The government defends the bill as necessary in the battle against terrorism and money laundering activities, while the opposition slams the government for yielding to American pressure.
The law, approved after heated debate in the parliamentary Justice Commission a week ago, aims to overhaul Turkish legislation on financial crimes, especially with regard to anti-money laundering and combating the financing of terrorists known by the acronym AML/CFT.
The government has been under pressure for some time now from the Financial Action Task Force (FATF), a unit of the Organization of Economic Cooperation and Development (OECD), to approve this bill in Parliament. The FATF has warned repeatedly that as a member of the FATF group, Turkey had failed to make sufficient progress in implementing its promised action plan to harmonize Turkish laws. In the plenary meeting held in Paris on Oct. 17-19 under the Norwegian presidency, the FATF decided to suspend Turkish membership as of Feb. 22, 2013, unless Turkey adopted this draft and established a mechanism for identifying and freezing terrorist assets in line with earlier FATF recommendations.
Earlier this month, the government rushed the bill that had been sitting on Parliament’s agenda for too long with no action on it to the relevant commission so that it could be voted through before the FATF suspension deadline. The original bill was submitted to Parliament in February 2011 but was dropped from the agenda when Parliament did not have time to examine it before the national elections on June 12, 2011. The government re-sent the bill to Parliament in the new legislative session on Oct. 21, 2011.
The main opposition worry is that the draft, in its current form, gives the government the right to freeze the accounts of anyone suspected of financing a terrorist group without any due diligence or court oversight. Retired military judge Ümit Kardaş criticized the bill for lacking judicial oversight. “As it is, an evaluation committee made up of bureaucrats will decide whether the assets of a Turkish citizen or a foreign national should be frozen,” he said, adding: “The commission could easily violate the law. It will be enough for someone to accuse another person of financing a terrorist organization.”
The bill authorizes the Finance Ministry’s Financial Crimes Investigation Board (MASAK) to freeze the assets of those who are involved in financing terrorism domestically or internationally without the need to obtain a judge’s ruling first. The draft redefines the term “financing of terrorism” to include individuals and organizations who support terrorism at the national or international level by providing funds. Anyone who sends money to any of the terrorist organizations listed in relevant United Nations resolutions could be regarded as a criminal supporting terrorism. MASAK will freeze assets as a precautionary measure without applying to a court first if there is strong suspicion regarding an individual or organization.
Adem Sözüer, the dean of İstanbul University’s School of Law, said any humanitarian assistance organization in the world could then be seen as a sponsor of terrorism, asserting that the draft violates the European Convention on Human Rights (ECHR). He also said that the UN sanctions list was based on information from intelligence organizations. “The Sanction Committee is serving those forces that held innocent people at Guantanamo for many years. Many organizations in Turkey are treated as Islamic terrorist groups.” He said that some articles in the draft proposal were open to abuse, and did not have much to do with legal principles.
Government deputies countered this argument, however, saying that authorities would look for clear “intent” to provide funds to terrorist groups. A similar measure already exists in Article 220 of the Turkish Penal Code (TCK) that describes terrorism financing as a crime. The draft introduces a mechanism to “freeze the properties” of persons and institutions involved in terrorism. Under this system, the resolutions of the UN Security Council will have a determinative effect. The seizure of assets will still be under the jurisdiction of the courts, but the government may “freeze” assets suspected of being used to finance terrorism as a “preventive measure.” When the bill is passed the government will set up an Evaluation Commission on the Freeze of Assets (MDDK). This commission will examine requests from domestic and foreign entities and submit its decision for approval or denial by the Cabinet.
Republican People’s Party (CHP) Uşak deputy Dilek Akgün Yılmaz, who spoke during the commission’s session, said: “This law will be hanging over the heads of opposition members like the sword of Damocles. It will make for a complete dictatorship when combined with the [Justice and Development Party’s (AK Party)] imposition of switching to a presidential system.” CHP parliamentary group deputy chairwoman Emine Ülker Tarhan joined Yılmaz in lingering concerns that the government may use the bill unjustly to freeze the assets of the main opposition party. Another CHP politician, Celal Dinçer, claimed that the law was drafted only to appease demands from the US administration.
The pro-Kurdish Peace and Democracy Party (BDP), the political wing of the terrorist Kurdistan Workers’ Party (PKK), is also opposed to the bill. BDP Muş deputy Sırrı Sakık complained that businessmen in the predominantly Kurdish Southeast have grievances with respect to the draft. Another BDP deputy, Sırrı Süreyya Önder, claimed that the definition of the criteria that will be used to evaluate suspects is lacking. “The worst part is that based on a usual suspect scenario, all your commercial and other relations will be under close scrutiny. This is an operation to destroy the opposition [in Turkey],” Önder said.
The CHP and the BDP are not alone in their concerns about the bill. Nationalist Movement Party (MHP) İstanbul deputy Murat Başesgioğlu agreed that the draft law was being forced on Turkey by foreign powers. “Things that others don’t want to do in the international arena are being demanded of Turkey. We have to protect the laws of our country. Who will be in charge of overseeing this?”
Justice Minister Sadullah Ergin responded to criticism from the opposition during the debate in the commission, saying that the government is not caving in to US pressure. “It is not the US but the FATF, comprised of 34 member states and two observers. We willingly became a member and a signatory,” he said. “Turkey is now able to make certain demands and place requests with third countries to take necessary measures, which is important for Turkey’s own fight against terrorism. This will be based on the principle of reciprocity with third countries. Turkey will also have the right to turn down requests from those countries that don’t support it [in its fight against terrorism],” he explained.
The opposition is still not convinced despite repeated explanations by Ergin, however. CHP İstanbul deputy Celal Dinçer said that he has deep doubts as to whether the reciprocity principle will be applied. “Do you think the attitude of the US and the EU will be the same as ours? I do not think so,” he said during a debate at an Interior Commission meeting last year.
Dinçer remarked that approaches to terrorism financing vary among different countries. “The criteria to be applied here are very vague. Preventive measures will continue to be extended. It does not look like differences over how to define who terrorists are will be resolved soon,” he explained.
Despite the ongoing debate and pressure from the opposition, the government knows it has no room to negotiate because of an impending suspension threat from the FATF. That’s why Justice Minister Ergin had to make the case that Turkey needs to work with other countries at an international level to take measures against terrorism. “Turkey does not have the luxury of disregarding any information and we need to take the measures that will protect our country’s interests. This draft covers those interests,” the minister emphasized.
Ergin said that combating the financing of terrorism relies on quick action that needs to take place within days, sometimes hours, and added that the draft ensures a judicial review of the suspension of assets at later stages. The government also highlighted the fact that liability issues were addressed in the current bill in case there is a compensation lawsuit filed against Turkey because of a freeze request filed by a foreign government against a person or company in Turkey. The draft bill stipulates that the Turkish government may ask for cash or collateral guarantees from a foreign government against a future compensation lawsuit.