Kader Sevinc - Smart Democracy & Smart Citizenship

The CHP does not support the AKP’s efforts to change the constitution for the following two reasons:
1)A question of methodology: the need for social consensus
2)A question of principles: the CHP wants a Constitution inspired by the European democratic values.
We believe that the Turkish people deserve a constitution which is new, more freedom-based, respectful to human rights and more in conformity with the relevant principles and dispositions in the EU countries

1) A question of methodology:

– Unfortunately the constitutional package has been prepared by the Government without seeking a consensus in Parliament or the society. Public consensus is needed for both the permanence of the constitution and the functioning of democracy. Let alone ensuring a consensus, the package of change prepared by the AKP Government has led to the increase in polarisation and tension in the public. The real purpose behind the constitutional changes has also determined the AKP executive’s method for the referendum.

– A package comprising disconnected changes has been prepared and the casting of a single vote at the referendum has been envisaged. The people have been denied the possibility to say “yes” to some clauses and “no” to others. The real danger is that such a referendum prevents the people from expressing its will freely. At this point I would like to draw attention to the report on referenda prepared by the Venice Commission. This report envisages separate voting for each issue in a referendum for constitutional change comprising unrelated issues. I would also like to express my views concerning the clauses relating to the judiciary and which constitute the essence of the constitutional package.

Reference: Venice Commission, Code of good practice on referendums, article 30 “Electors must not be called to vote simultaneously on several questions without any intrinsic link”

2)A question of principles:

– The constitutional developments in Europe following the Second World War are based on two main ideas. The first one is to create an independent space remaining outside the state’s sphere of intervention for individuals by making fundamental rights and liberties acquire a legal status. Whereas the second one is establishing a judicial system which will guarantee these rights. Both intend confining the power of governments elected by the people. Freedom- based democracy is not the unlimited exercise of the will of an elected parliamentary majority. It comprises a comprehensive system of values such as democracy, human rights, pluralism, the rule of law, the independence of the judiciary. One of the basic principles of freedom-based democracies is judicial control over governments.

The legal control of the judiciary over government is not contrary to democracy and the people’s will. On the contrary, it is the principal guarantee of democracy.

– The independence and neutrality of the Constitutional Court as an organ is closely connected with the appointment of its members. The change package wants to ensure that the majority of the Constitutional Court is composed of members sharing the same view with the government. Some of these members will be selected directly by the President who will her/himself accede to office through the popular vote while others will be elected by Parliament. This system will cause very serious defects. Above all, the President who is the head of the executive is given a determining role; thereby the influence of the executive over the judiciary is being increased. Additionally, the number of members selected from institutions controlled by the government has been raised.

If the AKP Government wanted to make the Constitutional Court acquire a democratic structure and become a high judicial organ functioning independently and with neutrality, it could have proposed a change envisaging the election of the majority of the members of the Constitutional Court by Parliament through qualified majority.

Reference: Venice Commission 19.01.2010 – “The main purpose and effect of a qualified majority requirement is to (i)ensure broad political consensus”


(HSYK-the High Council of Judges and Prosecutors)

– The changes realised and those omitted concerning the High Council of Judges and Prosecutors (HSYK) which is the key element of judicial independence display as well most clearly the true purpose of the government. In the constitutional package the Minister of Justice continues to be the president of the Council and the Undersecretary remains a member.

1) The presidency of the Minister and the membership of the Undersecretary are not compatible with the independence of the High Council of Judges and Prosecutors (HSYK). In Europe there is no country where the Minister is the president of the High Council of Judges and Prosecutors and has powers to control it.(2) The membership of both the Minister and the Undersecretary does not exist in any country. In the report prepared by the European Council of Judges for t he Council of Ministers of the Council of Europe.

Reference: The Council of European Judges (CCJE)-Report no.10(2007): 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.

Reference: The Council of European Judges (CCJE)-Report no.10(2007): Article 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.

Reference: The Council of European Judges (CCJE)-Report no.10(2007): Article 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.

– In its opinion submitted to the European Council of Judges, the Venice Commission proposes that the council’s president should be a person outside political parties and having neutrality. With regard to Turkey, the Report of the Third Consultative Visit prepared by the European Commission recommends that the clause 159 of the Constitution be changed so as to exclude the Minister and the Undersecretary from the council’s membership.

– At present the Minister of Justice possesses large powers which do not allow the High Council of Judges and Prosecutors (HSYK) to operate independently. The change package does not decrease these powers; on the contrary it increases them.

– A sentence indicating that the presidency and representation of the High Council of Judges and Prosecutors (HSYK) belongs to the Minister has been added to the Constitution.

– The right to appoint the general secretary of the secretariat to be newly created is given to the Minister of Justice.

– The inspectors have been attached to the council (HSYK) but they will not be able to open an investigation without the approval of the Minister.

– A most dangerous clause added to the Constitution is as follows: “The election of the members of the council (HSYK), the constitution of the departments and their division of labour, the duties of the council and of its departments, the quorums needed for meetings and decisions will be determined by law”. If the change package proposed by the Government enters into force, the latter will acquire large powers to make the dispositions it desires regarding the council (HSYK) on the basis of these changes.

All this shows that the presidency of the Minister of Justice is not symbolic, that the control of the government on the council (HSYK) is being strengthened by increasing its already large powers through new changes.

In freedom-based democracies the guarantee of the individual rights and liberties of those ruled is the independent judiciary. Especially after the 2007 General Elections the authoritarian tendencies and actions of the AKP government have gradually become more evident. Illegal telephone tapping, investigations aiming to silence opponents, very long periods of detention of university, media, civil society members, searches conducted in private locations and the sequestration of private objects which have no connection with any criminal act, the financial pressures exercised on companies and media organisations have created a society of fear in Turkey.

With all our citizens sharing our concerns we will vote “No” in the referendum.

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  1. I agree with most but the following is simple and plain not true:
    ‘One of the basic principles of freedom-based democracies is judicial control over governments. The legal control of the judiciary over government is not contrary to democracy and the people’s will.’
    The Judiciary NEVER can control the State: not in Europe, not in North or South America, nor in Oceania, Japan, South Korea and other countries based upon Roman Law!
    If wanted, the executive branch can ask the Supreme court (in case of the 2000 lections in the USA) the make a verdict. The Judiciary always work together with the legaslation and the executieve branch to avoid these kind of situations especially in Europe.

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