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This chapter analyzes the drafting process of the constitutional amendment rule ‘Art. 146’ in the Constitutional Conciliation Commission ‘Anayasa Uzlaşma Komisyonu, AUK’ from 2011 to 2013. Examining the party proposals for the amendment-making rule and the minutes of the debates, the chapter illustrates that party proposals for Article 146 varied greatly with regard to the degree of flexibility and rigidity. In the end, the draft article produced was more flexible than the most rigid proposal and more rigid than the most flexible proposal. It largely reiterated the amendment-making rule of the 1982 Constitution after amendment in 1987. Despite the availability and active involvement of constitutional law experts who provided theoretical grounding to the arguments advanced by the AUK members, the debate surrounding the formulation of the amendment-making rule was dominated by future concerns and past disappointments. The fact that amendment making has been used in the past to impose changes to the political system and constitutional structure and the fear that amendment making could be used for power centralization and contribute to autocratization prevented full consensus.
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.
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