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Wednesday, 16 February 2022 15:51

ASSAM Constitutional Proposal (2011) Featured

Written by ASSAM Yönetim
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MAY OUR NEW CONSTITUTION BE AUSPICIOUS

  1. INTRODUCTION

GNAT has undertaken a historical task. More precisely, in the last general elections, our nation gave this task to the GNAT. The Assembly has also started a study that allows the participation of all segments of our people. We perceive this preferred method in the preparation of the new Constitution as an important feature that allows everyone to get it off their chest. Because those who have been personally harmed by the unlawful acts have important issues to tell.

As the Justice Defenders Association (ASDER), the victims of the last coup period and former members of the Turkish Armed Forces, who were the architect of the tutelage established on the political will, who served at various levels, they have important observations to talk about both the tasks and powers of the Armed Forces and the system generally.

  1. WHY A NEW CONSTITUTION

Because some rights granted by laws have been usurped by Constitutional institutions based on the provisions of the Constitution.

Fundamental rights and freedoms are included in the Constitution as if to prevent them from being used but to prevent them, and believers and ethnic groups who do not share the official ideology are made the target of oppression and state forces. Care was taken to maintain the dominance of the dominant powers rather than being a social contract.

In the 1982 Constitution, although it seems that there is no obstacle in the use of fundamental rights and freedoms, a small request related to belief faced unlawful obstacles and the Constitutional Institutions put pressure and prohibitions into practice with the cooperation of the Constitutional Institutions. Then, coups, interventions, fine adjustments, obstacles, prohibitions, pressures began.

The 1982 Constitution, with its general features, did not leave the administration of the state to the nation, but had a structure that limited the powers of the legislative and executive powers, and on the contrary, increased the powers of irresponsible institutions against the nation. This situation, first of all, has led to relentless conflicts between the state organs, which should work in harmony, as a result of the irresponsible use of the given excessive powers.

The 1982 Constitution divided the government into two. On the one hand, the legislative and executive institutions that represent the national will, and on the other hand, the institutions in which the powers of the state are handed over. These institutions are endowed with such powers that they can tie the hands of those elected by the nation whenever they want. In other words to explain the situation; two captains on a ship, one turned the rudder to the right and the other to the left. The ship did not go in the direction that the two wanted, and sometimes faced the risk of embarking on a rock.

Armed Forces, Supreme Judiciary, Council of Higher Education and other independent constitutional institutions in the past; With the authority they got from the Constitution, they created ideological staffing that is contrary to the values of the Nation. They have rendered the political powers, whose ideology they do not share, incapable and inoperable. They have destroyed the political stability and destroyed the national will that chose it. They trampled on fundamental human rights and freedoms and inflicted irreparable harm on the State.

By emphasizing the principle of fairness in representation, the administration, which was handed over to weak coalition governments, resulted in weaknesses and the resulting instability turned into an invitation to military coup and interventions.

The strong central government principle implemented as a form of government, on the one hand, limited the opportunity to meet local needs effectively, on the other hand, it made it difficult to protect and monitor the interests of the country at the highest level and in a timely manner in the shrinking region and world. Regional government systems were rejected by narrow-minded mentalities as they were seen as a step to disrupt the unitary structure.

Likewise, in a liberal world, the demands of ethnic entities and different beliefs, which should be considered the wealth of our country, have reached dimensions that cannot be resolved with a centralist approach. The fact that trying to meet these demands with oppressive practices and outdated discourses and methods may lead to the deterioration of the main unitary structure has become incomprehensible due to the current constitutional legislation.

Before proceeding to the question of what kind of constitution, it is useful to take a look at the foundations of the 1982 Constitution that allowed the restriction of fundamental rights and freedoms and the establishment of guardianship over political powers in our recent history, as well as the practices established using these foundations.

a. CONSTITUTIONAL BASIS OF COUP;

Coups and bans have taken their basis from legal legislation and have been implemented by ideological personnel in Chaos and unstable areas. In other words,

the first basis of the coups is legal legislation, primarily the Constitution;

the second basis is ideological staffing, which is formed by making use of this legal legislation;

and the third basis is political instability caused by weak coalition governments.

Ignoring the articles of the 1982 Constitution that determine the authorities and responsibilities of institutions and organizations that give sovereignty to the nation, fundamental rights and freedoms;

In particular, it has been seen that the pressure and interventions initiated with February 28 process have been legally based; considering the goal of "reaching the level of modern civilization..." in the second paragraph of the starting article, the tendency to see the life of the nation as outdated and a threat to the state;

the tendency to look at religious people as a threat by emphasizing the concept of “SECULARISM” in its second article;

the suspicion that the eight reform laws, which are believed to ensure reaching the “level of contemporary civilization” and protecting the “secular nature”, in Article 174 regarding the protection of the reform laws, are under threat;

the understanding that it is up to the TAF to determine the time and to take the decision to “protect and watch over the Republic of Turkey” in Article 35 of the “TAF Internal Service Code” in order to be prepared for the Armed Forces in terms of training, weapons and equipment.

Giving meaning and activity to the Constitution and articles of law was made possible by primarily determining the reactionary as an internal threat in the internal threat section of the “National Security Policy Document”, which is the directive of the Security planning in the State.

Undoubtedly, if the Constitution and laws are interpreted ideologically, it is possible to find a legal basis for coups.

b. LEGAL BASIS OF THE SEPTEMBER 12 COUP;

The legal basis of the military coup of September 12, 1980 was announced in the first statement of the National Security Council, which was read over the radio.

“It took the decision to fulfill the duty of protecting the Republic of Turkey, given by the Internal Service Code, on behalf of the almighty Turkish Nation, within the chain of command and by order, and the administration of the country was completely seized....”[1]

An authority that was put in order to be ready for the Armed Forces in terms of training and equipment when given internal security duties, or included in the Internal Service Code for this reason, could be interpreted as a coup task by those who assumed the command and control of the Armed Forces.

c. CONSTITUTIONAL BASIS OF FEBRUARY 28, 1997 POST-MODERN NATIONAL SECURITY COUNCIL (NSC) COUP:[2]

February 28 process is a coup by the President of the NSC and military members.

The National Security Council is a constitutional institution established by the 1961 Constitution and continuing its existence in the 1982 Constitution. Although it is an advisory board, it has fulfilled the task of keeping the political will under control since its establishment.

