A year after the Sept. 12 referendum in 2010, when partial constitutional amendments were adopted, we interviewed experts on the impacts of the constitutional amendments endorsed by 58 percent of the population and most of these experts agree that higher judiciary and military tutelage over civilian politics has been significantly reduced.
On the first anniversary of the adoption of a government-sponsored reform package with record support from the public in a referendum, there is general agreement among experts that the reforms have played a crucial role in weakening judicial and military tutelage in the country while strengthening democracy
Noting that Turkey was an oligarchic and bureaucratic state up to 2010, retired military judge Faik Tarımcıoğlu says that without the referendum, military and judiciary tutelage would have remained until today. Retired judge of the court of Appeals Ahmet Gündel notes that the referendum results created a revolution in the rule of law in Turkey. Noting that the endorsement of the constitutional package could not be explained by political motives alone, journalist Orhan Miroğlu stresses that there are many other things to do, including promulgation of laws in connection with the constitutional amendments on affirmative action for women and the handicapped.
Miroğlu who was subjected to torture and mistreatment at the Diyarbakır Prison where he stayed for seven years during the Sept. 12 military coup era says: “I would have voted for the referendum even if it had been held years ago because the referendum was a big leap forward in the process of change. The biggest outcome of this period is that popular support for the end of military guardianship and change was secured. The package included articles introducing affirmative action clauses for women and the handicapped. My 20-year old son Zerdeşt also voted for the package. No significant follow-up steps have been taken since then, but we are optimistic.” Speaking to Today’s Zaman, Miroğlu said he was hopeful that a new constitution would be made, the Kurdish issue would be resolved and the weapons would be silenced.
Referring to the Supreme Board of Judges and Prosecutors (HSYK) and the Constitutional Court as two major elements that contributed to the preservation of military and bureaucratic guardianship, Tarımcıoğlu further says: “Unfortunately, the HSYK and the court have made scandalous decisions to protect the ideology of military guardianship. The Council of State and the Court of Appeals also supported guardianship by relying on the same ideology. In its verdicts, the Constitutional Court honored the ideology of the guardianship regime, rather than the rule of law, the spirit of the Constitution, EU legislation and European Convention on Human Rights (ECHR) case law. The best examples were the 367 decision -- an unprecedented legal anomaly that aimed to prevent the election of Abdullah Gül as president -- and the party closure case, which resulted in Treasury aid to the AK Party being cut in 2008. The Council of State, the Court of Appeals and the HSYK have formed some sort of caste system. Almost all of their decisions were inconsistent with the law. The changes to the Constitutional Court, the HSYK and the Council of State in recent times have been historic steps to eliminate the guardianship.”
Stressing that the new regulations and mechanisms introduced in the aftermath of the Sept. 12 referendum have raised hopes for attaining an advanced democracy, Tarımcıoğlu also notes that legislative changes have accelerated the process. Noting that former Chief of General Staff Gen. Işık Koşaner’s statements referring to the office of ombudsman, he says: “Even the decision to set up such an office is influential before it is actually institutionalized. Significant changes have been made on the first anniversary of the referendum that improved the quality of people’s daily life.”
Noting that guardianship is a systemic flaw, Tarımcıoğlu stresses that institutions of guardianship have been normalized with a change in the system. He further says: “Once the Constitutional Court and the HSYK changed, the bureaucratic guardianship mentality disappeared in these institutions because tutelage was not a product of the individuals. The Constitutional Court was normalized with a change in the system. Without the Sept. 12 referendum, there would have been no sign of further democratization in the July 12 elections.” Referring to the Sept. 12, 2010 referendum as something that almost completely eliminated judicial and military guardianship, retired judge Gündel defines it as a revolution.
Noting that the political stance or background of the political administration does not matter for the guardianship regime, Gündel says: “The greatest obstacle to attaining a state of democracy and rule of law was the judicial and military guardianship. With the referendum, significant steps were taken to address this problem. For the guardianship actors, the name or the title of the party in power did not matter at all. The military and judicial guardianship did not consider the political stance of an administration that did not serve its interests. If the CHP [the main opposition Republican People’s Party] had made similar moves, it would also have been the target of the guardianship. The military would have served as an actor of guardianship in that case.”
Noting that further steps are needed to put the military in its place within the state apparatus, Gündel stresses that this would be done by a new constitution and additional legislation.
Gündel further says: “Very important changes were made to article 145 of the constitution on the duties of the military courts. It is now possible to hold the chief of General Staff and top military commanders responsible under the new regulations. With the referendum, Turkey has come closer to becoming a state under the rule of law and democracy.”
