The identity of the person who was subjected to this decision is insignificant. It is obvious that the target is his position and that the principal damage will be done to the system. In all forms of governance, the head of the state -- different names may be given -- holds the key position. Even in its symbolic form in constitutional democracies, the head of state is specifically protected with some sort of immunity.In the case of Turkey, which is by definition a parliamentary democracy, but has given considerable powers and authorities to the head of state in a similar fashion to semi-presidential systems, the president is the head of everything. Let us start with the best known example: He is the commander-in-chief. On behalf of Parliament, the president commands the Turkish Armed Forces (TSK) and decides whether it should be used in a specific instance. He is also the head of Parliament, i.e., the Turkish Grand National Assembly (TBMM). In addition to symbolic powers such as convening or inaugurating Parliament, he is the authority that endorses almost all of the acts of Parliament. This is evident particularly when his authority concerning legislation is examined. The president is also the head of the executive branch, i.e., of the Cabinet. It is clearly stated that with his powers and authority to make appointments and removals from office as set forth in the Constitution, the president is the ultimate chief of the state apparatus.
In order to stress that he is the chief judge, I would like to quote his powers and authorities concerning the judiciary: "[The president] elects the members of the Constitutional Court, one-fourth of the members of the Council of State, the chief prosecutor of the Supreme Court of Appeals, the deputy chief prosecutor of the Supreme Court of Appeals, the members of the Military Supreme Court of Appeals, the members of the Military Supreme Administrative Court and the members of the Supreme Board of Prosecutors and Judges [HSYK]."
In light of the foregoing information, let us ask the critical question: Under what circumstances can the president, who is stated as being the head of individual organs of the state apparatus, be tried? The Constitution clearly explains, "The president of the republic may be impeached for high treason on the proposal of at least one-third of the total number of members of the Turkish Grand National Assembly, and by the decision of at least three-fourths of the total number of members." Even this sentence is enough. Indeed, listing the crimes for which he can be tried means that he cannot be tried for other circumstances. Moreover, his impeachment for high treason requires a long process that involves Parliament.
Let us set this aside and continue from where we left off. The process concerning the litigation of the chief of general staff is one of the most troublesome ones. In a system where trying the chief of general staff is practically impossible, is it possible that the duty of trying the commander-in-chief, who appoints and exercises authority over him, is left to the initiative of a judge in Sincan? Even a person who is appointed to the Cabinet from outside Parliament is equipped with parliamentary immunity. Is it logical that the head of the Cabinet can be treated as a whipping boy? One even has to produce a number of justifications before attempting to try a judge. Let us give a recent example regarding Constitutional Court Vice President Osman Paksüt. He can be investigated and tried only by the Constitutional Court. How, then, can a local court dare try the chief judge who has the authority to appoint Paksüt?
"There is a loophole in the laws," says the judge of Sincan. There is no loophole in the laws. Even if there is a loophole in the laws, there is none in law. If the laws do not specifically state that "he can be tried," then law fills the gap by inferring that "he cannot be tried." The lawmakers did not think it necessary to specify that "he cannot be tried," assuming that nobody could put forth an argument in the absence of this specification.
Only one who has no knowledge of law can think that the system that has set barriers to litigation of its ordinary public servants has left the president alone. Sincan's judge Kaçmaz does not care about law, but he has other motives. But his motives will do greater damage to the system and country than to President Abdullah Gül.
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