Why isn't it enough? Why yes? (1)
by
ÜMİT KARDAŞ*

Perhaps it will encourage or pave the way to drafting a new civilian constitution. The government should request support for the partial amendments during the referendum period by promising a new civilian constitution after elections. If the Justice and Development Party (AK Party) does not make this promise and gives the impression that the partial constitutional amendments will suffice, it will lose credibility and the constitutional amendments may not receive enough votes in the referendum. This is why we need to answer the questions “Why is it not enough?” and “Why ‘yes’?” separately.

Why is it not enough?

A constitution being truly democratic and permanent is closely related to the way in which it is developed. In countries governed by democracy, the issue of having a constitution that presents the basic principles that enable society to live freely in peace and under the protection of law was resolved long ago. It is very sad that Turkey has yet to develop a civilian constitution that is based on principles determined by social consensus on topics such as democracy, freedom, pluralism, participation and legal security. We see that the current Constitution, the product of a coup, has been amended several times and is about to be amended again. It has turned into a ragbag and is an absurdity. We need to get rid of this Constitution, which preserves a monist philosophy in its preamble and body, does not include pluralism, freedom, judicial cooperation and the principle of natural justice, protects institutions under tutelage and makes rights un-exercisable due to abstract criteria. A consensus could be reached on the basis of the principles presented below as an example.

a) The constitution shall not protect institutions that facilitate military tutelage. The military bureaucracy is under the command of the civilian authority and the duty of the army is to protect the country from foreign threats.

b) The independence and impartiality of judges principle, the principle of natural justice and the principle of judicial unity are the main components of the right to a fair trial. (This would solve the two-headed judiciary problem.)

c) People are born free. The duty of the government and state institutions is to ensure that people exercise their rights and freedoms and to guarantee legal security. Once rights and freedoms are arranged, exceptions and limitations that make these rights and freedoms unavailable cannot be allowed. Rights and freedoms are interpreted in light of international agreements and European Court of Human Rights (ECtHR) decisions.

d) Freedom of expression can only be restricted when it is used to perpetuate racism, incite to violence or start a provocation.

e) The constitution shall guarantee the protection and legal security of the rights, cultures, traditions and native languages of peoples and communities living in Turkey. (This allows us to live together in peace and freedom despite our differences and ensures pluralism.)

f) The one and indivisible democratic republic recognizes local autonomy and its regions and supports the strengthening of their local administration. (This is important in terms of facilitating a solution to the Kurdish problem. Additionally, every authority the central and local government has shall be explained in the constitution.)

g) The state is an apparatus that has no ideology and was established to act within the limits of the law to protect the rights and freedoms of all individuals and segments in society, to ensure rights and freedoms are exercised, to ensure peace and prosperity and to overcome poverty.

h) The review of the security sector’s (the army, the police, the gendarmerie and the National Intelligence Organization [MİT]) security expenditures and activities and the preparation and review of the National Security Policy Document is under the control and supervision of Parliament.

Reaching social consensus along the lines of the principles offered above as an example and developing a new constitution within a civilian process is important in terms of upholding the principles and purposes of the constitution and having the public embrace it.

2. The needs of different ethnic, religious and sectarian groups

The one nation discourse may not cause problems in countries where the people share the same language, religion, sect, race and culture. However, in countries where there is a diversity of languages, religions, sects, ethnic backgrounds and cultures, the state must treat components that comprise this political union equally.

This is why a state, which must be impartial, cannot observe policies that focus on or favor a particular ethnic group or a particular denomination, even if they are in the majority. In a country home to differences, the state is like a judge, and the central government is like a technical center. Europe has achieved this with its regional state and federal examples (see Germany and Belgium). In regional states, which are unitary states, there is only one political power. The objective of ensuring unity in the political plan is the essential goal of all regional states.

However, political unity was ensured through very different techniques. The state’s unity and indivisibility is stated in all regional state constitutions. In Spain, which is one of these regional states, autonomous regions were recognized with the 1978 constitution based on broad social consensus. The preamble of the constitution states the goal of protecting the Spaniards and the peoples of Spain in the exercise of human rights, their cultures and traditions, and languages. Article 2 states the unity and indivisibility of the Spanish nation and then recognizes and guarantees the right to autonomy of the nationalities and regions and the solidarity and cooperation among them.

