The Democratic Legitimacy of Constituent Referendum(s) in Constitution-Making Process Within The Scope of Turkish Constituent Referendum Experiences

Abstract

ABSTRACT The referendum experiences of each state vary according to their democratic background, development, and welfare level. Accordingly, it becomes hard to adopt a uniformed approach towards the issue and necessitates questioning the democratic value of each practice within itself. Although a referendum is a tool for reflecting the people’s will, it may not necessarily take place in every case. Constituent referendums differ from other types of referendums in that the constituent power is not bound by any rule of law. In view of this, the democratic value of the constituent referendum has been chosen to be examined in this article, rather than the democratic value of referendums in general. This article focuses on the relationship between the constituent referendum and democracy as a basis and questions whether constituent referendums are indeed a genuine tool of democratic constitution-making and whether they are sufficient to secure democratic legitimacy for the constitutions. Despite the fact that at first glance, constituent referendums tend to have their sights on a democratic goal, the practices reveal that the outcome is not necessarily in accordance with the intended goal. Particularly, the adoption of the 1961 and 1982 Turkish Constitutions has shown that this method is not sufficient in terms of ensuring democratic legitimacy. Therefore, the issue has been evaluated specifically in relation to the constituent referendums that ensured the adoption of the 1961 and 1982 Turkish Constitutions. In this study, the relationship between the constituent referendum and the constitutionmaking process is discussed in a theory-oriented manner in the first three sections, and two important case analyses selected from Turkish constitutional law are included in the following sections. As a consequence, it has been concluded that constituent referendums, when held in antidemocratic settings, are incapable of ensuring democratic legitimacy for constitutions and thus are not necessarily a genuine instrument of democratic constitution-making.