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What will the Sept. 12 referendum bring?

The current Constitution, prepared following the Sept. 12, 1980 coup, was
approved in a 1982 referendum.
The Constitution has been amended 16 times in the
last 28 years in line with the demands of nearly all
political parties and nongovernmental
organizations. The package that is going to be put
to a referendum will bring major changes

Coup leaders will be tried


Protective shield over coup leaders will be
removed

Provisional Article 15 of the Constitution, which


provides protection to coup leaders, will be
abolished. The amendments will allow the leaders
of the Sept. 12 coup to be sent to court. Military
officers who engage in non-military activities,
including preparing coup plans, will be tried in
civilian courts.

Military officers dismissed by YAŞ can go to


court

Military personnel who are dismissed by YAŞ will have the right to appeal to the
judiciary, the right to legal remedies and the right of defense. Military personnel
who are expelled from the TSK for engaging in “reactionaryism” will be able to
appeal to the judiciary.

Blacklisting to end, personal information to be protected

Personal information such as names, photographs and ID information will be kept


private. This kind of information will be stored only if the individual agrees to it.
“Blacklisting” will become history. Individuals believing their personal
information is being misused will be able to hold relevant entities accountable.

Economic and social rights


Businessmen with tax debts will be able to
travel abroad

Businessmen facing an investigation or


prosecution are prohibited from traveling abroad
under current regulations. If the amendments are
approved in the referendum, businessmen will be able to travel abroad provided
there is no court order restricting their travel.

Right to collective bargaining for government employees

While government employees will be granted the right to collective bargaining,


the Public Employees’ Arbitration Board consisting of government employee
representatives will have the final say. The same right will be granted to the
retired. Government employees who believe they have been punished unfairly will
be able to go to court.

Constitutional protection to employee and employer associations

The ESK, which comprises representatives from unions, associations and


confederations, will be given constitutional protection. The council will be
effective in determining economic policies and the government’s involvement in
council activities will be removed.

Individual freedoms
Citizens will be able to petition Constitutional Court

Problems between the state and citizens will be


resolved by way of an ombudsman without having
to go to court. If citizens are not satisfied with
judicial decisions, they will be able to directly
petition the Constitutional Court.

Protection for relatives of killed soldiers,


disabled people

Constitutional protection will be provided to women, children, elderly people,


disabled people and the relatives of fallen soldiers and veterans. Special measures
for these individuals will not be considered a violation of the principle of equality.

Parties will not be shut down, deputies will not lose seats

Since the structure of the Constitutional Court will change, closing down parties
will not be as easy as it used to be. Deputies will not be banned from politics even
if their party is closed down because of their actions and discourse. They will be
able to continue participating in politics.

Major judicial reform


Parliament wıll choose Constitutional Court
members

The number of Constitutional Court members will


increase from 11 to 17. Parliament will appoint three members while the president
will appoint 14 members. The Constitutional Court will obtain a more democratic
structure, consisting of two parts and functioning as a general assembly.

HSYK pressure over judiciary will be removed

The number of members of the HSYK, known for interfering in the judiciary, will
increase from 7 to 22. Members will no longer be elected only by the Supreme
Court of Appeals and the Council of State. A total of 11 judges from around
13,000 judges will be appointed to the board to represent judges on the bench.

Dismissed judges will be able to appeal to the judiciary

The HSYK’s decisions, like YAŞ decisions, will be open to judicial review.
Prosecutors and judges dismissed by the board will be able to challenge dismissal
decisions in court. Prosecutors and judges will not encounter unfair treatment, as
was the case with Ferhat Sarıkaya and Sacit Kayasu.

Radical reforms for full democracy


Leaders of Sept. 12 coup can be tried

Provisional Article 15 of the Constitution protected the leaders of the Sept. 12


coup from prosecution. If the package is approved in the referendum, then Gen.
Kenan Evren and his comrades who led the coup and the members of the
Advisory Council will no longer be exempt from being tried or from being held
legally responsible. It will lead to drafting legislation on trying coup leaders.
There are different views on the issue of the statute of limitations. Some jurists are
of the opinion that there must be no statute of limitations for coups, which they
regard as a crime against humanity. According to other jurists, trying the leaders
of the Sept. 12 coup will become possible.

