TURKISH CONSTITUTIONAL AMENDMENT PACKAGE REFERENDUM & DEMOCRACY

 

I. Introduction: « Socrates and Democracy » 

Spartans blockade Athens fleet under the commandership of Colon at the Lesbos Island in 406 B.C.  Afterwards, Athens sends a new fleet to save Colon.

Athens sinks Spartan ships, and saves Colon in the battle. However, upon their return, 8 strateges, commanding the fleet, are tried in court for failing to save Athenian marines who fell into the sea during the battle. But they were hanged as a result of a voting. Only Socrates stands against the court, defending that 8 strateges were supposed to be voted individually, not altogether as a whole.

Socrates asserts that if the voting ends with only a single “Yes” and “No”; but if there are multiple items to be voted, a single voting could not be healthy or it could be misleading.

He was found right, in time, and this is set as a principle in democracies.

II. Referendum: « Voting for Political Will rather than the Constitutional Amendment Package »  

We will have a referendum on September 12, 2010.

Just like in Athens in 406 B.C., we are asked to vote for a whole package instead of item by item voting. 

In fact, in our recent history as well as within the European Union, there have been votes held similarly.

However, what is people are asked during such votes, though indirectly, is to show if they agree with “the politics imposed those votes”; it is not to see whether or not people accept any of the amendments.

Today, the opposition is in the opinion to carry the referendum into a similar platform.

If the opposition had wished, they could have approved all articles except temporary items, Articles 144 and 149, in particular, and could have force the Parliament to drop these articles off the package.

Their permission to keep these Articles within the package, in fact, cannot be explained otherwise unless the Administrators of the Republican People’s Party (CHP) are perfectly aware of the situation.

In both cases, we will see in the referendum in front of us, how risky is their behaviors.

III. Legal Systems: « Judicial Independence and Impartiality»

On the other hand, in objections to the amendment of Articles 144 and 149 in addition to temporary ones, it is claimed “amendments will remove independence of the judiciary”.

There is a misunderstanding here. As known, symbol of justice is the justice lady wearing a blindfold with a set of scales and sword in her hands (Themis).

The focus here is not independence, but impartiality of justice. In fact, symbolizing a woman rather than a man, even indicates that women in history were not independent when this symbol was accepted.

In the Continental European system, the judiciary is “impartial”, but not “independent” (except Anglo-Saxon legal system).

For this reason, the expression of “democratic state government” is easily recognized in the states adopting the Anglo-Saxon legal system.

In the Continental legal system, although the judiciary is impartial, but it generally depends on laws promulgated by a legislative body.

However, we cannot say this for the Constitutional Court established by the 1982 Constitution.

IV. Democracy: « Stability, Balance and Control»

Our High Court is not an ordinary Constitutional Court. As you know, the Constitution in force abolished the double house (bi-cameral) system of the 1961 Constitution.

But in democracies, significance of double house lays in that both have different election date, period of duration and renewal system.

Significance also lays in preventing radical changes in state policies from one election to other. This is a legacy inherited from ancient Hittite to modern democracies.

Current Constitution introduced the “Constitutional Court” in replacement of the “Senate” which was abolished by the 1961 Constitution.

In other words, decisions disturbing the government today and decisions somewhat political are the Constitutional Court’s very nature. Besides, all decisions are democratic.

If willing parties examine the struggle between the US President Franklin Delano Roosevelt and the US Supreme Court, they will realize this does not take place only in Turkey.

V. Conclusion: «Judiciary’s Impartiality and Serious Threat Against Democracy»

The most critical amendment, we believe, jeopardizes the said inherent characteristic of the Constitutional Court.

As for the amendments in the package, we will not repeat the objections here.

We will only satisfy to say that through these amendments the Constitutional Court becomes dysfunctional.

Let us give one single example: “If a politician dominant in Parliament gains required majority tomorrow, he would be able to remain in office lifetime”. Today’s Constitutional Court can stop it, but after amendments it will not be able to do so.

Even this single fact is enough for us to think seriously when we vote.

Brussels, August 30, 2010

Hakan HANLI, Esq.

Senior Attorney-at-law

International & European Law, Ph.D

Member at Ankara & Brussels Bars

« IUS EST ARS ÆQUI »

 

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