No one denies the necessity of maintaining a continuous, fair judicial review of the acts and activities of senior officials in key positions. Everyone can be assured that if some bureaucrats are excluded from judicial review by immunity, as is the case with the latest amendment to the MİT law, this will lead to irrevocable, grave errors. “A bill should not be specific to an individual” may be a legal cliché. But who can say it is wrong?
On the other hand, it is obvious that the overwhelming majority of the Turkish nation has full trust in Prime Minister Recep Tayyip Erdoğan and the bureaucrats he appointed. This trust is based on the popular belief that the prime minister will not abuse the tremendous power he wields and the fact that his party, the ruling Justice and Development Party (AKP), has been winning all elections by bolstering its support well is evidence of this trust. Moreover, Prime Minister Erdoğan’s tendency to protect MİT Undersecretary Hakan Fidan, a bureaucrat he relies on and values, from the risk of being undermined as a result of a judicial investigation may be understandable as an ordinary human attitude. However, none of these overrides the theoretical fallacy of passing a bill to protect a specific person. And it will also fall short of eliminating the emerging concerns felt by the general public. Who can assure us that some bureaucrats who may be entertaining ulterior motives will not use this protective armor created by the AKP for their evil purposes when the political balances changes in the future? Who can tell us that it is unfounded to have concerns or suspicions that the move to provided full immunity before the law to the intelligence organization, which already conducts its activities behind a veil of complete obscurity, will create a suitable environment for the flourishing of new deep state gangs?
To understand what sort of problems may result from affording an armor of immunity to specific people or institutions, it may be sufficient to have a look at some new pieces of evidence gleaned from the most recent phase of the ongoing probe into Ergenekon, a clandestine organization nested within the state trying to overthrow or manipulate the democratically elected government. If in our country, which has suffered repeated military coups or interventions in the past, the officials assuming critical positions such as the office of the chief of General Staff are immune to judicial review, as was the case in the past, would it be possible to try former Chief of General Staff Gen. İlker Başbuğ on charges of “establishing and managing an armed terrorist organization and attempting to destroy the government of the Turkish Republic or prevent it from performing its duties”?
If the judicial authorities had not been conducting a probe into the Ergenekon terrorist organization and if they had not felt confident about their power to investigate anyone with grave charges raised against them, would it have been possible to unearth Gen. Başbuğ’s illegal efforts to pave the way to destroying the democratically elected government and Parliament? If the judicial authorities had not pursued this investigation, who would have stopped the anti-democratic efforts that were again whipped up in 2009? If the shady operations led by Gen. Başbuğ had been successful, we would not be living in a democratic country today. In other words, I would not have been able to pen this article and you would not have been able to read it.
Assuming that the principle of the separation of power is still in place despite the executive power’s efforts to meddle in the judiciary and the legislative power, I must note that like all other bodies and institutions functioning in subordination to the executive, the military, the police and the MİT must be subject to judicial review. It is no brainy task to predict what sort of gangs or shady networks may form if these armed institutions, which are also equipped intelligence facilities, are given the right to perform their activities behind the protective armor of immunity to judicial review. Those who fail to make any predictions about this matter or make sense of our concerns should try to recall once again the thousands of unsolved politically motivated murders and assassinations in the 1990s as well as the military coups and interventions the country suffered though in the past.
Those who want to see the magnitude of self-confidence the Turkish Armed Forces (TSK), the police and MİT might have had had they not entertained any concern for judicial accountability should read or take a cursory look at the accusations raised against Gen. Başbuğ in the 39-page indictment. For instance, a perusal of pages 25-27 of the indictment will show one the obvious difference between a chief of General Staff who lacks any sense of judicial review or the rule of law and a chief of General Staff who accounts for his deeds in court. There is stark contrast particularly between the statements Gen. Başbuğ made about the probe into the plot to assassinate several admirals when he was on active duty and the testimony he gave to the prosecutor before he was arrested.
In the indictment, it is said that in an interview Gen. Başbuğ gave to Fatih Altaylı and Murat Bardakçı on Feb. 10, 2010, and that was published in Altaylı’s column in the Habertürk daily on Feb. 11, 2010, with the title, “Başbuğ: This is utter shame. Stop it, man!” Başbuğ was reported to say: “What was written in the newspapers for months? They claimed that the naval forces commander would be assassinated. They repeatedly wrote that commanders and admirals would be assassinated. What were they trying to do? Did they mean to say ‘these marines are so unscrupulous that they would even kill their own admirals’ and try to make everyone believe this? They did, in my opinion. But what happened in the end? The fifth indictment has come out. Does it include even a single statement about these assassination attempts? I have read it all. There is none. There is not a single line about an assassination. So what? What happened to the claim that they would kill their own admirals? Where is it? Assassination, assassination, assassination -- for months. The indictment came out. There is not a single line, man. A single line. What happened to the assassination? Now, someone must give me an answer. They were claiming that the admirals would be assassinated. But this claim can’t be found in the fifth indictment, the one about this matter. Who will explain this? Isn’t this utter shame? In the statement I made in Trabzon [at a press conference aboard a warship and to which he attributes special meaning, apparently] I made this clear. Claims must be examined diligently. For months, they wrote about assassination claims. But, now, it turns out there was no assassination plot. None. So what happened? Hell, none. Stop it, man! We say, ‘We are out of patience.’ And you ask in return, ‘What’ll happen then?’ But in the end, such things drain our patience. Yet all such things are demoralizing my soldiers. I fight everyone who demoralizes my soldiers. Yet, I must note that they should not force these soldiers to their limits.”
However, in the latest indictment prepared against him, it is said: “Although Gen. Başbuğ claimed the indictment did not contain a single line about the assassination plot, the indictment prepared by the chief public prosecutor on Jan. 28, 2010, reads: ‘Considering the fact that the police searched the houses of suspects Faruk Akın and Sinan Efe Noyan and found explosives and bullets about which an expert report was included in the case dossier, and that the police also found in the bag containing these bullets a note detailing the planned attack against then-Naval Forces Commander M. Metin Ataç and Fleet Commander Eşref Uğur Yiğit, it is concluded that the organization had obtained and concealed explosives that would be used for the attacks it was planning to carry out in line with their goals.’”
In response in the testimony he gave to the prosecutor on Jan. 5, 2012, suspect Gen. Başbuğ said: ‘The indictment contains assassination claims. My statements were wrong; I accept this. The indictment does contain some claims about an assassination. However, I saw in the final section that no legal action was brought against the people concerned. No accusation as to that effect has been made; this was what I intended to say. My intention was never to discredit the incidents detailed in the indictment. I meant that no action was brought against anyone concerning these claims.’”
This is only a simple example. The indictment contains similar examples in plenty. In sum, public officials in critical positions may be lured into committing crimes if they start to think they are exempt from judicial review. At least they may become reckless liars as in the case of Başbuğ. I gave him the nickname “Pinocchio” when he was on active duty for a reason.
