Free and consensual constitution-making

The moves towards drafting a new Turkish constitution gather pace. Attention shifted today to the likely timeframe, with reports suggesting that both president Abdullah Gül and opposition leader Kemal Kılıçdaroğlu believe a new constitution could be framed before the next general election, due in summer 2011.

This seems unduly hasty. More to the point, it puts cart before horse. What’s needed first isn’t a timetable, but discussion of and a decision on the mechanics of constitution-making that ought to be used. As things stand, it looks like we’re drifting unthinkingly into a joint commission comprising members of the parties currently represented in parliament.

Is that the best way of going about this exercise? Well, it would be an improvement on the manner in which the recently passed constitutional amendments were drafted. But it would fall well short of the democratic spectrum’s end-point: a constituent assembly elected (by universal suffrage, on a proportional basis and without distortions like the 10 per cent threshold) for the specific purpose of drafting a new constitution. (Andrew Arato has suggested something along these lines in the Turkish context before: see the third paragraph of this article.)

I’m not proposing to try to solve this conundrum here. But the quote below might serve as a basis for considering the merits or otherwise of the proposed joint commission, or of any other constitution-making wheeze that gets tabled in the coming weeks. It’s from Problems of Democratic Transition and Consolidation by Juan Linz and Alfred Stepan, and it concludes a list of six different “constitution-making environments” by identifying the one that’s most conducive to democratic consolidation:

Free and consensual constitution-making. This occurs when democratically elected representatives come together to deliberate freely and to forge the new constitutional arrangements they consider most appropriate for the consolidation of democracy in their polity. The constituent assembly ideally should avoid a partisan constitution approved only by a “temporary majority” that leads a large minority to put constitutional revisions on the agenda, thereby making consolidation of democratic institutions more difficult. The optimal formula is one in which decisions about issues of potentially great divisiveness and intensity are arrived at in a consensual rather than a majoritarian manner and in which the work of the constituent assembly gains further legitimacy by being approved in a popular referendum that sets the democratic context in which further changes, such as devolution (if these are to be considered), take place.

This sets the bar quite high. Of the 13 countries covered in their book, the authors note that only Spain’s constitution-making in 1977-78 would fit this pattern. Nevertheless, it provides us with a benchmark of sorts against which to gauge whatever is proposed and pursued in Turkey. Which is important, because if the politicians can’t find their way to create an effective forum for constitution-making, there is little hope that they’ll go on to create an effective constitution.