Why is it not enough? Why Yes? (2)
by
ÜMİT KARDAŞ*

Why Yes?

1) The need for change

Bureaucratic tutelage and all its ideological devices are resisting democratization with all their might so as not to lose their power and privileges. The Republican People’s Party (CHP) is functioning as a historical extension of this tutelage and is making moves within the red lines of the tutelage system. For this reason, even though the CHP is an ideologically marginal party, because its constituent base of 25 percent is comprised of a segment that has become marginalized in terms of democratic awareness, the CHP occupies the left end of the spectrum. This segment believes that it is the tutelage system over the CHP that will ensure its safety, not the concepts of law and democracy. It associates the smallest step toward democratization with the AK Party and considers it a threat to its existence and lifestyle.

The Nationalist Movement Party (MHP) is observing a nationalist policy that has historically been a tool for the state and tutelage instead of following a liberal nationalism that can be perceived as patriotism. This not only destabilizes the MHP’s constituent base, it also harms the regime.

In the early years of the republic, the state first used nationalism as a means for modernization. It then prevented the nationalist segment of society from getting stronger. From time to time it used it as a means of employing a fascist regime against opponents and leftists, and then later it punished it by subjecting it to torture. It is a historical mistake that the MHP administration still allows this ideology, which the state vulgarly used, to be used by the tutelage system.

As a result of the CHP and the MHP becoming tools of tutelage and making themselves politically ineffective and a part of the tutelage system, the AK Party is being pressured by bureaucratic and political institutions and it is staggering and desperately making attacks. The AK Party’s luck in the face of a segment that does not want true democracy is that Turkey and the world have entered an unavoidable process of change. This is a historic opportunity and the AK Party appears to be the only party that can seize this opportunity and chance. The AK Party’s competence or incompetence will determine Turkey’s fate. The crisis in Turkey has nothing to do with the AK Party’s past. If, for example, it was a true social democratic party that was sensitive about secularism, that wanted to remove the tutelage regime and build a true democracy, then the tutelage system and its extensions would put up the same struggle against that party but on grounds of wanting separatism instead of Shariah. It should be understood that the issue is not about the AK Party, it is about a tutelage system -- which is concerned about losing position and power -- preventing a true democracy. The views that seemingly civilian journalists, writers, academics and businessmen put forward as an ideological apparatus of the tutelage institution should not be heeded. For example, the Turkish Industrialists and Businessmen’s Association’s (TÜSİAD) inability to analyze the situation and its tendency to make eyes with the tutelage system shows that Turkey does not have a real bourgeoisie.

Certainly this predicament that the AK Party is in does not mean that the partial constitutional amendment packages that it is implementing by itself are democratically appropriate. But this analysis was conducted for those who say “the AK Party cannot do anything good.” Now let’s answer the question, “Do the partial constitutional amendments contribute to democratization?”

2) Analysis of the amendment package

a) A clause was added to Article 10 of the Constitution that states measures taken for children, the elderly, disabled people, the widows and orphans of soldiers killed while serving in the military and veterans cannot be interpreted contrary to the principle of equality. It’s obvious that this change sets a high standard in terms of being a social state of law.

b) A clause was added to Article 20 of the Constitution stating that every individual has the right to protect his/her private information and indicates that this right also includes the right to impart information regarding personal information, to access this information, to request that this information be corrected or deleted and to find out if this information is being used for the right reasons. It’s obvious that this clause applies a democratic standard to an individual’s legal protection, integrity, privacy of personal life and the right to a fair trial. This amendment makes it unlawful and unconstitutional to blacklist citizens because of their thoughts and beliefs.

c) An amendment to Article 23 of the Constitution foresees the restrictions of a citizens’ right to travel abroad only on the grounds of a criminal investigation or prosecution or by a court order. In this way, administrative units will not be allowed to restrict a citizen’s right to travel on grounds that they have not fulfilled some obligations. Requiring a judicial process and a court order to make this kind of restriction removes a restriction that impacts the essence of a basic freedom.

