Yazıcı: Any crack in this system would bear positive results for society (2)

“Any crack, even a minor one, in this ossified structure caused by the tutelage system would bear positive results for the public. In Turkey, belief and trust in the justice system have been weakened for a long time. Therefore, changes would cause some relief in large parts of society. The proposals are likely to be approved by the public if they are offered in a referendum,” she told Today’s Zaman in the last part of our interview.

In yesterday’s Monday Talk, she had said that the Constitutional Court, by regularly canceling acts of the legislative branch in violation of the Constitution, and the Council of State, by abrogating acts of the executive branch in violation of laws and the Constitution, control the whole system.

Answering our questions, she elaborated on the current structure of the Constitutional Court and the proposed changes plus their shortcomings. She also added that Turkey would not be able to solve its problems without an entirely new constitution.

What does the proposal bring in regards to the structure of the Constitutional Court?

The most fundamental task of the Constitutional Court is to examine the constitutionality of laws. In other words, it is the highest legal body for constitutional review. If the Constitutional Court cancels a law, it means that law has been completely removed from the world of law. As we know, laws are made by the legislative branch, which is the Parliament that is elected by the public. And if those laws do not conform to the Constitution, it is the Constitutional Court which can cancel them. Therefore, constitutional courts in Western democracies are based on the element of democratic legitimacy. So either all or a significant number of its members are associated with the will of the people. In Germany, 16 members of the Constitutional Court are selected by parliament, as in Poland and Hungary. In Italy and Spain, one-third of its members are selected by the parliaments of those countries. According to the current structure of the Constitutional Court in Turkey, eight regular and three substitute members are elected by the president among candidates suggested by the high courts. The president also has the power to directly elect three regular members and one substitute member of the Constitutional Court. With this structure, the Constitutional Court is not based on the element of democratic legitimacy.

The 1961 Constitution gave Parliament the power to elect members of the top court.

Right, Parliament could elect one-third of the members of the Constitutional Court. This model was abandoned because, especially in the second half of the 1970s, there were a lot parties in Parliament and those parties were not able to compromise, even on a minor issue, and they were not able select members for the top court, either. Therefore, Parliament’s power has been removed in that regard, and those powers have been given to the president. Again some circles in Turkey claim that the model in Western democracies does not suit Turkey’s needs. Another debate made by some law professionals is that there is a two-chamber system in Western democracies that allows for the election of members of the constitutional court by their parliaments, so the Turkish parliamentary system is not suitable for the election of some members of the top court. This argument distorts the real issue, because the reason why parliaments are allowed to select members of the top court or the judicial council is to ensure some manifestation of the public will in those bodies.

‘No structural change expected in Constitutional Court for a long time’

Since the proposal does not give direct authority to Parliament to elect some members of the Constitutional Court, do you think the current system will continue for a long time?

The current system will last for a long time. The proposal offers 17 regular members instead of the 11 regular and four substitute members of the current composition of the Constitutional Court. Parliament will be able to select two members from among the three members nominated by the plenary of the Court of Accounts and one member among the three members nominated by the heads of bar associations. The remaining 14 members, four directly and 10 indirectly, will be selected by the president. I criticize the fact that Parliament is not being given any direct authority to select members. In addition, the term of office for the members will be limited to 12 years, in harmony with European countries where the term of office for the members of the top court is limited to nine to 12 years. When it comes to the status of the current members, four substitute members will become regular members, so in total 15 current members will become regular members of the court. Plus, the 12-year limit for the term of office will not apply to the current members, and they will remain on the bench until the age of 65, as this is the current case, although it is not compatible with one basic principle of public law, which is that if rules are changed regarding status, the change in the rule applies to the current status holders, too. As a result, there will not be a structural change in the Constitutional Court for a long time, and when it occurs, it will be gradual. We can expect to see the same attitude from the Constitutional Court for a long time.

So apparently the proposal is restrained in that regard. Do you think this is just because the government would like to eliminate the opposition’s criticisms?

No, there have also been harsh reactions from the members of the high judiciary. Most members of the high court who usually vehemently defend the principle of the separation of powers do not see any problems when they are the ones who violate the same principle. They ignore that the authority to change the Constitution is given to Parliament by Articles 87 and 175 of the Constitution. So, why is the proposal restrained? Because the concept of compromise has been distorted by some circles. When there is a debate on compromise, it has been wrongly interpreted by some people who claim the high judiciary should also have a say in and even negotiate regarding the changes to their institutions and their status. In Western democracies, this is not the way compromise has been achieved. Compromise and dialogue occur among the political parties, which represent people. In Turkey, the opposition does not actively take part in amending the Constitution and therefore this duty has been assumed by the high courts. One thing caught my attention in this process: The structural changes that the proposal offers for the Constitutional Court overlap with the structural changes report by the Constitutional Court in 2004. I think the changes demanded by the Constitutional Court then were reflected in the government’s proposal to obviate an annulment by the Constitutional Court.

