Turkish Constitutional Amendments: AKP’s undemocratic approach and CHP’s proposals for a progressive and European new constitution
August 13, 2010
Turkey has discussed the draft constitutional amendment package prepared by the ruling party, AKP, without integrating all the parties in the Parliament in the process.
As the main opposition party, the CHP has supported for long the idea of changing the constitution with the aim of further enhancement of Turkish democracy, and shared continuously , in this regard, its stance with public.
- A question of methodology: the need for social consensus
- A question of principles: the CHP wants a Constitution inspired by the European democratic values
The CHP conceives a package of constitutional amendments, the main principles and the objectives of which are as follows:
- the broad consultative process on which the constitutional amendments are build.
- the principle of secularism as one of the main pillars of the Turkish Republic.
- Judicial independence, and in this regard, the elimination of constitutional basis of the government intervention in judiciary
- Lifting the parliamentary immunities
- Strengthening the women rights and ensuring the gender equality in the public and work life.
- Freedom of communication guaranteed for all citizens and respect for the privacy of personal lives
- Enhancing social rights
- Guaranteeing human rights and promoting pluralism
- Venice Commission on referendums : Electors must not be called to vote simultaneously on several questions without any intrinsic
- Venice Commission on wide consensus: The Commission repeatedly stressed that a duly, open, informed and timely involvement of all political forces and civil society in the process of reform is necessary to achieve wide consensus even if this inevitably takes time and effort.
- The Consultative Council of European Judges (CCJE): Members of the Council for the Judiciary should not be active politicians, members of parliament, the executive or the administration. This means that neither the Head of the State, if he/she is the head of the government, nor any minister can be a member of the Council for the Judiciary.
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
CODE OF GOOD PRACTICE ON REFERENDUMS
30. An even more stringent requirement of free suffrage is respect for unity of content. Electors must not be called to vote simultaneously on several questions without any intrinsic link, given that they may be in favour of one and against another. Where the revision of a text covers several separate aspects, a number of questions must therefore be put to the people. However, total revision of a text, particularly a Constitution, naturally cannot relate solely to aspects that are closely linked. In this case, therefore, the requirement for unity of content does not apply. Substantial revision of a text, involving a number of chapters, may be regarded as being equivalent to total revision; clearly, this does not mean the different chapters cannot be put separately to the popular vote.
REPORT ON CONSTITUTIONAL AMENDMENT
“-Generally speaking, in addition to guaranteeing constitutional and political stability, provisions on qualified procedures for amending the constitution, aim at securing broad consensus as well as the legitimacy of the constitution and, through it, the political system as a whole.
-The main purpose and effect of a qualified majority requirement is to (i) ensure broad political consensus (and thereby strengthen the legitimacy and durability of the amendment), and (ii) protect the interests and rights of the political opposition and of minorities. Such a requirement in effect gives a minority (of a certain size) a veto on constitutional amendment.
– A quite widespread traditional view has been that qualified majority in parliament is the single most important mechanism in constitutional amendment provisions, which is both necessary and sufficient for achieving a stable and moderate amendment rate. This view, however, has been challenged in recent empirical studies, which indicate and argue that other factors are more important for determining the actual rigidity or flexibility of a given constitutional system, and the number of times the constitution is actually changed. First, it depends on the national constitutional tradition, the concrete political context, and the driving forces behind the call for change. Second, it may also be that a parliamentary supermajority requirement is often not as strict as it may seem, because there is wide consensus on constitutional issues in parliament, or because the ruling party is able to muster wide support.
–In this sense, properly conducted amendment procedures, allowing time for public and institutional debate, may contribute significantly to the legitimacy and sense of ownership of the constitution and to the development and consolidation of democratic constitutional traditions over time. In contrast, if the rules and procedures on constitutional change are open to interpretation and controversy, or if they are applied too hastily or without democratic discourse, then this may undermine political stability and, ultimately, the legitimacy of the constitution itself.
-The Commission has repeatedly stressed that a duly, open, informed and timely involvement of all political forces and civil society in the process of reform can strongly contribute to achieving consensus and securing the success of the constitutional revision even if this inevitably takes time and effort. For this to happen states’ positive obligations to ensure unhindered exercise of freedom of peaceful assembly, freedom of expression, as well as a fair, adequate and extensive broadcasting of the arguments by the media are equally relevant.
– In many countries the competence to formally propose constitutional amendments, and to initiate the procedures, is given to several actors – for example both to Parliament (a single member of a qualified minority) and to the executive. This can lead to situations in which there are a number of competing proposals, which may complicate the process. In such situations it is particularly important to have structured and balanced procedures, involving all the political actors as well as civil society, as the Venice Commission has observed on several occasions.“
The Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society no.10(2007)
- 3. Prospective members of the Council for the Judiciary, whether judges or non judges, should not be active politicians, members of parliament, the executive or the administration. This means that neither the Head of the State, if he/she is the head of the government, nor any minister can be a member of the Council for the Judiciary. Each state should enact specific legal rules in this area.
- 25. In order to guarantee the independence of the authority responsible for the selection and career of judges, there should be rules ensuring that the judge members are selected by the judiciary.
- 26. The selection can be done through election or, for a limited number of members (such as the presidents of Supreme Court or Courts of appeal), ex officio.
- 29. In order to meet citizens’ expectations that the Council for the Judiciary should be “depoliticised”
- 31. The CCJE does not advocate systems that involve political authorities such as the Parliament or the executive at any stage of the selection process. All interference of the judicial hierarchies in the process should be avoided. All forms of appointment by authorities internal or external to the judiciary should be excluded.
- 33. It is necessary to ensure that the Chair of the Council for the Judiciary is held by an impartial person who is not close to political parties.
- 38. The Council for the Judiciary should have its own premises, a secretariat, computing resources and freedom to organise itself, without being answerable for its activities to any political or other authority. It should be free to organise its sittings and set the agenda for its meetings, as well as have the right to communicate directly with the courts in order to carry out its functions. The Council for the Judiciary should have its own staff according to its needs, and each member should have staff in accordance with the tasks assigned to him or her.
- 48. It is essential for the maintenance of the independence of the judiciary that the appointment and promotion of judges are independent and are not made by the legislature or the executive but are preferably made by the Council for the Judiciary13.
- 63. A judge who neglects his/her cases through indolence or who is blatantly incompetent when dealing with them should face disciplinary sanctions. Even in such cases, as indicated by CCJE Opinion No.3(2002), it is important that judges enjoy the protection of a disciplinary proceeding guaranteeing the respect of the principle of independence of the judiciary and carried out before a body free from any political influence, on the basis of clearly defined disciplinary faults: a Head of State, Minister of Justice or any other representative of political authorities cannot take part in the disciplinary body.
- 82. Finally, in its above mentioned Opinion, the CCJE – dealing with the issue of judges or courts challenged or attacked by the media or by political or social figures through the media – considered that, while the judge or court involved should refrain from reacting through the same channels, the Council for the Judiciary or a judicial body should be able and ready to respond promptly and efficiently to such challenges or attacks in appropriate cases.
- 83. The Council for the Judiciary should have the power not only to disclose its views publicly but should also take all necessary steps before the public, the political authorities and, where appropriate, the courts to defend the reputation of the judicial institution and/or its members.
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