Yeni Anayasa Roporu Ing(1)

8/3/2019 Yeni Anayasa Roporu Ing(1)

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Bekir Berat ZPEK

Levent KORKUT

Murat YILMAZ

Vahap COKUN

Yusufevki HAKYEMEZYusuf TEKN

For a Fully Democratic Turkey

Not Constrained by Guardianship

New Constitution

Based on Human Dignity

This report was originally published in May 2011and translated to English by Nasuh Uslu


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SDE INSTITUTE OF STRATEGIC THINKING

etin Eme Bulvar Aa veler Mh.4. Cd. 1330. Sk. No: 1206460 ankaya / ANKARATel. : +90 (312) 473 80 45Fax : +90 (312) 473 80 46e-mail : [email protected]

GRAPHIC - PRINT

Baak Matbaaclk ve Tantm Hiz. Ltd. ti.Atatrk Bulvar Meka Plaza No:5/15Gimat / Yenimahalle - ANKARATel. : +90 (312) 397 16 17Fax : +90 (312) 397 03 07e-mail : [email protected]


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Ayhan DNER, Assist. Prof. Dr. / Erzincan University

Blent YAVUZ / Dumlup

nar University Cennet USLU, Assist. Prof. Dr. /Gaziosmanpaa University Faruk BLR, Assoc. Prof. Dr. / Seluk University Hikmet TLEN, Dr. / the Constitutional Court Hseyin ZCAN, Assoc. Prof. Dr. / Istanbul University Levent KORKUT, Assist. Prof. Dr. / SDE New Constitution Working Group Murat YANIK, Assoc. Prof. Dr. / Istanbul University Murat YILMAZ, Dr. / SDE New Constitution Working Group Musa SALAM, Dr. / the Constitutional Court Nihat BULUT, Prof. Dr. / Erzincan University Vahap COKUN, Assist. Prof. Dr. / SDE New Constitution Working Group Yasin AKTAY, Prof. Dr. / SDE Chairman Yusufevki HAKYEMEZ, Prof. Dr. / SDE New Constitution Working Group Yusuf TEKN, Assoc. Prof. Dr. / SDE New Constitution Working Group Yksel METN, Assoc. Prof. Dr. / Sleyman Demirel University

4th Workshop: Turkeys Administrative Structure and the Principle ofDecentralization in the New Constitution Bayram ZBEY, Assist. Prof. Dr./ Gaziantep University Blent ALGAN, Assist. Prof. Dr. / TOBB Economy and Technology University Hamza ATE, Assoc. Prof. Dr. / Kocaeli University Hseyin KALAYCI, Assist. Prof. Dr/ Maltepe University Halil KALABALIK, Prof. Dr. / Sakarya University Melikah YASN, Assoc. Prof. Dr. / Marmara University Murat YILMAZ , Dr. /SDE New Constitution Working Group

Ramazan ALAYAN, Assoc. Prof. Dr./ Krkkale University Sevim BUDAK, Assoc. Prof. Dr. / Istanbul University ermin ATAK, Assist. Prof. Dr. / Dokuz Eyll University Vahap COKUN, Assist. Prof. Dr. / SDE New Constitution Working Group Yakup BULUT, Assoc. Prof. Dr. / Mustafa Kemal University Yasin AKTAY, Prof. Dr. / SDE Chairman YusufAHN, Assoc. Prof. Dr. / Karadeniz Technical University Yusufevki HAKYEMEZ, Prof. Dr. / SDE New Constitution Working Group Yusuf TEKN Assoc. Prof. Dr. / SDE New Constitution Working Group

5th Workshop: The Governmental System of Turkey in the New Constitution

Adnan KK, Assist. Prof. Dr. / Krkkale University

Ali Rza OBAN, Dr. / the Constitutional Court Ayhan DNER, Assist. Prof. Dr. / Erzincan University Blent YAVUZ, Assist. Prof. Dr. / Gazi University Ece GZTEPE, Assoc. Prof. Dr. / Bilkent University Erdal ABDLHAKMOULLARI, Assoc. Prof. Dr. / Ondokuz Mays University Faruk BLR, Assoc. Prof. Dr. / Seluk University Hikmet TLEN, Dr. / the Constitutional Court Hseyin ZCAN, Assoc. Prof. Dr. / Istanbul University Levent KORKUT, Assist. Prof. Dr. / SDE New Constitution Working Group Murat YANIK, Assoc. Prof. Dr. / Istanbul University Murat YILMAZ, Dr. / SDE New Constitution Working Group


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Musa SALAM, Dr. / the Constitutional Court

Nur ULUAHN, Assist. Prof. Dr. / Bakent University Ozan ERGL, Assist. Prof. Dr. / Ankara University ule ZSOY, Assoc. Prof. Dr. / Galatasaray University Tevfik Snmez KK / Yeditepe University

Yasin AKTAY, Prof. Dr. / SDE Chairman

Yusufevki HAKYEMEZ, Prof. Dr. / SDE New Constitution Working Group Yusuf TEKN, Assoc. Prof. Dr. / SDE New Constitution Working Group

6th Workshop: Guardianship and Civil-Military Relations in the NewConstitution

Faik TARIMCIOLU, Law / (Retired) Military Judge / (Former) Member ofParliament

Faruk BLR, Assoc. Prof. Dr. / Seluk University Lale KEMAL, journalist-author / daily Taraf

Levent KORKUT, Assist. Prof. Dr. / SDE New Constitution Working Group

Muhsin ZTRK, journalist / Aksiyon (magazine).

Murat YILMAZ, Dr. / SDE New Constitution Working Group

Serta BUCAK / Politician

Vahap COKUN, Assist. Prof. Dr. / SDE New Constitution Working Group Yasin AKTAY, Prof. Dr. / SDE Chairman

Ylmaz ENSAROLU, Human Right Activist / SETA Human Rights Coordinator Yusufevki HAKYEMEZ, Prof. Dr. / SDE New Constitution Working Group Yusuf TEKN, Assoc. Prof. Dr. / SDE New Constitution Working Group

II. Members of SDE High Advisory Council, who Contributed the Draft Sacit Adal - Prof. Dr. /Dean of Law Faculty, Turgut zal University / Former

Member of the Constitutional Court

Ali afak - Prof. Dr. /Turgut zal University / Former Dean of the Faculty ofSecurity Sciences of the Police Academy

Yasin Aktay - Prof. Dr. / Sociology / Seluk University

Beril Dedeolu - Prof. Dr. / International Relations / Galatasaray University Dou Ergil - Prof. Dr. / Political Science / Ankara University hsan Da - Prof. Dr. / International Relations / Middle Eastern Technical

University

Kvlcm zcan - Assoc. Prof. Dr. / Economy / Bilkent University

Faik Tar

mc

olu - Law / (Retired) Military Judge / (Former) Member ofParliament Salim Uslu / Trade Unionist / Former Chairman of Hak- Confederation (trade

union)

Mehmet Atalay / Director of the Press Advertisement Institute

Mehmet Akif Ak Chartered Accountant / Researcher-Writer

Aydn Bolat Educationist / Analyst / (Retired) Military Officer

Mustafa Karaaliolu - Journalist / Editor in Chief of daily Star Alper Tan - Journalist / General Manager of Channel A

Mustafa Akyol - Journalist / Columnist in daily Star


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Contents

INTRODUCTION ......................................................................................................8

I. THE VISION OF THE NEW CONSTITUTION .............................................10

II. HUMAN DIGNITY .............................................................................................12

A. Human Rights Approach in the New Constitution ............................................12

B. The Nature of Human Rights .............................................................................14

C. The Regime of The Restriction of Human Rights .............................................16

D. Social Rights ......................................................................................................17

E. Freedom of Religion and Conscience ................................................................18

F. Freedom of Expression .......................................................................................20

III. RULE OF LAW .................................................................................................22

A. Justice ..................................................................................................................22

