What Will the Sept. 12 Referendum Bring - Today's Zaman

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What will the Sept. 12 referendum bring?

The current Constitution, prepared following the Sept. 12, 1980 coup, wasapproved 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 beremoved

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 YA can go tocourt

Military personnel who are dismissed by YA 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 abroadunder current regulations. If the amendments are
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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 governments involvement incouncil 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 directlypetition 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 wll choose Constitutional Court

members

The number of Constitutional Court members will


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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 HSYKs decisions, like YA 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, aswas the case with Ferhat Sarkaya 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 heldlegally 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 ofmilitary 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 (YA)

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 peoples lives, and the junta blacklisted many

in the country. With the constitutional package, which would protect personal


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information, blacklisting will become history. Keeping records of a citizens

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 theirpersonal 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. Theamendment 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. Underthe 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


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say in the appointments as well.

Dismissed judges will seek justice

Just like YA decisions, HSYK decisions regarding dismissals are also exemptfrom judicial oversight. For example, former emdinli prosecutor Ferhat Sarkaya

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 undersecretarycannot 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 ofemployer 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


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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 intentionaldecline 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. Ifthe 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 paidbecause 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. Childrens 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


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types of violence and abuse.

Solving issues before going to court

An ombudsman mechanism will be set up. A similar practice was used in theOttoman 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

NewsMER AHN, DLEK HAYIRLI

What Will the Sept. 12 Referendum Bring - Today's Zaman

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