In its initial form, 5 out of 10 members are soldiers. Intervention when the President supported the Soldiers in the Council (12 March, 28 February), that is, the requests of the board became law. When the President took the side of the representatives of the national will (ie, civilians), the soldiers could not make the established order accept their demands, and there were de facto coups in which the military seized the administration. (September 12, 1980)

With the amendment made in the Law on the General Secretariat of the NSC and the National Security Council in 2001, the number of members was increased from 10 to 14, of which only 5 were soldiers. It is not possible to take similar decisions and impose them on the Grand National Assembly of Turkey and the Government, as there is no military dominance in the council, where decisions are taken by absolute majority, as was the case on February 28, 1997. But it forces the military to be constantly involved in politics. The soldier who is interested in politics makes the State appear to be two-headed.

The fact that the soldier, who is at the center of the coups and impositions, is represented by three Force Commanders and the Gendarmerie General Commander, in addition to the Chief of General Staff, in the NSC convened under the Leadership of the President gives the Armed Forces a separate political power to intervene in politics.

d. CONSTITUTIONAL BASIS OF APRIL 27, 2007 ELECTRONIC MEMORANDUM;

The Internet Memorandum of April 27 began with the sentence “It is observed that some spheres, which are making an inexhaustible effort to erode the fundamental values of the state of the Republic of Turkey, especially secularism, have increased their efforts recently...”. When examined, it is understood that reference is made to the principle of secularism in Article 2 of the Constitution and to the duty to protect and watch over the Republic in Article 35 of the Internal Service Code.

e. SUPREME MILITARY COUNCIL, TURNED INTO THE DISCHARGING BOARD ON CONSTITUTIONAL BASIS;

Although it is not a constitutional institution, the Supreme Military Council, of which decisions were excluded from judicial review by Article 125 of the 1982 Constitution, functioned as a mechanism for ideological staffing with general promotions and ex officio retirement practices.

In addition, after the enactment of this authority in the Constitution, 1637 officers and non-commissioned officers were dismissed from their jobs and professions by bypassing the judiciary and by illegal actions, ignoring fundamental rights and freedoms.

With the Constitutional amendment dated September 12, 2010, “Separation proceedings due to indiscipline and moral situation” were opened to judicial review, but promotions and retirement due to lack of staff were again excluded from judicial review. When considered together with the recruitment of personnel to the Armed Forces, the structure of the Supreme Military Administrative Court; keeping the promotions and retirements of generals out of judicial review and the authority to be removed from the Armed Forces by administrative proceedings without a judicial decision include sufficient powers for ideological staffing in the Armed Forces, which is contrary to the values of the Nation and constitutes the great second support of the coups.

During the coup periods, the Armed Forces, which took other public institutions under its control, became the leader of ensuring a full staffing in the public sector, with the discharges it had enforced.

f. COUPS ON COUNCIL OF HIGHER EDUCATION AND ITS CONSTITUTIONAL BASIS;

According to the Annex-17 Article added to the Higher Education Law in 1990, in accordance with the provision that “dressing is free in higher education institutions, provided that it is not contrary to the laws in force”; while there was no problem in universities due to the headscarf until 1997, in 1995, headscarved female students were prevented from entering classes and universities by Kemal Gürüz, who was appointed as the head of the Council of Higher Education, which is a constitutional institution. During the Kemal Gürüz and Erdoğan Teziç period, neither the government nor the parliament could control the Council of Higher Education.

Since December 06, 1995, when he was brought to the administration of the Council of Higher Education, Kemal Gürüz carried out the staffing and discharging, which can be considered a coup, in the administration of Higher Education Institutions for 8 years. He has committed a great persecution by exclusion of students with head scarves from universities and by ensuring that new students are not registered. Erdogan Teziç, who was brought to the same task after him, went one step further than Kemal Gürüz with his actions. They received wide support from the Presidents of their time in staffing and the illegal practices of the Council of Higher Education.

The fact that the new Presidents will be elected by popular vote does not make it possible to make staffing that is contrary to the values of the nation in higher education but the Parliament's hands were tied against the illegal practices of this institution, the state was incapacitated and the will of the nation could not prevent open unlawfulness.

g. COUPS ON JURISDICTION AND ITS CONSTITUTIONAL BASIS;

The years 2007 and 2008 were passed as the years in which the country's agenda was directed by the obstructions made by the high judicial bodies.

MAY 03, 2007 JUDICIAL COUP:

When the election process of the President started, the case of “Cancellation of the vote, as 2/3 majority of '367' votes was not obtained for the opening of the session in the Grand National Assembly of Turkey for the Presidential election”, filed upon the request of the Main Opposition Party, was accepted; with its decision on May 03, 2007, it prevented the Grand National Assembly of Turkey from electing the President and dragged the country into an uncertain course; as a result, the general elections for the deputies were delayed and the country was governed by an expired President for more than three months. This decision will take its place in history as a coup to the will of the nation by the Constitutional Court.

JUNE 05, 2008 JUDICIAL COUP

The Constitutional amendment made to remove the headscarf ban applied in universities was overshadowed by the party closure case, and although it did not have the authority to review it on the merits, it was reviewed on the merits and canceled with the decision announced by the Constitutional Court on June 05, 2008.

In its reasoning announced on October 22, 2008, the Court tried to explain the principle of secularism, which is included in Article 2 of the Constitution and which has no definition, with unwritten norms of law; it offended the national conscience by taking non-religious philosophical movements and their doctrines as reference, instead of taking the sacredness of the nation, its cultural accumulation up to 1000 years, customs, traditions, religion and spiritual sensitivities as reference, and announced to the whole world what kind of ideological staffing it was in.

The Constitutional Court placed itself in a position above the Grand National Assembly of Turkey, and took away the power of arranging the Constitution from the TGNA.

It has dealt a blow to the belief and will of the nation by using its decision not in the direction of removing the bans before the nation, but in the direction of the continuation of the bans that will eliminate the delusions of the minorities.

JULY 30, 2008 JUDICIAL COUP

Against a political party that received 47% of the vote, due to the reasons that the majority of the nation does not take seriously and especially the constitutional amendment made to abolish the ban on veiling applied unlawfully in universities; the closure case opened by the Chief Prosecutor of the Supreme Court was accepted and the ruling party was punished by cutting half of the treasury aid, and under the threat of closure, attempts to improve fundamental rights and freedoms were prevented.

