A Chronology of the Constitutional Conciliation Commission: 01-31 December 2012
TURKEY CONSTITUTION WATCH
by Gözde Burcu Ege*
This article will provide the chronology of the Constitutional Conciliation Commission and the constitutional work undertaken by the political parties during the month of December based on media reports, and a short evaluation of the debates in the press during the same month.
Just like the previous month, in December too, the most debated aspect of the new constitution in the papers was the “Presidential system.” The debate, which began in November then the ruling AK Party conveyed its proposal for a governmental system to the Commission, resulted in a crisis in the Parliamentary Constitutional Conciliation Sub-Commission with the MHP and CHP proposal for the “repeal of the Presidential system.”  The CHP and MHP stated that unless the AKP revised the “presidential proposal” system, the “constitutional unit would in effect be dissolved.” According to the news story, CHP’s commission members Atilla Kart and Süheyl Batum wanted the AKP to “revise” its proposal. When AKP’s Şentop said “we are not considering a review,” Kart responded by saying “In that case, we are faced with a new imposition.” Upon the reaction of the opposition, İyimaya remarked that “When 3 parties say no, it is definite that the presidential system will not be accepted,” AKP’s Şentop replied, “it is not possible for us to change our proposal.” MHP’s Faruk Bal conveyed that it was impossible for them to accept the presidential system. According to Milliyet newspaper’s story dated 07 December,  Çiçek drew attention to the time lost, and proposed to both the incumbent and opposition parties that “the work on the constitution could be carried out through articles leftover from the ‘fundamental rights and freedoms’ section and legislative articles that are shared by both systems.” According to a December 13th article of the daily newspaper Yeni Şafak, during the debates that took place in the 1st Writing Commission, which met under the presidency of AKP İstanbul MP Mustafa Şentop, Şentop clarified that if other disagreements regarding the constitution could be superseded, they would not insist on the ‘presidential system,’ and “block the process with debates on the presidency.”
The “presidential system” debate was once again inflamed when the prime minister Erdoğan, speaking in Konya said “the issue of separation of powers confronts you as an obstacle. Many columnists in a variety of newspapers, CHP’s president Kılıçdaroğlu responded to these remarks by saying that Erdoğan wanted powers that even the sultans did not have. The Parliament leader Cemil Çiçek remarked, in reference to the debates on the presidential system and the short amount of time left from the deadline that the Commission self-allocated, “When there is a consensus on the model, the process will speed up.”  Evaluating Erdoğan’s controversial remarks on the “separation of powers,” Çiçek said “Turkey is faced with a new constitutional problem each morning. Whatever problems result from constitutional implementations in the making of the new constitution, these need to be re-balanced with regards to the relationship of the powers with one another.” Referring to the “separation of powers” debate initiated by Erdoğan, President Abdullah Gül remarked, “Esteemed Prime Minister was referring to some wrong examples we had in the past. Other than that, the separation of powers is a fundamental democratic principle.”
A 25 December 2012 news story published in the Taraf daily newspaper informed of Bekir Bozdağ’s participation in debates on the Presidential system.  Bozdağ’s remark that the works for the new constitution could continue only after “the presidential system was bracketed” received reactions from CHP’s Atilla Kart and BDP MP Ayla Akat Ata. Kart voiced that it was impossible to negotiate articles when there was no agreement on the system, and Ata remarked: “It can be said that, especially in the last 1.5-2 months, and discursively, the AKP has adopted an attitude and approach that is in conflict with the purpose of establishing this Commission. This is a reflection of that situation. Bozdağ is speaking on the one hand, and Erdoğan on the other. The works continue, however these debates naturally impact the order and substance of the meetings.” According to the news story of Zaman newspaper, MHP member Vural evaluated Prime Minister Erdoğan’s comments on the separation of powers as a product of a coup d’etat mentality, and said that they would not leave the table, and the new constitution.
According to the news story of Radikal daily newspaper, AK Parti convened to resolve the stagnation arising out of the “presidential system” proposal in the Parliamentary Constitutional Conciliation Commission, and decided upon three formulas. The decision was made to wait until March for the implementation of these formulas, and for Parliamentary President Cemil Çiçek to visit party leaders. The three formulas were:
The first formula foresees a debate on the articles concerning the presidential system, for the party proposals to be bracketed if there is no consensus, and for a re-negotiation of these articles later on.
