10 Temmuz 2009
In approving into law, however, Gül called on the AKP, a party that escaped closure by the Constitutional Court last year but was convicted in a ten to one vote of being the focus of anti-secular activities and subjected to a hefty fine, to take swift legislative steps to allay the concerns of the strong Turkish military and clarify the scope of the new law. "In implementing these reforms, it would be beneficial for legal changes to be made to remove doubts likely to arise over discipline and legal guarantees from the perspective of military service," the president said in a written statement.
In Turkish, there is a saying, "this rice needs more water," which more or less underlines a conviction that the issue at hand is far from complete or that discussions are not over yet.
Initial reactions from the governing party were clear. From the most adamant including, Bülent Arınç, to the soft speaking and much admired Cemil Çiçek and AKP’s Parliamentary Group deputy chairman Bekir Bozdağ, most AKP spokesmen swiftly declared that they have taken note of the "reservations" the president attached to his decision to endorse the contentious legislation that passed through Parliament on June 26 in a midnight operation without debate. Opposition parties, obviously, underlined that if the president had some reservations about the bill, and if he indeed believed that there was need to take some further legal steps to allay opposition and army concerns, indeed he must send it back for a second review by Parliament. Many critics and constitutional law professors, in addition to opposition parties, have been defending that the new law contravened constitutional Article 145 that defines the duties, responsibilities and the scope of the military courts, as well as the laws on the establishment, peace time and war time duties and scope of military tribunals. Indeed, the main opposition Republican People’s Party, or CHP, has already made clear that it will soon refer the issue to the Constitutional Court to call for its annulment on the grounds of constitutional incompatibility.
Many legal experts and the AKP on the other hand have been defending that there is no constitutional incompatibility, and that even if an incompatibility exists, the reform undertaken is in line with European Court of Human Rights verdicts and the reform pledges Turkey has made to the EU to promote its EU accession bid, under the principle of supremacy of international law and international court verdicts to domestic legislation such constitutional incompatibility would be invalidated. Now, everyone will have to wait, first for the CHP to apply to the High Court and then for the court to decide on the issue, while in August the AKP is expected to start considering what further steps could be taken to allay the army’s concerns. But, will the AKP heed the advice of Gül and undertake such a course? Gül made a similar appeal while endorsing the constitutional reform package legislated in the hopes of allowing the headscarf to be worn in universities, the AKP however did not act on the issue and the headscarf amendments became cited as evidence of the AKP’s anti-secular designs in the closure case.
Indeed, even the opposition parties do not object to the new law allowing civilian courts to try military personnel in times of peace for attempts to topple the government and offences related to national security and organized crime, while it also transfers to civilian courts the power to try civilians in peacetime for offences outlined in the military penal code. However, the reform was made with such haste in an ambush-like tactic that besides constitutional incompatibility and a potential confusion of jurisdiction of civilian and military tribunals, with the new law, top generals of the country were left without any judicial shield.
This rice needs more water.
9 Temmuz 2009
But, can there be the practice of tit for tat, or reciprocity in human rights? Has Greece "obtained" the right to forcefully evict the Muslim and Turkish minority living in western Thrace to Turkey because an idiotic nationalistic and radical mob staged shameful events on September 6-7, 1955 and forced most of the Greek Orthodox residents of Istanbul flee to Greece? Or, can Turkey "obtain" the right to withdraw the Turkish nationality of its Greek Orthodox population traveling to Greece or outside the country and staying for more than just few months because until recently Greece was applying the same inhumane treatment to its Muslim and ethnic Turkish population traveling to Turkey?
The violation of human rights of a minority by one country cannot be the pretext of the violation of the human rights of another minority in a neighboring country. There can be no such reciprocity even if the rights of the two minorities might have been regulated in a corresponding manner with the same, in our case Lausanne, international treaty. After all, under the principle of constitutional citizenship, all citizens of a country must have equal rights. Furthermore, under international minority norms, rather than being considered a "potential threat" and having their rights restricted on the understanding obsessed by certain phobias, the minorities of this country must be accorded with some "additional" rights to preserve and promote their ethnic, religious, cultural, or whatever differences.
