In the jungle of shouting matches, labeling madness, below-the-belt rhetoric, borderline racism, pure dogma and scholastic thinking, it is even tougher to design a liberal position on the value of a “yes” vote. The difficulty is that, as I have experienced in more than enough cases throughout the summer, even the most learned affiliates of the “no” camp, or the boycotters, act impatiently and are unwilling to discuss the very matter to be voted on: the reform package itself.
Those who cut it short by saying “I do not like the Justice and Development Party [AKP] and so I shall vote ‘no’” are the most honest ones. The problem in establishing a civilized debate without voices being raised is the others, who cynically refer to areas that the limited package does not cover, or resort to sheer concerns that the judiciary will be subordinated to the current government.
One of the liberal experts is Professor Serap Yazıcı (Bilgi University), whose assessment of the referendum package -- which she did for the liberal think tank the Turkish Economic and Social Studies Foundation (TESEV) -- is now out for reading. Being cautiously critical of some parts of the reforms, Yazıcı convincingly argues that, if approved, changes to the Constitution will contribute to the spirit of discussing and adopting a brand new one, strengthen the rule of law further, and help speed up democratization. She finds that the package adds a number of new rights to the Constitution, expands some of the rights already existent, introduces positive discrimination as a new constitutional right, and enhances the guarantees of the rule of law -- lifting impunity in some parts of the bureaucracy and judiciary.
According to Yazıcı, although insufficient, the package brings the Constitutional Court closer to its modern counterparts elsewhere and aims to reconstruct the criticized Supreme Board of Judges and Prosecutors (HSYK) in sync with models implemented in the (democratic) world.
The most interesting part of Yazıcı’s report is at the end, where she responds to some major FAQs about the reform in the high judiciary, symbolized by the Constitutional Court and the HSYK.
On the changes to the method of electing judges in the court, Professor Yazıcı is most critical: It would be much better, she argues, if Parliament is given powers to elect them in a way that would project the will of the voters, as practiced in Germany or Hungary, or, although different in nature, in France. Despite that, she sees progress in the detail that Parliament will have a say in the election of three of the 17 judges, as envisaged. She disagrees with the criticism that the package enhances the powers of the president in the composition. The number remains the same in total, she argues.
On the HSYK reform, Yazıcı is positive: Referring to the figures of the EU on the high number of judges and prosecutors, she thinks it is positive that the overall number of members, reflecting the swollen corps of judiciary staff, will increase from five to 22. This will at least weaken cooptation and discrimination within, she believes.
How about the preserved position of the minister of justice and the undersecretary of the ministry within the HSYK? Yazıcı reminds critics of the point that the Venice Commission did not find the existence of such a position wrong, but adds that the minister and his deputy will have radically stripped powers in the three sections the HSYK will be divided into. “The envisaged changes … address the massive criticism that has been directed at the board in the past 30 years,” she says.
Would consensus not be better? Yazıcı’s response is clear: Although the opposition has constantly talked about a new constitution, it as a whole refused to participate in parliamentary efforts, to influence the AKP to include more encompassing content.
And, finally, it may be healthier to bring the package not as a whole but in fragments to a vote, would it not? Referring to Article 175 of the current Constitution and the Venice Commission’s Code of Good Practice in Referendums, Yazıcı sees no basis to the arguments that Parliament cannot present “internally linked” reforms in the referendum as a whole because, she argues, the changes are all about human rights, the rule of law and standards of democracy, linked similarly in the EU’s 2009 Progress Report.
The assessment is available on TESEV’s website. What makes it especially valuable -- not only because Yazıcı is one of the most impartial constitutional experts and an excellent academic, but also, as part of the Özbudun Commission that prepared a full draft (later shelved) in early 2008 -- she has not let any bitterness come in between and blur her judgment, which shines with a very cautious optimism for the future, not with overjoyed partisanship.