This decision has taken its place in the social and political history of our country as a coup to the national will by the Supreme Judicial Institutions, with the implicit support of the Constitutional institutions, especially the Armed Forces.

Presidents, who have the last say and signature in appointments to the High Judiciary organs, Higher Education Institutions and University Rectorates, the Armed Forces and positions at the top of the bureaucracy, have served as the most important actor of the ideological staffing in the State Bureaucracy and the summit of bureaucratic authority, according to the ideologies they represent. For this reason, presidential elections have always caused crises. The Grand National Assembly of Turkey has always been put under pressure so that people who are endowed with the moral values of the nation are not elected President. In the periods when this was successful, negative staffing emerged and our nation suffered by being deprived of its basic human rights and freedoms.

The fact that the new Presidents will be elected by the people blocked the way of staffing against the values of the nation, and with the September 12, 2010 Constitutional amendment, the changes made in the structure of this Court and the Supreme Board of Judges and Prosecutors paved the way for their decisions to remain in line with the law.

h. PERIODS OF INSTABILITY THAT PROVIDED A BASIS FOR COUPS:

Our recent history shows that military coups or interventions follow long periods of political instability. From December 13, 1970 to September 12, 1980, 12 coalition governments came to power in 10 years. Eight of them served less than one year. During these weak coalition governments, political and economic stability deteriorated, anarchy became uncontrollable, the nation was overwhelmed, and the September 12, 1980 Coup came as a savior while looking for a way out.

Again, from June 23, 1991 to February 28, 1997, 7 different Governments took charge in 6 years. Four of these seven governments were in office for six months and one for less than a year. During these weak coalition governments, economic and political stability deteriorated, followed by the post-modern March 28, 1997 National Security Council Coup.

On the other hand, in the 8-year period between 13 December 1983 and 23 June 1991, three governments formed by one and the same party remained in office and 4 governments formed by the same party in the 9-year period between 18 November 2002 and the present day. In these periods of political stability, solutions to the country's problems were found by the political powers. As it is understood from the Sledgehammer and Ergenekon cases, there was no change in the legal basis and ideological staffing, and even though actual coup plans were made, the possibility of coup and intervention was not given.

  1. WHAT KIND OF CONSTITUTION

New Constitution should;

Protect fundamental human rights and freedoms,

Establish inner peace,

Establish the principle of ensuring justice and the rule of law,

Make the National Will prevail and maintain stability,

Establish a modern and advanced management system,

Provide the opportunity to communicate closely and continuously with the outer world.

ASDER advocates the following principles for the provision of general acceptance and demands that they be included in the New Constitution.

a. THERE SHOULD BE NO OFFICIAL IDEOLOGY IN THE CONSTITUTION

Constitution should be an agreement not only between the state and society, but also between themselves, which allows society to live together. Although any person has no similarity of thoughts and beliefs with the society generally, Constitutional rights should enable him to accept becoming a citizen of this state. It should form a state umbrella, standing at the same distance to the differences. Dictating an official ideology, adopting an idea or a thought and marginalizing others, or, more clearly, being hostile, undermines agreement, the principle of equality, the sense of justice, and sees those who differ as dangerous, harmful and threatening. They isolate the different ones from the state, from the public sphere, from the state services.

In our recent history, the secular-left-nationalist view has been adopted as the official ideology under the name of Ataturkism and Kemalism. Those other than this ideology were classified as separatist and destructive movement members, extreme leftist, racist, extreme rightist, reactionary, Kurdish, Armenian, etc. in the security documents of the state and were seen as internal threats and, as a result, they were dismissed from public duties, shown as a target to the security forces, and isolated. Different ideologies were declared guilty beforehand. Not being a member of the official ideology was considered enough to be considered a criminal.

The official ideology first divided the public officials and dissenters were purged; After the unity of ideology was achieved in the public institutions, the society was divided and split into enemy camps.

The state cannot be a party to any ideology, it is the defender and protector of basic human rights and freedoms. It should be a supporter of law, justice, right, equality, freedom and internal peace.

b. THERE SHOULD BE NO IRREVOCABLE ARTICLES

The presence of irrevocable provisions implies distrust of the Nation and future generations. However, it may be the result of the protection instinct of a coup-plotter mentality. The constitution should be a text of agreement on which the nation has agreed, not imposed.

The first three articles of the 1982 Constitution and the Revolution Laws in article 174 were stipulated in the fourth article as irrevocable articles. It may not even occur to anyone to alter the points mentioned in the first three articles, nor may there be such a request. But instead of these provisions, which are deemed appropriate today, it can be thought that the society will feel new needs after a while and it will turn towards better goals as a result of new regulations. Those who put this article into effect may also have left the society. Cannot these article be adapted to today's conditions? If those who want to alter arise, should they conflict with those who do not want to? Every article and constitutional rule should be able to be altered if the society wishes.

c. THE PRINCIPLE OF SECULARISM SHOULD NOT BE INCLUDED IN THE CONSTITUTION

The principle of secularism was included in the 1924 Constitution of our country in 1937, as one of the three states in the constitution of this principle. Today, it is a constitutional rule that is found in the constitution of only 21 of nearly 200 countries, but whose implementation in our country is unlike any other country's practice and purpose of putting it into the constitution, and it is a constitutional rule that hangs like the sword of Damocles on the heads of religious people in Turkey.

According to some, it is freedom of religion, according to some it is the rule of not blending religion and state affairs, according to some it is the name of not expressing beliefs, according to some it is atheism (non-religious), according to some it is hostility to religion. After all, it is a foreign concept that has not been deliberately defined and has been fulfilled in the Constitution, “The Religion of the Country is Islam” in order to remove the Islamic belief from the society.

In other words, it has been the official religion of the state since its entry into the Constitution. If people who do not adopt this religion (secularism) cannot suppress their belief, they could not take office in important positions in the state, and citizens were not brought closer to the state.

It is an anti-democratic rule against basic human rights. It should not be included in the new constitution.

All beliefs must be under the protection of the state. Beliefs should be protected by the constitution and laws, and interference should be prevented by law.

