Constitutional amendment package:
A big step in democratic reforms toward full EU membership
by
Cüneyt Yüksel*

Turkey has built its strong economy and reputable foreign policy on the steps that it has taken toward democratization in the last seven-and-a-half years. We are well aware that no reforms can be successful unless they are undertaken in coordination with democratization reforms. In recent years, our country has experienced a series of comprehensive legal reforms which serve to safeguard and strengthen regulations regarding fundamental rights and freedoms, democracy, the rule of law, human rights and the protection of and respect for minorities.

Our only goal is to ensure the dignity, safety and freedom of our citizens. One of the most important issues is to ensure a democratic and free environment whereby fundamental rights and freedoms are safeguarded by the state and people can realize their full potential. This is important because democracy is the effort to provide people with every possible benefit. Democracy increases the level of personal freedoms. Democracy requires equal rights. Another important issue is respect for the rule of law -- which is the most important safeguard of fundamental rights and freedoms -- through the independence and neutrality of the judiciary. This is the aim of the constitutional amendment package that was introduced to the public. We aim to resolve with courage the issues that were left without a solution and ignored for years. This amendment package should be regarded as the most recent of the democratization reforms due to the changes it brings toward ensuring the independence and neutrality of the judiciary, making political party closure more difficult and enabling positive discrimination for children, the elderly and disabled persons.

A means to becoming a modern democracy

Turkey must make the proposed amendments to the 1982 Constitution, which is based on military tutelage, if it wishes to become a modern democracy on the road to becoming a full member of the European Union where fundamental rights and freedoms are safeguarded and personal choices are respected. In the seven-and-a-half years prior to this amendment package, despite all the reforms that we made with determination, we have constantly expressed that there are democracy and Constitution issues in Turkey. Most of these issues are caused by the articles of the Constitution to which we have proposed amendments. Actually, the best solution is to introduce a civilian constitution in Turkey; however, Turkey no longer has any time to lose. Therefore, the best solution is to compromise on the proposed comprehensive amendments in the draft.

Due to Turkey’s unique political development, the Republic of Turkey never had a constitution that was adopted as the product of debates and compromise by a constituent assembly that was elected and that represented the free will of the people. This created a problem of legitimacy for the constitutions, and neither the 1924 nor the 1961 Constitution lasted long. The 1982 Constitution, too, has been criticized greatly since its adoption. Despite the amendments made in 1995 and 2001, the 1982 Constitution continues to bear the impression of the authoritarian and statist approach of its authors. In fact, the 1982 Constitution focuses on protecting the state from individuals’ constitutional freedoms, rather than protecting individuals against the superior authority of the state.

In modern democracies, the aim of the constitution is to protect individual rights and freedoms and to enable their development by limiting the authority of the state. Therefore, it has become imperative to introduce a constitutional amendment package that reflects modern values, does not impede Turkey’s progress, protects the balance between various constitutional institutions and that does not itself constitute a problem. In addition, the changes envisioned in the constitutional amendment package conform to Turkey’s obligations regarding full EU membership. This is evident from the fact that every EU progress report on Turkey, including the most recent report, emphasizes the need for urgent amendments on areas such as judicial reform, positive discrimination and making political party closures more difficult.

Lately, some have made highly interesting remarks that cannot be reconciled with the interpretation of the Constitution, such as claiming that the Turkish Parliament has no (secondary) constituent power. It must be emphasized that the authority to make amendments to the Constitution, i.e., (secondary) constituent power, belongs to members of Parliament. This power cannot be transferred to any other person or institution. No judicial organ, including the Constitutional Court, can put on hold, suspend, make conditional or find incompetent the will of parliamentary deputies regarding proposing or voting on constitutional amendments. Like every other political party member in Parliament, Justice and Development Party (AK Party) members, too, can present constitutional amendment drafts for the approval of Parliament.

Generally, we can say that there are three fundamental principles of a constitution-making process: consensus, publicity and the optimal timing of constitution making. Comprehensive consensus also avoids reflecting only a particular point of view. In this regard, the AK Party has acted in accordance with democratic constitution-making principles by presenting the amendment package to other political parties and seeking a comprehensive consensus. The opposition parties’ policy of ambiguity and being closed to any negotiations related to the issue both serve to make the process difficult; however, they cannot diminish our resolve.

