4th Constitution Writing Competition

Bahçeşehir University Faculty of Law hosted the fourth of its now-traditional Constitution Writing Competition. The 4th Constitution Writing Competition, on the topic of "Parliamentary Immunity", concluded yesterday.

The 4th Constitution Writing Competition, organized by Bahçeşehir University Faculty of Law on 4 January 2009, has concluded. Among the groups that drafted a new provision on "Parliamentary Immunity", regulated in Article 83 of the Constitution, first place went to the group consisting of Said Kaşka, Veli Dündar, Yunus Becit, Zeynep Demirkale and Zeynep Polat.

In the competition, in which the audience also had a say in the results, second place went to the group consisting of Kerim Bölten, Lütfiye Begüm Beyaz, Melis Öktem, Nazlı Koç and Ömer Erim. The third place award went to the group consisting of Ali Taşar, Aybüke Orhan, Başak Özbek, Beril Boz and Burcu Körükçü.

In the 4th Constitution Writing Competition, the jury, consisting of Bahçeşehir University Faculty of Law faculty member Prof. Dr. Süheyl Batum, research assistants Sinan Altunç and Serkan Köybaşı, and Istanbul Commerce University Faculty of Law research assistant Seda Akay, found the provision of the winning group more creative than those of the other groups. According to this provision, a Parliamentary Legislative Immunity Supervisory Board is envisaged for lifting the immunity of members of parliament. The powers of this board, in which the political party groups in parliament are equally represented, include deciding whether arrest and other measures restricting the liberty of members of parliament should be applied. In addition, under the group's provision, legal proceedings continue despite immunity in cases requiring heavy penalties, paving the way for the execution of sentences imposed on members of parliament.

The jury, which believed that a provision along these lines could provide a solution to existing problems, also found the answers given by the group members to the questions asked during the competition satisfactory.

The Traditional Constitution Writing Competition, first held in the spring semester of the 2007-2008 academic year, is an event organized to give Bahçeşehir University Faculty of Law students deeper knowledge of the Constitution, one of the foundations of the rule of law, and to examine controversial constitutional issues based on the ideas of young lawyers.

Information on the Topic of the Competition

The institution of immunity, which emerged to prevent governments from putting pressure on the opposition, has in its current form turned into a situation that also harms the principle of equality among citizens. How can the institution of "Legislative Immunity" in Article 83 of the 1982 Constitution be reorganized to correct this situation? What kind of provision should be made so that immunity can be used in line with its purpose? Five teams of five students each, selected from among the students taking the Faculty of Law's Constitutional Law course, sought answers to these questions.

Work of the First-Place Group:

GENERAL RATIONALE

This draft envisages a number of changes to the institution of "Legislative Immunity" in Article 83 of the 1982 Constitution, in line with current problems and related provisions in contemporary democratic countries.

Today, as the education levels of the individuals who make up society rise and they engage more consciously with current issues, the broad legislative immunity that was accepted unquestioningly by society in the past now disturbs the public conscience and has become antidemocratic. The office of member of parliament is perceived as an "armor" used for protection from the judiciary. Acts of members of parliament that harm the public conscience and constitute violations of the law are shielded from judicial proceedings through legislative immunity. We believe that this scope should be narrowed in order to increase the credibility of the Grand National Assembly of Türkiye and to ensure legislative immunity in line with the standards of contemporary democratic countries where the law is valued.

To this end, amendments have been made to the existing Article 83 of the 1982 Constitution, and an additional article has been written to Article 83.

1982 CONSTITUTION

CHAPTER FOUR

Political Rights and Duties

PART THREE

Fundamental Organs of the Republic

CHAPTER ONE

Legislative Power

ARTICLE 83

Legislative Immunity

Members of the Grand National Assembly of Türkiye shall not be liable for their votes and statements during parliamentary proceedings, for the views they express before the Assembly, or, unless the Assembly decides otherwise on the proposal of the Bureau for that sitting, for repeating or revealing these outside the Assembly.

