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Correspondents' Reports

JURIST's Turkey Correspondent is Virginia Brown Keyder, Lecturer in Law, Bilgi University, Istanbul. She is also a legal consultant for Mehmet Gun & Co.
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[Istanbul; Special to JURIST] Turkish summers tend to be dry in terms of legal developments. This one, however, could prove to be a major turning point in the country's history. Readers unfamiliar with the squabbles between the Turkish military, religious fundamentalists, ultra-nationalists, media-magnates and the plethora of old-fashioned power politicos who move with the prevailing winds that define contemporary Turkish political life, will find an excellent and concise summary of recent events on Nicole Pope's popular website, www.turkeyupdate.com.

From a legal point of view, the story began with the May 16 election of Ahmet Necdet Sezer as President. As Turkey's first legally trained president and one known to be devoted to the rule of law, the universally-respected former head of the Constitutional Court must have had a feeling it would be hard going. Whether he knew that pseudo-legal events brewing long before he took office would come close to truncating his seven-year term (calls for his resignation from office for instigating a national crisis by his refusal to sign made headlines more than once this summer) is anybody's guess.

On June 22, 2000, Turkey's new minority government presented to the Parliament, (known as the Grand National Assembly), a bill which had been meandering through toppling governments since what has been widely described as a post-modern coup in early 1997. Designed to facilitate the sacking, upon the report of two 'government inspectors', of any civil servants (later modified to include judges and prosecutors) believed to be engaging in 'subversive, reactionary or separatist' activities, the bill once again failed to attain Parliamentary assent. With lightening speed, it was repackaged into a "Decree with the Force of Law" with a view to successfully by-passing Parliament, and submitted to President Sezer for signature.

As the name would imply, a Decree with the Force of Law is essentially a law, but one which usually originates in the Council of Ministers rather than the Parliament. Enacted without Parliamentary assent, it nevertheless requires the signature of the President, a step which in the past has never proved to be an obstacle. Widely used in times of crisis or national emergency, it is also employed in economic matters (Turkey's trademark, patent and industrial design laws were, for example, cast in this format in order to meet deadlines set for Turkey's entry in a Customs Union with the European Union in 1995). On the subject of such Decrees, Article 91 of Turkey's 1982 Constitution (itself a product of the 1980 military coup) provides as follows:

The Turkish Grand National Assembly may empower the Council of Ministers to issue decrees having the force of law. However, the fundamental rights, individual rights and duties included in the First and Second Chapter of the Second Part of the Constitution and the political rights and duties listed in the Fourth Chapter, cannot be regulated by decrees having the force of law except during periods of martial law and states of emergency.
On July 12, 2000, President Sezer returned the bill unsigned, citing constitutional chapter and verse as to why such legislation could not be framed as a Decree, but must be passed through Parliament as a law. Without commenting on the content, the President relied on Article 103 of the Constitution, under which he was bound by the following oath sworn upon taking office:
"In my capacity as President of the Republic I swear upon my honour and integrity before the Turkish Grand National Assembly and before history to safeguard the existence and independence of the state, the indivisible integrity of the Country and the Nation and the absolute sovereignty of the Nation, to abide by the Constitution, the rule of law, democracy, the principles of the secular Republic, not to deviate from the ideal according to which everyone is entitled to enjoy human rights and fundamental freedoms under conditions of national peace and prosperity and in a spirit of national solidarity and justice, and do my utmost to preserve and exalt the glory and honour of the Republic of Turkey and perform without bias the functions that I have assumed." (italics added)
President Sezer also relied on Article 104 of the Constitution under which the President is charged with ensuring "the implementation of the Constitution, and the regular and harmonious functioning of the organs of state". Article 104 contains provisions whereby the President is charged with performing duties in his legislative capacity "in accordance with the conditions stipulated in the relevant articles of the Constitution" to "return laws to the Turkish Grand National Assembly to be reconsidered".

Opponents of Sezer's refusal to sign the bill as drafted relied on constitutional provisions which enable the President "to appeal to the Constitutional Court for the annulment in part or entirety of certain provisions of laws, decrees having the force of law, and the Rules of Procedure of the Turkish Grand National Assembly on the grounds that they are unconstitutional in form or in content". Interpreting the Article's executive authorization "to sign decrees" as mandatory, they argued that subsequent submission to the Constitutional Court of laws, etc., which he believes to be unconstitutional constitutes his only recourse.

