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Comparison of the Equality and Participation Rights in the Constitutions of Turkey, China and Germany

Essay 2014 21 Pages

Law - Public Law / Constitutional Law / Basic Rights

Excerpt

Table of Content

1. Introduction: Comparison of the equality and participation rights in the constitutions of Turkey, China and Germany

2. Equality and Participation Rights in Turkey
a.Equality in Turkey
b. Participation Rights in Turkey

3. Equality and Participation Rights in China
a. Equality in China
b. Participation Rights in China

4. Equality and Participation Rights in Germany
a. Equality in Germany
b. Participation Rights in Germany

5. Trilateral Comparison: Wording, Rank & Sequence
a. Equality Before Law Articles:
b. Participation Rights Article:

6. Findings and Conclusion

Bibliography:

Appendix

1. Introduction: Comparison of the equality and participation rights in the constitutions of Turkey, China and Germany

This section of our analysis will be devoted to the cross comparison of Turkish, German and Chinese constitutions’ coverage and interpretations of the equality and participation rights. Following the similar methodological line with the “Freedom of Speech and Expression” and “Division of Power” sections, this section will first provide an understanding of where and how these selected countries stand on the parameters of equality and participation rights. Countries’ performances in equality and participation rights related indicators will also be embedded into this introduction sub-section as they provide important insights about to what extent this constitutional coverage is visible in practice.

The focus of our discussion will then shift to our trilateral constitutional comparison and how they differ from each other in terms of wording, sequence and the emphasis. The drawn ‘picture’ of equality and participation rights will then be framed by taking advantage of well-known court cases from these countries. After the court-case application phase, the section will consequently exhibit the findings related to the trilateral comparison.

Before diving into the individual evaluations, it is crucial to clearly define the key concept of our section for the sake of our essay. Equality and participation rights are two particular concepts which are applicable to various dimensions of social sciences. Having law as our natural focus, the discussion about the equality will mainly focus on equality before law. In his “Critique of the Gotha Program”, Karl Marx defines this focus with following words; “Equality before the law is a basic right in the constitutions of democratic countries, and its content appears in all conventions on human rights”(Marx, 1875). In terms of equality, the gender and minority equality/inequality will be the main points of concern.

Along with this, the importance of political participation rights will also be stretched throughout the section. As Fabienne Peter suggests, there is a tendency to exclude political participation rights from the minimal lists of human rights as it does not necessarily affect the survival or some basic life functions (Peter, 2013). Peter opposes to this general tendency “I shall argue that the right to political participation, understood as distinct from a right to democracy, should have a place even on minimalist lists” (Peter, 2013). Parallel to Peter’s insistence on necessity of being sharp about the rights for political participation, our section will majorly focus on the defined parliament compositions, voting and candidacy rights and electoral threshold enforcements.

2. Equality and Participation Rights in Turkey

a.Equality in Turkey

As a secular republic with strong ties to the Islamic World, Turkey is the ordinary suspect of “one of its own kind” discussions in social and political sciences. In its essence, from its foundation by Mustafa Kemal Atatürk in 1923 to our day, Turkey has always been the unique stage for the westernization efforts in all dimensions of life. Inspired by various European constitutions of its day (largely with the reception of Swiss Civil Code constitution (Yazici, 2011), Turkish Constitution offers a significant coverage for equality-related foci of our discussion such as the equality before law, gender and minority equalities.

The Article 10 (Appendix A) of the Turkish constitution states “Everyone is equal before the law without distinction as to language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such grounds”. This article shows the focus on “equality before law” which roots even from the first days of the republic. It may be stated that the current AKP government made a lot of amendments in the constitution which is also reflected in the added sentences to the Article 10. These amendments are the end-product of AKP’s own vision of change and the efforts of the country to align with EU laws in order to continue the negotiations for the EU membership (Akyol, 2013).

These amendments which were done in 2004 and 2010 also bring the gender and minority equality under the light. Article 10 seems to protect these equalities in a supreme-constitutional basis. Nevertheless, it is difficult to trace equality as such in the application of these laws to the Turkey of 2013 as the country holds the 120th place (among 136 countries) in World Economic Forum’s 2013 Global Gender Gap Report (World Economic Forum, 2013). One may argue that this is because of the country’s cultural background. Another argument might be about the allocation of factors of production and how it is male dominated. Irrespective of this discussion which does not serve our main purpose of trilateral comparison, the Turkish constitution and Article 10’s emphasis to assure this equality is not reflected in today’s society as it can be seen from the aforementioned ranking.