An investigation may be opened, a search may be conducted at the home of, and a trial may be held for a member of parliament alleged to have committed an offense before or after election; however, arrest and all other measures depriving or restricting the liberty of a member of the Assembly cannot be applied unless permission is given by an absolute majority of the Parliamentary Legislative Immunity Supervisory Board. The execution of offenses relating to high treason, in flagrante delicto cases requiring heavy penalties and violations of Article 14 of the Constitution shall be carried out without the need for permission from the Parliamentary Legislative Immunity Supervisory Board. In such cases, the competent authority is obliged to notify the Grand National Assembly of Türkiye directly.

The execution of criminal sentences passed on members of the Grand National Assembly of Türkiye before or after their election, other than for offenses relating to high treason, in flagrante delicto cases requiring heavy penalties and violations of Article 14 of the Constitution, shall be suspended until they cease to be members. The statute of limitations does not apply during the term of membership.

The law expressly states that a member of parliament on trial who is convicted of the offenses listed in Article 76 of the Constitution cannot be re-elected as a member of parliament.

No debate may be held and no decision may be taken by political party groups in the Grand National Assembly of Türkiye regarding legislative immunity.

Additional Article:

Duties and Powers of the Parliamentary Legislative Immunity Supervisory Board

The Parliamentary Legislative Immunity Supervisory Board consists of two members of parliament elected by each of the political parties that have a group in the Assembly from among their own members. The members' terms of office end with each general election.

The purpose of this board is to evaluate arrest and all measures depriving or restricting the liberty of a member of parliament on trial and, where it deems necessary, to approve the arrest decision. This approval is given by an absolute majority of the board.

RATIONALE FOR THE ARTICLE

Legislative immunity, both in our country and in other countries, has granted privileges to members of parliament despite the principle of equality before the law, and the misuse of these privileges beyond their purpose has caused various public reactions. Various allegations about a member of parliament emerge in the print and visual media and legal documents are presented, but because court proceedings cannot be initiated, society's faith in justice and equality is shaken. With this amendment to Article 83, we aimed to prevent such incidents.

Because of legislative immunity, while ordinary citizens who commit the same act as members of parliament are investigated, prosecuted and punished, members of parliament are exempted from these proceedings, or the proceedings are postponed until the end of their term, so that they can fully perform their legislative duties free from all concern and pressure. Although immunity is designed as an institution enabling members of parliament to perform their duties soundly, as seen in examples today, the debates on legislative immunity largely stem from members of parliament frequently being associated with allegations of corruption and from legislative immunity being seen as a refuge for escaping justice. Article 83 has been amended to remedy the unrest these debates have created in society.

As a result of our examination of many constitutions, especially those of developed countries such as France, Switzerland and the USA, we saw that the articles on legislative immunity have been amended over time. For example, we saw that the provisions on legislative immunity in the French Constitution were revised in 1995. According to the amended constitutional law, no member of parliament may be arrested or subjected to any other measure restricting or depriving liberty in respect of serious crimes or intermediate offenses without the permission of the bureau of the assembly to which they belong. This permission is not required in cases of flagrante delicto or final conviction.

Detention, measures restricting or depriving liberty, or prosecution of a member of parliament shall be suspended for the duration of the session if the assembly so requests.

Considering the relevant article of the French Constitution, we believe that, first and foremost, the path to judicial proceedings and investigation should be opened for members of parliament in our country. In this way, trust in the legislature is increased, and the aim is to prevent members of parliament from committing unlawful acts by using legislative immunity. The primary consideration here is that members of parliament should be able to exercise freedom of thought on matters concerning the country, because a member of parliament must express the national will they represent in the best possible way.

The main aspect of legislative immunity that should be examined is the legal acts of members of parliament. It should be possible to open an investigation against, and if necessary to try, a member of parliament who is under suspicion for any act or against whom the legal authorities request an investigation. Considering today's conditions, we believe that this change will create a more democratic society.