One of the key phobias in some segments of this country, regarding the dwindling Greek Orthodox minority, is the "ecumenical status" of the Greek Orthodox Patriarchate. With the claim that the patriarchate is a "national institution," Turkey has been categorically objecting to the patriarchate being considered or even referred to with the ecumenical title that dates back to pre-republic times. What is the loss for Turkey if the country acknowledges the fact that all around the world the patriarchate is considered as ecumenical, that it is universal? On the contrary, Turkey should be proud that as a national institution of our country, the patriarchate enjoys such recognition. Still, a phobia that the patriarchate could turn into a second Vatican is crippling the ability of many Turks from seeing where the interests of the country indeed lie.
Second Vatican phobia
The Halki Seminary quandary is a by-product of that obsession, of course, in addition to the phobia that should the Greek Orthodox be allowed an educational institution independent from the Education Ministry or the Higher Education Council, or YÖK, the country may have to battle similar demands from Islamist groups. There is, of course a difference between the two religions. In one there is no clergy. Besides, more than enough people every year graduate from theological high schools, or the Imam Hatips, and theology departments of universities. However, in the Greek Orthodoxy, there is a clergy class and only those graduating from a theology school can be ordained into the church as a clergy-man. The first difficulty of the Greek Orthodox Patriarchate in Turkey is the dwindling Greek Orthodox population. The second problem is that Halki has been closed since 1971 and the patriarchate is having difficulty in finding sufficient new additions to its staff. Even a new patriarch could only be elected after being made a Turkish citizen by the Council of Ministers, because under our laws, only a Turkish national can be elected as patriarch to our "national institution" - the patriarchate.
While the country is once again debating the reopening of the Halki Seminary as a "Heybeliada Minority Vocational High School," that is as a vocational secondary school affiliated to the Education Ministry, Turkey should manage to rid itself from artificial phobias, act with reason and take some practical steps in comforting our Greek Orthodox minority with an awareness of the problems it faces because of their dwindling numbers. After all, there can be no reciprocity in human rights.
8 Temmuz 2009
A leader ought to be the problem solver, not the one creating problems. Yet, very much like his aggressive style demonstrated in front of the global community at Davos this year, during which he not only yelled into the face of Nobel peace prize winner Israeli President Shimon Peres saying, "You know well how to kill," but also walked out of the panel declaring, "Davos has ended for me," the Turkish premier is confronting everyone, be it workers, employers, international agencies such as the IMF, the military or judiciary, and of course the political opposition all the time.
Indeed, no one can accuse him of being unstable. Except for coming together for some social reasons, the prime minister has not come together even once over the past many years with the main opposition party leader. Only some ten days ago the pro-Kurdish Democratic Society Party, or DTP, withdrew a request for an appointment with him after their request was not even given a positive or negative answer after many months.
Perhaps the apparent affection of the Turkish people to macho leaders, as election results might imply, is one reason why the premier and his AKP has been following such an aggressive style in politics. Turkey is a country with an ambiguous dynamism. There is something new every few days up for some heated discussion and debate in this country. Yet, it is quite rare to see the government and his parliamentary majority introduce a radical legislative change in a midnight ambush and allow civilian courts to prosecute the military officers; legislate a "reform" in labor laws and allow a "workers for lease" practice condemned by labor as a move aimed to create a modern version of a "slave market" and a prime minister publicly quarrelling with the labor unions saying, "They say they will go on strike if we refuse their demand for a higher pay rise. Right, go on strike, will not afford give you more." Though, since that "courageous" statement, the premier and his top aides are negotiating with the labor methods of preventing a strike; publicly adamancy persists as usual. Yesterday, labor was on a one-hour warning strike, if administrative adamancy and aggressive leadership style continued, we may soon find ourselves buried in widespread labor unrest.
Someone should perhaps provide the prime minister the legendary advice of Sheigh Edebali to Osman Ghazi, the founder of the Ottoman Empire, and tell him that there is an "Edebali style" proved over centuries to be far better than the "Davos style".
Sheikh Edebali (1206-1326) was an early Ottoman period highly influential and respected religious leader, who helped shape and develop the policies of the Ottoman Empire. Edebali's advice to his son in law, Osman Ghazi, upon becoming the sultan after the death of the Ertuğrul Ghazi, was not just a lecture in good governance; it also shaped and developed Ottoman administration and rule for many centuries.
