Human Rights Watch (HRW) accessed the constitutional amendments that will be voted on April 16 in terms of human rights, rule of law, independence of judiciary, separation of powers, checks and balances, international law and parliament's role.
Today,
HRW released five questions and answers, assessing what the
constitutional amendments that will be voted on April 16 mean for
Turkey.
Here are the questions and answers:
Checks and balances
Is one system better than the other for human rights?
The choice between a presidential system and a
parliamentary system, or a hybrid of the two, is a political choice
to be made by the citizens of the country, rather than a human rights
question. What is important to ensure respect for and protection of
human rights and the rule of law is the substance of any system of
governance – that is, whether the system has checks and balances to
prevent abuse of power by those who hold political office.
Democracy is more than an opportunity to periodically vote in elections. Checks and balances are essential to ensure that the voters have meaningful ways to hold the people they elect to positions of authority democratically accountable.
Central to democratic checks and balances is a separation of powers, under which the functioning and duties of the legislature (the law-making parliament or assembly), the executive (political leaders), and independent courts are kept institutionally separate from one another. This allows the legislature and courts to act in different ways as an effective check on the powers of the executive to ensure that it acts within the constitution and respects human rights and the rule of law.
Power to dissolve the parliament
What changes are voters in Turkey being asked to approve?
The proposed changes, to create what the government is calling a “Turkish-style” executive presidency, would be the most significant change to Turkey’s political institutions since the introduction of the multiparty election system in 1946.
Two changes would take effect immediately. The president would have increased authority over the body that administers the judiciary and controls the appointment of judges and prosecutors, and the prohibition against the president having a formal party affiliation would be lifted. The courts in Turkey are already under political influence and these changes would further reduce judicial independence.
So for example, since President Recep Tayyip Erdoğan would be formally allowed to be the leading figure in the Justice and Development Party, which also has a majority in parliament, the changes would increase his influence over the judicial appointments body through parliament as well as through the office of president.
Further changes would take effect following presidential and parliamentary elections scheduled for November 2019, when the role of prime minister would be abolished. The president would be given sole power to appoint or dismiss vice presidents, ministers, and high state officials. The president could legislate by decree and secure the presidency’s budget without parliamentary approval being a precondition. The president would have the power to dissolve parliament and trigger parliamentary and presidential elections. The president would be able to run for two five-year terms and, in the event that parliament were dissolved before the end of the second term, a third.
Parliament's authority to introduce motions
What would parliament’s role be?
If the constitutional amendments are accepted, after the November 2019 elections and full implementation of the new presidential system, parliament would lose the authority to monitor the executive branch – the president, vice presidents, and ministers. Though the number of seats in parliament would increase from 550 to 600 members, the body would lose its current authority to introduce motions of no confidence in the government and its officials. Parliament could instead pose written parliamentary questions only to the vice presidents and ministers, but not to the president.
Parliament would continue to have the authority to draft and enact laws, and in theory the president’s authority to issue decrees would not conflict with that role. But the removal of the bar on the president having formal ties to a political party would increase the president’s influence over parliament when the president’s party has a parliamentary majority.
Independence of judiciary
How do international legal experts assess the proposed constitutional changes in Turkey?
The Venice Commission, the Council of Europe’s advisory body on constitutional law, is concerned about the implications of the changes. On March 13, 2017, it issued an opinion on the constitutional amendmentsthat concluded that they would “lead to an excessive concentration of executive power in the hands of the president and the weakening of parliamentary control of that power” and that they “would introduce in Turkey a presidential regime which lacks the necessary checks and balances required to safeguard against becoming an authoritarian one.”
The Venice Commission also raised concerns that the president’s dual role as president and as a dominant force in parliamentary party politics would allow him to control judicial appointments both from the presidency and from parliament and thus “would place the independence of the judiciary in serious jeopardy.”
Extraordinary power with decrees
What about the timing of the decision to hold a referendum on the president’s powers?
Turkey is under a state of emergency imposed after a failed coup last July, allowing Erdoğan to head the cabinet and rule the country by decree, with weakened parliamentary and judicial oversight. The constitutional amendments put to referendum would in practice make permanent many of the emergency powers the president has already assumed.
Independent media in Turkey have been all but silenced, with over 160 media outlets and publishing houses closed down since July 2016, and over 120 journalists and media workers currently jailed pending trial. Over 100,000 civil servants have been summarily dismissed or suspended without due process and over 47,000 people have been jailed pending trial. They face charges of involvement in the coup plot and of association either with the Fethullah Gülen movement, branded a terrorist organization by the government, or with Kurdish political activism that the government considers is linked to the armed Kurdistan Workers’ Party (PKK). Among those jailed are the two leaders of the opposition Peoples’ Democracy Party (HDP) and 11 other members of parliament from the party.
The situation severely restricts the possibility for open public debate on the constitutional amendments and also for political debate by all elected parties in parliament. The courts have also placed in pretrial detention pending trial hundreds of Kurdish political party officials who would otherwise have been organizing a referendum campaign in the southeast against the constitutional changes. And politicians from the far-right opposition Nationalist Action Party (MHP) campaigning against their party leadership’s “yes” campaign have been physically attacked. The “yes” campaign led by the government and Erdoğan himself has dominated Turkey’s public space, print media, and TV channels, meaning that there has been no level playing field in the pre-referendum period.
The Venice Commission has expressed concerns about holding a referendum on the constitution in such a context, commenting that “the extremely unfavourable environment for journalism and the increasingly impoverished and one-sided public debate that prevail in Turkey at this point question the very possibility of holding a meaningful, inclusive democratic referendum campaign about the desirability of the amendments.”