Judicial relief for dismissed officers

Thousands of commissioned and noncommissioned officers have been expelled


from the army on the grounds that they were engaging in reactionary activities just
because of their personal religious beliefs and their wives’ attire. The number of
military officers dismissed peaked during the Feb. 28 process, and between 1997
and 1998, 569 people were expelled from the army. Dismissed officers could not
appeal or pursue any legal action because Supreme Military Council (YAŞ)
decisions were closed to judicial review. The constitutional amendment package
will correct this situation. Military personnel who are dismissed from the Turkish
Armed Forces (TSK) will be given the right to seek legal action and the right of
defense.

Privacy to be protected

The coup was a dark part of many people’s lives, and the junta blacklisted many
in the country. With the constitutional package, which would protect personal
information, blacklisting will become history. Keeping records of a citizen’s
name, age, address, marital status, telephone number, passport number,
background information, photograph, voice recordings and fingerprints will be
prohibited unless the individual has given consent. People who blacklist others
will be subject to legal action. Everyone will have the right to learn if their
personal information has been collected.

Military courts off limits for coup leaders

Turkey is one of the few countries in the world with a dual judicial system. With
the Sept. 12 Constitution, crimes committed by military personnel are reviewed by
military courts. According to the Sept. 12 Constitution, military officers may only
be tried in military court, even if they commit a crime against the democratic
regime or are involved in a coup plot or even in trafficking drugs. According to an
amendment to Article 145, military officers can only be tried in military courts for
crimes related to military duty and that require disciplinary action. The
amendment also stipulates that civilians can never be tried in military courts. The
amendment will provide security of tenure for military judges and prosecutors by
liberating them from the chain of command.

Democracy in Constitutional Court

The Constitutional Court has impeded democracy with several of its decisions on
closing down political parties, the parliamentary quorum of 367 for presidential
elections and by annulling legislation that would have allowed students to wear a
headscarf in universities. An amendment to Article 146 of the Constitution will
increase the number of Constitutional Court members from 11 to 17. Parliament
will appoint three and the president will appoint 14 of the members. The
Constitutional Court will consist of two parts and function as a General Assembly.
Members can be re-elected at the end of their term. These changes would make it
very hard for the Constitutional Court to make anti-democratic decisions.

End of link between HSYK and judges

The composition of the Supreme Board of Judges and Prosecutors (HSYK) --


which has tried to pressure the judiciary by removing prosecutors and judges
handling the Ergenekon, Sledgehammer and other cases -- will be changed. Under
the current system, which resembles a caste system, HSYK members are
appointed by the Supreme Court of Appeals and the Council of State. But the
members of these two institutions are appointed by the HSYK. If the amendments
are approved, judges and prosecutors outside of the higher judiciary will be
eligible to become members of the HSYK as well. The number of regular
members in the HSYK will increase from seven to 22, and the number of
substitute members will increase from five to 12. The way HSYK members are
elected will also change. Ten of the 34 regular and substitute members will be
elected directly by the Council of State and Supreme Court of Appeals general
assemblies. In this way members of the judiciary who serve in class one courts
(provincial), which consists of close to 13,000 judges and prosecutors, will have a
say in the appointments as well.

Dismissed judges will seek justice

Just like YAŞ decisions, HSYK decisions regarding dismissals are also exempt
from judicial oversight. For example, former Şemdinli prosecutor Ferhat Sarıkaya
was stripped of his right to practice law by the HSYK and could not pursue any
kind of legal remedy. With the amendment package, such decisions by the HSYK
will be open to judicial review. The HSYK will also be housed in a separate
building and have its own secretariat and budget.

Minister not to vote for appointments

The minister of justice will not participate or vote in HSYK meetings in which
decisions are made on critical matters such as appointments, promotions. The
HSYK General Assembly will be able to convene even if the undersecretary
cannot participate in the meeting. The duties and powers of the General Assembly
and several departments will be specified by law. Inspectors who monitor and
investigate judges and prosecutors will be divided into two groups known as board
inspectors and justice inspectors. Board inspectors will work with the HSYK,
while board inspectors will work with the Ministry of Justice.