None of the articles and provisions of the Constitution to be made in our country, which is 99% Muslim, should not contradict any verse of the Qur'an. In order to ensure this issue, a delegation from the Directorate of Religious Affairs should also be present in the work of the New Constitutional Commission of the Assembly.

d. OFFICIAL LANGUAGE SHOULD BE TURKISH, MOTHER TONGUE BASED EDUCATION SHOULD BE PROVIDED 

Although language is one of the unifying values of being a nation, different ethnic groups should be provided with the opportunity to use and maintain their culture and language so that they can be citizens of the state with equal rights. Everyone should be given the freedom to speak and use the language of their choice. The freedom of ethnic groups to speak and develop their language and to have education in their own language should be protected by the constitutional measures.

But the official language in the institutions of the state and in international relations should be Turkish.

e. FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS MUST NOT BE RESTRICTED

The 1982 Constitution, on the one hand, expresses fundamental rights and freedoms, on the other hand, it forms restrictions for the security of the State.

The right to life, freedom of religion and conscience, freedom of thought, freedom of possession, protection of morality and generation, which are considered as human's innate negative rights and freedoms, should be constitutionally guaranteed and they should not be restricted.

Violations of these freedoms should be prohibited by measures through law.

Positive rights and freedoms include the freedom of education, health, employment, entertainment, rest, travel, work and establishment, which are among the social and economic rights of human beings. These rights and freedoms are the rights to be developed in civil society and social life. In order for these freedoms to be exercised in the Constitution, the opportunity to organize civil society should be provided and non-governmental organizations should be encouraged. This area of freedom should also be taken under unrestricted protection.

The active rights and freedoms of people also express their political rights and freedoms. When the right to vote, to be elected, to form parties and associations, to be a member of parties and associations in this classification allows people to participate in the administration and have a say in the administration, the use of this right should be encouraged and facilitated.

The constitution should place service to humanity at the center of state services. It should be based on keeping people alive, protecting and developing them, and legal arrangements should be made to punish rapes.

f. DEATH SENTENCE SHOULD BE INCLUDED

The right to life is the fundamental right of the person. In order to protect this right, there must be a penalty that will deter anyone who intends to intentionally kill a person. Our belief is that the punishment is effective, it will prevent the commission of criminal acts, and if it is not effective, it will encourage people to commit crimes. Even if it is not imposed for other acts, the death penalty should be given to those who kill people deliberately. Through this way, the killing of innocent people can be prevented. But by the family of the murdered person, the killer's death sentence should be able to be changed to different sentences.

g. A CITIZEN SHOULD NOT HAVE A CONSTITUTIONAL TITLE

Our constitution should not contain terms and words that would evoke nationalism and cause ethnic rivalry among our people. Our constitution should not be stuck with the discourses of minority groups. It should be at an equal distance to all our citizens and their ethnic identities. Expressions that will cause stubbornness and ethnic superiority competition that will not benefit anyone should be avoided.

“Everyone who is affiliated to the Republic of Turkey by a bond of citizenship is called a Turk regardless of religion and race.” Instead, the Constitution should state that “Citizenship is a fundamental right. Everyone who gains this status in accordance with the principles stipulated by the law is a citizen of the Republic of Turkey.”

h. THERE MUST BE PRESIDENTIAL SYSTEM

Our new President will be elected by popular vote. An irresponsible President elected by popular vote, a prime minister appointed by the Parliament but responsible for the entire executive, may be the most effective formula to get things stuck. In any case, the President will be elected with a vote of more than 50%. But the party in which the Prime Minister comes out may not usually get 50% of the vote from the public. Especially if the coalition is mandatory, this rate will go down further. The question of which one is more worthy of the trust of the people will always be a matter of mind-boggling and tampering. The current situation leads the country to a two-headed administration.

On the other hand, in a parliamentary democracy, that is, the election of the prime minister on the parliamentary side weakens the supervisory role of the Parliament on the government. Considering our election system, due to the authority of the Prime Minister over his party, the Grand National Assembly of Turkey cannot go beyond a mechanism that enacts laws with the instruction of the Prime Minister. As such, when it is overshadowed by the Parliamentary Government and the Prime Minister, other powers and the judiciary can sometimes influence both powers.

In terms of the principle of separation of powers is more effective, the executive has the opportunity to act quickly in accordance with the conditions of the day, eliminating the dualism, enabling the GNAT to supervise the executive more effectively, communicating with the outer world more effectively, and not being able to have tutelage over the President; Turkey should be governed by the Presidential system.

i. THE FORM OF ADMINISTRATION SHOULD BE ORGANIZED ACCORDING TO THE PRINCIPLES OF REGIONAL UNITARY STATE AND ADMINISTRATIVE AUTONOMY

 In an era when even individual activities are adjusted to global scales, country problems cannot be solved only by considering them from within the borders. All functions of the state must also be performed taking into account the outer world and global developments. Each Ministry should consider external balances in its main areas of activity. Education, economy, defense, transportation, justice, commerce, industry, customs and etc. every activity can be achieved by addressing both the outer world and the country, and national security and welfare can be achieved.

As such, the central administration, that is, the Ministries that constitute all the main fields of activity of the state, cannot both follow the outer world and develop appropriate policies in a timely manner, and carry out their activities in the most remote corner of the country without interruption, in terms of the principles of administration. Then, some powers of the center should be left to local authorities. While doing this, the unitary structure should not be disturbed.

In particular, if it ensures the control of budgetary income and expenditure by elected local organs and authorities, it can both maintain the unitary structure and ensure the security of its country and the welfare of its nation more economically, faster and with better quality, with a modern administration on a global scale by keeping the authorities and responsibilities related to the central administration, legislation, judiciary, internal security, foreign defense and foreign policy in the central administration if the central government devotes its attention to these fields of activity and foreign relations, it divides the execution with the local administrations, for which it takes appropriate measures.

Each authority can manage a maximum of 10 subordinates. Considering this, regional authorities should be established. Provinces should also be affiliated to these regional authorities. The boundaries of the seven geographical regions should also be the boundaries of the Regional Authorities. Fear of ethnic division should not prevent effective government organization. Fair governance ensures new participation, not division. We must get rid of our fears. It should be taken for granted that administrative autonomy and regional administrations will have the effect of strengthening the unitary structure.

