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June 20, 2011, Monday

Judges’ tough decision

The legal conundrum with respect to detained suspects who have been elected as deputies has brought the country to the brink of a political and legal test.

The courts will make the final rulings on the nine suspects held in detention in connection with the ongoing Balyoz, Ergenekon and Kurdish Communities Union (KCK) cases. It would have been easier only if the debate had been confined to the sphere of politics or law. But now there are two conflicting positions.

From a political perspective, the elected should be free to perform their duties as deputies in Parliament. However, the judiciary is obliged to follow the law. The judge’s view should be limited to the framework and discretion allowed by the law. A custodial trial is not a measure resorted to when the suspect is likely to abscond. Tempering the evidence and the likely prolongation of the offense are more important than the danger of absconding. Suspects fleeing abroad would do no harm to the validity and legitimacy of an investigation.

However, there is no doubt that tampering with evidence or continuing the commission of the offense would have visible repercussions for society. This is particularly the case in times where offenses are made against the constitutional order. The reasoning that a suspect would not abscond just because he has been elected a deputy is baseless; the position of deputy may even provide an advantage to cover up or prolong the offense.

There are a number of legal instruments that need to be changed in the bulk of our legislations, including the Constitution, just because they are now outdated. This mission lies with Parliament. The judiciary cannot act on behalf of Parliament to make laws. And the general rule cannot be forfeited once. If the judiciary is allowed to act as a lawmaker, we then have to rescind all previous criticism of the politicized judicial institutions, including the Constitutional Court, the Council of State and the Supreme Court of Appeals.

Political parties have intentionally caused the current chaos. The Republican People’s Party (CHP), the Nationalist Movement Party (MHP) and the Peace and Democracy Party (BDP) were well aware that if they were elected, suspects being held in custody would cause a confrontation between the law and politics. This is a path that political actors prefer to take frequently.

As you may recall, Constitutional Court President Haşim Kılıç, when stating the court’s decision on the case to dissolve the Justice and Development Party (AK Party), called on the institution of politics. In his statement, Kılıç said: “Making the necessary changes to the Constitution and to the law will ensure that we will not have to face such cases and that we will not have to decide on crucial matters vital for the future of the country.” Unfortunately, this opportunity was missed due to the “contribution” of the BDP to the process shortly before the referendum was held to vote on a constitutional amendment package on Sept. 12. Now we are facing a similar problem whereby politicians are criticizing the procedure of custodial trials.

It is not appropriate to criticize the judiciary by forcing the judges to break the law, instead of fixing the contentious issues in the legislation. The mistake was committed at the beginning. The nomination of suspects detained for crimes which do not require lifting immunity, and thereby bringing the country to the verge of chaos, is something that deserves strong criticism.

The majority of judges uphold that releasing controversial figures just because they are elected deputies is not acceptable. The release of retired Gen. Engin Alan does not seem legal or logical while War Academies Commander Gen. Bilgin Balanlı is held in custody. What makes Mehmet Haberal more privileged than Veli Küçük? The same also applies to the KCK suspects. This means that party administrations are making decisions based on who will be released and who will remain in custody.

The BDP may believe that their party members being held in custody are innocent. The same is also true for the MHP and CHP administrations. If you ask the MHP, it would favor the preservation of the current state of affairs with respect to the KCK suspects, whereas the BDP would prefer pro-coup figures stay in prison. On what basis will the judiciary make its decision? What seems appropriate is to wait for the outcome of the trial and to take action in Parliament to fix any mistakes likely to arise during the procedure.

The current outlook of Parliament is outstanding considering that it was formed out of an 87 percent turnout rate and has 95 percent representation. Seeking the solution anywhere else would be treason to democracy. This would mean the end of the dreams of making a civilian constitution. The people would never forgive this.