In this sense, Article 10 is valuable as the country does not have a major problem in terms of the gender equality before the law; however, it does not help to reduce the gender gap which is visible in other dimensions of the society. Article 41 (Appendix A), can be considered as a measure to prevent the gender inequality within the society; “Family is the foundation of the Turkish society and based on the equality between the spouses”. The Ministry of Foreign Affairs considers this as a radical step to reach full equality within the Turkish society (Republic of Turkey Ministry of Foreign Affairs, 2011). In spite of their considerations, it is clearly visible that the country did not progress that much since the implementation of these measures ( e.g Article 41) as the country is still close to the lowest percentile of the Global Gender Gap spectrum.

The minority equality in Turkey also shows a similar tendency in which the protection provided within the constitution is not that visible within the social life. The Minority Rights Group International (MRGI) confirms this hypothesis; “many reforms lie ahead if the country’s legal framework and practice are to reach international standards. Minority groups including Kurds, Armenians, Alevis, Ezidis, Assyrians, Laz, Caferis, Roma, Rum (Greek Orthodox) Christians, Caucasians and Jews still confront systematic repression in today’s Turkey”(Minority Rights Group International, 2011). Turkey is again a unique case with its diverse population (more than 100 different ethnical backgrounds) and although the constitution provide the relevant coverage, the social interpretations/applications of laws are not as clear as it ought to be.

Along with this; MRGI’s “Peoples under Threat 2013” research, Turkey has been assigned a score of 5 for Self-determination conflicts (establishment of the identity of a minority) of minorities and 2 for major armed conflicts (Minority Rights Group International, 2013). The essence of the research suggests that Turkey certainly does not offer the best environment for its minorities. This claim also aligns with our initial hypothesis of limited visibility of constitutional coverage with regards to the equality of minorities in Turkey.

b. Participation Rights in Turkey

The European Court of Human Rights suggests that “there can be no democracy without pluralism” (European Court of Human Rights, 1998). In this sense, the polyphonic social structures are the fundamentals of an active democracy. The Turkish constitution offers a great deal of material with regards to the political participation rights of its citizens. Article 67 (Appendix A) is the basis of these rights; “In conformity with the conditions set forth in the law, citizens have the right to vote, to be elected, and to engage in political activities independently or in a political party, and to take part in a referendum”.

It would be fair to state that every Turkish adult’s right to engage/involve in political activity is under protection of the Turkish constitution. Nevertheless, within the framework of our individual analysis few things have to be mentioned as the female political participation is quite low in today’s Turkey. The MFA’s website outlines the current situation with this brief description “Turkey is one of the pioneering countries in providing rights to women in political life. Currently, there are 48 women parliamentarians in the Turkish Parliament (Republic of Turkey Ministry of Foreign Affairs, 2011). Although this is pronounced with a high (and arguably purposeful) confidence by the MFA, Turkey only gets the 93rd place in the world ranking of women enrollment in parliaments (Inter-Parliamentary Union, 2013). This is particularly concerning for a country who celebrates its 79th anniversary “Women’s Suffrage”. In any case, it would be fair to say that the Turkish constitution draws the sufficient basis in order to encourage the political participation rights and does not favour/ disfavour any particular social taxonomy.

The same analogy is also applicable for the minorities. In fact, considered as the party of Kurdish people, the BDP (Peace and Democracy Party) became an actor in Turkish political stage. From this perspective, Turkish constitution’s participation rights coverage can be considered as successful. Nevertheless, the bottleneck involved for making a comment as such is the 10% threshold which is the highest electoral threshold in Europe (Aikin, 2011).

Freedom House considers Turkey as a partially free country and assigns a score of 3 for the political rights. The reason for this classification is the abovementioned continent-high electoral threshold and the fact that ‘Political parties can be disbanded for endorsing policies not in agreement with constitutional parameters’ and how this mentality with ended up with recent abandonment of Kurdish-originated political party DTP (Democratic which then came back to the political area as BDP. In this sense, one may state that these under-representation issues prevent the possibility of pre-supposing a healthy political spectrum inspired by the framework drawn by the Turkish Constitution.