The form of government of our country in the Constitution is with the Administrative decentralization model in accordance with the principle of Unitary, Regional State; Legislative and Judicial power should be in the central government, a part of the executive power should be transferred to the regional administrations, and the regional administrations should have transferred some of their executive power to the lower level local authorities, and the Central Government should have the power to control the regional and sub-local administrations with the ability to increase and decrease these powers.

j. IT MUST BE ENSURED THAT THE NATIONAL WILL ESTABLISHES AUTHORITY OVER ALL STATE INSTITUTIONS

The manifestation of the national will is the Grand National Assembly of Turkey. The parliament, that is, the legislature, should be able to control the executive. The Executive should be able to exercise authority over all government agencies; The judiciary should also be independent and impartial, but should not interfere with the legislature and the executive. Since the Deputies are under the control of the party's above organs and the leader in the current election system, effective control of the legislature over the executive is not possible. A bicameral presidential system means an independent and strong parliament. If we want the people elected by the nation to govern every institution, a presidential system should be established in the Constitution.

Parties are indispensable organs of democracy. The parliament gets its power from the parties, and the parties get their power from the vote potential they have. In a parliamentary democracy, governments made by the Assembly must have a majority in the assembly in order to govern all the organs of the executive. Governments that consist of a distribution of votes that have to make a coalition are weak. It is difficult for the State to establish powerful authority over its Institutions. For this reason, the electoral thresholds should be raised in a way that will ensure stability in the government, and that justice in representation should be waived, and a two-party, bicameral presidential system should be established.

In order for the Executive Institutions not to become uncontrollable, the necessary control and supervision should be given to the governments through the Constitution.

k. THE PATH OF CIVIL DICTATORSHIP MUST BE BLOCKED

The presidential system, in which the principle of separation of powers is most strongly applied, does not allow civil and military dictatorships, coups and interventions due to its independent and effective parliamentary power. Therefore, the Presidential system should be introduced by the Constitution.

l. THERE SHOULD BE NO JUDICIAL TUTELAGE OVER POLITICS

Preventing the judiciary from oppressing the legislature and executive and preventing conflict at the top of the State; Leaving the decision-making authority in the problems between the legislative, executive and judicial organs to the TGNA, which was elected by the votes of the people; Since it is essential for both the peace and trust of the nation and the stability of the country, the approval authority of the decisions of the Constitutional Court pertaining to the executive and legislative organs, including the President, as well as political parties, should be the Grand National Assembly of Turkey. The election of the Presidents of the Court of Appeals, the Council of State and the Court of Accounts, which are political authorities, and the Chief Prosecutor of the Court of Appeals should also be formed  by the Grand National Assembly of Turkey.

The indictments of the Chief Prosecutor of the Court of Appeals should also be sent to the Constitutional Court after the approval of the Grand National Assembly of Turkey.

If there is a concern that the consolidation of the powers in the Grand National Assembly of Turkey and the judicial organs will be dominated by politics, the concerns can be alleviated by thinking that ideologies contrary to the values of the nation will prevail, and that it is better for the will of the nation to dominate.

m. COUNCIL OF HIGHER EDUCATION SHOULD REMAIN, SCIENTIFIC AUTONOMY SHOULD BE ENSURED IN UNIVERSITIES.

The Grand National Assembly of Turkey should be given the authority to initiate an investigation and dismiss the teachers and administrative staff, and to elect, appoint and dismiss the Head of the Council of Higher Education and the Rectors.

Additional measures for the establishment of the scientific autonomy of universities should be made in the Constitution and related Laws.

n. MILITARY SHOULD NOT BE ABLE TO ESTABLISH TUTELAGE OVER POLITICS

The reason at the center of the search for a new Constitution is that military coups and military tutelage have been established over the institutions of the state, especially politics, in the last 50 years, and the last two Constitutions have been made by coup-plotter soldiers. For this reason, the issue of removing the coups and the foundations of the military tutelage system from our Constitution and the legislation in force, which we have emphasized in the first section, should be an important motive in the preparation of the new constitution. The new Constitution should abolish the legal legislation that was based on coups, allowed ideological staffing and which leads to destabilization. The nation is determined in this matter. Parliament should show the same determination. In the light of the principles set forth in the following paragraphs, if the necessary arrangements are made in the Constitution and laws, there is no doubt that the obstacles in front of our State on the way of advancement and progress will disappear and our Armed Forces will become stronger.

In order to achieve this;

1) THE NATIONAL SECURITY COUNCIL MUST BE ABOLISHED

The fact that the soldier, who is at the center of the coups and impositions, is represented by three Force Commanders and the Gendarmerie General Commander, in addition to the Chief of General Staff, in the NSC convened under the Leadership of the President gives the Armed Forces a separate political power to intervene in politics.

There is already a Supreme Military Council under the chairmanship of the Prime Minister, which allows the discussion of military and security issues. If the goal is the combat readiness of the Armed Forces and measures to be taken against external threats, these issues are already within the duties of the Supreme Military Council. The Deputy Prime Ministers, Ministers of Interior, Foreign Affairs and Justice, who are civilian members of the NSC, can also join the Council Members and the Supreme Military Council can be transformed into a state that can perform the function of the NSC.

The NSC should be transformed into a “STATE COUNCIL” headed by the President, its members should consist of representatives of the Parliament, the Supreme Judiciary, the Executive and Independent Institutions, only the Chief of the General Staff should represent the TAF at this meeting. The staff of the Secretariat General of the National Security Council should be completely demilitarized and transformed into the “General Secretariat of the Council of State”.

2) GENERAL STAFF SHOULD BE AFFILIATED TO MINISTRY OF NATIONAL DEFENSE AND TURKISH ARMED FORCES SHOULD BE RESTRUCTURED

The 1982 Constitution holds the Council of Ministers problematic against the Grand National Assembly of Turkey in ensuring national security and preparing the Armed Forces for homeland defense and he states that the duties and powers of the Chief of General Staff, proposed by the Council of Ministers and appointed by the President, will be regulated by law, that he is responsible to the Prime Minister for these duties and powers, that he is the Commander of the Armed Forces, and that he will fulfill his duty of commander-in-chief on behalf of the President in wartime. (Art.117)

With the words chosen by the coup-plotters, the General Staff was as if it had been turned into an autonomous Command, and with its armed power, constitutional and legal powers, it established authority from the top to the lower organs of the State, thus paving the way for the formation of a tutelary system and therefore for coups and interventions.