B. Security of the Individual and the Principle of Equality .....................................22

C. The Judiciary .......................................................................................................23

1. The High Council of Judges and Prosecutors (HSYK) ....................................24

2. The Structure of Higher Judicial Organs ..........................................................25

3. The Constitutional Court ..................................................................................25

IV. FULL DEMOCRACY .......................................................................................29

A. An Order Without Guardianship .........................................................................29

1. The Removal of the Constitutional Arrangements Causing Guardianship from

the New Constitution .....................................................................................30

2. The Position of the Turkish Armed Forces ....................................................31

3. Other Institutions of Guardianship .................................................................33


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B. Strengthening Decentralization: Proximity to

People and the Principle of Locality ..................................................................35

1. Strengthening Local Administration ................................................................35

2. Emergency Rule ...............................................................................................37

C. Expanding the Political Sphere ...........................................................................40

1. Political Parties ...............................................................................................40

2. Principles Concerning the Right to Vote and to be Elected and the

Elections .........................................................................................................45

V. PLURALISM and MULTI-CULTURALISM ..................................................49

A. Citizenship ...........................................................................................................49

B. Use of Native Language in Education .................................................................50

VI. OTHER ISSUES.................................................................................................53

A. The Preamble of the Constitution........................................................................53

B. Form of the State and Irrevocable Provisions .....................................................54

1. Irrevocable Provisions ......................................................................................54

2. The Irrevocable Provisions in the Present Constitution ...................................54

C. The Governmental System ..................................................................................55

D. The Method of Making Constitution ...................................................................63


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Introduction

Turkey is going through a rapid transformation period. It tries to saveitself from the effects of the military coup carried out on 12 September1980; to solve its chronic structural problems and to establish democracyas it should be. It is possible to reach these goals only by radical changes indomestic and foreign policy. However, there are important obstacles beforethis transformation.

In this process, one of the most important obstacles in front of Turkeyis the constitution which does not have characteristics of a genuine socialcontract and which does not allow change. Every proposal of structural

change aimed at solving basic problems of the country and every effort ofreform aimed at widening the realm of freedoms hit the barricades erectedby the interim-period constitution.

In fact, creating a new constitution which is based on a democratic andpluralist political structure, which strengthens human rights and freedomsand which will allow Turkey to turn its face to the world, is a feasible andachievable goal.

A new constitution, which will be a social contract between the individualand the state; which will guarantee human rights and freedoms and whichwill be built upon a democratic and pluralist structure, needs a process ofnegotiation and debate which will be enriched with the participation of allpeople and all sections of the society.

Having these kinds of concerns, the Institute of Strategic Thinking (SDE)has prepared this report on constitutional principles in order to contributethe emergence of a participatory constitution and a social consensus.

This report, which is the product of a 6-month work, essentiallyrepresents the search for an answer to the question how can we contributethe efforts of meeting the need for a new constitution? which has becomemore prominent after the referendum on 12 September 2010. Of course,different answers can be put forward for this question; different proposalsand different methods can be produced. The method preferred in this reportis to underline the basic problem areas which should be definitely overcomein the new constitution and to present proposals for them. In this context,the questions for which answers are sought can be lined up in the following:

What should be the vision of the new constitution? How should the regime of human rights and freedoms be arranged in

the new constitution?


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How should the guarantees regarding the freedom of belief andworship be arranged in the new constitution?

What should be the degree of the emphasis on ethnicity and howshould the citizenship stripped of hints be defined in the newconstitution?

How can the institution of guardianship in the present constitutionalstructure be eradicated and how can the institutionalization ofdemocracy be realized in the new constitution?

What kinds of changes regarding the governmental system of Turkeyshould be included in the new constitution?

What kind of reforms regarding the administrative structure shouldbe included in the new constitution?

How should the judiciary protecting human rights and establishingthe constitutional state be arranged in the new constitution?

This report has been born as a result of the thematic workshops inwhich the answers were sought for the questions above. The workshopswere shaped with the contributions of academicians who produce solutionsby looking at Turkeys problems from different political and ideologicalperspectives. A workshop was organized for each question stated above

and academicians who are experts in each field participated in the relatedworkshop. Of course, the statements included in this report are not directopinions of the academicians who participated in the workshops. However,it should be stated that the main source of reference for this report are thosethematic workshops. Therefore, we would like to extend our gratefulnessand thankfulness to the participants of the workshops, whose names arementioned at the end of the study, and to the members of SDE HighAdvisory Council for their contributions.

We are also obliged to thank the Foundation of Strategic Thinking and

Research, which has encouraged us steadfastly to prepare this report andsupported all these works.

SDE New Constitution Working TeamBekir Berat ZPEK

Levent KORKUTMurat YILMAZ

Vahap COKUNYusufevki HAKYEMEZ

Yusuf TEKN


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I. THE VISION OF NEW

CONSTITUTION

Constitutional reforms can be realized in two ways: adapting theconstitution to the requirements of the era with partial changes or creating anew constitution. Adapting to new developments in stable societies can bepossible with partial changes in constitutions. As for turbulent communities,frequently new constitutions are made here. The history of the eighty-year old Republic of Turkey saw three constitutions. These constitutionshad been generally prepared in undemocratic environments and throughillegal methods. Moreover, with the Constitution of 1961, the tradition of

employing the institutions putting the political system under guardianshipwas introduced. This tradition, which was continued with the Constitutionof 1982, left human rights unprotected and made it impossible to establishthe democratic constitutional state as it should be. In result, Turkey has notbeen able to reach constitutional democracy.

Beginning to question its system in the 2000s, Turkey is now aftermaking a democratic, civil and pro-freedom constitution based on the ruleof law. This effort can result in concrete results only with a new vision andnew goals.

Of course, it will not be an appropriate attitude to perceive a newconstitution as a magic wand which will solve all problems. Nevertheless,in a society which experienced top-down approaches in its constitutionalhistory, it is a compulsion to make a new constitution in a free environmentand with a participatory method. The examples in the world demonstratethat countries which wanted to strengthen their democracies built theconstitutional infrastructure of democracy as a first task. In the countriessuch as Spain, the Republic of South Africa, Hungary and Poland, it becamepossible to move to democracy only with a new constitution.

A new constitution can be created only through reconstituting thementality which lies at the basis of constitution. This new mentality shouldreign over all constitutional principles and institutions. In a country inwhich the development level of the society is ahead of the legal structure,a constitution which lags behind the dreams of the citizens will not be anew one even if it carries the title new. If a new social contract becomesa necessity in a country, a constitution which does not serve this goal willbring about disappointment rather than hopes. In short, the expectations


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from a new constitution will be evaluated in the light of the vision providedby it.

A constitution which is compatible with the social change anddevelopments in the world

should be based on human dignity,

should be aimed at full democracy,

should establish rule of law, and

should have a vision of constitutional system, which takes diversityand pluralism at its basis.


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II. HUMAN DIGNITY

The concept of human dignity has gained an increasing attention anduse in the constitutions of the world countries. While it was included inthe constitutions of only four countries in the 1900-1947 period, this figurereached 40 between 1947 and 1997. This increase in the usage of the conceptof human dignity in constitutions can be explained with that it constitutesthe basis of human rights and freedoms. The Article 7 of the HelsinkiDeclaration underlines this connection by saying that the participatingStates will promote and encourage the effective exercise of civil, political,economic, social, cultural and other rights and freedoms all of which derivefrom the inherent dignity of the human person and are essential for his

free and full development. It is accepted in the preamble of the UniversalDeclaration of Human Rights that recognition of the inherent dignity andof the equal and inalienable rights of all members of the human family isthe foundation of freedom, justice and peace in the world. Acting on thisacceptance, it can be said that the concept of human dignity consists ofthree elements, namely rights and freedoms, justice and peace.

