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Turkey's 'liberal constitution' of 1961 source of myths, facts

ISTANBUL - Hürriyet Daily News | 5/26/2010 12:00:00 AM |

Gathering for the 50th anniversary of the coup on May 27, 1960, law experts continue to debate the quality of the constitution that followed shortly after in 1961.

Gathering for the 50th anniversary of the coup on May 27, 1960, law experts continue to debate the quality of the constitution that followed shortly after in 1961 as Turkey prepares for a likely referendum on changes to the current Constitution.

While some Turkish politicians claim it is the most liberal example of a state embracing and securing social rights, others say the 1960 coup was a revolution and that the 1961 constitution was the start of the tradition of replacing Turkey’s constitution through coups d’état.

Speaking at the meeting held last week, Professor Ali Ülkü Azrak said if there had been a constitutional court at the time the country was ruled by the Democrat Party, or DP, which was forced out of power and shut down by coup leaders, it might have prevented the administration “from making such mistakes” that arguably led to the military intervention.

Azrak said the 1961 constitution brought other novelties including defining and securing basic rights and freedoms, protecting national treasures, mentioning of terms such as social state, social justice and human dignity in the text and the founding of a senate, the National Security Council, or MGK; the State Planning Organization, or DPT, and the Constitutional Court.

Professor Serap Yazıcı disagreed with Azrak, saying the qualities he listed fell under the shadow of 1960 starting the tradition of changing the constitutions in Turkey through military coups. “It is still an obstacle in our way to make a new constitution,” she said, adding that because the National Union Committee, or MBK, which carried out the coup, participated in preparing the constitution, it granted special authority and privileges to the military.

Yazıcı defined the MGK and the Constitutional Court as “tutor institutions,” which the military and the political elite implemented to limit the actions of a pluralistic democracy. One example she offered was the “natural senator” status of the committee members, which granted them a place in the senate and had a say over the elected parliament after they transferred power to civilians.

“The 1961 constitution began to be considered as a legend in my law faculty years, but if it is examined closely, we can say that constitution does not have legendary qualities at all,” she said. “Actually, it featured extremely authoritarian mechanisms within the illusion of democracy.”

Professor Ergun Özbudun, talking on the second day of the gathering, said his opinions “are between the two ends of black and white.”

Özbudun agreed that the method for making the constitution left a bad legacy but added that the “1982 constitution was worse,” for it was made by 162 people assigned by the five generals who carried out the Sept. 12, 1980, coup instead of Parliament. However, the professor said the Representative Parliament that prepared the 1960 constitution was “not representative” either because one-third of its members were elected excluding the overthrown DP members and the rest were assigned by the coup leaders.

“One should look at the [1961] constitution in various shades of gray,” said Özbudun. “On one side of course it widened the area of basic rights and freedoms. It adopted the social state mentality and brought important social rights like strikes and labor agreements. It is a constitution that protected basic rights with important securities such as an independent judiciary and the Constitutional Court; bringing limits to the dominion of the majority.” However, it is also the foundation of the “military tutorship that we are complaining about today,” he said.

Professor Mithat Sancar brought the strongest opposition to the argument of the 1961 constitution being libertarian by defining the points of the independent institutions and the pluralist system as “lies.”

“The constitution was designed according to the benefits of the junta and the freedoms can easily be taken away,” said Sancar, adding that arguing that the constitution was not bad compared to its followers leads to missing its function. “I believe the idea that ‘our people would benefit from them’ was important in bringing freedoms,” said Sancar, who justified his position by saying social activists in the streets were seen as “children of the Republic,” not common people, and educated people were automatically considered Kemalists.

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