Under the threat of a coup, the multi-headed administration created obstacles to the development of the country. Interventions in the Constitutional and legal Boards led to the deterioration of political stability, followed by economic stability, then the anarchy and chaos, in this case de facto military interventions and coups.

Therefore, the Chief of General Staff should be brought under the control of the political authority. Organization connections should be rearranged in the new constitution and the Armed Forces should be reorganized in a way that will increase the contemporary requirements and the international effectiveness of our country. Here, it should be ensured that the administration of the TAF, whether in peace or in war, is carried out by the elected civilian will. It should be evaluated that the establishment of the Presidential system in our country will be a democratic solution to this issue as well.

The General Staff should be subordinated to the Ministry of National Defense by being reduced in size to provide consultancy and coordination between the Forces.

Land, Naval and Air Force Commands should also be directly subordinate to the Minister of National Defense.

Army Headquarters in the Land Forces should be abolished and the Corps should be directly connected to the Land Forces Command. For low-level conflicts in peacetime, one corps in the east, west and center, and one corps for foreign alliance missions should be professionalized with all its personnel. The obligation to serve in the military for all-out war must be maintained. Its duration should be as long as the training period (6-9 months), all social facilities (officers' clubs, military mess, military camps, recruiting offices, military courts) should be demilitarized and the combat elements of the army should be strengthened.

In Naval and Air Force Commands, Naval and Tactical Air Force Headquarters should be transformed into Tactical Command and coordination headquarters, and other combat support elements should be fully professionalized.

Schools that train officers, non-commissioned officers and specialist personnel form a command with the Special Forces Command, the Mobilization Investigation Boards and the Unconventional Forces that will serve in the Total War, through a Command; electronic warfare and military intelligence units should also be directly affiliated to the Ministry of National Defense through a separate Command.

3) TASK OF THE TURKISH ARMED FORCES SHOULD BE REDEFINED

Although it is not a constitutional issue, the tasks assigned to the TAF by law and the tasks interpreted have dragged the country into difficulties. In parallel with the new Constitution, the task of our Armed Forces should be redefined.

In its current form, ,“The duty of the Armed Forces is to guard and protect the Turkish homeland and the Republic of Turkey, which has been appointed by the Constitution.” this article has caused our Armed Forces to turn to internal security rather than external security, to intervene in politics, to put political powers under tutelage and to act as regime guards.

While the task is being rewritten, the TAF should be removed from being a regime guard; The task of internal security should be taken from the responsibility of the TAF; It should be taken out of politics and put in a position and power to be used purely against external threats; their tasks in peacetime, in times of tension and in war must be clearly articulated; In peacetime, it should allow the sending of forces to intercontinental and overseas distances within the framework of alliances; by changing the concept of defense, national defense should be launched from across the border, and in extraordinary situations, an room should be left for specially trained personnel to be allocated to internal security with the approval of the parliament.

The new duty of our armed forces should be stated as follows in the relevant article of the Internal Service Code.

(a)   To support national policies determined to achieve national goals,

(b)  To deter assault at arms against our country from across borders,

(c)   To prevent the assault across borders before it happens,

(d)  To prevent the assault across borders before it happens,

(e)   To reinforce the law enforcement forces with appropriate elements, with the decision of the Grand National Assembly of Turkey, to be used in internal security in emergency situations where the Law Enforcement Forces cannot be sufficient.

4) INTERNAL SECURITY SHOULD BE GIVEN TO MINISTRY OF INTERIOR AND FOREIGN DEFENSE TO MINISTRY OF NATIONAL DEFENSE.

The task of internal security and fight against terrorism should be taken from the Turkish Armed Forces and given to the Ministry of Interior.

The security forces affiliated to the Ministry of Interior are trained in accordance with the rules of domestic law in terms of their tasks and powers; Armed forces personnel are trained in accordance with the laws of war. The widespread use of the Armed Forces in internal security causes intense violations of rights, as our citizens are perceived as enemies, no matter what crimes they commit.

In this regard, our Armed Forces should only be given the task of defending the Homeland against external threats. In the fight against terrorism, the task of eliminating the external powerhouses of terrorist organizations should be given to our Armed Forces. The most suitable unit for this task is the Special Forces Command.

5) THE GENDARMERIE GENERAL COMMAND SHOULD BE SEPARATED FROM THE GENERAL STAFF.

The first article of the Internal Service Code includes the Gendarmerie within the TAF. According to the first article of the TAF Personnel Law No. 926, the officers and non-commissioned officers of the Gendarmerie General Command are also considered to be members of the TAF in terms of their personal rights. Gendarmerie officers are trained at the Military Academy. Gendarmerie General Commanders are assigned from among the Four-star Generals belonging to the Land Forces. The status of Gendarmerie Generals who will be promoted to a higher rank and Gendarmerie Officers who will become generals are determined in the Supreme Military Council, where the Minister of Interior is not present. Except for the professional personnel of the Gendarmerie General Command, the responsible reserve officers and privates are also recruited by the Ministry of National Defense.

But in terms of service, the Gendarmerie General Command is the law enforcement agency under the Ministry of Interior. The personnel of the Gendarmerie General Command is subordinate to the General Staff, more than the Ministry of Interior. This two-headed approach expands the sphere of influence of the General Staff. In order for the National Will to dominate all constitutional institutions, including the TAF, the most important measure is to hand over external security to the TAF and internal security to the Ministry of Interior. In this case, the Gendarmerie's relationship with the General Staff should also be terminated. 

6) INTERNAL THREAT ASSESSMENTS MUST BE REMOVED FROM THE NATIONAL SECURITY POLICY DOCUMENT (NSPD)

Internal threat assessments in NSPDs prepared since the 1990s have led to divisions and confrontations from the top to the bottom of the State. Tendencies shown as internal threats are documented not to remain in the document, but to take precautions. After these documents were prepared, internal threats and the measures to be taken against them were included in the plans and published to the most extreme units of the Public Institutions, especially the Turkish Armed Forces, and these institutions were given the task of actively combating internal threats.

While the mentality that planned February 28 Coup, in the NSPD of its time, showed REACTIONARYISM, SEPARATISM and EXTREME LEFT as internal threats, it did not present the EXTREME RIGHT and racism as a threat. Thus, far-rightism and racism, which do not contain reactionary and separatist (Kurdist) elements, have been accepted as the OFFICIAL IDEOLOGY of the State. In other words, while the official ideology (secular, nationalist, statist, moderate leftist sections) was supported by all the power of the State, especially the TAF, the threatening ideology, namely belief and ethnic identity, was suppressed.