In his famous declaration Edebali told Osman, who is considered the founder of the Ottoman Empire:
"My son, now, you are the leader!
From now on wrath is for us; the calmness is for you.
Being offended is for us; pleasing is for you.
The impeachment is for us; to endure is for you. Incapacity and mistakes are for us; tolerance is for you.
Disagreements and disparity are for us; justice is for you.
Unfairness is for us; forgiveness is for you.
Dividing is for us, completing is for you.
Slothfulness is for us, warning and guiding is for you.
My son, your burden is heavy, your duty is difficult and your power is like up to a hair.
May Allah be with you."
Can there indeed be a government which has developed wrath with some key institutions of the state; which is acting in an offended manner; which is trying to achieve some key legislations through an ambush culture; sawing disparity and disagreement rather than allowing wider freedom to justice; which has forgotten the word fairness; that has become separatist; and which is obsessed with power with a majoritarian understanding?
7 Temmuz 2009
It will not be at all an easy decision to make for President Gül. It is as if the president is compelled to get hold of a stick, both ends of which are dirty. On the one hand there is the government defending that the midnight operation empowering civilian courts to prosecute military officers is a move enhancing democracy. Indeed, the military has so far not directly accused anyone or any group of conducting an "asymmetric psychological war" against itself, but in recent remarks Chief of General Staff Gen. İlker Başbuğ tacitly directed his finger at the Islamist Fethullah Gülen brotherhood organization with which the ruling AKP has no organic ties, but some very strong moral bonds.
The president technically has three options. He may endorse the legislation into law; he may send back the legislation for a second review by Parliament; or he may partially veto the legislation and ask Parliament to reword the authorization to be given to civilian courts to prosecute army officials in a manner clarifying how and by which court the Chief of General Staff and the force commanders can be prosecuted.
Gül likely will not use his veto power
So far "leaks" from the presidential office indicate that the president has more or less made up his decision on the issue. Contrary to the widespread expectations, the president is reportedly not inclined towards a veto or partial veto of the legislation, but instead will approve it. As he did with the contentious constitutional amendment package aimed at paving the way to the lifting of the turban ban at universities (one of the developments that had triggered the closure case against the AKP), together with his endorsement for the legislation, he will make a lengthy statement underscoring the need to make a complimentary law defining how and where the chief of general staff, force commanders and generals on duty can be prosecuted. He is expected, as well, to underline the need to make some amendments in the constitutional article 145 that defines the scope and powers of military justice system, as well as the laws on military justice system, to avoid any possible conflict and confusion.
President Gül’s personal political history, his commitment for wider democracy, enhanced individual rights and consolidation of civilian rule in the country, sources have said, was one predominant reason why the president is not expected to veto in whole or partially the new legislation allowing civilian courts to prosecute officers.
Thus, while the military, the opposition parties and a section of the Turkish media still hope that the president will not allow the tension over the new legislation continue for several more months and will send it back in whole or the contentious article for a second review by Parliament, "leaks" from the presidential office and sources in the ruling AKP appear to be quite confident that Gül will endorse the bill and urge some further complementary legislation to eradicate the military’s complaints when Parliament returns from recess to elect its new speaker in the second half of August. AKP sources have been particularly stressing that Gül, like the former President Ahmet Necdet Sezer, should not put himself in the place of the Constitutional Court and veto the legislation on grounds of constitutional incompatibility. While particularly the CHP has been stressing that it was among the president’s duties to seek compatibility with the Constitution and as the legislation in question clearly violates constitutional Article 145, rather than asking to reform Article 145, the president must veto the legislation contradicting a constitutional article.
Whatever the decision of Gül might be, he will either upset his "comrades in politics," Premier Recep Tayyip Erdoğan and the AKP, by vetoing in whole or partially the contentious legislation or hurt the "impartiality" and "to act in a manner above party politics" principles of the office he occupies and sign into law a legislation that contradicts the Constitution.
