HUMAN RIGHTS AND DEMORACY IN TURKEY
The Berlin International Human Rights Congress, Berlin, 1st-4 th October 2010
Ladies and Gentlemen,
It is a great pleasure for me to address such a distinguished audience on so significant an issue. I should also like both to thank and to congratulate the Foundation for the impeccable organization.
The subject matter, that is the inseparable combination of human rights and democracy, is a relatively late phenomenon in the long process of human evolution. However, as if to compensate for this setback, it has been one of the most debated, most popular items on the collective agenda.
This is understandable because, too many dimensions, too different aspects, too complex features need to be taken into account. There almost always are economic, social and cultural factors underlying democracy and human rights issues. History, geography, religion, traditions, to name a few of the variables, contribute to the ultimate state of affairs.
I – Reform Process in Turkey
A. Recent reforms
Turkey has been pursuing comprehensive human rights reforms at national level particularly since 2001. These reforms aim at strengthening democracy, protecting and promoting respect for fundamental rights and freedoms and consolidating the rule of law and the independence of the judiciary.
I am going to talk of two sets of reforms under this headline. One of them are constitutional reforms, the second are reforms that are carried out by amending existing laws, enacting by-laws or taking measures for their proper implementation.
The most important amendment in the Constitution in the field of human rights is the amendment of the article 90. According to the amended form of this article, international agreements in the area of fundamental rights and freedoms will prevail in case of conflict with the provisions of the national laws on the same matter.
A more recent constitutional reform was carried out with a referendum held on 12 September 2010. This reform package is supported by the 58 % of the people who voted. It constitutes a major step in the reform process.
As a result of this reform, human rights and fundamental freedoms have been expanded and the constitutional system is brought more in line with Turkey’s international obligations.
The amendments eliminated several shortcomings referred to in the judgments of the European Court of Human Rights. Furthermore these amendments prepared the ground for the implementation of several recommendations adopted by various international bodies. These bodies included:
– the Council of Europe Commissioner for Human Rights,
– the Venice Commission,
– the European Commission against Racism and Intolerance,
– the Monitoring Committee of the Parliamentary Assembly of the Council of Europe,
– the Committee on the Elimination of Discrimination against Women,
– the Committee on the Elimination of Racial Discrimination.
Among the improvements included in the recent Constitutional Reform are:
– Positive discrimination as a constitutional right for the disadvantaged members of the society,
– Constitutional guarantees for the protection of personal data,
– Constitutional guarantees for children’s rights,
– Broadening of the scope and extent of freedom of organization,
– Removal of some limitations on freedom of movement,
– Definition of the right of petition as a constitutional right,
– Measures for the establishment of an Ombudsman institution,
– Constitutional guarantees for the right to vote and to stand for election,
– Opening up of the decisions of the Supreme Military Council to the judicial scrutiny
– Judicial review for all disciplinary decisions against civil servants,
– Right of direct application to the Constitutional Court by individuals,
– Improvement in the composition of the Constitutional Court,
– Improvement in the composition of the Supreme Council of Judges and Public Prosecutors,
– Constitutional guarantees to prevent civilians from being tried by military courts.
2. Other reforms
The second set is composed of reforms carried out by amending existing laws, enacting by-laws or taking measures pertaining to the implementation of laws. A series of legal reforms have been materialized, including a complete overhaul of several basic laws.
a. Penal Code
The new Penal Code was enacted with a view to aligning its legal framework with the European standards and principles. It also includes a more liberal approach to the freedom of expression.
Public prosecutors used to take action too frequently in case they thought that individuals trespassed the limits of freedom of expression. Some courts used to follow up and punish the perpetrators of such trespassers. This overzealous attitude of the judiciary caused discomfort both at home and abroad. The Article 301 of the Penal Code that was considered as the source of this practice was amended in May 2008 in order to eliminate the discomfort. Now, the public prosecutors will not be able to initiate a legal action without the authorization of the Minister of Justice in cases where the State is a party.
b. Law on Foundations
The new Law on Foundations is aimed at further improving the situation of the non-Muslim community foundations, in the context of their international activities, including receipt of financial and/or material donation and assistance, registration of their immovable properties, as well as their representation at the Foundation Council, which is the ruling body of the Directorate General for Foundations.
c. Torture and Ill-treatment
Fight against torture and ill-treatment has been a priority item. From the outset, a policy of “zero tolerance” is envisaged and cooperation with the UN Committee against Torture (CAT) and the European Committee for the Prevention of Torture (CPT) has been helpful. Turkey also signed the Optional Protocol of the UN Convention against Torture.
d. Law on Combating Terrorism
Another recent development which is highly important and I am afraid somewhat delayed because of legislative complications, is the adoption of the amendments in July 2010 of the Law on Combating Terrorism. The amended law ensures that all child suspects under 18, without distinction as to their age, would be tried under the same system in the relevant juvenile courts.
Here we have a sore point: implementation is an area where Turkey has not been as successful as it aspired. That is to say, there have been and still are, from time to time, shortcomings in carrying out the reforms already adopted. Most of them arise from lack of information or neglect; in some cases we face deep-rooted mistrust, even resistance to change. A number of those cases have been taken to courts. We are aware of the problem and working on it.
The implementation of the laws adopted by the legislative body proves to be a much more colossal work than passing such laws, because for a government that controls almost two thirds of the seats in the parliament it is relatively easier to pass laws. However the proper implementation of these laws involves tens of thousands of law enforcement officers. There are public servants who developed a culture and tradition that may not be the same as the words and spirit of laws that are enacted. An extensive mobilization of training will be required in order to address this task.