‘Belief and trust in the justice system have been weakened for a long time’

Do you think the public’s view regarding the judiciary will be positively influenced by the proposed changes? In other words, do you see the public being able to develop a belief that justice will be served because those changes have been proposed?

Only partially. However, any crack, even a minor one, in this ossified structure caused by the tutelage system would bear positive results for the public. In Turkey, belief and trust in the justice system have been weakened for a long time. Therefore, changes would cause some relief in large parts of society. The proposals are likely to be approved by the public if they are offered in a referendum. Let’s remember the study done by the Turkish Economic and Social Studies Foundation [TESEV] about perceptions in the judiciary. There were in-depth interviews with more than 50 judges and prosecutors, some of whom said that they are against the change to Article 90 which was made in 2004 as part of the constitutional reform. Article 90 states that in the event of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail. But the members of the judiciary are reluctant to implement this provision although they are obligated to implement such changes. As a result, all constitutional reforms depend on how judicial institutions implement them.

Do you think the proposal would be simpler if it only had changes regarding judicial reform?

The proposal is not really complicated. When we look at the content of the package, there are parts related to fundamental rights, political rights, economic and social rights, and there are parts related to the judiciary. They all have one common denominator, which aims at raising standards of human rights and democracy. I also would like address criticisms regarding the form of the proposal. In the European Union’s 2009 progress report for Turkey, there is a chapter on the judiciary and fundamental rights which includes issues such as the Supreme Board of Judges and Prosecutors [HSYK], women’s rights, rights of the child, treatment of socially vulnerable and disabled persons, political rights and the right to establish trade unions, plus the ombudsman mechanism. All of those have intrinsic links. Therefore, the package includes a good part of the suggestions in that chapter of the progress report.

The proposal also repeals Article 15.

Yes, it is about opening the way for the trial of the people who were on the National Security Council [MGK] and who exercised legislative and executive power from Sept. 12, 1980 to the date of the formation of Parliament. This is also an arrangement that aims to raise democratic standards, since one of the biggest problems in Turkey has been the interruption of the democratic process because of military interventions. Let’s take into consideration that there is an important court case called Ergenekon. It is about an organized group that might have attempted to carry out military coups. If attempting military coups is a crime, the trial and punishment of coup plotters is necessary. Then there is the belief that the people who carried out the Sept. 12 military coup should also be put on trial. But would the abolition of Article 15 mean the trial of the people who were on the council? It will not because the related crimes have been barred by the statute of limitations. We should not expect a trial, but the abolition of Article 15 has symbolic meaning.

‘Problems cannot be solved without entirely new constitution’

Many Kurdish and Alevi citizens are concerned that their demands regarding cultural and religious freedoms are not addressed in the reform package. Don’t you think the government could have included some measures in the package to address those demands?

The Kurdish and Alevi citizens are absolutely right, and this brings us to another point that I stress everywhere. Turkey’s problems regarding human rights and democracy cannot be solved with a partial constitutional amendment. Turkey has to create a new constitution that includes mechanisms to raise the democratic standards to the level of universal values in that regard.

Don’t you think that the adoption of a partial amendment would delay making a new constitution until an unknown date very far in the future?

I do have such a concern. Parliament, its members, civil society and opinion leaders have a great responsibility to prevent that. This constitutional amendment would partially raise the standards of democracy, but we should never be satisfied with it. Turkey urgently needs a new constitution. As long as the current Constitution is in effect, it will not be possible to get the full benefit from the partial reforms.

Putting aside wholesale constitutional change, are there obstacles before some efforts to create better, more democratic laws, such as changing the Political Parties Law, lowering the election threshold and so on?

Let’s look at the election threshold; a 10 percent threshold is very high, and it does not exist in the Western democracies. However, this has not been inherited solely from the government of the MGK of Sept. 12. The Constitutional Court has also played a big role in the emergence and preservation of the rule. In 1968, there was a change in the law that worked to the benefit of the big parties and against the small parties in Parliament. At the time, the Constitution did not impose any election system on the legislative body. As the change in the law went to the Constitutional Court, the court went beyond its powers and annulled parts of the suggested system. This election system was practiced until Sept. 12, 1980. The main problem prior to Sept. 12, 1980 was that Parliament was not able to form a majority government. The government of the MGK created the 10 percent threshold. Later there was another system legislated that would have led to the election of 100 deputies out of 550 to Parliament according to proportional representation. That law went to the Constitutional Court, which once again went beyond its powers and abolished it. It could have abolished the 10 percent election threshold, but it did not. Now we have it. Turkey, after creating a new constitution, should change its political parties and election laws, and also systematically review all of its laws and regulations to make them more democratic.