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131. 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

132. Monitoring Report Making of a New Constitution in Turkey: October 2011-January 2012

Author:
Ferhat Kentel, Levent Köker, Mehmet Uçum, and Özge Genç
Publication Date:
02-2012
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
The redefinition of relations between state, society and individuals in the framework of a new state philosophy in Turkey and the transformation of the mentality of both the state and society along this line will carry Turkey onto a more democratic, pluralist and conciliatory political sphere. One of the milestones of this process is the making of a new constitution, that is initiated by the Turkish Parliament following the general elections of June 12, 2011, and expected to culminate in the adoption of a new founding document. An ideal constitutional process should be based on the demands and contributions of social groups and individuals and groups should be empowered to engage in politics in a way that has not yet been possible during the preparation of any other constitution in Turkey. On the other hand, presently, it is obvious that on a societal level there is an environment of lively yet stifled debate regarding the new constitution, as well as a number of flaws and issues in terms of how the process is functioning. However, the Constitutional Reconciliation Commission, formed in October 2011 with equal participation from all political parties represented in the parliament, and its members who have reached a consensus on the commitment to establish a new constitution with apparently genuine effort, create the expectation that the preparation of a new constitution will soon make headway. In the subsequent stages, political actors, civil society and media should play a significant role in terms of both contribution to and monitoring of the process. The Turkish Economic and Social Studies Foundation (TESEV) Democratization Program aims to actively engage in the creation of a new constitution through monitoring, documenting and reporting on the process undertaken with the objective of meeting society’s expectations. Within the scope of this project, the role, contribution and performance of the parliament, political parties, non-governmental organizations and the media are monitored and both positive and negative developments are documented. Solution-oriented interventions that provide guidance will also be made whenever the process comes to a deadlock throughout the project. Via parallel projects, the Democratization Program will also be conducting scientific, informative, and solution oriented work regarding issues that obstruct the reform process and contributing to create a platform of democratic debate in Turkey.
Topic:
Law, Constitution, Justice, and Judiciary
Political Geography:
Turkey, Middle East, and Mediterranean

133. Expectations of the Turkish Society from the New Constitution

Author:
Salih Akyürek
Publication Date:
10-2011
Content Type:
Special Report
Institution:
BILGESAM (Wise Men Center for Strategic Studies)
Abstract:
This study aims at contributing to Turkey’s preparation efforts of the new constitution and reflecting Turkish society’s demands and expectations from the new constitution. Likewise, BILGESAM (the Wise Men Center for Strategic Studies), which conducts activities for the public interest, intends to designate the main pillars of the new Turkish constitution in line with the public’s demands. BILGESAM also aims at presenting this report to the Turkish public and law-makers, thereby contributing to the preparation phase of the new constitution. The problems and difficulties in front of Turkey’s democratization path indicate that there are still many steps to be taken for the country’s democratization process. It is clear that Turkey needs a more liberal, more democratic political atmosphere. First of all, there should be legal arrangements that will address all walks of life and that mainly deal with democratic and cultural rights for equality, justice and freedoms.
Topic:
Democratization, Politics, Constitution, and Society
Political Geography:
Turkey and Middle East