There are 17 autonomous regions in Spain, and two autonomous cities. Constitution also recognizes the autonomy of nationalities. Autonomous communities in Spain (Catalonia, Basque Country and Galicia) have broader legislative power than the German federal states. The Spanish constitution has expanded the scope of the freedom of expression and allowed the establishment of parties and associations that defend separatism. According to the Spanish constitution, bordering provinces with common historical, cultural and economic characteristics, the island territories and the provinces with a historical regional unity may form autonomous communities. Every region has a parliament and a government. However, in accordance with the principle of judicial unity, the regions do not have judicial power.

There are 20 autonomous regions in Italy. Article 5 of the Italian constitution states that the one and indivisible republic recognizes and promotes local autonomy. Italian autonomous regions were determined to strengthen local administration. While Italian is the official language, Article 6 guarantees to protect linguistic minorities by special laws. Every region in Italy has its own parliament and government. Both states are unitary states. The significance of these autonomous regions is recognizing the political existence and geographic boundaries of a group of sub-national people who live in a particular area and transferring a portion of political administrative power to these regions.

The constitutions of both countries give financial autonomy to these regions as well. They also have the authority to establish a police force. The constitution authorizes the autonomous regions on urbanization, housing, regional transportation, agriculture, forestry, fishing, regional economic development, local fairs and health issues. The central government is authorized on matters such as defense, the army, the judiciary, foreign policy, citizenship, customs, state finances, social security and basic norms related to education. Aside from judicial oversight, the state has other kinds of control over the autonomous regions. This is why political centralization is still evident in regional states. Autonomy simply offers an alternative opportunity to manage conflict and tension caused by differences and enables people to live together in peace.

Moreover, in secular regimes that try to make society live freely within the rules of democracy and the law, there is no sui generis institution like Turkey’s Directorate of Religious Affairs. This organization contradicts human rights and freedom, the freedom of conscience, the freedom of religion and faith, secularism, democracy, equality and justice. For this institution to use a share of taxes from all citizens, including Sunnis, Alevis, nonbelievers and non-Muslims, to provide services for only Sunnis because they are in the majority is against the law, justice, morals and the conscience.

Aside from this, making one religion or denomination official causes that religion or demonization to freeze up and become a tool of other ideologies. The state should stay at an equal distance from all religions and sects and leave religious organizing to civil society and communities. Every group should be responsible for the establishment and maintenance of their own places of worship and be responsible for the employment of their own clerics.

Civil society has the power and faith to handle its religious needs. Just as democracy, the rule of law and freedom of expression cannot be ensured under military tutelage, the freedom of religion and conscience and a secular state cannot be ensured in a place where there is an institution like the Directorate of Religious Affairs. All religions, sects and faith groups in society should fulfill their needs for a place of worship, clerics and religious education on their own and should not encounter any obstacles or restrictions on this matter. And no segment should be favored by the state. Religious culture and moral education should not be a mandatory subject.

3. The need for legal security and a fair trial

It is evident that amendments regarding the current military judiciary that are being taken to a referendum were envisioned to restrict the scope of the military judiciary a little so as to overcome a blockage more so than to foster democratization or civilianization in line with the principles of judicial unity and natural justice.

The amendments to Article 145, which regulates the duties of military courts, simply limits the jurisdiction of military courts at a very minimum level by eliminating the military zone criterion (which enables military courts to handle almost all crimes if those crimes are committed in military zones). Other criteria that define the jurisdiction of military courts -- such as the military criminal criterion, the criterion of military personnel committing crimes against other military personnel and the criterion of crimes connected with military service and duties -- have been kept the same, while judicial cooperation and the principle of natural justice has been ignored and the right to a fair trial has not been provided.

What should have been done was this: Military courts and disciplinary courts (which only try soldiers charged with improper military conduct such as disobeying orders) should have been stripped of their status as constitutional bodies and, as a result, Article 145 should have been completely abolished while the jurisdiction of military courts should have been limited to solely crimes involving military discipline.

The Military Court of Appeals, which reviews appeals on decisions related to military crimes (Article 156), and the High Military Administrative Court, which functions in the administrative justice system (Article 157), have been preserved. In terms of the principle of judicial cooperation and the right to a fair trial, these two courts should have been abolished. However, the two-headed judicial system has been protected. Under the protection of the Constitution, the National Security Council (MGK) continues to possess institutional effectiveness with its authority over the military bureaucracy and in the fields of criminal and administrative law.

The legal judge guarantee in the Constitution was not turned into a natural judge guarantee. Specially authorized heavy criminal courts, the Law on Counterterrorism and the double-headed judiciary continue to have a constitutional basis.