The referendum’s tactical wars
by
MÜMTAZ’ER TÜRKÖNE

The Justice and Development Party (AK Party) is focusing on the package’s content and is trying to run its referendum campaign within the framework of “basic rights and freedoms.” Compared to the legislation in the current Constitution, the package represents solid progress. The AK Party’s biggest trump card is the package’s content. As for the opposition, it is aiming firstly to cause the package to collapse at its strongest point and secondly to portray it as serving only the AK Party’s interests and therefore wear down support for it. The first point addresses the fact that the package would annul temporary Article 15 of the Constitution, thereby paving the path for the trial of those responsible for the Sept. 12 coup staged 30 years ago; the second represents the thesis that through the amendments the AK Party is aiming to create its own judiciary.

Article 35 of the Turkish Armed Forces (TSK) Internal Service Law, which is generally accepted to be the legal grounds for the military coup d’état, entered the agenda when Republican People’s Party (CHP) leader Kemal Kılıçdaroğlu suggested its annulment, which shows the importance of the coup debate in these tactical wars. The CHP is executing a counter-attack with this Article 35 suggestion.

Trying the military dictatorship

Making the change to eliminate temporary Article 15 from the Constitution, which is one of the things the referendum package aims to accomplish, would not in itself be enough to ensure the trial of those responsible for the Sept. 12 coup. The coincidence that the referendum’s date is exactly 30 years after the date of the 1980 coup is the ingenuity not of the government, but of the Supreme Election Board (YSK). The opposition is hiding behind this inadequacy and waging war against the package. But there are three important things they’ve missed.

First, the amendment with regard to this article is inadequate on its own, but it is still necessary. In order to make it sufficient, a supplementary regulation could remove the statute of limitations on coup-related crimes. Secondly, when the protection that temporary Article 15 affords coup-stagers is removed, their trial is up to the judicial opinion of the courts. In a normal state of law this legal opinion should be that the protection provided by temporary Article 15 should also have frozen the passage of time with regard to the statute of limitations. For the statute of limitations is a rule that works under normal conditions. If the Constitution is preventing a trial, then the statute of limitations rule with regard to trials isn’t functioning and will begin functioning again when this ban on trial is lifted. It is possible to cite the principle of the “state of law” enshrined in the Constitution’s unchangeable Article 2 as proof of this opinion. How can a crime committed be outside the realm of prosecution in a state of law? In this situation, the trial of Sept. 12 coup-stagers will rely upon the opinion of the courts following the referendum package’s passage. Thirdly, the accounting of coups and coup-stagers occurs not just before the judiciary but, as the prime minister did in his group speech this week, in the name of the public, before the public. Wasn’t the prime minister serving as a translator for the feelings of the entire Sept. 12 generation, as much as any sentence the judiciary will deal to coup-stagers would? How much of a desire to stage a coup would coup plotters have with the knowledge that one day this country’s prime minister will take the podium and damn their coup? This is what settling accounts is all about, and this is how it’s done. Why don’t those who are complaining do the same thing?

The topic is important. But the entire issue isn’t about just the “trial of those responsible for Sept. 12.” All of the lawsuits and compensation demands forwarded by victims of Sept. 12 to date have been rejected by the courts, citing temporary Article 15. The article gives a shield of immunity to the members of the National Security Council (MGK) of the coup days, the Cabinet of that period and the members of the Advisory Council, as well as all the “Sept. 12ers” who made decisions and applied them. This is not just about constitutional regulations. When the courts were rejecting these lawsuit filings, they could have heard the cases, assigned the compensation and then applied the article when actually trying to get the money from the Sept. 12ers instead of citing this article. For the article brings judicial immunity not to decisions and possessions, but to those who make decisions and manage possessions.

Article 35

The most important article covered in the constitutional package is Article 145. This article was the most critical constitutional clause protecting coup-stagers and institutionalizing military tutelage. Soldiers commit a crime when planning or staging a coup. The plans that surfaced during the Ergenekon investigation are concrete examples of these crimes. The latest example was when the military prosecutor’s indictment on Col. Dursun Çiçek placed crimes intended to bring about coups outside the realm of the judiciary’s supervision. The military keeping the crimes committed by individuals within the field of duty of the military judiciary, which is not independent, ensured a shield of immunity for soldiers. Military personnel commit a crime and then put themselves under the protection of Article 145. If we think of the order established by Sept. 12 as boxes of illegality stacked one on top of another, then changing Article 145 would be like pulling out the very bottom box, causing the rest to come tumbling down. If the path is cleared for the trial of the Sept. 12 coup-stagers, even if the statute of limitations is bypassed, you cannot try coup-stagers as long as Article 145 remains as is.

Article 35 of the TSK Internal Service Law tasks the military with “protecting the constitutional order.” This duty has been used as the legal grounds for all the military coups d’état staged to date. Kılıçdaroğlu’s recommendation means getting rid of this excuse entirely. Should his recommendation be realized, fears of a coup could decrease; it would for this reason be beneficial. But legally speaking it wouldn’t mean much. Article 35 is not a reason for coups; it is an excuse for them. When the military decides to use the weapon in its hands to take over the administration, its supremacy in terms of power is all that matters. This article of law assigns to the military the duty of protecting the constitutional order. Whereas a democracy that has been damaged by coups d’état is at the heart of the constitutional order. Paradoxically, a coup-staging military is ruining the constitutional order it has been charged with protecting. Coups themselves run contradictory to Article 35.

The opposition’s difficulty

The tactics employed by the opposition result in strong ironies. The Nationalist Movement Party (MHP) claims that the referendum package will make it easier for the administration to proceed with its “democratic initiative” to solve the Kurdish problem, an initiative the MHP describes as “betrayal.” This claim is actually true in a sense. When the standards of democracy are raised with the referendum, Kurds’ complaints will decrease. But of course, this does not mean what the MHP is saying it does. Way over on the other side, the Peace and Democracy Party (BDP) is calling for a boycott of the referendum, and its reason for this is the exact opposite of the MHP’s. The Kurdistan Workers’ Party (PKK) and BDP are claiming that the package will undermine the democratic initiative. The two sides are having a difficult time convincing one another; this will be amongst the most interesting debates of the entire referendum process.

Even though the referendum package has yet to become law, its aims have largely been accomplished. The fact that debates over coups have been taking place so frequently and at such a high level will at least prevent similar events from occurring in the future, right? The discussion of Sept. 12 has forced to action those who find the package insufficient and oppose it for this reason. CHP leader Kılıçdaroğlu’s recommending the annulment of Article 35 is in itself a result of the productive political competition that the referendum package has paved the way for.