In parallel with our amendments to Article 83, we wrote a necessary additional article for the board we established. We envisaged that interrogation, detention and arrest restricting the liberty of a member of parliament in such legal proceedings would be carried out with the permission of a board formed within the assembly. With this addition, we created a board separate from the assembly itself and the Bureau of the Assembly, thereby preventing pro-government decisions. We therefore believe that the Parliamentary Legislative Immunity Supervisory Board, formed with the equal participation of parties having a group in the assembly, will carry out its task of evaluation in legal proceedings concerning members of parliament more fairly. The execution of sentences for offenses relating to high treason, in flagrante delicto cases requiring heavy penalties and violations of Article 14 of the Constitution should not be postponed and should be carried out immediately. Sentences for other offenses are executed after membership ends. We believe that the changes we made and the rationale we wrote will create a more democratic structure in Türkiye.

Work of the Second-Place Group:

ARTICLE 83- Members of the Grand National Assembly of Türkiye shall not be liable for their votes and statements during parliamentary proceedings, for the views they express before the Assembly, or, unless the Assembly decides otherwise on the proposal of the Bureau for that sitting, for repeating or revealing these outside the Assembly.

A member of parliament alleged to have committed an offense that bars election as a member of parliament, or an offense other than negligent offenses requiring a total of one year or more of imprisonment, may be investigated and prosecuted, a case may be filed and a trial may be held. Investigation, prosecution and trial proceedings initiated before the election may be continued. Even in this case, the member of parliament cannot be taken into custody, held or arrested without a decision of the Assembly.

Cases of flagrante delicto for the offenses specified in the previous paragraph and for offenses with a minimum penalty of one year or more are an exception. In this case, holding, custody and arrest measures shall be reported immediately by the competent authorities to the Speaker's Office of the Grand National Assembly of Türkiye. A member of parliament alleged to have committed an offense before or after election is tried at the Court of Cassation. For ongoing trials, the file of the member of parliament who takes the oath in the Assembly is sent to the Court of Cassation. The conduct of the preliminary investigation, the filing of public prosecution and the trial procedures for these cases are regulated by law.

The execution of a criminal sentence passed on a member of the Grand National Assembly of Türkiye before or after their election shall be suspended until they cease to be a member; the statute of limitations does not apply during the term of membership. The provisions of the above paragraphs apply equally to re-elected members of parliament, and investigation and prosecution concerning these members depend on the Assembly lifting their immunity again.

No debate may be held and no decision may be taken by political party groups in the Grand National Assembly of Türkiye regarding legislative immunity.

Situations directed against the integrity of the State and the destruction of fundamental rights and freedoms are outside the scope of legislative immunity.

All of these situations are regulated by the relevant laws.

Work of the Third-Place Group:

Article 83

Members of the Grand National Assembly of Türkiye shall not be liable for their votes and statements during parliamentary proceedings, for the views they express before the Assembly, or, unless the Assembly decides otherwise on the proposal of the Bureau for that sitting, for repeating or revealing these outside the Assembly.

An investigation may be initiated against a member of parliament alleged to have committed an offense before or after election, and the legal proceedings concerning them shall continue in a manner that does not prevent them from performing their parliamentary duties. The Assembly decides whether the final judgment issued at the end of the legal proceedings will be executed immediately or after the member's term of office ends. However, in cases of flagrante delicto requiring heavy penalties and situations under Article 14 of the Constitution, the timing of the execution of the judgment is independent of the Assembly and is regulated by law. The statute of limitations does not apply during the member's term of office.

A member of parliament whose final judgment has been suspended by decision of the Assembly cannot run again as a candidate for parliament before the judgment is executed, even if they meet the conditions of Article 76 of the Constitution.

No debate may be held and no decision may be taken by political party groups in the Grand National Assembly of Türkiye regarding legislative immunity.