This pressure and separation first started in public personnel, and there was a confrontation until those who were seen as threatened were discharged. When the discharge was completed, Official Ideology was staffed in State Institutions. Later, by forming junta organizations, an effort was made to apply illegal and illegitimate methods of struggle with the members of the ideology that were shown as a threat to the society, causing the nation to be divided into different sides.

In the same period, the Official ideology found political parties in the Grand National Assembly of Turkey that were shown both as supporters and as threateners. Particularly, parties that have no hope of coming to power through elections either tried to support state institutions with official ideology or remained in the shadow of terrorism.

Since religiosity and ethnic identity are shown as internal threats in the NSPD, in removing the obstacles to the fair use of fundamental rights and freedoms; In order to ensure internal peace, even the freedom that needs to be provided to ethnic identity and religious life has led to political separation. As a result, the Parliament is divided into official ideology and its opponents.

The most important condition to prevent staffing in the state, polarization among the people of nation and being a basis for coups is the removal of the internal threat assessment from the NSPD.

If an act is considered a crime in the criminal laws, the security forces must identify the perpetrators and bring them to justice, although the perpetrators of these acts are classified and not shown as a threat in the highest security document of the state. Even though coup-plotting is not shown as an internal threat, if the judiciary can be held accountable today, the perpetrators of other crimes defined in the penal laws can also be brought to justice. In order to ensure internal peace, prejudice and internal threat assessments that will cause the nation to be divided into camps due to their non-criminal acts should be abandoned. 

7) THE STRUCTURE OF THE SUPREME MILITARY COUNCIL SHOULD BE CHANGED AND ALL DECISIONS MUST BE ACCESSIBLE TO THE JUDICIARY

The Supreme Military Council, which served as an ideological staffing mechanism in the February 28 Process, is not a constitutional institution. It derives its authority from the Law No. 1612 on the Establishment and Duties of the Supreme Military Council, and the Turkish Armed Forces Personnel Law No. 926, and its irresponsibility from Article 125 of the Constitution.

The 1982 Constitution included the provision “Decisions of the Supreme Military Council are out of the scope of judicial review”. After this provision was made, the promotion and retirement proceedings of the colonels and generals who were promoted to the General rank in the Council could not be taken to the judiciary.

Before this provision was made, a Medical Colonel, a Gendarmerie Colonel and a Rear Admiral filed a lawsuit against the Ministry of National Defense in the Council of State with the request for the cancellation of the non-promotion in the period of 1953-1971 and a decision was made to cancel the process of non-promotion. Between 1971 and 1982, two members of Supreme Military Council filed a lawsuit with the Supreme Military Administrative Court within the body of the Council of State (Supreme Military Administrative Court was included in the Council of State) demanding the cancellation of the appointment of two full generals, and the appointment procedures were canceled. Also in this period, the wrong actions established in the lawsuits filed by two colonels and a major general who were not promoted regarding the cancellation of the non-promotion proceedings were annulled. In nearly 30 years, only nine out of hundreds of promotions and appointments have filed and won, meaning that in periods when Supreme Military Council Decisions are open to the judiciary, they pay more attention to merit. The fact that one of the colonels who filed the lawsuit could not be promoted because of the wrong collection of the registration notes explains the importance of opening these proceedings to the judiciary.

With an addition made on 29.07.1983 to Articles 50 and 94 of the Turkish Armed Forces Personnel Law No. 926; with the provision that the separation process can be made with the Supreme Military Council Decision of those who are not deemed appropriate to stay in the Armed Forces "due to their lack of discipline and moral status", ex officio retirement proceedings after this date were also avoided from judicial review.

With the Constitutional Amendment Referendum held on September 12, 2010, Article 125 of the Constitution was amended, and “separation proceedings due to indiscipline and moral situation” were opened to judicial review. However, the promotion, retirement and appointment of generals are still closed to judicial review.

In order to highlight merit, Supreme Military Council Decisions should be fully open to judicial review. Procedures of dismissal from the Armed Forces, which are not required by criminal judicial decisions, should be prevented.

If the General Staff is affiliated to the MND, the Supreme Military Council should be transformed into the Defense Council; Deputy Prime Ministers, Ministers of Internal Affairs, Foreign Affairs and Justice, who are the civilian members of the NSC of which abolition is appropriate, should also be made members of the National Defense Council; Among the soldiers, General Staff Force Commanders and Generals and Admirals directly reporting to the Ministry of National Defense should be members of the National Defense Council.

8) MILITARY HIGH COURT OF APPEALS SHOULD BE ABOLISHED, MILITARY JUDGES MUST BE WITHOUT UNIFORMS

There are three different courts in our Armed Forces with different powers, duties and organizations. These are Disciplinary Courts, Military Courts and Administrative Courts.

Disciplinary Courts:

These Courts are courts established by special law[4] in Brigade[3] and higher units, headquarters and institutions, capable of prosecuting due to disciplinary offenses and military misdemeanors written in the founding law, and consisting of three officer[5] members, who are not judges and assigned with additional duties by the command before which the court was established. Disciplinary courts can also be established in units smaller than brigades in garrisons where needed.

The disciplinary courts established in the brigade and equivalent units are authorized to try the members of the ranks from private to captain, those established in the divisions and equal commands, from private to lieutenant colonel, from private to army and equal commands, from private to colonel, and the disciplinary court established before the General Staff is authorized to try the rank holders from private to general and admiral.

In the commands in which a disciplinary court is established, if there is a judge officer among them, there is an appointed disciplinary officer from among the non-judge officers.

Military Courts:

They are courts with three members, two of whom are judges and one is an officer, capable of prosecuting the offenses written in the Military Penal Code established by special law[i], before the Corps, the Army (equal in land, naval and air), the Force Commands and the General Staff. The military court in the General Staff organization is composed of three military judges, two generals and admirals when it judges generals and admirals.

In every unit in which a military court is established in its organization, there is a military prosecutor's office accompanied by the command, a sufficient number of military prosecutors, and a principal organization for the court and the prosecutor's office. Legal advisors in the command may also examine the case files in the military courts established before the command on behalf of their commanders.

