YAŞ decisions should be subject to judicial review, analysts agree

“It is rather difficult to understand why we are deprived of a body that could check YAŞ decisions. If a country does not have a body to monitor such vital decisions, then it cannot be considered to be governed by the rule of law,” said Professor Mehmet Altan, the chief columnist of Star daily.

Every year Turkey witnesses fierce debates over the YAŞ meetings, during which the TSK and the government decide on promotions and retirements within the military. The YAŞ meetings, which take place twice a year, are also an occasion in which officers suspected of engaging in anti-secular activities are expelled from the TSK.

Officers expelled from the military do not have the chance to appeal to a judicial body or ask for a review of the decision for dismissal. For the last few years, analysts have voiced a strong demand for the establishment of a body to monitor YAŞ decisions.

 “You make a decision but close the door for appeal for the addressee of the decision. This is pretty strange,” noted Altan.  According to Altan, the lack of a higher body to review YAŞ decisions is a result of a mindset dating back to the Sept. 12, 1980, coup.

 “This is a result of the Sept. 12 Constitution. It is the remnant of a pro-coup mindset. I guess we will continue to discuss the necessity for monitoring such controversial decisions until we take concrete steps to eliminate the remains of this mindset,” he stressed.

 Altan was also referring to decisions by the Supreme Board of Judges and Prosecutors (HSYK). The board was the center of harsh criticism in past weeks due to its attempt to replace judges and prosecutors conducting Turkey's top judicial cases. Several jurists called for the establishment of an institution to monitor the modus operandi of the board.

Mahir Kaynak, a terrorism and intelligence specialist, approached the debates over the YAŞ dismissals from a different perspective and said the YAŞ decisions should not be subject to judicial review unless all doubts over Turkey's legal system are dispelled.

“In principle, I favor the idea that all such decisions be open to judicial review. However Turkey's legal system is highly controversial at the moment. While heated debates are going on over the judiciary, would it be logical to forward the YAŞ decisions to judicial bodies for review? Such a move would serve nothing else than to increase debates over the decisions,” Kaynak stressed.

Discussions over the impartiality of judicial organs have recently seen an increase, especially with the emergence of photos of some members of the judiciary with suspects who are currently standing trial in ongoing cases.

Earlier this month Turkish papers published a photo of HSYK member Ali Suat Ertosun in a meeting at Ankara's Kent Hotel with several suspects in the case of Ergenekon, a terrorist organization accused of plotting to overthrow the government.

Then, a photo was published of Prosecutors and Judges Association (YARSAV) head Ömer Faruk Eminağaoğlu at a restaurant with another Ergenekon suspect. Observers termed those photos “scandalous” and said such meetings between jurists and suspects put a stain on the Turkish legal system.

“First of all, we should get rid of controversy over our legal system. Then we can open all decisions to judicial review,” Kaynak remarked. The specialist also underlined that the YAŞ decisions are not made solely by the TSK and that representatives from the government join in deliberations to make those decisions.

Tension between the government and the TSK is, however, often high over the YAŞ dismissals. The government has the right to annotate the YAŞ decisions, a right with which the military is displeased.

‘Constitutional amendment crucial for judicial review of     YAŞ decisions’

 The tension also made its way into the second Ergenekon indictment. Based on excerpts from the diary of Mustafa Balbay, a journalist currently standing trial in the Ergenekon case, the indictment reveals the tension that erupted when Defense Minister Vecdi Gönül offered a judicial review for the YAŞ decisions in 2002. Nevzat Tarhan, a professor of psychiatry, said it was crucial to amend Article 125 of the Constitution to open the YAŞ decisions up to judicial review.

Article 125 lays out the recourse to judicial review and stipulates that if the implementation of an administrative act would result in damages which are difficult or impossible to compensate for and at the same time this act is clearly unlawful, then a stay of execution may be decided upon, stating the reasons therefore. The law may restrict the issuing of stay of execution orders in cases of states of emergency, martial law, the mobilization and state of war, and for reasons of national security, public order and public health.

According to Tarhan, this article provides a psychological ground for crimes committed in the name of national security. Tarhan was dismissed from the military, where he was a colonel doctor, in 1997 for being an observant Muslim.

“This article creates the impression that the law can be shelved any time. A constitutional amendment would not serve any effort for democratization unless this article is amended. Everyone in the country should feel that he may be put on trial for their crimes, even if he is the president. Otherwise, closing the door to the judicial review of decisions such as those by the YAŞ undermines people's trust in the judiciary,” Tarhan stressed.

The professor also claimed that the TSK list for the dismissal of military members is prepared by a formation inside the military known as the Western Study Group. This group, a clandestine group formed within the army during the Feb. 28 coup, blacklists various politicians, intellectuals, soldiers and bureaucrats as “dangerous personalities” who are perceived as threatening the regime.

Asked whether the government has the right to oppose the dismissal list during the YAŞ meetings, Tarhan said the government may annotate the proposals, a move which has only symbolic meaning.

 “However, the president has the right to refuse to put his signature on the YAŞ decisions. He may say he will not sign those dismissals unless they are open to judicial review. Such a move would indeed speed up efforts to change the Constitution,” Tarhan noted.

Retired Brig. Gen. Adnan Tanrıverdi, head of the Advocates of Justice Association (ASDER), termed the YAŞ dismissals "unlawful," recalling that the TSK started to expel its staff in 1987.

"The Chief of General Staff [Gen. İlker Başbuğ] dwells in press conferences he calls on the rule of law and underlines the military's respect for the law. However, the same military subjects its own staff to injustice through administrative decisions which are not subject to any judicial review. This injustice should not continue any longer," Tanrıverdi noted.

The retired general also said that dismissed military staff should at least have the right to be tried in military courts. "The military judiciary has wide powers. The TSK should forward the staff it plans to dismiss to the military judiciary. The staff should be tried there, and the TSK should make its final decision on them only later," Tanrıverdi stressed.

He also remarked that this year's YAŞ meeting should mark an end to extrajudicial dismissals from the military.