Turkey’s top justice official has said he expects the constitutional amendment package, which survived a crucial test in the top court and is on its way to a public referendum on Sept. 12, to be approved by a landslide as it involves expanding rights for all people across party lines.
In an exclusive interview with Sunday’s Zaman, Justice Minister Sadullah Ergin explained that expanding union rights for workers and for government employees, broadening domestic remedies for complaints on fundamental human rights, removing military tutelage in the Constitution, boosting privacy protections and introducing judicial review for decisions made by state institutions will benefit all citizens and likely garner “yes” votes from the overwhelming majority of the electorate no matter how they voted in the last national elections.
“I think opposition parties will have a hard time explaining the reasons for saying ‘no’ to these changes when it comes to the public referendum,” he said, stressing that the “no” campaign will face enormous challenges from their voter base. Ergin believes that Sept. 12 will be a major milestone in the democratization of Turkey, though he admits it will not solve all the shortcomings of the Turkish Constitution. “It will lay the groundwork for a major overhaul later,” he added.
He did not hide his disappointment, however, for the minor changes to the package introduced by the Constitutional Court during the review process. “I think the court repeated the same mistake it did in 2008 by examining the constitutional amendments on substance,” he underlined, emphasizing the point that the Constitution expressly forbids reviewing changes on substantive grounds.
“This is the usurpation of power of the legislature and a violation of the principle of separation of powers,” he lamented.
He seemed upset about the changes to the election system for which members to the Supreme Board of Judges and Prosecutors (HSYK) were elected. According to the court’s revision, each member can cast multiple votes, resulting in the dominance of the majority interest group in higher judicial bodies. The justice minister believes that democratic representation and pluralistic structure are violated with the right to vote multiple times for different nominees. He also regrets the removal of candidates who majored in economics or who are senior executives. “The court limited the pool of candidates from which the president can select,” he said.
Turkey’s top justice official is also hopeful that with new domestic remedies enshrined in the reform package the number of cases ending up in the Strasbourg-based European Court of Human Rights (ECtHR) will decline dramatically. He cites the office of ombudsman and the right of the individual to petition the Constitutional Court as major steps to addressing the grievances of citizens for violation of civil rights. “I reckon the decisions taken by the Constitutional Court on individual petitions will serve as an example and possibly set precedents for the judges in appellate courts,” he remarked.
Ergin realizes his work is cut out for him if the reform proposals are approved in the public referendum as many laws need to be enacted to harmonize constitutional changes with legal texts including the operation of the top court itself. He said Turkey will work closely with the European Union Commission and Venice Commission of the Council of Europe to make sure changes are in line with European norms and standards. He expressed pleasure over the endorsement given by the EU and the Venice Commission to the reforms, adding that he will be visiting Brussels in mid-July to brief his counterparts on details of the reform process.
He criticizes the opposition for not being open to compromise for the crucial reforms needed for Turkey and recalled how his government’s calls in 2008 fell on deaf ears as the main opposition party did not even respond by declining to send any member to a compromise commission charged with drafting the Constitution. “Now raising these claims that we did not seek a compromise is far from the truth and mere propaganda,” he said. Ergin also pointed out that his government did not act in haste and that they have been working on constitutional changes since 2007, asking for input from all stakeholders including civic groups.
How did you react to the decision made by the Constitutional Court on the amendments, which effectively kept the package intact with minor changes on the substance?
I think the court repeated the same mistake it did in 2008 by examining the constitutional amendments on their substance. Article 148 of the Turkish Constitution, which establishes the functions and powers of the Constitutional Court, clearly states: “The Constitutional Court shall examine the constitutionality, in respect of both form and substance, of laws, decrees having the force of law and the Turkish Parliament’s Rules of Procedure.
“As for constitutional amendments, they shall be examined and verified only with regard to their form. However, no action shall be brought before the Constitutional Court alleging unconstitutionality as to the form or substance of decrees having the force of law issued during a state of emergency, martial law or in times of war.”
This is the usurpation of power of the legislature and a violation of the principle of separation of powers. Having said that, I think this reform package is still an important one even after minor changes. Sept. 12, when the public referendum will take place, will be a major milestone in the democratization of Turkey. I admit it will not solve all the shortcomings of the Turkish Constitution, but it will certainly set the groundwork for a major overhaul later. We have to take this referendum very seriously.
