The E U calls on Turkey to address the concerns and recommendations of Venice Commission!
In recent years, constitutional reform has been very high on the Turkish agenda. The Venice Commission has expressed its support for a thorough constitutional reform that would replace the 1982 Constitution through a process as broad, open and inclusive as possible, including the opposition, civil society and the public opinion.5 The Venice Commission has also expressed its readiness to assist the Turkish authorities in this respect if they so wished; the Turkish authorities, however, have not sought the Commission’s assistance during the preparation of these constitutional amendments. Due to the circumstances pertaining in Turkey, the Commission nevertheless decided to issue its opinion before the referendum.
Attempts to launch a full constitutional reform process have, so far, not received the necessary political backing. However, the draft 18 articles under examination bring about a very extensive reform: through the modification of almost 50 constitutional provisions and the repeal of 21 other provisions, they aim at changing the Turkish polity to what the Turkish authorities have described as a “Turkish-style” Presidential system. This is not objectionable as such, but should be judged against the Turkish system as a whole, with a view to establishing in particular whether the fundamental principles of the separation of powers and of the need for checks and balances are respected. All these changes will be made by grafting new “presidential” provisions on an old constitution which was originally conceived as parliamentary. From a legal point of view, such a technique appears to be quite burdensome and will lead to many difficulties and uncertainties.
The multi-faceted nature of the proposed amendments makes detailed analysis of each reform beyond the scope of this Opinion. In this opinion, the Venice Commission will focus on three issues that are particularly important in the context of the rule of law, democracy and human rights: firstly, the timing and the regularity of the procedure of constitutional reform; secondly, whether the proposed reforms will enshrine a sufficiently strong separation of powers; thirdly, and as an aspect of the general separation of powers issue, whether the reforms will ensure sufficient independence to the judicial power.
The Venice Commission has previously stressed that “properly conducted amendment procedures, allowing time for public and institutional debate, may contribute significantly to the legitimacy and sense of ownership of the constitution and to the development and consolidation of democratic constitutional traditions over time. In contrast, if the rules and procedures on constitutional change are open to interpretation and controversy, or if they are applied too hastily or without democratic discourse, then this may undermine political stability and, ultimately, the legitimacy of the constitution itself. In this sense, the Commission has repeatedly stressed that a duly, open, informed and timely involvement of all political forces and civil society in the process of reform can strongly contribute to achieving consensus and securing the success of the constitutional revision even if this inevitably takes time and effort. For this to happen, states’ positive obligations to ensure unhindered exercise of freedom of peaceful assembly, freedom of expression, as well as a fair, adequate and extensive broadcasting of the arguments by the media are equally relevant.
In conclusion, the Venice Commission is of the view that the substance of the proposed constitutional amendments represents a dangerous step backwards in the constitutional democratic tradition of Turkey. The Venice Commission wishes to stress the dangers of degeneration of the proposed system towards an authoritarian and personal regime. In addition, the timing is most unfortunate and is itself cause of concern: the current state of emergency does not provide for the due democratic setting for a constitutional referendum.
Joint statement by High Representative/Vice-President Federica Mogherini and Commissioner Johannes Hahn on the Venice Commission’s Opinion on the amendments to the Constitution of Turkey and recent events
Brussels, 13 March 2017 – We have taken good note of the Venice Commission’s Opinion on the amendments to the Constitution of the Republic of Turkey adopted by the Turkish Grand National Assembly on 21 January 2017.
As highlighted by the Venice Commission’s Opinion, Turkey has the sovereign right to decide over its system of governance. We acknowledge the fact that the country is going through challenging times and stand by it in its fight against the scourge of terrorism. We will continue to support the country’s hospitality to refugees from war-torn areas in its close vicinity.
We appreciate that Turkey has announced actions to address the Council of Europe’s recommendations regarding the State of Emergency and bring the measures taken in line with European standards.
However, the Venice Commission’s comments on the proposed Constitutional amendments raise serious concerns at the excessive concentration of powers in one office, with serious effect on the necessary checks and balances and on the independence of the judiciary. It is also of concern that this process of constitutional change is taking place under the state of emergency.
The proposed amendments, if approved at the referendum of 16 April, and especially their practical implementation, will be assessed in light of Turkey’s obligations as an EU candidate country and as a member of the Council of Europe.
We encourage Turkey to pursue and further deepen its close cooperation with the Council of Europe and its bodies, and to address their concerns and recommendations.
Following the tensions of these last days between Turkey and some EU Member States, it is essential to avoid further escalation and find ways to calm down the situation. Decisions with regard to the holding of meetings and rallies in Member States are a matter for the Member State concerned, in accordance with the applicable provisions of international and national law.
The European Union calls on Turkey to refrain from excessive statements and actions that risk further exacerbating the situation. Matters of concern can only be resolved through open and direct communication channels. We will continue to provide our good offices in the interest of EU-Turkey relations.