TUSIAD: “Turkey needs a brand new constitution. The proposed package of amendments has fundamental flaws and falls short of addressing democratic deficits”
TUSIAD has issued the following statement regarding the constitutional amendment package announced by the government:
“TUSIAD has been voicing its concerns over Turkey’s democracy deficit for a long time. Turkey needs a new Constitution, one which will dramatically amend political parties and electoral laws.
- The new constitution should focus on individual rights, exclude any privileges, strengthen parliamentary democracy, and enshrine the principle of separation of powers.
- The sine qua non condition of a modern and comprehensive constitutional reform is the amendment of the current electoral system and the law on political parties. Changes should urgently be introduced to reduce the national electoral threshold and make primaries mandatory. The 2011 elections should most certainly not be held under the confines of the current anti-democratic political parties law, and the high national threshold unseen in modern democracies.
- All political parties should contribute to the reform process with their proposals on both the methodology and the substance of the new constitution.
Unfortunately, the current Constitutional reform package is not the outcome of a parliamentary consensus.
- A constitutional package that does not result from a political consensus will complicate the process of making a new constitution in the future. We expect the governing party to be open to new ideas, while the opposition ought to offer concrete proposals that will enrich the debate.
The possibility of the constitutional amendment package being put into a referendum should be carefully considered:
- Though constitutional, a referendum is not the best option. Submitting the entire constitutional package made up of numerous and wide-ranging articles on disparate topics to the vote of the people would seriously constrain citizens’ right of choice.
Given the above reservations as regards the process of democratization, TUSIAD, with reference to the current draft constitutional amendment proposal, observes the following issues and suggests the following solutions:
- Among the provisions of the constitutional package pertaining to fundamental rights and liberties, military courts, positive discrimination, the annulment of the provisional Article 15, and particularly the availability of judicial means against decisions of military judiciary, of the Supreme Military Council and of High Council of Judges and Prosecutors and against some disciplinary actions are all positive steps. Nevertheless, these positive elements are overshadowed by provisions undermining the principles of separation of powers and independence of the judiciary.
- The composition of the Constitutional Court, as envisaged by the constitutional package, whereby 16 of its 19 members are selected by the President of Republic, of which 7 are directly appointed at the discretion of the President, would amplify the influence of the executive branch over the judiciary. Along with the 3 members who will be elected by the parliament, the legislative and executive branches would have appointed the entire Constitutional Court. The supposition that the legislative branch is already under the heavy influence of the executive branch bears the impression that the election of the said three members would also be open to executive influence.
The election and appointment mechanism foreseen in the package, coupled with the increasingly politicized nature of the Presidency as a result of direct elections, would destroy the balance and control capabilities of the Constitutional Court when the President, the government and the majority of the parliament are all from the same political party.
The power to select members of the Constitutional Court should be divided amongst the President of Republic, the high judiciary, the Parliament and universities, with the high judiciary having the authority to select the majority of the members. The rule of qualified majority should be applied to the election of members by the Parliament.
The Constitutional Court also has the authority to hold penal proceedings under its capacity as the Supreme Council. From the point of view of constitutional law, it is natural for a part of the members of the Constitutional Court to come from non-legal backgrounds, but the majority of the members must be jurists in cases that will be adjudicated under its capacity as the Supreme Council.
- The regulations introduced by the Constitutional package on the High Council of Judges and Prosecutors increases the influence of the Ministry of Justice on the Council. It is particularly notable that the investigation authority of the High Council of Judges and Prosecutors is being subjected to the Ministry of Justice’s approval. On the other hand, it should be clarified that the authority given to the Ministry of Justice to “inspect justice services by Ministry’s own auditors” does not comprise administrative investigations of judges. This authority should remain with the High Council of Judges and Prosecutors and be used without ministerial approval. The regulations introduced in the package on the High Council of Judges and Prosecutors render the membership of the Minister of Justice and the Undersecretary even more debatable.
Regulations that would harm judicial independence make the debate on judicial impartiality meaningless. The subject of judicial impartiality should be addressed separately, outside of the debates on judicial independence.
- It is a well-known truth that closing political parties does not solve any problems in democracies. The most suitable way of making closures more difficult is to narrow bans on political parties through constitutional regulations.
The Constitutional package, however, by placing the authority to initiate proceedings for closing a political party to a special parliamentary commission, takes the issue outside of the scope of justice and opens it up for political bargaining. It is imperative that bans on political parties be legislated in accordance with the European Convention on Human Rights, and the sanctions be imposed primarily on persons whose actions are against the law, not on political parties.
It is a very unique opportunity for Turkey to put together a new Constitution through a democratic process, replacing the one drafted after the military coup of 1980. Proposals for the new constitution should be debated in a participatory process by broader sections of the society. TUSIAD places much importance on a consensus-seeking process that would foster wide participation. These suggestions have been previously shared with the public. TUSIAD reiterates its call to change the Constitution through a democratic and participatory process.”