Constitutions should adapt to changes in society, says Can

Constitutional Court rapporteur Osman Can has said that constitutions need to be adapted in accordance with societal and political changes.

“The possibility of change may legitimize constitutions that have a legitimacy problem. … Ruling out changing constitutions is a guaranteed way to make them invalid,” Can said in Ankara on Monday at the opening of a symposium titled “Unchangeable Principles of Constitutions” organized by the Bilkent University faculty of law and the German Foundation for International Legal Cooperation.

Can became a controversial figure after he argued against the headscarf ban at Turkish universities and against closing down the ruling Justice and Development Party (AK Party) in the context of cases over these issues in the Constitutional Court. His dismissal from his position as a lecturer at Çankaya University has been interpreted as punishment for his views.

Another well-known figure, Constitutional Court President Haşim Kılıç said at the conference that he is planning to focus on the same topic at another symposium for the anniversary of the establishment of the Constitutional Court if he finds enough “courage” in himself.

“I am worried about how much courage I have in that regard, but you can see that the German Foundation for International Legal Cooperation and the Bilkent University faculty of law both have the courage to open a debate on this vital topic,” said Kılıç, who became the court s president last October after serving two terms as deputy president.

There are clauses regarding the nature of the republic s political regime in the Turkish Constitution that cannot be amended.

Also speaking at the symposium, Winfried Hassemer, a former deputy head of Germany s Federal Constitutional Court, said Germany also has unchangeable principles in its constitution.

“Unchangeable articles in constitutions cannot be accepted in democracies. Unchangeable principles prevent social adaptability, but they still have some legitimacy,” Hassemer said.

Can, who continued to discuss the issue following Hassemer s speech, said it is not possible for him to make statements on the issue as easily as a German legal professional can because in the Turkish case the Constitutional Court steps outside of its boundaries. He referred to the authorities of the 1982 military coup as “sociological rulers who created legitimate authority” and said a “founder parliament” established by all political forces in the society could be a powerful ruler and replace the militarily imposed authority.

Emphasizing that he was speaking as an academic, not as a rapporteur, Can added that the Constitutional Court has turned itself into an institution that announces extraordinary conditions with its “out-of-the-ordinary” decisions. In such an environment, he said, “the state would remain, but the rule of law would erode.” He added, “Claiming that the rule of law can be ensured by stepping outside of the boundaries of the law is a paradox.”

Can maintained that the Constitutional Court should make political judgments, rather than telling executive and legislative institutions what to do. He warned that if this principle is ignored then a “juristocratic” regime may be in the making.

Professor Ergun Özbudun, a lecturer at Bilkent University who led a group that wrote a new draft constitution for Turkey that has since been shelved, said the unchangeable articles of Turkey’s Constitution are indeed open to interpretation.

“Considering these concepts as unchangeable and giving the Constitutional Court the duty of guardianship over these unchangeable articles means giving the Constitutional Court limitless powers,” he said, criticizing the court s decision to annul the constitutional amendments -- passed by 411 out of 550 votes in Parliament-- to remove a longstanding ban on headscarves at universities.

The Constitution openly states that the court can only examine constitutional amendments on the grounds of procedure, but the court said in its headscarf ruling that amendments that are not in line with the basic constitutional norms stipulated in the first four articles of the Constitution can also be revoked. These four articles define Turkey as a republic, social and secular state under the rule of law.

Meanwhile, İstanbul Bar Association President Muammer Aydın, speaking to reporters in İstanbul, said about the debate: “The first four articles of the Constitution will not be changed just because some people want to change them. Nobody s power is sufficient to change the constitutional rulings in line with the established structure of this country.”

12 November 2008, Wednesday



Thursday, November 13, 2008 | 08:53 WIB 385