Pros and Cons of Proposed Constitutional Reform

Hasan ÖZTÜRK
30 March 2010
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Turkey once again debates amending its thirty-year-old constitution. Erdogan government takes a risk only one year away from the national election and announces a constitutional reform package. The package proposes 24 amendments to the constitution.  While public consensus over amending the outdated the 1982 constitution prevails, opposition parties stated that they will not support the package.

The AKP government’s proposals are not adequate and far from being as modern as the other well functioning democracies in the world. However, it is much better when compared to the current constitution. This package has its pros and cons. Opposition parties are right; the package reflects the fears of the AKP government. CHP opposes because of this reason. But, this fact does not render the proposed amendments abortive.


Under the existing political circumstances, AKP cannot initiate propose a new constitution because both opposition parties and bureaucracy strongly opposed AKP’s lead in creation of new constitution. Being aware of this fact, AKP intends to amend the articles that create the political stalemate in the country. Opposition parties accused AKP for attempting to amend the constitution in order to avoid dissolution. It is true that this is what re-sparked the constitutional reform process. It is now obvious that the Chief Public Prosecutor has finished the preparations for the new case to dissolve AKP and he can file the suit anytime. AKP offers amendments necessary to ameliorate the constitution to the extent that it can survive until the next election. In 2007, right after the election victory, AKP presented a draft constitution prepared by a group of respected law professors but it faced strict opposition. AKP, therefore, knows that it cannot write a new constitution despite of the opposition from CHP and bureaucracy. It also knows that it will be dissolved if it stays idle without amending the related articles.


There is a great agreement among scholars, journalists, and ordinary people that the proposed amendments will ameliorate the 1982 constitution. This undebatable view also suggests that these proposed amendments are worse than AKP’s constitution draft announced in 2007. The reform package enhances the personal freedoms and sets higher standards. Let us briefly look at these amendments and then turn our attention to a major defect of the constitutional reform package. We cannot discuss all 24 proposed amendments due to page restrictions. I will discuss the major defect of the package as of now and then talk about some important articles to be amended. 


Major Defect: Threshold
The proposed reform package can be criticized on several grounds. Although the suggested modifications to the Constitutional Court and Supreme Council of Judges and Public Prosecutors are much better than the status quo, they do raise some questions. Restructuring these institutions can spark new conflicts among political parties because these institutions are regarded very critical. Therefore, reaching consensus on how to reform them can be difficult. But I would like to draw your attention to another issue that was left out in the package. Unfortunately, the opposition parties (except Peace and Democracy Party - BDP) do not criticize AKP on this ground. It is the problem of high election threshold.


Let us look at figures from the 2002 and 2007 elections to understand what 10% threshold means. In 2002 election, only two political parties won seats in the parliament. Out of 31 million votes, AKP won 11 million votes and CHP won 6 million votes. So, 14 million voters did not have say in the parliament. In the 2007 election, three parties won seats in the parliament. AKP, CHP and MHP won 16, 7 and 5 million votes respectively. The number of valid votes was 35 million. This time 7 million voters are not represented. This is a simple calculation; this figure goes down with independent candidates. Stability and consistency in the administration of a country is important, but in democracies they are not defended in the expense of fair representation.


Reducing election threshold has been proposed by several circles, including the EU officials for more than a decade. The AKP government’s proposed constitutional amendments do not include lowering the threshold. Current threshold is 10% and even relatively small parties justifiably demand a lower threshold. The most significant consequence of having such a high threshold is a less representative parliament and fewer political parties in this organ. It seems that a referendum will decide fate of this package. On the day of referendum, AKP will need the support from the bases of smaller parties such as Democratic Left Party (DSP) and BDP.


Before finalizing the constitutional reform package, the AKP officials may think about inclusion of another amendment in the Election Law, article 33. Given, the Prime Minister’s previous remarks that emphasize stability and harmony in the government, he will not welcome a proposal that suggests reducing the threshold. Reducing the threshold means more number of parties in the parliament. Erdogan may think that number of left wing parties will increase in the parliament and that will make the things more difficult for him. It is also very likely that number of right wing parties can increase. If Felicity Party (SP) and Great Union Party (BBP) have seats in the parliament, it will be easier for Erdogan to convince these parties about reforms. DSP has already made it clear that it will support the package if the threshold is reduced to 5%.


