AKP and MHP agree on the constitutional text. Experts warn of a 15 July constitution.

Agreement has been reached between the AKP and MHP over the constitutional text. With submission of the text to Parliament expected on Friday or Saturday, constitutional experts have commented on the AKP’s plan.

09 Aralık 2016 Cuma, 14:42
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Agreement has been reached between the AKP and MHP over the constitutional text. The constitutional text is expected to be submitted to Parliament on Friday evening or Saturday.
The constitutional text over which the AKP and MHP have agreed consists of thirteen articles. The final form of the text was submitted to MHP General Chair Devlet Bahçeli in the afternoon. It is said that no points of contention remain between the parties over the draft.


CONSTITUTIONAL EXPERTS COMMENT ON THE AKP’S PLAN: 15 JULY CONSTITUTION
The Democracy First Initiative held a gathering yesterday evening in Kadıköy devoted to ‘Our Constitutional Future’. Kadıköy Mayor Aykurt Nuhoğlu was among those to address the gathering, which was opened by former CHP MP and Chair of the Social Rights Association, Melda Onur.


What’s the hurry?

Prof. Dr. İbrahim Kaboğlu: “The constitution is being introduced in a hurry. Last week, the Prime-Minister said, ‘There can be no referendum during a state of emergency period.’ All well and good, your excellency the prime-minister, yet you are busying yourself with the constitution even though the constitution grants you no such power, the constitution fills your thoughts from morning to night and you even pontificate about the Russian constitution. Even if late in the day, you have pronounced that it cannot be done under the state of emergency. Fine, but how is the constitutional process to be taken forward under the state of emergency? How are we to obtain information about talks that are held behind closed doors? When will people be able to hold demonstrations in the street over the constitution without being truncheoned, kicked and given rough treatment by our police? The precondition for starting public debate over the constitution is the lifting of the state of emergency. For one thing, public debate over the constitution cannot be started until the state of emergency has been lifted. Secondly, constitutional amendment cannot be made until the state of emergency has been lifted. Thirdly, without lifting the state of emergency, constitutional amendment that will entail regime change most certainly cannot be made. We must be most clear about this point. The constitution cannot be touched without a minimum degree of popular assent. What’s the hurry? Even the 12 September administrators bided their time for two years and two months over the constitution. So, why can’t you bide your time for two years and two months? What’s your hurry? Regime change is illegitimate in such an environment. The constitution to emerge may be a new constitution with its own date. But it will be the 15 July constitution and will be a constitution that falls short of the gains we have made.”


The Constitutional Court is in limbo

Prof. Dr. Korkut Kanadoğlu: “Even if a new constitution is made, nothing other than what we have under the prevailing state of emergency will emerge. It is impossible to say that anything else will be forthcoming apart from an incapacitated judiciary, all powers concentrated in a single hand, the legislature circumvented and the emergence of one-person, personalised rule ...
The environment expected to result from this constitutional amendment portrays in very stark terms the extent to which we have fallen short of the gains we have made, the extent to which we are regressing and the nature of the regime in terms of where we are headed. Never mind amending the constitution, we see constitutional certainty being eliminated. One has to inquire as to their purpose in conducting lustration independent of judicial review. Is the true purpose to lustrate members of the Gülen organisation who have abandoned allegiance? If this path is followed, no lustration will be performed and they (members of the Gülen organisation) will be able to return to public service once more. When the state of emergency ends, decrees with the force of law will cease to be effective. By now, there have been 47,000 applications to the Constitutional Court. The Constitutional Court is on the verge of an important decision in terms of asserting its position as against the European Court of Human Rights. If it continues to act with temerity over decrees with the force of law, this will spell the end for the practice of individual application with no opportunity for this to ever be rectified again. This is the basic issue it faces. Either it will become a court devoid of function and competence, or it will review the merits of each concrete case in a manner that asserts its rights.

Attention to the criteria

Prof. Dr. Ersin Kalaycıoğlu: “You are going to vote and, prior to voting, you will give some thought. Will this constitution or new constitutional regime be successful or not? How are you to decide on this? We look at four basic principles. When applied as a political regime, do you think it will in general be suitable, fair and just for us? Do you concede to it being legitimate? That is, it boils down to whether the person or institution wielding power has the right to rule. So, should this text be empowered to govern Turkey? You will decide on this. For example, the American constitution has passed through ten generations and still retains its validity. Before this step is embarked on, as large a majority of society as possible must identify with the constitution and say, ‘If I’d made it, this is the sort of thing I’d have made.’ The second criterion is to what degree can we solve political disagreement without resorting to violence under that constitution? Third, to what extent does it provide or not provide the opportunity for a government official to exploit the office he or she holds for their own benefit? The fourth matter, well, this is when you speak of the existence of justice, it must not be the case that you apply it to one person and do not apply it to another. From my point of view, the critical issues may be the environment, climate change, justice and economic development. To what extent will the constitution be successful in handling these? So, you will opt whether to be governed through democracy or not.”