12, 1980 coup d'état, including the abolishment of Article 15 of the Constitution, which bans any legal action against coup generals.
The ruling Justice and Development Party (AK Party) finalized its work on the package after an intra-party meeting on Wednesday. No official statement has come from the party yet, but there are claims that the package contains strong steps to confront the remnants of the coup period. Among them is the clearing of obstacles to the trial of coup leaders -- albeit symbolically – in addition to making political party closures more difficult and restructuring the Supreme Board of Judges and Prosecutors (HSYK).
The AK Party is expected to discuss the details of the package with opposition parties next week.
Temporary Article 15 of the Constitution was added by the 1980 coup generals and bans any legal action against them. It is believed to be the biggest obstacle to the trial of coup perpetrators.
"No allegation of criminal, financial or legal responsibility shall be made, nor shall an application be filed with a court for this purpose in respect of any decisions or measures whatsoever taken by the National Security Council," the article stipulates.
The removal of the article will, however, have a symbolic meaning, according to most jurists, as it is currently only a few months before the statute of limitations for the generals runs out.
The generals were expecting to benefit from a statute of limitations in 2000, 20 years after the military takeover. However, former prosecutor Sacit Kayasu prepared an indictment against former President Kenan Evren, who was the coup leader, which resulted in Kayasu's disbarment. With the indictment, the statute of limitations for the coup generals was extended for another 10 years.
The statute of limitations for the generals will now expire on Sept. 12, 2010. The Sept. 12 coup was staged under the leadership of retired Gen. Evren, the then-chief of General Staff. The general was assisted by former Land Forces Commander Gen. Nurettin Ersin, former Air Forces Commander Gen. Tahsin Şahinkaya, former Naval Forces Commander Adm. Nejat Tümer and former Gendarmerie Commander Gen. Sedat Celasun as well as hundreds of military officers.
If a trial for the coup stagers begins, up to 5,000 people are expected to stand before the court on coup charges.
It is not the first attempt by the ruling party to change the Constitution, which was drafted under martial law after the Sept. 12, 1980 coup d'état. The party assigned a group of Turkey's most prominent jurists to draft a new and more civilian constitution in 2007, but it has remained on the dusty shelves of Parliament due to the reluctance of opposition parties. Republican People's Party (CHP) parliamentary group deputy chairman Hakkı Süha Okay said his party would support the removal of Article 15 but would not support the rest of the package.
HSYK, party closures in reform package
The overhaul of the HSYK, which appoints officers of the court, is among the most contentious issues in the package. The judicial reform package is intended to prevent the HSYK from being a board that acts according to ideological impulses. The most important change in terms of the guarantees of judges and prosecutors is allowing judicial oversight of the board's decisions. In addition, procedures to select HSYK members will be redesigned to ensure that the HSYK represents a range of opinions, not just one view.
The package would increase the number of HSYK members from seven to 21. The executive and legislative bodies will appoint seven members, and the remaining 14 will be elected by judges and prosecutors.
The reform package also plans to make it more difficult to shut down political parties. No political party will be closed unless it is charged with violence and terrorism. The opening of a closure case against a party will require the approval of Parliament.
The current system allows a Supreme Court of Appeals chief prosecutor to file a closure case against any political party. It enables the Constitutional Court to ban parties that it deems a threat to Turkey's secular identity. The AK Party narrowly survived an attempt to ban it in 2008, while the provision was most recently used to shut down the pro-Kurdish Democratic Society Party (DTP) last December.
The package also includes other changes such as the establishment of an ombudsman system, making it easier to individually apply to the Constitutional Court, introducing positive discrimination for women, the requirement of a court decision for a travel ban and narrowing the mandate of the military judiciary.
Decisions made in the Supreme Military Council (YAŞ) will also be subject to judicial review, according to the package.
Every year Turkey witnesses fierce debates over the YAŞ meetings, during which the Turkish Armed Forces (TSK) and the government decide on promotions and retirements within the military. The YAŞ meetings, which take place twice a year, are also an occasion in which officers suspected of engaging in anti-secular activities are expelled from the TSK.
Officers so discharged from the military do not have the chance to appeal to a judicial body or demand a review of the decision for dismissal.
The constitutional reform package will also bring constitutional protections for personal data. Under the reforms, no agency will have the authority to record information about an individual's race, political opinions, philosophical beliefs, religion, denomination or other type of convictions, membership in an association, foundation or a union, health condition or private affairs. It also introduces strict restrictions on the handling of police and criminal records.
The package also declares torture as a constitutional crime and would charge suspects accused of torture with violating the Constitution.
Supreme Court of Appeals President Hasan Gerçeker refused to comment on the planned package and said the ball is in the politicians' court. "If the package becomes law, no one will object to it. You may criticize it, but you have to comply," he noted. HSYK Deputy Chairman Kadir Özbek complained that the package regards his board as the "main target." "The fog is clearing now. It is becoming clearer. We all see that the HSYK is the number one target," he said.
BDP pledges support for constitutional package
Selahattin Demirtaş, the leader of the pro-Kurdish Peace and Democracy Party (BDP), said they support any attempt that will strengthen democracy but that they have not made their final decision, although they will not automatically say "no" to the constitutional amendments.
He recalled that the BDP had declared its conditional support of the constitutional amendments before with the condition that the amendments remove obstacles to freedom of expression, that financial support from the Treasury be equally distributed and that the election threshold is lowered.
"These things do not require constitutional amendments. Our expectation is that in addition to this constitutional reform package, another package that will regulate these areas will be presented. We have mentioned our expectations to the AK Party," he said.
He added that even if these legal changes do not occur, it does not mean that they will not support the constitutional amendments. "We are ready to do everything to improve democracy, but of course this means universal democracy, not the one defined by the AK Party," Demirtaş said.
He added that after seeing the content of the amendments and meeting with the AK Party they will give their final decision regarding the constitutional amendments.
Ercan yavuz, Ayşe Karabat/ Today's Zaman