Constitutional Amendment Package and 12 September 2010 Referendum in Turkey
The government rushed through reforms that need wide debate and consensus under the shadow of the elections coming next year, which are likely to produce a coalition government. A constitutional package that does not result from a political consensus will most probably complicate the process of making a new constitution in the future. A solid wide consensus would digest a real understanding in democracy should be the grassroots of any constitution to be prepared for today’s and tomorrow’s Turkey. Regarding the existing reform package it is important to stress that the government should avoid actions that could damage the principles of separation of powers and independence of the judiciary. Article 125 to allow officers dismissed by the Supreme Military Council (YAŞ), which frequently cashiers officers suspected of Islamist activism, the right to appeal. In addition, the package proposes abolishing Provisional Article 15 of the 1982 Constitution, which prevents the prosecution of those responsible for the 1980 coup. However, the statute of limitations and the advanced age of the surviving members of the junta make it extremely unlikely that any would actually face trial. Certain preferential treatments for women: Art.10 included emphasizes on “positive discrimination” but the real demand is a clear phrase and actual focus on an "actual equality" instead of emphasizing a "positive discrimination". Article 10 of the constitution to remove the legal obstacles to positive gender discrimination, although there is no indication of whether or not positive discrimination will actually be introduced. Children rights: The new amendment is not enough to protect a single right of children. The state has to protect the children's right to life, to development and accession, the government is not seeing a child as an individual. The terms sexual orientation and sexual identity have not been added to Art. 10 on equality. The AKP once more left the life and rights of LGBTT people to the discretion of judges and prosecutors. The reform package includes a number of other interesting innovations that have not been struck down, like the right of individuals to appeal to the highest court, the creation of the Ombudsman’s office the critic on this development is that it will be established under the Parliament’s presidency, it will not be an independent body. The right to collective bargaining and associate with trade unions shall be granted to civil servants. But there is no right to strike given to civil servants this is an already born dead development! The package proposes changing Article 53 of the constitution to allow civil servants to join trade unions, but stops short of giving them the right to strike.
The package contains no provisions to reduce the national threshold for representation in parliament from its current level of 10 percent. CHP proposed to lower national threshold to 7% but it was rejected by the AKP/ Nor are there any proposals to lifting parliamentary immunity or address the discrimination faced by ethnic and non-Sunni Muslim religious groups. It increases the control of the government and President Abdullah Gül (who is a former AKP politician) over the choice of members of the HSYK and the Constitutional Court, and thus reduces the independence of the judiciary. A real agenda for a new constitution should be composed of: * To decrease the power of the president concerning the nomination of civil servants and diplomats * To dissolve the Board of Higher Education (YÖK-establish by 12 September junta government), to have university rectors elected and to give universities autonomy * The number of the judges in the Supreme Court will be increased and judges should be partly elected by parliament (not merely by the president) * The National Security Council will no longer be an institution mentioned in the constitution * Obligatory religious classes in schools, introduced in the wake of the 1980 coup, would be lifted The proposed package of amendments has fundamental flaws and falls short of addressing democratic deficits. The new constitution should focus on individual rights, exclude any privileges, strengthen parliamentary democracy, and enshrine the principle of separation of powers. The sine qua non condition of a modern and comprehensive constitutional reform is the amendment of the current electoral system and the law on political parties. Changes should urgently be introduced to reduce the national electoral threshold and make primaries mandatory. The 2011 elections should most certainly not be held under the high national threshold unseen in modern democracies. All political parties should contribute to the reform process with their proposals on both the methodology and the substance of the new constitution. Unfortunately, the current Constitutional reform package is not the outcome of a parliamentary consensus. A constitutional package that does not result from a political consensus will complicate the process of making a new constitution in the future. The governing party should be open to new ideas, while the opposition ought to offer concrete proposals that will enrich the debate.
Submitting the entire constitutional package made up of numerous articles on disparate topics to the vote of the people seriously constrain citizens' right of choice. The composition of the Constitutional Court, as envisaged by the constitutional package, whereby 16 of its 19 members are selected by the President of Republic, of which 7 are directly appointed at the discretion of the President, would amplify the influence of the executive branch over the judiciary. Along with the 3 members who will be elected by the parliament, the legislative and executive branches would have appointed the entire Constitutional Court. The supposition that the legislative branch is already under the heavy influence of the executive branch bears the impression that the election of the said three members would also be open to executive influence. The election and appointment mechanism foreseen in the package, coupled with the increasingly politicized nature of the Presidency as a result of direct elections, would destroy the balance and control capabilities of the Constitutional Court when the President, the government and the majority of the parliament are all from the same political party. The power to select members of the Constitutional Court should be divided amongst the President of Republic, the high judiciary, the Parliament and universities, with the high judiciary having the authority to select the majority of the members. The rule of qualified majority should be applied to the election of members by the Parliament. The regulations introduced by the Constitutional package on the High Council of Judges and Prosecutors increases the influence of the Ministry of Justice on the Council. It is particularly notable that the investigation authority of the High Council of Judges and Prosecutors is being subjected to the Ministry of Justice's approval. On the other hand, it should be clarified that the authority given to the Ministry of Justice to "inspect justice services by Ministry's own auditors" does not comprise administrative investigations of judges. This authority should remain with the High Council of Judges and Prosecutors and be used without ministerial approval. The regulations introduced in the package on the High Council of Judges and Prosecutors render the membership of the Minister of Justice and the Undersecretary even more debatable. Regulations that would harm judicial independence make the debate on judicial impartiality meaningless. The subject of judicial impartiality should be addressed separately, outside of the debates on judicial independence.