A. Human Rights Approach in the New Constitution

The most important function of the constitution is to guarantee human

rights against the power of the state. A constitutional state is legitimate aslong as it protects human rights and maintains a suitable environment offreedom in which human rights and freedoms are exercised. Therefore, theconstitution should guarantee human rights against the power of the state.In terms of human rights, priority should be given in the constitution to theindividual and his/her freedom since they are important.

The state which is based on human rights should be included in thenew constitution while the characteristics of the state are listed. Likewise,it should be stated in the preamble of the constitution that the essentialpriority of the constitution is the individual and his/her freedom and thatthe human dignity is inviolable by and superior to the state. Unlike the1982 Constitution, the new constitution should not include the statementswhich restrict democracy and human rights as contrary to the universalstandards and which are based on ideological choices; but it should containthe norms which are compatible with the function of the constitution suchas the individual, freedom, the will of people, and the rule of law.

A kind of arrangement and list which will ensure the privileged positionof human rights should be prevailed in the organization of the constitution.


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Regulating some of human rights in the constitution is important becauseof the strong emphasis which is put on them. It is not necessary to regulateall human rights in the constitution and this is not possible. In this point,it is important to internalize the principle freedom is rule, restriction isexception, which is the most essential principle of the human rights law.However, it is a necessity to include the issues which are related to therestriction of human rights together with their guarantees in the constitution.

Moreover, the care should be taken to demonstrate that the constitutiongives priority to the individual against the state and it is based on human

rights. For this purpose, human rights and their guarantees should bementioned in the first articles of the constitution and the issues related tothe restriction of human rights and the legal regime which will be appliedto human rights in the state of emergencies should be regulated in thesubsequent articles. This approach which did not exist in the constitutionsof 1961 and 1982 will be interpreted as the clear sign that the constitutionis individual and freedom-oriented. It should be stated that the type ofarrangement in the constitution of the Federal Republic of Germany is likethis.

To put it more clearly, in the constitution, firstly the nature of humanrights should be mentioned; secondly, the articles regulating human rightsclearly should be inserted; and finally the provisions regulating restrictionof human rights and the regime which will be applied to human rights inthe state of emergencies should be included. Rights and freedoms shouldbe regulated explicitly in the articles in which human rights are mentionedand subsequently the specific reasons for restriction should be given. Thearticles in which human rights are regulated should be as short as possibleand should emphasize freedom.

It will be appropriate not to include a separate article which prohibitsthe abuse of human rights in the constitution. In fact, Article 14 of the1982 Constitution titled as Prohibition of Abuse of Fundamental Rightsand Freedoms has been used so far mainly as a constitutional support torestrict human rights in higher level. Therefore, it will be appropriate notto include in a pro-freedom constitution the articles which will bring suchunfavorable results. As it is looked from the perspective of what should be,it is not necessary to regulate the prohibition of abuse of human rights inthe constitution. Each freedom has an objective norm area and the abuses


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which stay outside the objective norm area from the legal perspective cannotbenefit from the protection of this freedom. Even if the constitution doesnot include a provision on the abuse of rights, the abuse of rights cannotbe protected from the legal perspective as a requirement of the objectivelimit of each freedom. The legislative can regulate the abuse of rights in thepenal code to punish those who abuse rights.

B. The Nature of Human Rights

To emphasize the place of the natural law in the origin of humanrights, an article which includes the statement that everyone is entitledto untouchable, indispensable and non-transferrable rights which areattached to his/her personality and owned by birth should be insertedin the constitution. Another meaning of the inclusion of such an articlein the constitution is to declare the following: the important thing is notwhether rights are recognized by the state authorities or not, but it is thatthe individual is entitled to these rights by birth because he/she is a humanbeing. From this perspective, the constitution should be seen as a text whichguarantees only the rights owned by the individual by birth and restricts thestate authority with these rights. In a constitution which is focused on the

individual and freedoms, it is a compulsion to emphasize the reputabilityand immunity of human dignity in an article regulating the nature of humanrights.

It will be more correct not to bring the duty aspect of rights and freedomsto the fore in the article in which the nature of human rights is regulated.Of course, the individual might have duties to the other individuals, thesociety and his/her family since freedom cannot be unlimited. However,emphasizing the duty aspect in the constitution might affect negatively thefreedom aspect of a constitution which gives priority to human rights. Infact, issues which are related to the duty aspect of each human right can beseen as a part of specific reasons for restriction which are included in eacharticle regulating a separate freedom. In the new constitution, under thetitle of the nature of human rights it should be stated that everyone has theresponsibility of respecting rights of others while exercising his/her ownrights and freedoms instead of mentioning the duty aspect.

In the article in which the nature of human rights is regulated, the goalsand duties of the state regarding human rights should also be included.But, while doing this, it is important to emphasize that the main goal and


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duty of the state is to protect human rights and to remove all kinds ofobstacles to human rights. In Article 5 of the 1982 Constitution whichis about the fundamental aims and duties of the state, issues related tothe protection of the state instead of human rights come first. Since suchan arrangement gives the priority to the protection of the state, the statecannot fulfill its role of expanding freedoms which is expected from it. Ifthe states fundamental duty of protecting and improving human rights isclearly stated in the article titled as the nature and protection of humanrights, it will be possible to hold a more pro-freedom approach towardhuman rights in the new constitution.

In terms of determining the limit of the state intervention in human rights,it is important to include in the article in which the nature of human rightsor the regime of its restriction is regulated that none of the provisions of theconstitution can be interpreted in a way to eradicate rights and freedomsstated in the constitution or to restrict them at a higher degree than soughtin the constitution. Such a provision which is included in Article 17 ofthe European Convention of Human Rights and Article 14 of the 1982Constitution actually emphasizes that the state cannot destroy human rightsand cannot restrict human rights in a higher degree than stipulated in the

constitution. In fact, the constitution should determine the minimum levelor the basement regarding human rights and the maximum level or theceiling in restricting human rights. The constitution should take theseinto considerations in terms of the position of human rights.

Proposal:

Everyone is entitled to untouchable, indispensable and non-transferrable

rights and freedoms which are originated from human dignity, attached to

his/her personality and owned by birth.

The limit of each individuals rights and freedoms is the rights and freedomsof the others.

The fundamental aim and duty of the state is to protect human rights and to

remove all kinds of social, political, economic and other obstacles in front

of them.

None of the provisions of the Constitution shall authorize the state to

destroy human rights or restrict them at levels higher than it is stated in this

Constitution.


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C. The Regime of the Restriction of Human Rights

In pro-freedom democracies, human rights are essential and restrictingthem is an exceptional way which is resorted to in cases of necessity.Restricting human rights is necessary to protect rights of the others and tomaintain order. However, in this process, the balance between restrictionsbrought for human rights and freedoms and the reasons for restrictionshould be determined correctly. For this purpose, the restriction of humanrights should be enacted by the constitution or it should be arranged withlaws if there is no clear restriction in the constitution. While this restriction

is regulated, the clear provisions which will be taken into consideration bythe legislative should definitely be included in the text of the constitution.

In the process of restricting human rights, specific reasons for restrictionshould be stated in each article regulating a freedom. It should be avoidedto include in the constitution the provisions which could be interpretedas general reasons for restriction for all freedoms. Specific reasons forrestriction should be determined in line with the universal human rightsstandards. Although it is possible to include in the constitution the specificreasons for restricting human rights, restriction should be resorted to as an

exceptional measure and at a reasonable degree and only if it is necessary.Therefore, taking into consideration sub-elements of the principle ofproportionality and the regime of restriction will be an important guaranteefor human rights. In order to benefit from the principle of proportionality asa guarantee, the Turkish Grand National Assembly (TGNA) and especiallythe Constitutional Court should use this principle in the correct way.

Restrictive measures which will be brought about in terms of therestriction regime should not be contrary to the requirements of thedemocratic order of the society and restrictions should be implemented ina way not to touch the essence of a right. To comply with universal human

rights standards, the Legislative which will regulate restrictions withlaws and the Constitutional Court which will check the computability ofrestrictions with the constitution should take these points into consideration.Especially the Constitutional Court with a pro-freedom approach shouldinterpret these principles and rules which will be obeyed while restrictionsare implemented.

