Ulrich Preuss, Mithat Sancar and Mesut Yeğen spoke at TEPAV.

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In the third seminar of the TEPAV Constitutional Experts Seminar Series, Prof. Dr. Ulrich Preuss, Prof. Dr. Mithat Sancar and Assoc. Prof. Dr. Mesut Yeğen talked about coexistence, citizenship and the integrating role of constitutions.

Prof. Dr. Ulrich Preuss from Hertie School of Governance made a presentation on the integrating role of constitutions in divided societies. Preuss started from an institutional framework and drew attention to the correlation between the evolution of constitutionalism and the social and political history. Explaining that US and France constitutions, the pioneers of the period when constitutionalism was born, put emphasis on the sense of "we" and on social integrity and solidarity, Preuss added that this emphasis on "we" excluded a big portion of the society and that wider portions of the society that had been excluded with respect to the right to vote were included as a result of struggles that lasted for more than a century. Preuss went on to say that nationalism emerged concomitant with industrialisation and urbanisation and maintained that there exists a inherent clash between nationalism and constitutionalism. Underlining that the former, unlike the latter, assumes that it is non-political commonalities in contrast to the will to coexist and to make rules to this end that ensures the integrity of a society, Preuss stressed that in each society there are minorities that elope the scope of nationalism. Preuss explained that with the rise of class consciousness in the 20^th century, constitutions were born all around the world whereas the tension between nationalism and constitutionalism prevailed in the era of new nation-states, which appeared with the collapse of empires and naturally involved a number of minorities. Preuss maintained that identities, which had been suppressed during the Cold War, came to fore afterwards and that the universal and inclusive character of constitutions and the notion of universal rights became of more importance in this process.

Preuss said that the literature of political science divides conflicts into two, being the conflicts on dividable/sharable elements such as distribution of income or wealth and on undividable/non-sharable elements as identity. He stressed that the question as to who is a part of a political unit or allegience or who is entitled to rule must be considered under the second group. Saying that constitutionalism in the 21^st century can no longer be considered to rely on the sense of "we" as was in the early stages of its evolution, Preuss maintained that in this sense multiculturalism created new questions to be answered for constitutionalism and that demands of minorities for equal citizenship turned into claims of the recognition of their identity.

Assoc. Prof. Dr. Mesut Yeğen from Middle East Technical University stated that citizenship is critical in encouraging the members of a political community for participation in the process to determine the destiny of the community; in furnishing them with rights against the political authority; and in creating an integrity and the sense of "we"; i.e. a sense of belonging. Yeğen went on to say that citizenship is ideally defined by the connection to a territory and adherence to a jurisdiction; i.e. being resident in a certain location and being loyal to the constitution. Underlining that the Rescript of Gülhane and the following 1876 Constitution brought the idea of citizenship in circulation for the first time mentioning the ideal and guarantee for furnishing everyone with equal rights irrespective of their membership of any religion or sect, Yeğen said that with the Rescript, which created the idea of citizenship akin to the ideal case, those living on the territory of the Ottoman Empire turned into citizens from rayahs; rendering political rule and will subject to legal rules.

Yeğen explained that although the 1921 Constitution did not have a specific provision for citizenship, 1924 Constitution wanted the citizens of the Republic to be members of an ethno-cultural community and categorized them under three groups on the basis of the language they spoke: those who already are Turks (Muslim people speaking Turkish), Turks-to-be (Muslim people not speaking Turkish) and non-Muslims (those who cannot become Turks). Emphasising that therefore a concept of citizenship based on territoriality and jurisdiction failed to be sufficiently developed, Yeğen said that this situation, while different in wording, prevailed in terms of meaning and perception in the following constitutions.

Prof. Dr. Mithat Sancar from Ankara University argued that constitution making is not the product of a social contract but rather a product of social conflicts or certain impositions. Comparing country cases for constitutional making after military interventions and the stance of these constitutions against military interventions, Sancar underlined that even in the case of Spain or South Africa where constitutions are considered to be the product of social consensus, big prices were paid for the consensus or compromises were made.

Touching upon the difference between the weak politics defended by liberalism and strong politics emphasized by democracy, Sancar underlined that constitutions are products of conflicts and the duty of constitutions is to highlight how these conflicts shall be overcome. Explaining that pluralist societies cannot be immune from conflicts, Sancar stated that conflict and disintegration are different concepts, that democratic systems are nourished by political conflicts, and that a society can be immunized from conflicts only under a totalitarian regime. Saying that in the Republic of Turkey all constitutions had a tendency towards conflict and exclusion, Sancar stressed that this hit the peak with the 1982 Constitution considering its attitude against democracy and lack of reconciliation. Prof. Dr. Sancar emphasized that what Turkey needs is providing a democratic solution to conflicts over ethnicity and religion and that the consolidation of democratic processes will prevent usual conflicts to turn into disintegration.