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 "Democratisation process in Turkey in the light of

a new Constitution"

Conference “Turkey in Europe"
Keynote Speech by Mr Gianni Buquicchio
President of the Venice Commission of the Council of Europe

Dear moderators, ladies and gentlemen,

I would like, first of all, to thank the Green Group in the European Parliament for the excellent organisation of this conference and for having invited me as a speaker.

I appreciate very much that this conference is called “Turkey in Europe”. It is my firm conviction that, on the one hand,  Europe should recognise that Turkey is an integral part of Europe and, on the other, Turkey should recognise that an orientation towards European standards will often be the best solution for Turkey’s problems. I am also pleased to have this opportunity to address the issue of a new Constitution for Turkey in a comprehensive manner.

We in the Venice Commission have addressed specific constitutional issues in Turkey and have, in this context, expressed our preference for a new Constitution but we never had an opportunity to develop this argument in more detail. When I do so today, you have to be conscious that a lot of what I’ll be saying is not based on texts approved by our Commission.

I am, however, quite confident that my intervention is in line with what we would state if officially asked. But before going into the substance, I would like to say a few words about the Venice Commission. In the framework of the constitutional reform debate there have been many references to the Venice Commission in the Turkish media but I am not convinced that the Turkish public has a very clear idea of our Commission and what it stands for. This is due to the fact that we have only quite recently started to co-operate with the Turkish authorities. I would like to seize this opportunity to welcome the recent request from the Minister of Justice to our Commission to assist in the implementation of the constitutional reform.

The Venice Commission is the constitutional advisory body of the Council of Europe. It is composed of independent experts, one from each member state, who are mainly university professors or senior judges. We have been advising many European countries - nearly all countries of Central and Eastern Europe and a few countries of Western Europe - on the drafting of  their constitutions and  relevant legislation. We do this at the request of the country concerned or of a Council of Europe organ, usually the Parliamentary Assembly. We base ourselves on Council of Europe standards but also on the common experience of European democracies.

The title of this morning’s session already presupposes that Turkey should get a new Constitution. We agree with this analysis, which is also shared by other European bodies such as the Parliamentary Assembly of the Council of Europe. There are essentially two reasons: the circumstances of the adoption of the present Constitution and its content.

As regards the way of adopting the Constitution, we cannot overlook the fact that the 1982 Constitution is the result of the military intervention which took place in September 1980.

In September 1980 the Turkish Parliament was dissolved and its powers were transferred to the National Security Council. Full executive powers were transferred to the Chairman of that Council. The Constitution was prepared during this period of military government, although with the aim of permitting the return to civilian rule and democracy.  The Constitution was approved democratically by referendum with an overwhelming majority but this does not alter the fact that its origin lies in the period of military rule and, as I will show later, its spirit reflects the time of its adoption.

The Turkey of today is very different from the Turkey under military rule. The country has made enormous progress in practically all areas and, in particular, there has been a process of democratisation going on for several years. It does therefore not seem appropriate for the country to continue to live under a Constitution prepared during military rule. But, of course, the most important aspect is the substantive content of the Constitution. I think the Turkey of today deserves a better Constitution. This does not mean that everything in the current Constitution is bad and should be changed.  On the contrary, there are some achievements which should be safeguarded. First of all, we have to be aware that the 1982 Constitution has been revised a number of times and that through the various democratisation packages and the referendum of last September it has been decisively improved.

Secondly, Turkey has managed to establish a functioning parliamentary democracy. Not everything may be perfect in this area. For example, it would be desirable to lower the threshold in the Electoral Code to be represented in parliament. But in general the parliamentary system has worked well and has provided Turkey with a stable and democratic government. I therefore see no justification for a move towards a different system, in particular a more presidential government. On the contrary, such a change might lead to authoritarian tendencies and could well result in a step back in the democratisation process.

Thirdly, the Constitution contains many positive principles such as secularism, the separation of powers or the protection of fundamental rights. These principles must be maintained. If there are thus positive features in the current Constitution, which should be preserved, there are also problems of the functioning of Turkish democracy which are linked to the Constitution.  These problems are first of all due to the fact that the 1982 Constitution established a very coherent system of what is called by political scientists a tutelary democracy. This means a system, which seems based on democratic principles but where the democratically elected organs are placed under a kind of guardianship of the military, the high bureaucracy and the highest courts.  Such a system cannot be regarded as genuinely democratic.

Democracy is based on trust in the people. People are given freedom and the possibility to elect their representatives who govern the country. The assumption is that government based on the will of the people and the exercise by them of their fundamental rights will give the best results. Sometimes the freedoms can be restricted but this should be the exception and not the rule. The 1982 Constitution, by contrast, is based on a different concept. The main underlying concern of the drafters was to protect the state and the secular system, if necessary against the people and their elected representatives.  This is a tendency going back quite some time. To quote a Turkish scholar,  Ozan Erözden:

 “During the era of the 1961 Constitution, the normative guarantees introduced for judicial independence and impartiality were designed not entirely from the perspective of a democratic state governed by the rule of law, but also as an institutional guarantee against the “risk” that those who opposed the modernisation project of the Kemalist revolution gain the majority in parliament through general suffrage. … The same trend continued and grew stronger in the system of the 1982 Constitution, which from the beginning aimed to protect the state against the individual and seriously downgraded constitutional guarantees for fundamental rights and freedoms.”

