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Demokrat Anayasa Arayışları
Kış 2009   [ 105. Sayı ]


Searches For Democratic Constitution

Editorial

In the latest periods, after the conflict and big destructive discussions between “judge-politics-army”, it is understood that there is a serious constitution problem in Turkey. The decisions of Constitutional Court about 367 case, headscarf problem and party closing case had caused some discussions about existing constitution in the context of rule of law norms.

The main problem can be described as the misusing of the old constitution tradition which has been one of the main basis of the Turkish modernization and also to make it weak against totalitarian and satist mentality and on the other hand the prepared constitutions were always near the state or satist tradition against individuals. One of the problems which we have to solve is the questions how we will apply a constitution which is including the values of libertarian democracy and how the state based approaches can be interpreted for the advantage of the rights and freedoms of the individuals and it is the basis of the recent civilian constitution discussions. And the other part of these discussions is the factors behind the subject with the historical background and the reasons of lack of consitution tradition which is unique for modern societies.

It is clear that if a country want to have a modern democracy, it also needs a constitution which is appropriate to constitutional goverment tradition, respectful to human rights, protecting the basic rights and freedoms. The other problem is how to stop the efforts and practices to comment the constitution articles freely for restricting the basic rights and freedoms. It is clear that if there is text named as “constitution” in a country, it means that the country has the constitutional government tradition with a modern democracy. One of the questions is how to remove this paradox. The other problem which has to be solved is the “constitutional courts” which is being established as supervisory for protecting the democratic order and its future in West and using these courts against democratic order in our country and its results for the principle of law of state. The problems which has to be solved in the context of constitution in our political system are the efforts for protecting and legalizing the revolution regimes by constitution and making the constituion a tool for transformation the society and building a new society. In this context, it is also important to know how to remove the idea of “building a society” which is usual for authoritarian governments.

Nonetheless, we think that the wievs of Bediuzzaman about constitution which is depending on principle of equity in law, guaranteeing the basic rights and freedoms, depending on real justice and morality and related to reality level more than norm level, may be a modern proposition for new constitution researches.

Considering these facts, we determined the “Constitution” subject as the cover of our 105th volume. As Köprü magazine, with the “Constitution” cover, we wanted to make contribution to new constitution researches and discussions in Turkey. We decided to analyze the subject with concepts of “kanuni esasi, constitution, civilian constitution, act, law, justice, freedom, constitutional court, state, politics, army, society, agreement” and with the light of the following questions:

What is the Constitution? What must be the features of a modern constitution? What are the basic problems of our existing constitution and constitutional law?

Is it possible to mention about a constitution tradition in Turkey? How can we analyze the process of constitution tradition from the Kanun-i Esasi to the present time?

How can we analyze the “rule of law” in the Constitution and its practices in the context of human rights and democracy? How can we analyze our constitution in terms of EU Constitution and in the context of democracy and human rights? How can the EU Constitution make contribution to the new constitution searches?

How can the articles which “even can not be proposed for changing” in the existing constitution be compatible with the principle of “the domination unconditionally belongs to the public”?

What the “aggrement” concept means which is used for constitution? What this agreement means for a modern society?

What is the civilian constitution? What must be the features of a civilian constitution? How can the new constitution researches be analyzed in this context?

What must be the limits and extent of the duties and responsibilities of constitutional courts and similar constitutions in the context of rule of law and human rights?

We appreciate this volume as a signal of the efforts of Turkey in the way of being a state governed by the rule of law and we believe that it will make important contributions to the new constitution searches. While we leave you with the magazine, we are hopeful to be with you again in our next cover, with the title of “Global Crysis and the thoughts of Bediuzzaman about Economics”.

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