d) An amendment to Article 41 of the Constitution states the rights of children in their family relationships and gives the state the duty to protect children against all types of abuse. This gives a critical responsibility to the social state in terms of the society’s future.

e) The last clause of Article 51 of the Constitution was removed, paving the way for individuals to become a member of more than one labor union at the same time and in the same branch of work. This amendment removes a restriction on workers’ union rights.

f) An amendment to Article 53 of the Constitution grants civil servants the right to collective bargaining. In the event of a dispute, the arbitration board has the final say and the government is no longer the final decision maker. In this way, the government cannot reduce wages once the board has decided to increase them. Extending collective bargaining agreement provisions to retired people has also been placed under the protection of the Constitution. However, the right to strike is not recognized, making it necessary to say that the amendment is “not enough.” Additionally, amendments to Article 129 allow civil servants to appeal disciplinary punishments such as warnings and reprimands.

g) Clauses 3 and 7 of Article 54 of the Constitution have been removed.

In this way, a union will not be liable for any material damage caused by a worker during a strike. Prohibitions on politically motivated strikes and lockouts, solidarity strikes and lockouts, the occupation of work premises, labor go-slows, a decline of productivity and other forms of obstruction have been removed.

h) An amendment to Article 74 of the Constitution introduces a public monitoring (ombudsman) institution. The ombudsman will be an individual chosen by Parliament to listen to the public’s complaints and to find solutions for them. An ombudsman is an independent public authority assigned to receive complaints about injustices in the way public services are delivered, to conduct research on these matters and to solve these problems. This institution will not only reduce the judiciary’s burden but also allow citizens to have their demands met more quickly and for free without having to apply to the courts.

i) An amendment to Article 135 of the Constitution allows for the judicial review of all Supreme Military Council (YAŞ) expulsion decisions. This is an important amendment. But since the procedure of forced retirement due to promotion reasons or the lack of position has been exempted, it makes it necessary to say that the amendment is “not enough.” Aside from this, the lack of a provisional clause that gives those who were expelled in the past the right to seek judicial recourse is not fair.

 j) An amendment to Article 145 of the Constitution somewhat limits the jurisdiction of military courts -- which is defined by four criteria -- by removing the “military location” criterion. In addition to this, by stating that all cases on crimes against the state’s security, the constitutional order and the functions of the constitutional order will be reviewed by courts of justice, it has been ensured that all coup attempt crimes will be reviewed by civilian courts under all conditions. The authority of military courts during periods of martial law, except during wartime, has been removed.

Another provision in the same article that prevents non-military persons from being tried in military courts except during wartime offers complete assurance to civilians in this respect. It is evident that this guarantee is a standard of an advanced democracy. This amendment alone is a development that requires those who consider themselves civilians to say “yes.” The meaning of the Sept. 12 military courts in terms of the civilians who were tried in them is known.

Lastly, the criterion “requirement of military service” that is stated in the principles of the establishment of military judicial organs and their functions and the independence and security of judges in the personnel-related procedures of military courts has been removed and the clause that states that relationship between military judges and the office of commander regarding the requirements of military service apart from judicial functions shall also be prescribed by law has also been removed. As can be understood from the amendments to this article, the jurisdiction of military courts has been limited to a certain extent and the crime of attempting to stage a coup has been placed under the jurisdiction of the civilian judiciary. While on the one hand civilians receive absolute constitutional security, on the other hand by removing the military services requirement criterion regarding the organization and functions of military judicial organs and personnel operations of military judges, military judges will be exempt from the insecurities of the military officer status. The changes in this article are very important for democratization.