Easing traveling restrictions for businessmen

The package also offers a solution to problems that businessmen frequently face.
Under the current system, people under investigation or facing prosecution can be
prohibited from traveling abroad. If a businessman has a small tax debt, he could
be banned from leaving the country. This practice, which the European Court of
Human Rights (ECtHr) disapproved of in 2006, would also be changed. The scope
of the right to travel is being expanded in the constitutional amendment package.
According to the amendment, people facing investigation and prosecution will be
allowed to travel abroad as long as there is no court order issued prohibiting them
from doing so.

Constitutional protection to be given to ESK

The Economic and Social Council (ESK) consisting of representatives of


employer and employee associations, and unions and confederations of which
merchants, tradesmen and industrialists are members would be granted
constitutional protection. This would prevent the government from interfering in
decisions regarding when the council convenes and which socioeconomic policies
it will endorse. A broad segment of society will have the opportunity to take part
in determining social and economic policies. The ESK started convening under
the Justice and Development Party (AK Party) government. But it will serve under
every government.

Restrictions of unions will be removed

Restrictions on the right to strike will be removed. Restrictions on politically


motivated strikes and lockouts will be removed to advance workers’ rights. Labor
unions will not be held liable for material damage to a workplace where a strike is
being held as a result of deliberately negligent behavior by the workers and by the
labor union. Prohibitions on politically motivated strikes and lockouts, solidarity
strikes and lockouts, occupation of work premises, slowdowns (a intentional
decline in productivity) and other forms of workers’ collective action will be
abolished.

Salaries to increase for state employees

If the package is approved in the referendum, new rights will be introduced to


more than 11 million workers, government employees, retirees and the disabled.
Government employees will be given the right to collective bargaining. On the
matter of salary increases, the decisions of the Conciliation Board will be binding.
Giving the Conciliation Board the right to have the final say instead of the
government will increase the salary hike government employees can receive. If
the decisions of this council had been binding in the past, the salary increases for
state employees would have been 17 percent higher in the last six years.

Membership in more than one labor union allowed

If the amendments are approved, workers, who until now could only be a member
of one labor union, will be allowed to become a member of more than one. While
this will increase competition between labor unions, it will also have benefits for
workers. Additionally, warnings and reprimands given to government employees
will be open to judicial review. Government employees who believe they have
been punished unfairly will be able to make claims in court.

Top court to hear cases instead of ECtHR

If the outcome of the referendum is in the affirmative, all citizens will be able to
file a petition with the Constitutional Court. Everyone -- including people who
have been discriminated against, people who have faced religious and moral
pressure -- will be able to file a petition with the Constitutional Court instead of
the ECtHR. Turkey has gone to the ECtHR a total of 2,295 times ever since the
court was established in 1959. In 2,017 of these cases Turkey was ordered to pay
high amounts of compensation. With this amendment, the millions of dollars paid
because of ECtHR rulings every year will decline.

Prevention of abuse of women and children

With an amendment to Article 1, legal measures taken regarding women, children,


disabled people, family members of soldiers killed in war and for family member
of veterans cannot run contrary to the principle of equality. For example, if an
employer sets a certain employment quota for women, people will not be able to
lodge a complaint about it. Children’s rights and welfare, which the Sept. 12
Constitution neglects, will not be neglected in the new constitution. The new
amendment requires the state to guarantee the protection of children against all
types of violence and abuse.

Solving issues before going to court

An ombudsman mechanism will be set up. A similar practice was used in the
Ottoman Empire, and the practice has a long history on the Scandinavian
Peninsula and is now common in Western democracies. Before going to court,
citizen will be encouraged to first try solving their problems by way of the
ombudsman. Citizens whose rights are violated or face mistreatment in any state
institution will be able to address the problem by way of a public monitoring
(ombudsman) system that will be set up in affiliation with the Parliament and
without having to apply to a court.
08.08.2010
News
ÖMER ŞAHİN, DİLEK HAYIRLI

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