01.11.2026 19:01
Presidential Chief Advisor Mehmet Uçum argued that the Grand National Assembly of Turkey, as the representative of the people, has the authority to make a new constitution. Stating that while preparing the new constitution the Assembly is not bound by the rules of the existing constitution, Uçum claimed that the Constitutional Court (AYM) cannot supervise this process in any way. Uçum said, "The Assembly's being the representative constituent will is a requirement of the obligation to submit the constitution it will make to the approval of the people, regardless of with which majority it adopts it."
Presidential Chief Advisor and Deputy Chair of the Presidential Legal Policies Board Mehmet Uçum wrote about the authority of the Grand National Assembly of Turkey (TBMM) to make a new constitution as the representative constituent will.
Uçum, arguing that Parliament can make a new constitution in its capacity as representative of the people, stated that the distinction between primary and secondary constituent power used in constitutional law cannot be accepted as an immutable legal rule. Opposing the treatment of constitutions prepared during coup periods as untouchable, Uçum emphasized that the will of the people must be decisive in preparing the new constitution.
In his article, Uçum also addressed the legal bases for making a new constitution and cited Turkey's 1924 Constitution and the draft constitution submitted to a referendum in Chile in 2022 as examples. Uçum stated that the new constitution to be prepared must take into account Turkey's historical and social accumulation, democratic achievements, and fundamental rights.
One of the prominent assessments in Uçum's article concerned the authority of the Constitutional Court in new constitution work. Stating that the activities carried out by the TBMM under the current constitution are subject to Constitutional Court review, Uçum argued that the new constitution work to be carried out by Parliament in the capacity of representative constituent will on behalf of the people would remain outside such review. For this reason, Uçum noted that the Constitutional Court has no authority to review the new constitution-making process even in terms of form.
THE PRIMARY AND SECONDARY CONSTITUENT POWER THESIS
The full text of Uçum's article titled "The existence of the Grand National Assembly of Turkey's authority to make a new constitution is beyond debate!" is as follows: "It is worth recalling once again this issue that we have addressed in the past, at a time when the new and civilian constitution agenda has come to the fore. The authority of the Grand National Assembly of Turkey (TBMM) to make a new constitution arises from the mandate given by the people, who are the primary constituent will. The people, the sole legitimate owner of national sovereignty, have the right and power to make a constitution. Claiming that a constitution made by coup plotters, who are an illegitimate and unlawful power, cannot be annulled means rejecting national sovereignty and democracy.
As is known, in doctrine, a view that is largely outdated calls the power that makes a new constitution for the first time or subsequently the primary constituent power. It is argued that once a constitution has been made, elected democratic parliaments have only the authority to amend the existing constitution. Within the framework of this view, according to a constitution made by a primary constituent power characterized by unlawfulness and unlimitedness, democratic parliaments, which are "constituted power," can only be secondary constituent power and cannot exercise primary constituent power.
First of all, let us emphasize that the primary constituent power thesis can only be a positive finding based on practice up to a certain point, but it cannot be asserted as a normative finding, because the fact that something has happened many times, especially in social and political practice, does not mean that it will happen that way afterward. Therefore, it cannot be said that every positive finding produces a norm that also binds the future. Second, every form of realization of primary constituent power, especially those that emerged through coups, cannot be considered legitimate. Accordingly, it is understandable to assert the primary constituent power thesis as a positive finding, but asserting that this thesis is normatively valid and, in this context, legitimizing every kind of primary constituent power is a highly problematic approach. Seeing as legitimate and untouchable the constitutions made by centers that seized power in the legal vacuum that emerged during wars, coups, and processes of forced fragmentation of countries, within the framework of examples of extraordinary-period primary constituent power, is the essence of these problems.
Despite these problems, there are those who argue, relying on the primary constituent power view, that the TBMM does not have the authority to make a new constitution. According to them, the authority to make a new constitution belongs only to the sovereign that emerges as a result of wars, coups, and the forced fragmentation of countries. This approach means being dragged into an anti-democratic and anti-people position. Insisting on this view inevitably leads to being driven to the point of legitimizing violence and chaos. The outcome this view will ultimately produce is an elitist and reactionary-fascist approach that does not recognize the people's will to make a constitution. Furthermore, calling illegitimate, force-based rules legitimate law, and accepting the rules of power without legitimacy as legitimate law, is another problem.