While formulating the regime of the restriction of human rights in thenew constitution, the statements like the ones in Article 13 of the 1982


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Constitution (not being in conflict with the requirements of the secularRepublic, being in conformity with the spirit and letter of the Constitution)should not be included in the new constitution. The content of these kindsof statements could be filled in different ways, they do not have any placein the regime of restriction of human rights in the comparative law andthey could be interpreted ideologically. While the criteria which will betaken into consideration in restricting human rights are mentioned in thetext of the constitution and the specific reasons for restricting a specificfreedom is included in each article regulating a freedom, it is unnecessaryto state also that restrictions should not be in conflict with the letter of theconstitution. In fact, provisions regarding human rights are included in theconstitution to be taken into consideration by the Legislative in restrictinghuman rights or by the Constitutional Court in checking the compatibilityof those restrictions with the constitution.

D. Social Rights

Another important issue concerning the general human rights regimeis related to social rights. The basic problem here stems from the similarstatements to the one in Article 65 of the 1982 Constitution titled as

the Extent of the Social and Economic Duties of the State: The Stateshall fulfill its duties as laid down in the Constitution in the social andeconomic fields within the capacity of its financial resources, taking intoconsideration the priorities appropriate with the aims of these duties.These kinds of provisions might at first sight create the impression that asif they are related to all social rights. However, especially in the rights suchas the right to organize labor unions and the right to strike, which could beseen within the framework of the right of negative status as a requirementof their nature, there can be no mention of the duty of the state in the formof fulfilling its duties stemmed from social rights. Actually, the right to

organize labor unions and the rights to strike and lockout do not necessitatesuch form of negative state act as a requirement of their nature.

Therefore, if it is necessary, the provision that the state will fulfill itsduties concerning social rights within the capacity of its financial resourcescan be inserted separately in the articles related to the rights other thanthe rights having the nature of negative status right such as the rights toorganize labor unions, to strike and to lockout instead of a general articlesimilar to Article 65 of the 1982 Constitution. Moreover, since the right to


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social security is directly related to the right to life, it should be taken intoconsideration that providing this right will not be limited with financialresources of the state.

In this context, concerning social rights,

the new constitution should grant the right to organize labor unions,the right of collective bargaining and the right to strike equally toall people employed in all sectors without making any distinctionbetween the public and private sectors;

measures eradicating inequalities of poor, women, disabled andchildren should be taken in the field of social rights;

health, education, sheltering and environmental rights should beregulated in parallel with the responsibilities stemmed from theinternational law on the basis of human dignity;

the state should take positive measures as a requirement of theequality and the prohibition of discrimination.

E. Freedom of Religion and Conscience

Creating a social, legal and political environment in which the individualcan practice his/her religious beliefs without violating the rights of theothers is one of the requirements of a decent life based on human dignity.Therefore, it is important to develop a just legal framework and to create aconstitutional formulation which will constitute its basis.

Such a legal framework requires a category of rights which will enableall people, believers and unbelievers and those who believe differently, tocontinue their lives within the society as equal individuals.

The freedom of religion and conscience represents a basic right whichincludes believing or not believing in a religion, practicing the requirementsof belief or disbelief, practicing or not practicing rituals, changing religion,propagating beliefs, organizing sects, cults etc., being members of suchorganizations and leaving them, and not being forced to believe in a certainway or not to believe.

The legal and political precondition of realizing this is to establishthe principle of impartial state which keeps equal distance to all kinds ofidentities. Although this principle is a viable goal which can be reached


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be recognized. The right to conscientious objection should definitely beincluded in the new constitution.

As it is valid for other articles mentioned in this report, only specificrestrictions should be included in the constitution on the freedom of religionand conscience if they are necessary. These restrictions should be includedonly if there are an open threat and coercion.

In line with these points, the formulation of the article might be the following:

Everyone has right to the freedom of conscience, religious belief and

conviction. This right also includes declaring and propagating thoughts andbeliefs individually or collectively, openly or privately, and in the form of

worship, teaching, practice, organizing and rituals.

Nobody can be forced to participate in worship, religious rituals and

ceremonies and to declare his/her religious beliefs and opinions; nobody can

be condemned and denounced because of the religious society to which he/

she belongs.

Everyone is entitled to receive education and to teach others in line with

his/her religion and beliefs and to organize his/her educational institutions

and to create his/her own curriculum. Education and teaching based on a

religion and belief and the teaching of religious culture and ethics dependon the will of people and the demand of the legal representatives of children.

As a requirement of the principle of impartiality, the state cannot discriminate

anybody in the state employment because of his/her choices and practices

grounded on religion, belief, sect, views and philosophical opinions. This

guarantee is also valid for those who benefit from the services of the state.

Conscientious objection is a right for all citizens. Nobody can be forced

to perform public services which are contrary to his/her religious and

philosophical beliefs and choices. The right of conscientious objection can

be used in responsibilities toward the state in accordance with the principle

of equality.

F. Freedom of Expression

The freedom of expression should be guaranteed in the new constitution.The freedom of expression should be allowed outside the situations of callfor violence, racist discourse of hatred and enmity, insult and violation ofprivate life. The freedom of press and the freedom of science and art shouldbe regulated briefly and concisely and restrictions which will bring about in


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these freedoms should be compatible with the standards of the internationalhuman rights law. The present constitution includes unacceptable restrictionslike the one that the right of press and to disseminate cannot be exercisedto change the provisions of the first three articles of the Constitution. Thenew constitution should not definitely include such reasons for restrictions.


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III. RULE OF LAW

A. Justice

One of the leading factors which make individuals happy is to thinkthat they are treated justly and fair behavior is dominant in their societies.While justice makes it possible to implement the equality in front of law,it has also functions guaranteeing individual security such as preventingthe individual from being subjected to life conditions not compatible withhuman dignity and maintaining the balance of rights and freedoms amongindividuals.

B. Security of the Individual and the Principle of EqualityOne of the most important characteristics of todays democracies is

that equality in front of law is secured through the constitution and thelaws. Therefore, the new constitution should adopt the widest frameworkaccepted by democratic state orders regarding equality. The prohibition ofdiscrimination should also be included in the constitutional arrangementtogether with the principle of equality.

The constitutions of 1961 and 1982 considered the principle of socialstate among the basic principles of the Republic. However, practices in

the last fifty years demonstrate that social state has been misunderstoodand misapplied. This principle has been made the basis of the approachesof statism and centralism. They have been used to establish a statist socio-economic structure and as the justification for the states intervention ineconomy. Secondly, they have been tried to be made economic policiesof the social state. However, the constitution should not defend certaineconomic policy. Economic policies are choices of political parties and theyare implemented if they are supported by people. Instead of establishingconstitutional basis for an economic policy on the ground of the principle

of social state, it should be acted in a way that economic policies will bringabout the principle of social state. The primary objective of social stateshould be to enable poor people to live a decent life compatible with humandignity.

In this context,

Acting on the assumption that the security of the society cannotbe ensured without ensuring the security of individuals, the statesresponsibility of ensuring the security of individuals should be


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included in the constitution. The principle of security of individuals,which is regulated in the constitution, will constitute the basicpremise of the rights of health, environment, sheltering, basiceducation and social security.

The foreigners who immigrate to Turkey since they are persecutedin their countries should be accepted as refugees. An arrangementwhich will make it possible to take measures to ensure the securityof refugees should be included in the constitution.

The principle of equality and the prohibition of discrimination

should be regulated in the new constitution in such a way to coverexplicitly all reasons for discrimination included in all internationalhuman rights arrangements.

Rights and freedoms of women as well as their social rights shouldbe considered together with the measures which will eradicateinequalities.

Measures which will ensure the individual security of poor anddisabled people and children should be taken.

