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31. Remembering 1962: The Turkish constitutional referendum in context a series on Turkish constitutionalism, part 1

Author:
Mason Hill
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Harvard Journal of Middle Eastern Politics and Policy
Institution:
The John F. Kennedy School of Government at Harvard University
Abstract:
This is the first in a three part series on Turkish constitutionalism one year after the 2017 constitutional referendum. Constitutions are nations’ mission statements, and articulate pre-political commitments that turn residents into citizens, and borders into a nation. In Turkey, generations of political leaders have used constitutional reform as an opportunity to set their political agenda and highlight their priorities. The 2017 referendum must be understood in the context of a democracy where voters have experienced successive constitutional reforms aimed at complementing the mission each new generation of leaders gives itself. A view of modern Turkish history reveals the tendency of leaders to use constitutional reform to address deficiencies in their respective administrations, and reflects the latent tension between populism, military intervention, and constitutional integrity.
Topic:
Politics, History, Law, Reform, and Constitution
Political Geography:
Europe, Turkey, and Middle East

32. Turkey’s constitutional referendum, one year later – a series on Turkish constitutionalism, part 3

Author:
Mason Hill
Publication Date:
01-2018
Content Type:
Journal Article
Journal:
Harvard Journal of Middle Eastern Politics and Policy
Institution:
The John F. Kennedy School of Government at Harvard University
Abstract:
This is the third in a three part series on Turkish constitutionalism one year after the 2017 constitutional referendum. the 2017 Constitutional Referendum have only entrenched that reality. Erdogan’s dominance in Turkish politics should not obscure the fact that the individual office holder rather than an ideologically-grounded bloc is now the fulcrum upon which Turkish politics shifts. The Justice and Development Party (AKP) that came to power promising reform, religious pluralism and market-friendly economic policies has become a vehicle for Erdoğan’s personal ambition. After the Gezi Park protests and amid allegations of his son’s corruption, Erdogan became an increasingly polarizing personality in Turkish politics who weighed down the AKP brand in the 2015 parliamentary elections. Yet Erdoğan’s popularity returned during the pivotal moment of the 2016 coup attempt, when he appeared in a live interview with a reporter via Facetime. By the time 2017 referendum campaign, Erdoğan personally rather than AKP parliamentarians was the medium around which responses were polarized. The extension of Erdoğan’s personal control over the levers of power was particularly apparent in the referendum’s changes to the structure of the legislative and judicial branches of the Turkish government, granting legal justification to Erdoğan’s de facto force of personality regime. Developments over the past year have made clear that Turks are increasingly casting votes for and against candidates rather than parties.
Topic:
Politics, Elections, Constitution, Recep Tayyip Erdoğan, and Coup
Political Geography:
Europe, Turkey, and Middle East

33. Analysis of Constitutional Changes Concerning Justice

Author:
Valeria Klymenko and Hanna Pashkova
Publication Date:
06-2018
Content Type:
Journal Article
Journal:
National Security and Defence
Institution:
Razumkov Centre
Abstract:
Independent judiciary is an essential attribute of a democratic government and an important factor in establishing the Rule of Law. Events of the late 2013 and early 2014 confirmed the presence of serious problems in the Ukrainian judiciary. Not only it was inable to resist the arbitrary rule but also condoned and encouraged manifestations of autocracy. This objectively angered the society, which was receptive to immediate measures aimed at restoring confidence in the judiciary and the right to a fair trial. As these measures failed to deliver tangible positive results, the judiciary remained disoriented and demoralised. The need to reform the constitutional basis of the functioning of the judiciary became apparent. The Constitutional Commission established by the President of Ukraine has developed draft amendments to the Constitution (concerning justice), which on 2 June 2016 were adopted by the Parliament. Implementation of constitutional changes through necessary regulatory mechanisms was translated into action by adoption of several important laws – “On the Judiciary and the Status of Judges”, “On the High Council of Justice”, “On the Constitutional Court of Ukraine”, “On Agencies and Persons Performing Compulsory Enforcement of Court Decisions and Decisions of other Authorities”, and “On Amendments to the Commercial Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Justice of Ukraine and other Legislative Acts”. The process of implementing amendments to the Constitution concerning justice and the status of the Constitutional Court implies introduction of their provisions and legal mechanisms in the practice of establishing the judiciary bodies, appointment of judges and improvements in legal proceedings based on the new framework. The Constitutional Court, in turn, should gain genuine social recognition and respect by improving important elements of its status through exemplary adherence to its constitutional powers. In these processes, it is vital to promptly identify problems linked to inadequacy and unconstitutionality of certain provisions of the above laws, as well as the means of their application. This analytical report and all the materials presented in this publication are part of these efforts.
Topic:
Law, Public Opinion, Reform, Constitution, Justice, and Judiciary
Political Geography:
Europe and Ukraine

34. Constitutional Process: Current Results, Risks and Prospects

Author:
Valeriya Klymenko
Publication Date:
01-2016
Content Type:
Journal Article
Journal:
National Security and Defence
Institution:
Razumkov Centre
Abstract:
The current stage of the constitutional process was initiated by the President of Ukraine Petro Poroshenko in March 2015 with the establishment of the Constitutional Commission.1 Already on 1 July 2015, the Parliament registered the Draft Law of Ukraine “On Amendments to the Constitution of Ukraine – on decentralisation” (Reg. No. 2217a), developed by the Constitutional Commission and submitted by the President of Ukraine. On 31 August 2015, the day this bill was approved, grenades exploded in front of the Parliament on the Constitution Square. The presence in this bill on decentralisation of the controversial Paragraph 18 “Transitional Provisions” did not allow entering the process of final adoption of amendments to the Constitution (on decentralisation) in compliance with requirements of Article 155. On 25 November 2015, the subsequent Bill “On Amendments to the Constitution – on justice” (Reg. No. 3524) was registered in Parliament. In February 2016, the bill was approved, and on 2 June 2016, finally adopted by the Verkhovna Rada of Ukraine. For the first time since the “political reforms” of December 2004, significant amendments to the Constitution of Ukraine were legally introduced. The adoption of a decision by Parliament to amend the Constitution of Ukraine in the part of justice, did not complete the reform of the judiciary. The fact that a number of amendments to the Constitution raised deep concerns among representatives of the expert community, and even more the judicial community, cannot be ignored. However, a number of updated provisions of the Constitution, implemented in effective mechanisms of special laws, are capable of positively influencing the judiciary. In this regard, firstly, the adoption by Parliament of the Law of Ukraine “On Judicial System and Status of Judges” in an unconstitutional way, with a gross violation of the Verkhovna Rada requirements cannot but cause concern. Second, the main content of the implemented law, introduced to the Parliament without obtaining opinions of the Scientific Experts Office or the Venice Commission, or discussing it in the expert community, can cause a real chaos in the process of implementing constitutional changes. The question remains uncertain about the prospects of the Draft Law of Ukraine “On Amendments to the Constitution of Ukraine – on human rights and freedoms” prepared by the Working Group of the Constitutional Commission. The analytical report has summarized theoretical grounds of regulations contained in the draft law. Since the work on the draft amendments to the Constitution was completed by the Working Group, the Constitutional Commission must make a final conclusion as to its readiness for submission to the President, who will decide on the introduction of a relevant bill to the Verkhovna Rada of Ukraine. Both aspects of constitutional amendments were analysed in the study by the Razumkov Centre, which is reflected in the content of the Analytical Report.
Topic:
Human Rights, Reform, Constitution, and Judiciary
Political Geography:
Europe and Ukraine

35. Schizophrenie du droit international

Author:
Ekaterina Yahyaoui Krivenko
Publication Date:
04-2015
Content Type:
Journal Article
Abstract:
A poem by Ekaterina Yahyaoui Krivenko.
Topic:
Globalization, Human Rights, International Law, and Constitution
Political Geography:
Europe and Global Focus

