DEBATE SPRING 2010
of members serving in the court to 17 and authorizing investigations. Authorizing the HSYK inspectors to Parliament to elect three members is good, but it's not conduct routine inspections is a progressive move. As enough. The selection of the remaining 14 by the presifar as permission for an investigation is concerned, I dent is wrong. From the very beginning, I have found have objections to the practice of the justice minister this system where the president selects one-third of the serving as the traditional chair of the board. The presmembers of official institutions to be quite dangerous ence of the minister is not a disaster, but his absence is and wrong. I see this as an insult to these institutions. preferred. A bridge is needed between the political As a university professor, I have not cast my vote in the administration and the judiciary. However, the Turkish institutional elections held in my university for years case confirms that justice ministers are unwilling to because there is no reasonable explanation for this sysserve as that bridge. It is enough to have the undersectem. On what grounds do you appoint the candidate retary of the Justice Ministry on the board because he receiving the smallest number of votes despite an elecperforms both political and administrative functions. tion being held? This proves that, like the drafters of the Likewise, the board should be able to pick its own presSept. 12 system and the Constitution, the AKP seeks to ident to ensure greater legitimacy and credibility of this protect itself via state institutions. The drafters of the draft constitutional amendment. 1982 Constitution created the presidency as an instituNow let us take a look at subjecting to prior approval tion of guardianship. The coup makers wanted to make the authority to initiate an investigation in relation to sure that the president would always be somebody judges and prosecutors; the proposal is made by the aligned with their worldview. The AKP now holds that board, and the approval is given by the justice minister. the president will be somebody who would at least be But the minister is already the chair of the board. The lenient toward its policies. Therefore, justice minister is not allowed to take they are seeking somebody who would action in the absence of a proposal by The AKP experienced safeguard their position. However, this the board. An investigation is not initidemocracy more like a system could be unexpectedly blocked ated if the minister does not grant tool; however, it went in the future. In particular, the crises approval even if the board proposes it. we encountered during the presidential through a process of Yet, it seems that there is a balanced election may be repeated. Imagine mechanism in the system. For many internal transformaright-wing voters electing another years, the HSYK has been requesting tion as the pressure Süleyman Demirel. Imagine how this the establishment of a secretariat. Now on it intensified system would work in that case. the draft reform has created this instiSeeking to guarantee its short-term tution. The appointment of the secreinterests is a reflection of the internal conflicts and tary-general by the Justice Ministry is wrong. This ambivalence of the AKP. It shows that the party does undermines judicial independence. The secretary-gennot have a coherent democratic project. They may eral will be picked by the justice minister among three become the victims of the system they created. candidates to be offered by the board. This is some sort of balance, but the board could have been authorized to My biggest objection is to the fact that a substantial pick its own secretary-general. There are also demands segment of the people are convinced that the operafor a separate budget and a separate building. They are tions seek to undermine the prestige of Parliament. promising that they will do this with the introduction of Parliament is an important actor with the potential to a new law. This system is more or less consistent with create a consensus. That has nothing to do with politithe requirements referred to by the European cization or a lack of objectivity. In the presence of necCommission during its consultative visits to Turkey. The essary arrangements, Parliament is able to pick the best reports, however, underlined that the minister should candidates for the Constitutional Court via consensus. not serve on the board. In an attempt to secure its posiIt is not possible to agree with the objections sugtion, the AKP hesitated to take action for full democragesting that the dissolution of parties become polititization. cized. I believe that Parliament should have greater Proposals for Constitutional Court are not adequate authority under the Venice Criteria. This is a product of There are serious problems with regard to the structhe AKP's eagerness not to create concerns for the ture of the Constitutional Court. Increasing the number state elites. The system should have been based on the 58
Sancar left off. Yes, I agree that there are some problems with regard to Article 69. It would be appropriate to transfer the authority of the Constitutional Court with regard to financial supervision of political parties to the Court of Accounts. I believe that the Constitutional Court filed such a request as well, because it was performing this task by referring the cases to experts. It is also good to see that the initiation of party dissolution cases is to be made by a commission to be set up in Parliament. However, whether this is to be done by a commission or by a qualified majority of the members of Parliament should be discussed further. However, we see that the constitutional language on "becoming a center" is still preserved. I think that the criticism by the Venice Commission in 2009 did make some references to this issue as well. About the dissolution of political parties by judicial institutions, the amendment gives partial control to Parliament. Now I see that the issue as to whether the prosecutor should seek the authorization of Parliament or Parliament should grant the authority to the prosecutor is being discussed. Parliament referring the dissolution of a political party to judicial institutions would mean that Parliament is actually dictating the dissolution. However, the judicial institutions are the best bodies to examine the merits of the dissolution of a party. Since prosecutors are recognized as having this authority, the chief prosecutor of the Supreme Court of Appeals has some useful opportunities and resources including the party registers. For this reason, when the prosecutor concludes that the activities of a political party have amounted to a level justifying its dissolution, he refers the case to Parliament in an attempt to get authorization to initiate a case. And, of course, we are speaking based on developments during the term in office of the current and previous chief prosecutors. Unfortunately, most of the prosecutors serving in the office so far, including current Supreme Court of Appeals Chief Prosecutor Abdurrahman Yalçýnkaya, have abused their power and authority and powers. The basis of our
practice of Germany. The prosecutor should not be allowed to initiate an investigation into a political party without prior authorization by Parliament. Secondly, the outcome of the investigation should be referred to Parliament for approval. There, you should seek a qualified majority. In other words, Parliament should have the final word even if the Constitutional Court rules for the dissolution of a certain party. How could you leave a political matter in the hands of pure bureaucrats? It seems to me that all these are traces of the guardianship system. Whether the constitutional package should be voted on as a whole or in parts is a matter of controversy. It is true that holding a single referendum for all the proposed articles is a necessity in most cases. I think that the current process suffers from some problems arising from the incoherent stance of the AKP during this package's drafting process. A simple package could have been drafted, and that package could have included some articles on liberties, the judiciary and party dissolution. The judicial reforms would constitute a large package with a number of sub-themes. All these issues could have been presented in a single package because of the common outlook surrounding them. However, when you offer a package including elements that barely have any common ground or connection, it will be difficult to hold a referendum for the entire package. The package falls short by not making any reference or amendment to Article 68 of the Constitution, on party dissolution. You could have included a provision requiring the promotion of violence as a basis for party dissolutions, and in such a case you would have drafted a package consistent with European standards. In the end, the package falls short in many respects; but as a whole, it is a huge step forward for the sake of further democratization. I believe that it deserves some critical support. Moderator: Mr. Sancar, thank you very much. I am giving Mr. Gündel the final word. Ahmet Gündel: Let me continue from where Mr. 59
The son and daughter of the republic: The two statues in front of the new building of the Turkish Constitutional Court were made an issue of discussion in the Turkish Parliament. The minister of justice declared that the statue was not of Lady Justice, but of a Turkish girl from the first republican generation symbolizing justice and determination at the same time; hence her eyes were open. The " Lady of the Turkish Republic" wore a traditional Anatolian dress. PHOTO: ALÝ ÜNAL