Guardianship ends as Turkey confronts past
The Sept. 12 referendum also enables Turkey to confront its past. Judges and prosecutors are now authorized to investigate the dark history of the country, carrying out efforts to shed light on what happened over the last three decades. The ongoing investigations raise hopes for a brighter future. The Ergenekon investigation initiated on June 12, 2007 was further consolidated by the results of the Sept. 12 referendum. With the removal of article 15 of the Constitution, it is now possible to try the coup-makers in Turkey. This also gives Turkey the opportunity to investigate the murders committed during the coup era that have so far remained unresolved, including those committed in Diyarbakır Prison.
The investigations initiated since the referendum on constitutional amendments include:
Çillioğlu investigation: Upon allegations that former Tunceli Gendarmerie Commander Colonel Kazım Çillioğlu did not commit suicide, the file on his death was reopened on May 9, 2011. The investigators who examined the documents found that it could not be said that he committed suicide. The body was exhumed for an autopsy on June 9, 2011 and it was discovered that he was tortured before he died. The Malatya Prosecutor’s Office is investigating the case.
Bitlis investigation: The Ankara Prosecutor’s Office on Sept. 30, 2010 initiated an investigation into the death of former Gendarmerie Commander Eşref Bitlis, who died in a plane crash in 1993. The prosecutor’s office reexamined the voice recording of retired Col. Arif Doğan and found that the crashed plane was sold on June 22, 2011. Doğan’s voice recordings, anonymously posted online, have led to the reopening of an investigation into the death of the gendarmerie commander. The investigation into the case continues.
Özal Investigation: The assassination attempt against eighth Turkish President Turgut Özal in 1988 and the allegations about his death in 1993 are now being investigated by the Ankara Prosecutor’s Office, which initiated legal action on Sept. 29, 2010. The investigation is being led by prosecutors Hüseyin Görüşen and Kemal Çetin. Özal’s body may be exhumed for advanced forensic examination due to lack of evidence.
Ankara investigation on unidentified murders: The investigation carried out by Ankara Prosecutor Hakan Yüksel into the death of lawyer Yusuf Ekinci, whose body was found in Ankara’s Gölbaşı, has been expanded in connection with information provided by Ayhan Çarkın. As part of the investigation, the death of lawyers Faik Candan and Ekinci and former Health Ministry Undersecretary Namık Erdoğan are being examined. The members of the National Security Council (MGK) of the time, with the exception of Süleyman Demirel and Tansu Çiller, will be called to testify.
Sept. 12 investigation: The prosecutors’ offices have received many complaints since the abolishment of article 15 of the Constitution in the Sept. 12 referendum. Prosecutor Hamza Keleş ruled that the complaints were outside his jurisdiction and referred the file of complaints to the Ankara Prosecutor’s Office on Sept. 27, 2010. The office assigned prosecutor Murat Demir to investigate the case; however, Demir forwarded the file to a specially authorized court. At the instructions of prosecutors Mustafa Bilgili and Kemal Çetin, former Gen. Kenan Evren, who led the Sept. 12, 1980 military coup, and Tahsin Şahinkaya, one of the senior leaders of the bloody coup, were called to give a statement on the Sept. 12 coup.
Diyarbakır Prison Investigation: Acting upon criminal complaints, Diyarbakır Chief Public Prosecutor Durdu Kavak initiated an investigation into the infamous Diyarbakır Prison, where many were tortured between 1980 and 1984. The prosecutor who heard the witness accounts and statements by those who filed complaints asked the Ministry of Defense and Ministry of Justice to forward a list of the names of military and civilian staff serving in Diyarbakır Prison back then.
Şemdinli Case: Van prosecutor Ferhat Sarıkaya, who carried out the investigation into a Nov. 9, 2005 bomb assault on Umut Publishing House, indicted some military commanders in connection with the investigation. The Van 3rd High Criminal Court sentenced the defendants to 39 years in prison. The file was taken to the Court of Appeals, which forwarded the case to the military court, which released the defendants. After the Sept. 12 referendum, the case was reopened at the Van 3rd High Criminal Court, which issued a warrant for the defendants’ arrest. Sarıkaya was readmitted as a prosecutor, as he was earlier removed from his office in connection with the investigation.
Investigation into outpost attacks: The first civilian investigation into raids on military outposts was initiated by the Van Prosecutor’s Office. Families who lost their sons in attacks in Dağlıca, Aktütün, Gediktepe and Hantepe filed complaints with the İstanbul Prosecutor’s Office on Aug. 18, 2010. The office referred the file to the Van Prosecutor’s Office. The investigation is currently being carried out by prosecutor Osman Nuri Güler.