In the end, the Constitutional Court made relatively minor changes to the government’s package of proposed constitutional amendments. It altered the extent to which the government’s proposals expand the pool from which members of the Supreme Council of Judges and Prosecutors (HSYK) will be drawn. And it tweaked the mechanics used for selecting certain members of both the HSYK and the Constitutional Court itself. The public will now be given the final say on the proposed amendments in a referendum to be held on 12 September.
A number of reservations remain about this stage of the process. First, it is very difficult to see how the Court’s line-by-line assessment of the constitutionality of the proposed amendments tallies with the instruction in article 149 of the constitution that “constitutional amendments shall be examined and verified only with regard to their form” (in the original: “Anayasa değişikliklerini ise sadece şekil bakımından inceler ve denetler”).
In an editorial today, Hürriyet Daily News squares this circle as follows: “[W]e are persuaded by the argument that an amendment at odds with the ‘inalterable provisions’ of the existing constitution is a matter of ‘form.'” But the form-only provision in the constitution is explicitly restrictive, coming after a sentence noting that laws and decrees (rather than constitutional amendments) should be examined “in respect of both form and substance” (“şekil ve esas”). If we follow Hürriyet by broadening ‘form’ to include the pivotal first three articles of the constitution, then what is left for the word ‘substance’ to refer to? Surely if any of the constitution’s articles are matters of substance rather than form it would be the unchangeable ones?
(A quick aside here. The idea of unchangeable constitutional articles is problematic. For one thing, I don’t quite understand the mechanics of it in the Turkish case. Article 4 declares that articles 1, 2 and 3 are unchangeable. But nothing appears to declare article 4 to be unchangeable. More broadly, however, the principle of outright unchangeability amounts to an unwarranted imposition on future generations. For example, can it really be right that if, in 300 years’ time, every single citizen wished to change the appearance of the Turkish flag, they would be prohibited from doing so by something decided in 1982? Jefferson had it right: the earth belongs to the living, not the dead.)
A second reservation about the Constitutional Court’s handling of the review of the package of amendments is that it means the Court will, in effect, have written the final version of two of the amendments that the electorate will vote on on 12 September, and that may therefore subsequently become part of the constitution. I’d be happy to defer to anyone with a better understanding of the constitutional procedures—please feel free to leave a comment if I’ve got things wrong here—but I had assumed that the basic division of labour here was that parliament frames the amendments and the Constitutional Court simply reviews them.
The two verbs used in the Turkish original of article 149—’incelemek‘ and ‘denetmek‘—suggest that the Court’s role is one of review, inspection or examination, rather than one of alteration or modification. That being so, in cases where the Constitutional Court finds a problem with a proposed amendment, wouldn’t the logical requirement be for the Court to send the offending article back to parliament, so that it can either be brought into line or else removed from the package?
The two articles altered by the Constitutional Court will go to the public in a form that parliament has never considered, let alone approved. In a country where the question of the separation of powers is vexed (to say the least), that feels like an avoidably sub-optimal outcome.