C. The Judiciary

The independence of the judiciary is a crucial principle in theconstitutional state. However, in order to ensure fair trial, the independenceof the judiciary should be considered together with the impartiality of the

judiciary, which is its inseparable part. In order to ensure this, membersof the judiciary should not act with ideological biasness. Ensuring theideological impartiality of the state is the precondition of an independentand impartial judiciary.

The statement that judicial review is limited with checking compliance

with the law should definitely be included in the text of the constitution. Thejudicial review embodies such a limitation due to its nature. Unfortunately,in Turkey, the judiciary resorts to the review of appropriateness by goingbeyond checking the compliance with the law; therefore, this rule shouldclearly be expressed in the constitution.

The position of the Court of Accounts which audits on behalf of theTurkish Grand National Assembly (TGNA) should be reregulated. Sinceits audit and decisions given at the end of audit have technical/peculiar


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characteristics, it will be more appropriate to transform the Court ofAccounts to a fiscal court. Moreover, the Court of Accounts should beequipped with the authority of effective supervision to apply its same rulesand sanctions of supervision to all the state organizations including themilitary.

Important revisions are needed in the new constitution in the structureof the high judiciary organs including the High Council of Judges andProsecutors and the duties and authorities of the Constitutional Court andthe Court of Accounts. Although the 2010 amendments to the Constitution

of 1982 have brought positive changes on the judiciary, shortages andproblems still continue in those issues.

1. The High Council of Judges and Prosecutors (HSYK)

The chairmanship position of the Minister of Justice in the HSYK is inconflict with European standards and the principles determined by the VeniceCommission on the structure of high judicial organs. The membership ofthe Minister of Justice in the HSYK should continue, but the chairmanshipshould be undertaken by one of the elected members. In order to increasethe democratic legitimacy of the HSYK, one third of the members shouldbe elected by the Parliament. The care should be taken to elect the membersfrom different fields. The Council should not be composed of only membersof the judiciary. Academicians, lawyers and high-level bureaucrats shouldalso be elected as the members of the Council.

The members of the Council who come from the judiciary should beelected according to the principle of broad and fair representation of the

judiciary. In order to ensure a more pluralist structure while creating theCouncil, each member should vote only for one candidate in the electionswhich will be held in the Supreme Court, the Council of State and in the

judicial and administrative judiciary. In this way, the members who areelected by certain circles in the institutions having the authority to sendmembers to the Council will not be able to vote in the Council as a bloc.In addition, subjecting all decisions of the HSYK to judicial review willcontribute the legality of the Council.

The changes regarding the HSYK which are mentioned above shouldbe made as a whole. Otherwise, if the status of the Minister of Justice ischanged before the Turkish Grand National Assembly is authorized to elect


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members for the Council, it might be moved away from the democraticlegitimacy and it might be tilted to the caste system at a higher degree.Therefore, in creating the new structure of the Council, all requirements ofthe standards mentioned in the report of the Venice Commission titled asJudicial Appointments should be met.

2. The Structure of Higher Judicial Organs

Since the military has a considerable weight in Turkeys political system,the High Military Court of Appeals and the High Military Administrative

Court of Appeals, which are included in the Constitution should beabolished. First instance courts in the military judicial judiciary should beintegrated into the judicial judiciary as disciplinary tribunals. Disagreementsconcerning the military administrative issues should be brought to firstinstance courts. This change is important in terms of bringing the powerfulposition of the military down to the normal level and is indispensable tobuild a judiciary compatible with the norm of constitutional state.

In the elections which will be held to elect members for the SupremeCourt and the Council of State, competency should be the main criterion.

Changes should also be made to transform high courts to real courts ofprecedents (cases) and appellate reviews should be transferred mainly tocourts of appeals. While doing this, the number of chambers and membersin the Supreme Court and in the Council of State can be maintained withtemporary provisions which will be included in the Constitution until theproblem of heavy workload is solved, but their number should be reducedafter this problem is solved.

3. The Constitutional Court

The existence of provisions concerning human rights in the constitutionis, of course, important. However, in the practice, the Constitutional Courtempties the content of the constitutional guarantees of human rights withits interpretations in spite of clear provisions of the constitution. Therefore,a provision emphasizing clearly the basic function of the ConstitutionalCourt in the protection of human rights should be included in the newconstitution. In its judgments concluded so far, the Constitutional Courthas held an approach favoring prohibitions rather than freedoms and hasstayed behind the universal law standards. In relation with this reason,


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the structure of the Constitutional Court and its composition of membersshould be reformulated to enable the Court to make interpretations favoringfreedoms.

Although the 2010 changes in the constitutional law have brought somepositive developments, the present situation cannot be seen as ideal. Thenumber of the members of the Constitutional Court should be increased toreach 21. In addition, the working order in the form of two chambers shouldbe made more functional and the appeals of cancellation and objectionshould be discussed in the chambers. The conclusion of the appeals of

cancellation and objection by the Court in its General Assembly, whichis the present situation, increases the workload and this prevents the Courtfrom concluding judgments with more potent reasons.

In order to create a more pluralist Constitutional Court structure,members coming from different circles should be included in it. Themajority of the members should be elected by the Turkish Grand NationalAssembly (TGNA). As higher judicial organs, the Supreme Court, theCouncil of State and the Court of Accounts should be able to elect membersdirectly for the Constitutional Court. When the president is elected bypeople, he/she should be authorized to elect a certain number of members.Although all the members are elected by the parliament in some Europeancountries, the mixed method should be adopted in creating the structure ofthe Court to ensure pluralism and to prevent domination of certain circlesin it. For this purpose, the TGNA should elect members through qualifiedmajority vote.


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Proposal:

The Constitutional Court shall be composed of twenty-one members. Eleven

members shall be elected by three fifths of the total number of the Turkish

Grand National Assembly members. Three members shall be elected by the

President. Three members shall be elected among the President and members

of the Supreme Court by its General Assembly with absolute majority; two

members shall be elected among the President and members of the Council

of States by its General Assembly with absolute majority; and one member

shall be elected among the President and members of the Court of Appeals

by its General Assembly with absolute majority. One member shall be elected

among the Constitutional Court reporters who have worked for at least five years by the General Assembly of the Constitutional Court with absolute

majority.

If the TGNA fails to elect members with three-fifth majority in the third round,

these members shall be elected by the President among candidates having the

qualifications required.

The Turkish Grand National Assembly shall elect at least eight members

among the academicians in the fields of law, political science, finance or

public administration. Five of the academicians shall be elected among those

who study in the field of law. The other three members which will be elected by

the Turkish Grand National Assembly and the members which will be elected

by the President might be elected among top level bureaucrats and people

working in the field of law, who have fifteen-year professional experience.

To qualify as members of the Constitutional Court, candidates are required to

be over the age of forty and to be graduates of the faculties of law, economic

and administrative sciences and political sciences. Members shall be elected

once and for ten-year period. The members who reached the age of sixty-six

shall be retired.

Another important issue in electing members for the Court is that

objective conditions giving priority to competency should be taken intoconsideration. Otherwise, the Court will not be able to conclude judgmentswhich will allow it to fulfill the functions expected from it. Acting on theclear emphasis included in the text of the constitution in this issue, thequalifications which are sought in electing members for the Court shouldbe regulated in laws.

The right of the individual petition to the Constitutional Court should beexpanded to include all rights, not only those in the context of the European


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Convention of Human Rights (ECHR). Moreover, an effective mechanismfunctioning fast should be created to allow the Constitutional Court toexamine and conclude individual petitions.

Provisions concerning the authorities of the Constitutional Court, whichhave created a great number of problems at the recent period, shouldbe regulated explicitly in the constitution. The Court has acquired theauthority of suspending the implementation and the authority of reviewingchanges in the constitution in terms of their content through interpretation(analogy) and this has brought about serious problems. Therefore, it should

be explicitly stated that the Constitutional Court cannot exercise authoritiesother than ones mentioned in the constitution.


