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The current Constitution, prepared following the Sept. 12, 1980 coup, was
approved in a 1982 referendum.
The Constitution has been amended 16 times in the
last 28 years in line with the demands of nearly all
political parties and nongovernmental
organizations. The package that is going to be put
to a referendum will bring major changes
Military personnel who are dismissed by YAŞ will have the right to appeal to the
judiciary, the right to legal remedies and the right of defense. Military personnel
who are expelled from the TSK for engaging in “reactionaryism” will be able to
appeal to the judiciary.
Individual freedoms
Citizens will be able to petition Constitutional Court
Parties will not be shut down, deputies will not lose seats
Since the structure of the Constitutional Court will change, closing down parties
will not be as easy as it used to be. Deputies will not be banned from politics even
if their party is closed down because of their actions and discourse. They will be
able to continue participating in politics.
The number of members of the HSYK, known for interfering in the judiciary, will
increase from 7 to 22. Members will no longer be elected only by the Supreme
Court of Appeals and the Council of State. A total of 11 judges from around
13,000 judges will be appointed to the board to represent judges on the bench.
The HSYK’s decisions, like YAŞ decisions, will be open to judicial review.
Prosecutors and judges dismissed by the board will be able to challenge dismissal
decisions in court. Prosecutors and judges will not encounter unfair treatment, as
was the case with Ferhat Sarıkaya and Sacit Kayasu.
Privacy to be protected
The coup was a dark part of many people’s lives, and the junta blacklisted many
in the country. With the constitutional package, which would protect personal
information, blacklisting will become history. Keeping records of a citizen’s
name, age, address, marital status, telephone number, passport number,
background information, photograph, voice recordings and fingerprints will be
prohibited unless the individual has given consent. People who blacklist others
will be subject to legal action. Everyone will have the right to learn if their
personal information has been collected.
Turkey is one of the few countries in the world with a dual judicial system. With
the Sept. 12 Constitution, crimes committed by military personnel are reviewed by
military courts. According to the Sept. 12 Constitution, military officers may only
be tried in military court, even if they commit a crime against the democratic
regime or are involved in a coup plot or even in trafficking drugs. According to an
amendment to Article 145, military officers can only be tried in military courts for
crimes related to military duty and that require disciplinary action. The
amendment also stipulates that civilians can never be tried in military courts. The
amendment will provide security of tenure for military judges and prosecutors by
liberating them from the chain of command.
The Constitutional Court has impeded democracy with several of its decisions on
closing down political parties, the parliamentary quorum of 367 for presidential
elections and by annulling legislation that would have allowed students to wear a
headscarf in universities. An amendment to Article 146 of the Constitution will
increase the number of Constitutional Court members from 11 to 17. Parliament
will appoint three and the president will appoint 14 of the members. The
Constitutional Court will consist of two parts and function as a General Assembly.
Members can be re-elected at the end of their term. These changes would make it
very hard for the Constitutional Court to make anti-democratic decisions.
Just like YAŞ decisions, HSYK decisions regarding dismissals are also exempt
from judicial oversight. For example, former Şemdinli prosecutor Ferhat Sarıkaya
was stripped of his right to practice law by the HSYK and could not pursue any
kind of legal remedy. With the amendment package, such decisions by the HSYK
will be open to judicial review. The HSYK will also be housed in a separate
building and have its own secretariat and budget.
The minister of justice will not participate or vote in HSYK meetings in which
decisions are made on critical matters such as appointments, promotions. The
HSYK General Assembly will be able to convene even if the undersecretary
cannot participate in the meeting. The duties and powers of the General Assembly
and several departments will be specified by law. Inspectors who monitor and
investigate judges and prosecutors will be divided into two groups known as board
inspectors and justice inspectors. Board inspectors will work with the HSYK,
while board inspectors will work with the Ministry of Justice.
The package also offers a solution to problems that businessmen frequently face.
Under the current system, people under investigation or facing prosecution can be
prohibited from traveling abroad. If a businessman has a small tax debt, he could
be banned from leaving the country. This practice, which the European Court of
Human Rights (ECtHr) disapproved of in 2006, would also be changed. The scope
of the right to travel is being expanded in the constitutional amendment package.
According to the amendment, people facing investigation and prosecution will be
allowed to travel abroad as long as there is no court order issued prohibiting them
from doing so.
If the amendments are approved, workers, who until now could only be a member
of one labor union, will be allowed to become a member of more than one. While
this will increase competition between labor unions, it will also have benefits for
workers. Additionally, warnings and reprimands given to government employees
will be open to judicial review. Government employees who believe they have
been punished unfairly will be able to make claims in court.
If the outcome of the referendum is in the affirmative, all citizens will be able to
file a petition with the Constitutional Court. Everyone -- including people who
have been discriminated against, people who have faced religious and moral
pressure -- will be able to file a petition with the Constitutional Court instead of
the ECtHR. Turkey has gone to the ECtHR a total of 2,295 times ever since the
court was established in 1959. In 2,017 of these cases Turkey was ordered to pay
high amounts of compensation. With this amendment, the millions of dollars paid
because of ECtHR rulings every year will decline.
An ombudsman mechanism will be set up. A similar practice was used in the
Ottoman Empire, and the practice has a long history on the Scandinavian
Peninsula and is now common in Western democracies. Before going to court,
citizen will be encouraged to first try solving their problems by way of the
ombudsman. Citizens whose rights are violated or face mistreatment in any state
institution will be able to address the problem by way of a public monitoring
(ombudsman) system that will be set up in affiliation with the Parliament and
without having to apply to a court.
08.08.2010
News
ÖMER ŞAHİN, DİLEK HAYIRLI