36. Judicial Reform in Ukraine: Current Results, Prospects and Risks of the Constitutional Stage

Author:
Valeriya Klymenko
Publication Date:
01-2013
Content Type:
Journal Article
Journal:
National Security and Defence
Institution:
Razumkov Centre
Abstract:
The process of establishing the judiciary in Ukraine since its independence has been quite inconsistent and contradictory – not only due to its heritage, but also because it has often been accompanied by acute political confrontation and attempts of opposing political forces and governmental teams to gain control over the judiciary. Reformation activity that was initiated and implemented in this period did not lead to establishment of an independent and fair court in Ukraine. After the 2010 Presidential Election, the new President Viktor Yanukovych announced that another judicial reform was going to take place, which led to dramatic changes in the national judiciary. Analysis of these changes and their consequences gives reasons to assume that, through this reform, the President managed to enhance his control over judicial authority, to restrict its independence, and to weaken self-government of judges. Significant rotation amongst judges also took place. In general, it has considerably deteriorated judicial situation in Ukraine. Today, the judicial reform has reached its final – constitutional – stage. On 10 October 2013, the Verkhovna Rada pre-approved the Presidential draft Law “On Amendments to the Constitution of Ukraine Strengthening the Independence of Judges”. The corresponding Decree of the Verkhovna Rada of Ukraine was supported by 244 deputies. All opposition factions of the Parliament (Batkivshchyna, UDAR, Svoboda) manifested against adoption of the law claiming that implementation of its provisions would compromise not only the judicial independence, but also the democracy in Ukraine. The course of preparation and adoption of this draft Law (obtaining, inter alia, positive resolution of the Venice Commission) revealed tendencies that have been characteristic of the 2010 judiciary reform since its initiation. Thus, national legislation in the recent years has been using European standards in quite a peculiar way by borrowing the form and filling it up with “appropriate” contents. In fact, what we have now is not an approximation of national laws to international judicial norms and standards, but adjusting these norms to situational needs by using controlled and dependent judiciary in Ukraine. Hence, this is a selective adoption of recommendations and guidelines of international institutions. As it is widely known, the Venice Commission gave a generally positive opinion on the draft Law mentioned above. It was this draft (as well as the resolution of the Constitutional Court of Ukraine and the declaration signed by 30 deputies of the Parliamentary Assembly of the Council of Europe) that the President’s representative and deputies of the Party of the Regions faction mostly relied on when encouraging their colleagues to support pre-approving the bill. Accepting the above-mentioned documents of European institutions we should obviously have some reservations. Firstly, the draft law contains genuine “European” provisions able to deceive European structures that evaluate new laws from their own European perspective. Secondly, current evaluations of the “Ukrainian progress” by European institutions have somewhat enforced nature stipulated by soon-to-happen Vilnius summit and possibly by the Association Agreement to be signed between the European Union and Ukraine at the summit. While mainly stressing its positive progress towards the association, Europe also seeks to maintain Ukraine’s European integration prospects. Thirdly, there are reasons to assume that current authorities have used peculiar means to push its legislative initiatives not only inside (in the Parliament and Constitutional Court), but also outside the country – on the international realm. Preliminary approval of the Presidential draft Law on amending the Constitution has had a dramatic impact on the judicial reform. On the one hand, it has enabled to legitimise the key legislative changes approved in 2010 and to enshrine provisions in the Constitutions, implementation of which may politicise the judiciary to an even bigger extent and increase the dependence of judges. On the other hand, it has generated a political and expert discussion aimed at searching for a compromise, which results might involve the following: excluding the most risky provisions for the independence of judges and courts, at least, and preparing a new bill approved by all key political forces of the country, at best. Current situation calls for ensuring fair and independent justice, as well as stimulates governmental representatives, opposition and the society to look for optimal ways out.
Topic:
Governance, Reform, Constitution, Judiciary, and Norms
Political Geography:
Europe and Ukraine