Wednesday, 29 September 2010

The Impact of Turkey's Constitutional Amendment Will Depend on Implementation

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By Oskar Taxén (vol. 3, no. 16 of the Turkey Analyst)

The recently approved constitutional amendment in Turkey  has been hailed by many as  a democratic reform but concurrently been assailed as an abrogation of the principle of separation of powers. However, from a strictly legal point of view the impact of the amendment is most uncertain. Although it does contain principles that promote democratization,  much will depend on the implementation. The package will require amendments to approximately 200 laws and the outcome of this process remains uncertain.

BACKGROUND: The reform package consists of amendments to 24 articles, the addition of three provisional articles and the elimination of one provisional article. In substance, the package can be divided into two parts; the first includes amendments regarding fundamental rights and freedoms and the second focuses on reorganizing the judiciary system and limiting the role of the military.  The new provisions regarding fundamental rights are written in a liberal spirit and contain multiple new principles that the EU has stated are important. The most sought-after reforms are however dependent of progressive implementation of the amendments into the general legislation. It is hard to evaluate to what extent they will have a practical impact.

The second part of the package is the reason for the need for a referendum. The political tensions arose over the restructuring of two central judicial bodies: the Constitutional Court and the High Council for Judges and Public Prosecutors. The package also limits the judicial authority of military courts and modifies the rule of appeal by stating that administrative courts shall be limited to control of legality and by adding further possibility to appeal decisions of the Supreme Military Council.

Up until the current constitutional amendments, the Constitutional Court had mainly two functions; to examine the constitutionality of laws and decrees taken by the parliament and to act as a special body trying high officials for offenses in relation to their functions. With the constitutional package coming into effect the Court is given another function: to try claims from individuals that their rights under the constitution or under the European Convention of Human Rights have been violated by the public authorities. The principles and procedures of the court in this functioning are still under preparation but it could be an important step forward with regard to the protection  of human rights. Turkey has been under criticism from the European Court of Human Rights (ECHR) for having too many pending cases against it. The reform may raise the effectiveness in this regard. However, the benefit of this reform is also dependent on its implementation. With a complicated and time consuming procedure, it might prolong the process for individuals. From now on, one will not be able to turn directly to the ECHR without first having the case tried in the Constitutional Court.

The main issue of debate has been the composition of the court. The Constitutional Court currently consists of eleven members and four substitute members. These fifteen members were elected by the president following nominations from different judicial bodies; the Court of Cassation(4), the Council of State (3), the Military Court of Cassation(1), the High Military Administrative Court(1) , the Court of Auditors (1)  and the Higher Education Council. The four  remaining members were chosen directly by the president from among senior administrative officers and lawyers.

IMPLICATIONS: Following the amended article the Constitutional Court will consist of seventeen members. Fifteen of these will still be chosen by the president following nominations from the judicial bodies; the Court of Cassation (3), the Council of State (2), the Military Court of Cassation (1), the High Military Administrative Court (1), the Higher Education Council (3). The president may still appoint four (4) members, but from a larger group of senior administrative officers, self-employed lawyers, “first category” judges and rapporteurs of the constitutional court. In extension to this, the parliament shall elect three members nominated by the court of auditors (2) and by the bar associations (1).

The opposition has claimed that this will increase the power of the president, since he henceforth may choose the court members more freely and since the parliamentary power at the moment lies with the president’s party. However, the devil is, as so often, in the details. In the original constitutional package the nominations from the different judicial bodies, three per constitutional court member, were to be put forward in a way where the members of the different judicial bodies could only vote for one candidate and where the candidates with most votes were  nominated. The Constitutional Court however revoked this part of the package and the nominees are now to be elected through a procedure whereby all of the nominees put forward must have a majority of votes behind them in the judicial body that elects them.  This should significantly reduce the fear of the president deliberately choosing members with political views other than the nominating body electing him.

Further criticisms have been raised toward changing the term for which the constitutional court member serve, from “until the age of 65” to a period of twelve years. The current fifteen members, who continue serving, however may serve until they reach the age of 65, no matter how long they have previously served. Since nine of the current members are under the age of 60 this means that it will take at least five years until even a third of the new seventeen members of the Court are chosen according to  the new procedure. Combined with the procedure whereby the nominees put forward will be reflecting the judicial bodies’ political views, the reform can be presumed to be harmless but also less effective  depending on which political standpoint one has.