6 Temmuz 2009
First of all, bringing in front of justice a group of geriatric retired generals and the collaborators who are all in their 90s and many of them long dead, will not be possible because of their advanced age. Secondly, their crime was pardoned with the Provisional Article 15 in a plebiscite on the Constitution in 1982 and thus under the principle that constitutional articles and laws cannot be applied retrospectively, they will continue benefitting from the 1982 special constitutional amnesty they declared for themselves and approved by the nation.
Thus, annulment of Provisional Article 15 will not produce any result in that sense. However, getting rid of that article will have a symbolic meaning. If the article was annulled, that will be a declaration by the civilian parliament that those who staged coups or planning to stage coups in the future can pay a price for the crime they committed or might commit.
Indeed, if not tainted with a revanchist campaign against political opponents, secularists, Kemalists and patriots all rejecting categorically an Islamist drift in the country at the expense of secular and democratic republic adhering to the principle of supremacy of justice, the Ergenekon probe and the judicial case could serve as well as a "deterrent" against future coup attempts in the country. The prosecutors will soon submit to the court the third glossy indictment and perhaps increase the number of defendants within the case to around 200 or more. I am afraid the fourth, fifth and perhaps the tenth or further indictments will come in the months and years ahead and the number of people accused will exceed thousands while the number of pages of the indictments will reach several hundred thousand. Ergenekon probe is not only diluted with this wholesome "get all the opponents in" approach, but it has lost all its meaning as no one expects anything reasonable or meaningful come out of it one day. However, Turkey should not have missed this chance or wasted it in a revanchist campaign and must have been able to demonstrate that there is a resolved community, government and an opposition rejecting outright an intervention in politics at any cost. That would have been a great contribution to the advancement of democracy in this country.
However, the "? la carte" and self-catering democrats and liberals of this country have wasted precious opportunities of marching towards the democracy and human rights level of the European club of democracies by burying themselves in those revanchist struggles and attempting to create a justice and internal security system serving to their interest.
Is it not a fact that in today’s Turkey no charge could be brought against a senior member of the AKP or the Fethullah Gülen brotherhood gang or even if a charge could be made no force can take that prominent AKP or Gülen gang figure to a court?
Yes, all those involved in coups or caught in preparation of a coup must be brought to justice. Coup must be severely criminalized. But, at the same time we have to bring to justice those who have been torturing people during interrogations, at detention places, prisons or violating individual rights and freedoms or killing people in the back just because they did not heed to an order to stop. Yes, besides coup plotters, I want to see people who siphoned charity money donated by Turks abroad. Yes, I want the over 70-year-old Islamist writer who sexually assaulted an 14-year-old girl be adequately punished. Yes, I want the prime minister give an account how he established his wealth, how he managed to buy a ship to his son. Ys, I want to see a top AKP official who alleged (indeed documented) to have received a one million dollars bribe to help change the land development status of a lot.
Is it wrong to expect doctors, nurses and the health minister give an account in front of a judge for the death of 49 newborn babies at an Ankara hospital last year?
Shall we try only the coup plotters?
3 Temmuz 2009
Before I managed to quip out a meaningful answer, he continued: "Are you not against military coups? I thought you were. Why are you criticizing the government of enacting a reform aimed at strengthening a civilian justice system and curtailing some extraordinary powers and indeed privileges of the military incompatible in a democratic country? Don’t you understand what the government did in enacting that law was not just empowering civilian courts to prosecute officers and generals, but indeed limiting the influence of military in policy making by reducing their immunity from civilian prosecution? If coup plotters can be tried in civilian courts, then it might become difficult and too risky to plot a coup."
Indeed, my friend was right. How can anyone who claims to be a democrat aspiring to see wider democracy, enhanced individual rights and consolidated civilian governance in this country compatible with the standards of the European club of democracies that we aspire to join in as a full member object to a legislation eradicating an anomaly of democratic governance in this country?
I tried to explain to him that the vast majority of this country, irrespective of their political tendencies, would be delighted to see the AKP government undertaking some meaningful reforms aimed at consolidating civilian justice and promoting independence of civilian justice system. For example, bringing an end to the presence of the justice minister and his undersecretary at the High Board of Judges and Prosecutors (a body that decides appointments, promotions as well as punishment of the judges and prosecutors) and taking some other moves aimed at limiting if not totally eradication of custody of civilian political power on the justice mechanism would be a far more meaningful reform. Still, excluding the timing and the methodology applied by the AKP government and its parliamentary majority, limiting the sphere of military justice system while enhancing the civilian one is indeed a development which ought to be appreciated.
