İyimaya: Turkey has wealth of experience necessary to solve its legal debates

 “I think these problems are actually very small within the greater framework of Turkey's larger reforms. Turkey has the wealth of experience necessary to solve these problems.”

    Speaking with Sunday's Zaman regarding the latest changes that will make it possible for military members to be tried in civilian courts for crimes committed outside the military arena, Iyimaya said: “The Republican People's Party [CHP] is using the 145th Article of the Turkish Constitution as an argument.

But this can be re-analyzed, and its meaning can be highlighted. This is a problem which can be solved. Today the developments we see in distinguishing between military and civilian justice systems, in democratic criteria, in the independence of the justice system and in the independence of judges, all have great problems tied up with them. If military justice is to be continued, I believe we will see agreement from the opposition on the basic solutions to these problems such as having the military courts connected to the civilian courts in terms of control and in terms of the natural position it occupies.”

İyimaya also points out the failure to eliminate the temporary 15th Article of the Constitution, which has thus far successfully prevented the trial of coup enactors in Turkey, as a great shame for the political institution of the nation as a whole. He notes that on this particular question, the political arena ought to be subject to some self-questioning and self-criticism. Iyimaya went on to answer some questions regarding these topics from Sunday's Zaman:

How do you view the re-energizing of debates over the law in Turkey of late?

Turkey is a country now dealing with a mountain of problems, since the necessary reforms were not made in time. And because it is a dynamic country, Turkey at times does seem to face a very sped-up agenda. The last two or three weeks have been like that. I do not see three days ago or three days from now, or before or after the National Security Council (MGK) meeting as different from each other. Turkey is different now than it was even one year ago, and much different to how it was two or three decades ago.

How do these differences in Turkey nowadays affect democracy and the legal process here?

Society as a whole is more aware now, methods of communication have multiplied and become accessible to more people. Transparency has increased. Institutions as well as individuals have gone through mentality changes. If you were to ask me the difference between the way I think now and the way I thought even 15 years ago, I would tell you there are extraordinary differences at any point in my thoughts you look at. Information has developed and increased. I see Turkey and the path it is on as headed towards democracy, civilization and prosperity.

Do you think all the various institutions will be able to keep up with this rapid pace of change?

It is a law of social psychology. The moment deep-rooted changes start occurring, there are, whether you want them or not, some tensions felt by all. We begin to feel worried about whether perhaps our power or our status is weakening. And of course this also happens when institutional change occurs. But that is real knowledge, to be able to look forward into the future, despite where we may be at that moment, and try and see what lies before us.

 Toynbee made a very correct assessment in relation to the Ottomans; he said of them, “Always too late and too little.” This was in regards to the history of the Ottoman transformation. Had the Ottomans transformed and reformed more normally, we would now be talking about Europe trying to follow us. If only the Ottomans had reformed and changed on time, Turkey would be a model nation. No matter which period of reform you look at in Turkey, there are always those who opposed these transformations and those who supported them. Those opposed want to protect their own status quo, and at the same time, the resistance displayed by those in the opposition is both informative and educational for those who want to propel the reforms forwards, those who support those reforms. These days in Turkey we see links between bureaucracy/democracy and between big capital/the administration. In Turkey, the tradition of bureaucracy has 100, perhaps even 500 times the traditions attached to it than democracy does. And the process of democratizing Turkey, even if we write in the second article of the Constitution that it is a “democratic state,” is not actually that easy to inwardly accept on a mental level.

Does all this tension have a negative influence on society?

We are, in that sense, both a lucky and an unlucky generation of people. We are fortunate because we have some very positive duties when it comes to transforming this nation. But at the same time, we are not lucky in that we are experiencing all the symptoms and syndromes of these necessary reforms and transformations not having been done in time at the right time. But we need to stay away from clashes. In the modern world, bureaucracy is actually a vehicle. It is a vehicle that allows the state to deliver certain services that work for the happiness of society. But in Turkey, bureaucracy, particularly during certain eras, has been a dominant force. It has used this dominance. And it is not an easy thing to let go of this dominance. There are two main reasons why this period is stretching on: The first is that some of the people who were put into power by the people of the nation were not capable of making reforms in time and did not take advantage of the information available to them. They are not thus able to utilize the techniques of societal psychology. The second is that they might take steps backwards in the face of resistance. When methods that involve clashes and tension are used rather than trying to compromise and convince, you don't get results, and you destroy the efforts.

You say you see the route Turkey is on as being a good one. But at the same time, there is some powerful resistance to this change. How will the route Turkey is on take root ultimately?

Well, life itself is not confined to the reality of the sun rising in the east and setting in the west. Life is in and of itself a difficult thing. Those things that don't change, head, over time, towards elimination, which is why time itself brings change. We may not really witness it ourselves, but time does slowly effect change on its own. But countries that are developed leave countries that are slow to develop behind in terms of prosperity.

Here in Turkey, all of the population, all citizens, everyone has a duty. And in order to read the age we are living in correctly, and to carry out reforms in time, it is critical to see we provide a good education. But I do believe our institutions and people are a bit behind the times.