As a result of this, numerous training programs are being launched as the second phase of the reform process. Most of these programs aim at improving the performance of the government officials and security forces -police and gendarmerie- that are expected to implement these laws.
In the same context, members of the judiciary, notably judges, prosecutors and lawyers from all levels have received training on human rights issues.
By means of these training programs, we hope to achieve a change of mentality within the State mechanism. These training programs are being expanded so that students of all levels, civil society and the public at large will eventually be included.
Turkey pursues a close and constructive cooperation with international human rights bodies. It has extended standing invitation to the UN Special Procedures since 2001.
The relevant Turkish authorities carefully examine and give due consideration to all reports and recommendations produced by international bodies, either by intergovernmental organizations or NGOs, including the annual human rights reports of the State Department of the USA and the reports of the US Commission on International Religious Freedom.
The role of the judiciary has to be taken up as a separate issue because it affects the reform process to a considerable extent.
The executive power may pass laws by using its parliamentary majority. It may also use its power to move the law enforcement officers. However it cannot do much if the judiciary is slow to adapt itself to the speed of reforms.
By definition the judiciary power is more conservative and slow in evolution as compared to legislative and executive powers, because the case law is one of the major sources of reference for the judges. The case law is a compilation of the past judgments. In other words it is composed of judgments made by the courts in the past on similar cases. Therefore if there is a court judgment confirmed in the past by the supreme judiciary bodies, it may not be easy for a court to judge in a different way. This constraint slows down the evolution of the judiciary.
In a country where the rule of law prevails the government should not be allowed to interfere in the work of the judiciary, but no matter how meticulously a law is drafted, the legislative and executive powers may not foresee all circumstances to which this law will be applied. If the judge is faced with a case that is not covered by the text of the law, he should be able to grasp the sprit of it, in other words he should be able to read properly the intention of the low maker. This could be achieved only if the judiciary and legislative powers are at the same wave length. If they are not, the capacity of the executive and legislative powers will be hindered.
Having said this, it is not easy, on the other hand, to claim that all decisions made in recent years by the high courts in Turkey were free from the political taint.
II – Recent Developments in the Context of Democracy
A – Historical Background
Turkey’s experience in parliamentary democracy is almost one and half century old. It started in 1876, in the Ottoman era, with the proclamation of the constitutional monarchy and with the introduction of a bicameral parliament. However, shortly after, the Ottoman Sultan Abdulhamid II suspended the activities of this parliament using as a pretext the outbreak of the Turkish-Russian war of 1977-78. They remained suspended more than 30 years until 1908.
The beginning of the twentieth century witnessed elections as the empire was about to collapse. In 1920 a new parliament convened not in the capital city Istanbul but in Ankara from where the nationalist liberation war was conducted. Two and a half year later Turkey entered the republican era with the proclamation of the republic in 1923.
The republican Turkey carried out sweeping reforms between 1923 and 1933. It must be pointed out that the women of the young republic could vote decades before many of their sisters in other countries could. Mid-thirties saw the introduction of a multi-party system. There were military interruptions too. The most recent one of them took place as recently as in 1980
The acts of terror that were carried out in various places of Turkey were used in the past as an excuse to keep on hold the democratization process of the country. The present government holds a different view and believes that more democracy does not necessarily mean more terror. On the contrary, terror may be more easily isolated and better contained when fundamental rights and freedom are more widely enjoyed.
The role of Turkey’s membership process
The chapter on democratization process will not be complete without mentioning the positive role that Turkey’s accession process to the EU played on the progress of the democratization of the country.
It is true that Turkey carried out many of these reforms not only for the sake of joining the EU, but for the sake of further promoting the standards enjoyed by its people. Turkey had to carry out these reforms with or without the EU process. However, without an EU perspective it would take much longer to carry out the same reforms.
Furthermore EU membership will help consolidate the reforms and will not allow the future governments in Turkey to step back from the already achieved reforms.
One does not want to bore the audience with statistics, yet the brief outline above is definitely not sufficient to reveal the inherent dynamism of the country. The human resources-young population-enthusiastic entrepreneurs, the ongoing migration from the countryside towards the cities, the huge metropolis’ of ten, twelve million residents offering new opportunities and challenges, an expanding economy and numerous other components of this dynamism should be added to the picture. The young “internet generations” are more open to progress, more keen on self expression. Social, cultural, business, industrial, artistic, name it, all kinds of organizations are growing everywhere. New hopes are blossoming in the eastern part of the country, there already are positive developments, a much improved atmosphere-an expectant mood prevail in many places. People want more of everything. They want a better life, more freedom, and more democracy.
T needs and the requirements of the public will be better served once the concrete steps are taken in order to translate into action what have been envisaged in the constitutional amendments.
III – Conclusion
In my final remarks I should perhaps stress the essential point of this discussion: Democracy is not easy to achieve without full human rights. It takes time, like centuries to be more specific and patience and plain, old fashioned hard work. It needs an appropriate level of economic and social development. Again, statistics attest to the basic fact that more advanced economies afford and enjoy better democracies and enhanced human rights. What could be termed as “democratic culture” needs to be nurtured.
Let me mention one more component, a vital one in my opinion. We need democracy not only in a number of advantageous, fortunate countries or places, but everywhere. Particularly in our time and age, democracy should be global, benefiting everyone. Human rights should be for every single one of us. The more fortunate countries, groups and individuals should join their efforts to that end.