The new constitution discourse is fake: Those who say 'a Turkey without terror' must first say 'a Turkey with the rule of law'

INTERVIEW: SERCAN MERİÇ

The relationship between the judiciary and politics continues to be debated in Turkey. Opposition politicians, opposition municipal bureaucrats, journalists, intellectuals, and academics continue to shuttle between courthouses and prisons. The Istanbul Bar Association and many lawyers are also facing the cudgel of the judiciary... Reacting to the arrest of lawyers, the Bar Association will hold a protest march today at 13:00 from Çağlayan Courthouse to the Istanbul Bar Association under the slogan, "If the lawyer is in danger, justice is in danger."

Before this protest, we met with Istanbul Bar Association President and Constitutional Law Expert Prof. Dr. İbrahim Kaboğlu to discuss recent developments. Kaboğlu, whose latest book "Constitutional Information and Public Opinion" was recently released by Tekin Publishing, describes the current situation as 'constitutional destruction.' Stating that he finds calls for a new constitution 'fake,' Kaboğlu warns that lawlessness inevitably drags Turkey into poverty, saying, "First, show respect for the existing constitution."

You have been writing books about the Constitution for some time. You recently released the book 'Constitutional Information and Public Opinion.' What is your purpose in writing these books?

Constitutional Information and Public Opinion, in a way that was never foreseen, became an extension of the July 15 Constitution. Because the process I call the July 15 Constitution was created under extraordinary circumstances and conditions, accompanied by information pollution and through imposition. There was an attempt to liquidate 200 years of constitutional and political accumulation at once. In the 6-7 years of implementation that have passed, the views contained in the July 15 Constitution book have unfortunately been confirmed. A new stage in constitutional information pollution was reached to sustain the institutional structure it brought, and that is why I wrote this book with an intellectual approach that goes beyond a kind of slogan, saying, "No, the first condition is correct information." Then, when the Istanbul Bar Association Presidency came onto the agenda, my first statement was: I cannot remain a spectator in the face of this constitutional destruction. I took on this duty in an environment where so much desire also existed.

Pressures on the Istanbul Bar Association have also increased since you took office...

Here, our discourse and action as a bar association have always been to make the law effective. To contribute to a Turkey where the law is valid for everyone, at all times, and in every place. In fact, according to the Law on Attorneys, the duties and powers of bar associations are to defend the rule of law and protect human rights. We entered a very intense working process at the Bar. But in the second month, we were told to stop. We were told, "We do not want you to do this as an institution that defends the rule of law and undertakes the duty of protecting human rights; we want you to be held accountable before the court." In this respect, for 6 months, we have been working both as the bar management to make the law effective and we are in a struggle to protect the bar against extra-legal operations. As the defense profession, we are trying to protect the rights and freedoms of all citizens, we are trying to explain to state organs what the rule of law is, and we are also defending the defense institution itself.

Following the March 19 Operation, we are witnessing the arrest of lawyers for mayors and bureaucrats. How should this be read?

If we go back 10 years, a few important points provide an answer to the question of how we got here. 10 years ago, as a result of the elections on June 7, 2015, the Justice and Development Party lost its majority. But it did not accept the result. Because it did not accept it, the President repeated the elections by making a kind of constitutional coup, referencing Article 116 of the Constitution even though the conditions were not present. That is, it repeated them. Of course, I will not go into what happened in the summer of 2015. I am trying to remind you of the massacres. Since November 1, after the elections, Turkey unfortunately entered a new period, in quotation marks. And there, the Justice and Development Party group deputy chairman said: "If we have the majority on a national scale, other groups determined by democratic means should also be in our direction in terms of political tendency." Your colleague who conducted the interview asked, "Well, what if they aren't?" And that person replied, "If not, it is not legitimate." It can be summarized as the view, "I hold the majority in the Grand National Assembly of Turkey (TBMM), so the Istanbul municipal administration should also reflect my majority..." The situation in universities is already obvious. The democratic autonomy of scientific institutions was abolished.

So, what is next?

Professional organizations that are public institutions, the TMMOB you mentioned, the Turkish Medical Association... These had already always been on the agenda of this party. And bar associations were the main target. In 2020, with Law No. 7249, the division of bar associations was ensured. Numbered bar associations were opened. The No. 2 bar associations established in Ankara and Istanbul are the product of this.

The desired result did not materialize for the government either...

