision of the Constitution stating that the form of the State is a Republic shall not be amended or proposed to be amended.” The 1982 Constitution expanded the scope of unamendable provisions, adding the qualities of the Republic, the unity of the state, the official language, the flag, the national anthem, and the capital city to the unchangeable state form. But what is the situation worldwide? Has no other society, aside from Türkiye, “mortgaged the will of future generations” by including unamendable articles in its constitution? The most comprehensive Turkish article on this topic, in my opinion, was written by Dr. Akif Tögel in 2016 while he was still a PhD student. His article, titled “Unamendable Articles in World Constitutions and Suggestions for Türkiye’s New Constitution,” examines constitutions from various countries across the Americas, Asia, Europe, and Africa. It is clear from his analysis that many countries—including France, Germany, Italy, Portugal, Greece, Romania, and Norway—have constitutions with unamendable provisions in various scopes. In other words, the practice of including unamendable articles in constitutions is not exclusive to Türkiye but is alive in many democratic countries.
After establishing that many countries around the world include unamendable articles in their constitutions, I see no harm in presenting the content of Türkiye’s frequently debated first four articles here.
I. The Form of the State
ARTICLE 1 – The State of Türkiye is a Republic.
II. The Qualities of the Republic
ARTICLE 2 – The Republic of Türkiye is a democratic, secular, and social state governed by the rule of law, based on the fundamental principles set forth in the preamble, respectful of human rights, loyal to Atatürk’s nationalism, and in a spirit of social peace, national solidarity, and justice.
III. The Integrity of the State, Its Official Language, Flag, National Anthem, and Capital
ARTICLE 3 – The State of Türkiye, with its country and nation, is an indivisible whole. Its language is Turkish. Its flag, the form of which is prescribed by law, is a red flag with a white crescent and star. Its national anthem is the “Independence March.” Its capital is Ankara.
IV. Provisions that Cannot Be Amended
ARTICLE 4 – The provision of Article 1 of the Constitution concerning the form of the State as a Republic, the qualities of the Republic in Article 2, and the provisions of Article 3 shall not be amended, nor shall their amendment be proposed.
Having established that constitutions are texts of social consensus and that this consensus can be revised under necessary conditions, it is essential to consider the content of the unamendable articles in the 1982 Constitution and examine whether there is a social demand to amend these provisions. When we assess society’s stance and that of the political parties representing them toward these four articles, the results will give us an indication of whether the agenda surrounding these articles is genuine or artificial. There are two pieces of data we can use for this purpose. The first comes from the proposals of the four political parties represented in the Constitutional Reconciliation Commission, which was established under the Turkish Grand National Assembly (TBMM) in 2011. The second is the responses given in a field survey conducted by KONDA on behalf of TESEV during a time when the new Constitution was a significant topic. To state my conclusion upfront, the fact that the last serious public research on the most frequently debated articles of the Constitution—a document of social consensus—was published 12 years ago in September 2012 should be the most significant indicator of how much we enjoy rehashing the same discussions in the constitutional agenda.
Within the Constitutional Reconciliation Commission, the only article on which all political parties agreed was Article 1. The AKP, CHP, MHP, and BDP unanimously agreed that the State of Türkiye is a Republic. In the second article, which addresses the qualities of the Republic, the AKP proposed the following: “The Republic of Türkiye is a democratic, secular, and social state based on human rights.” The CHP and MHP proposal retained the existing text: “The Republic of Türkiye is a democratic, secular, and social state governed by the rule of law, based on the fundamental principles set forth in the preamble, respectful of human rights, loyal to Atatürk’s nationalism, and in a spirit of social peace, national solidarity, and justice.” The BDP proposal on the qualities of the Republic stated: “(1) The Republic of Türkiye is a democratic, secular, and social state based on human rights. (2) The state recognizes pluralism in ideologies, religions, beliefs, and lifestyles and remains neutral toward the pluralistic structure of society. No ideology, religion, belief, or lifestyle shall be patronized or placed under the tutelage of the state. (3) The administrative structure of the state shall be organized based on a decentralized system. The territorial integrity of the state shall be inviolable.” It is clear that all four political parties agree on the core qualities of the Republic as a democratic, secular, and social state based on human rights. The disagreement arises over the AKP’s desire to remove the reference to Atatürk’s nationalism and the BDP’s wish to add principles of decentralization and pluralism.
On the issue of the integrity of the state, its official language, flag, national anthem, and capital (Article 3 of the 1982 Constitution), the AKP, CHP, and MHP reached an agreement to retain the existing provisions. The BDP’s proposal on this article was divided into two parts: under the section titled “Symbols of the State,” it read: “(1) The flag of the state is a red flag with a white crescent and star, the form of which is prescribed by law. The national anthem is the ‘Independence March.’ Its capital is Ankara.” In the second section titled “Official Language of the State,” it stated: “(1) The official language of the state is Turkish. All citizens have the duty and right to learn the official language. Other native languages spoken by the people of Türkiye may be used as a second official language upon the decision of regional assemblies. (2) Everyone has the right to use their native language in addition to the official language in their private life and in their relations with public authorities. (3) The state is obligated to respect, protect, ensure the use of, and promote the development of all languages that make up the country’s shared cultural heritage.” As can be seen, the source of the disagreement in the third article lies in the BDP’s proposal to protect native languages and grant them official status at the regional level. The experience of the Constitutional Reconciliation Commission has proven that, while political parties are unlikely to leave the table without their red lines intact, there is significant agreement on the issues regulated in the unamendable articles of the Constitution. The public opinion polls conducted on the issues that appeared contentious during this process will help clarify matters further.
