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With the fall of the Iron Curtain and the dissolution of the Soviet Union, liberalism appeared to become the only game in town. The political cataclysms of the late 1980s triggered a wave of scholarship in political science and constitutional law on the prospects of political change. In particular, constitutionalism, constitution making, and constitutional politics became dominant topics accompanying the debate on transformations in the socialist states of Eastern and Central Europe, and later South Africa and Latin American countries. The enthusiasm of the historical moment made most contributions to this debate focus on the conditions that make transformation (i.e., constitutionalization or re-constitutionalization) successful. As most transitions were from some sort of authoritarianism or autocracy to democracy, the question at the heart of scholarship has been how to successfully constitutionalize a liberal democratic state.
Fundamental rights and freedoms constitute the majority of agreed articles in the draft constitution produced by the Constitutional Conciliation Commission ‘Anayasa Uzlaşma Komisyonu, AUK’. This chapter analyzes the content of these articles and seeks to explain why the AUK was able to achieve more consensus on these than on other provisions ‘e.g., principles of state organization’. It argues that constitutional borrowing, both horizontal and vertical, served as an inspiration and consensus-achiever in the discussions. The agreed draft text contains provisions that are either constitutional novelties or offer more far-reaching protection than the existing constitutional framework. We particularly emphasize the normative authority the European Convention on Human Rights enjoyed in the deliberations and the role of human dignity as a foundational constitutional norm “borrowed” primarily from the German Basic Law. The chapter concludes that the draft chapter on fundamental rights and freedoms was neither an unequivocal success story nor a complete failure. Nevertheless, the constitution-making process remains a missed opportunity for democracy in Turkey.
This chapter provides a systematic analysis of the failure of popular constitution making in Turkey. Based on the literature and case studies, the chapter begins with elaborating theoretical premises of inclusive and democratic constitution making. Operationalizing the theoretical benchmarks established, the chapter shows that past constitution-making processes in Turkey have not even satisfied minimal conditions of popular constitution making, that is, direct and free election of a constituent assembly through all citizens. Against this background, it is indeed surprising that the 2011–2013 process was designed to meet maximum conditions of popular constitution making ‘e.g., election of MPs as constitution makers, public consultation before and after drafting’. Analyzing the 2011–2013 process, the chapter elaborates that constitution making did not live up to the promise of an inclusive and democratic process. It explains the reasons for failure and demonstrates that parties were unable to overcome deep disagreements over contested issues ‘e.g., state–religion relations, citizenship, government system’.