3. Equality and Participation Rights in China

a. Equality in China

As the “Far East” extension of our trilateral comparison, China provides an interesting picture of equality and participation rights with its unique history, rising importance in globalized world and its diverse society. Before delving into this phenomenal picture of China, it is wiser to outline the Chinese attitude about the equality before the law right in the beginning of this section.

The issue of equality is handled by the Chinese constitution in numerous articles. Article 4 (Appendix B) which states that “All nationalities in the People's Republic of China are equal” is one of the general principles of the constitution. This creates an opportunity for an interesting observation as the 4th article of the constitution is dedicated only to issue of the minority equality. This clearly shows the sensitivity of the topic for China and the structuration of its constitutional order.

Although China made a significant progress in accordance with the human rights measures, the country still struggles with the issues of minority right protections. Due to the globalized trade and political relations, China is also under pressure from the global world to provide this security to its diverse citizens. In order to address these concerns and suppress the international negative coverage prior to the Beijing 2008 Summer Olympics, the country decided to establish a national harmony policy (Minority Rights Group International, 2009).The political slogan that advocates building a ‘harmonious society' served as a reason to crack down on ethnic ‘separatism' in order to safeguard social stability, to remove the causes of social tensions in order to ensure national security, and to set up an emergency mechanism to monitor relations among groups to deal with ethnic strife in developing minority areas (Minority Rights Group International, 2009).

Confirming these concerns addressed by the MRGI, Peoples under Threat 2013 research has assigned “5” for the self-determination conflicts in China and “0” for the armed conflicts as there is not an organized rebellious minority group within the country. Having these in mind, one can easily state that the constitution’s “immediate” coverage of minority equality is a reasonable step from the constitutional perspective as it serves to a significant need. This need is commonly pronounced as the country frequently deals with conflicts related to the Tibetian minorities. Although the country still has room for improvement to solve these problems, one may argue that the constitution offers the maximum emphasis which can be assigned to a particular social problem.

Chinese constitution and China as a country is also an interesting case when it comes to the gender equality. Article 33 (Appendix B) gives a general equality to the Chinese nationals before the law whereas the Article 48 (Appendix B) specifically states that “Women in the People's Republic of China enjoy equal rights with men in all spheres of life, political, economic, cultural and social, and family life”. Within the scope of China’s remarkable economic evolution, women enrollment (mostly residents of the rural regions) in the economy became a key factor for the success of Chinese economy to the extent that country became the role model about the subject matter (Fincher, 2013). In parallel with this development, China has the 63rd place in Global Gender Gap Report 2013 (World Economic Forum, 2013) which makes the country one of the leading Asian countries in the report. In this sense, one can claim that the constitutional coverage is traceable in China’s social structure and has visible effects on the performance indicators that the individual evaluations are based upon.

b. Participation Rights in China

The People’s Republic of China is defined as a socialist and a central-democratic country per its constitution. Chinese constitution’s biggest account of political participation relies on the 34th Article (Appendix B) which assigns equal voting and political engagement rights to adult Chinese citizens independent from their backgrounds. Linking back to our gender point of view, the equality in participation is also pronounced within the aforementioned Article 48.

In terms of the number of female parliamentarians, China had an average of %23.4 which is slightly better than the world average of %21.4 (Inter-Parliamentary Union, 2013). Considering the fact that China allowed the women suffrage just in 1939, the ratio of Women in Chinese Parliament can be considered as a decent indicator and the countries’ socio-political history developed in line with the vision set under the supremacy of the Chinese Constitution.

The political participation rights of the minorities in China are also under the protection of the Article 34 (Appendix B). As a country trying to handle the minority related issues which also becomes the subject of the global human rights agenda from time to time, the political engagement of minorities is a particularly sensitive topic. In these terms the presence of Pan-Green coalition is an important matter as the coalition mainly supports the independence of Taiwan rather than the reunification of China (Princeton Education,2012). Nevertheless, the current and “real” picture is significantly different than this rather positive one.

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Details

Pages
21
Year
2014
ISBN (eBook)
9783656899952
ISBN (Book)
9783656899969
File size
429 KB
Language
English
Catalog Number
v292759
Institution / College
Jacobs University Bremen gGmbH
Grade
1.00
Tags
comparison equality participation rights constitutions turkey china germany

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Title: Comparison of the Equality and Participation Rights in the Constitutions of Turkey, China and Germany