Yet, when and how something is done is sometimes far more important than what indeed is done. At a time when the military and many people in this country are complaining of a systematic, asymmetrical, psychological campaign aimed at hurting the prestige of the military with the Turkish people; when over a photocopied document, the authenticity of which could not be verified, the military or some senior officers are implicated in a plan aimed at stopping the civilian governing party and an Islamist brotherhood organization nested particularly in the police intelligence; it is only natural for many people to wonder whether this was a democratic reform or there was something else, some other motivation and design behind such a move. That is, most of the problem is a product of a confidence crisis.
Furthermore, the current crisis appears to be product of a well-planned "attention distraction program" the AKP has been implementing. As if there is a coup plot about to be unleashed an artificial discussion is continuing in the country over the Ergenekon probe and case and the recent document which is apparently a fake, while on the one hand the government is doing all it can to stall the Turkish leg of the Lighthouse sham that the German court described as the worst fraud case of recent German history and on the other hand people’s attention was distracted from worsening economic situation, the worst slump of the gdp since 1945.
Still, criminalizing coups can be no remedy to Turkey’s current democratization, corruption or economic woes. Yes, I can guarantee, as the top general has been doing so, that there will not be a coup in Turkey. Will such a guarantee be valid and meaningful and indeed guard us against a coup if with the pretext of democratic reform but, with a majoritarian ambush mentality an asymmetric campaign is continued?
3 Temmuz 2009
Why the prosecutors of the so-called Ergenekon probe and judicial case demanded the arrest of the colonel has not yet been made public. And why the court on duty agreed with the demands of the colonel’s advocates and decided to release him after 19 hours in prison has not yet been disclosed. But the journalist with the almond moustache and dirty beard was saying on TV that the colonel’s release showed not only that the country’s justice system has a duality because of the civilian and military courts, but also that there is a duality between the civilian courts and judges.
"There are judges applying the law and there are judges acting along ideological lines. One is putting the colonel behind bars; the other is releasing him. The release was a political decision," the journalist said.
An 'exception' becomes routine
Under the Turkish law covering trial procedures, an arrest must be an exceptional application. Unfortunately, this is not the case in practice. Though the law underscores that, apart from being captured "in flagrante delicto" Ğ that is, red-handed Ğ committing a crime punishable by serious penalty, a suspect can be arrested only if there is possibility that he or she will conceal evidence or escape. The same law emphasizes that the residences, bureaus or offices of suspects can only be searched with a court order, during daytime hours and in the presence of the suspect’s defense advocate. Furthermore, the law specifies that a detailed list of items taken by the police or gendarmerie must be given to the suspect or his or her advocate, and that Ğ if computers or other electronic data-storing equipment were to be confiscated Ğ a copy of the electronic data to be confiscated must be prepared and given to the suspect or his or her advocate.
These fundamental principles have been blatantly violated during the Ergenekon probe. Not only were residences ambushed in the middle of the night, the suspects’ books, articles, films, music CDs, electronic data-storing equipment and computers were confiscated without giving many of them a copy of what was taken. In addition, suspects were placed behind bars without considering the rule that arrest must be an exceptional application. What the country lived through, and has been living through still, because of the Ergenekon probe is a systematic effort to build an empire of fear in this land and thus to scare and silence the opponents of the political administration.
Apart from unnecessarily restricting individual liberties, as long as there is no possibility of concealing evidence or escape, is there any difference between keeping a suspect behind bars and letting him or her free as long as the investigation or judicial case is continuing? Like Col. Dursun Çiçek, most of those under arrest within the framework of the Ergenekon probe or trial could have been released pending the outcome of the investigation or court process against them. That is a requirement of the law covering trial procedures if arrest or restriction of individual rights is an exceptional practice.
