Since the adoption of the 1982 Constitution, the text has been subject to debate and several amendments. Following the elections in 2011, there was hope for a new Constitution, but it disappeared after the failure of an agreement in the Constitutional Reconciliation Commission on the revision of the text. Immediately after the failed July 15 coup attempt, Turkish political parties agreed on a brief Constitutional package. However, the subsequent political tension prevented the carrying out of the project. Surprisingly, the leader of the MHP Devlet Bahceli, initiated a new process by throwing his support behind an amendment in the Constitution that would be put forward by the AK Party. The AK Party prepared the Constitutional amendment proposal that included a “Presidential System” and proposed this amendment to the Turkish Parliament after negotiations with the MHP. The core objective of the proposal is to abandon the 1982 Constitutional model, which was drafted following a military regime. Since the 1982 Constitution does not provide a conventional parliamentary system, it facilitated the transition to the Presidential system.

Neutrality of the Judiciary

Article 1 of the proposal and Article 9 on the jurisdiction of the Constitution provide an “impartiality” clause which emphasizes the neutrality as well as the independence of the judiciary. The 1982 Constitution too called for judicial independence and emphasized the necessity of the independence and the legal jurisdiction of judges in a number of matters. However, the independence of the judiciary and its connection to the concept of impartiality does not appear explicitly in the Constitution and thus its absence is the motivation for this new proposal.

It is impossible to separate neutrality from an independent judiciary. An independent judiciary – without the influence of any individual or institution, whether inside or outside of the judiciary – upholding the law with impartiality to avoid any bias or without any prejudice whatsoever is essential. In other words, a judge must decide independently and irrespective of any personal benefit, ideology, belief and world view.

Themis, the ancient Greek symbol of the principle of justice, in her blindfold demonstrates this need for neutrality and impartiality in judging a case. The principle of impartiality is of critical importance in the protection of fundamental rights and freedoms. For this reason, the impartiality provided in international human rights documents finds its place side by side with the principle of independence. Article 10 of the United Nations Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, and Article 6 of the European Convention on Human Rights all emphasize the principle of neutrality.

These examples show that the incorporation of the principle of neutrality in the proposal into the 1982 Constitution is compatible with human rights conventions and will address the deficiencies in the present system.

Another reason for this addition is related to the longevity of the bureaucratic tutelage in Turkey. The army was one of the basic elements of the judicial tutelage that was established by the 1961 Constitution, with the judiciary using it as a mean to maintain its control. During this period, the judicial tutelage preferred the protection of the guardianship of the state power against the political power along with the defense of its privileges, rather than protecting basic rights or establishing the rule of law.  The activities of the judiciary have always been defended with an emphasis of the independence of institutions, however those in power have often turned a blind eye to the principle of impartiality. In other words, the emphasis on neutrality in the current proposed Constitutional change is a result of the reaction to the bureaucratic tutelage, which is trying to take the power of the democratic governance of political power under its jurisdiction.

Supreme board of judges and prosecutors of Turkey (HSYK)

The new Constitutional proposal reduces the number of members of the Supreme Board of Judges and Prosecutors (HSYK) of Turkey from 22 to 13, and ends the practice of direct election of judges from other judges in the HSYK. According to the proposal, the Minister of Justice and the undersecretary of the Minister will be members of the HSYK. Four members will be appointed by the President, and the remaining seven will be elected by the Parliament. The Parliament will select three of these members from the Supreme Court of Appeals, with two of these being a teaching fellow and the third being a barrister, and one elected from among the members of the Council of State.

The first point is an important departure from the old system and it abandons the method of selection of a number of members of the HSYK by judges and prosecutors. This process was first introduced as a democratic method by the AK Party in 2010. However, the practice of this method for seven years and two electoral terms has shown that it can have negative consequences posing a danger to the Turkish democracy.  Under the previous system, the HSYK members were elected by the judges and prosecutors of this country, but this election process became politicized, with blocks of voters following various political movements. The most powerful political movement was composed of the members of the Fetullah Gülen Terrorist Organization (FETO).  This caused great damage to the judiciary. The electoral procedure essentially insulated the courts from oversight, deterred judges and prosecutors from completing their primary duties, politicized the judiciary and encouraged the emergence of political or ideological camps among the judges and prosecutors. During the course of the HSYK election, the candidates were favored for their political views, beliefs, ethnic and sectarian identities rather than on their merit or professional experience. This should not be accepted under any circumstances for an institution such as the judiciary. This politicization of the judges was seen in the press releases of the HSYK, both before and after the two most recent elections in 2010 and 2014.

Additionally, all of the camps and political parties that were parts of the judiciary were opposed to the procedure of the election of the members. The main opposition party CHP proposed that only the highest courts be allowed to elect a member of the Constitutional Court. The election procedure was totally abolished in the proposal of the MHP.

