The legal repercussions of May 27 (1) -- ‘Legal system irreparably damaged in May 27 coup’

How did these coups affect the legal system and the judiciary? We searched for answers to these questions. While liberal and democrat intellectuals note that coups have inflicted incurable wounds on every aspect of life, some leftist intellectuals argue that every event should be evaluated within its own context.

Speaking to Today’s Zaman, Democratic Judiciary Association Chairman Associate Professor Osman Can underlined that the May 27, 1960 coup d’état put an end to the judiciary as people knew it. “The biggest catastrophe was the elimination of the relationship between democratic legitimacy and judicial functions,” he said. Former Democratic Left Party (DSP) coalition Justice Minister Hikmet Sami Türk, who responded to Today’s Zaman’s questions, said the foundation for judicial independence was laid with the constitution drafted in 1961 following the May 27 coup. Speaking to Today’s Zaman, Parliament’s Justice Commission chairman, Ahmet İyimaya, said: “Every coup deeply damages the legislative mentality. The May 27 coup turned legal experts whom we held in high esteem into advocates of the coup. The law was at the disposal of people in superior roles.”

The judiciary ended with the May 27 coup

Underlining that the judiciary became isolated from society starting with the 1960 coup, Can said: “The relationship between the judiciary and political demands, society’s demands and expectations for justice were eliminated with the pro-coup mentality of May 27. According to coup supporters the judiciary was both ideological and sacred. The judiciary was not supposed to have a connection to society’s demands.”

Can emphasized that in a democratic system a judiciary that has no links to society’s demands is not a democratic judiciary. “The judiciary ended in this country with the May 27 coup. Instead a system that was called the judiciary but had no judicial functions and solely protected the ideology was constructed.”

Can explained that attempts by the administration that came to power by vote in 1950 to change the legal and political practices established between 1924 and 1950 were prevented through fascist methods and the 1960 coup only worked to created the constitutional framework to support this.

Barriers were erected that would prevent any freely elected legislature or executive branch from changing the judicial ideology in any way. “May 27 was a disaster for the legal system. Legal and political practices created between 1924 and 1950 were perpetuated at the constitutional level so that new governments to be set up by free elections would not be able to renew or change them in any way. For this reason, a process of elimination was started in the judiciary first. The judicial ideology that existed between 1924 and 1950 was established by racist and fascist ideologists who were prominent at the time, such as Mahmut Esat Bozkurt and Recep Peker. Between 1950 and 1960 new judges and prosecutors who were not dependent on fascist ideologists had been brought in. These people were quickly dismissed.”

After the dismissals, a return to fascist ideology

One of the first operations in 1960 involved the discharge of members of the judiciary, explains Can, adding that the May 27 coup planners had targeted the judiciary before they even took action.

He noted that half the Council of State members and one-sixth of the members of the Supreme Court of Appeals were discharged because they did not conform to the pattern of fascist ideology. “The dismissals in the first seven to eight months show that one of the main reasons for the coup was to make the judiciary uniform. In other words, the first aim of those who planned the coup was to disconnect the judiciary from the public and from the legislative and executive branches, which derive their authority from the public.”

In addition to members of the higher judiciary more than 500 class-one judges and prosecutors were forced to retire, allowing the coup planners to re-establish the pre-1950 ideological homogeneity, Can said. The constitutional system of 1961 was built in this kind of a “sterile” environment. In this way the pre-1950 judicial ideology was made into the dominant ideology of the constitution, he said, explaining that this racist ideology also had no tolerance for judicial transformation within the democratic system.

Recalling that under the 1924 Constitution justice ministers were the absolute judges of the judiciary, Can noted that while the CHP capitalized on this fact until 1950, it could not tolerate other parties taking advantage of it. This is why the executive’s influence was diminished, he said. “Between 1924 and 1950 there was a single party ideology, and the justice ministers were the absolute judges of the judiciary. When the government changed in 1950, this sovereignty was seized by the Democrat Party [DP]. For 10 years, names close to the DP found the opportunity to transfer to the judiciary. Since this was intolerable, it was decided to exclude the executive branch from the judicial system that was created with the 1961 Constitution.

Underlining that there was no significance in giving Parliament the authority to determine one-third of the higher judiciary with the 1961 Constitution, Can said: “From among which judges was Parliament going to choose the higher judiciary members? They were going to be chosen from among names that had been sterilized by the coup-period dismissals, in other words, from among the names that had been sanitized according to the single party period judicial ideology. Parliament’s selection of names that were loyal to the ideology that prevailed in the 1924-1950 period meant the national will wasn’t being represented. It is for this reason that Parliament’s partial contribution during that period did not offer anything new.”