Another modification to the reform package can be made by proposing lowering election threshold. It will receive support from the smaller parties and marginalize AKP’s main rivals (i.e CHP and MHP). In the referendum, the likelihood of package’s acceptance will increase dramatically. People at AKP’s headquarters should not rush in submitting the package and think more than twice.

 

a) Dissolving political parties will be more difficult (Article 69)
Current constitution reads that the Chief Public Prosecutor of the Republic can file a suit to the Constitutional Court and the latter can dissolve a political party. According to the amendment proposal the Constitutional Court remains the ultimate organ to decide banning political parties. However, the Chief Public Prosecutor should have authorization from a Commission of the Grand National Assembly. This particular article in AKP’s draft constitution prepared in 2007 looks better. The 2007 draft included issuance of a warning to the political party by the office Chief Public Prosecutor prior to file a suit. It is interesting that AKP team left this out because when it was tried in the Constitutional Court two years ago, MPs from AKP repeatedly said that “first, the Prosecutor should have warned us in advance”.

 

b) Scope of military courts will be limited (Article 145)

The 1982 constitution allows military courts to try non-military persons for military offences, or against military personnel on military places. The proposal, however, limits military courts to only military personnel for military offences related to military services and duties. If passed, non-military personnel will not be tried in military courts except during war time. In addition to war time, the current version of the article regards the time of martial law as exceptional as war time. Modification of this article is very important because AKP’s attempt to change this law bounced back from the Constitutional Court. Semdinli case (2005) showed that court decisions change a lot in civilian and military courts. In civilian courts, prosecutor demanded 36 year imprisonment, while the suspects were cleared in the military court.

 

c) Organization of the Constitutional Court will change, number of members will increase (Article 146)

Currently, the Constitutional Court has eleven members and they are appointed by the president. The proposed amendment increases the number of members and diversifies their appointing organs. The package envisages a Constitutional Court that has nineteen members. The Parliament will elect two members to the Court. Decisions of HSYK are not subject to judicial review but the proposed amendments will make them.

 

d) Organization of and number of members in HSYK changes (Article 159)
Supreme Council of Judges and Public Prosecutors (HSYK) currently has seven members including the Minister of Justice and the deputy Minister of Justice. Three members are appointed by the High Court of Appeal and two members are appointed by the Council of State. With the amendment, number of members in HSYK will be 21 and three chambers within the organization will be created. The Minister of Justice and its deputy will continue to be among the members but they will not participate in meetings of the chamber. Their duties will be about administrative affairs. 


e) Decisions of the Supreme Military Council will be liable to recourse (Article 125)
Every year in August, when the Supreme Military Council gathers in Ankara, usually many people are expelled from Turkish Armed Forces. Decisions of this meeting are not subject to judicial review and the amended law will allow expelled personnel to file a suit against the Armed Forces. 


f) Freedom to leave the country will be based on court verdict (Article 23):
According to the current law, a citizen’s right to leave the country may be restricted on the basis of civic obligations or criminal investigation or prosecution. The proposed amendment states that this freedom may be restricted only by a court verdict. The proposal maintains the restriction in the case of criminal investigation or prosecution but repeals the case of civic obligations. The proposal also adds a paragraph to this article and exempts some political acts from being regarded as evidence when determining whether a political party has become the center for the execution of harmful activities to the essential principles of the state. Some acts to be added to the article are “votes cast and statements expressed in the course of parliamentary meetings, the views expressed at the Assembly, and unless the Assembly decides otherwise, repeating or revealing these outside the Assembly”.


The Minister of Justice repeats that this is their proposal and they welcome suggestions. It is likely that the government will take some recommendations from civil society organizations into account and make some changes. However, most probably these changes will be about the articles about public servants’ right to conclude a collective bargaining and agreement.

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