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The previous constitutions, drafted in 1961 and 1982, had been prepared by the military. Earlier constitutions drafted in 1924, 1921 and 1876 were prepared according to Western constitutions. The military was not involved when the government attempted to draft a new constitution in 2007, but the way the issue was handled was wrong. A total of six experts were going to prepare the country’s basic contract. At that time I tried to explain that it was wrong and that it would not help to solve basic problems in Turkey.
Just think about it. Two adults decide to get married but a professor from the neighborhood prepares their marriage contract. Of course business contracts and other contracts have technical formats, but that comes into play after the sides reach an agreement and start discussing legal issues. The conditions of an agreement cannot be imposed on sides, such as couples who plan on getting married or entrepreneurs who want to establish a business partnership. The contracts between them cannot be dictated. In this respect, it is unreasonable for experts to prepare a constitution on behalf of the public, even if before they start writing the drafters say: “There are many written constitutional texts in the West; let’s look at them. Let’s see what the Germans and French have done. What do the criteria set by the EU and liberal philosophy foresee? Let’s create a text from this mixture and be very careful not to step outside of it.”
It just shows that we haven’t learned a single lesson from our 200-year history and that we are quick to repeat basic mistakes.
There is an important reason why we should focus on the procedure and method of drafting a constitution more than its content. One of the most prominent features separating a modern society from a traditional society is its constitution, which is the essence, foundation and continuing ideology of a modern state. Even if, from the liberal point of view, constitutions protect the individual from the state and, from the socialist point of view -- which prioritizes democratic participation -- they protect society from the state, in reality modern constitutions protect the state from individuals and society. It is because of this that if members of a society with the will to live together cannot develop a contract based on the principle of offer and acceptance, then a constitutional draft penned by experts will simply make the state the judge of its own court. This judge will always make rulings in favor of itself and the individual and society will lose their rights and freedoms against the state in every case.
Maybe pre-modern societies did not have written constitutional texts and their leaders ruled arbitrarily, but they still enforced customs. For example, sultans and caliphs in the history of Islam were not tyrannical rulers like leaders in contemporary states. There was Shariah, which was independent from other contracts and invited them to be respectful and obedient. There were traditions, valid legal practices and the Divine Provisions, which were above all else. Together they formed a set of values that was the essence of legal and administrative life.
In this respect, while benefiting from the experience of Western countries when preparing a new constitution, we should also turn to our own social history and primary moral codes. A constitution is not just a legal framework that defines a state’s structure. It is also closely related to the structure of a society and, by extension, to the way people want to live. Since a society’s organizational model affects a society’s lifestyle and its system of values that plays a role in the manifestation of this lifestyle, we can see that the text to prepare a constitution does not consist of merely “quotes from Europe or the EU” or of “a technical document penned by legal experts.” This is the point that our liberal legal experts fail to understand. By drafting a constitution you impose a philosophy, a vision, a world view, a mentality of power and a system of partition. You must involve the society when determining the articles of a constitution. |
