Backpedalling on reform package frustrates jurists

Backpedalling on reform package frustrates jurists

Ergun Özbudun, Mustafa Şentop, Ümit Kardaş (from left to right)

April 17, 2010, Saturday/ 18:06:00
Changes made to the initial draft of the Justice and Development Party's (AK Party) constitutional amendment package in Parliament's Constitutional Commission have upset professors of constitutional law, who say many amendments in the draft make the package weaker.

Discussions on the package in Parliament's General Assembly will start on Monday. However, the changes it went through in the parliamentary commission make the package significantly less interesting, said Bilkent University professor of constitutional law Ergun Özbudun. “There was some hesitancy in the first draft. Now it appears that the weaknesses are even more pronounced. Not that they are going to be able to find consensus in Parliament on the package.”

Marmara University’s Mustafa Şentop said he agreed that the proposal which came out of the commission is significantly watered down from the initial draft. Both academics criticize a change in the package that seeks to guarantee that military personnel are tried in civilian courts for all crimes not related to the military. In the initial draft, they note that this would be the case for a military officer who has committed a crime against another member of the military. In the changed version, they point out, if a member of the military commits an act that is a crime against another member of the military -- even if it is an offense not related to military duty -- a military court takes the case. Although the changed version uses the expression “military crimes,” Özbudun says: “It says military crimes committed by military officers. What is the definition of a military crime, who will make that definition? Probably, it will be defined by a law to be passed. Depending on the trends of Parliament at the time when that law is passed, anything -- even regular felonies -- could be defined as such. I see this as a serious step backward from the initial draft.”

President Gül: Consensus not always possible

President Abdullah Gül yesterday said consensus on constitutional amendments and other changes in legislation was not always possible in pluralist democracies.

Gül’s remarks came during a joint news conference in Ankara after his talks with Estonian President Toomas Hendrik Ilves.

Recalling the absence of consensus among political parties concerning the government’s constitutional reform package, he said: “In pluralist democracies, the amendment of laws or constitutional articles does not always happen with wide consensus. There are debates and various opinions. There is always the possibility of agreeing in time. While the proposed amendments are being debated in Parliament, new opinions may be brought forward. I hope a process will take place that will result in more cooperation and further exchange of views. We will follow this process together.” İstanbul Today’s Zaman

Şentop also agreed that the new version keeps the military courts’ jurisdiction rather broad. “If the crime is not of a military nature, then why should it be tried at a military court? Why should two military officers fighting on the street be tried at a military court and not a civilian court? The wording about ‘military assignments’ is also ambiguous. For example, the people who were caught red-handed in Şemdinli were assigned a duty. But can such a duty be ‘military’?” he asked, recalling the case of two noncommissioned officers who were caught throwing a hand grenade at a bookstore in 2005. “I think this new version allows such crimes to be interpreted as military crimes. What constitutes a military crime is obvious. I think it is wrong to include crimes that are committed against members of military and those that are related to military service. It extends the scope of military crime.”

Another change the two academics criticize has been made to an article that regulates how closure cases can be filed against political parties. The new draft now allows filing closure cases against political parties due to statements in their programs and bylaws. “This is another step back,” Özbudun said. “The initial draft was better. There was no way to file a closure case against a political party based on its program or bylaws. Now parties that have not taken any questionable actions might face closure just because of a sentence in their program.” Şentop said the decision actually was a step backward from current laws regarding party closure. “This is definitely a step backward in terms of defending freedom of expression,” he said.

Retired military Judge Ümit Kardaş also criticized the last-minute changes in the reform package. “[In this version], four of the three criteria that currently regulate military courts in the Constitution remain in place. Crimes committed by military members against other members of the military such as fraud, trespassing or theft are to be heard in military courts.” He also said that not providing a concrete definition of military crimes is the most problematic part of the latest version of the draft.

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