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Turkish Islamist Government Still Want To Try Coup-plotting Secularist Generals
16 July 2009
Following a recently approved piece of legislation that requires civilian courts to try military members in peacetime, the Justice and Development Party (AK Party) government is working on a formula to make the trial of generals involved in coup plans possible, Today's Zaman has learned. Last week, President Abdullah Gül approved a law that includes a change to the Code on Criminal Procedure (CMK), clearing the path for military personnel to be tried in civilian courts and preventing the prosecution of civilians in military tribunals. The president's move received strong praise from jurists and intellectuals, who said it would serve as a landmark step in improving Turkey's democracy and its bid to join the European Union. In a statement posted on the president's Web site, Gül dismissed the criticisms of some circles who claimed that the legislation runs contrary to the Constitution, stressing that the changes comply with the EU's requirement for the authority of military courts to be restricted to military affairs. However, Gül called on Parliament to remove the concerns of some circles regarding the package and address loopholes in the package. Following Gül's statement, the government began work on a formula for the trial of chiefs of general staff and force commanders who plot a coup, as there is no article in the Constitution regarding the trial of these generals, but the government wants the trial process of these generals to require the permission of the president and the prime minister. Parliamentary Constitutional Commission President Burhan Kuzu, an AK Party deputy, spoke with Today's Zaman about the formulas the government is working on to prevent a direct investigation of the chief of general staff and force commanders to preclude the possibility of their trial based on fabricated documents showing their involvement in coup plans. According to current laws, at least two senior military members should be in court for the trial of a general in court. Since there is no military official superior to the chief of general staff, he cannot be tried. Permission from the chief of general staff is needed for the trial of force commanders and generals. “An amendment could be made regarding the trial of the chief of general staff at the Constitutional Court. In order to prevent the discrediting of generals, there should be a permission system. Permission from the prime minister might be sought for the trial of force commanders and from the president for the trial of the chief of general staff. Such a formula should be found,” said Kuzu. Indicating that the scope of the legislation that paves the way for the trial of members of the military at civilian courts does not include the trial of the chief of general staff and force commanders, AK Party parliamentary group deputy chairman Bekir Bozdag thinks that the “permission formula” for the trial of these generals might bring some problems for offenses unrelated to military affairs. “The most protected person in the Turkish justice system is the chief of general staff. Without a legal amendment, it is impossible to try him. Let's say a teacher or a doctor gets involved in drug trafficking or gangs, is permission needed to try them? No, because the offenses they commit are not relevant to their profession. For example, what happens to a military member when he kills an individual outside the military domain? S/he is immediately arrested. The military base s/he serves is informed about their situation, but permission from the military staff is not sought. Offenses such as manufacturing and trading drugs, forming criminal organizations and committing crimes against the constitutional order as well as all terrorism crimes are all kinds of offenses that can be committed outside the military domain,” Bozdag said. What is the military's view? Following President's Gül's advice, the government began planning to address the loopholes in the reform package curbing military power with the start of the new legislative term on Oct. 1. It will make changes to the Military Criminal Code and the law on the establishment and duties of military courts. Ambiguities over which offenses are military offenses and which are not will also be removed. On the government's “permission formula,” military jurists say the government's proposal is worth examining. Stressing that the General Staff currently uses the “permission formula” for the trial of former and current generals, military jurists rule out the existence of a loophole in this respect. Civil jurists, on the other hand, demand that the right to grant permission to prosecutors for the trial of generals be taken away from the chief of general staff. Military jurists who oppose the idea say a similar procedure is in practice in civilian bureaucracy, as the trial of an undersecretary or general director depends on permission from their minister. According to a joint study carried out by jurists at the General Staff and the Ministry of Defense, there is disharmony between the legislation paving the way for the trial of members of the military in civilian courts and Article 145 of the Constitution. According to the military jurists, since the newly approved legislation is not applicable to retired generals, there is no problem regarding their trial. Many retired generals are already being tried in an ongoing investigation into Ergenekon, a shadowy crime network that has alleged links within the state and is suspected of plotting to topple the government. Nevertheless, since the law paving the way for the trial of members of the military at civilian courts talks about the “military domain” and “the services and duties of the military profession,” it runs contrary to the wording of the Constitution. Analysts say the military jurists' opposition to the law's wording rather than its content shows how groundless their claim about the law running counter to the Constitution is. Unlike to the Republican People's Party (CHP) and other opposition parties, military jurists admit that this law is a step taken in line with Turkey's EU membership. They think military courts working in line with the Constitution and civilian courts working according to the law might lead to a hierarchical order between the civilian and military justice systems.
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