7 August 2012 / SELÇUK GÜLTAŞLI, BRUSSELS – Zaman – The Venice Commission, the Council of Europe’s advisory body on constitutional matters, has said it has not been consulted by the Turkish government in the drafting the country’s new constitution despite earlier announcements of an intention to do so.Venice Commission President Gianni Buquicchio, in an exclusive interview with Today’s Zaman, said that although the Turkish government initially announced it would consult the commission when drafting its new constitution, the government has not “followed up.” Buquicchio stressed that the involvement of the commission would contribute to the “domestic as well as international credibility of the process.”
The Venice Commission strongly supported the Sept. 12, 2010 constitutional reform referendum. It was said during the campaign for the referendum that the government had “forgotten” to ask for an official opinion from the commission. Later, the government and justice minister announced on more than one occasion that the Venice Commission would be consulted during the upcoming process to produce a new constitution. It is believed in Brussels that the commission has not been consulted as it has voiced concern over the possibility of Turkey switching to a presidential or semi-presidential system in the new constitution.
The commission, the advice of which is seen as pivotal for countries drafting new constitutions, “identifies possible risks and incompatibilities, legal anomalies and ‘loose’ drafting but leaves countries free to draw their own conclusions and tackle specific problems in the manner thought most appropriate,” according to its website.On the hotly debated presidential system, Buquicchio made clear that it is not the job of the commission to tell Turkey which type of political regime it should choose but nevertheless warned that a presidential system would be “a risky step [for Turkey] to take.”
He stressed that while the spirit of the current constitutional reform is to move the country away from authoritarian structures, a presidential or semi-presidential system could possibly do just the opposite. He underlined that a strong presidential system in a country without a strong liberal tradition often leads to an authoritarian government.
Buquicchio does support a new constitution for Turkey, however, and strongly argues for the replacement of the current one prepared by the junta in 1982. He warns Turkish lawmakers “not to miss the opportunity.”
Turkey has been a member of the Council of Europe, of which the Venice Commission is part, since August 1949. We asked Buquicchio for his thoughts on Turkey’s new constitution.
What information do you have on the ongoing process of drafting the new constitution in Turkey?
We welcomed the constitutional reform process from the outset and would like to encourage the Turkish authorities to cooperate with the Venice Commission through an exchange of views and a request for an opinion. It is particularly important for the Venice Commission that this process be based on the broadest possible consensus among political forces.
There are concerns that the opportunity for a new constitution will be missed again as it was the case back in 2008. The parliament speaker, Mr. [Cemil] Çiçek, has already announced that if work on the constitution lingers on into 2013, it will be very difficult to have one. Are you concerned that Turkey could miss this chance once again?
The fact that the 1982 Constitution is the result of a military intervention that took place in September 1980 cannot be overlooked, and [that] this Constitution was approved democratically by referendum with an overwhelming majority does not change this fact. It is a constitution that has its origins in the period of military rule and its spirit reflects the time of its adoption.
It is therefore important that Turkey does not miss this opportunity to draft a new constitution.
The government had promised to consult the Venice Commission after the Sept. 12 referendum, in which your commission was not involved. Has the government consulted the Venice Commission in this process?
Since the referendum of Sept. 12, 2010, we have provided three opinions on the request made by the minister for justice: on Sept. 27, 2010, one on the draft law on the [Supreme Board] of Judges and Prosecutors [HSYK], one on the draft law on judges and prosecutors and one on the law on the establishment and rules of procedure of the Constitutional Court.However, although there was an announcement of intention to cooperate with the Venice Commission by the Turkish authorities last year with respect to the constitutional reform process, this has not been followed up. I strongly believe that the involvement of the Venice Commission in this process would contribute to the domestic as well as international credibility of the process.
The Venice Commission has said time and again that Turkey needs a constitution that focuses on fundamental rights and freedoms rather than the protection of the state. Are you hopeful that the ongoing process will deliver such a constitution?
I would like to believe that the new constitution will do exactly that: focus on the protection of the individual rather than on the protection of the state and bring about other necessary reforms such as increased decentralization. Turkey is also debating whether it will mandate a presidential or semi-presidential system in the new constitution. Do you think a presidential or semi-presidential system would contribute to the better working of Turkish democracy, or would it do the opposite?
The Venice Commission cannot express its view on what the best political regime for Turkey would be. Our role is not to support any system in particular, but to point out the pros and the cons of each system. It is up to the state concerned to choose the system that suits it best.
However, such a change in the political system, which moves away from the parliamentary system used in the majority of European countries, would be a far-reaching step that requires a very convincing justification. In Turkey, the parliamentary system has worked well and has in particular provided for a stable government. It is therefore difficult to see any justification for moving towards a presidential or semi-presidential system. On the contrary, this would seem to be a risky step to take. Strong presidential powers in countries that do not have a strong liberal tradition often lead to an authoritarian government. The purpose of the new constitution is, however, to move the country away from authoritarian structures. This step would therefore run counter to the very purpose of this reform. Have you been able to follow the implementation of the [reform] package that was endorsed by the Sept. 12 referendum? There have been complaints that some of the laws have still not been implemented. The laws that we have been asked to provide an opinion on — that is, the laws on the HSYK, on judges and prosecutors and on the establishment and rules of procedure of the Constitutional Court — are going in the right direction, but many of our recommendations still need to be implemented. In this respect, the Venice Commission was told that its opinions would be taken into account by the new legislation after the constitutional reform has taken place.
So, far how do you assess the working of the Supreme Board of Judges and Prosecutors after having been revamped in the wake of the Sept. 12 referendum? Do you think there are still steps that need to be taken? The HSYK is the body that deals with most of the aspects of the organization of judges and prosecutors, including qualification, appointments, transfers, dismissals, complaints and disciplinary actions. The Venice Commission welcomed the considerable improvement on the then-existing situation — notably the transfer of competences from the Ministry of Justice to the HSYK, the broadening of its composition, the increased independence in law as well as in actual resources.
I believe that it is still too early to make an assessment, but it will be interesting to see how the HSYK will develop over time.
The complaints about the judiciary have not gone away. What is your assessment of the current state of play within the Turkish judiciary?
One of the long-standing problems of the Turkish judiciary is the excessive workload, leading to an impressive backlog of cases, which in turn has a direct impact on the length of proceedings. This also has an impact on society’s perception and trust in the justice system. Although this matter is being tackled, further structural reforms such as the actual establishment of courts of appeal are required.
An individual complaints procedure will be introduced at the Constitutional Court under its new law, which will enter into force on Sept. 24, 2012, and which we hope will transform the judiciary by forcing it to focus on human rights in order to avoid having its decisions quashed by the Constitutional Court. As regards society’s perception or public trust of the judiciary, we have noticed that Turkey’s judiciary has long been perceived as having the tendency to see their main role as protecting the state and not as upholding individual human rights. Let us see whether the reform process will ultimately lead to a justified change in this perception. Do you think civilian-military relations in Turkey have reached the level of European standards since the start of the investigation into Ergenekon, an organized criminal organization with links to the state? Critics argue that the government has not done enough in terms of legislation to sort the problem once and for all despite its strong support for the investigation. The power of the military has certainly been reduced to a considerable extent. The role of the military will also be a topic for the new constitution and the implementing legislation to deal with.
The Venice Commission has not followed the Ergenekon case and similar trials. While they have undoubtedly led to a decrease in the role of the military, we are well aware about the concerns regarding the wide scope of the prosecutions, including with respect to journalists and writers.