TURKISH LEGISLATION FILLED WITH ANTI- DEMOCRATIC PITFALLS

Today’s Zaman
April 11 2008
Turkey

A penal code article that threatens free speech has been in the
spotlight since Turkey began talks with the European Union for
eventual membership in the bloc nearly three years ago, but a good
deal of Turkish legislation contains provisions that are inherently
anti-democratic.

Laws that limit freedom of thought and expression — abundant in the
Turkish Penal Code (TCK) — are not necessarily too different from
their counterparts in other countries, says Ergun Ozbudun, a professor
of constitutional law. "The problems we are having stem from the way
our judiciary interprets these [laws]. What we can hope for here is
that the judges, as dictated by the principle that international law
should be superior to domestic law when the two are in conflict,
take the decisions of the European Court of Human Rights as the
basis for their own decisions. Sometimes you get investigations and
convictions that do not live up to those standards. I believe this
is basically a problem of the culture of the judiciary and not the
text of the legislation."

However, laws that do not govern what you say or how you express
yourself and laws that do not depend on interpretation to be
anti-democratic can still be a violation of democratic rights. In
other words, laws that do not restrict freedom of expression or the
press might still have restrictions on your life.

Turkey has many of these outside the criminal code. One such law is
the Law on the Trial of Civil Servants and Other Public Officials,
many experts point out. Under this law, individuals holding public
office cannot be subject to legal investigation and tried without the
permission of their superiors for crimes they committed related to
the office they hold. Ergin Cinmen, one of the lawyers representing
the family of Hrant Dink, a Turkish-Armenian journalist shot dead by
a nationalist teenager in January 2007, underlined that despite an
abundance of evidence of police negligence in Dink’s killing, those
responsible could not be brought to justice due to this law. Cinmen’s
painful example refers to the police investigation and the ensuing
trial of the Dink murder, in which one of the 18 suspects in the
Dink murder trial, a former informant, testified a number of times
that he had tipped off the police on more than one occasion about a
plot to kill Dink. Although police officials in Trabzon, the hometown
of the murderer, and Ýstanbul, where Dink was shot, admitted that a
note of information about this piece of intelligence was exchanged
between them, superiors have protected the officers thought to have
been responsible.

Another law that is not only anti-democratic but also simply unfair to
the taxpayer, the Law on the Supreme Court of Accounts, imposes serious
restrictions on the inspection of military spending by civilians. EU
officials have often criticized this law as a serious obstacle to
the democratization of military-civilian relations and auditing
transparency. A similar law which limits civilian oversight over the
armed forces is the Law on the Organization of the Gendarmerie Force
in Turkey, giving this security unit power and authority unparalleled
in any other European country.

"Ninety percent of Turkey is accepted to be under the sphere of
responsibility of the gendarmerie!" Umit Kardaþ, a retired military
judge, said, pointing to the gravity of the problem. The gendarmerie
being given the status of a force that ensures domestic security is
simply not compatible with democracy, Kardaþ noted.

Lawyer Meryem Erdal notes that in its latest progress report
released on Turkey on Nov. 6, 2007 the EU harshly criticized the
country because no expected reforms were passed to amend the Law on
the Turkish Armed Forces Internal Service and the National Security
Council Law. Civilian audit of the gendarmerie, detailed parliamentary
audit of the military’s budget and spending on specific programs and
projects remain as major problems, according to the report.

Military position needs transformation

The problem with any legislation regarding the military or the
gendarmerie, Cinmen points out, does not lie in the nature of the
relationship between the military and civilian governments in Turkey.

According to him, the issue here is not the law: "This [role of
military] is an issue in itself. The only remedy for this is increased
demilitarization of the country and bringing the military in Turkey
to the status of any other state agency." Cinmen noted that this was
difficult in Turkey due to specific conditions including more than
two decades of separatist violence, which he said was a platform
where the presence of non-military elements — such as politicians
or governments — was too weak. "Even the most militaristic country
in the world does not have an agency like the Turkish Armed Forces
Assistance Center [OYAK]," he said, referring to a body set up by
members of the military and their families for solidarity but which
acts like a business holding and is active in the construction,
automotive and iron and steel sectors and until very recently was
also involved in cement production, banking and insurance.

In other words, Cinmen said, unless the military’s relationship with
the civilian administration is clearly defined — as an entity under
the authority of the civilian administration — such legislation will
always remain a grim reality for Turkey.

Last but certainly not least, the Constitution itself is a law that
is implicitly anti-democratic, merely because it was installed by a
coup d’etat staged in 1980. "This Constitution was one forced upon
the people in a referendum; they were given only a single option. A
new constitution should be drafted," Cinmen noted.

"The fundamental problem is the Constitution. If the Constitution
is the roof in this, everything else, say the penal code or the law
on political parties or any other law, are the columns holding that
roof up," agrees Kardaþ.

"First, the philosophy of the Constitution should be made harmonious
with the concept of democratization. And everything standing in
front of democratization should be dealt with as a full package,"
Kardaþ said.

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