134. Towards Turkey’s New Constitution

Author:
M. Murat Erdoğan and Serap Yazıcı
Publication Date:
04-2011
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
Turkey’s need for a new constitution is accepted by almost everyone today. In fact, this was a need that has been in existence since the day the 1982 Constitution was made, for the 1982 Constitution was not only antidemocratic in terms of the method it was made, it also did not fit the ideal of a democratic and pluralist-liberalist society in terms of its content. Indeed, with characteristics such as its official ideology, its hierarchical model that renders the society subject to the state, its unionist-uniformist structure that sees differences and diversity illegitimate and its sacrificing freedom for authority, the 1982 Constitution is far from the standards of today’s democracies, and goes against the structure and needs of the society in Turkey. Since the day it came into effect, various amendments have been made in the 1982 Constitution, essentially as a result of this need. Yet, although these amendments, particularly those made in 2001 and 2010, made considerable contributions to the liberalization and democratization of our society, this situation has not removed Turkey’s need to make a completely new constitution. Moreover, these amendments have also disturbed the current constitution’s integrity within itself. On the other hand, in the face of the will of voters revealed in the 2010 referendum on the constitutional amendments, making a new constitution has now become an urgent task that can no longer be ignored. During the last few years in Turkey, the method that should be pursued in making the new constitution has been broadly debated in the public. Foreseeing that political parties would open to public debate their own views and suggestions on the new constitution during their election campaigns, our working group had already announced to the public that the parliament formed at the end of this election would have the power to make the new constitution. Since then, various civil initiatives and formations have carried out activities to collect the demands of the people on the matter of the constitution, or opened their own suggestions to public debate. Meanwhile, news that some major political parties were also in similar preparations appeared in the media. As a result, in line with our own expectations and foresights, it is understood that this election campaign will also become a constitution campaign and that the new parliament formed after the June 2011 elections will embark on the task of making a new constitution. Accordingly, this situation has made it urgent for TESEV, a non-governmental organization, to share with the public its main views and suggestions regarding the new constitution.
Topic:
Law, Reform, Constitution, Justice, and Judiciary
Political Geography:
Turkey, Middle East, and Mediterranean

135. Toward a Solution to the Kurdish Question: Constitutional and Legal Recommendations

Author:
Dilek Kurban and Yılmaz Ensaroğlu
Publication Date:
06-2010
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
There is more to the dominance of “rule of law” or “supremacy of law” in a state than the mere availability of a constitution or laws, or the presence of judicial institutions. Indeed, it is a fact of history that even the bloodiest dictatorships had their idiosyncratic laws and courts. In addition, there are countless historical examples of tyrannical and oppressive policies being implemented through courts. Thus, in paying special attention to the matter, international human rights law emphasizes in the Universal Declaration of Human Rights that “…it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.” Article 3 of the Statute of the Council of Europe follows suit: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms…” Article 1 of the European Convention on Human Rights, in addition, states: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” These and other instruments of law confer on the states substantial responsibilities for the protection of human rights. Of a state’s obligations in that regard, the most important include constitutional and legal recognition of citizens’ human rights, non-interference in individuals’ exercise of those rights as long as such exercise does not violate the freedoms of others, and protection of those rights against interventions by others. These obligations have also become sources and criteria for a state’s claim to legitimacy. In other words, states are now considered to be legitimate to the extent they recognize and protect human rights. As a matter of fact, the protection of states’ rights to sovereignty cannot hold its ground against human rights, thus no state can have recourse to the ‘non-intervention in domestic affairs’ discourse in the face of violations within that state’s borders. The judiciary is the most important mechanism that will check the compliance of government policies and practices with the law and protect citizens’ rights and freedoms. This is why all acts and transactions of the administration need to be subject to judicial review in a state where rule of law prevails. In short, the judiciary is the one and only power that will put the principle of the rule of law into practice. In order for the judiciary to serve that function, that is, to protect human rights, it is indispensable that constitutional and legal arrangements be compatible with human rights law. Put differently, implementing the principle of rule of law necessitates that the law should, instead of siding with the state, have an autonomous standing vis-à-vis the state. The law must maintain equal distance to the state and the citizen. Otherwise, it will not be able to serve its arbitral function between the two sides, and as a result, its legitimacy becomes contested. Considering Turkey in this light, one sees that the legal framework has adopted the ideology of creating a homogenous society and a modern nation, instead of securing all individuals’ rights. Founded as a modern state upon the remnants of the multi-religious, multilingual, and multiethnic Ottoman Empire, the Turkish Republic decided that it would not be possible for it to realize the plans to construct the new nation without denying room to the distinct identities. In line with the secularist and nationalist policies pursued as an outgrowth of this approach, the legal framework underwent a complete overhaul. It has become widely accepted today that Kurds were one of the primary targets of these policies. As a matter of fact, in addition to general legal and constitutional amendments necessary for a Turkey committed to human rights and the rule of law, a number of particular arrangements are also required for a lasting and democratic solution to the Kurdish Question. Constituting the main focus of this report, these arrangements can be broken down into two groups: constitutional and legal. Although the constitutional articles and legal provisions examined in detail and the regulations and statutes which occupy lesser space in the report might appear to have a general character and do not include the words “Kurd” or “Kurdish”, they are essentially instruments aiming to restrict Kurds’ fundamental rights and freedoms and practically causing indirect discrimination against the Kurds. It goes without saying that several administrative measures that do not necessitate any particular legal arrangements must also be taken to solve the Kurdish Question. Discussed as part of the debates on the ‘democratic initiative’, some of these measures include the restitution of names in Kurdish and other languages to places plastered with Turkish names, removal of nationalist slogans etched by the state onto mountain slopes in Turkey’s eastern and southeastern region, changing the militarist names given to schools in the same region, and appointment of Kurdish-speaking public servants in the region to facilitate the use of Kurdish language in accessing public services. Though they are outside the scope of this report, these administrative steps and similar others need to be negotiated upon with Kurdish political representatives and opinion leaders and put in practice soon.
Topic:
Human Rights, Law, Constitution, Legislation, and Kurds
Political Geography:
Turkey, Middle East, and Kurdistan

