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Selçuk: The proposal to hand over the Executive Presidency to Erdogan is more dangerous than the 1982 Constitution drafted by military

 

Professor Sami Selçuk, the Honorary President of the Supreme Court of Appeals of Turkey criticized the drafted proposal of new constitution which will introduce Executive Presidency; finding it more perilous, comparing it to the 1982 Constitution which was drafted by the military upon the 1980 coup.

 

“This proposal makes even the highly criticized military-backed 1982 constitution look good. In fact any literate person can easily see that instead of replacing the guardianship on the democracy, this draft clearly hands the executive power to the “infallible” leader, today’s President -whom some of his fanatical supporters even believe possess attributes similar to Prophet Mohammed or God-, and clears his way from any type of audit, checks and balances and stores unity of powers instead of separation of powers” he wrote in his piece on January 9, 2017 in one of the only independent newspapers left in Turkey, Cumhuriyet Daily:

 

In my speech in the Commencement of Judiciary in 1999, I simply highlighted my concern that 1982 Constitution has been highly ineffective to address the legitimacy requirements and that a new Constitution is inevitable, entering the 21st century.

 

First of all, 1982 Constitution was not legitimate in the way it was formed as it was not drafted by a founding government or freely elected parliament, but it was drafted by the people appointed by military, following the shut down of the parliament itself.

Secondly, any discussions or debates related to this draft was banned and it was voted in complete silence with public exposed to a one-sided propaganda which resulted in a new constitution; however a disgrace for my non-speaking country (Clémenceau); whereas, legitimacy is highly dependent on the free speech and debate of individuals who could also question any outcome.

Third point was that the message was very clear that if the drafted Constitution was not accepted, the military/praetorian regime would continue, hence the public was left desperate to vote in favor.

Fourth point being, secret ballot principle was flagrantly violated as the ballot envelopes used was translucent, leaving the room for profiling.

As a final point, with a single ballot, both the new President and the new Constitution was voted for. It was unclear what portion voted for both or was against to any of them. So what was really voted for? These all nullified the legitimacy of both of the votes.

Such constitutional voting typically produced a 97% to 100% support in other countries as well, when observing historically. Instead of bullets, ballots were used (Duverger), therefore 1982 Constitution was “commanded” rather than freely voted.

However, in addition to illegitimacy in “formation”, the “content” of this Constitution was not legitimate neither.

Instead of 1- limiting the powers of The State, 2- expanding the liberties and rights of the individuals, 3- placing audit and control mechanisms so that these are not violated, 4-preventing executive powers in one hand, 5- empowering plurality, 6- placing checks & balances in multiple executive use and 7- being against anything that is in the way of rule of law, the 1982 Constitution have done exactly the opposite, sanctified the power of the State against individuals, limited liberties and rights, making them exceptions, distrust was instilled, independence and unity of judiciary was made impaired, instead of democratic republic, only republic was highlighted. Certainly the State and its values are protected everywhere but these cannot be made taboos or can be sanctified and ripped apart from the actual life. State and the Constitution are for people; people are not for the State and the Constitution.

For all these reasons, instead of self-proclaimed “National Constitution” or “Turkish style Constitution” based on ludicrous reasoning, a constitution that is in line with universal values, -albeit local touch-ups-, in which the common denominator is individual rights and liberties, that includes separation of powers and stands on the ground of rule of law should have been drafted prior to 2001.

Alas this never happened. Some have acted very partisan way instead of providing scientific critique, some have just grunted. It is sad that many of these people were in the field of Law. It was a disappointment. The clear outcome was that the Turkish Law Community was not ready to internalize the Western Law’s several refined concepts. A man of Law speaks with the concepts. As such, I did state my concerns with them but to no avail.

Kurt Gödel, who was a refugee in the US, escaping the Nazi, have refused for long time in having the US citizenship as he believed the US Constitution lacked the provisions to prevent any Hitler-like dictatorship, although it had very solid rules to protect separation of powers. His friends had hard time convincing him.

So what is the current draft of Constitution providing?

It is very “clear and distinct” (clarus et distinctus):

“This proposal makes even the highly criticized military-backed 1982 constitution look good. In fact any literate person can easily see that instead of replacing the guardianship on the democracy, this draft clearly hands the executive power to the “infallible” leader, today’s President -whom some of his fanatical supporters even believe possess attributes similar to Prophet Mohammed or God-, and clears his way from any type of audit, checks and balances and stores unity of powers instead of separation of powers”
Translation by WHattı’s Maxim Baker

T24

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