The Unamendability of Amendable Clauses: The Case of the Turkish Constitution
Final version appears in An Unamendable Constitution? Unamendability in Constitutional Democracies, Richard Albert & Bertil Oder (eds) (Springer, 2018)
24 Pages Posted: 17 Jun 2020
Date Written: October 1, 2016
Although it has not been constitutionally empowered to do so, the Turkish Constitutional Court has exercised substantive review of constitutional amendments under three different constitutional settings, striking down amendments to the normally amendable provisions of the Turkish constitution. In doing so, it relied upon the unamendability clauses. The Court created an intra-constitutional hierarchy based on the unamendable clauses and exercised substantive review of constitutional amendments to check whether amendments violated the principles laid down in the unamendable clauses. This chapter looks at whether this judicial practice of identifying a constitutional core and exercising substantive review of constitutional amendments on this basis can find a justification in Carl Schmitt’s distinction of the constitution and constitutional laws. In the first part, it argues that while Schmitt’s distinction, which is based on democratic decisionism, might justify the Court’s reasoning that there are limits to constitutional amendment; his understanding of the guardian of the constitution is incompatible with the judicial oversight of the constituent decision. What makes Schmitt’s radical democratic constitutional theory consistent is his conception of the popularly elected head of state as the guardian of the constitution. Such conceptual justification of constitutional unamendability is not compatible with judicial review of constitutional amendments. In the second part, the chapter analyses all of the unamendability cases the Turkish Constitutional Court has decided and explains the Court’s arguments with regard to its authority over constitutional amendments. The chapter concludes with explaining that even if a Schmittian account of the constitution is adopted, the unamendability clause in the Turkish constitution remains a merely political and not a judicial check on the constitutional amendment power.
Keywords: Carl Schmitt, decisionism, the guardian of the constitution, Turkish Constitutional Court, unamendability, unconstitutional constitutional amendments
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