136. The Constitutional History of U.S. Foreign Policy: 222 Years of Tension in the Twilight Zone

Author:
Walter A. McDougall
Publication Date:
09-2010
Content Type:
Special Report
Institution:
Foreign Policy Research Institute (FPRI)
Abstract:
In 1973, Congress passed the infamous War Powers Resolution (WPR), over Richard Nixon’s veto. It was perhaps the most ambitious Congressional effort to bridle the President since the battle with Andrew Johnson over Reconstruction. The WPR is worth reading—once—then forgetting, because its convoluted, contradictory, and doubtless unconstitutional mix of instructions, restrictions, and ticking clocks has never been honored by any administration or upheld by any court. Presidents Gerald Ford, Jimmy Carter, Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush all dispatched U.S. forces into combat situations without paying more than lip service to the WPR. In 1990, following Saddam Hussein’s invasion of Kuwait, President Bush stationed 100,000 personnel in Saudi Arabia. He sought no authorization and, in fact, informed just one member of Congress: Senator Sam Nunn (D., Ga.). When he then prepared Operation Desert Storm to liberate Kuwait, 54 Congressmen led by the chairman of House Armed Services Committee, Berkeley radical Ron Dellums (D., Calif.), filed for an injunction to stop the war. U.S. District Judge Harold H. Greene ran for cover. Noting that 54 fell far short of a majority, he judged the case “not ripe for judicial determination.”
Topic:
Foreign Policy, War, Governance, Law, and Constitution
Political Geography:
United States

137. Shoring up the Right to Vote for President: A Modest Proposal [with Panel Discussion]

Author:
Alexander Keyssar
Publication Date:
07-2003
Content Type:
Journal Article
Journal:
Political Science Quarterly
Institution:
Academy of Political Science
Abstract:
ALEXANDER KEYSSAR argues that the 2000 presidential election has made clear the desirability of a constitutional amendment guaranteeing to all American citizens the right to vote for president and to have those votes determine each state’s vote in the electoral college. Tracing certain features of the history of suffrage in the United States, he maintains that such an amendment would make the Constitution consistent with the now broadly based consensus (not present at the nation’s founding) that voting is a right that inheres in all citizens. THE PANELISTS (D. Caraley, L. Greenhouse, S. Issacharoff, R. Pildes, G. Pomper, J. Rakove, R. Shapiro, R. Smith) discuss the points raised by the Keyssar article. They end up with consensus on the need for a constitutional right to vote for president, but have some differences on additional aspects of reforming the system.
Topic:
Constitution, Domestic Politics, Voting Rights, Presidential Elections, and Electoral College
Political Geography:
United States of America

138. Why Americans Deserve a Constitutional Right to Vote for Presidential Electors

Author:
Demetrios James Caraley
Publication Date:
03-2001
Content Type:
Journal Article
Journal:
Political Science Quarterly
Institution:
Academy of Political Science
Abstract:
DEMETRIOS JAMES CARALEY argues that the Constitution needs to be amended to give Americans the constitutional right they believed they had but the Supreme Court in Bush v. Gore denied--the right to vote for and select the president.
Topic:
Elections, Constitution, and Domestic Politics
Political Geography:
United States of America