TURKPULSE No:51..........OCTOBER 1st, 2001
Turkish
Parliament is on the eve of a resounding
victory about amending more than 30 articles of the Constitution in a bid to
conform to EU rules. Only one of the 37 articles may be rejected by
Parliament this week. A few others may remain between 330 votes and 367, in
which case it
is determined by the
nation with a referendum. The rejected article is not important in practice
as the existing wording of the rule is enough to satisfy the EU.
Thirty-six
of the 37 amendments to the 1982 Constitution have been passed in parliament
in record efficiency at the Constitutional Committee and in the first round
of debates and voting on the House Floor. This week, after President
Sezer’s inauguration of the legislative year on October 1st,
the House floor is expected to finalise this procedure to open up a new page
in Turkish democracy.
The President’s sensitivity about “transfer of sovereignty”
The
only amendment that failed to pass through parliament was what Pulse
was unique about forecasting – the superiority of international
treaties on Turkey’s national legislation. ( analysis of current events
No.1.) Certain media and political quarters put it down to discord and
strife in the coalition, with the MHP putting hurdles in the way of the
government’s functioning, but in reality it is far from it. As reported by
Pulse beforehand, the
President had warned the government about the setbacks of amending the
constitution with international treaties and this induced some coalition
members to be careful about this amendment.
The
last paragraph of Article 90 of the Constitution reads, “International
agreements duly put into effect carry the force of law. No appeal to the
Constitutional Court can be made with regard to these agreements, on the
grounds that they are unconstitutional.”
Despite
this provision, doubts appeared at times about which is superior, a national
law or the provision of the international agreement. The tendency was to
give priority to international agreements under the above rule, but some
jurists argued that a national law and an international agreement are of
equal value; whichever is legislated later supersedes the other. To put an
end to this argument, the government introduced a provision among the 37
amendments to the effect that “In the
event of the clashing of a law with an international agreement, the latter
will be enforced.”
President
Sezer told the House Speaker Izgi that it could be interpreted as the
“transfer of sovereignty” and with his influence this amendment remained
far behind the 367 votes needed for its legislation. It was even below the
330 votes needed for the amendment to be determined by the nation with a
referendum.
Deputy
PM Mesut Yilmaz, who is the driving force behind these amendments for him to
be able to go on with the EU negotiations for Turkey’s accession to the
Union, said that the rejection of the government’s proposal was not
important and that they could withdraw that article during the second round
of voting, because nothing would change in practice.
Indeed,
the Fifth Department of Danistay (the
Highest Administrative Court) has already ruled that in the event
of a dispute between a national law and an international agreement the
latter would have the upper hand because they cannot be brought up with the
Constitutional Court for repeal. The binding rules of the convention,
therefore, remain in force and cannot possibly be regarded as
unconstitutional.
The practice of European countries over human rights
The
Turkish Judge at the European Human Rights Court, Riza Turmen, said on
Monday (1st) that the European countries had already solved this
problem regarding supremacy of the European Human Rights Convention (EHRC)
on their national legislations. Only recently the UK passed a bill “to
integrate the EHRC with its national legislation”. Norway
expressly declares that the Human Rights Convention is above national laws.
The Netherlands regards it as part of its constitution. Austria treats it
above its constitution. France stipulates that the EHRC is above national
laws.
All
the new democracies of Europe treat it as above national legislation. In
Albania it is part of the constitutional order. The Czech Republic,
Slovakia, Poland, Slovenia, Croatia, Macedonia, Hungary, Bulgaria, Romania,
Latvia, Estonia, Russia, Ukraine, Georgia, Moldova, and Lithuania all regard
the Human Rights Convention above their national legislation, says Riza
Turmen.
As
for the argument about the “transfer of national sovereignty,” it is
splitting hairs, because the European Convention already rules out the
possibility of trespassing on national sovereignty.
Critical week for amendments
Turkish
Parliament’s performance over these amendments was super, both at the
Constitutional Committee and the first round of debates in the House. Most
of the articles received more that 400 votes of the plenary session of 550
and enjoyed a comfortable majority. Four articles had over 390 votes,
including the critical one about Kurdish teaching and broadcasting. One
received 383 votes and they all seem to have quite a margin for legislation
at the second round.
Only
three articles are at the critical level with a marginal majority over the
legal requirement of 367 votes. They are Article27 concerning AK Party
Chairman Tayyip Erdogan, which received 369 votes, only two more than the
limit. An even more critical one was Article 15 about abolishing the death
sentence with 368 votes. The most critical, with only 355 votes, was about
Article 28 concerning curbing parliamentary immunity. If these votes do not
change at the second round, only the immunities of MPs will have to be
referred to the referendum and the other 35 amendments will have to be
legislated by the end of this week – a tremendous achievement and prestige
for Turkish Parliament. As for the potential referendum, it is a foregone
conclusion that the nation will pass it, because everyone complains that
parliamentary immunities should be restricted to parliamentary work only. It
is hoped that such a costly referendum will not be necessary and that
Parliament will not slightly overshadow its stunning achievement in store. uras@ada.net.tr
- October 1st, 2001