k) An amendment to Article 146 has increased the number of Constitutional Court members from 11 regular and four substitute to 17 regular members. Parliament has been given the right to elect three members and the president has been given the right to elect four members. Additionally, the president will be able to elect three members from the Supreme Court of Appeals, two from the Council of State, one member from the Military High Administrative Court and three from the Higher Education Board (YÖK) among a list of threefold the number of candidates to be chosen by these institutions. In this way, even if the Constitutional Court’s composition is lacking, the amendment envisions democratizing it. It would have been better in terms of democratization if the president’s right to directly elect four members was given to Parliament instead.

l) An amendment to Article 147 of the Constitution limits the term of Constitutional Court members to 12 years. By preventing membership which lasts for 20-25 years, the court will not be disconnected from developments in the legal system.

m) An addition to the first sentence of the first clause of Article 148 of the Constitution gives citizens the right to apply directly to the Constitutional Court. In this way any citizen who believes his/her protected rights have been violated can apply to the Constitutional Court provided that he/she has exhausted all other legal options. This legislation provides citizens with an important opportunity to have their rights upheld. It’s evident that in line with this, the number of citizens who file cases at the European Court of Human Rights will decline. This amendment also gives permission to apply to Parliament to have decisions that the Constitutional Court will give as the Supreme State Council be reviewed again. Aside from this, an additional clause allows the chief of General Staff and force commanders to be tried in the Supreme State Council for crimes related to their duties.

n) An amendment to Article 159 of the Constitution increases the number of Supreme Board of Judges and Prosecutors (HSYK) members from seven regular and five substitute to 22 regular and 12 substitute members. This foresees shifting from a closed circuit structure to a more democratic structure. While the justice minister and the undersecretary are to remain members, the president has been given the right to directly appoint four regular members. The Supreme Court of Appeals has been given the right to directly elect three regular and three substitute members, the Council of State has been given the right to elect two regular and two substitute members and the Turkish Justice Academy has been given the right to elect one regular and one substitute member.

An important innovation in this legislation is that class-one judges and prosecutors in courts of justice will have the right to elect seven regular and four substitute members while class-one judges and prosecutors in administrative justice will have the right to elect three regular and two substitute members, allowing democratic representation on the board. This seeks to end subjective and arbitrary practices by changing the closed circuit system between the five-member board and the high judiciary bureaucracy. It would have been more appropriate if the justice minister and undersecretary were not a part of the board and if Parliament had the right to elect the members instead of the president. In this way the board’s president would also be determined by the votes of the board members.

Another amendment to the same article allows judicial review of dismissal decisions given by the board. This is an important amendment. However, the fact that this applies to only dismissal procedures and none of the board’s other practices makes it necessary to say that “it is not enough.” Aside from this, the lack of a provisional clause that gives those who were dismissed in the past the right to seek judicial recourse is not fair.

o) Provisional Article 15 of the Constitution, which does not allow trial of the members of the Council of National Security formed after the military intervention on Sept. 12, 1980 will be abolished. The abrogation of this article is very meaningful. Getting rid of the discouraging burden of a defective legislation that provides constitutional protection to those who have committed the crime of staging a coup and those who have taken part in this crime at different stages and positions and proudly rejecting this kind of legislation -- albeit many years later -- is very meaningful, even if only symbolically. Aside from this, the status of these individuals in terms of their legal and criminal responsibilities is not clear. Even if it is claimed that the statute of limitations has expired, the assessment that the constitutional ban interrupted the statute of limitations and that the statute of limitations will begin once the ban is lifted is quite legal. Judicial bodies will give the answer to this at the end of the legal process to be exercised as a result of the criminal complaints that will be filed. It is for this reason that it is evident that removing this article is important.

As can be seen, the constitutional amendments introduce very important democratic standards. Some changes may not be enough, but they represent a milestone in accessing a new and civilian constitution that will reassure citizens and the society. It is for this reason that the AK Party should predicate its policy during the referendum process on the slogan “say yes now to be able to draft a new civilian constitution.” Surely it is “not enough” but we have abundant reasons to say “yes.”

*Dr. Ümit Kardaş is a retired military judge.