The second important point is that a simple majority was insufficient for HSYK members to be elected by the Parliament. According to the proposal, the Justice and Constitutional Commissions of the Parliament appoint three out of five candidates to the HSYK. If candidates are not supported by a majority in the Commissions, three candidates must be elected through choosing by lot. In the General Assembly of the Parliament, there shall be two votes for each of the three candidates, with three out of five candidates presented for each open seat on the HSYK. In the event of no majority being secured, a lot will be drawn for the two candidates with the most votes.

It can be seen that the election of seven members by the Parliament by way of a qualified majority, was meant to prevent a simple majority and to force parties into a compromise. In response to these positive arrangements, we can say that the lack of recognition of the authority of the HSYK members to select a part of the Supreme Court and the Council of State is a deficiency of the proposal.

Removal of Military Courts

The proposal also provides a complete abolition of military prosecution. Article 13 of the proposal reads: “Military courts outside disciplinary courts cannot be established. In the event of a war, however, military courts may be set up to take charge of the crimes committed by soldiers in relation to their duties.”

The military jurisdiction is one of the most effective elements of the tutelage system that was later reformed with the establishment of the 1961 Constitution. After the 1960 military coup, the Military High Court of Appeals was established in the Constitution, and the Supreme Military Administrative Court was also added following the 1970 military memorandum.

In the aftermath of the 1980 coup, the power of the military jurisdiction was increased by enforcing its autonomy. With the 1960 coup d’état and the subsequent intervention of the army in the government, each Constitutional change has strengthened the so-called “guardianship function” of the military judiciary.

The present Constitution broadly defined the scope of the military courts to the point that was unacceptable in a democratic state of law, and in 2010 a Constitutional amendment partially addressed these issues. In spite of the steps taken to bring military tribunals under democratic rule of law standards, military courts were preserved as a separate judicial branch in addition to the civilian judicial jurisdiction. It is rare to find an independent military judiciary and a high court for military judiciary in Western democracies.

This is the case for the Supreme Military Administrative Court. It appears that military prosecution is an important tool for the military and for the system of judicial tutelage. In this system, the army develops “a two-headed structure in the judiciary” as a result of a desire to create its own autonomous domain independent of the civilian administration.

Finally, it is important to emphasize that one of the most important institutions in which FETO is organized is the military judiciary. This presence allowed a group to gain maximum leverage in the tutelary structure. Those who closely followed FETO pointed out that they were very powerful in the military judiciary, and included high level military judges. They were even almost completely controlled by them, and they had members in many important positions, such as the General Staff’s legal adviser. Additionally, the Ankara Chief Public Prosecutor’s Office made a clear statement regarding the activities of the FETO in an indictment presented prior to the July 15 coup attempt. It should be noted, however, that the question of military jurisdiction cannot be explained solely within the scope of the FETO probe, and cannot be resolved with the expulsion of judges and prosecutors tied with FETO. For this reason, a complete removal of the military judiciary was long overdue.

With the absence of a military judiciary and a removal of two high military courts, the number of members of the Constitutional Court will decrease from 17 to 15. Additionally, because of the change in the government system, the provision that excludes the judicial review of the activities of the President is removed from the Constitution. Finally, judicial review is strengthened by removing the provision that excludes judicial review of the decisions of the Supreme Military Councils concerning the members of the military.

The 1982 Constitution and the Limits of Politics 

As the determinants of the legal norms forming a state a constitution provide the main references to regulate state agencies and draw a general frame for the fundamental rights and duties of all. This aspect of a constitution defines its legal character. Thus the entire legal structure of a state is basically defined by its constitution, written or unwritten, which theoretically laid down the superior ground norm for its functioning. Moreover, a constitution, as a part of its technical function, transfers the values, that would dominate the political organization of the state, to a normative platform. At this point a constitution outstrips its legal nature and gains an extrajudicial identity.

These being the basic functions of a constitution, the Turkish Constitution of 1982 brought forth, since it came into force, a rather precarious situation for the Turkish legal and political systems. For this reason, the 1982 Constitution could be named as an “anti-constitution” for its objective is ‘to guard’ the state against society. The result, as far as more than thirty years of experience has shown, is that this constitution makes a preference for the side of the state in the individual-state balance when applied by a narrow literal approach. This constitution makes the individuals’ rights and freedoms vulnerable against the state authority by the means of sacralisation. Its preamble and unchangeable provisions attest to the uncompromising nature of the 1982 Constitution.

