Turkey's Need for a Constitutional Reform

Turkey's Need for a Constitutional Reform

April 2012

Doubts regarding AKP’s lack of sincerity and goodwill regarding the new constitution, clouds the country’s future.

The 1982 Constitution drafted after the military coup of September 12, 1980 relied on a strong executive branch and recognized a limited form of judicial independence. In power for a decade now, Justice and Development Party’s (AKP) constitutional policies preserve the military heritage of the 1982 Constitution.

Clearly, Turkey needs a new constitution, and a new system of checks and balances. But above all, legislative reform must be introduced in order to promote human rights and democracy. In fact, under the constitutional system of 1982, several unconstitutional statutes are still in force, such as the statutes on anti-terrorism, political parties, elections, et.al.

Today, AKP’s leadership continues to employ the anti-military discourse. Yet the 10% threshold in general elections, mandatory religious education at primary and secondary public schools (article 24), and the explicitly stated goal of the Directorate of Religious Affairs of “contributing to national solidarity and unity” (article 136) are all legacy of the 1980 military rule, embraced by AKP even in the September 2010 constitutional amendments. The Constitutional amendments of 2007 and 2010 backed by AKP’s strong majority in the Parliament strengthened the executive power in general, and specifically over the judicial system.

Unlawful and unconstitutional practices are still widespread in Turkey. For instance, in March 2011, copies of an unpublished book written by an arrested journalist were confiscated on court order, on grounds of being a “terrorism document”. Confiscation of an unpublished book as evidence of organized criminal activity has raised concerns about the freedom of press in Turkey and the legitimacy of the case.

Contrary to what one might expect from a government praised -especially by the West- for furthering democracy, the Government has held tight to mandatory religious education despite a 2007 European Court of Human Rights (ECHR) ruling against it. The ECHR ruled in the case of Sinan Isik v. Turkey on the mentioning of religious affiliation on identity cards; Mr. Isik’s request to change the religion on his identity card from “Islam” to “Alevi”, a strong religious and cultural community differing significantly from Turkey’s traditional Islam lineage,was refused by Turkish authorities. ECHR ruled in favour of the applicant, stating that the very fact that a persons religion is openly printed on state identification cards or did not have the right to keep the related criteria empty in their ID and civil registrations was in breach of the Human Rights Convention. However, the ruling has never been observed.

AKP has abolished the severely criticised State Security Courts, replacing them by a similar lineage: Specially Authorized High Criminal Courts. The function of these courts -enhanced with special judicial powers- is now merely identical to their convicted predecessors.

After the constitutional reform package was approved by referendum in September 2010, the government set to work on its implementation. Priority was given to the reform of judicial structures and -specifically- laws on the High Council of Judges and Prosecutors and the Constitutional Court. The institutional context which has facilitated this final surge in the lack of independence of the judiciary system is a direct result of its restructuring by the 2010 constitutional referendum.

It should also be noted that the adoption of legislation implementing the September 2010 constitutional amendments was not accompanied by broad and effective public consultation involving stakeholders in the country, despite earlier government commitments.
It is certain that the Constitution 1982 is lacking a system of checks and balances between the executive and human rights. But this constitutional structure can legitimize neither existing unconstitutional laws, nor practices incompatible with democracy and human rights.

Brief History of Constitutional Amendments

Since 1987, the 1982 Constitution has been successfully amended in the direction of restoring the rule of law and furthering human rights, most notably in 1995 and 2001. Europeanization of the national legal system has had a considerably positive effect on rights guarantees. With a further constitutional amendment in 2004, Turkey accepted the priority of the international human rights instruments over statutes.

 

Amendments repealed to a certain extent those provisions of Turkey’s constitution which conflicted with the European Convention on Human Rights (ECHR); thus they enhanced rights protection and the rule of law. For instance, these amendments lifted some egregious limitations on fundamental rights, such as freedom of expression and association, made the dissolution of political parties somewhat more difficult, banned the death penalty, enshrined the proportionality principle, clarified a vague provision on the non-abuse of fundamental rights, redrafted personal liberty, security and privacy rights based on the ECHR, guaranteed the right to fair trial, etc.

 

The 2004 amendment abolished the State Security Courts and, on the status of international law within domestic law, provided that “(in) case of a conflict between international agreements and domestic laws in the area of fundamental rights and freedoms, the provisions of international agreements shall prevail.”

 

These constitutional modifications remain insufficient; nevertheless, their importance should not be underestimated, although reforms have virtually stopped since 2005.

 

In connection with these constitutional reforms, several harmonization reform packages have been adopted by the Parliament since 2002. The harmonization statutes have introduced additional safeguards for freedom of association and assembly, freedom of expression, and personal security and freedom. But the statutes are incomplete and have yet to address all existing deficiencies.

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