TEPAV: “Unmissable Opportunity to Solve the Constitutional Problem” Assoc. Prof. Levent Gönenç said: "A well-designed constitution making process, which should be evaluated in the light of Prime Minister Erdoğan's quoted statement, can turn out to be a new and unmissable opportunity for Turkey to solve its constitutional problem."

ANKARA- Assoc. Prof. Levent Gönenç of Ankara University Faculty of Law, taking departure from Prime Minister Erdoğan's recent statement on the constitution making process, assessed that a constitution making process to be designed with the participation and contributions of the relevant actors as defined above, which should be evaluated in the light of Prime Minister Erdoğan's quoted statement, can turn out to be a new and unmissable opportunity for Turkey to solve its constitutional problem.

TEPAV Constitution Studies policy note titled 'Towards A Participatory Constitution Making Process in Turkey' by Assoc. Prof. Levent Gönenç was published.

Gönenç assessed the constitution and constitution making process in Turkey in the light of the following statement by Prime Minister Erdoğan: "The new constitution will be prepared not by constitution experts but by the wide segments of the society. The constitution will be prepared by civil society organizations, youth and women's associations, trade unions, economists and social scientists. We will ensure the broadest possible participation. We will recourse to constitution experts at the last phase to receive technical assistance. The society will not need an interpreter to understand the constitution. After the general elections, we hope to have a parliamentary composition which will allow us to realize this process. Currently some efforts have been initiated by civil society organizations. We are proud of this and we encourage such efforts. I envision a short, concisely written and comprehensible constitutional text aiming at advanced democracy and guaranteeing fundamental rights and liberties."

Does Turkey Need a New Constitution?

Stressing that TEPAV's survey reveals that 49.5% of the respondents are not happy with the current constitution and 43.5 percent think that a new constitution is needed, Gönenç maintained:

"At the current state, the vital issue about constitution making in Turkey is the establishment of trust in the constitution making process. Overcoming this problem of trust depends fundamentally on the embracement of the constitution making process by the people and the social and political actors that represent them, and on their "voluntary" and "sincere" participation to the process. This is the prerequisite for making a constitution that will be accepted by large segments of the society. The Prime Minister's statement that the constitution will be prepared by the people must be read from this perspective."

How Does the People Make the Constitution?

Gönenç stated that constitution making with the participation of all citizens is simply an "ideal" in the modern constitution making techniques, for it is physically impossible that millions of citizens come together to discuss, prepare and write the constitution. Stressing that it is also unrealistic to expect that all citizens have the sufficient knowledge about constitutional principles and institutions to contribute to the process Gönenç added: "Therefore, what is meant by constitution making by the people is the design of the constitution making process with participation of the social and political actors as much widely and effectively as possible that represent the people in a regular and organized manner (i.e. the civil society organizations and the political parties) and the involvement of the public directly as a whole at certain phases, especially at the stage of the adoption of the new constitution."

"Hourglass" Formula in the Constitution Making Process

Assoc. Prof. Dr. Levent Gönenç referred to the 'hourglass' formula in the constitution making process and maintained:

"Basically, the "hourglass formula" has two aspects: First, constitution making process must be extended over a period of time; that is instead of announcing the prewritten texts, the constitution must be written step by step and the public must be informed of the constitution making process at all phases. Second, the process must schematically look like an hourglass. The process will be initiated with the "people", the largest element within the hourglass in quantitative terms. At this phase, mainly abstract principles will be discussed and the constitutional demands and expectations of the people will be determined. As the process moves through the neck of the hourglass, the debates will focus on more concrete issues and the number of participating actors will decrease. Moving from abstract principles to concrete provisions and thus from the people to civil society organizations and political parties, the process will reach the narrowest section of the hourglass, that is its neck where the constitution will be adopted by the Parliament. After the adoption of the constitution, the hourglass will widen again; the most numerous element in the process, that is the people will step in to ultimately approve the constitution."

10 Percent Election Threshold is Critical

Gönenç argued that at the parliamentary phase it is important that the Parliament that will negotiate and adopt the constitution should represent important political powers and groups of the society and maintained that therefore it is necessary to design an electoral mechanism that will reflect the social and political outlook of the society to the highest degree possible; in other words, this necessitates a mechanism that will make sure that the election results reproduce the society as a microcosmos.  Gönenç continued: "The primary problem that the law makers have to solve is to decide whether the current 10 % election threshold in the parliamentary elections is compatible with the participatory constitution making process. The Prime Minister's statement; "After the general elections, we hope to have a parliamentary composition which will allow us to realize this process" can be regarded as the expression of the ruling party's willingness to discuss this issue, or at least, this can be seen as an indication that the AKP will not remain indifferent to such a debate."

Civil Society is Ready

Gönenç highlighted that in the "Constitution Platform National Workshop" in Ankara TOBB University of Economics and Technology with the participation of 83 non-governmental organizations and professional organizations participants have almost unanimously agreed that a new constitution with high 'legitimacy' cannot be made without the 'contributions' and 'participation' of the civil society civil society is willing and ready to undertake such a duty and that the conclusions reached at the workshop have shown that civil society is willing and ready to undertake such a duty.