Legitimate law consists of rules produced in an environment where the reasonable, not pure force, prevails. For this reason, a distinction is made between the rule of law and the rule of statute, that is, whether a rule is in force and applied and whether it is legitimate are completely different matters. Of course, it is a reality in political history that power holders emerging in connection with destructive acts such as coups, wars, and terrorism lay down rules, but it is never acceptable to produce concepts that are claimed everyone must accept from this reality and to grant these concepts absolute immunity. The concept of extraordinary-period primary constituent power, when one looks at the practices and examples cited as its basis, is exactly such a thing, that is, a practice that does not allow the production of a valid concept and norm.
Independent of the factual situation, within the framework of purely speculative thought, the distinction between primary and secondary constituent power may have a scientific aspect. This aspect concerns determining the limits of the legitimate power that makes a new constitution for the first time or subsequently. At this point, historical, social, and political dynamics determine the limits of primary constituent power. Especially in the subsequent process of making a new constitution, the concept of primary constituent power may theoretically serve as a reference in terms of not being bound by current law. Indeed, the concept of ordinary-period primary constituent power arose from this need. However, one also encounters views that evaluate the distinction between primary and secondary constituent power through "what is" and make untouchable—and even worse, legitimize—the power of forces that made constitutions through the people-hostile practices of the past and the constitutions they made. According to this approach, coup plotters can be tried, but the constitutions they made, even if their content is completely changed, continue to exist forever as a shell; that is, according to them, without war, coup, and fragmentation, without an unlimited power emerging as a result of these, and without a legal vacuum arising, a primary constituent power that will make a new constitution never emerges. This perspective is an approach that either condemns a country and its people to a coup constitution or presents violence and chaos as the only way. At the same time, it is impossible to accept such a view, which is a positive-law fetishism (fetishist ideology).
THE TBMM'S AUTHORITY TO MAKE A NEW CONSTITUTION
The Republic of Turkey, which has resolved in favor of democracy and has kept the making of a new constitution continuously on the agenda for decades, is capable of making a new constitution through the TBMM, where the will of the people manifests in accordance with the principle of national sovereignty. There are many functions in the TBMM (Grand National Assembly of Turkey). Among these, the functions of enacting laws and amending the current constitution are “institutional,” that is, legal functions “defined by the current constitution.” However, there is another function in the TBMM that encompasses natural law but occupies a place above positive law. This function is “sociological.” The TBMM is the highest authority to which the people, through the votes they cast in their capacity as voters, grant representative authority, and this is determined directly and empirically. In other words, it is not necessary to look at a legal rule to establish that the TBMM is the place where the people are represented. With this feature, at the moment the TBMM demonstrates its will to make a new constitution, it is not bound by the norms of the current constitutional order with respect to making a new constitution, because after this decision, in terms of making a new constitution, it is no longer an organ “established” under the old constitutional order but a representative constituent will exercising a function of social and political legitimacy.
Indeed, Article 14 of the 2012 Constitutional Reconciliation Commission Working Principles did not take the 1982 Constitution as a reference in the method of enacting the new constitution but based it on the will of political parties, the legitimate representatives of the people. Such a decision is a declaration that a representative constituent power is being exercised on behalf of the people. In other words, the TBMM has been tasked and authorized by the people, who are the primary constituent will. The will of the TBMM is not merely a will of power established by the current constitution. The will of the TBMM is not merely a normative will arising from constitutional norms. The will of the TBMM is also a “supra-normative representative will” arising from the social and political representation of the people—the primary constituent people—who existed before the current constitution and will continue to exist after it.
THE SOVEREIGNTY NORM AS A PRINCIPLE ABOVE CONSTITUTIONS AND THE PRINCIPLE OF LEGITIMACY AS AN UNWRITTEN NORM
The provision that sovereignty belongs unconditionally and without restriction to the nation can never be regarded merely as a constitutional norm. This provision is the founding principle of the Republic. This principle cannot be limited by any constitution. This principle is a sovereignty norm above constitutional norms. In a sense, it is a founding norm that also constitutes the basis of constitutions, forming the spirit, fundamental philosophy and source of legitimacy of written constitutions, and it has the character of a fundamental norm. Constitutions lay down rules regarding the manner in which the principle of sovereignty is exercised, but they cannot prevent the nation from exercising sovereignty as a supra-constitutional norm and a fundamental norm. Indeed, in doctrine this matter has been expressed as follows: “The answer to the question of which organ will make the constitution and by what procedure depends on the answer to the question of in whom sovereignty resides. For whoever holds sovereignty is also the one who will make the constitution.”
At this very point, while the nation exercises its power to make a new constitution directly and in accordance with the principle of sovereignty, the question of how the acquired rights of certain persons, segments or vulnerable groups will be protected without the current constitutional guarantees can be discussed. It may also be asked, “How will historical and national sensitivities be protected?” The answer to these questions is clear: historical, social, political and legal accumulation is the fundamental guarantee. Under normal conditions, no new constitution can be made by disregarding the historical and national characteristics, democratic achievements and accumulated rights of society. The “principle of unamendability,” which is the guarantee of continuity, is also a principle to be taken into account in this context. It is practically impossible for a new constitution-making process that does not take continuity into account to be adopted by the people. A striking example of this is the new constitution rejected in Chile in September 2022 with 62 percent of the vote. Yet the Chilean people had supported the making of a new constitution in 2020 with 80 percent.
On the other hand, the provision “No person or organ may exercise any state authority that does not derive from the Constitution” cannot be interpreted as a limit imposed on the nation’s direct exercise of its right to sovereignty. The prohibition is imposed not on the nation but, as is clearly understood from the provision, only on persons and organs. The nation’s direct exercise of sovereignty and its granting to elected representatives the task of a representative constituent will above the constitution can in no way be prohibited. From another perspective, the concept of “state authority” in the provision means the authority to perform secondary constituent power acts. Therefore, the nation’s acting as the primary constituent will on the basis of the principle of sovereignty falls outside the scope of the provision, because eliminating or limiting, on any ground or interpretation, the primary constituent will of the people, who hold national sovereignty, in any ordinary or extraordinary period is a violation of the sovereignty norm. For this reason, it is not regarded as legitimate for various power centers in a country to seize power through coups, wars or chaos. Likewise, in ordinary periods, imposing limits on the primary constituent will of the people and the representative constituent will of the parliament, and subjecting these wills to a hierarchy below the illegitimate constituent power wills of extraordinary periods, is again a violation of the sovereignty norm and can never be accepted.
If we continue, and approach the matter from the perspective of legitimacy, the will of the people, who hold national sovereignty, is itself the supreme unwritten norm of legitimacy. The source of the legitimacy of positive norms, that is, of legal legitimacy, is political and social legitimacy. The will of the people confers legitimacy on politics. The political institution, which derives its legitimacy from the people, also produces law and sets norms through the elected parliament. The result that social and democratic legitimacy produces with respect to new constitution-making is the generation of the concepts of primary constituent will and representative constituent will, which are much stronger than the concepts of primary constituent power and secondary constituent power and can be defended even from a normative perspective.
“PARLIAMENTS ARE OBLIGED TO TRANSLATE THE POLITICAL CONSTITUTION INTO A LEGAL CONSTITUTION; THE PEOPLE WILL DECIDE WHETHER THIS TRANSLATION IS CORRECT”
Today, the primary constituent will (the people) has emerged as a much stronger alternative to primary constituent power, and the representative constituent will (a parliament established through democratic elections) as a much stronger alternative to secondary constituent power. The concept of representative constituent will, unlike the concept of secondary constituent power, points not only to the power to amend the constitution but also to the power to make a new constitution, provided that it is submitted to the approval of the primary constituent will.
