Fortunately, commission failed to write Constitution
İSMET BERKANOur Constitution’s Article 13 says this: Fundamental rights and freedoms may only be restricted by law for specific reasons set forth in the relevant Articles of the Constitution. These restrictions must be in conformity with the letter and spirit of the Constitution, and may not conflict with the requirements of the democratic order of society.”
You have already got it but let me translate for you: Our Constitution recognizes fundamental rights and freedoms but if need be allows these rights and freedoms to be restricted by law.
However, our Constitution writers were not satisfied with this article. Look how Article 14 starts: “None of the rights and freedoms embodied in the Constitution may be exercised with the aim of violating the indivisible integrity of the State with its territory and nation, or of endangering the existence of the Turkish State and Republic.”
The writers of the Constitution do not trust the Parliament either. They want to stop the Parliament from making fundamental rights and freedoms unrestricted. So they put fundamental rights and freedom in the mold of famous “the indivisible integrity of the State with its territory and nation,” the meaning of which changes depending on who reads it.
I was assuming the commission that was formed with the call and efforts of Speaker of Parliament Cemil Çiçek, which has been working for 25 months and has only agreed on 60 articles, would cleanse the Constitution of those sentences that restrict our fundamental rights and freedoms that have leaked into Articles 14, 15 and 16 and many others.
How naïve I was.
While reading the commission minutes, I thought “Fortunately, they have not written the new Constitution.”
Because if they had, then they would have written something not much different from the spirit of the current Constitution; moreover, we would not have the convenience of blaming the coup leaders for a bad Constitution that hates freedoms.
I think the politics in Turkey avoided a disaster.
For example, Article 34 defines the right of assembly and demonstration peacefully as a fundamental right, but in the second sentence these rights are restricted to protect national security, public health and public morals.
While you are wondering how a march or protest can endanger national security, I am fixated on the phrase “public morals.”
What are these public morals and why are they protected by the Constitution?
I seem to be alone in this. The conciliation commission has debated the “public morals” phrase for hours and not even one person has come out to say, “Are you crazy? What is this phrase doing in the Constitution?”
This is the real problem anyway. We are trying to solve all our issues with the Constitution. The Sept. 12 coup leaders also wanted to do that.
In fact, the Constitution should contain the infrastructure of how the system would work and the fundamental human rights and freedoms that will set the spirit of laws; the rest of the “dirty” work, in other words, the restriction of freedoms, bans, punishments, etc. should be done by laws.
Why so? It is difficult to change the Constitution; changing the laws is easy.
But, no; as you read the commission minutes, you see that each political party has worked to write its party program in the Constitution.
Fortunately, they were not able to write the Constitution.
İsmet Berkan is a columnist for daily Hürriyet in which this abridged piece was published Dec 6. It was translated into English by the Daily News staff.