You have expectations of steps to be taken forward, so what are they?

Turkey is one of those rare nations without a social contract and whose societal will has not yet been created. Our Constitution was created at the hands of social engineers. The social contract to be made in Turkey needs massive participation. In the end, this will have to happen. But still, the political institution as a whole has a very weak volition. A shared reflex is not being created. The law from abnormal periods of the country's history is made into the normal law of more ordinary periods of history. We need for our administration and the opposition to approach the problems facing us from a wider perspective.

Of these institutions, will the Turkish Armed Forces (TSK) really be able to accept the narrowing of the authority of the military justice system?

Well, our military, our armed forces, are a perpetual element of our nation, our people, our existence. In fact, due to its strategic and geographical position, Turkey is a nation with one of the greatest needs for a military. Another reality here is that the birth of Turkey's modernization is very tied to reforms made in its military, reforms which came about as a result of the Ottoman Empire falling behind in techniques of war and thus losing battles. This is a historical reality which, whether or not you like it, has followed us to today. But there are also clearly visible world standards in our society. The difference in Turkey between the military and civilian justice systems is one which is differentiating us from the rest of the world at this point. The supremacy of law, the right to a fair trial, the objectivity of judges and the independence of the justice system are all values in ascendance now. The problem we face is that you see a difference in the way we structure our military justice system, when compared with other countries' constitutions.

There has been talk about an "exit guarantee" recently. What does it really mean in politics?

Well, this is a concept that the political institution is not really all that aware of. It means that the models and institutions that remain from interim regimes and coup periods remain in place during normal political periods. Our Constitution's 15th Article and the military justice system model can be seen within this framework. Yes, a military justice system is necessary, but it is necessary within its own role profile.

There are certain situations that call for justice system mechanisms within the parameters of the military arena. When you look at this in terms of comparative justice, we call this discipline justice. This covers infractions such as using authority within the military for incorrect or illegal purposes, neglecting duties, soldier against soldier crimes. This is of course subject to wide debate. Those who violate military values could literally be tried by the military justice system. But there is just no sense in leaving crimes committed within the arena of the military, but which have no literal connection to military values, to the military justice system. These are crimes which must absolutely be tried in the civilian justice system.

If necessary, the 15th Article of the Constitution could be changed. I am on the side of it being renewed, not through changing it, but by reapplying and reinterpreting its meaning. Turkey needs to think seriously about these different types of justice systems and needs to see its institutions compromise on changes that can be made that can simplify our laws on this matter. This need of ours emerged even more clearly with the latest changes made.

The debates over simplifying the military justice system have gotten larger quite fast. Do you think this is normal? Is there an interim period necessary here?

Turkey has the wealth of experience necessary to carry out successful debates on this matter and to make the necessary changes and simplifications. Turkey will solve these problems. Of course, it's quite late to be reviewing the differences between our military and civilian justice systems. Who is to appoint the court judges, what the relations between the commanders and high judges is to be, whether a Military Supreme Court of Appeals is necessary. We need to think about all this. This cannot all be considered in one day, so we do need a period of transition. Whether this period is to be 10 years, seven years, I don't know. But we should not forget that allowing prolonged transition periods means the risk of leaving off reforms in the end.

Relations between the administration and the opposition have become tense again over this subject. How do you see the dialogue on this topic within the parameters of the political arena?

Well, leadership is so important in the political institution. The biggest trap facing our political leaders is the risk of drowning in the realities brought about by this particular conjuncture in time and not being able to bring about the compromise necessary for reforms for the future. But why does this happen? Well, the present conjuncture is quite active and chaotic, and it brings about tension no matter what. It creates tension between leaders, between parties. But if leaders can sit down and compromise, they can create the foundations for the nation for perhaps not the next 100 years, but at least for the next 30-40. And we should really not see our current leaders as being outside of this capacity, whether you are talking about Erdoğan, Baykal, Bahçeli, Türk, President Gül or our members of Parliament. It would be unfair not to see them as able. But we need to put our heated debates in the fridge now, so to speak, and talk about the future. Why shouldn't we reach the point or even beyond that EU countries are now at? These are not changes that will happen in one day, but I believe we can overcome Turkey's large problems by coming together as one. 

The debate could have been better framed

There has been much criticism of the late-night passing of the changes to the law that allows the trial of members of the military in a civilian court. How do you view this criticism, as the head of the Justice Commission?

Well, it would have been more appropriate to have had these changes talked about and debated within the Justice Commission, and in fact to have called in experts from all sides, even members of the civilian and military Supreme Court of Appeals.

 The stance shown by our party members on voting the next day is something only they really know about. That stance could be analyzed from different perspectives. Let's say this business, in the coming period, after the president's approval or sending back to Parliament of the motion, could go to the Constitutional Court at the urging of the main opposition party. It is a topic that our commission might analyze. It is not unsolvable. The problem is rooted more in the methods that have been used to deal with it than the essence of the issue itself. As far as I am concerned, if this topic had been debated first in the Justice Commission, it would have been better. Then these latest rounds of debates would not have occurred. The political parties would have had a chance to express themselves.