Yes to reform package is important for EU process
by
Alİ Yurttagül*

First, the only group amongst the naysayers that I can sympathize with is that group that is most assertive with regard to the democratization process, finding the reform package insufficient and advocating that Turkey get rid of the Sept. 12 Constitution. This group says that Turkey deserves more deeply rooted and progressive constitutional reform -- a civilian constitution -- and they are right. Despite amendments in recent years, the Sept. 12 Constitution is still authoritarian and oppressive. It denies important social and political facts, while highlighting the state instead of individual rights. Although this latest referendum package includes important reforms, it would not remove the anti-democratic spirit of the Sept. 12 Constitution -- the main problem in Turkey. However, it still presents some important innovations. For this reason, this package is widely supported by several institutions in Brussels including the council, commission and European Parliament and by all political groups from left to right. We want to explain why we say yes to the package of 26 articles by splitting it into two. Let us look at the articles in the package that are defined as “accessory” or “ornament” by some commentators and that are not rejected by the opposition and at articles about the Constitutional Court, the Supreme Board of Judges and Prosecutors (HSYK) and political parties. We start with “accessory” or “ornament” articles.

‘Accessory’ articles underlying reasons of Brussels support

These articles provide the underlying reasons for widespread support from Brussels and are supported by the opposition for their content. The absence of discussion indicates that there is a kind of consensus with regard to these articles. The inclusion of such issues in the constitution as equality between genders, children’s rights, the right to submit a petition, gather information and file a complaint over mistreatment at the hands of civil servants, the strengthening of public oversight and the right to travel abroad for public employees banned from such travel by their employers are the most discussed topics in Europe recently. Articles that limit the assigned duties of military courts, take Supreme Military Council (YAŞ) decisions under the supervision of civilian courts and provide more union rights to workers are already topics that the EU Commission and European Parliament have been discussing. These articles remove constitutional obstacles in many issues and pave the way for a more democratic legal structure. While it was possible to pass these articles in Parliament without taking them to a referendum, reducing the referendum to three controversial articles, no one understands why the opposition did not use this parliamentary option. Anyway, what makes the reform package attractive in terms of the EU process and what enables a widespread support for the “yes” campaign are these not-so-much discussed articles.

Let us examine the party closure article, which was dropped from the reform package due to a lack of support in Parliament that would have made it more difficult to shut down political parties. The pro-Kurdish BDP did not back the article in parliamentary voting, and the party’s attitude could not be understood in Brussels. We assume that it is enough to see how crucial the referendum is when examined in the context of the pro-Kurdish Democratic Society Party (DTP), which had been shut down a few months ago, the DTP’s Ahmet Türk and Aysel Tuğluk, who were both deprived of their parliamentary membership, and the effort to close the AK Party. Yet the BDP prevented this reform by failing to vote. Today the thesis claiming that the package does not prevent party closures is a naïve one as well as being proof that the political aspects of the reforms’ targets are not well understood. If the article had passed, the closure process would not be left to one person, a public prosecutor, and it would only be possible through the approval of Parliament. Authorizing a commission made up of parties represented in parliament would make closure decisions not just “legal” but would turn them into political decisions as well. A decision as important as closing a political party must be a political decision. Unfortunately, this opportunity was missed due to the thoughtless attitude of the opposition. We will continue saying that it is necessary. The rest is up to political groups represented in Parliament.

A clear and understandable contradiction in Brussels stems from articles concerning the Constitutional Court and HSYK. Opening the Constitutional Court to individual applications to file a case is, I guess, supported by the opposition too. The contradiction stems from the issue of “the independence” of the Constitutional Court like the discussions over the HSYK. Therefore, an increase in the number of judges and the process of selecting judges are among the most discussed issues. The project presented in the referendum would change the structure of these institutions whose members are selected by a small number of high judges in Ankara and make the process of election more democratic. Although it is understandable that high judges and public prosecutors do not want to share their “power” with first degree judges and prosecutors and they think that judicial independence is threatened, the change is an important development for a state of law. The project opens the HSYK to judges and public prosecutors as an institution and paves the way for representation in this important judicial institution. In a sense, the HSYK is becoming democratic. To settle the state of law in Turkey, first degree courts must be developed as institutions and made effective. The reform package makes an important step towards this end. For those who want to have a detailed look at the Brussels’ point of view to the reform package, I recommend distinguished legal expert Serap Yazıcı’s analysis that she prepared for the Turkish Economic and Social Studies Foundation (TESEV). Yazıcı’s analysis reflects dominant opinions in Brussels on the issue.

As we stressed above, this reform package does not remove the spirit of the Sept. 12 Constitution, which is authoritarian and oppressive and denied important social and political facts in Turkey. But the package would strengthen individual rights, open court decisions to inspection and cover important reforms for a state of law. We hope the constitutional reform finds widespread social support and that a broad social consensus emerges after upcoming elections for a new and democratic constitution in Turkey. Despite all these changes, it is not realistic to think that Turkey can be an EU member with the Sept. 12 Constitution.