Saturday, May 08, 2010

Turkey: Generals and Judges Above Law? Let Turks Decide

By Fareed Mahdy
Republished courtesy of
IDN-InDepth NewsAnalysis

ISTANBUL (IDN) – Turkish voters will have to decide by next July whether they want their military and judiciary to continue to be above the law, or to modify their Constitution to end the current situation of several states within the state.

In fact, the decision to submit to a referendum the ruling Justice and Development (AKP) partys package of constitutional amendments comes as a result of Turkish parliaments failure to gather the majority of 367 votes required to transform the proposed changes into a bill.

Instead, the Turkish legislative passed on May 7 the governments changes package --with the sole exception of one article aimed at restricting the current prerogatives to shut down political parties-- with an ample, but insufficient majority of 336 votes in favour and 72 against.

President Abdullah Gull (AKP) is set to put the approved amendments to a referendum to be held within 60 days.

Major opposition parties have strongly reacted against the amendments alleging that, if approved in popular vote as expected, they will give the ruling AKP a wide margin of power over both the judiciary and the military.

The Republican Peoples Party (CHP), the main opposition party, announced that it will appeal to the constitutional court to bloc the referendum.

Such an action might pose a potential danger to the proposed reforms, as the court is formed by judges who belong to the judiciary that the government intends to reform.-


The amendments package includes constitutional modifications intended to bring the judiciary back to its constitutional functions and competences.

In recent years, the Turkish judiciary has been increasingly politicized and over-self-empowered, and became a kind of de facto political power capable of banning political parties that do not get along with its political interests. In this, the constitutional court has often challenged the ruling AKP party.

If approved, the reformed constitution would extend the constitutional court membership from its current 11 permanent judges and four alternates, to 17. Presently, the President has the prerogative of selecting three judges and the others from a shortlist that senior judges table.

The amendments would instead give the parliament the right to select three judges and the President the mandate to choose the others from a shortlist prepared by a wider group and not only senior judges.


As far as the military is concerned, the reformed constitution will allow that they are tried in civilian courts, while restricting the current wide powers of military courts.

If approved, the reforms package will eliminate those articles and dispositions that have been granting the army the unique right not to be prosecuted or judged for eventually staging a coup detat.

The objective is to subject the military to the civil laws and civil authorities as it is the case in democratic systems.

The current constitution – which was adopted in 1985 under martial law and heavy pressures by the military -- clearly establishes such impunity, protecting the military from being tried in civilian courts for their past, present and future actions.


Meanwhile, the Turkish government, chaired by Prime Minister Recep Ergogan, has every reason to hope that voters will give a wide support to constitutional reforms, due to a number of reasons.

One of them is that a number of recent signs and initial evidences regarding an attempt of a military coup detat have contributed to strengthening the Turkish governments plans to reform the constitution.

In fact, the detention over the last few months of over 70 generals, admirals and top commanders and the arrest of nearly 40 of them on coup detat charges, has provided a large popular support to Prime Minister Ergodans plans to elaborate a civilian constitution that might mark the end of military hegemony in Turkey.

This wave of detentions pushed Turkish public opinion to express an overwhelming support to ruling AKP plans. Opinion polls published in March this year gave a clear evidence of this public favour.

According to a poll carried out by MetroPOLL Strategic and Social Research Center, up to 78.7 percent of respondents said Turkey needs judicial reform, while only 17.8 percent disagreed.

Another opinion poll carried out by MetroPOLL and Andy-Ar, has also shown that the Turks strongly support the proposed governmental reforms.

A survey conducted by the Andy-Ar Center for Social Research also asked respondents their opinion about the detentions of retired and military personnel on active duty as part of an ongoing probe into a suspected Turkish Armed Forces (TSK) coup d’├ętat plan in 2003 titled Balyoz.

Some 58.5 percent of respondents said the detentions were normal, adding that every citizen is liable to be called to account in a country governed by the rule of law, while 38 percent believed the detentions were aimed to weaken the armed forces.


Asked which political party they would vote for if parliamentary elections were held now (March 2010 when the poll conducted), 35.3 percent said they would vote for the ruling AK Party, while only 15.5 percent said they would vote for the Republican People’s Party, and 11.6 percent for the Nationalist Movement Party.

In view of that, the road to the governments long-desired package of judiciary and military constitutional reforms seems to have been paved.

A favourable popular vote would therefore crown the ruling AKP party eight-year old plans to draft a modern, civilian constitution in line with Western democracies.

In fact, since it first came to power in the year 2002, it vowed to introduce such new civilian constitution but it has failed to do so mainly due to strong resistance by opposition parties.

The ruling party explains that these reforms are intended to consolidate the Turkish democratic process, bring it in line with European constitutions and increase the chances for Turkey to access the European Union (EU), which has been pressing Ankara to engage in democratic reforms.

The reforms would also contribute to strengthening the ruling party with a view to the coming legislative elections mid 2011. The AK Party won a new mandate after the 2007 elections, with 47 percent of the votes and is expected to also win next years elections.

See also Sydney Irresistible and Mike Hitchen Unleashed
Putting principles before profits