—Nazlicicek Semercioglu, PhD candidate, Bocconi University, Italy.
The Turkish President’s decision concerning Turkey’s withdrawal from the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (“Istanbul Convention”) that was taken on the basis of the Presidential Decree no. 9 was published in the Official Gazette on March 20, 2021. This course of action was met with deep concern both at the national and international level by civil society and foreign governments due to the fact that it would adversely impact the already deteriorating women’s rights situation in Turkey. Simultaneously, a debate emerged over constitutionality of the decision to withdraw from the Istanbul Convention.
The constitutional reforms that were passed by the national assembly and approved by referendum in 2017 abolished the position of prime minister and designated the president as both head of state and government. A transition as such brought the parliamentary regime that was in place for decades to an end and granted new competences to the republic’s executive leader. It was against the backdrop of the latter that the Presidential Decree no. 9 entered into force in 2018 which stipulates in Article 3 that withdrawal from international treaties can take place following a Presidential decision to that effect. It is worthy to note that pursuant to Article 90 of the Turkish Constitution, as a general rule, such agreements can only enter into force following parliamentary decisions approving their ratification. Only economic, trade, technical and administrative treaties can be exempted from this requirement provided that they meet certain conditions.
Competence to Withdraw from an International Treaty
On the other hand, the Istanbul Convention that regulates the measures state parties shall take to counter violence against women is a human rights treaty that does not fall within the scope of the conventions that can enter into force without members of the parliament casting votes in their favor. It was therefore ratified by the President following a legislation that was passed with the aim of approving such ratification. However, the issue of whether or not it is lawful to withdraw with a Presidential decision from an international treaty that was ratified following parliamentary approval without it being necessary for the parliament to primarily reach a decision regarding such withdrawal has given rise to controversy. Those arguing that the President lacks the necessary competence refer to Article 1/2 of the Code on the Protection of Family and Prevention of Violence against Women no. 6284 which stipulates that the said regulation shall be implemented on the basis of the provisions of the Istanbul Convention. They point out that the Presidential decision to withdraw from the latter amounts to usurpation of legislative powers by the executive as it indirectly renders the provisions of the Code no. 6284 inapplicable.
Similarly, the withdrawal decision has also been alleged to have been made in violation of the administrative law principle of parallelism in form and procedure, which sets out that rules that have been followed for undertaking administrative acts (i.e. ratification) shall also be abided by for their revocation (i.e. withdrawal) unless there exists a regulation to the contrary.
Constitutionality of Article 3 of the Presidential Decree no. 9
Article 104 of the Turkish Constitution stipulates that the President can issue Presidential Decrees with respect to matters pertaining to his/her executive competences without listing the powers the latter includes. Notwithstanding this textual ambiguity, the Turkish Constitutional Court clarified this matter in its decision of June 25, 2020 issued following claims filed by the main opposition party (CHP) against the provisions of the Presidential Decree no. 9 regarding the President’s competence to grant approval for international treaties (as opposed to those related to his/her capacity to withdraw from the same examined in this post). The court ruled that the regulation through Presidential Decrees of rules pertaining to international treaties that can enter into force without being published in the Official Gazette pursuant to Art. 4.2 of the Presidential Decree no. 9 falls within the scope of the aforementioned executive competences referred to in Article 104 of the Turkish Constitution. This decision suggests that regulation of rules pertaining to international treaties that can only enter into force following their publication in the Official Gazette is not one of the executive competences enshrined in Article 104/17 of the Turkish Constitution. Therefore, as the Istanbul Convention entered into force following its publication in the Official Gazette, it can be concluded that the legal basis of the decision to withdraw, Article 3 of the Presidential Decree no. 9, is unconstitutional.
The Role of the State as the Guardian of Human Rights
Article 5 of the Turkish Constitution stipulates that elimination of obstacles that limit personal rights and freedoms in a manner contrary to Turkey’s status as a welfare state governed by the rule of law and the principle of justice is one of the key purposes and duties of the state. Consequently, even if the withdrawal decision were procedurally sound, it still would have been unconstitutional on the grounds that the aforementioned provision enshrines the prevention of the human rights situation from deteriorating as a state purpose and duty. However, the withdrawal decision amounts to utilization of state powers for the purpose of weakening the protections granted to women by law, which renders it substantively unlawful as well.
The Litigation Process
Claims against lawfulness of the withdrawal decision have been lodged before the High Administrative Court by opposition parties and a civil society organization advocating women’s rights. Importantly, one of the claimants has also challenged the compliance of Article 3 of the Presidential Decree no. 9 with the Turkish Constitution. This means that if the High Administrative Court finds the claim of unconstitutionality serious, it can suspend the case pending the Constitutional Court’s decision on the matter.
As far as efforts underway to prevent and combat violence against women in Turkey are concerned, tangible outcomes can only be obtained if the High Administrative Court rules in favor of the claimants.
Suggested citation: Nazlicicek Semercioglu, Turkey’s Withdrawal from the Istanbul Convention, Int’l J. Const. L. Blog, Apr. 22, 2021, at: http://www.iconnectblog.com/2021/04/turkeys-withdrawal-from-the-istanbul-convention/.