The world has changed; philosophy, science and technology have progressed; new problems and situations are being faced; however, some perspectives and obstructive efforts have not changed at all. Turkey is not what it was 30 years ago! It is not possible to supplant basic needs with ideologies and demagogy anymore. Therefore, opposition parties must put aside their unconciliatory attitudes and support the effort toward making our country more democratic

 The focus of the constitutional reforms can be summed up in two points. The first point is fundamental rights and freedoms; the second is the rule of law and the judiciary. According to the draft, the following phrase shall be added to the second paragraph of Article 10 of the Constitution titled “Equality Before the Law”: “Measures taken to this end cannot be interpreted contrary to the principle of equality.” Also, the abovementioned paragraph of the article shall be followed by the phrase, “Measures taken on account of persons needing special protection, such as children, the elderly and disabled persons, cannot be deemed unequal.” Thereby, positive discrimination toward these persons has been allowed. The amendments also envision a positive change regarding strengthening the protection of personal information in Article 20 of the Constitution titled “Privacy of Individual Life.” Another important provision of the proposed draft is the right to collective bargaining for civil servants. This amendment proposes changing the title of Article 53 to “Collective labor agreements and collective bargaining right” and adding the following phrase to the article: “Civil servants and other public employees have the right to collective bargaining.”

Strengthening the rule of law

The amendment contains provisions toward strengthening the rule of law in general and strengthening the rule of law in the judiciary in particular. In the provisions regarding the judiciary, the neutrality as well as the independence of the judiciary is emphasized. In this regard, changes taking into account modern examples and EU practices have been proposed regarding the formation of the Supreme Council of Judges and Prosecutors (HSYK) and also the Constitutional Court. In addition, the changes to Article 125 will enable the decisions made by the Supreme Military Council (YAŞ) regarding expulsion from the military to be taken to court. The amendment package also enables the appeal of the decisions of the Constitutional Court, which tries the head of state, prime minister and ministers as the Supreme Tribunal.

Also, the amendment will enable Turkish citizens to apply to the Constitutional Court after exhausting all other domestic remedies. Thus, citizens will have to apply to the Constitutional Court before taking a case to the European Court of Human Rights.

Restrictions on judicial review are also being lifted. As we all know, under the current provisions, military personnel cannot be tried by civilian courts. In contrast, the practice of modern countries reveals that military personnel can be tried by military courts only on charges relating to their duty; however, when it comes to other charges, they are tried by civilian courts under equal conditions with civilian citizens. Therefore, parallel to these practices, the amendment package envisions military personnel being tried by civilian courts on charges of crimes “against the security of the state and the constitutional order.” The ombudsman system, which is another repeated feature of EU progress reports, will be established under a proposed amendment to Article 125. This system will serve to resolve disputes between citizens and the state and protect constitutional rights.

Another important issue is political party closures. Considering that political parties are vital components of democratic life, it is clear that every political party closure case damages democracy. It is beyond doubt that the universal standards relating to political party closures have to be observed in Turkey, which is a democratic state respectful of human rights and governed by the rule of law. Twenty-five political parties have been closed down by the Constitutional Court since the adoption of the 1961 Constitution. This figure does not include political parties closed down during military interventions. In terms of political party closures, Turkey has a record that is impossible to break in modern democracies. The fact that the European Court of Human Rights has found all but one of the political party closure decisions made by the Constitutional Court in violation of the European Convention on Human Rights and Fundamental Freedoms is evidence that the practice in Turkey does not conform to universal standards.

Political party closure has been made more difficult in order to protect democracy. The principles set by the Venice Commission have been taken into account to this end. It should not be ignored that Venice Commission principles bring strong safeguards for political parties; according to these principles, only parties advocating violence shall be closed down.

It should be underlined that the Constitution is the most important indicator of standards of democracy. The Constitution is the expression of the people’s expectations of the state; it is a political and legal assessment. Do not forget that the republic and democracy are the most important values that we have gained in our thousands of years of history. We have to take courageous steps in order to present prosperous tomorrows to the next generations. As the AK Party, we are determined in our democratic reforms in order to carry our country forward. We will persist in our determined stance to strengthen our Constitution and thereby our democracy with this amendment package. The ultimate service to our country is to make outstanding legislation. I invite all segments of our society to support this amendment package, which will rid our country of the shackles that fetter our democracy.

*Associate Professor Cüneyt Yüksel is a member of Parliament and the vice president of political and legal affairs for the Justice and Development Party (AK Party).