One of the basic issues of debates of constitution is how the constitution will be made and how participation can be increased in the process of making constitution. The method and process in making constitution are a criterion of legitimacy as important as the content. The dynamics which will make a constitution legitimate, democratic and steady are participation, negotiation and compromise. It can be said that Turkey does not have a democratic experience in making constitutions.
In Turkey, constitutions were made and changed during the military regimes and under the undemocratic conditions created by them. The will of the military officers who carried out military coups and the language and spirit of those periods were penetrated into the constitutions and the process of making the constitutions was completed in an environment far away from the democratic legitimacy. This situation also affected the articles on changing the constitution and it was nearly made impossible because of the strict constitutionalism understanding to change the legal-political framework determined by the anti-democratic founder authority.
The constitutional tradition which began with the constitution of 1961 has aimed to put the legislative and the executive under the guardianship of the bureaucratic institutions. Although many changes were made in the Constitution of 1982 in the last twenty-five years, these changes have not been able to eliminate the spirit of guardianship in this constitution. In this sense, one of the most important changes in the Constitution of 1982 was that a three-fifth majority instead of two-third in the TGNA was seen sufficient in changing the constitution through referendum.
The method of referendum facilitates changing the constitution by saving it from qualified majority. By making it possible discussion of the constitution by people, referendum drags bureaucratic guardianship institutions and
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authoritarian understanding into the discussion of legitimacy. In this way, disguising the dispute with the shawl of bureaucratic guardianship and its conclusion within the bureaucratic institutions are prevented and the dispute is made the dispute of people. As a result, the society discusses the issue by choosing different political sides and politics gains meaning by finding a social basis. Otherwise, there will be no meaning of mentioning of politics or political parties in a place where there are no different opinions and the decisions are taken by bureaucrats. The efforts of overcoming the dispute bring about changes not only in regulations and institutions, but also in mentality and culture. The partial constitutional change realized on 12 September 2010 through the referendum constitutes an important example in this sense. By staying under the influence of this development, the free discussions which were realized by political parties, non-governmental organizations, civil groups and platforms on the new constitution in the process going to the general elections of 12 June 2011 are exceptionally valuable. The fact that these discussions concentrated on the basic principles including the process of making constitution, participation, negotiation and compromise rather the content demonstrates the degree of maturity which discussions of democratic and civil constitution has reached. In this point, the things which should be taken into consideration in the process of making constitution are the followings:
• The New Constitution should be Made by the Parliament: the new constitution should be made by the TGNA. As the representative of people, the TGNA is the only legitimate organ which has the authority of making the new constitution. The President might undertake a facilitating role in the issues on which compromise cannot be reached easily.
• The Parliament Should Show Sensitivity to Political and Social
Dynamics which have Stayed Outside the Parliament: The
Parliament does not represent all political opinions and parties because of the 10% electoral threshold. Therefore, the Parliament should try to overcome the problem of under-representation through methods and processes in which these political parties, political opinions and social dynamics are taken into account. In order to ensure this, all political parties having votes above 1% in the 2001 elections should be invited to the discussions in the Committee of Constitution and this method should be definitely announced before
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the elections. In the process, there should also be mechanisms in which non-governmental organizations are included.
• The Freedom of Expression: Creating an environment of the freedom of expression which will ensure the participation of all sections of the public opinion in the constitutional process is indispensably important. All kinds of obstacles in front of the freedom of expression should be removed. In addition, the campaigns aimed at preventing the expression of some opinions by provoking the public opinion should not be allowed. The expression of all kinds of opinions in the process of making constitution should be ensured.
• Negotiation: The negotiations in the process of making the constitution should be continued openly in the public opinion and the Parliament.
• Compromise: The goal of the negotiations should be to create the widest social consensus. But, since absolute compromise is not possible, the aim should be to create a consensus text which will be accepted by the TGNA.
• Referendum: The text which is passed from the TGNA as a result of negotiation and compromise in the public opinion and the parliament should be voted in a referendum. In this way, the basis of legitimacy of the constitution will be strengthened.