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Warning from top judge
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President Abdullah Gül and Prime Minister Recep Tayyip Erdoğan must be fuming over remarks by a top judge who reminded them that in democracies being elected or having an outstanding parliamentary majority cannot give absolute power to a political personality or group to change everything the way that person or group likes, in any fashion they prefer because in democracies all powers are restricted.
This is indeed the subject of a discussion that has been continuing in this country. Can an elected parliamentary majority have the power to make amendments in the laws and in the Constitution of the country without any restrictions? If there are restrictions limiting the power of the elected; if getting elected is a demonstration of national will and if national will is supreme to anything else, how can it be possible that an elected parliamentary majority cannot have the power to change the laws and the Constitution of the country the way it considered fit?
A prime minister serving in the 1950s was once quoted telling his party’s majority group in Parliament that as elected representatives of the nation they were having the power to do whatever they would like on behalf of the nation and if they wished so they could even reintroduce the Shariah law in the country. It was the same power-obsessed prime minister, however, who was as well quoted telling that his party was so strong that it could get elected to parliament a piece of wood if he nominated it in the parliamentary elections. That mentality, unfortunately, triggered the first-ever military coup of the republican period in 1960 and not only the premier but two members of his cabinet lost their lives at the gallows after they were "sentenced" to death by an extraordinary tribunal in a mockery trial with some trivial charges. Not only they lost their lives but the country and Turkish democracy suffered seriously as well.
The "piece of wood" of the 1950s became an "empty jacket" in 2008’s Turkey. The power-obsessed ruling party of the country was sure that even if it nominated an "empty jacket" the nation would elect the "jacket" as mayor. Despite all the election bribery and warnings by members of the government that in order to get a better government support for their municipalities they should vote for candidates of the ruling party, the electorate did not elect "filled jackets" at many localities and the ruling party lost some eight percentage points compared the previous elections. Arrogance was punished by the nation. Turkey was no longer the Turkey of the 1950s. Still, the ruling party of the country continued subscribing majoritarianism instead of pluralism and insisted on seeking a "consensus" on its own terms rather than trying to reach a common point with the opposition parties while on the other hand continues complaining that if an elected majority cannot make amendments in the Constitution perhaps "we should go out for prayers to have a military coup which will stay in power just for a period enough to make a new constitution." This is manifestation of the same crooked mentality obsessed with the "majoritarianism" complex shrouded in a democratic "supremacy of national will" cloth.
Restricted power
However, what did the Council of State top judge Mustafa Birden remind the politicians yesterday? He underlined that the power of elected parliaments to make amendments in the national charters, or constitutions, is not a limited one. "The legislative power should not go out of the framework that provides its own legitimacy. The power to make amendments in the Constitution is not a power that can be arbitrarily applied with no restrictions. A constitutional amendment must be undertaken not only according to the established procedures but also in conformity with the legal framework, the spirit of the constitution and universal norms of law. A constitutional amendment (in Turkey) is possible only on the condition of conformity with those articles of the 1982 Constitution that cannot be amended and amendment of which cannot even be suggested, the principles that these articles make reference to in the preamble and on condition that the changes wanted do not compromise the founding philosophy of our state." Furthermore, the top judge states that an amendment that would compromise secularism principle directly or indirectly would not be incompatible with domestic law, but would as well be contrary to the universal norms of law because secularism was an achievement that the Turkish nation must protect vigorously. Let’s hope the Justice and Development Party received the message.
A prime minister serving in the 1950s was once quoted telling his party’s majority group in Parliament that as elected representatives of the nation they were having the power to do whatever they would like on behalf of the nation and if they wished so they could even reintroduce the Shariah law in the country. It was the same power-obsessed prime minister, however, who was as well quoted telling that his party was so strong that it could get elected to parliament a piece of wood if he nominated it in the parliamentary elections. That mentality, unfortunately, triggered the first-ever military coup of the republican period in 1960 and not only the premier but two members of his cabinet lost their lives at the gallows after they were "sentenced" to death by an extraordinary tribunal in a mockery trial with some trivial charges. Not only they lost their lives but the country and Turkish democracy suffered seriously as well.
The "piece of wood" of the 1950s became an "empty jacket" in 2008’s Turkey. The power-obsessed ruling party of the country was sure that even if it nominated an "empty jacket" the nation would elect the "jacket" as mayor. Despite all the election bribery and warnings by members of the government that in order to get a better government support for their municipalities they should vote for candidates of the ruling party, the electorate did not elect "filled jackets" at many localities and the ruling party lost some eight percentage points compared the previous elections. Arrogance was punished by the nation. Turkey was no longer the Turkey of the 1950s. Still, the ruling party of the country continued subscribing majoritarianism instead of pluralism and insisted on seeking a "consensus" on its own terms rather than trying to reach a common point with the opposition parties while on the other hand continues complaining that if an elected majority cannot make amendments in the Constitution perhaps "we should go out for prayers to have a military coup which will stay in power just for a period enough to make a new constitution." This is manifestation of the same crooked mentality obsessed with the "majoritarianism" complex shrouded in a democratic "supremacy of national will" cloth.
Restricted power
However, what did the Council of State top judge Mustafa Birden remind the politicians yesterday? He underlined that the power of elected parliaments to make amendments in the national charters, or constitutions, is not a limited one. "The legislative power should not go out of the framework that provides its own legitimacy. The power to make amendments in the Constitution is not a power that can be arbitrarily applied with no restrictions. A constitutional amendment must be undertaken not only according to the established procedures but also in conformity with the legal framework, the spirit of the constitution and universal norms of law. A constitutional amendment (in Turkey) is possible only on the condition of conformity with those articles of the 1982 Constitution that cannot be amended and amendment of which cannot even be suggested, the principles that these articles make reference to in the preamble and on condition that the changes wanted do not compromise the founding philosophy of our state." Furthermore, the top judge states that an amendment that would compromise secularism principle directly or indirectly would not be incompatible with domestic law, but would as well be contrary to the universal norms of law because secularism was an achievement that the Turkish nation must protect vigorously. Let’s hope the Justice and Development Party received the message.
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