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IV. FULL DEMOCRACY

A. An Order without Guardianship

In the studies measuring the performance of the world democracies,Turkey is considered among semi-democratic or partially freecountries. Semi-democracy is a concept used for the regimes having thefollowing characteristics: they are based on general elections and multi-party structure, but, in these regimes, the elected people are controlled bybureaucratic or monarchial elites; human rights including political rightsare restricted in a way which will be contrary to democracy. These regimesallow pluralism and participation in a limited way. All these factors have

been influential in calling Turkey as semi-democracy. A guardianshipregime aimed at controlling the elected people, the restriction of politicalrights, the frequent dissolution of political parties and the obstacles in frontof expressing political, religious and cultural values in the public sphere aremain democracy weaknesses of Turkey.

The regime whish was established after the military coup on 27 May1960 was a guardianship regime which aimed to keep the representatives ofpeople under the guardianship of the bureaucratic power. The distinguishingcharacteristic of the 1961 Constitution was to have a limited understanding

of democracy. This thinking which was based on the suspicion and fearfelt from the will of the majority was reflected in the constitution and,as a result, the mechanisms which would protect the political values andinterests of the statist elites were included in the constitution. In accordancewith the ideology of the guardianship, the institutions and organs such asthe Republican Senate, the Constitutional Court and the National SecurityCouncil were granted the authorities of supervising and monitoring thepolitical power (the parliament and the government).

It is possible to say that these ideological concerns which had beeninfluential became more decisive in the constitution of 1982. The creatorsof the constitution, who adopted the most authoritarian and the moststatist interpretation of the guardianship ideology, expanded the area ofthe guardianship phenomenon which functioned on the state power-political power duality and consolidated the power and authorities of theguardianship organs on democratic politics and society.

The expressions and ideological choices which contradict with theimpartiality of the state such as Atatrkism, the principles and revolutionsof Atatrk and the Atatrk nationalism should not be included in the


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constitution. The provisions similar to the one in Article 58 of the Constitution(the state shall take measures to ensure the training and development ofthe youth in line with the principles and reforms of Atatrk) should alsonot be included in the constitution.

The Turkish Armed Forces (TSK) was at the centre of this power blocwhich kept democratic politics under its guardianship in accordance withthe official ideology. It can be said that the military gained more strengthand authority after each military coup through legal and constitutionalarrangements.

1. The Removal of the Constitutional Arrangements Causing

Guardianship from the New Constitution

In this context, the problem of Turkey, which should be solved in thefirst place, is the eradication of the guardianship system whose foundationswere laid down with the Constitution of 1961 with all its elements. For thispurpose;

The provision in Article 1982, which was introduced for the firsttime by the Constitution of 1961, (sovereignty will be exercised

through authorized organs) constitutes the legal basis creating thepossibility of intervening in the democratic regime for bureaucraticmechanisms because of the uncertainty it has created on the useof sovereignty. In a founder text, in which general principlesconcerning the state organization and the basic rights are included,an issue as important as the exercise of authorities stemmed fromsovereignty should be regulated in accordance with the values ofdemocracy, rule of law and pluralism. In principle, the exercise ofauthorities stemmed from sovereignty should be limited only withthe legislative, the executive and the judiciary. In line with these

points;The sentence Sovereignty is vested fully and unconditionally in the nation.

The nation shall exercise sovereignty through the legislative, the executive

and the judiciary and in accordance with the principles prescribed by the

Constitution


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should be included in the section titled as general principles.

The authority of changing the constitution should be vested onlyin the TGNA and nation. The Constitutional Court should nothave any authority of reviewing constitutional changes. Possiblecontradictions in the process of constitutional change can becorrected easily in the Committee of Constitution and the GeneralAssembly of the TGNA.

2. The Position of the Turkish Armed Forces

The constitutional position of the Turkish Armed Forces is anotherpoint of criticism which is important for the guardianship system. In orderto eliminate these criticisms, the following points should be taken intoconsideration.

The Turkish Armed Forces was organized as an autonomousorgan within the administrative structure of the state in the periodafter the 1960 military coup. One of the important foundations ofthis autonomy was that although there was a separate Ministryof Defense within the central government, the armed forces was

directly associated with the Prime Ministry instead of the Ministryof Defense. In the new constitution, the Turkish General Staff shouldbe organized under the Ministry of Defense as it is the case in otherdemocratic countries. Moreover, unlike the present constitution, thenew constitution should avoid the expressions which will imply theautonomy of the armed forces. In addition, the decisions of theCouncil of Ministers should be conclusive in the promotion of theranking officers within the military.

The Military High Court of Appeals and the Military HighAdministrative Court of Appeals which was made a part of the

judicial system as a result of the 1961 Constitution and the changesmade in this constitution after the 1971 military intervention arethe guardianship institutions which should not be included in thenew constitution. First instance military criminal courts and firstinstance military disciplinary tribunals are seen in some democraticcountries, but none of these countries has high courts of appealsbelonging only to the military. In a legal system which has courtsof appeal operating in the criminal judiciary and the administrative

judiciary, creating a separate system for the military personnel is


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unacceptable since it violates the unity in the judiciary and sinceit provides a separate autonomous judicial system for a certaingroup of bureaucrats. Such an arrangement can be made onlywith the concern to protect the autonomy of the military field. Thefunctions of the Military High Court of Appeals and the MilitaryHigh Administrative Courts of Appeal should be transferred to theSupreme Court and the Council of States.

The constitutional character of the National Security Council whichhas been regulated as a constitutional organ since the Constitution

of 1961 should be ended and it should be regulated with the law asan advisory body which will work in issues related to the defenseof the country against the outside threats. The National SecurityCouncil should be made an organ which will be used by theCouncil of Ministers in case of need and should not include militarybureaucrats other than the Chief of the General Staff. Assigning jobsto the Council, which will enable it to intervene in daily politics,should be avoided.

The Ministry of Internal Affairs should be responsible from allissues of security outside the defense of the state against the foreign

threats. Internal security units which have military character andoperate in the fields of border and internal security should beremoved; a separate security unit should be created for bordersecurity; and, as it is done in democratic countries, the gendarmerieshould be restructured to act as rural police or its functions shouldbe transferred completely to the police. The principles and ruleswhich will allow all these arrangements and changes of law shouldbe included in the constitution.

In Turkey, the government (the political power) nearly does not

have any role in shaping the senior command level of the military.The military plans its own command structure within its hierarchyand the government approves it. However, it is unthinkable in ademocratic regime that the government will not be a part of theprocess of determining the officers who will command the military.Therefore, the main determinant actor in this process should be thepolitical authority and the appointments which will be made in thesenior command level should be made by the political authorityaccording to the criteria determined by the law.


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The provision that the Chief of General Staff and the commandersof the main military forces shall be tried in the Supreme Court foroffences related to their function, which has been introduced withthe constitutional amendments in 2010, should be abolished andthese kinds of offences should be brought before the first instancecourts within the judicial system.

The expenses of the military organs should be made transparent andauditable. The areas of inspection of all state bodies which reviewadministrative and financial actions within the state structure should

be determined in such a way to cover actions of the military organs;while the inspection organs having the constitutional character areregulated, auditing military organs should be stated clearly amongtheir functions. The functions of the TGNA, the Prime Ministerand the Council of Ministers in planning military expenses and indetermining strategies for them should be included in the articles ofthe constitution on these organs.

No provision should be included in the constitution concerning theschools under the supervision of the military and the police.

Article 72 of the Constitution includes a general provisionstipulating that national service shall be performed either in theArmed Forces or in public service. Acting in accordance with thisprovision, the Legislative body can enact the laws which will allowperforming national service not only as military service but also asother public services. However, the legislative has not benefited sofar from such an opportunity provided by the constitution. The newconstitution should provide the right of conscientious objection andshould include clear provisions stating that national service can beperformed in public services.

3. Other Institutions of Guardianship

The guardianship institutions which are included in the Constitution of1982 are not limited with the military. The guardianship is not maintainedonly through military organs; in the 1982 Constitution, there are manyguardianship institutions which narrow the political sphere, which considerthe elected people behind the appointed people, which restrict the freedomof movement of political authorities and which keep the social sphere aswell as the political sphere under their guardianship. The steps should also


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be taken on the guardianship institutions outside the military while a newconstitution is prepared. In this context;

There is no need to include in the new constitution the StateSupervisory Council, which was created in the 1982 Constitutionin accordance with the model of powerful president and whosedecisions are not binding.

The arrangements which are called as the Reform Laws and regulatedin Article 174 of the 1982 Constitution should not be included inthe new constitution. Any provision stating that the Reform Laws

cannot be claimed to conflict with the Constitution should not beincluded in the constitution.

In the same way;

The Higher Education Council is an institution which has the realguardianship role over universities and which prevents academicfreedom. This institution should be removed from the constitutionand a new institution which will serve planning and coordinationamong universities and which will guarantee academic freedom and

autonomy of universities should be established by law. Nearly all countries need an institution which will organize and

supervise radio and television broadcasts. However, the Radio andTelevision Supreme Council, which has been established in Turkeyfor this purpose, gives the impression of being an actor imposingits guardianship on radio and television broadcasts by acting on therestrictive principles existent in the law. It should be stated in thefirst place that an institution organizing and supervising radio andtelevision broadcasts does not have to be a constitutional institution.An institution established by law can meet the need. In addition, the

law regulating such an institution should aim to expand freedomrather than to impose restrictions.

As an institution which contradicts with the ideological impartialityof the state, the Atatrk High Institution of Culture, Language andHistory should not be included in the new constitution.

The Presidency of Religious Affairs is an institution providingservices by taking a certain religious understanding as its basis.The constitutional character of this institution should be ended. The


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thing which is ideal is that such an institution should not exist withinthe state structure. However, if this institution should be maintainedbecause of the enforcing conditions, the two things should betaken into consideration. Firstly, the Presidency of ReligiousAffairs should be regulated in the form of an autonomous structurewhich will not undermine the religious impartiality of the state.Secondly, the organizations of the religious societies and groups ofbelief which cannot benefit from the services of the Presidency ofReligious Affairs should be recognized as public legal entities.

B. Strengthening Decentralization: Proximity to People and thePrinciple of Locality

Centralism has been one of the basic characteristics of all theconstitutions in Turkeys constitutional history. The related provisions ofthe 1921 Constitution, which was the most powerful constitution in termsof the principle of decentralization, were not implemented. The foundersof the Republic adopted a centralist understanding and could not acceptthat the organs of local administration would have administrative andfinancial autonomy. The organs of local administration were perceived astechnical and administrative units serving the central government ratherthan as the area of local politics open to the participation of citizens. TheLaw of Municipalities, which was enacted in 1930 and had been in forceuntil 2004, adopted an understanding of local administration depended oncentralist politics and political guidance with the mentality of the one-partyperiod.

1. Strengthening Local Administration

Today, regardless of being federal or unitary, all democracies aredistinguished with their administrative structures rested on decentralization

and participation. In order to reach a more advanced level of democracy,Turkey, which has presently the most centralist administrative structure inEurope, needs to start implementing the principle of locality and proximityto people at the possible shortest time. This principle is regulated in the thirdparagraph of Article 4 of the European Charter of Local Self-Government.

In this context,

Article 123 of the 1982 Constitution states that the administrationis based on the principles of centralization and decentralization


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them to exercise the authorities they have. The financial systemson which the resources provided to organs of local administrationare depended should have diversity and flexibility to allow suchauthorities as levy. The way of appropriating the sources whichare distributed from the incomes of the central government shouldbe decided in consultation with the organs of local administration.Sources appropriated for local administrations should notprevent their right of discretion which will be owned by them inimplementing their own policies.

The opportunities of local administrations in involving in regionaland international cooperation should be expanded.

2. Emergency Rule

The state of emergency is declared to enable the government to respondeffectively to an extraordinary situation such as natural disaster, armedrevolt, civil disorder, epidemic diseases or economic crises. Emergencyrule which is peculiar to the periods of emergency is regulated in theconstitutions of the democratic countries.

Emergency rule might be accepted in democratic regimes only if it isintroduced and implemented under certain conditions. The regimes of thestate of emergency seen in totalitarian and authoritarian countries are a kindof rule which is resorted to with the aim of defending the undemocraticregime against people instead of fighting against a threat directed to thecountry.

The emergency rule in a democratic country is a temporary measure. Itis a method which is resorted to against a current threat. The states shouldinform the international organizations about the measures which will takeduring the state of emergency and which are contrary to international

human rights responsibilities; these measures should be proportionate tothe seriousness of the situation. The states cannot violate certain rights andfreedoms even during the states of emergency.

Nearly during the half of the Republican era, the whole country orsome part of it was put under the emergency rule and an important partof the periods of emergency rule coincided with the periods of militaryinterventions and illegalities. It can be derived from this fact that the modelof emergency rule in Turkey was a part of the guardianship system.


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Article 148 of the 1982 Constitution states that no action shall bebrought before the Constitutional Court alleging unconstitutionality as tothe form or substance of decrees having the force of law issued duringa state of emergency, martial law or in time of war. This creates theperception of illegality peculiar to those periods. Under this provision ofthe constitution, in states of emergencies, the Council of Ministers, meetingunder the chairmanship of the President of the Republic, can abolish humanrights completely or can take measures contrary to the guarantees includedin the constitution on human rights with the decrees having the force oflaw. In addition, Article 125 of the 1982 Constitution states that the law

may restrict the issuing of stay of execution orders in cases of state ofemergency, martial law, mobilization and state of war, and for reasons ofnational security, public order and public health. Law No. 1402 on MartialLaw stipulates that no lawsuit can be brought against the administrativeactions which are related to the exercise of the authorities granted to theMartial Law commanders. All these strengthen the perception that theemergency rules in Turkey were not legal regimes. The same perception isalso strengthened by the provision included in Article 15 of the Constitutionthat, in states of emergencies, measures derogating the guarantees embodiedin the Constitution for freedoms and rights can be taken.

However, the periods of emergency should be considered as the periodsin which constitutional guarantees are needed at a higher level in terms ofgeneral human rights regime. In these periods, in comparison with normalperiods, human rights can be restricted at higher levels with the measureswhich will be taken to get rid of the threat directed to the nation or the lifeof citizens. Therefore, the existence of effective measures and the need feltfor legal inspection become more urgent in those periods.

Therefore, in the new constitution;

The martial law which is considered as one of the states ofemergency rule should be given up as a model of emergency rule.In this model, the authority of enforcing law is transferred to themilitary authorities, military courts are established and no lawsuitcan be brought against the actions of the commanders of the martiallaw; all these make it different from the state of emergency. Thecomplete eradication of the model of state of emergency in the formof martial law in the new constitution will bring positive results


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teaching alone or collectively, openly or privately; and the freedomof parents and custodians to give religious and ethical education totheir children in accordance with their beliefs should be included inthe list of hard core rights.

The title in Article 15 of the 1982 Constitution, which is formulated asSuspension of the Exercise of Fundamental Rights and Freedoms,should be changed. When it is looked from the perspective ofillegality which existed in Turkey in the emergency periods andwhich has been explained above, it will be appropriate to include

the title Human Rights during the Periods of Emergency Ruleinstead of suspension of the exercise of human rights. Moreover,from the perspective of the organization of the new constitution, theprovision on human rights in the periods of emergency rule shouldbe put at the end of the section on human rights.

C. Expanding the Political Sphere

1. Political Parties

The provisions on which most heated debates are observed are the ones

in Articles 68 and 69 on the position of political parties, the rules which willbe applied to political parties and the sanctions which will be imposed onpolitical parties. It is seen that, because of the restrictive arrangements inthe Constitution, political parties gain the characteristic of state institutionand the right of political association is restricted with different sanctionsincluding dissolution of political parties, imposed according to highlysubjective criteria.

There are quiet different practices in the world on legal arrangementsregarding political parties. In this line, there are different practices extending

from the examples which regulate political parties with all aspects anddetails, considering them as public corporations, to the example which donot include them in any legal text. The practice which became common inthe aftermath of the Second World War and which was seen especially in thecountries passing from the authoritarian regimes to multi-party democracywas that constitutional guarantees were created for political parties becauseof their functions in pluralist democracies. Creating an environment in whichpolitical parties could perform easily all their activities from organizationto propaganda became the basic goal of constitutional arrangements.


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In international texts, the concepts such as representation, participationand democracy are mentioned, but no specific provisions are included onpolitical parties. The principles regarding political parties are included onlyin special reports such as the Tsatsos Report in 1996 and the Report of theVenice Commission in 1999. These texts contain generally the principleson the right to organize and propagate freely and on the restriction of thisright.

The Tsatsos Report and the decision of the European Parliamentaccepting this report has imposed on political parties the responsibilities

such as respecting democracy, human rights and the principles of theconstitutional state and maintaining a suitable environment for citizens toexpress their political will within the party at any time. Subsequently, thestatement that political parties shall not use the privileges granted to themto fight against the democratic order is included in the text.

The Venice Commission Report titled as The Guidelines on Prohibitionand Dissolution of Political Parties and Analogues Measures underlines theimportance of ensuring the establishment of political parties freely and thecitizens being member of them freely. The Commission considers it within

the limits of the right of citizens to reach, learn and disseminate politicalthoughts without facing any restrictions. In the following section, it statesthat this right can be restricted only within the context of the EuropeanConvention of Human Rights and other human rights conventions.

One of the most important provisions of the report is that the prohibitionor enforced dissolution of political parties is justifiable only in caseswhere parties encourage violence or resort to violence to overthrow thedemocratic constitutional order. According to the standard set by the VeniceCommission, political parties which advocate the use of violence and lead

the citizens to armed conflict, terrorism, racism and xenophobia in theirprograms and statutes might face the sanctions of prohibition or dissolution.It is also stated in the report of the Commission that political parties shouldnot be held accountable for the individual acts of their members as long asthese acts are supported by their decision-making bodies. In the last part ofthe report, it is underlined that the sanctions of prohibition and dissolutionare the measures which will be implemented as the last resort in this issueand that the judgment of court in this issue should be concluded accordingto the principle of fair trial.


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The constitutional provisions regarding political parties wereintroduced in the first time by the 1961 Constitution. Article 56 of the1961 Constitution provided guarantees for political parties by statingthat regardless of they are in power or in opposition, political parties areindispensable elements of the democratic political life. It included in thesubsequent Article 57 the provision that statutes, programs and activitiesof political parties has to comply with principles of the democratic andsecular Republic based on rights and freedoms and the integrity of the statewith its country and nation. The Constitution of 1982 followed almost thesame method; in Article 68 it reiterates firstly the same general guaranteeon political parties and then includes some restrictive and regulativeprinciples. In Article 69 titled as Principles to be Observed by PoliticalParties, controversial statements which allow the imposition of somesanctions including dissolution of political parties are included. In fact, thecases of dissolution brought before the Constitutional Courts on the groundof Article 69 and the judgments concluded by the Court were heavilydiscussed in the past.

After political parties were regulated in the constitution, separate lawswere enacted on political parties in the periods of the constitutions of 1961

and 1982. Law No. 2820 on Political Parties dated as 22 April 1983, whichwas enacted after the 1982 Constitution had been accepted, containedhighly detailed and restrictive provisions.

Considering political parties almost as a state institution, Law No. 2820which is currently in force include regulative and prohibitive provisionsin every field extending from the organization of political parties to thepropaganda and rhetoric which they will use. Changes which will be madein the constitution should eradicate the foundation of anti-democraticprovisions in the law on political parties and expand the political sphere.

With the changes in 1995 and 2001, positive steps were taken interms of judgments on dissolution of political parties. However, thereare still provisions conflicting with the freedom of political party in theConstitution and there are still problems in practice caused by theseprovisions. Therefore, the new constitution should not include prohibitiveand restrictive expression on political parties and it should not serve as thefoundation of anti-democratic provisions and definitions in the texts of law.For this purpose, in the new constitution;


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detailed regulations should not be included on political parties. Inthis context, actually, the provision that

political parties are indispensable elements of democratic political life;

All activities of political parties are under the guarantee of the constitution

on the condition that they shall not encourage violence and shall not defend

racism and xenophobia

should be sufficient.

On the sanctions which will be applied to political parties, differentsanctions should not be included. In the cases which are broughtbefore the Constitutional Court against political parties because oftheir activities and which demand dissolution or other sanctions;sanctions should be reregulated in the light of international textsguaranteeing the freedom of expression, the Tsatsos and VeniceCommission reports on imposing sanctions against political partiesand the judgments of the European Court of Human Rights in thesame issue. Imposing sanctions on political parties should be limited

with resorting to violence or praising or provoking violence, andadopting and defending racism, xenophobia and intolerance whichare mentioned in those texts. All kinds of shocking proposals ofchange in the constitutional structure including the unitary stateand the Republic should be expressed by political parties on thecondition that they do not suggest violence.

To conclude the judgment of dissolution on a political party, thatparty should give place the things mentioned above in its officialtexts such as its statuses and programs or they should be voicedconsciously, constantly and steadfastly by its decision-making and

governing bodies (the grand congress, the general chairmanship, thecentral decision-making and administrative organ, the group generalmeeting and the group executive board). As another importantissue, in the actions performed by members or groups, it should beresorted to the principle of punishing the related offenders insteadof political parties, acting on the principle that crime is a personalthing.

The votes, statements and expression of thoughts of theparliamentarians which are within the boundaries of the legislative


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irresponsibility should not be used as proofs in the cases ofdissolution of political parties.

Dissolution should be considered as the last resort which can beapplied to political parties and the warnings aimed at correctingthe attitude of the party should be included in the constitution.Gradual sanctions such as warning and fine can be contemplated.In the offences stemmed from the statuses and programs of politicalparties, formulations which do not contain dissolution such aswarning and demand of correction should be developed before

a case of dissolution is brought to the court. Filing a suit of dissolution should not be left to the will of the Chief

Public Prosecutor of the state and the decision of political institutionsor authorities should be sought. Filing a suit of dissolution by theChief Public Prosecutor should be made depended on the decisionwhich will be taken by the TGNA with the qualified majority vote.Concluding the judgment of dissolution should be possible with thequalified majority vote of the Constitutional Court.

State officials outside the members of the military and the police

should be allowed to be members of political parties. The mentalityof political authority which considers people as potential offenderswith the concern that an official working the in the state will treatfavorably his/her party should be given up. Everybody who wantsto be member of a political party should be able to do so.

In the issue of receiving financial aid from international organizationsand from persons and corporate bodies who are not citizens ofthe Republic of Turkey, political parties should not be treated aspotential offenders and the prohibitions in this issue should beabolished. Taking the EU membership process into consideration,cooperation with supranational parties and opening representativeoffices in foreign countries should be allowed.

One of the conditions for political parties to lose their characterof being state institutions supported by the state and to exist aspro-freedom platforms is to abolish the treasury support for them.This practice which is the product of the military intervention inpolitics on 12 March 1971 and which is aimed at tying politicalparties to the state by considering them as institutions which seek


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to betray the country is unacceptable. A rigorous type of attitudewhich will not bring about conflicts and disagreements in spendingthe income of taxes collected from the citizens should be adopted.Moreover, the expression equitable financial assistance in theconstitution causes criticisms and debates. For these reasons, thepractice of providing treasury support for political parties shouldnot be continued in the new constitution.

Sanctions shall be applied to the political parties which resort to violence orencourage violence, which

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