I’d like to illustrate this tutelary approach by a few examples. As regards human rights, the usual rights and freedoms all appear in the Constitution. But it is quite obvious that the drafters of the Constitution were afraid that these rights may be misused by the people. Wherever we have a political right, there are very detailed and far-reaching restrictions with the underlying concern of protecting the state against the people.  

This approach was most obvious in the earlier text of Art. 13 on Restriction of fundamental rights and freedoms and Art. 14 on Prohibition of abuse of fundamental rights and freedoms, prior to their amendment in 2001.  The various Amendments, which were part of the democratisation packages, have decisively improved the text but the underlying spirit still lingers, for example in the Article on freedom of the press. No provision of this Article is really against European standards but the overall impression provided by it is that the indivisible integrity of the state is by far the most important value, far more important than the freedom of the press.

It is therefore not surprising that Turkish judges, when balancing the interest of the State and freedom of expression, often arrive at results which contradict the case-law of the European Court of Human Rights. One example, where the Constitution still falls clearly short of European standards, concerns the closure and prohibition of political parties. The Venice Commission has adopted a comprehensive opinion on this topic and there is no need for me to repeat its conclusions here. Clearly it is to be regretted that the part of the constitutional reform package making the closure of political parties more difficult did not receive the required majority to be submitted to referendum.

Before the background of this restrictive approach to fundamental freedoms, it seems only logical that Article 5 of the Constitution setting out the fundamental aims and duties of the State mentions in the first place the independence and integrity of the Turkish nation and the indivisibility of the country and only afterwards individual rights. Therefore, as regards human rights, the current Constitution puts the main emphasis on the protection of the State rather than on the full realisation of fundamental rights.  While the  grounds for restricting human rights provided by the Constitution are not objectionable per se, they are given excessive weight and judges  balancing State interests and human rights will therefore tend to give too much weight to the interests of the State.  

It is therefore not surprising that Turkey is one of the countries losing a big number of cases before the European Court of Human Rights. Some of the institutional provisions of the Constitution also clearly reflect the tutelary regime. It is quite striking that before the constitutional referendum the Turkish parliament had no say at all with respect to the composition of the Constitutional Court. The Turkish State also remains highly centralised and the role of local self-government remains more than modest. The notion of local self-government does not even appear in the text of the Constitution, there is only an article on local administration within the sub-chapter on Organisation of the Administration. 

It is also well known that the Turkish military often plays a political role which would be unthinkable in other European democracies. While this political role has no clear basis in the Constitution, the Constitution nevertheless provides the military with a very strong role.  It provides the position of Chief of the General Staff with a constitutional underpinning, the role of the National Security Council remains strong despite the 2001 amendments and the military courts have a very strong position. No appeal to a civilian court is possible against their decisions. The cornerstone of the tutelary system, established by the 1982 Constitution, are probably the first three articles of the Constitution, which establish some principles which may not be amended at all. While some other European countries also have unamendable provisions in their Constitution, in the Turkish case, these articles seem to be interpreted very broadly and used against the possibility of any change. They are even used as a basis for the review of constitutional amendments in a manner which has no parallel in other European states.

To sum up, the current Constitution was prepared during a period of military rule and establishes a tutelary regime with the aim of protecting the State against the people. While few of the provisions of the Constitution are in contradiction with European standards, the overall approach puts more emphasis on the protection of existing State structures than on democratic development and individual rights. 

It is certainly understandable that in Turkey there has been the wish to protect the modernising achievements of the Atatürk era and the secular character of the state. This cannot, however, be a reason for putting the requirements of democracy and the protection of fundamental rights into second place.  Turkey has developed very fast in recent decades and the progress made is impressive. It therefore seems time for Turkey to abandon the traditional mistrust in its people and their elected representatives and adopt the normal standards of a liberal democracy. The adoption of a new Constitution would be the clearest sign that Turkey has taken this step.

 However, we should also not lose sight of the need for this new Constitution to be the Constitution of all citizens, based on a broad consensus within society. Therefore, the process of adopting a new Constitution has to be based on consensus. A new Constitution should unite the country and not lead to new or increased divisions.  Therefore it seems imperative that both the government show serious willingness to fully involve the opposition in the process, giving it a real say, and that the opposition be ready to contribute in good faith. It is more important to have a Constitution accepted by society as a whole than to have an ideal text.  When preparing the new text of the Constitution, the government and the majority should therefore make it clear from the outset that there is no intention to change the secular character of the state. Secularism is not a principle specific to Turkey, but a common European principle. It can be interpreted in different manners, but it should not be abandoned.  

This may mean, for example, that it might be wise not to open the issue of the three unamendable articles of the Constitution if, in the public perception, this would be linked to a desire to abandon the secular character of the State. If interpreted in a different manner, these articles seem to be compatible with a modern liberal democracy. Our preference would certainly be not to keep these articles as they are. But if keeping these articles is necessary to get a consensus on a new Constitution within society, this may be a price worth paying. 

In conclusion, ladies and gentlemen, to complete the process of democratisation, Turkey indeed needs a new Constitution. The current Constitution establishes a tutelary regime, which may have had some justification in the past, but no longer corresponds to the development of Turkish society.

It is time now for the country to become a full-fledged liberal democracy in accordance with European standards. The process of adopting a new Constitution will not be easy, since it should be based on a wide consensus within society. Both government and the opposition therefore have to act responsibly and I hope that European institutions, such as the Venice Commission, can make their contribution to this process by increasing public confidence.

 Thank you very much.