Military Court of Appeals;

It is a Constitutional Supreme Court established by special law[ii], which acts as the final review authority of the decisions and judgments rendered by military courts. It is the establishment of the Ministry of National Defense. Also, it is the appellate authority of military courts.

All of its members are judges of military personnel. Within its structure, it houses the President, the Vice President and the attorney general's department unit with four departments, each of which has a president and seven members.

Supreme Military Administrative Court;

Even if the Supreme Military Administrative Court is established by non-military authorities, it is a Constitutional Supreme Judicial Institution established by special law[iii], which performs judicial review as the first and last instance court of disputes that concern military personnel and arise from administrative acts and actions related to military service.

It is the equivalent of the Council of State in the Armed Forces. It is the establishment of the Ministry of National Defense. The Court consists of the Chief Judge, two departments, the Office of the Attorney General, the General Secretariat, the court offices and the directorate of the division. In each department, there are six members of the military judge class, including a chief, four military judges, and two staff officers. Decisions are taken with the participation of three military judges and two staff officers.

Military Judge members are selected from among the first class military judges with the rank of lieutenant colonel by the members of the military judge class of the Supreme Military Administrative Court among the three candidates to be nominated for each vacant membership, staff officer members are selected by the General Staff, and among the staff lieutenant colonels who have completed their two years, among three candidates to be nominated for each vacant membership, by the President. The terms of office of the staff officer members are no more than four years.

  1. Establishment and Trial Procedure of Military Courts, Law No. 353 dated 25.10.1963
  2. Military Court of Appeals Law No. 1600 dated 27.06.1972
  3. Supreme Military Administrative Court Law No. 1602 dated 04.07.1972

Military Judgeship;

From those who study law faculties as military students on behalf of the Armed Forces and from those who studied law with the permission of the Chief of General Staff while they were first lieutenants or by their own means after becoming an officer or among the reserve officers who have been successful in the military unit and have graduated from law school, who make a request during their military service, they are determined by the Ministry of National Defense upon the request of the Chief of General Staff.

If military judges are successful in the one-year candidacy period, they are appointed as assistant judges or assistant prosecutors, which will last for three years. If they are successful in this task, they become military judges. Those who are not successful in candidacy and assistantship cannot become military judges and military prosecutors.

For military judges to be promoted, they depend on the average of the administrative records obtained from their superiors and the professional records to be given by the Military Justice Inspection Board of the Ministry of National Defense, the Military Court of Appeals Offices and Departments and the Military Court of Appeals Chief Prosecutor's Office.

Reaching the qualifications for election to first class judgeship, which will lead to new opportunities, not just promotion, being elected as a member of the Military Court of Appeals and the Supreme Military Administrative Court, being able to fill the position of one of the eight current military judge generals in the TAF (only five of the current judge general staff is active) and being one of the two military judge members of the Constitutional Court depends on the records to be obtained. That is, military judges, while representing justice, also have to get along well with their commanders in order to fulfill their expectations.

In the face of Supreme Military Council Decisions, the guarantee of military judges' judgeship is just on paper. During the 28 February process, ten judge officers were dismissed from their duties and from the Armed Forces.

Military Judges are lawyers who are stuck between law and military service. The fact that Officers in the Supreme Military Administrative Court will return to their duties after serving for a maximum of four years, with their administrative records given by their superiors, is a phenomenon that damages the subjective impartiality in terms of the guarantee of judgeship and the objective impartiality in terms of the courts.

In terms of the establishment of justice, the institution that is in the most difficult conditions is the Supreme Military Administrative Court.

It would be appropriate to include the Supreme Military Administrative Court within the framework of the Military Court of Appeals, if possible, without uniform, within the Council of State and the Court of Appeals.

Military Courts and Disciplinary Courts should be protected. However, only the judges of the military courts should be without uniforms at military courts. Registration, promotion, appointment and personal rights must be organized by the Ministry of Justice.

There is no objection to the fact that members of the disciplinary court, disciplinary officers and legal advisors remain judges in military uniform. DECEMBER 28, 2011

Adnan Tanrıverdi

Retired Brigadier General

ASDER Honorary President and

Üsküdar University Board of Trustees Member

 

[1] TAF Internal Service Code, Article 35 - The task of the Armed Forces is to guard and protect the Turkish homeland and the Republic of Turkey, which has been designated by the Constitution.” (January 10, 1961)

[2] National Security Council in the 1961 Constitution;

 ARTICLE 111- (Amendment: 20/9/1971 - Law No. 1488/art. 1)

The National Security Council is composed of the Prime Minister, the Chief of the General Staff, the ministers specified by law, and the Force Commanders.

The National Security Council is chaired by the President, and in his absence the Prime Minister fulfills this duty.
The National Security Council recommends to the Council of Ministers the fundamental views necessary for taking decisions regarding national security and ensuring coordination.

      National Security Council in the 1982 Constitution:

 ARTICLE 118- (Amendment: 3.10.2001- Law No. 4709/art. 32) The National Security Council is formed under the chairmanship of the President by the Prime Minister, the Chief of General Staff, the Deputy Prime Ministers, the Ministers of Justice, National Defense, Interior, Foreign Affairs, the Commanders of the Land, Naval and Air Forces, and the Gendarmerie General Commander.

Depending on the nature of the agenda, relevant ministers and persons may be invited to the Board meetings and their opinions may be taken.

(Amendment: 3.10.2001- Law No. 4709/art. 32) The National Security Council shall notify the Council of Ministers of its views on the determination, determination and implementation of the State's national security policy and the necessary coordination. The decisions regarding the measures that the Board deems necessary for the existence and independence of the State, the integrity and indivisibility of the country, and the protection of the peace and security of the society are evaluated by the Council of Ministers.

The agenda of the National Security Council is determined by the President, taking into account the suggestions of the Prime Minister and the Chief of General Staff.

When the President is unable to attend, the National Security Council convenes under the chairmanship of the Prime Minister.

The organization and duties of the General Secretariat of the National Security Council are regulated by law.

[3] In the same units in the Naval and Air Forces, Gendarmerie General Command, Coast Guard Command;

[4] Law on Establishment of Disciplinary Courts, Trial Procedure and Disciplinary Crimes and Penalties, dated 16.06.1964 and numbered 477

[5] In the trial of non-commissioned officers and privates, one of the members of the disciplinary courts is a non-commissioned officer.

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