How to read the draft constitutional amendments
by
Yusuf Şevki Hakyemez*

As is known, the Constitutional Court’s decisions to ban certain political parties are heavily criticized both in Turkey and in the international arena. Actually, the argument that these decisions, which significantly impair democratic characteristics of the regime, largely rely on certain constitutional provisions has long been regarded as proof of the need for constitutional amendments.

In this context, the package suggests that a paragraph should be inserted into Article 69 of the Constitution to cancel the current practice of the chief prosecutor of the Supreme Court of Appeals acting on his own to launch a closure case against a political party and introduces a system in which he files a request with Parliament, where a commission is set up comprising five members from each political party that has a parliamentary group. This commission is then to be convened under the chairmanship of the parliament speaker and must decide whether to approve the request to launch a closure case with a two-thirds majority through a secret ballot vote.

This proposal is more appropriate than the current practice and seems to have been prepared by taking into consideration the recommendations of a report issued by the Venice Commission specifically concerning the regime of banning political parties in Turkey in 2009. Moreover, by allowing the political parties with parliamentary groups to be equally represented in the commission that would accept or reject the prosecutor’s demand to launch a closure case, the package aims to ward off criticisms that the ruling party can block such a request against itself with its majority.

Furthermore, this amendment does not render it impossible for a party to bring a closure case against itself if it is really needed to do so. However, as a major defect in terms of freedoms for political parties in the package, it can be noted that the exhaustive list of prohibitions intended for political parties in Article 68 of the Constitution has not been touched. Yet, this list represents a major headache as regards freedoms or latitude afforded to political parties in Turkey.

Here, the principle of shutting down a political party only if it engages in violence as envisaged in the criteria forwarded by the Venice Commission should be introduced. Thus, during the revisions of the draft, it should be taken into account that it is insufficient to try to protect the freedom of political parties by introducing a parliamentary approval system for closure cases and that the main problem is the abundance of bans and prohibitions set for political parties as well as these bans not complying with the norms and standards of Western democracies.

Concerning the composition of the HSYK, the package suggests increasing the number of members on this board and for them to be elected through diverse methods as well as that the board have its own secretariat. However, the package does not list Parliament among the sources that are to elect members to this board, and the membership of the justice minister and the Justice Ministry undersecretary continues.

Some major defects

Proposals such as allowing courts of first instance to elect some members to the board, the introduction of wider representation to the board and granting the president the right to elect certain members who are not members of the judiciary comply with the established practices in European countries as well as the principles emphasized by the Council of Europe. Still, the package’s exclusion of Parliament from electing part of the HSYK members is a major defect that is in breach of European standards. Various reports issued in Europe have pointed out that it is of vital importance for democratic legitimacy to ensure that Parliament elects some members of this board.

In this context, the masterminds behind the package might be assuming that need for democratic legitimacy can be compensated with provisions concerning the president electing four members and the continuance of the membership of the justice minister and the Justice Ministry undersecretary. However, in our opinion, Parliament directly electing part of the members of the HSYK will be more appropriate as regards considerations of democratic legitimacy.

The third important aspect of the package relates to the composition of the Constitutional Court. It is essential for the Constitutional Court to be restructured due to its heavy workload. A report prepared by this court even proposes that the number of the court’s members should be increased to 17 and that two chambers be established. The government’s package provides for the Constitutional Court to have 19 members, of which three should be elected by Parliament while six should be elected by the president from among the members of the high courts, three from university lecturers, five from high-ranking executives, lawyers and Constitutional Court rapporteurs and two from university graduates.

Here we can see that the intention is to diversify the composition of the court, increase the number of members and grant the president a strong hand in selecting the members. It is a significant deficiency of the package that it does not allow Parliament to directly elect members from among qualified people. Given the fact that all or an important part of the members of the constitutional courts in many European countries are elected by Parliament, it should be noted that the package’s proposal concerning this court’s composition does not play nice with democratic standards. In this regard, the provisions of the 1961 Constitution concerning Constitutional Court membership are more appropriate than the current proposal. The 1961 Constitution provided for two-thirds of the members of the Constitutional Court to be elected by Parliament.

However, restricting the tenure of the members of this court to 12 years without the possibility for re-election is considerably appropriate in terms of the functions of constitutional law. On the other hand, given the fact that the package also makes it easier to individually petition the Constitutional Court -- known as a constitutional complaint, increasing the number of the court’s members will mitigate the workload problem. I still think the court’s workload problem can be tackled more effectively if the court is restructured to accommodate two chambers and lawsuits seeking cancellation or objection are heard by chambers instead of the general assembly. Finally, limiting the scope of the constitutional complaints to the rights covered by the European Convention on Human Rights conflicts with the principle of the integrity of rights.

Notwithstanding the foregoing, removing certain bans concerning judicial review, narrowing the jurisdiction of military law and introducing a “public monitoring” concept are positive steps toward the full implementation of the rule of law. Given the heavy workload of the judicial institutions in the country, the “public monitoring” institution may act as a form of non-judicial dispute resolution by which individuals may settle their disputes with the administration, thereby minimizing the victimization of individuals.

In conclusion, while it has certain deficiencies, the package of constitutional amendments made public by the government obviously contains arrangements that will contribute positively to the country’s progress toward fully implementing the rule of law. However, completely excluding Parliament, unlike the practice in Western countries, from electing members of the HSYK and largely from electing the members of the Constitutional Court cannot be explained except with reference to the persistent influence of the bureaucratic tutelary mentality in Turkey. Nevertheless, in its current form, the package will make significant contributions to the settlement of existing constitutional and structural problems of Parliament. Perhaps, this will be the package’s most important benefit to Parliament.