Author
Bağçeci, Hamide
Publication Date
2022-12-01
Publication Place
-
Sciendo
Subject
Constituent power, Constituent referendum, Constitution-making, Democratic legitimacy, Plebiscite, Referendum
Type
Periodical
Language
English
Digital
Yes
Manuscript
No
Library
Özyeğin University
Library Asset ID
2029-0454
Record ID
17d11ab7-b8d1-4f94-8745-aede116eb237
Library Location
Law
Date
2022-12-01
Sample Text
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.
DOI
10.2478/bjlp-2022-0010
Cilt
15
