Özet:

Debates about “constituent power”, “constituent assembly” and “referendum”, which have emerged and developed in continental Europe and Anglo-Saxon countries, revolves around political theory beyond pure and restrictive understanding of law. Meaning self-governance of people, democracy, regards constituent power, or sovereignty, as residing within people. Contrary to general understanding, however, discussions in Turkey ignore the political aspect of constitutional law, thus turn into a tutelage approach underlined by anti-democratic and status quo favoring features. Even some jurists supported this view which is held by self-appointed guardians of founding principles and tutelage favoring elites. These elites try to present all constitutional arrangements as illegitimate including creation of a new constitution via democratic means in accordance with demands of the people. Nevertheless, it is forgotten that through referendum, particularly, and other democratic channels, the solidification of phenomenon of power, which is an abstract term, with representatives of people is one of the fundamental components of democracy. In this respect, it is concluded that as a legal document designating state’s legal status and a founding political document designating essential organs of state and the relations between them, constitution is not only a product of extraordinary and extrajudicial settings, a new constitution can be created via democratic and peaceful means too and this way is more legitimate than the former in terms of being democratic.

Anahtar Kelimeler: