New Constitution Based on Human Dignity

For a Fully Democratic Turkey Not Constrained by Guardianship New Constitution Based on Human Dignity This report was originally published in May 2011 and translated to English by Nasuh Uslu Bekir Berat ÖZİPEK Levent KORKUT Murat YILMAZ Vahap COŞKUN Yusuf Şevki HAKYEMEZ Yusuf TEKİN

SDE INSTITUTE OF STRATEGIC THINKING Çetin Emeç Bulvarı Aşağı Öveçler Mh. 4. Cd. 1330. Sk. No: 12 06460 Çankaya / ANKARA Tel. : +90 (312) 473 80 45 Fax : +90 (312) 473 80 46 e-mail : sde@sde.org.tr www.sde.org.tr GRAPHIC - PRINT Başak Matbaacılık ve Tanıtım Hiz. Ltd. Şti. Atatürk Bulvarı Meka Plaza No:5/15 Gimat / Yenimahalle - ANKARA Tel. : +90 (312) 397 16 17 Fax : +90 (312) 397 03 07 e-mail : basaktanitim@gmail.com www.basakmatbaa.com

SDE THEMATIC WORKSHOPS OF CONSTITUTION PARTICIPANTS and CONTRIBUTORS 1 st Workshop: Citizenship in the New Constitution Ece GÖZTEPE, Assoc. Prof. Dr. /Bilkent University Bekir Berat ÖZİPEK, Assoc. Prof. Dr. / SDE New Constitution Working Group Faruk BİLİR, Assoc. Prof. Dr. / Selçuk 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 Nihat BULUT, Prof. Dr. / Erzincan University Orhan MİROĞLU, author / daily Taraf Uğur KARA, Anadolu University Vahap COŞKUN, Assist. Prof. Dr. / SDE New Constitution Working Group Vahit DOĞAN, Prof. Dr. / Gazi University Yasin AKTAY, Prof. Dr. / SDE Chairman Yasin POYRAZ, Assist. Prof. Dr. / Kırıkkale University Yusuf Şevki HAKYEMEZ - Prof. Dr. / SDE New Constitution Working Group Yusuf TEKİN - Assoc. Prof. Dr. / SDE New Constitution Working Group 2 nd Workshop: Freedom of Religion and Conscience in the New Constitution B. Berat ÖZİPEK, Assoc. Prof. Dr. / SDE New Constitution Working Group Bilal SAMBUR, Assoc. Prof. Dr. / Süleyman Demirel University Cennet USLU, Assist. Prof. Dr. / Gaziosmanpaşa University Ferit USLU, Assoc. Prof. Dr. / Hitit University Garabet PAYLAN, Manager in Armenian schools Halit Eyüp ÖZDEMİR, Assist. Prof. Dr. / Marmara University Hasan Yücel BAŞDEMİR, Assoc. Prof. Dr. / Hitit University İhsan ÖZBEK / Former Head of the Turkish Protestant Church Levent KORKUT, Assist. Prof. Dr. / SDE New Constitution Working Group Mehmet Faysal GÖKAL, Assist. Prof. Dr. / Muğla University Mehmet Süreyya ER, Dr. / Michiagan University Merdan HEKİMOĞLU, Prof. Dr. / Izmir University Murat YILMAZ, Dr. / SDE New Constitution Working Group Mustafa ŞENTOP, Prof. Dr. / Marmara University Müçteba KILIÇ, Lawyer, lawyer of Young Civilians Group Şenol KALUÇ, LDT Director of Alewite and Bektashi Studies Yalçın ÖZDEMİR, Su TV Yasin AKTAY, Prof. Dr. / SDE Chairman Yusuf Şevki HAKYEMEZ, Prof. Dr. / SDE New Constitution Working Group Yusuf TEKİN, Assoc. Prof. Dr. / SDE New Constitution Working Group 3 rd Workshop: General Regime of Human Rights in the New Constitution Adnan KÜÇÜK, Assist. Prof. Dr. / Kırıkkale University Ali Rıza ÇOBAN, Dr. / the Constitutional Court

Ayhan DÖNER, Assist. Prof. Dr. / Erzincan University Bülent YAVUZ / Dumlupınar University Cennet USLU, Assist. Prof. Dr. /Gaziosmanpaşa University Faruk BİLİR, Assoc. Prof. Dr. / Selçuk University Hikmet TÜLEN, Dr. / the Constitutional Court Hüseyin ÖZCAN, 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 SAĞLAM, Dr. / the Constitutional Court Nihat BULUT, Prof. Dr. / Erzincan University Vahap COŞKUN, Assist. Prof. Dr. / SDE New Constitution Working Group Yasin AKTAY, Prof. Dr. / SDE Chairman Yusuf Şevki HAKYEMEZ, Prof. Dr. / SDE New Constitution Working Group Yusuf TEKİN, Assoc. Prof. Dr. / SDE New Constitution Working Group Yüksel METİN, Assoc. Prof. Dr. / Süleyman Demirel University 4 th Workshop: Turkey s Administrative Structure and the Principle of Decentralization in the New Constitution Bayram ÖZBEY, Assist. Prof. Dr./ Gaziantep University Bülent ALGAN, Assist. Prof. Dr. / TOBB Economy and Technology University Hamza ATEŞ, Assoc. Prof. Dr. / Kocaeli University Hüseyin KALAYCI, Assist. Prof. Dr/ Maltepe University Halil KALABALIK, Prof. Dr. / Sakarya University Melikşah YASİN, Assoc. Prof. Dr. / Marmara University Murat YILMAZ, Dr. /SDE New Constitution Working Group Ramazan ÇAĞLAYAN, Assoc. Prof. Dr./ Kırıkkale University Sevim BUDAK, Assoc. Prof. Dr. / Istanbul University Şermin ATAK, Assist. Prof. Dr. / Dokuz Eylül University Vahap COŞKUN, Assist. Prof. Dr. / SDE New Constitution Working Group Yakup BULUT, Assoc. Prof. Dr. / Mustafa Kemal University Yasin AKTAY, Prof. Dr. / SDE Chairman Yusuf ŞAHİN, Assoc. Prof. Dr. / Karadeniz Technical University Yusuf Şevki HAKYEMEZ, Prof. Dr. / SDE New Constitution Working Group Yusuf TEKİN Assoc. Prof. Dr. / SDE New Constitution Working Group 5 th Workshop: The Governmental System of Turkey in the New Constitution Adnan KÜÇÜK, Assist. Prof. Dr. / Kırıkkale University Ali Rıza ÇOBAN, Dr. / the Constitutional Court Ayhan DÖNER, Assist. Prof. Dr. / Erzincan University Bülent YAVUZ, Assist. Prof. Dr. / Gazi University Ece GÖZTEPE, Assoc. Prof. Dr. / Bilkent University Erdal ABDÜLHAKİMOĞULLARI, Assoc. Prof. Dr. / Ondokuz Mayıs University Faruk BİLİR, Assoc. Prof. Dr. / Selçuk University Hikmet TÜLEN, Dr. / the Constitutional Court Hüseyin ÖZCAN, 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 SAĞLAM, Dr. / the Constitutional Court Nur ULUŞAHİN, Assist. Prof. Dr. / Başkent University Ozan ERGÜL, Assist. Prof. Dr. / Ankara University Şule ÖZSOY, Assoc. Prof. Dr. / Galatasaray University Tevfik Sönmez KÜÇÜK / Yeditepe University Yasin AKTAY, Prof. Dr. / SDE Chairman Yusuf Şevki HAKYEMEZ, Prof. Dr. / SDE New Constitution Working Group Yusuf TEKİN, Assoc. Prof. Dr. / SDE New Constitution Working Group 6 th Workshop: Guardianship and Civil-Military Relations in the New Constitution Faik TARIMCIOĞLU, Law / (Retired) Military Judge / (Former) Member of Parliament Faruk BİLİR, Assoc. Prof. Dr. / Selçuk University Lale KEMAL, journalist-author / daily Taraf Levent KORKUT, Assist. Prof. Dr. / SDE New Constitution Working Group Muhsin ÖZTÜRK, journalist / Aksiyon (magazine). Murat YILMAZ, Dr. / SDE New Constitution Working Group Sertaç BUCAK / Politician Vahap COŞKUN, Assist. Prof. Dr. / SDE New Constitution Working Group Yasin AKTAY, Prof. Dr. / SDE Chairman Yılmaz ENSAROĞLU, Human Right Activist / SETA Human Rights Coordinator Yusuf Şevki HAKYEMEZ, Prof. Dr. / SDE New Constitution Working Group Yusuf TEKİN, Assoc. Prof. Dr. / SDE New Constitution Working Group II. Members of SDE High Advisory Council, who Contributed the Draft Sacit Adalı - Prof. Dr. /Dean of Law Faculty, Turgut Özal University / Former Member of the Constitutional Court Ali Şafak - Prof. Dr. /Turgut Özal University / Former Dean of the Faculty of Security Sciences of the Police Academy Yasin Aktay - Prof. Dr. / Sociology / Selçuk University Beril Dedeoğlu - Prof. Dr. / International Relations / Galatasaray University Doğu Ergil - Prof. Dr. / Political Science / Ankara University İhsan Dağı - Prof. Dr. / International Relations / Middle Eastern Technical University Kıvılcım Özcan - Assoc. Prof. Dr. / Economy / Bilkent University Faik Tarımcıoğlu - Law / (Retired) Military Judge / (Former) Member of Parliament Salim Uslu / Trade Unionist / Former Chairman of Hak-İş Confederation (trade union) Mehmet Atalay / Director of the Press Advertisement Institute Mehmet Akif Ak Chartered Accountant / Researcher-Writer Aydın Bolat Educationist / Analyst / (Retired) Military Officer Mustafa Karaalioğlu - Journalist / Editor in Chief of daily Star Alper Tan - Journalist / General Manager of Channel A Mustafa Akyol - Journalist / Columnist in daily Star

Contents INTRODUCTION...8 I. THE VISION OF...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

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

Introduction Turkey is going through a rapid transformation period. It tries to save itself from the effects of the military coup carried out on 12 September 1980; to solve its chronic structural problems and to establish democracy as it should be. It is possible to reach these goals only by radical changes in domestic and foreign policy. However, there are important obstacles before this transformation. In this process, one of the most important obstacles in front of Turkey is the constitution which does not have characteristics of a genuine social contract and which does not allow change. Every proposal of structural change aimed at solving basic problems of the country and every effort of reform aimed at widening the realm of freedoms hit the barricades erected by the interim-period constitution. In fact, creating a new constitution which is based on a democratic and pluralist political structure, which strengthens human rights and freedoms and which will allow Turkey to turn its face to the world, is a feasible and achievable goal. A new constitution, which will be a social contract between the individual and the state; which will guarantee human rights and freedoms and which will be built upon a democratic and pluralist structure, needs a process of negotiation and debate which will be enriched with the participation of all people 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 contribute the emergence of a participatory constitution and a social consensus. This report, which is the product of a 6-month work, essentially represents the search for an answer to the question how can we contribute the efforts of meeting the need for a new constitution? which has become more prominent after the referendum on 12 September 2010. Of course, different answers can be put forward for this question; different proposals and different methods can be produced. The method preferred in this report is to underline the basic problem areas which should be definitely overcome in 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? 8

How should the guarantees regarding the freedom of belief and worship be arranged in the new constitution? What should be the degree of the emphasis on ethnicity and how should the citizenship stripped of hints be defined in the new constitution? How can the institution of guardianship in the present constitutional structure be eradicated and how can the institutionalization of democracy be realized in the new constitution? What kinds of changes regarding the governmental system of Turkey should be included in the new constitution? What kind of reforms regarding the administrative structure should be included in the new constitution? How should the judiciary protecting human rights and establishing the constitutional state be arranged in the new constitution? This report has been born as a result of the thematic workshops in which the answers were sought for the questions above. The workshops were shaped with the contributions of academicians who produce solutions by looking at Turkey s problems from different political and ideological perspectives. A workshop was organized for each question stated above and academicians who are experts in each field participated in the related workshop. Of course, the statements included in this report are not direct opinions of the academicians who participated in the workshops. However, it should be stated that the main source of reference for this report are those thematic workshops. Therefore, we would like to extend our gratefulness and thankfulness to the participants of the workshops, whose names are mentioned at the end of the study, and to the members of SDE High Advisory 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 and supported all these works. SDE New Constitution Working Team Bekir Berat ÖZİPEK Levent KORKUT Murat YILMAZ Vahap COŞKUN Yusuf Şevki HAKYEMEZ Yusuf TEKİN 9

I. THE VISION OF NEW CONSTITUTION Constitutional reforms can be realized in two ways: adapting the constitution to the requirements of the era with partial changes or creating a new constitution. Adapting to new developments in stable societies can be possible with partial changes in constitutions. As for turbulent communities, frequently new constitutions are made here. The history of the eightyyear old Republic of Turkey saw three constitutions. These constitutions had been generally prepared in undemocratic environments and through illegal methods. Moreover, with the Constitution of 1961, the tradition of employing the institutions putting the political system under guardianship was introduced. This tradition, which was continued with the Constitution of 1982, left human rights unprotected and made it impossible to establish the democratic constitutional state as it should be. In result, Turkey has not been able to reach constitutional democracy. Beginning to question its system in the 2000s, Turkey is now after making a democratic, civil and pro-freedom constitution based on the rule of law. This effort can result in concrete results only with a new vision and new goals. Of course, it will not be an appropriate attitude to perceive a new constitution as a magic wand which will solve all problems. Nevertheless, in a society which experienced top-down approaches in its constitutional history, it is a compulsion to make a new constitution in a free environment and with a participatory method. The examples in the world demonstrate that countries which wanted to strengthen their democracies built the constitutional infrastructure of democracy as a first task. In the countries such as Spain, the Republic of South Africa, Hungary and Poland, it became possible to move to democracy only with a new constitution. A new constitution can be created only through reconstituting the mentality which lies at the basis of constitution. This new mentality should reign over all constitutional principles and institutions. In a country in which 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 a new one even if it carries the title new. If a new social contract becomes a necessity in a country, a constitution which does not serve this goal will bring about disappointment rather than hopes. In short, the expectations 10

from a new constitution will be evaluated in the light of the vision provided by it. A constitution which is compatible with the social change and developments 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 diversity and pluralism at its basis. 11

II. HUMAN DIGNITY The concept of human dignity has gained an increasing attention and use in the constitutions of the world countries. While it was included in the constitutions of only four countries in the 1900-1947 period, this figure reached 40 between 1947 and 1997. This increase in the usage of the concept of human dignity in constitutions can be explained with that it constitutes the basis of human rights and freedoms. The Article 7 of the Helsinki Declaration underlines this connection by saying that the participating States will promote and encourage the effective exercise of civil, political, economic, social, cultural and other rights and freedoms all of which derive from the inherent dignity of the human person and are essential for his free and full development. It is accepted in the preamble of the Universal Declaration of Human Rights that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Acting on this acceptance, it can be said that the concept of human dignity consists of three 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 as long as it protects human rights and maintains a suitable environment of freedom in which human rights and freedoms are exercised. Therefore, the constitution should guarantee human rights against the power of the state. In terms of human rights, priority should be given in the constitution to the individual and his/her freedom since they are important. The state which is based on human rights should be included in the new constitution while the characteristics of the state are listed. Likewise, it should be stated in the preamble of the constitution that the essential priority of the constitution is the individual and his/her freedom and that the human dignity is inviolable by and superior to the state. Unlike the 1982 Constitution, the new constitution should not include the statements which restrict democracy and human rights as contrary to the universal standards and which are based on ideological choices; but it should contain the norms which are compatible with the function of the constitution such as the individual, freedom, the will of people, and the rule of law. A kind of arrangement and list which will ensure the privileged position of human rights should be prevailed in the organization of the constitution. 12

Regulating some of human rights in the constitution is important because of the strong emphasis which is put on them. It is not necessary to regulate all human rights in the constitution and this is not possible. In this point, it is important to internalize the principle freedom is rule, restriction is exception, which is the most essential principle of the human rights law. However, it is a necessity to include the issues which are related to the restriction of human rights together with their guarantees in the constitution. Moreover, the care should be taken to demonstrate that the constitution gives priority to the individual against the state and it is based on human rights. For this purpose, human rights and their guarantees should be mentioned in the first articles of the constitution and the issues related to the restriction of human rights and the legal regime which will be applied to human rights in the state of emergencies should be regulated in the subsequent articles. This approach which did not exist in the constitutions of 1961 and 1982 will be interpreted as the clear sign that the constitution is individual and freedom-oriented. It should be stated that the type of arrangement in the constitution of the Federal Republic of Germany is like this. To put it more clearly, in the constitution, firstly the nature of human rights should be mentioned; secondly, the articles regulating human rights clearly should be inserted; and finally the provisions regulating restriction of human rights and the regime which will be applied to human rights in the state of emergencies should be included. Rights and freedoms should be regulated explicitly in the articles in which human rights are mentioned and subsequently the specific reasons for restriction should be given. The articles in which human rights are regulated should be as short as possible and should emphasize freedom. It will be appropriate not to include a separate article which prohibits the abuse of human rights in the constitution. In fact, Article 14 of the 1982 Constitution titled as Prohibition of Abuse of Fundamental Rights and Freedoms has been used so far mainly as a constitutional support to restrict human rights in higher level. Therefore, it will be appropriate not to include in a pro-freedom constitution the articles which will bring such unfavorable 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 in the constitution. Each freedom has an objective norm area and the abuses 13

which stay outside the objective norm area from the legal perspective cannot benefit from the protection of this freedom. Even if the constitution does not include a provision on the abuse of rights, the abuse of rights cannot be protected from the legal perspective as a requirement of the objective limit of each freedom. The legislative can regulate the abuse of rights in the penal 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 human rights, an article which includes the statement that everyone is entitled to untouchable, indispensable and non-transferrable rights which are attached to his/her personality and owned by birth should be inserted in the constitution. Another meaning of the inclusion of such an article in the constitution is to declare the following: the important thing is not whether rights are recognized by the state authorities or not, but it is that the individual is entitled to these rights by birth because he/she is a human being. From this perspective, the constitution should be seen as a text which guarantees only the rights owned by the individual by birth and restricts the state authority with these rights. In a constitution which is focused on the individual and freedoms, it is a compulsion to emphasize the reputability and immunity of human dignity in an article regulating the nature of human rights. It will be more correct not to bring the duty aspect of rights and freedoms to 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, the society and his/her family since freedom cannot be unlimited. However, emphasizing the duty aspect in the constitution might affect negatively the freedom aspect of a constitution which gives priority to human rights. In fact, issues which are related to the duty aspect of each human right can be seen as a part of specific reasons for restriction which are included in each article regulating a separate freedom. In the new constitution, under the title of the nature of human rights it should be stated that everyone has the responsibility of respecting rights of others while exercising his/her own rights and freedoms instead of mentioning the duty aspect. In the article in which the nature of human rights is regulated, the goals and 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 14

duty of the state is to protect human rights and to remove all kinds of obstacles to human rights. In Article 5 of the 1982 Constitution which is about the fundamental aims and duties of the state, issues related to the protection of the state instead of human rights come first. Since such an arrangement gives the priority to the protection of the state, the state cannot fulfill its role of expanding freedoms which is expected from it. If the state s fundamental duty of protecting and improving human rights is clearly stated in the article titled as the nature and protection of human rights, it will be possible to hold a more pro-freedom approach toward human 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 rights or the regime of its restriction is regulated that none of the provisions of the constitution can be interpreted in a way to eradicate rights and freedoms stated in the constitution or to restrict them at a higher degree than sought in the constitution. Such a provision which is included in Article 17 of the European Convention of Human Rights and Article 14 of the 1982 Constitution actually emphasizes that the state cannot destroy human rights and cannot restrict human rights in a higher degree than stipulated in the constitution. In fact, the constitution should determine the minimum level or the basement regarding human rights and the maximum level or the ceiling in restricting human rights. The constitution should take these into 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 individual s rights and freedoms is the rights and freedoms of 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. 15

C. The Regime of the Restriction of Human Rights In pro-freedom democracies, human rights are essential and restricting them is an exceptional way which is resorted to in cases of necessity. Restricting human rights is necessary to protect rights of the others and to maintain order. However, in this process, the balance between restrictions brought for human rights and freedoms and the reasons for restriction should be determined correctly. For this purpose, the restriction of human rights should be enacted by the constitution or it should be arranged with laws if there is no clear restriction in the constitution. While this restriction is regulated, the clear provisions which will be taken into consideration by the legislative should definitely be included in the text of the constitution. In the process of restricting human rights, specific reasons for restriction should be stated in each article regulating a freedom. It should be avoided to include in the constitution the provisions which could be interpreted as general reasons for restriction for all freedoms. Specific reasons for restriction should be determined in line with the universal human rights standards. Although it is possible to include in the constitution the specific reasons 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 of proportionality and the regime of restriction will be an important guarantee for human rights. In order to benefit from the principle of proportionality as a guarantee, the Turkish Grand National Assembly (TGNA) and especially the Constitutional Court should use this principle in the correct way. Restrictive measures which will be brought about in terms of the restriction regime should not be contrary to the requirements of the democratic order of the society and restrictions should be implemented in a way not to touch the essence of a right. To comply with universal human rights standards, the Legislative which will regulate restrictions with laws and the Constitutional Court which will check the computability of restrictions with the constitution should take these points into consideration. Especially the Constitutional Court with a pro-freedom approach should interpret these principles and rules which will be obeyed while restrictions are implemented. While formulating the regime of the restriction of human rights in the new constitution, the statements like the ones in Article 13 of the 1982 16

Constitution ( not being in conflict with the requirements of the secular Republic, being in conformity with the spirit and letter of the Constitution ) should not be included in the new constitution. The content of these kinds of statements could be filled in different ways, they do not have any place in the regime of restriction of human rights in the comparative law and they could be interpreted ideologically. While the criteria which will be taken into consideration in restricting human rights are mentioned in the text of the constitution and the specific reasons for restricting a specific freedom is included in each article regulating a freedom, it is unnecessary to state also that restrictions should not be in conflict with the letter of the constitution. In fact, provisions regarding human rights are included in the constitution to be taken into consideration by the Legislative in restricting human rights or by the Constitutional Court in checking the compatibility of those restrictions with the constitution. D. Social Rights Another important issue concerning the general human rights regime is related to social rights. The basic problem here stems from the similar statements to the one in Article 65 of the 1982 Constitution titled as the Extent of the Social and Economic Duties of the State : The State shall fulfill its duties as laid down in the Constitution in the social and economic fields within the capacity of its financial resources, taking into consideration the priorities appropriate with the aims of these duties. These kinds of provisions might at first sight create the impression that as if they are related to all social rights. However, especially in the rights such as the right to organize labor unions and the right to strike, which could be seen within the framework of the right of negative status as a requirement of their nature, there can be no mention of the duty of the state in the form of fulfilling its duties stemmed from social rights. Actually, the right to organize labor unions and the rights to strike and lockout do not necessitate such form of negative state act as a requirement of their nature. Therefore, if it is necessary, the provision that the state will fulfill its duties concerning social rights within the capacity of its financial resources can be inserted separately in the articles related to the rights other than the rights having the nature of negative status right such as the rights to organize labor unions, to strike and to lockout instead of a general article similar to Article 65 of the 1982 Constitution. Moreover, since the right to 17

social security is directly related to the right to life, it should be taken into consideration that providing this right will not be limited with financial resources 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 to all people employed in all sectors without making any distinction between the public and private sectors; measures eradicating inequalities of poor, women, disabled and children should be taken in the field of social rights; health, education, sheltering and environmental rights should be regulated in parallel with the responsibilities stemmed from the international law on the basis of human dignity; the state should take positive measures as a requirement of the equality and the prohibition of discrimination. E. Freedom of Religion and Conscience Creating a social, legal and political environment in which the individual can practice his/her religious beliefs without violating the rights of the others 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 a constitutional formulation which will constitute its basis. Such a legal framework requires a category of rights which will enable all people, believers and unbelievers and those who believe differently, to continue their lives within the society as equal individuals. The freedom of religion and conscience represents a basic right which includes believing or not believing in a religion, practicing the requirements of belief or disbelief, practicing or not practicing rituals, changing religion, propagating beliefs, organizing sects, cults etc., being members of such organizations and leaving them, and not being forced to believe in a certain way or not to believe. The legal and political precondition of realizing this is to establish the principle of impartial state which keeps equal distance to all kinds of identities. Although this principle is a viable goal which can be reached 18

in many countries, it has not been established in many other countries including Turkey as required. The freedom of religion and conscience cannot be realized only through constitutional and legal arrangements. Different practices were observed in the countries having the same constitutional framework. Freedoms are narrowed and expanded in different periods in some countries such as Turkey though the same articles are included in the constitution. These facts demonstrate that creating an ideal constitutional arrangement for a freedom is not sufficient to protect it. It might also be added that the Constitutional Court interprets the same principles differently in different periods remaining under the influence of the political atmosphere. So, the value of the constitution in terms of protecting freedoms can be questioned. However, all these points do not eliminate the importance of creating an ideal constitutional framework in terms of guaranteeing freedoms. The constitution is mostly always in Turkey a necessary precondition of guaranteeing freedoms even if it is not sufficient on its own. If secularism will be included in the constitution as a political principle, the content of this principle should be defined in a way which will not contradict with human rights. This definition should be based on the freedom aspect which is the basis of the principle of secularism and should guarantee the impartiality of the state between religions and beliefs. On the freedom of expression, it should be stated that no distinction is made between religious and non-religious types of expression or the idiom of religious expression should also be included in the part in which the freedom of expression is regulated. On the freedom of association, the new constitution should provide guarantees against the prohibitive arrangements imposed on religious groups and sects. The right to religious education should also be included in accordance with international human rights texts and international conventions. In this context, the individual should be granted with the rights to learn and teach his/her religion and to establish institutions providing religious education and the legitimacy of the private religious organizations should 19

be recognized. The right to conscientious objection should definitely be included in the new constitution. As it is valid for other articles mentioned in this report, only specific restrictions should be included in the constitution on the freedom of religion and conscience if they are necessary. These restrictions should be included only 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 and beliefs 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 depend on 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 call for violence, racist discourse of hatred and enmity, insult and violation of private life. The freedom of press and the freedom of science and art should be regulated briefly and concisely and restrictions which will bring about in 20

these freedoms should be compatible with the standards of the international human rights law. The present constitution includes unacceptable restrictions like the one that the right of press and to disseminate cannot be exercised to change the provisions of the first three articles of the Constitution. The new constitution should not definitely include such reasons for restrictions. 21

III. RULE OF LAW A. Justice One of the leading factors which make individuals happy is to think that 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 preventing the individual from being subjected to life conditions not compatible with human dignity and maintaining the balance of rights and freedoms among individuals. B. Security of the Individual and the Principle of Equality One of the most important characteristics of today s democracies is that equality in front of law is secured through the constitution and the laws. Therefore, the new constitution should adopt the widest framework accepted by democratic state orders regarding equality. The prohibition of discrimination should also be included in the constitutional arrangement together with the principle of equality. The constitutions of 1961 and 1982 considered the principle of social state among the basic principles of the Republic. However, practices in the last fifty years demonstrate that social state has been misunderstood and misapplied. This principle has been made the basis of the approaches of statism and centralism. They have been used to establish a statist socioeconomic structure and as the justification for the state s intervention in economy. Secondly, they have been tried to be made economic policies of the social state. However, the constitution should not defend certain economic policy. Economic policies are choices of political parties and they are implemented if they are supported by people. Instead of establishing constitutional 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 bring about the principle of social state. The primary objective of social state should be to enable poor people to live a decent life compatible with human dignity. In this context, Acting on the assumption that the security of the society cannot be ensured without ensuring the security of individuals, the state s responsibility of ensuring the security of individuals should be 22

included in the constitution. The principle of security of individuals, which is regulated in the constitution, will constitute the basic premise of the rights of health, environment, sheltering, basic education and social security. The foreigners who immigrate to Turkey since they are persecuted in their countries should be accepted as refugees. An arrangement which will make it possible to take measures to ensure the security of 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 cover explicitly all reasons for discrimination included in all international human rights arrangements. Rights and freedoms of women as well as their social rights should be considered together with the measures which will eradicate inequalities. Measures which will ensure the individual security of poor and disabled people and children should be taken. C. The Judiciary The independence of the judiciary is a crucial principle in the constitutional state. However, in order to ensure fair trial, the independence of the judiciary should be considered together with the impartiality of the judiciary, which is its inseparable part. In order to ensure this, members of the judiciary should not act with ideological biasness. Ensuring the ideological impartiality of the state is the precondition of an independent and 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. The judicial review embodies such a limitation due to its nature. Unfortunately, in Turkey, the judiciary resorts to the review of appropriateness by going beyond checking the compliance with the law; therefore, this rule should clearly be expressed in the constitution. The position of the Court of Accounts which audits on behalf of the Turkish Grand National Assembly (TGNA) should be reregulated. Since its audit and decisions given at the end of audit have technical/peculiar 23

characteristics, it will be more appropriate to transform the Court of Accounts to a fiscal court. Moreover, the Court of Accounts should be equipped with the authority of effective supervision to apply its same rules and sanctions of supervision to all the state organizations including the military. Important revisions are needed in the new constitution in the structure of the high judiciary organs including the High Council of Judges and Prosecutors and the duties and authorities of the Constitutional Court and the Court of Accounts. Although the 2010 amendments to the Constitution of 1982 have brought positive changes on the judiciary, shortages and problems 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 in conflict with European standards and the principles determined by the Venice Commission on the structure of high judicial organs. The membership of the Minister of Justice in the HSYK should continue, but the chairmanship should be undertaken by one of the elected members. In order to increase the democratic legitimacy of the HSYK, one third of the members should be elected by the Parliament. The care should be taken to elect the members from different fields. The Council should not be composed of only members of the judiciary. Academicians, lawyers and high-level bureaucrats should also be elected as the members of the Council. The members of the Council who come from the judiciary should be elected according to the principle of broad and fair representation of the judiciary. In order to ensure a more pluralist structure while creating the Council, each member should vote only for one candidate in the elections which will be held in the Supreme Court, the Council of State and in the judicial and administrative judiciary. In this way, the members who are elected by certain circles in the institutions having the authority to send members 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 will contribute the legality of the Council. The changes regarding the HSYK which are mentioned above should be made as a whole. Otherwise, if the status of the Minister of Justice is changed before the Turkish Grand National Assembly is authorized to elect 24

members for the Council, it might be moved away from the democratic legitimacy and it might be tilted to the caste system at a higher degree. Therefore, in creating the new structure of the Council, all requirements of the standards mentioned in the report of the Venice Commission titled as Judicial Appointments should be met. 2. The Structure of Higher Judicial Organs Since the military has a considerable weight in Turkey s political system, the High Military Court of Appeals and the High Military Administrative Court of Appeals, which are included in the Constitution should be abolished. First instance courts in the military judicial judiciary should be integrated into the judicial judiciary as disciplinary tribunals. Disagreements concerning the military administrative issues should be brought to first instance courts. This change is important in terms of bringing the powerful position of the military down to the normal level and is indispensable to build a judiciary compatible with the norm of constitutional state. In the elections which will be held to elect members for the Supreme Court and the Council of State, competency should be the main criterion. Changes should also be made to transform high courts to real courts of precedents (cases) and appellate reviews should be transferred mainly to courts of appeals. While doing this, the number of chambers and members in the Supreme Court and in the Council of State can be maintained with temporary provisions which will be included in the Constitution until the problem of heavy workload is solved, but their number should be reduced after this problem is solved. 3. The Constitutional Court The existence of provisions concerning human rights in the constitution is, of course, important. However, in the practice, the Constitutional Court empties the content of the constitutional guarantees of human rights with its interpretations in spite of clear provisions of the constitution. Therefore, a provision emphasizing clearly the basic function of the Constitutional Court in the protection of human rights should be included in the new constitution. In its judgments concluded so far, the Constitutional Court has held an approach favoring prohibitions rather than freedoms and has stayed behind the universal law standards. In relation with this reason, 25

the structure of the Constitutional Court and its composition of members should be reformulated to enable the Court to make interpretations favoring freedoms. Although the 2010 changes in the constitutional law have brought some positive developments, the present situation cannot be seen as ideal. The number of the members of the Constitutional Court should be increased to reach 21. In addition, the working order in the form of two chambers should be made more functional and the appeals of cancellation and objection should be discussed in the chambers. The conclusion of the appeals of cancellation and objection by the Court in its General Assembly, which is the present situation, increases the workload and this prevents the Court from 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. The majority of the members should be elected by the Turkish Grand National Assembly (TGNA). As higher judicial organs, the Supreme Court, the Council of State and the Court of Accounts should be able to elect members directly for the Constitutional Court. When the president is elected by people, he/she should be authorized to elect a certain number of members. Although all the members are elected by the parliament in some European countries, the mixed method should be adopted in creating the structure of the Court to ensure pluralism and to prevent domination of certain circles in it. For this purpose, the TGNA should elect members through qualified majority vote. 26

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 into consideration. Otherwise, the Court will not be able to conclude judgments which will allow it to fulfill the functions expected from it. Acting on the clear emphasis included in the text of the constitution in this issue, the qualifications which are sought in electing members for the Court should be regulated in laws. The right of the individual petition to the Constitutional Court should be expanded to include all rights, not only those in the context of the European 27

Convention of Human Rights (ECHR). Moreover, an effective mechanism functioning fast should be created to allow the Constitutional Court to examine and conclude individual petitions. Provisions concerning the authorities of the Constitutional Court, which have created a great number of problems at the recent period, should be regulated explicitly in the constitution. The Court has acquired the authority of suspending the implementation and the authority of reviewing changes 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 authorities other than ones mentioned in the constitution. 28

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 free countries. Semi-democracy is a concept used for the regimes having the following characteristics: they are based on general elections and multiparty structure, but, in these regimes, the elected people are controlled by bureaucratic or monarchial elites; human rights including political rights are restricted in a way which will be contrary to democracy. These regimes allow pluralism and participation in a limited way. All these factors have been influential in calling Turkey as semi-democracy. A guardianship regime aimed at controlling the elected people, the restriction of political rights, the frequent dissolution of political parties and the obstacles in front of expressing political, religious and cultural values in the public sphere are main democracy weaknesses of Turkey. The regime whish was established after the military coup on 27 May 1960 was a guardianship regime which aimed to keep the representatives of people under the guardianship of the bureaucratic power. The distinguishing characteristic of the 1961 Constitution was to have a limited understanding of democracy. This thinking which was based on the suspicion and fear felt from the will of the majority was reflected in the constitution and, as a result, the mechanisms which would protect the political values and interests of the statist elites were included in the constitution. In accordance with the ideology of the guardianship, the institutions and organs such as the Republican Senate, the Constitutional Court and the National Security Council were granted the authorities of supervising and monitoring the political power (the parliament and the government). It is possible to say that these ideological concerns which had been influential became more decisive in the constitution of 1982. The creators of the constitution, who adopted the most authoritarian and the most statist interpretation of the guardianship ideology, expanded the area of the guardianship phenomenon which functioned on the state powerpolitical power duality and consolidated the power and authorities of the guardianship organs on democratic politics and society. The expressions and ideological choices which contradict with the impartiality of the state such as Atatürkism, the principles and revolutions of Atatürk and the Atatürk nationalism should not be included in the 29

constitution. The provisions similar to the one in Article 58 of the Constitution ( the state shall take measures to ensure the training and development of the youth in line with the principles and reforms of Atatürk ) should also not be included in the constitution. The Turkish Armed Forces (TSK) was at the centre of this power bloc which kept democratic politics under its guardianship in accordance with the official ideology. It can be said that the military gained more strength and authority after each military coup through legal and constitutional arrangements. 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 the first place, is the eradication of the guardianship system whose foundations were laid down with the Constitution of 1961 with all its elements. For this purpose; The provision in Article 1982, which was introduced for the first time by the Constitution of 1961, (sovereignty will be exercised through authorized organs) constitutes the legal basis creating the possibility of intervening in the democratic regime for bureaucratic mechanisms because of the uncertainty it has created on the use of sovereignty. In a founder text, in which general principles concerning the state organization and the basic rights are included, an issue as important as the exercise of authorities stemmed from sovereignty should be regulated in accordance with the values of democracy, rule of law and pluralism. In principle, the exercise of authorities stemmed from sovereignty should be limited only with the 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 30

should be included in the section titled as general principles. The authority of changing the constitution should be vested only in the TGNA and nation. The Constitutional Court should not have any authority of reviewing constitutional changes. Possible contradictions in the process of constitutional change can be corrected easily in the Committee of Constitution and the General Assembly of the TGNA. 2. The Position of the Turkish Armed Forces The constitutional position of the Turkish Armed Forces is another point of criticism which is important for the guardianship system. In order to eliminate these criticisms, the following points should be taken into consideration. The Turkish Armed Forces was organized as an autonomous organ within the administrative structure of the state in the period after the 1960 military coup. One of the important foundations of this autonomy was that although there was a separate Ministry of Defense within the central government, the armed forces was directly associated with the Prime Ministry instead of the Ministry of Defense. In the new constitution, the Turkish General Staff should be organized under the Ministry of Defense as it is the case in other democratic countries. Moreover, unlike the present constitution, the new constitution should avoid the expressions which will imply the autonomy of the armed forces. In addition, the decisions of the Council of Ministers should be conclusive in the promotion of the ranking officers within the military. The Military High Court of Appeals and the Military High Administrative Court of Appeals which was made a part of the judicial system as a result of the 1961 Constitution and the changes made in this constitution after the 1971 military intervention are the guardianship institutions which should not be included in the new constitution. First instance military criminal courts and first instance military disciplinary tribunals are seen in some democratic countries, but none of these countries has high courts of appeals belonging only to the military. In a legal system which has courts of appeal operating in the criminal judiciary and the administrative judiciary, creating a separate system for the military personnel is 31

unacceptable since it violates the unity in the judiciary and since it provides a separate autonomous judicial system for a certain group of bureaucrats. Such an arrangement can be made only with the concern to protect the autonomy of the military field. The functions of the Military High Court of Appeals and the Military High Administrative Courts of Appeal should be transferred to the Supreme Court and the Council of States. The constitutional character of the National Security Council which has been regulated as a constitutional organ since the Constitution of 1961 should be ended and it should be regulated with the law as an advisory body which will work in issues related to the defense of the country against the outside threats. The National Security Council should be made an organ which will be used by the Council of Ministers in case of need and should not include military bureaucrats other than the Chief of the General Staff. Assigning jobs to the Council, which will enable it to intervene in daily politics, should be avoided. The Ministry of Internal Affairs should be responsible from all issues of security outside the defense of the state against the foreign threats. Internal security units which have military character and operate in the fields of border and internal security should be removed; a separate security unit should be created for border security; and, as it is done in democratic countries, the gendarmerie should be restructured to act as rural police or its functions should be transferred completely to the police. The principles and rules which will allow all these arrangements and changes of law should be 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 hierarchy and the government approves it. However, it is unthinkable in a democratic regime that the government will not be a part of the process of determining the officers who will command the military. Therefore, the main determinant actor in this process should be the political authority and the appointments which will be made in the senior command level should be made by the political authority according to the criteria determined by the law. 32

The provision that the Chief of General Staff and the commanders of the main military forces shall be tried in the Supreme Court for offences related to their function, which has been introduced with the constitutional amendments in 2010, should be abolished and these kinds of offences should be brought before the first instance courts within the judicial system. The expenses of the military organs should be made transparent and auditable. The areas of inspection of all state bodies which review administrative 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 are regulated, auditing military organs should be stated clearly among their functions. The functions of the TGNA, the Prime Minister and the Council of Ministers in planning military expenses and in determining strategies for them should be included in the articles of the constitution on these organs. No provision should be included in the constitution concerning the schools under the supervision of the military and the police. Article 72 of the Constitution includes a general provision stipulating that national service shall be performed either in the Armed Forces or in public service. Acting in accordance with this provision, the Legislative body can enact the laws which will allow performing national service not only as military service but also as other public services. However, the legislative has not benefited so far from such an opportunity provided by the constitution. The new constitution should provide the right of conscientious objection and should include clear provisions stating that national service can be performed in public services. 3. Other Institutions of Guardianship The guardianship institutions which are included in the Constitution of 1982 are not limited with the military. The guardianship is not maintained only through military organs; in the 1982 Constitution, there are many guardianship institutions which narrow the political sphere, which consider the elected people behind the appointed people, which restrict the freedom of movement of political authorities and which keep the social sphere as well as the political sphere under their guardianship. The steps should also 33

be taken on the guardianship institutions outside the military while a new constitution is prepared. In this context; There is no need to include in the new constitution the State Supervisory Council, which was created in the 1982 Constitution in accordance with the model of powerful president and whose decisions are not binding. The arrangements which are called as the Reform Laws and regulated in Article 174 of the 1982 Constitution should not be included in the new constitution. Any provision stating that the Reform Laws cannot be claimed to conflict with the Constitution should not be included in the constitution. In the same way; The Higher Education Council is an institution which has the real guardianship role over universities and which prevents academic freedom. This institution should be removed from the constitution and a new institution which will serve planning and coordination among 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 and Television Supreme Council, which has been established in Turkey for this purpose, gives the impression of being an actor imposing its guardianship on radio and television broadcasts by acting on the restrictive principles existent in the law. It should be stated in the first place that an institution organizing and supervising radio and television 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 freedom rather than to impose restrictions. As an institution which contradicts with the ideological impartiality of the state, the Atatürk High Institution of Culture, Language and History should not be included in the new constitution. The Presidency of Religious Affairs is an institution providing services by taking a certain religious understanding as its basis. The constitutional character of this institution should be ended. The 34

thing which is ideal is that such an institution should not exist within the state structure. However, if this institution should be maintained because of the enforcing conditions, the two things should be taken into consideration. Firstly, the Presidency of Religious Affairs should be regulated in the form of an autonomous structure which will not undermine the religious impartiality of the state. Secondly, the organizations of the religious societies and groups of belief which cannot benefit from the services of the Presidency of Religious Affairs should be recognized as public legal entities. B. Strengthening Decentralization: Proximity to People and the Principle of Locality Centralism has been one of the basic characteristics of all the constitutions in Turkey s constitutional history. The related provisions of the 1921 Constitution, which was the most powerful constitution in terms of the principle of decentralization, were not implemented. The founders of the Republic adopted a centralist understanding and could not accept that the organs of local administration would have administrative and financial autonomy. The organs of local administration were perceived as technical and administrative units serving the central government rather than as the area of local politics open to the participation of citizens. The Law of Municipalities, which was enacted in 1930 and had been in force until 2004, adopted an understanding of local administration depended on centralist politics and political guidance with the mentality of the one-party period. 1. Strengthening Local Administration Today, regardless of being federal or unitary, all democracies are distinguished 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 in Europe, needs to start implementing the principle of locality and proximity to people at the possible shortest time. This principle is regulated in the third paragraph of Article 4 of the European Charter of Local Self-Government. In this context, Article 123 of the 1982 Constitution states that the administration is based on the principles of centralization and decentralization 35

in Turkey. Although this arrangement gives the impression that a balance is established between the two administrative models, the mentality, the regulations and the practice demonstrate that the administrative structure of Turkey is highly centralist. The Law of Municipalities and the Law of Special Provincial Administrations, which were enacted in 2004 and 2005 respectively, contain positive arrangements, but they have not achieved the goals of eradicating the effect of excessive centralism and increasing democratic practices at the local level. In this context, an arrangement stipulating that the state structure shall be depended on the principle of locality and proximity to people should be inserted in the section of new constitution containing general principles. The principle that local administration is rule and centralism is exception should be included in the constitution. In this context, it should be ensured that all public services are performed by the organs of the local administration unless the opposite is stipulated in laws. The authorities of the representatives of the central government in the provinces should be limited with the country-wide activities of planning, coordination and supervision and the services which are directly associated with the central government such as inspection and security. The supervision of the central government over the organs of local administration should be regulated in such a way not to harm the principle of autonomy and not to exceed the limits of the control of national standards, financial auditing and going to courts, regulated by law. It should be ensured that high-level bureaucrats working in the central governments such as undersecretaries and director-generals are appointed and dismissed by the political authority. In this context, the ruling authority of the governments should be strengthened and should be made more functional from the democratic perspective. The representatives of the central government in the provinces should not represent the state and the government together, but should represent only the government. Institutions and organs of local administrations should be equipped with financial resources and financial autonomy which enable 36

them to exercise the authorities they have. The financial systems on which the resources provided to organs of local administration are depended should have diversity and flexibility to allow such authorities as levy. The way of appropriating the sources which are distributed from the incomes of the central government should be decided in consultation with the organs of local administration. Sources appropriated for local administrations should not prevent their right of discretion which will be owned by them in implementing their own policies. The opportunities of local administrations in involving in regional and international cooperation should be expanded. 2. Emergency Rule The state of emergency is declared to enable the government to respond effectively to an extraordinary situation such as natural disaster, armed revolt, civil disorder, epidemic diseases or economic crises. Emergency rule which is peculiar to the periods of emergency is regulated in the constitutions of the democratic countries. Emergency rule might be accepted in democratic regimes only if it is introduced and implemented under certain conditions. The regimes of the state of emergency seen in totalitarian and authoritarian countries are a kind of rule which is resorted to with the aim of defending the undemocratic regime against people instead of fighting against a threat directed to the country. The emergency rule in a democratic country is a temporary measure. It is a method which is resorted to against a current threat. The states should inform the international organizations about the measures which will take during the state of emergency and which are contrary to international human rights responsibilities; these measures should be proportionate to the seriousness of the situation. The states cannot violate certain rights and freedoms even during the states of emergency. Nearly during the half of the Republican era, the whole country or some part of it was put under the emergency rule and an important part of the periods of emergency rule coincided with the periods of military interventions and illegalities. It can be derived from this fact that the model of emergency rule in Turkey was a part of the guardianship system. 37

Article 148 of the 1982 Constitution states that no action shall be brought before the Constitutional Court alleging unconstitutionality as to the form or substance of decrees having the force of law issued during a state of emergency, martial law or in time of war. This creates the perception of illegality peculiar to those periods. Under this provision of the constitution, in states of emergencies, the Council of Ministers, meeting under the chairmanship of the President of the Republic, can abolish human rights completely or can take measures contrary to the guarantees included in the constitution on human rights with the decrees having the force of law. 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 of emergency, martial law, mobilization and state of war, and for reasons of national security, public order and public health. Law No. 1402 on Martial Law stipulates that no lawsuit can be brought against the administrative actions which are related to the exercise of the authorities granted to the Martial Law commanders. All these strengthen the perception that the emergency rules in Turkey were not legal regimes. The same perception is also strengthened by the provision included in Article 15 of the Constitution that, in states of emergencies, measures derogating the guarantees embodied in the Constitution for freedoms and rights can be taken. However, the periods of emergency should be considered as the periods in which constitutional guarantees are needed at a higher level in terms of general human rights regime. In these periods, in comparison with normal periods, human rights can be restricted at higher levels with the measures which will be taken to get rid of the threat directed to the nation or the life of citizens. Therefore, the existence of effective measures and the need felt for legal inspection become more urgent in those periods. Therefore, in the new constitution; The martial law which is considered as one of the states of emergency rule should be given up as a model of emergency rule. In this model, the authority of enforcing law is transferred to the military authorities, military courts are established and no lawsuit can be brought against the actions of the commanders of the martial law; all these make it different from the state of emergency. The complete eradication of the model of state of emergency in the form of martial law in the new constitution will bring positive results 38

in terms of the effectiveness of the civilian rule. If it is seen that the periods of martial law were used to decrease the effect of the civil authority, it will be easier to understand the importance of eradicating this model of ruling. The discretion concerning the restriction of human rights is further strengthened during the period of emergency rule. Therefore, the judicial review of the actions during the period of emergency rule is felt more intensively and the judicial review of human rights regime gains more importance in comparison with normal periods. For this reason, the expressions stressing that the civil authority has the control and that effective ways of judicial review exist during the periods of emergency rule should be included as clearly as possible in the new constitution. It is important in the implementation of the emergency rule regime that, in the restrictions which will be applied in the field of human rights, the responsibilities stemmed from the ECHR and international law will not be violated and these restrictions should be proportionate to the requirements of the situation. However, in these periods, the category of hard core rights which will not ever be violated should be expanded. In addition to the rights, principles and prohibitions included in the present constitution such as the right to life; the prohibition of harming the physical and spiritual integrity of individuals; the principle that nobody can be compelled to reveal his/her religion, conscience, thought and opinion; the principle that offences and penalties cannot be made retroactive; and the principle that nobody can be held guilty until so proven by a court judgment; the freedom to seek rights, the prohibition of discrimination and the principle of natural judge should be included in the list of hard core rights which will not be violated during the emergency periods. As it is sought by the United Nations Covenant on Civil and Political Rights signed in 1966, the freedom of thought, conscience and religion in addition to the principle that nobody can be imprisoned only because he/she is not able to fulfill his/her responsibilities stemmed from the contract; the freedom to accept a religion or not to have any belief with his/her own choice; the freedom to declare his/her religion or belief in the form of worship, practice and 39

teaching alone or collectively, openly or privately; and the freedom of parents and custodians to give religious and ethical education to their children in accordance with their beliefs should be included in the list of hard core rights. The title in Article 15 of the 1982 Constitution, which is formulated as Suspension of the Exercise of Fundamental Rights and Freedoms, should be changed. When it is looked from the perspective of illegality which existed in Turkey in the emergency periods and which has been explained above, it will be appropriate to include the title Human Rights during the Periods of Emergency Rule instead of suspension of the exercise of human rights. Moreover, from the perspective of the organization of the new constitution, the provision on human rights in the periods of emergency rule should be 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 will be applied to political parties and the sanctions which will be imposed on political parties. It is seen that, because of the restrictive arrangements in the Constitution, political parties gain the characteristic of state institution and the right of political association is restricted with different sanctions including dissolution of political parties, imposed according to highly subjective criteria. There are quiet different practices in the world on legal arrangements regarding political parties. In this line, there are different practices extending from the examples which regulate political parties with all aspects and details, considering them as public corporations, to the example which do not include them in any legal text. The practice which became common in the aftermath of the Second World War and which was seen especially in the countries passing from the authoritarian regimes to multi-party democracy was that constitutional guarantees were created for political parties because of their functions in pluralist democracies. Creating an environment in which political parties could perform easily all their activities from organization to propaganda became the basic goal of constitutional arrangements. 40

In international texts, the concepts such as representation, participation and democracy are mentioned, but no specific provisions are included on political parties. The principles regarding political parties are included only in special reports such as the Tsatsos Report in 1996 and the Report of the Venice Commission in 1999. These texts contain generally the principles on the right to organize and propagate freely and on the restriction of this right. The Tsatsos Report and the decision of the European Parliament accepting this report has imposed on political parties the responsibilities such as respecting democracy, human rights and the principles of the constitutional state and maintaining a suitable environment for citizens to express their political will within the party at any time. Subsequently, the statement that political parties shall not use the privileges granted to them to fight against the democratic order is included in the text. The Venice Commission Report titled as The Guidelines on Prohibition and Dissolution of Political Parties and Analogues Measures underlines the importance of ensuring the establishment of political parties freely and the citizens being member of them freely. The Commission considers it within the limits of the right of citizens to reach, learn and disseminate political thoughts without facing any restrictions. In the following section, it states that this right can be restricted only within the context of the European Convention of Human Rights and other human rights conventions. One of the most important provisions of the report is that the prohibition or enforced dissolution of political parties is justifiable only in cases where parties encourage violence or resort to violence to overthrow the democratic constitutional order. According to the standard set by the Venice Commission, political parties which advocate the use of violence and lead the citizens to armed conflict, terrorism, racism and xenophobia in their programs and statutes might face the sanctions of prohibition or dissolution. It is also stated in the report of the Commission that political parties should not be held accountable for the individual acts of their members as long as these acts are supported by their decision-making bodies. In the last part of the report, it is underlined that the sanctions of prohibition and dissolution are the measures which will be implemented as the last resort in this issue and that the judgment of court in this issue should be concluded according to the principle of fair trial. 41

The constitutional provisions regarding political parties were introduced in the first time by the 1961 Constitution. Article 56 of the 1961 Constitution provided guarantees for political parties by stating that regardless of they are in power or in opposition, political parties are indispensable elements of the democratic political life. It included in the subsequent Article 57 the provision that statutes, programs and activities of political parties has to comply with principles of the democratic and secular Republic based on rights and freedoms and the integrity of the state with its country and nation. The Constitution of 1982 followed almost the same method; in Article 68 it reiterates firstly the same general guarantee on political parties and then includes some restrictive and regulative principles. In Article 69 titled as Principles to be Observed by Political Parties, controversial statements which allow the imposition of some sanctions including dissolution of political parties are included. In fact, the cases of dissolution brought before the Constitutional Courts on the ground of Article 69 and the judgments concluded by the Court were heavily discussed in the past. After political parties were regulated in the constitution, separate laws were 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, which was enacted after the 1982 Constitution had been accepted, contained highly detailed and restrictive provisions. Considering political parties almost as a state institution, Law No. 2820 which is currently in force include regulative and prohibitive provisions in every field extending from the organization of political parties to the propaganda and rhetoric which they will use. Changes which will be made in the constitution should eradicate the foundation of anti-democratic provisions in the law on political parties and expand the political sphere. With the changes in 1995 and 2001, positive steps were taken in terms of judgments on dissolution of political parties. However, there are still provisions conflicting with the freedom of political party in the Constitution and there are still problems in practice caused by these provisions. Therefore, the new constitution should not include prohibitive and restrictive expression on political parties and it should not serve as the foundation of anti-democratic provisions and definitions in the texts of law. For this purpose, in the new constitution; 42

detailed regulations should not be included on political parties. In this 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, different sanctions should not be included. In the cases which are brought before the Constitutional Court against political parties because of their activities and which demand dissolution or other sanctions; sanctions should be reregulated in the light of international texts guaranteeing the freedom of expression, the Tsatsos and Venice Commission reports on imposing sanctions against political parties and the judgments of the European Court of Human Rights in the same issue. Imposing sanctions on political parties should be limited with resorting to violence or praising or provoking violence, and adopting and defending racism, xenophobia and intolerance which are mentioned in those texts. All kinds of shocking proposals of change in the constitutional structure including the unitary state and the Republic should be expressed by political parties on the condition that they do not suggest violence. To conclude the judgment of dissolution on a political party, that party should give place the things mentioned above in its official texts such as its statuses and programs or they should be voiced consciously, constantly and steadfastly by its decision-making and governing bodies (the grand congress, the general chairmanship, the central decision-making and administrative organ, the group general meeting and the group executive board). As another important issue, in the actions performed by members or groups, it should be resorted to the principle of punishing the related offenders instead of political parties, acting on the principle that crime is a personal thing. The votes, statements and expression of thoughts of the parliamentarians which are within the boundaries of the legislative 43

irresponsibility should not be used as proofs in the cases of dissolution of political parties. Dissolution should be considered as the last resort which can be applied to political parties and the warnings aimed at correcting the 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 political parties, formulations which do not contain dissolution such as warning 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 institutions or authorities should be sought. Filing a suit of dissolution by the Chief Public Prosecutor should be made depended on the decision which will be taken by the TGNA with the qualified majority vote. Concluding the judgment of dissolution should be possible with the qualified 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 mentality of political authority which considers people as potential offenders with the concern that an official working the in the state will treat favorably his/her party should be given up. Everybody who wants to be member of a political party should be able to do so. In the issue of receiving financial aid from international organizations and from persons and corporate bodies who are not citizens of the Republic of Turkey, political parties should not be treated as potential offenders and the prohibitions in this issue should be abolished. Taking the EU membership process into consideration, cooperation with supranational parties and opening representative offices in foreign countries should be allowed. One of the conditions for political parties to lose their character of being state institutions supported by the state and to exist as pro-freedom platforms is to abolish the treasury support for them. This practice which is the product of the military intervention in politics on 12 March 1971 and which is aimed at tying political parties to the state by considering them as institutions which seek 44

to betray the country is unacceptable. A rigorous type of attitude which will not bring about conflicts and disagreements in spending the income of taxes collected from the citizens should be adopted. Moreover, the expression equitable financial assistance in the constitution causes criticisms and debates. For these reasons, the practice of providing treasury support for political parties should not be continued in the new constitution. Sanctions shall be applied to the political parties which resort to violence or encourage violence, which defend racism and xenophobia. The Chief Public Prosecutor of the Republic shall warn such a political party on its actions. The Chief Public Prosecutor of the Republic shall send his/her demand of filing suit against political parties continuing to execute such activities to the office of the speaker of the TGNA. The TGNA might decide to present the file on the political party which does not take warnings into account to the Constitutional Court with a two-third majority. In the case a suit is filed, the Constitutional Court might conclude the punishments of fine, prohibiting activities up to one year and dissolution. A suit shall not be filed against a political party unless the activities mentioned in the first paragraph of the article are executed by its high level decisionmaking organs such the grand congress, the TGNA group and the central decision-making and administrative organs consciously, steadfastly and constantly. In the event of accusations launched against members of political parties, only criminal cases can be brought before judicial bodies only on those members. 2. The Principles Concerning the Right to Vote and to be Elected and the Elections One of the issues which are debated intensively in each election period, but forgotten after the election is the provisions which exist in the laws and the constitution on the elections. The one among these legal arrangements which never lose its heat throughout the country is the electoral threshold. Although debates are concentrated on the electoral threshold, there are other considerably important provisions concerning the elections, which deserve to be criticized. Important part of them is in the fields regulated by law. The Law no. 298 on Basic Provisions of Elections and Electoral 45

Registrations, the Law no. 2820 on Political Parties and the Law no. 2839 on Election of Members of Parliaments contain important issues cause discussions. Constitutional provisions on elections have a nature which will attract serious criticisms. When it is evaluated generally, the constitution includes highly restrictive provisions on the right to vote and to be elected. It is crucial not to include in the new constitutions restrictive and antidemocratic arrangements on the right to vote and to be elected for the ideal of a democratic Turkey. In this context, the following points should be taken into account regarding elections: The provision in Article 67 of the Constitution which restricts the right to vote and to be elected for students in military schools, privates and corporals serving in the armed forces and convicts in the penal execution institutions should be eradicated completely. All restrictions on the right to vote should be eliminated. The only constitutional criterion for the right to vote should be determined as Turkish citizenship and being over the age of 18. No additional restriction should be included in the constitution. All restrictions brought by Article 76 of the present constitution such as failing to perform the military service, failing to complete primary school and being convicted for offences stated should be removed from the text of the constitution. The article on the right to vote and to be elected can be formulated in the following way: Every citizen who is over the age of 18 has the right to vote, to be elected, to be members of political parties and to engage in all kinds of political activities. Exercising the right to vote and to be elected cannot be restricted for a citizen who committed an offence and completed his/her sentence for that offence. Taking the structure and decisions of the Supreme Election Council (YSK) into account, academicians and representatives of the four parties which have groups in the Parliament or which have won the highest votes in the last general elections, as it has been adopted in forming town election councils, in addition to members of the 46

judiciary should be included in the Supreme Election Council as members. Moreover, the effective objection or the judicial act against the decisions of the YSK should be adopted definitely. The YSK should be made an institution working permanently. The Supreme Election Council shall be composed of three judges from the Supreme Court, two judges from the Council of State, three academicians from social sciences and the representatives of the political parties having groups in the TGNA. The members other than the representatives of political parties are elected for six years. The members who will come from the Supreme Court and the Council of State shall be elected by their general assemblies and the academicians shall be elected by the TGNA. Application might be filed in the Constitutional Court against the decisions of the YSK. The paragraph which was added to Article 67 of the Constitution in 1995 and which stipulates that the electoral laws shall be drawn up in such a way to reconcile the principles of fair representation and consistency in administration might cause important problems since it has included two irreconcilable principles in the constitution. Acting on these principles, the Constitutional Court will be able to cancel easily a provision brought by the political authority on the electoral system by resorting to the inspection of appropriateness. Such an expression should not be included in the new constitution. In this context, the practices which exist in electoral laws and which constitute obstacles for a democratic electoral system such as the 10% electoral threshold should be removed from the constitution. The statement in Article 67 that the amendments made in the electoral laws shall not be applied to the elections to be held within the year from when the amendments go into force is problematic. This provision accepts the premise that political parties having majority in the parliament will strengthen their power by making changes in legal arrangements at a time when the elections are near. But an ill-intentioned party having the majority in the parliament can make such an arrangement which will help it in the elections more than one year before the elections. No limit should be determined in 47

the constitution on the date when laws regarding elections will go into force. Article 88 of the Constitution authorizes the members of parliament and the Council of Ministers in proposing new laws. Legislative committees and non-governmental organizations, for instance, have been excluded from this process. The authority of initiating the legislative process might be widened in the new constitution and might also be granted to non-governmental organizations and legislative committees. The Council of Ministers, deputies and legislative committees are empowered to introduce laws. Non-governmental organizations can also apply to the legislative committees to propose a text of law. Article 114 of the 1982 Constitution includes the provision which stipulates that the Ministers of Justice, Internal Affairs and Communications will resign prior to the general elections. This provision, too, has lost its meaning. New ministries have emerged within the Council of Ministers, which will affect the election process more radically, and the condition of appointing independent people in their places has become idle. In fact, in practice, generally the undersecretaries of the former ministers are appointed as ministers. For this reason, this provision of the constitution should also be lifted. 48

V. PLURALISM AND MULTI-CULTURALISM A. Citizenship In the constitutional history of Turks, the citizenship was defined in the Ottoman period in such a way to include all Ottoman subjects without making any distinction on the basis of religion, language and ethnicity. The Constitution of 1924, which was the first constitution of the Republican period, included ethnicity at the first time. However, the 1924 Constitution used the adjective of Turkish only from the perspective of citizenship. The constitutions of 1961 and 1982 tied citizenship more strictly to ethnicity. Both of them included the statement that everyone bound to the Turkish state through the bond of citizenship is a Turk. When the constitutions of democratic countries are examined, it is seen that citizenship is defined as something neutral. In important part of the constitutions, citizenship is not defined, but it is used as a subject or such issues as gaining and loosing citizenship and depriving of citizenship are regulated. An important part of the constitutions defining citizenship mentions citizenship only to emphasize the bond between the individual and the state. When all the constitutions of the world are examined, it is seen that only one- tenth of them define it on the basis of ethnicity and that an important part of those states are authoritarian and totalitarian regimes located in the Middle East and Asia. With the exception of some Eastern European countries, citizenship is not defined on the basis of ethnicity in the democratic world. The increasing popular understanding in the democratic world is that the common political culture in the society is constituted independently from the identities formed in the social structure. Pluralist understanding will develop when political culture moves away from the culture of the majority and the bond between the citizens will be created on a constitutional basis when this is achieved. In the light of all these explanations, defining the citizenship in such way to include all social colors and to strengthen social unity in Turkey where different ethnic, religious and lingual groups have lived for centuries since it is the heir of an empire will strengthen social peace and solidarity and reinforce the pluralist foundations of the political life. 49

Therefore, not defining citizenship on the basis of ethnicity in the new constitution is a step which should be taken to consolidate democracy, to increase social solidarity and to create a pluralist social structure in Turkey. In this context, following the general tendency in the world constitutions, the new constitution should define citizenship as a legal bond by detaching it from ethnic origins or should be settled with making a general arrangement on citizenship without defining it. The citizenship of the Republic of Turkey represents a legal bond between the state and individuals. No discrimination shall be made against the citizens on the basis of ethnic origin, religion, sect, sex, ideological thought and similar factors. All citizens of the Republic of Turkey are entitled to citizenship rights as honored individuals having equal rights. Nobody shall be deprived of citizenship against his/her wish. B. The Use of Native Language in Education Today, the demand of the recognition of ethnic and cultural identities is one of the most important issues of the political agenda. The demand of using native language in relations with the state including education constitutes an important part of cultural rights. Language is one, perhaps the most important, of the basic reference points from the perspective of the individual and the society. In fact, language has one of the most important negative or positive - roles in shaping the identity of the individual and fulfills important functions in creating social integration. Therefore, the thing which is expected from democratic regimes is to make legal and constitutional arrangements to meet demands of the sections of the society on language. The freedom of education was regulated in Article 80 of the 1924 Constitution and in Article 21/2 of the 1961 Constitution. No provision concerning the language of education was included in the two constitutions. The Constitution of 1982 included the right to general education in its Article 42, but, unlike the 1924 and 1961 constitutions, it brought a prohibition on the language of education: 50