Yes, at that time, I was the deputy who opposed it the most in the TBMM, both in terms of the legislative process and taking it to the Constitutional Court. This should not have happened. However, this 5-year implementation showed that the operation via law did not achieve success. Now let me remind you of one more thing. In 2019, when the municipality in Istanbul passed to the Republican People's Party (CHP) for the first time after 25 years, the President of the time said, "A lame duck, because the majority in the Municipal Council belongs to us." Indeed, the election was canceled by the Supreme Election Council. Elections were held again. There is no need to go into trustee (kayyum) practices here, of course. They are also entirely, that is, not only antidemocratic, but the trustee practice is also entirely contrary to Article 127 of the Constitution.

We also witnessed a very dirty election process in 2023...

In the 2023 elections, the belief that the political power would change hands on a national scale was very high. We call this "political alternation." Even the Justice and Development Party had given many signs that it would lose the elections. But of course, the competition conditions were not equal, but beyond not being equal, what was done? They said, "But it's a montage, but this, but that," and the elections were won. After those May 14, 2023 elections, until the March 31, 2024 elections, a path of dialogue, a path of normalization was tried. But as soon as local governments passed to the opposition to a very large extent on March 31, 2024, and the CHP became the first party, then actually the AKP and the People's Alliance (Cumhur İttifakı) began to design new operations for 2028.

There is also a new Constitution debate on the agenda. It is claimed that the People's Alliance desires to finish this in the TBMM. How do you evaluate the new constitution agenda?

First of all, of course, the constitutional amendment made 8 years ago, in my characterization, is not a Presidential Government System but a construct. It is a construct where the presidency and the government are handed over to a single person. When that single person is also the party leader, it means that the executive, which is the middle leg of the legislative, executive, and judiciary contained in our constitution, was actually abolished. When the executive is abolished, the provisions placed in the Constitution regarding this are authoritarian provisions. Because in no democratic state is the executive kept immune from accountability. Today, there is no executive with political responsibility. Now, in this respect, there are provisions in our constitution regarding human rights and freedoms. They continue their existence and validity. If we accept democracy as a regime whose normative infrastructure is formed by human rights, this is positive. But in terms of democratic mechanisms, there is no separation of powers in the context of mutual checks and balances of the executive and the legislature. Therefore, the presidency of the state and the executive through party leadership have created an arbitrary area. For example, he says, "they will be shaken." They are truly being shaken outside the law. He says, "lieutenants will be cleaned out," and they are cleaned out. He says, "the big radish hasn't been pulled out yet," and truly the next day, an army of gendarmerie, an army of police surrounds Ekrem İmamoğlu's house, fills the surroundings of Vatan Street, and surrounds the Çağlayan Courthouse.

The concern of the democratic public is also about where a constitution to be made in this course will drag the country...

So what has happened? The constitutional amendment 8 years ago... The positive side is that the foundations of the democratic mechanism exist, freedoms remain. However, because democratic mechanisms have been removed, freedoms are not respected. The removal of those mechanisms has led to an arbitrary practice, and Turkey is being dragged into an area of lawlessness today. For this reason, this is carried out with two things. In a channel that I can summarize with two words, phrases. One; it is carried out with constitutional information pollution, two; it is carried out through the violation of the constitution. That is why the new constitution discourse is entirely a nominal and fake constitution discourse. In this respect, the concepts of "coup constitution" and "civil constitution" do not coincide with a constitutional reality anyway. In this respect, I use three concepts together: "correct constitutional information," "respect for the constitution," and "you will comply with the provisions of the constitution." The wide Presidential Decree area granted to the President is authoritarian. But even if it is authoritarian, you will remain within the limits drawn in the 17th paragraph of Article 104. You cannot lead to an arbitrary practice or regulation based on this authoritarian provision. That is why I say, even if it is authoritarian, you first comply with the existing constitution.

What is the issue that should be brought to the fore in a possible constitutional amendment?

If you are really going to create a responsible administration for the Grand National Assembly of Turkey, the premise of the amendment should be this. Because as long as a constitutional amendment that foresees political responsibility is not made in Turkey, legal security cannot be ensured. Economic prosperity can never be ensured in a society where there is no legal security. This means that lawlessness leads Turkey to poverty. General poverty impoverishes the legal profession. The manifestation of justice does not emerge. Nobody wants terror anyway. Of course, we want a peaceful Turkey. But a Turkey without the rule of law can never ensure the emergence of a peaceful society. A peaceful society can never be established. Because a society without the rule of law turns into a society where social inequalities deepen, discrimination becomes widespread, and marginalization becomes a kind of tradition, just like today... That is why those who say "a Turkey without terror" must first say "a Turkey with the rule of law." Those who do not say "a Turkey with the rule of law" do not have the right and authority to use concepts foreign to constitutional law such as civil constitution or coup constitution.

News Source: 12punto