The issue that has been of the most concern to the opposition parties, the CHP in particular, is the restruct­uring of the High Council for Judges and Public Prosecutors (HSYK). This body was given important functions in the 1982 constitution that was the work of the military junta then in power. Following the old constitutional structure the appointment of higher judiciary staff was a closed system whereby the judicial bodies appointed the nominees for the HSYK and the HSYK appointed who would serve in the higher judicial bodies. The system has been under severe critique from the EU as well as from the Council of Europe. The judiciary of Turkey has been seen as too dependent of HSYK, since the High Council has the power to decide upon individual judges and prosecutors’ future careers. Often the HSYK has chosen to replace prosecutors who have put forward sensitive cases, notably involving the military, which is problematic especially since the HSYK decisions have not been subject to judicial review.

Similar to the procedure for electing the members of the Constitutional Court, the original constitution stated that five of the seven HSYK members were to be chosen by the President from nominees put forward by higher judicial bodies; the Court of Cassation (3) and the Council of State (2). Furthermore the Minister of Justice acted as the president of the Council and the Undersecretary of Justice was a member. This has been of the most concern to the EU as well as to the Council of Europe since it constitutes a risk of external pressure being put on the judiciary by the government.

Following the reform package, the HSYK is composed of 22 members. Four (4) of these are elected by the President from among academics serving in the department of law, five are elected by the Court of Cassation (3) and the Council of State (2) and one (1) by the Justice academy of Turkey. Ten members are chosen by judges and prosecutors among “first category” judges (7) and “first category” administrative judges (3).However the Minister of Justice will still be the president of the Council and his undersecretary will still be a member, contrary to EU recommendations.

The fact that the Minister of Justice and his undersecretary will still be members of the Council has been subject to severe criticism. It is an unnecessary risk of undue treatment and raises questions regarding the principle of separations of powers. The government has defended  its position by stating that the structure of the HSYK will change, so that any influence of the minister will be limited. The HSYK will from now on work in three chambers and the Minister of Justice will not be participating in any of these chambers meetings. Furthermore, the HSYK will be under the supervision of inspectors, its decisions will be open for appeal and it will have its own General Secretariat; something that the European negotiators have stressed to be of great importance.

CONCLUSIONS: In most European systems there is some form of connection between the judiciary and the govern­ment. The choice of keeping the minister of justice in the HSYK is however a matter of concern, especially since the supervising inspectors in the Council are aligned to the Ministry of Justice. Although this part of the reform package must be seen as a significant improvement in relation to previous procedure – in particular the creation of the General Secretariat, the new possibility of appeal and the introduced representation of the lower court judges – this fear of external influence of the judiciary could easily have been avoided.

The amended article 145 limits the competence of the military judiciary to the handling of military offences. It further states that cases related with the offences against the security of the state, constitutional order and the functioning of this order shall be handled in civilian courts. Since the previous interpretation of the military courts jurisdiction has been very broad, most cases against military personnel have been transferred from the civil courts to the military ones. The amendment on the military jurisdiction is probably the most important change to the constitution. Through this the government has insured that high-profile cases such as the Ergenekon and the Sledgehammer cases will not be transferred to the military courts.

The constitutional amendment package abolishes the provisional article 15 which prevents any trial against those responsible for the 1980 military coup. Since most crimes committed during the coup is known to be subject to statute of limitations this will probably have little or no effect, but is more of an important symbol of the constitutional package as such.

Despite the democratic progress it undoubtedly represents, the constitutional reform does not usher in any  revolutionary change. Ultimately, it is the implementation of the changes that will be decisive.

© Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center, 2010. This article may be reprinted provided that the following sentence be included: "This article was first published in the Turkey Analyst (www.turkeyanalyst.org), a biweekly publication of the Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center".

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The Turkey Analyst is a publication of the Central Asia-Caucasus Institute & Silk Road Studies Joint Center, designed to bring authoritative analysis and news on the rapidly developing domestic and foreign policy issues in Turkey. It includes topical analysis, as well as a summary of the Turkish media debate.

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