No language other than Turkish shall be taught as a mother tongue to Turkish citizens at any institutions of training or education. Foreign languages to be taught in institutions of training and education and the rules to be followed by schools conducting training and education in a foreign language shall be determined by law. The provisions of international treaties are reserved. This article, which includes discrimination on the basis of language, eradicates for the citizens of the Republic of Turkey outside the ones having the status of minority according to international treaties the possibility of receiving education in their native languages. In order to ensure social peace and to improve its democratic standards, Turkey should abolish the discrimination based on religion and should make it possible to receive education in native language. In constitutions, arrangements which will ensure education in native language can be made in two ways: Firstly, no expression on the education in native language is included in the constitution and education in languages other than Turkish is left to laws. Secondly, receiving education in native languages is made a constitutional provision by adding a statement that learning official language is a right and duty. The provisions in the constitutions of Azerbaijan, Russia and Slovakia can be shown as examples of such an arrangement. The Constitution of Azerbaijan, Article 45: I. Everyone shall be entitled to exercise the right to use his/her native language. Everyone is entitled to receive education and to engage in art activities in any languages he/she wishes. II. Nobody shall be deprived of using his/her native language. The Constitution of the Russian Federation, Article 26: (2) Everyone is entitled to use his/her native language and to choose the language of communication, education and creativity. Article 68: The Republics can determine their official languages. These languages shall be used together with the official language of the Russian Federation in the state organs of the Republics, in the organs of local administrations and in the state institutions. 51

The Russian Federation guarantees the right to suitable environment for all people to protect, learn and develop their languages. The Constitution of Slovakia, Article 34: (2) In addition to the right to learn the official language, the following rights of ethnic groups or national minorities shall be guaranteed under the conditions determined by the law: a. the right to receive education in a minority language, b. the right to use a minority language in official correspondence, c. the right to participate in the decision-making process in issues concerning national minorities and ethnic groups. When it is taken into consideration that large sections of the society have been deprived of using their native languages in Turkey, it might be said that such an approach putting the use of native language in education and in relations with state organs under the constitutional guarantee will be an appropriate attitude for Turkey. Proposal: Everyone shall be entitled to use his/her native language in cultural, scientific, religious and art activities and to receive education, training and public service in his/her native language. Learning and teaching the official language shall not obstruct this right. The principles concerning the use of this right are regulated by law. 52

VI. OTHER ISSUES A. The Preamble of the Constitution Constitutions always represent a wide range of political values and ideals. Therefore, the legal and political values which symbolize the essence of the regime and on which the regime is based are especially emphasized in the text of the constitution. These goals which are considered as representing social ideas are expressed explicitly in the preamble of constitutions. These ideals vary according to the character and choices of the regime. Since the 1982 Constitution has a monist social philosophy, the preamble of the constitution reflects this philosophy. Since the new constitution will be based on the understanding of a democratic and multi-cultural society recognizing ethnic, religious and cultural differences of Turkey and rejecting the concept of homogenous society in the present constitution, the preamble should be composed in accordance with this understanding. In this context, the basic principles regarding the preamble should be the followings: The preamble should be short and concise. Statements which exclude a segment or segments of the society should be avoided in the preamble in accordance with the notion that the constitution is a social contract. It should be stated in the preamble clearly that all differences are recognized and are considered as an asset. In the preamble, no sacredness should be ascribed to any person, institution or value. It should be stated in the preamble that the nation shares such universal values as democracy, human rights, constitutional state and pluralism. In the light of these principles, the preamble of the constitution can be composed as the following: 53

We, the people of Turkey; Believe that all human beings have universal rights and freedoms. We accept that all individuals are equals without being subjected to any discrimination and see all differences as a cultural asset. We share the universal peace ideal and deem it a humanly responsibility to protect the balance of the nature. We want to build a democratic order which takes freedom and equality as its basis and which aims to enable people to live a decent life based on human dignity. We accept and approve this constitution as the proof of our decision of living together. B. Form of the State and Irrevocable Provisions 1. Irrevocable Provisions There are different approaches in the constitutions of democratic countries on irrevocable provisions. Irrevocable provisions are included in the constitutions of some countries including Germany, France and Italy. It is also a fact that including such provisions in constitution is not a common attitude. If it is thought ideally, the only value which can be protected by the shield of irrevocability is human rights. For example, the first 20 articles of the 1949 constitution of the Federal Republic of Germany, in which basic rights and freedoms are arranged, were accepted as irrevocable provisions. Assuming that people will change such values as democratic state which have gained great acceptance is a concrete sign of the distrust in people. To think that people will change these articles and will propose an unacceptable system in place of them can be explained only with this distrust. Therefore, no irrevocable provisions should be included in the new constitution. 2. The Irrevocable Provisions in the Present Constitution Article 4 of the 1982 Constitution which is in force contains a provision stating that the first three articles of the Constitution cannot be amended and their amendment cannot be proposed. When this provision is taken into account, the debate has naturally emerged on whether changes can be made in these articles in the new constitution. 54

Our opinion in this issue is that a new constitution which will be created with democratic methods and which will be voted in referendum should not be restricted by the limits of the former constitution. The point which should be underlined firstly is that the thing needed by Turkey is not constitutional change, but a new constitution. Such a constitution will be possible only if the former constitution is eliminated with all its provisions. The Constitution of 1982 is a constitution of a military coup and was created through undemocratic methods by an Advisory Assembly which was under the control of the military and was not based on referendum. The National Security Council, which was not based on a legal foundation and which declared itself a council fulfilling the duties of the presidency, had the last word in the whole process. The draft of the Constitution was voted by people in a referendum, but individuals and non-governmental organizations were prohibited from criticizing the constitution. People were pressurized with the threat that the military regime would continue if they did not give yes vote for the constitution. This referendum which was held under the guns did not have the character of a real referendum. Although the 1982 Constitution has been in force for 29 years as a binding document of positive law, it has never gained a democratic legitimacy since it is a constitution of military coup. Formally and from the perspective of positive law, the opposite thing can be done with the method used for creating a legal document. As a requirement of the principle of parallelism in authority, a legal document which is created by a referendum can also be abolished with the same method. Therefore, if the citizens accept the new constitution in the referendum which will be held to put it into force, the former constitution will be removed with all its provisions. Thus, people will reach the democratic level they deserve through the founder political power, which is composed of their representatives, for the first time in the history of the Republic which approaches the one hundredth anniversary of its foundation. C. The Governmental System The problem of the form of the governmental system is not a problem having priority as much as the problems of human rights, democracy and constitutional state from the perspective of constitutionalism. Moreover, it 55

cannot be said that it will be possible to solve the problem of bureaucratic guardianship through the governmental system which will be adopted. It is possible to fight against the bureaucratic guardianship in every governmental system. The guardianship problem in Turkey stems from the problem of democracy in the country, not from the governmental system. Therefore, the solution should be sought in the functioning of the democratic structure, not in the governmental system. Nevertheless, it is known that there are some problems concerning the governmental system of the 1982 Constitution. Looking from the perspective of these problems, the experience of Turkey should also be taken into account while an effective governmental system complying with the democratic constitutional state is adopted. Acting on the difficulties caused by the present governmental system, defending that the present system should be eliminated and a new one should be created is problematic. Each new governmental system which will be adopted will create new problems while it is implemented. It might be more effective to fix the problems caused by the functioning of the system by working on it. It should not be thought that the new governmental system is a trial model and it will be abolished easily if it causes problems. It should not be forgotten that the irregularities which will emerge in the functioning of the system in case of such a failure might cause serious new problems. Therefore, the points mentioned above should be taken into account in the process of evaluation of the governmental system in the new constitution. The issue of the governmental system of Turkey should be dealt with only in the context of the 1982 Constitution because the governmental system formulation in the 1982 Constitution was shaped under the clear influence of the previous periods and the 1961 Constitution. For this reason, there might be some lessons which can be derived from the previous practices on the issue of governmental system. It should be stated in the light of the previous practices that the governmental system in the new constitution should not be determined as a reaction to the reaction, but it should be considered as a lasting model which will be implemented for a long time. While the model is determined in this issue, people should be included in the ruling process as much as possible. Since a top-down and centralist approach has dominated our tradition of constitutionalism, giving a place to the representation of people while the formulation of governmental system is 56

determined in the new constitution is a must in order to build a participatory model. In addition, the executive should be saved from guardianship as much as possible to ensure efficiency in governing. If a model is created before this is ensured, the system might continue to produce problems. In this case, the failure might be inevitable. In the new constitution, it should be worked hard to create a model on the governmental system with the agreement of all political parties. If this cannot be ensured, the problems might emerge in practice. Although the choices on the governmental system of Turkey are being discussed in the academic world, the choice on Turkey s governmental system has to be a political one at the last analysis. Therefore, the one which will shape this issue ultimately will be the decision of the actor which will make the constitution. It is also important that the governmental system which will be chosen should governable and able to take decisions. If Turkey s experience, the basic characteristics of governmental systems, the features of the political party system and political culture and similar factors are taken into account in the light of the practices in the previous periods, it might be concluded that classical parliamentarian regime is a more viable model. The presidential regime is discussed in Turkey not as a regime which will improve democracy, but the one which will make governing easy when impasses are faced. When the presidential regime is considered in terms of its viability, one of the characteristics of this system, which is attractive for Turkey, is that the tenure of the head of the executive is fixed. Given that coalition governments cause instabilities because they change frequently, this characteristic of the presidential system is highly attractive. Choice should not be made only on the basis of this characteristic. Real problems on the presidential system might emerge in Turkey in the issues such as the structure of political parties, their number and the features of the political culture. These issues might bring about new results in relations between the legislative and the executive, which are not predicted. Apart from relations between the legislative and the executive; social, economic and cultural characteristics of the country also become influential in the successful implementation of the governmental system. While the governmental system is chosen, these factors also should be taken into consideration. Substantial changes should be made in the present governmental system in the new constitution in order to build classical parliamentarian regime. 57