In Çiçek’s case, he is alleged to be the author of a plan aimed at stopping the AKP and the Gülen group. The original version of the plan could not be found. What we have at hand is a photocopy, and a photocopy cannot be legally valid evidence. Çiçek might be facing some other charges and his arrest might have been due to some other evidence that the court has not yet disclosed. His release as the result of appeal by his lawyer might actually be the result of a second evaluation showing that the additional evidence was not strong either, or he might have been released simply because the judge concluded that he cannot conceal evidence and will not escape. Can such a decision be taken as evidence of "duality" in the judiciary?
Why don’t we instead try to understand what Prime Minister Erdoğan might have been trying to imply with his statement that "Police are the guarantee of Turkey." If the military guaranteeing democratic secular governance in Turkey was an indication of this country being under military custody, has Turkey become a police state? Is that why the premier says, "Police are the guarantee of Turkey"?
2 Temmuz 2009
While the National Security Council, or MGK, was continuing its meeting behind closed doors under the chairmanship of President Abdullah Gül some 20 kilometers away, I was busy discussing philosophy and current affairs of the country over barbecue in the backyard of a villa at a plush suburb of Ankara with some friends overactive in conservative politics.
Earlier in the day, the Ergenekon prosecutors started questioning nine senior officers, one of them Dursun Çiçek, a colonel at the office of Chief of Staff Gen. İlker Başbuğ, who was accused of "writing" a "military plan" to "finish off" the ruling AKP and the Islamist Fethullah Gülen brotherhood organization. Başbuğ had condemned the alleged plan and he declared that there were no reason to prosecute Çiçek. Should, he said, new evidence appear proving authenticity of the plan, Çiçek would be tried at a military tribunal. Yet, some ten hours before the general made that declaration, the AKP majority silently legislated in the middle of the night an amendment that allows civilian courts to judge senior officers for "heavy crimes" including "coup attempts."
There were, for obvious reasons, sharp contradictions between how we perceive the developments in the country. What was considered a "great success for the advance of democracy" for them, appeared to me as a grave threat to pluralist and secular democracy from a government with a majoritarianism obsession. The Ergenekon probe and judicial case was just one of the instruments, according to the conservative politician friends, to consolidate civilian rule and eradicate the coup threat in the country.
However, on the one hand I have been shivering in fear suspecting in all that has been happening a revanchist campaign of political Islam against the secular democratic republic, while on the other hand agreeing with the liberal democrat or conservative evaluations that Turkey has been going through a transformation campaign, which even though it might be a little bit painful, might indeed produce a more civilian governance and a democracy not obsessed with threats such as religious or ethnic and cultural differences.
"We are all in the 50s," said a friend. "We have forgotten how we acquired our independence and sovereignty from our parents. Now, our kids, who are all in their 20s, are revolting and demanding some sort of ’autonomy’ from us. Are not we having difficulty in accepting their demands?
Even though we would be proud that they have become independent individuals capable of standing on their feet without our help, won’t we feel a little bit sidestepped and even rendered useless? That is exactly what’s happening in Turkey as well.
The power center is changing and the young civilian democracy is telling the founding element, the military, ’Thank you for everything you did for me so far, but I want to stand on my own two feet without your support.’ That is all."
In the meantime, we heard from the television that the MGK concluded its second longest meeting, which lasted almost eight hours. The longest meeting was the Feb. 28, 1997 meeting at which a set of decisions were accepted or imposed on the first Islamist Premier Necmettin Erbakan against the advance of political Islam in the country.
The top civilian administrators and the top generals were in full consensus, according to a statement released, that there were "statements and publications" against some establishments of the Turkish republic, and the members of the highest "advisory" body "reaffirmed" that such statements and publications cannot serve any interest of Turkey. Well, that was a clear indication that Gen. İlker Başbuğ must have raised his complaint of a "systematic and asymmetric psychological campaign" against the Turkish Armed Forces and reiterated his belief that a witch-hunt was being continued in the country against some current or retired officers without adequate and sufficient evidence proving their wrongdoing. Still, the statement of the council demonstrated that after almost eight hours of deliberations, members managed to come out of the meeting with a consensus.
While sipping our dark Turkish coffee late in the night, there came the biggest news of the night and perhaps the past many months. Colonel Çiçek was arrested on grounds of membership in Ergenekon organization.
What was the consensus at the MGK?