CONSTITUTIONAL AMENDMENTS OF TURKEY: REASONS, FACTS, AND CONSEQUENCES At the end of a process, which is started with a legislative proposal before the Grand National Assembly of Turkey on 16th of December 2016, Turkey made a constitutional amendment, within the conditions of state of emergency, declared following the attempted coup of July 15, 2016. This was the 19 th amendment that current constitution of Republic of Turkey has gone through. At the referendum of April 16, 2017 pro-amendment votes won a bare majority with, 51.41% votes for yes and 48.59% votes for no. Since the majority is not substantially constituted nor based on all segments of the population, the amendments became doubtful and indeed resulted with huge debates. Was it a democratic process for making a constitution? Current constitution of Turkey was amended 18 times till to the last one. The reason of such an enormous number of amendments is its feature of being a product of military coup of 1980. Particularly with the amendments of 2001, supranational treaties on human rights are put above the ordinary laws within the hierarchy of norms. With this, Turkey became a member of the family of European countries as regard the constitutional values. Although sometimes certain NGOs suggested several constitutional amendments, present amendment contradicts with all of them. The common denominator of all suggestions was primarily strengthening parliamentarian regime and assuring social rights and freedoms along with judicial independence. However, new constitution is apart from this axis, for following reasons: - The proposal of amendment prepared through the private negotiations of only two parties rather than the reconciliation of all parties represented at Grand Assembly. - Our Bar Association was not asked for an opinion on the amendment. The preparation process of the legislation was performed without comprising a democratic constitutional public opinion. The
authors of the legislation completed all the preparation process in a smoke-filled room. At Grand Assembly, legislation process of the proposal was hasty. The public was devoid of information and could not participate to the debates. Parliamentary debates were hold without adequate transparency. Television channel of Grand Assembly did not broadcast. The debates exceeding the late nights, insistently continued till to the mornings. During the poll, some deputies violated the principle of secret ballot. As a result, Act no. 6771 legislated in order to be presented to the public by the referendum, even though the public opinion is not adequately informed. Was it a democratic referendum? Since the majority was not enough for making a constitution, the Act no. 6771 had taken to the referendum following its legislation. When we look to the referendum process, we cannot say, with inner peace, that pros and cons of the amendment had expressed themselves coequally. Let us list the facts: - State of emergency is not abolished; the referendum took place under the condition of state of emergency. - Both views were not equally presented on media. The arguments of no were almost absent on media; they could only find limited availability at a few newspapers, websites, and tv stations. - Some public officers explicitly boosted the propaganda for yes and banned the publicity of no. - President of the Republic, who is supposed to be neutral due to constitutional status, ran a campaign on behalf of the amendments. - Favors of yes, conducted a campaign in manner that, as if it is not only a referendum but also a war for independence, which supposed to respond the perpetuity issues of the country and the no voters were alleged to be criminals.
As taken from the standpoint of referendum techniques, each article was not put to the vote separately for the sake of being able to know what to vote for. The amendments were given to the voters as a whole, on which they are asked to say yes or no. It was not possible for the voters to have a complex consideration for each article. Voters voted on the base of their political closeness and by seeing the referendum as a vote for confidence in the name of the president- on the base of their sympathy with the President Erdoğan. The office for election in Turkey is the Supreme Committee of Elections, which is responsible for the elections and has judicial power. At the end of the referendum process, the Committee passed a judgment, rendering the whole voting process dubious. Committee decreed to accept the votes even if they or the envelope had not been signed by polling council. The decree, is in contradiction with clear provisions of relevant law and even to the precedents of the Committee itself. Present constitutional amendment of Turkey is carried out through an election, to be called as plebiscite, and with the doubtful decision of the Supreme Committee of Elections. Are the content of the amendments is democratic? The amendment is suggested by two political parties. These parties, which are placed on the right side of the political spectrum and namely Adalet ve Kalkınma Partisi (AKP) [Justice and Development Party] and Milliyetçi Hareket Partisi (MHP) [Nationalist Movement Party], took joint action in this process. But even this joint action did not ease the fears of the at least a part of- electors of these parties, about the one-man regime. Many objected to the amendment, particularly the members of the left-oriented parties of the Grand Assembly, basing on the same worries. They argued that the amendments were prepared essentially for the sake of the President, who uses a de facto power even by violating the constitution in effect.
By this amendment, against the letter and spirit of the Constitution, a never-seen kind of governmental system, namely unity of powers, is established. Here are the evidences for our argument: - By the amendment, the executive power is accumulated to the one man s hands. - The President is equipped with the power of dissolution of parliament and mutual power of renewing the elections for Grand Assembly. - The President has given the power of issuing statutory decrees, which alludes to partly assign of the legislative prerogative of the Grand National Assembly of Turkey. - The President is given the power of proposing budget law. - By the amendment, the members of present High Council of Judges and Prosecutors are reduced and it is renamed as Council of Judges and Prosecutors. The judges cannot directly elect for the council membership anymore. - 13 of the members of Constitutional Court, which is reduced to 15, will be appointed by the President. - The political irresponsibility of the President is kept. Only an almost unfeasible criminal mechanism of impeachment is envisaged. - The President is equipped with the solitary use of the power in state of emergency. - The President has given the privilege of being a member of a political party. By the amendment, Mr. President Erdoğan is re-elected as the chairman of AKP at May 21, 2017. The election took place hurriedly, even without repealing the entangling provision of law. This is one of the most arguable provisions of the constitutional amendment. The constitutional amendment does not bring a democratic presidential system, based on separation of powers. It provides some
sort of unity of powers, which may never belong to any current democratic governmental system. The Constitution stipulates the security of fundamental rights and freedoms of a society and separation of powers. After the amendments, there is a debate and concern among the lawyers of Turkey, whether there, still, is a constitution in the proper meaning of the word. Certainly we still have a formal constitution, but it is now doubtful whether it is real or nominal. In short, the constitutional amendment that I wanted to brief shortly, opened the way for concerns about the secular and democratic features of the regime of Republic, since it may lead to a party-state.