The most important problem in Turkey s governmental system is the incompatibility between the authority and responsibility of the president and, therefore, the solution should be sought in this issue. In the political structure, the Council of Ministers which comes in force as a result the trust of the TGNA should be the only authorized organ in the executive. If this is done, the governments will be able to exercise the power of executive according to their will and they will be held accountable for their actions as a requirement of democratic responsibility. However, an important problem in the governmental system of the 1982 Constitution is related to the President s signing the decrees of the Council of Ministers. The authority of not signing the decrees, which has been exercised frequently by the presidents so far, prevents the Council of Ministers from continuing its activities as it is planned. Therefore, the authority of signing decrees should have only symbolic importance; since the responsibility belongs to the government as a requirement of the counter-signature principle, the discretion of the President in signing decrees should be restricted. The President should be able to return only the decrees which he/she considers as unlawful for further consideration and should take care not to intervene in the political choices of the governments. The authorities of the President on governmental actions should be weakened in the constitution and an approach which will strengthen the power of the Council of Ministers in the executive should be adopted. In fact, the fact that the President cannot be held accountable for exercising his/her authorities in spite of his/her powerful authorities granted by the 1982 Constitution is one of the most important points of criticism directed toward the political system. The unaccountability of an authorized person or institution does not comply with the principles of democracy and constitutional state. Moreover, such an incompatibility might also create serious problems in terms of decision making and use of authorities within the executive. While the Council of Ministers exists as an authorized and accountable body, the existence of the President is a paradoxical situation. Although the main body within the executive is the Council of Ministers, its decisions need to be ratified by the President to come into force. However, according to the Constitution of 1982, the President is entitled not to ratify the decrees of the Council of Ministers and he/she cannot be held accountable for the results of this non-ratification. The accountability of the Council of Ministers for the negative results which will be caused 58

by the non-ratification of the decrees by the President contradicts with the understanding of democratic accountability. Another issue related to the non-ratification of decrees is that the Council of Ministers does not have the control in implementing its policies as a result of it. Especially if the Council of Ministers and the President have different political tendencies, the actions of the Council of Ministers will be prevented by the President. However, the signature of the President who is supposed to have symbolic authorities in the parliamentarian regime is necessary act only for the completion of the process initiated by the effective wing of the executive according to the principle of co-signature. By going beyond this, if the will of President emerges as contrary to the decision of the Council of Ministers, this might block the functioning of the system. When it is considered from the perspective of the position of the President, a legal status which is different from the one in the 1982 Constitution should be created in terms of the legal accountability of the president regarding its duties. In order to end the debates which will make it possible suing the president while he/she is in office and to eradicate the negative results which will be caused by the trials against him/her while he/she is in office for the prestige of the presidency, the president should be equipped with the immunity of trial while he/she is in office. If it is stated that the prescription should not be valid for these kinds of allegations of crime, the president can be sued as a requirement of his/her legal accountability after his/her office ends. In this way, it will be possible to prevent harm given to the prestige of the presidency through allegations of crime and through interpretations on whether the president should be sued or not. Another issue which should be clarified in the new constitution is who will elect the president. At first sight, it can be said that the President should be elected by the TGNA. However, when the judgment of 367 of the Constitutional Court, which is still fresh in the mind of the public opinion, and the subsequent developments and changes are taken into consideration, it cannot easily be said that the election of the President by the TGNA is acceptable. Given that the political crises were lived through in the elections of the president in 1980 and 2007 and that a constitutional change was realized through the referendum as a response to the crisis in 2007, it will be difficult to explain to people the justification of the inclusion of such a provision in the new constitution. Under the influence of the political crisis 59

created by the judgment of 367 of the Constitutional Court in the process of electing the president and the constitutional change accepted by the twothird of people in the referendum, it will be difficult to give up the election of the president by people. In this point, whether it will be possible to equip the president elected by people with symbolic authorities should be answered. The president elected by people might high popularity and the president might acquire a respectable position though he/she does not have powerful authorities in the political system. In fact, presidents are elected by people in Iceland, Austria, Finland and Portugal. Moreover, it is clear that a president resolving disagreements and crises between different actors as a political figure having the role of arbitration is needed in the political system. In the presidential system, the president cannot be seen as the person who will fulfill this function. The President who is elected by people and has symbolic authorities can fulfill this function more easily. However, it is important that there should be no doubts on the impartiality of the President who will fulfill such a function. Since it will provide legitimacy for the single person, the election of the president by people might contribute the functioning of the system in conjunction with the criteria mentioned above. But the election of the same person as president for the second time might create problems in terms of his/her impartiality since he/she will make promises to people in the election process. Allowing the same person to be in office only for one term will eradicate such drawbacks. A president who is elected by people only for one term and who does not have the ability to intervene in the choices of the government will concentrate mostly on the international arena and will seek to exhibit a respectful and visionary personality as a requirement of his/her exalted position. One important issue in the context of the governmental system is how party discipline should be. In the Council of Ministers, the power of the Prime Minister over the ministers should continue in practice even if it is not regulated in the constitution. The powerful position of the Prime Minister is a requirement of the function of governing in the parliamentarian regime. When it is considered that the ministers are also jointly responsible for the implementation of the government s general policy to the parliament, one person s powerful position in the Council of Ministers as coordinator does not create problems. The real issue which should be taken into 60

consideration on the position of the Prime Minister is his ability to direct the legislative majority with the help of party discipline though he/she is the head of the executive. Party discipline is, of course, needed to a certain extent in terms of the functioning of the parliamentarian regime. But the full control of the Council of Ministers through the Prime Minister over the legislative body might harm the autonomy of the parliament vis-à-vis the executive. As a result of the perception of political party at our age, the government and the Prime Minister are able to acquire a position of decisive actor. Therefore, while the bills are debated in the TGNA committees and in the General Assembly, the deputies are not able to intervene in those bills in a real sense. In such case, the legislative might face a problem of not being able to fulfill its real function. For this reason, enacting regulations which will enable the TGNA and its committees to concentrate on their duty of making laws by saving them from the influence of the Council of Ministers is important. The control of the Prime Minister over his/her party in the parliament is also observed in the relationship between the chairmen of the opposition parties and the deputies belonging to their parties. The control of the chairmen of the political parties and the other party leaders over the deputies should not be at the degree which will restrict the free will of the deputies. Otherwise, the deputies should not be able to fulfill their functions in reflecting the will of people. On the other hand, exhibiting examples of constructive opposition instead of acting on the narrow political concerns in the General Assembly and committees of the TGNA might create a more qualified environment of debate and discussion in the process of making laws. In order to make the parliament more functional regarding the function of legislation by weakening the power of the party headquarters in political parties and by breaking the hegemony of leaders, changes should be made in the provisions of the constitution and the laws concerning not only the legislative and the executive, but also the right to vote and to be elected and the freedom of political party. For example, transforming the electoral system into the two-round narrow region majority system might break the power of the party headquarters in determining parliamentary candidates. When it is considered that a deputy who is elected with absolute majority 61

from a small election region will be deputy as a result of the will of people rather than the choice of the chairman of the party, it is clear that the deputies elected in such a way will act more independently and this will bring about more democratic results in the functioning of the political system. Similarly, if it is ensured that a certain number of parliamentary candidates of political parties are elected through pre-selection, the power of the party headquarters can be weakened. D. The Method of Making Constitution One of the basic issues of debates of constitution is how the constitution will be made and how participation can be increased in the process of making constitution. The method and process in making constitution are a criterion of legitimacy as important as the content. The dynamics which will make a constitution legitimate, democratic and steady are participation, negotiation and compromise. It can be said that Turkey does not have a democratic experience in making constitutions. In Turkey, constitutions were made and changed during the military regimes and under the undemocratic conditions created by them. The will of the military officers who carried out military coups and the language and spirit of those periods were penetrated into the constitutions and the process of making the constitutions was completed in an environment far away from the democratic legitimacy. This situation also affected the articles on changing the constitution and it was nearly made impossible because of the strict constitutionalism understanding to change the legal-political framework determined by the anti-democratic founder authority. The constitutional tradition which began with the constitution of 1961 has aimed to put the legislative and the executive under the guardianship of the bureaucratic institutions. Although many changes were made in the Constitution of 1982 in the last twenty-five years, these changes have not been able to eliminate the spirit of guardianship in this constitution. In this sense, one of the most important changes in the Constitution of 1982 was that a three-fifth majority instead of two-third in the TGNA was seen sufficient in changing the constitution through referendum. The method of referendum facilitates changing the constitution by saving it from qualified majority. By making it possible discussion of the constitution by people, referendum drags bureaucratic guardianship institutions and 62

authoritarian understanding into the discussion of legitimacy. In this way, disguising the dispute with the shawl of bureaucratic guardianship and its conclusion within the bureaucratic institutions are prevented and the dispute is made the dispute of people. As a result, the society discusses the issue by choosing different political sides and politics gains meaning by finding a social basis. Otherwise, there will be no meaning of mentioning of politics or political parties in a place where there are no different opinions and the decisions are taken by bureaucrats. The efforts of overcoming the dispute bring about changes not only in regulations and institutions, but also in mentality and culture. The partial constitutional change realized on 12 September 2010 through the referendum constitutes an important example in this sense. By staying under the influence of this development, the free discussions which were realized by political parties, non-governmental organizations, civil groups and platforms on the new constitution in the process going to the general elections of 12 June 2011 are exceptionally valuable. The fact that these discussions concentrated on the basic principles including the process of making constitution, participation, negotiation and compromise rather the content demonstrates the degree of maturity which discussions of democratic and civil constitution has reached. In this point, the things which should be taken into consideration in the process of making constitution are the followings: The New Constitution should be Made by the Parliament: the new constitution should be made by the TGNA. As the representative of people, the TGNA is the only legitimate organ which has the authority of making the new constitution. The President might undertake a facilitating role in the issues on which compromise cannot be reached easily. The Parliament Should Show Sensitivity to Political and Social Dynamics which have Stayed Outside the Parliament: The Parliament does not represent all political opinions and parties because of the 10% electoral threshold. Therefore, the Parliament should try to overcome the problem of under-representation through methods and processes in which these political parties, political opinions and social dynamics are taken into account. In order to ensure this, all political parties having votes above 1% in the 2001 elections should be invited to the discussions in the Committee of Constitution and this method should be definitely announced before 63

the elections. In the process, there should also be mechanisms in which non-governmental organizations are included. The Freedom of Expression: Creating an environment of the freedom of expression which will ensure the participation of all sections of the public opinion in the constitutional process is indispensably important. All kinds of obstacles in front of the freedom of expression should be removed. In addition, the campaigns aimed at preventing the expression of some opinions by provoking the public opinion should not be allowed. The expression of all kinds of opinions in the process of making constitution should be ensured. Negotiation: The negotiations in the process of making the constitution should be continued openly in the public opinion and the Parliament. Compromise: The goal of the negotiations should be to create the widest social consensus. But, since absolute compromise is not possible, the aim should be to create a consensus text which will be accepted by the TGNA. Referendum: The text which is passed from the TGNA as a result of negotiation and compromise in the public opinion and the parliament should be voted in a referendum. In this way, the basis of legitimacy of the constitution will be strengthened. 64