The second formula includes ‘passing over proposals concerning the presidential system without any debate, and to return to them once the other sections are complete.’ The third formula suggests ‘dealing with sections on administration and legislation without first discussing the parts on legislation and execution, and for the latter to be debated in the case of a full consensus elsewhere.’
The other articles that the Conciliation Commission has debated within the month are as follows:
According to a news story in Cumhuriyet daily, the 1st Writing Commission completed the article on “The right to information access and freedom of information,” and a consensus was largely achieved on the article “the right to environment.” The article on “the right to information access and freedom of information,” comprising three paragraphs included the principle: “All persons have the right to freely access information on the internet and other venues of electronic communication: The State undertakes the necessary regulations for the effective and just use of this right.” Taking into account the way in which personal information and data circulating the internet become “threats,” the article accepted the principle of “secrecy” concerning internet correspondence. The second paragraph of the article regulates this area with, “Internet correspondence falls under the principle of secrecy. All persons have the right to demand the protection of personal data they share via the internet, and to demand respect for the secrecy of their thoughts and opinions.” The third paragraph of the Article foresees “legal regulations” to be formulated, within the framework of constitutional principles, for the protection of expression of thought, freedom of press and contract, secrecy of private life, and the protection of “children from sexual abuse.” Accordingly, the provision “the right to access the internet and other electronic communication mediums, the protection of the privacy of life and family life, and personal data, the freedom to communicate, the right to access information, the freedom to express opinions and freedom of press, the freedom to contract, and the protection of children from sexual abuse will be regulated with law within the framework of constitutional principles.”
According to a 3 December news of the Radikal daily, another debate concerns including a new article in the constitution to encourage the participation of women in politics. The Commission decided to pen the ‘equal representation principle’ under the ‘The establishment of the Parliament and the representation of the people’ heading of the ‘Legislation’ section. However, the Commission has not been able to clarify whether the principle would be a legal norm or a norm of encouragement.
The Commission debated the article ‘The establishment of the Parliament and the representation of the people,’ and under the heading ‘the qualifications for being elected an MP,’ regulations stating that those who commit violence against women cannot become an MP were included. Accordingly, those who are convicted of “sexual crimes, assault, crimes against sexual inviolability, child abuse and crimes against humanity” can also not be elected MPs. Those “who reveal a State secret and are pardoned” can become MPs.
According to Milliyet daily,  the 1st Sub-Commission is at the stage of finishing the articles to be added to the “Fundamental Rights and Freedoms” section. The Commission included a surprise regulation in the “Agriculture, Animal Husbandry, and the Protection of Workers in these Sectors,” positing “organic agriculture” as a constitutional right. The article, which has been highlighted “green” with the full consensus of the government and the opposition is as follows:
“The state provides special support to those who work in agriculture and animal husbandry to prevent the illegitimate use and destruction of agricultural land, meadows and pastures, to increase plant and animal products in accordance with agricultural productivity planning principles and the principle of the protection of indigenous species, and to promote organic methods of agriculture and animal husbandry. It facilitates the provision of the tools of execution and other inputs.”
In the new constitution, the consumers are protected with the provision “The state takes precautions to protect and inform the consumers.”
The Second Writing Sub-Commission added to the article on “Qualifications for Being Elected as an MP”s provision that those who commit violence against women cannot be elected as an MP, the crimes of “violence against children, sexual abuse and torture.” Thus, those who are convicted even for a day with “crimes against sexual inviolability, violence against women and children, crimes against humanity and torture,” cannot become an MP.
The government and the opposition who rendered it impossible for those convicted of violence against women and children from becoming an MP could not reach a full consensus on other paragraphs of the same Article. The AKP and the BDP want to lower the age of being elected as an MP to 18, whereas CHP insists on 21, and MHP on 25 for the threshold age. The CHP and the BDP want the crime of “participating in terrorist actions” to be removed as an obstacle to being elected as an MP, whereas the MHP is insistent on the maintenance of status quo. The AKP proposes that “terror crimes that involve violence” should disqualify individuals from being elected as an MP.