The President's refusal to sign this Decree dominated the media for no less than a month. While public and legal opinion were strongly behind the President in his quest to make Turkey a country reliant on the rule of law (in Turkish, as in German, the phrase is more literally translated as a "legal state" or "state run by principles of law"), media magnates with strong economic ties to the government and politicians close to the military accused him of instigating a "crisis situation" which could "destroy the country". For the person in the street, this position was for the most part recognized as a ploy to maintain business as usual, to pay lip service to the idea of law as long as it doesn't affect anything, and to maintain governmental authority through pure power.

Headlines in support of the president's position, which read "The President is not a notary" were met with sharp criticism from the nation's notaries who, dismayed at the slight on their profession, responded "We don't sign documents which we know to be outside the law either" (notaries in Turkey, as in all Civil Law countries, are a branch of the legal profession and their signature attests to the legality of an instrument, and not just of the signature it bears, as is the case with American 'notary publics').

President Sezer's adherence to the rule of law and his final refusal to back down on this issue were as courageous as they were novel. An unofficial translation of the bill he declined is set forth here in its entirety. It merits close scrutiny by anyone interested in permutations on the rule of law. It must now be presented to Parliament if its proponents choose to push for its enactment.

Article 1 - Article 23 of the Law dated 9/6/1930, numbered 1700 on Officers of the Ministry of Interior has been amended as follows: "Article 23- The officer who is known to have engaged in acts which is [sic]clearly considered an offense under the Constitution and the Laws of the Republic of Turkey, which is directed against the indivisible integrity of the State with its territory and nation and which is directed towards changing, destroying any of the characteristics of the Republic or in acts which run counter to the same or in embezzlement and bribery or who is known to have ill conduct and habits which are inconsistent with the duty, dignity and reputation of being an officer and such conducts of whom have been confirmed with the reports submitted separately by two inspectors and with the confidential assessment reports of any two superiors is dismissed with a decision to that effect of the disciplinary committee of the Ministry and with the approval of the Minister, regardless of whether any penal proceedings have been initiated against him/her or not."

Article 2 - Sub paragraph (a) of paragraph (E) of article 125 of the Public Personnel Law dated 14/7/1965, numbered 657 has been amended as follows and the following paragraph has been added to the article. "Those who engage in destructive or divisive acts or acts which are directed towards changing or destroying any of the characteristics of the Republic or in acts and other activities which run counter to the same or who upset thereby the peace, tranquility and working order of the establishments or who participate in such acts as boycott, occupation, obstruction, work slowdown, strike, collective absence from office, who provoke and encourage or assist them," "Those who are punished with dismissal due to their acts stated in sub-paragraphs (a), (b) and () of paragraph (E) may not be employed under any status at the public agencies and establishments and local governments, nor at the agencies and establishments 50% or more of whose capital is owned by them."

Article 3 - The last paragraph of article 69 of the Law dated 24/2/1983, numbered 2802 on Judges and Prosecutors has been amended as follows. "The punishment of dismissal is also imposed in case the act entailing disciplinary punishment is considered to be of a nature which violates the dignity and reputation of the profession and the influence and prestige of being an official, or in case it involves conduct and behaviors which run counter to the characteristics of the Republic, as stated in the Preamble and article 2 of the Constitution, to the principle of the existence of Turkey as an indivisible entity with its State and territory, to the principle that there shall be no interference whatsoever of sacred religious feelings in state affairs as required by the principle of secularism, or in case the act involves action with ideological and political purposes during carrying out of the official duty or in case the act involves conduct and behaviors which aim to provide benefits and inflict losses on persons by discriminating among languages, races, sexes, political opinions, philosophical beliefs, religions and sects, even if the act does not constitute an offence and even if it does not require conviction."

Article 4 - Paragraph (f) has been added to the first paragraph of article 45 of the Decree-Law dated by them." 22/11/1990, numbered 399 and the following paragraph has been added after the second paragraph. "f) To engage in destructive or divisive acts or acts which are directed towards changing or destroying any of the Characteristics of the Republic or in acts and other activities which run counter to the same, or to upset thereby the peace, tranquility and working order of the establishments or to participate in such acts as boycott, occupation, obstruction, work slowdown or strike, or to be collectively absent from office with such aims, to provoke and encourage or assist them." "Those personnel whose employment contracts are terminated due to their acts stated in paragraph (f) may not be employed under any status at the ministries, public agencies and establishments, local governments, nor at the agencies and establishments 50% or more of whose capital is owned

While it is widely believed that the bill will not secure the support necessary for enactment in the Grand National Assembly when it opens in October, the contents of this bill cannot fail to raise other issues regarding Turkey's willingness to accept principles embodied in the acquis communautaire, that compendium of EU legislation, rules, caselaw and basic principles that Turkey must accept if it wishes to become a member. The bill also threatens to damage Turkey's ability to comply with the Copenhagen Criteria, which mandate certain political requirements for EU membership including "the effective functioning of a pluralist democracy and the rule of law ensuring in particular, the protection of fundamental human rights and the rights of minoritities" as well as "the administrative and judicial capacity to apply the acquis communautaire"(Tom Kennedy, Learning European Law, 1999, p. 68). Broadly drafted, the cavalier bill fails to pay even minimal lip service to the most basic principle of law, from the presumption of innocence and the citizen's right to know exactly what acts might trigger the force of the statute, to the right to a fair hearing and freedom of expression.

Academic freedom is also threatened by the instrument. Professors in public universities are civil servants within the meaning of the Decree. Relations between academia and the government over the past three decades have only just resulted in an uneasy peace today. That lectures or writings deemed subversive by a couple of government inspectors may result in dismissal would have more than a chilling effect on academic life at best, and at worst could intiate a hemorrhage of state academic personnel not unlike that which occurred in the years following the coup of 1980.

Many commentators feel that the bill, which tramples broadly not only on a whole range of fundamental rights as well as principles of the Turkish constitution itself (such as, for example the "right and duty to work" contained in article 49, or the independence of judges as provided in Article 138), is designed to carry the message that important segments of the powers that be are not interested in EU membership at all.

Like the currents on Bosphorus which runs through Turkey's largest city, currents in the rule of law run both ways. While this draft Decree dominated public and private discussion, Turkey finally signed the twin 1966 UN Conventions on Civil and Political, and Economic and Social Rights. It was the 144th country to sign these Conventions. Whether these instruments, whose contents strongly overlap with highly contentious issues in this country, among them, minority language and education rights, and freedom of expression and association, will actually be ratified remains to be seen . It is a strong step in line with Turkey's promised acceptance of the Copenhagen Criteria for EU membership, however.

On the other hand, efforts to remove the infamous Article 312 of the Criminal Code, which has criminalized all manner of what would be considered free expression in most countries who call themselves democratic, have been temporarily replaced by calls to issue "pardons" to those convicted under the Article. Most prominent among these is Islamist former Prime Minister Erbakan, whose imprisonment may well be politically more trouble than it's worth. Like the above cited bill, Article 312, as set forth below (unofficial translation), has long been cited as an obstacle to compliance with EU legal norms.

Article 312 (Amended: 1981/2370)

One who openly praises an action considered criminal under the law or speaks positively about it or incites people to disobey the law shall be sentenced from six months to two years of imprisonment and to a heavy fine of between 2,000 and 10,000 lira.(3)

One who openly incites people to enmity and hatred by pointing to class, racial, religious, confessional, or regional differences will be punished by imprisonment of between one to three years and a heavy fine of between 3,000 and 12,000 lira.(4) If the incitement is done in such as way that could possibly be dangerous for public security, the punishment given to the perpetrator is increased from one-third to one-half.

Penalties given to those who carry out crimes in the paragraphs written above by means outlined in the second paragraph of Article 311[which provides that "If the incitement occurs by various means of mass media, sound tapes, records, films, papers, periodicals, or with other press instruments, or by writings written by hand and then multiplied and printed or distributed, or by signs or written announcements hung, the heavy imprisonment and fines which will be determined according to the paragraphs above will be doubled"] will be increased accordingly.

What happens next is anybody's guess. President Sezer's courageous stance could well herald a new era in Turkish law, which if polls are correct, will be welcomed by the vast majority of Turkey's law-abiding citizenry.

Virginia Brown Keyder
JURIST Turkey Correspondent

Lecturer in Law
Bilgi University
Istanbul, TURKEY

September 5, 2000

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