The court annulled the selection of members to the HSYK and to the Constitutional Court based on a single vote for every member who casts a vote. It reverted to multiple votes for each nominee. What does this mean in practice?
Abolishing the single vote in the election of members in the higher judiciary damages the plural structure in these bodies. What we proposed and adopted in Parliament was that each voter would have had the right to only one vote. This was to ensure the democratic representation and pluralistic structure in judicial bodies. A different vote for each candidate risks the dominance of the majority.
Another change that the court made removed the possibility that the president could appoint candidates to the HSYK from a broader pool including economists and senior executives and limited candidates to only ones with a legal background. Pluralism was reduced with this change. I do not think the court can come up with a satisfactory explanation for these violations in its reasoned decision. It will be very difficult to offer a rationale in line with the legal principles and universally accepted rules for these changes.
As you know Turkey ranks number two in terms of cases ending up in Strasbourg-based ECtHR. Do you expect that will change with the introduction of these constitutional amendments, especially with the right to petition to the Constitutional Court directly?
I think with these changes the right to seek a resolution at the national level will be expanded. For example, with the establishment of an ombudsman’s office, citizens will be able to direct their complaints about injustices regarding citizen rights as well as disputes with state agencies to the office of the ombudsman. This will insure resolution without even having to go through lengthy legal proceedings.
Secondly, the introduction of the right for the individual to petition the Constitutional Court will help citizens settle their disputes on human rights violations after the exhaustion of domestic remedies. Not all citizens can afford to take their case to the ECtHR. Now they have the option to take their case to the top court to address injustice and compensation claims. This will help reduce the number of cases going to Strasbourg from Turkey. I believe the decisions taken by the Constitutional Court on individual petitions will serve as an example and possibly set guidelines for the judges in appellate courts.
But the definition of fundamental rights and the approach in the Turkish Constitution differs from the one enshrined in the European Convention on Human Rights (ECHR). The Venice Commission expects that it will not be easy to work on a new constitutional court law to harmonize it with new amendments.
We are aware of this problem. The Turkish Constitution is a product of the 1980 military coup and was prepared under the tutelage of the military. Unfortunately, that is what you deal with when you have been trying to change the Constitution in a piecemeal approach since then. We have not started to complete the overhaul of the Constitution. This is just a start and can pave the way for more comprehensive changes in the future. I imagine the public will expect all parties to come up with their own constitutional overhaul plans on the eve of national elections next year.
It is worth noting here that most of the violations of articles of the ECHR are committed in the higher judiciary during the appellate process. The courts of first instance reach decisions in, on average, eight months. But there is quite a backlog at the Supreme Court of Appeals. With respect to the efficiency of the judiciary, we have made progress in establishing regional courts of appeal. The law on these courts was adopted, and the HSYK took the decision to that effect. We are working on the human resources part. I expect they should be operational by the end of the year or early next year.
One of the criticisms leveled against the government was that the government did not consult all the parties and civic groups to insure a broader engagement of all stakeholders so that a compromise can be reached. Is that a fair complaint?
This is very unfair. First of all, on Sept. 4, 2008, then-Parliament Speaker Köksal Toptan sent a letter to all party groups represented in Parliament to nominate two deputies to a “compromise commission” to work on a draft for constitutional changes, EU harmonization laws, changes on parliamentary bylaws and important laws such as the Political Parties Law. The commission was to be represented with equal numbers from all parties no matter how many deputies they have on the floor. All parties except the main opposition Republican People’s Party (CHP) sent representatives.
The CHP also opposed changes to the bylaws in Parliament allowing the legislative agenda to move faster even though changes were approved by the Bylaws Commission, whose CHP members joined in the unanimous vote. Now raising these claims that we did not seek a compromise is part of their propaganda and does not reflect the truth whatsoever.
Do you agree with the accusation that the government acted in haste on these changes?
This is not true. We have been working on constitutional changes since 2007. We even set up a committee of law experts to draft one in line with the European norms and standards. But the closure case launched against the governing Justice and Development Party (AK Party) prevented this from happening. The party barely survived the closure. Then we set out to change the most urgent ones and combined them into one package. We have visited all parties and civic groups asking for input and welcomed suggestions.