According to the report published in September 2012, when 2,699 people were asked about their expectations, opinions, and tendencies regarding the new Constitution, the responses yielded surprising results in a country where the unamendable articles dominate the agenda. In the section of the report titled “Basic Principles of the Constitution,” the results of the public opinion survey are presented on various issues, including Atatürk’s nationalism, the official language, and the constitutional status of native languages. One of the most striking results of the survey is that the provision in the Constitution that seems most dispensable is the one regarding Ankara as the capital, which is not a source of much debate. A total of 20.8% of respondents agreed or strongly agreed with the statement, “Ankara may not be the capital city.” Meanwhile, 9.4% of respondents disagreed or strongly disagreed with the statement, “The Constitution should include Atatürk’s principles and reforms and Atatürk’s nationalism,” while 8.3% were neutral. In response to the question, “What should be the official language of the country?” 85% of respondents said, “Turkish should be the only official language,” while 15% answered, “In addition to Turkish, the languages of these lands may also be official languages.” In short, the demand for altering the official language to be only Turkish is weaker than the demand to maintain Turkish as the only language of instruction. Support for increasing the authority of local governments, as measured by the statement, “Elected local governments should have the authority to use the native language or the language spoken locally in education and public services,” stood at 40.6%. Considering that 45% of respondents opposed this, it would not be incorrect to assert that, even though it need not be mentioned in the unamendable articles, there was a strong demand in society at that time. When asked about the provision on secularism, 8.7% of respondents stated that secularism should not be included in the Constitution, while 40.7% preferred the statement, “Secularism should be included in the Constitution, but the state should be redefined to be equally distant from all religions.”
What do all these data reveal? Both in terms of political party rhetoric and public expectations, as measured by public opinion surveys, there is no strong demand for altering the unamendable articles of the Constitution. Considering that constitutions are texts of social demands that can change when the time comes, the demands related to the unamendable articles of the 1982 Constitution appear to have been embraced only by small groups within society. Therefore, the rational response to the opening of the first four articles to debate should not be viewed as regime guardianship or mere opposition for the sake of opposition, but as an integral part of the social consensus that the Turkish nation has demonstrated in its will to live together. The portrayal of demands that are supported by only 8%, 10%, or 15% of the population as the primary focus of the constitutional agenda must be recognized as a major deception. Even if a new Constitution is drafted with the most democratic methods, it should be remembered that persisting in demands that will be opposed by the majority of society will cause the new Constitution’s trajectory to resemble Chile’s recent constitutional efforts. If the Constitution is a social consensus—which it is—opening it up for debate based on articles that align with the consent of the vast majority does not equate to “consensus,” despite carrying many meanings. It would be beneficial for both the proposers and the large majority of society, who are the true audience, to understand what this entails.
References
- Debate on Article 4 of the Constitution: President Recep Tayyip Erdoğan stated, “There is no discussion on our part regarding the first four articles,” https://www.bbc.com/turkce/ articles/c33vv24y6n8o (Accessed: 24.09.2024)
- Various portals, including Constitution.net, provide annual summaries of constitutional developments around the world. For a brief overview of the global agenda on constitutional amendments or new constitution-making in 2023: Hackey, S. P. (2024) In the World of Constitution-Building in 2023, ConstitutionNet, https://constitutionnet.org/news/voices/ world-constitution-building-2023
- Anayasa İçin Darbe Duasına mı Çıkalım?, https://www.yenisafak.com/gundem/ anayasa-icin-darbe-duasina-mi-cikalim-170116 (Accessed: 24.09.2024)
- Gözler, K. (2016) Kurucu İktidar, Ekin Basın Yayın Dağıtım, Bursa, pp. 22-23
- Gözler, K. (2011), Asli Kurucu İktidar, Tali Kurucu İktidar Ayrımı: TBMM Yeni Bir Anayasa Yapabilir mi?, https://www.anayasa.gen.tr/tbmm-yeni-anayasa.htm. (Erişim Tarihi: 24.09.2024)
- Tögel, A. (2016), Dünya Anayasalarında Değiştirilemez Maddeler ve Türkiye’nin Yeni Anayasası İçin Öneriler, Türkiye Adalet Akademisi Dergisi, Vol. 7, No. 27 (July, 2016)
- For the full set of proposals from political parties presented during the Constitutional Reconciliation Commission, refer to Assoc. Dr. Taylan Barın’s book Türkiye’nin Yeni Anayasa Arayışı: 2011–2013 TBMM Anayasa Uzlaşma Komisyonu Tecrübesi.
- Türkiye Ekonomik ve Sosyal Etüdler Vakfı (2012) Anayasaya Dair Tanım ve Beklentiler Saha Araştırması, https://www.tesev.org.tr/tr/research/ anayasaya-dair-tanim-ve-beklentiler-saha-arastirmasi/ (Accessed: 24.09.2024)
- İnsel, A. (2022) Şili’de Yeni Anayasa Macerası, https://birikimdergisi.com/haftalik/11120/ silide-yeni-anayasa-macerasi (Accessed: 24.09.2024)