As a product of the coup d’état which took place in September 1980, the 1982 Constitution served, in line with the mind-set of the interventionist high-ranking officers, to ensure military tutelage over the political and the public spheres. The authorized bodies of judiciary, executive and legislation were regulated in accordance with the framework drawn by the founding ideology. Furthermore, steps were also taken to inhibit the actors who would use these bodies in future to overstep the “red lines” which had been determined during the constitution making- process. The very natural consequence of this situation was to prevent possible leakages of opposition which are realizable through democratic elections.

http://thenewturkey.org/turkey-erdogan-and-the-wisdom-of-the-presidential-system/

The Institutional Structure of the Bureaucratic Tutelage

The 1982 constitution carries an ideological view of social life and determines its borders. Secularism and nationalism laid down the main components of this view. The unchangeable first three provisions provide the textual basis of this mechanism. The constitution highlighted two main factors in the bureaucratic tutelage system, one being the judiciary while the second is the president office. Both of these institutions enjoy broad authorities but they are mainly politically unaccountable.

The judiciary ensured the politics to become judicialized by the means of transforming “independence of judiciary” into a myth. This way, not only the power domain of political authority was restricted but also those political parties which were considered dangerous have been closed down and pushed out of the system by the Constitutional Court.

It is a fact that the negative scene in question has lost ground by the democratization attempts of the Justice and Development Party (AK Party) within the scope of harmonization process to EU. These resulted in strengthening the civil politics.

The presidency could be considered as the other institution undertaking the carrier role of tutelage of the 1982 constitution. This continued to be the case until the constitutional amendment made in 2007. The mission attributed to this institution could be seen clearly by considering the constitutional powers and duties given to the president. The president, who has been elected by the parliament until 2007, exercised executive powers other than being only a figurehead as it is in the parliamentary regimes and was subject to slightest pressure to accountability. Thus, the president office turned out to become a vital instrument of tutelage. There are two dimensions of the constitutional nature of this office. First is the rather familiar and proclaimed role of the President of the Republic and the second is its capacity to strengthen the bureaucratic tutelage mechanisms. Moreover, the interventions made on the presidentially determined political domain of the Constitutional Court by both the president and the court members could be indicated as the clear evidence to this situation.

Obviously, the military and bureaucratic tutelage functioned with the contributions of the actors apart from two institutions. For example, the National Security Council (Milli Güvenlik Konseyi-MGK) which remained under the control of the military until 2000s or the High Council of Judges and Prosecutors (Hakim ve Savcılar Yüksek Kurulu-HSYK) as being the protectors of a specific ideology in judiciary were the effective institutions of this order.

It is a fact that the negative scene in question has lost ground by the democratization attempts of the Justice and Development Party (AK Party) within the scope of harmonization process to EU. These resulted in strengthening the civil politics. Two vital steps were taken to downgrade the tutelage by the constitutional amendments made in 2007 and 2010. By these amendments, presidency and judiciary, as the two vital institutions of tutelage, have become more accountable from a democratic viewpoint.

According a major amendment made in 2007, the president was to be elected by a popular election, which was practiced for the first time in 2013. Also, in 2010 the Constitutional Court and the High Council of Judges and Prosecutors were restructured to obtain a more democratic judiciary. Nonetheless these amendments remark to an unfinished ideal. The failures of the current state system and the revision of the position of bureaucracy toward democratic institutions still call for further steps.

The empowerment of the politics against bureaucracy has not been implemented only in constitutional dimension. Several steps have been taken in order to overcome centrist state administration by essential regulations and to strengthen the local administrations. Thus, efforts were made to create a transparent, politically elected and accountable administration mentality.

New Constitution and Legitimacy Gap of Politics

Recent public surveys show that approximately 70% of public demands a new constitution. The incapability of the Turkish Parliament to secure a new constitution bears the potential of undermining its credibility in the eyes of the populace.

The constitutional reconciliation commission which following the November 2015 elections resumed its activities offers an historic opportunity for drafting a new constitution. The political parties in the parliament need to take advantage of the connective and participatory power of the commission in order to increase the credibility of politics in the eyes of public and keep their promise for “new constitution”. However, that CHP has left the commission lately has a risk to miss this opportunity.

The constitution of 1982, which has been amended quite a few times since the day it was put into operation, failed not only to meet the popular demands but also to come up with a coherent and stable political mechanism. The gap left by legal politics has in time been filled by a bureaucratic tutelage which further complicated the functioning of Turkish politics. Despite many democratic steps taken by various AK Party governments the rationalization of Turkish politics and furthering the powers of legal political actors cannot be duly secured without a new constitution. On the other hand it should not be forgotten that the success of the new constitution making process is not only a structural imperative but it is also strongly demanded by the public. For this reason, elimination of the “presidentialism-centered” approach toward the new constitution issue of Turkey would provide a sound basis for the discussions.