Noting that the caste system in the higher judiciary and the problems we face took root during the May 27 coup period and during the subsequent March 12, 1971 and Sept. 12, 1980 coups, Can explained the process: “In 1961 the judiciary was determined to be independent of democratic legitimacy and democratic demands. First, the executive was excluded and then the legislative was excluded with an amendment introduced following the 1971 coup, and the Supreme Court of Appeals was made the absolute authority over the judiciary. That marked the beginning of a system in the judiciary that has continued until today. With the Supreme Board of Judges and Prosecutors [HSYK] being set up in 1982, a system equipped with absolute authority over the judges and prosecutors was developed.”

May 27 severed relationship between judiciary and democracy

Referring to May 27 as a “democratic revolution that expanded rights” is a complete hoax Can said. “What May 27 did was end democracy. You cannot call an act that eliminates ties between state functions and democratic demands democracy.”

He underlined that the judiciary had been turned into a tool of tutelage and explained that after the judiciary was disconnected from the national will it did not undertake any efforts towards the transformation of democracy. Noting that the judiciary stood behind the military authority against the civilian will during very critical periods, Can said: “Unfortunately, during the March 12, 1971, Sept. 12, 1980, Feb. 28, 1997 and April 27, 2007 coup/memorandum periods the judiciary always stood against social demands, the civilian will and the will of Parliament.  The judiciary was against the civilian will and always stood by the militarist will. The movement that made this tradition constitutional was May 27.”

The judiciary needs to represent social differences in order to avoid turning into a tool of tutelage, Professor Can said. While the 1924 Constitution had offered this opportunity, it was abolished with the coup in 1960. He noted that even though the views represented by the legislative and executive change from time to time, it was ensured that the judiciary would only represent a single view. “This was one of the biggest disasters of the May 27 coup,” he said. Can explained that political cases could serve as a litmus test to understand if a country truly has a judiciary. He said that if justice is dispensed differently in some legal cases than in others, then we cannot speak of a judiciary in that country. “Even fascist states have that much of a judiciary...”

Justice not served in Yassıada, terror was used

The Yassıada court, which ruled to execute Prime Minister Adnan Menderes, Foreign Affairs Minister Fatin Rüştü Zorlu and Finance Minister Hasan Polatkan, was not a court that administered justice, Democratic Judiciary Association Chairman Can said. “Technically it was not a court; when you look at it from the perspective of legitimacy it was not a court; when you look at it from the perspective of legal norms and legal protections it was not a court at all. In other words, regardless from which perspective you look at it, the terror mechanism in Yassıada was not a court.”

Chairman İyimaya: Turkey would be ahead of EU if May 27 hadn’t happened 

Under the worst conditions coups have the most destructive effects. The apparent and temporary silence is actually a sign of great destruction. The May 27 coup destroyed Turkey’s young experience of democracy.

For a deeper understanding of May 27 we need to find an answer to the question “What would have happened if Turkey had not experienced May 27 and May 27-like incidents?” Right now Turkey would have been ahead of the EU, which we are competing for or have set as our target. What’s tragic is that even the people who planned the coups condemned them later on. A second tragedy is that during periods of normalcy politicians did not pursue reforms to prevent coups, and they deepened the fear of potential coups inside themselves.

Every coup produces a series of new laws and causes distortions in the legal mentality. The May 27 coup turned legal experts whom we held in esteem into mini coup preachers. The law was at the disposal of people with superior positions.

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Former Justice Minister Hikmet Sami Türk: The reasons that led to May 27 are important

The May 27, 1960 military intervention was considered a revolution during that period. That military movement or revolution was actually a movement against the harsh measures that the pre-1960 ruling power took to prevent criticism. The reasons leading to that point are important.

The Democrat Party (DP) tried to prevent criticism and the economic problems that started increasing, after especially 1950, by using mainly oppressive measures. This was a mistake. The 1960 military intervention put an end to both the government and Parliament. The 1924 Constitution was abolished. There wasn’t a Parliament that could draft a new constitution. Military officers who staged May 27 and the constituent assembly, which consisted of members of the Assembly of Representatives - - which had limited representative capacity - - convened and drafted the most liberal constitution ever in Turkey.

The most important outcome of the May 27 coup is this liberal constitution. There is another important point. The 1961-drafted constitution was the first constitution that the public voted on in Turkey. With an approval rate of around 66 percent, the constitution was accepted by the public. But the Yassıada trials had a negative impact on the approval rate. Prior to the May 27 coup the country was being dragged into conflict. Since this was prevented, the revolution or military intervention was initially met across the country with a great level of joy. But then it was negatively affected by the Yassıada trials. The court issued 15 death penalty decisions. Three of the four decisions that were unanimously approved were carried out.

In the end, some aspects of May 27 and the execution of people are extremely upsetting. A person who served as prime minister for 10 years died on the gallows. In a sense, the 1961 Constitution strengthened the democratic regime in Turkey. But it would have been much better if a military intervention had not taken place and Turkey had experienced this process in its natural course.

We cannot assess May 27 with our current outlook and out of context. Every incident needs to be evaluated within its own context. The DP was partly responsible for the process leading up to May 27, but I wish the executions had not taken place.