In this context, when looking at new constitutions made in ordinary periods, the 1924 Constitution from our own history is important first. At a time when the 1921 Constitution was in force (under conditions where there was no legal vacuum) and as the power established under that constitution, the TBMM made the 1924 Constitution. In terms of world examples, the constitutions of Denmark (1953), France (1958), Sweden (1974), Spain (1978), Brazil (1988), South Africa (1996), Poland (1997), Finland (1999), Switzerland (1999) and Hungary (2011) draw attention. As can be seen, in democratic systems, making a new constitution in an ordinary period has become established as a legitimate, democratic and legal process. Indeed, this factual situation is also the reason why the thesis of “ordinary-period original constituent power” is increasingly adopted in doctrine. The thesis of ordinary-period original constituent power essentially means accepting that the people are the original constituent will and that elected assemblies are the representative constituent will. The fact that the assembly is the representative constituent will is a requirement of the obligation to submit the constitution it will make to the approval of the people, regardless of the majority by which it adopts it, because elected assemblies have the power to make a new constitution as representative constituent will, not as original constituent power. For this reason, the thesis of ordinary-period original constituent power is open to criticism for ignoring the representative character of the assembly (whether the ordinary assembly or a constituent assembly elected for a new constitution) or for attributing originality to the assembly. Instead, addressing the matter through the distinction between original constituent will and representative constituent will is conceptually much more accurate. Ultimately, elected assemblies are tasked with converting the political constitution, which the people have already made through their conceptions and practices regarding what kind of political system they want to live in, into a legal constitution. Then the people will decide whether this conversion is correct.
“NO DECISION OR ACTION IN THE NEW CONSTITUTION-MAKING PROCESS CAN IN ANY WAY BE SUBJECT TO CONSTITUTIONAL COURT REVIEW”
In light of these explanations, the GNAT acquires a dual character in the new constitution-making process. One is its character as “constituted power” under the current constitution. The other is its character as “representative constituent will” commissioned by the people, who are the original constituent will. In the new constitution-making process, the GNAT simultaneously performs the functions required by these two characters separately within their own spheres, and there is no obstacle to this. Accordingly, while the GNAT exercises its powers as constituted power under the current constitution in the new constitution-making process, it will be subject to Constitutional Court (CC) review; however, while it carries out the new constitution-making process as representative constituent will, it will not be bound by CC review, because there are two separate spheres and two separate characters.
Therefore, even if the GNAT prefers to make the new constitution according to the procedure in Article 175 of the current constitution, this does not give the adoption of the new constitution the status of a constitutional amendment, nor does it activate the CC’s power of formal review. The GNAT merely adopts this procedure in its capacity as representative constituent will. If it deems necessary, the GNAT can initiate the process by a parliamentary decision on this matter. It can even enact a law on the method of making the new constitution; moreover, instead of an explicit act, the GNAT can also reveal this will through an implicit decision by conducting the new constitution-making procedure according to the principles in Article 175. It goes without saying that the explicit or implicit decision, or the law, and ultimately the new constitution to be adopted, will not be subject to CC review even formally, because the activities of the GNAT concerning the new constitution are not activities of constituted power under the current constitution and are therefore outside the review of constitutional jurisdiction, which is an organ of the current constitution. In other words, throughout all these processes, there are decisions taken by the GNAT outside the existing norm. Therefore, no decision or action in the new constitution-making process can in any way be subject to CC review.
In conclusion, after the GNAT’s power to make a new constitution is accepted, arguing that the new constitution to be made will be subject to formal review—even if not substantive review—by the CC, which is an organ (constituted power) of the previous constitution, would be an absolute contradiction. There are two options: either one must defend the view that “the GNAT cannot make a new constitution; it can only make constitutional amendments,” which is contrary to the principle of sovereignty, the will of the people, and democratic legitimacy. In this case, the CC can already formally review constitutional amendments. Or one says that “the GNAT has the power to make a new constitution as representative constituent will on behalf of the people, who are the original constituent will.” In this case, too, the CC as an institution remains entirely outside the GNAT’s new constitution-making process; however, the views of members of the higher judiciary, including CC members, on the new constitution can of course always be sought, provided that they are of an advisory nature.
Meanwhile, views such as “if the GNAT makes a new constitution, the CC acquires the power to review the new constitution even substantively, let alone formally” are now the height of futile endeavor. Arguing that the CC, which can review even a constitutional amendment only formally—that is, is subject to a prohibition of substantive review—can substantively review the new constitution to be made by the GNAT means accepting the existence of an oligarchic constitutional review regime in place of the Republic. Such a view would have no value. ”
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