Agenda

Author: Prof. Dr. Ramazan Gözen

Constitutional Court President Haşim Kılıç made public at a press conference on July 7, 2010 the Court's decision about the application made for the 26-article constitutional amendment package to be annulled. The court, he said, rejected to overturn the application made by the deputies of the opposition parties CHP and DSP to stop the run-up to the referendum and pointed out that the arrangements pertaining to the naming of candidates to both the Constitutional Court and the Supreme Board of Judges and Prosecutors were annulled. The long-awaited decision by the Constitutional Court officially put Turkey on the track of referendum process. The vote by the Turkish people on September 12,2010 on the whole of the package will determine whether the 1982 Constitution needs to be changed or not.

The Constitution of the Republic of Turkey drawn up in the aftermath of the 1980 military take over is widely accepted to have problems for everyone. That is why the Constitution has so far been amended 16 times. This has caused a large part of the Constitution to be renewed. However, the need for further amendments within the frame of Turkey's democratic requirements remains unchanged.

There is no consensus on what the new amendments should be and how they should be penned. There is at least a serious discord in this respect between the ruling party and the opposition parties. Likewise, various segments of society, intellectuals and academics also have wide differences. The deliberations in the TGNA on the 26-article package were marked by heated altercations and bickering among the ruling Justice and Development party and the opposition, namely, the Republican People's Party, the Democratic Left Party and the Nationalist Movement Party. The deliberations were concluded with the passing of the amendment package, which was also endorsed by the President, paving the way for the referendum. As was expected from the outset, the Republican People's Party and the Democratic Left Party applied to the Constitutional Court to have the amendment package annulled.

The interesting thing is that the decision by the Constitutional Court regarding the application pleased neither side. Both the members of the government and the opposition parties and the relevant authorities, not to mention the representatives of NGOs, made statements critical of the decision. No party accepts or rejects the Constitutional Court decision flat out. The parties call attention to the favourable and unfavourable aspects of the Court decision. We can divide these views also widely covered by the press into three.

The politicians and intellectuals supporting the amendment package say that the Constitutional Court, instead of examining the procedural aspect of the package addressed the content of two articles and made amendments to them, thus going beyond the borders of their duties and violating the 148th article of the Constitution. They naturally find the Court decision faulty. However, as the decision does not stop the package from being put to public vote, they also consider it acceptable.

Those against the package find the Constitutional Court decision unfavourable simply because the Court rejected to overturn it outright. But they express happiness over the court having annulled the method of naming candidates to the two High Courts. The non-supporters of the amendment find this result generally negative and unacceptable. According to the third view, the Constitutional Court has given a balanced decision. In other words, neither the supporters nor the detractors of the amendment package have been completely happy or unhappy with the Court decision.

The fact of the matter is that the Constitutional Court decision has somewhat made for a relaxation in Turkey's politics because it has cleared the way to a referendum which will show whether the amendment made by parliament has the approval of the people. The final say over such a controversial subject will be that of the people , the source of Turkey's sovereignty, rather than ministers and bureaucrats. Different views will be put to public vote and whichever has the power to convince the people will get the upper hand. It will either be accepted or rejected by the people. This is the inalienable essence and principle of the democratic regime.

That the High Court decision has not prevented the amendment package from being put to vote publicly has also stopped Turkish society from plunging into deeper discussions and suffering a serious political crisis. If the referendum process were impeded, a big system crisis could emerge because of the damage the impediment would engender. Additionally, if the referendum process were stunted one way or another, the possibility of going to early elections would have gained strength. Early elections held inopportunely in Turkey are likely to lead to a relative inconsistency in both domestic and foreign politics.

As a result, the referendum to be held on September 12 2010 will determine if there are going to be made some serious changes to the Constitution which Turkey has been complaining of since 1982 when it was introduced. Some of the amendments put to public vote are the following :

Expanding the scope of positive discrimination, expanding fundamental freedoms and rights, introducing new legal arrangements to better protect children, expanding employees' trade union rights, introducing collective bargaining for civil servants, introducing public supervision, namely ombudsmanship, ending the implementation of stripping a deputy of his/her mandate before the expiration of their term of office, making the verdict by the High Military Board subject to legal supervision, defining the jurisdiction of the military judiciary, trying military personnel in civilian courts, increasing the number of members of the Constitutional Court and the Supreme Board of Judges and Prosecutors, introducing the right for individuals to apply to the Constitutional Court, making it possible for high level bureaucrats to be tried by the High Court, introducing changes to the way the Constitutional Court works and paving the way for those who carried out the 1980 military takeover to be put on trial.

The matter of the fact is that , barring two articles, there is a consensus on the amendment package. The controversial articles which different segments of society have different views on pertain to the arrangement of the Constitutional Court and the Supreme Board of Judges and Prosecutors. These changes which some say will enhance Turkey's democracy and some others claim will politicize the judiciary will undoubtedly continue to be discussed in the forthcoming term. We will see what kind of an impact these debates will make on the voters and if the 1980 Constitution will be changed a 17th time over after the referendum results have been announced.