Courts violate newly passed laws under guidance of former jurist

The decision of the Ankara Public Prosecutor's Office to forward a complaint against a retired general to the Military Prosecutor's Office sparked a debate earlier this week over whether the office ignored a recently passed law that allows civilian courts to try members of the armed forces who are accused of a range of crimes including threats to national security, constitutional violations, organizing armed groups and attempts to topple the government.

The debate grew even fiercer when a similar bypass decision came from the General Staff's Military Prosecutor's Office, which ruled that a young man be tried by a military tribunal for attempting to evade military service through illegal methods.

The law, however, blocks the path for the trial of civilians in military courts. According to jurists and analysts, these decisions came as an open violation of the authority of Parliament and put a big stain on the country's legal system.

“There are circles who stand opposed to efforts to make Turkey a more democratic country. Recent decisions have shown that we will not go the distance on our path to democratization through the amendment of laws. We need a change in the mindset first,” stated Akın Birdal, a deputy from the pro-Kurdish Democratic Society Party (DTP).

 The decision by the Ankara Public Prosecutor's Office was on a complaint Birdal filed against retired Gen. Çevik Bir. Last month, the deputy filed a criminal complaint with the office against Bir, accusing him of playing a major role in the Feb. 28, 1997 process, also known as the postmodern coup, when the government of the time was overthrown through an unarmed military coup. According to Birdal, the Ankara Public Prosecutor's Office violated the law paving the way for military personnel to be tried in civilian courts when it decided that the complaint was out of its jurisdiction and forwarded it to the General Staff's Military Prosecutor's Office.

 “The new law has been ignored. Jurists will follow the judicial process at the Military Prosecutor's Office. We will decide what to do in the days ahead. We will not allow the complaint to be shelved. The culprits will appear before the judge,” the deputy remarked. The second decision was made against a young man known as M.Ş.M. by the General Staff's Military Prosecutor's Office, which ruled that the young man be tried by a military tribunal for attempting to evade military service using illegal methods. M.Ş.M., who is currently in jail, reportedly asked a military court to forward his file to a civilian tribunal as military courts are no longer entitled to try civilians. The court, however, declined his request. M.Ş.M. then appealed to the General Staff's Military Prosecutor's Office, citing the recently passed law prohibiting military courts from trying civilians. The office declined his appeal and sent his file back to the military tribunal.

 According to Mustafa Şentop, a professor of constitutional law at Marmara University, neither the courts nor the prosecutor's offices have the authority to ignore a law. The decisions in question came shortly after remarks by former Supreme Court of Appeals Chief Prosecutor Sabih Kanadoğlu, who said courts may bypass the new law as it is unconstitutional.

 “According to Kanadoğlu, the law is against the Constitution and should be ignored. He claims a lower legal norm could be ignored if it is in contradiction with a higher norm. However, in accordance with the existing Constitution, this practice is not valid. It was valid under the 1961 Constitution. If a court believes that a law is unconstitutional, then it should appeal to the Constitutional Court and wait for a maximum of six months for the court's decision. If a decision does not come within this period, then the court should comply with the law. In other words, it does not have the option to ignore the law,” Şentop explained.

 Kanadoğlu was at the center of harsh criticism in 2007 when he attempted to block the election of then-Foreign Minister Abdullah Gül to the presidency. Based on his interpretation of the Constitution, he put forward the idea that the parliamentary quorum for a presidential election is 367. His claim halted the parliamentary vote on the presidential election. The Justice and Development Party (AK Party) held a referendum, which resulted in the requirement that 184 deputies be in attendance for sittings and votes in Parliament.

 Mehmet Metiner, a columnist for the Star daily, criticized the “divine” role of Kanadoğlu among jurists. “If everybody keeps silent when Kanadoğlu talks and if his solutions to so-called judicial crises receive such widespread acceptance, then it is the clear sign of the pitifulness of our justice system. What purpose do other jurists serve if only Kanadoğlu is supposed to find solutions to every judicial problem? What purpose does Parliament serve? Or the will of the public?” he asked.

Will new constitution ensure rule of law?

Jurists and analysts have also debated whether a brand new constitution would help hinder attempts by some circles to interfere in the judicial system and interpret legal principles in accordance with their needs. The DTP's Birdal believes the current Constitution, drafted under military rule in 1982, provides grounds for illegal actions. “The government should replace it with a more civilian and democratic one. Otherwise, pro-status quo circles will continue to provide justification for their illegal actions from the Constitution,” he stated.

 According to Şentop, the new Constitution should include a provision of sanctions against jurists who issue erroneous verdicts. “There is risk of sanction against jurists in principle, but it is not applied. Jurists should no longer feel at peace, believing they will not be punished even if they make wrongful decisions,” he remarked.