The concept of sovereignty in modern times
The prime minister said they were preparing a road map for the writing of a new constitution. All the successful constitutions in the history of democracy have been written through consensus. Unfortunately, this has not happened in our country.
Now, there is nothing to be said about the government’s submitting its own draft to the parliament.
This is obviously quite useful for political propaganda: A government preparing a draft for constitution for the country while opposition parties cannot even prepare a draft… The propaganda machine of the government will further process this. For this reason, it has to be taken seriously and examined with an objective eye.
According to stories that appeared in pro-government newspapers, the section on the “exercise of sovereignty” was to be changed. In the 1961 and 1982 constitutions, after it is stated that sovereignty unconditionally belongs to the Turkish nation, the article says: “The Turkish Nation shall exercise its sovereignty through the authorized organs as prescribed by the principles laid down in the Constitution.”
What does this mean? It means that “sovereignty” is not only exercised by legislation and execution but also by the constitutional judicial bodies in accordance with the principle of separation of powers.
In the government draft, it is reported that the article will be rewritten as such: “The Turkish nation shall exercise its sovereignty through the representatives it has elected and through referenda.”
Apparently, “sovereignty” is seen as a power that can only be exercised by “elected representatives.” In practice, this means “Sovereignty will be exercised by the governing party.” This is extremely objectionable, and in fact, I would call it grave.
I would like to draw the attention particularly of Justice and Development Party (AK Party) commission members Cemil Çiçek, Mehmet Ali Şahin and Ahmet İyimaya who prepared the draft.
Will the “elected representative” have to observe the decisions of the justice? Will the decisions of the Constitutional Court be binding to everybody and all institutions? Will the judiciary be independent? They will indeed say a heartfelt “yes” to all of them.
Well, in this case, if the “sovereignty” powers are only to be used by “elected representatives,” how would you define the power exercised by the judiciary? Will justice have no place within the concept of sovereignty? No doubt, the power exercised by the judiciary is “sovereign power.”
For this reason, in all constitutional systems that have adopted a separation of powers, sovereignty is the legislative, executive and judicial powers altogether. The power of sovereignty is exercised in accordance with the principle of separation of powers; in other words, it is exercised by these three powers according to the distribution of authority in the constitution. A regime other than this cannot be called a democracy.
It was the theory of the Jacobins of the French Revolution to reduce the exercise of sovereignty to an elected “National Convention.”
Also in our country, reducing the exercise of sovereignty to the parliament was a feature of the “revolution regime” applied since 1920. It was based on the “unity of powers.” The members of the Independence Courts were not “appointed judges” but “elected representatives,” meaning the deputies.
All the powers belonged to the parliament; there was no other “authorized body.” In practice, it turned into a “National Chief” regime.
There would be people who would say that the concept of “authorized organs” was introduced to our constitutional law by the coups. Wasn’t the concept of a separation of powers introduced by coup constitutions? Are we going to deny this also?
On the matter of principles, we should not ask “who,” but we should ask “how?”
In our contemporary times, sovereignty consists of three powers and is arranged according to the principle of separation of powers.
Reducing the concept of sovereignty to parliamentary majority destroys the philosophy of the principles of rule of law and independence of the judiciary.
I do hope the newspaper stories are not correct.