According to a news story of Star daily dated 30 December, if there is an inter-party consensus on the new constitutional draft, the vote will be held according to the ‘Founding Parliament’ principle of 1924, rather than article 175 of the 1980 coup d’etat constitution. The works undertaken on the new constitution have not put forth a provision on how the new constitution will be adopted. The AKP’s position is ‘If the constitution is drafted in consensus, there is no need for a parliamentary voting, and to try to obtain 330 or 367 votes, we should take it to the people with the authority of the ‘Founding Parliament.’”
The provisional article to be added to the new constitution will determine how the constitution will be adopted, and whether it will be submitted to popular vote. The adoption of the new constitution will be based on the provision “The people can amend the constitution” included in the Constitution (Kanun-i Esasi) of the first constitutional period, and it will be passed through the parliament without the requisite 330 votes. The majority of 367 votes that are necessary in critical parliamentary votes will therefore no longer be necessary.
The vice-president of the AKP, Numan Kurtulmuş, remarked that the deadline for the new constitutional works is 31 December, and added: “After this date, as the AK Party, we will put on the table what the people want as a new constitution. If we have the power to do so, we will find the 330 votes and take it to a referendum.” Saying “Unfortunately, the mathematics of the parliament do not add up, and a consensus does not emerge,” Kurtulmuş asked, “You are changing the definition of citizenship, how can you reconcile the CHP, BDP and the MHP? How can AK Party and CHP reach a consensus on freedom of religion? The biggest tool of building the new Turkey is therefore the new constitution.”
You can follow analyses on the new constitutional process from the blog turkeyconstitutionwatch.org (English) and anayasaizleme.org (Turkish), prepared by TESEV Democratization Program.
*TESEV Constitutional Monitoring Project Assistant
”The Presidency System Makes it to the Commission” (“Başkanlık Komisyonda”), Cumhuriyet daily newspaper, 07 November 2012.
For the full text of the AKP’s “legislative” proposal:
 “The Crack of Presidency” (“Başkanlık Çatlağı), Cumhuriyet daily newspaper, 06 December 2012.
 “Çiçek’s Interim Solution to the Presidency Crisis” (“Başkanlık Krizinde Çiçek Ara Formülü”), Milliyet daily newspaper, 07 December 2012.
 “Şentop: We will not Insist on the Presidency” (“Şentop: Başkanlıkta Israrcı Olmayız”), Yenişafak daily newspaper, 13 December 2012.
 “He Wants More Authority than Sultans” (“Padişahta Olmayan Yetkiyi İstedi”), Milliyet daily newspaper, 19 December 2012.
 “He Pointed to the New Constitution” (“Yeni Anayasayı İşaret Etti”), Cumhuriyet daily newspaper, 20 December 2012.
 “The Powers Should be Handled by the New Constitution” (“’Erkler Yeni Anayasada Ele Alınmalı’), Radikal daily newspaper, 20 December 2012.
 “The Separation of Powers is the Foundation of Democracy” (Kuvvetler Ayrılığı Demokrasi Temelidir”), Milliyet daily newspaper, 22 December 2012.
 “Negotiations Cannot Take Place in the Shadow of the Presidency” (“Başkanlık Parantezinde Müzakereler Yürümez”), Taraf daily newspaper, 25 December 2012.
 “MHP’s Vural: We Will Not Leave the Table” (“MHP’li Vural: Yeni Anayasa Masasından Kalkmayacağız), Zaman daily newspaper, 25 December 2012.
 “3 Formulas to Undo the Knot” (“Düğümü Çözecek 3 Formül”), Radikal daily newspaper, 29 December 2012.
 “The Internet Makes it to the Constitution” (“İnternet Anayasaya Giriyor”), Cumhuriyet daily newspaper, 02 December 2012.
 “The Equal Representation Principle is in the Constitution” (“Eşit Temsil İlkesi Anayasada”), Radikal, 03 December 2012.
 “Four Parties Converge: Violence Against Women is an Obstacle to being an MP” (“Dört Parti Uzlaştı: Kadına Şiddet, Vekilliğe Engel”), Taraf daily newspaper, 17 December 2012.
 “Organic Agriculture in the Constitution” (“Organik Tarım Anayasada”), Milliyet daily newspaper, 18 December 2012.