Will this referendum turn into a vote of confidence for the ruling AK Party government?
We realize that the opposition is trying to campaign as if this referendum is somehow a vote of confidence for the government. But they are mistaken. First of all, the changes proposed in this package are for the benefit of all people across party lines. The expansion of union rights, the right to protect privacy, ombudsmanship, the right of the individual to petition the top court and the protection of the rights of women and children and all others are for the benefit of all people, not just AK Party supporters.
I’m anxious to see how the opposition parties will be able to explain the “no” campaign to their voters. I assume it will be very difficult to convince them to say no. Secondly, we need to remember the 2007 public referendum when the people voted overwhelmingly for the approval of a constitutional amendment to allow the election of the president directly by the voters. Though we received 47 percent of the electoral vote in the national elections in 2007, the approval rating for the public referendum a couple months later was 69 percent. Hence it would be a major mistake on their part to try to picture this referendum as a test for the government.
How do you respond to the allegation that the executive is trying to encircle the judiciary with these changes and risks politicizing judicial bodies?
In fact the reform package aims to insure the opposite, making the judiciary more independent from outside intervention. We all have witnessed that some people in the judiciary act and speak like politicians, and some decisions in high judicial bodies are very controversial and difficult to justify on legal grounds. Now the powers of the justice minister and his undersecretary will be curtailed with these changes. The right to appoint inspectors for the examination of judicial misconduct will be delegated to the HSYK. This high judicial council will be divided into two chambers, and each chamber will deal with specific tasks such as discipline, dismissal and promotion matters.
The board members will be increased to 22, insuring a broader representation among different segments of the judiciary. In the existing system, only higher judicial bodies can appoint members to the HSYK. Now all judges and prosecutors would be able to participate in the election of members to this board.
Do you think it is possible to try 1980 coup plotters if the changes are adopted in the referendum? Some scholars argue the statute of limitations has expired on this.
Well we will finally get rid of this archaic Article 15 that extends legal protection and immunity for generals who staged the military coup in 1980. They were never put on trial for their crimes. Many people still feel the pain because they or their relatives endured harsh treatment, torture and/or killings during the military regime. They need closure. The courts will decide on whether or not the statute of limitations has expired on these crimes or whether these generals who are very old are fit to stand trial. These are secondary issues that the legal system will need to sort it out. The most important issue is that we get rid of this military tutelage in the Constitution that has been hanging over the public will for 30 years.
Do you feel confident enough to say that the military justice system will be limited to dealing with only military matters and that all others will fall under the jurisdiction of the civilian justice system?
Yes. With these changes, civilian-military relations in Turkey were reorganized. Once adopted, we will never see a civilian being tried in military courts. This arrangement is in line with modern legal systems. Military courts should look into matters directly linked with soldiers such as disciplinary issues.
What would be the economic benefits of these changes for citizens?
Investors, be they domestic or foreign, always look at the confidence level in the judiciary. Global capital in particular is on the lookout for less certainty before moving into a country. If you have a judicial system that warrants confidence and provides legal protections, then you will be able to lure foreign investors to your country. This is very natural.
I know many Turkish investors come and ask me whether it is safe to invest in a foreign country from the perspective of legal protection. After all they are about to pour millions and in some cases billions of dollars into a foreign country. We examine their legal systems and try to ascertain to what degree they offer protections for businesspeople. The same is true for Turkey as well. In the past we have seen how some of the decisions taken by Turkish courts in privatization cases hurt our economy.
Are you happy with the reaction of the EU on these changes and to what extent did these changes harmonize Turkish laws with European standards?
We are happy to see that the European Union endorsed these changes. This was expected because we prepared the draft changes in close consultation with the European Commission. After the unofficial results of screening Chapter 23, which deals with justice, were relayed to the ministry, we drafted a comprehensive legal reform strategy paper. All higher judicial bodies signed this document in agreement. The EU Progress Report had commended this step in its latest report. Then we developed an action plan.
We reviewed the practices of all EU member states in revising changes to be introduced to the higher judiciary and looked at opinions expressed by the Venice Commission as well as the Consultative Council of European Judges, both of which are institutions in the Council of Europe.