The Young Scholars on Turkey (YSOT) Program Presents
The September 2010 referendum on a package of amendments to the Turkish Constitution came exactly thirty years after the Army’s last full-scale intervention in Turkish politics. The governing AK Party has framed the amendments as a step towards “civilianizing the constitution.” The existing constitution was put in place by the Turkish army in the aftermath of the 1980 coup. The constitutional changes, among other things, aim to circumscribe the jurisdiction of Turkey’s military judiciary to no longer try civilians in peacetime. While removing military courts’ competence to try civilians is an important step towards strengthening the rule of law, will a full civilianization of the judiciary be possible?
Joakim Parslow holds a BA and an MA from the University of Oslo and is currently a PhD candidate at the University of Washington’s Interdisciplinary PhD Program in Near and Middle Eastern Studies. His dissertation investigates the role of courts as mediators and objects of state-society relations in Turkey and Egypt, with a particular eye to the politics of “exceptional” jurisdictions such as state security courts and military judiciaries.
Kadir Ustun, Research Coordinator, SETA DC
By Natalie Lopez
Joakim Parslow began his talk by proposing an explanation as to why the main opposition party did not discuss the content of the amendments during the referendum process but, instead, chose to focus on the AK Party and the Prime Minister. Parslow said that the structure of the courts in Turkey left many “grey zones” which provided the judiciary with a certain level of flexibility in advancing their own agenda. If the Republican People’s Party (CHP) focused on the content of the amendments, it could have invited more focus on the structure of the military courts and could lead to further public discussion on the jurisdiction and structure of the military courts. Parslow highlighted how the proposed constitutional changes aimed to circumscribe the jurisdiction of Turkey’s military judiciary to no longer try civilians in peacetime.
Parslow said that Turkey’s rulers have used special military tribunals for members of the armed forces for centuries, but the first legislation in regards to the regulation of the military courts occurred in the first half of the 19th century. As a result of the military involvement in politics in 1961, 1970, 1982, and 1997, Turkey’s judiciary came to have a threefold structure with three separate courts; the ordinary civilian court, administrative courts and military courts. Parslow pointed out that these courts can be viewed as truly separate because there is no court that unifies the structure at the top which leaves a lot of room for “grey areas” in terms of their jurisdictions.
Parslow provided three main conclusions at the end of his talk. First, the passage of the constitutional referendum is a positive development from a civilian point of view because it protects civilians from being tried in military courts as stated in paragraph 145 of the amendments. Second, it is important to point out what the amendments did not do as opposed to what they did. Parslow states that the amendments did not remove altogether the military courts during times of peace. Lastly, from “a normative point of view” military courts should be removed completely. At the end of the day, they exude too much control over civilians. Parslow proposes that “adopting a strategy of gradual narrowing the military courts’ competence may prevent the more authoritarian parts of the army to exit from the legal system completely.”
During the Q & A session, Parslow said that even though it would be difficult to speak of a full civilianization of the judiciary with the passage of the recent amendments, the referendum result constitutes an important step towards strengthening the rule of law in Turkey. This is especially because military courts can no longer try civilians except in times of war.
When asked about the status of the gendarmerie, Parslow said that they are somewhere between the military and the police with a special status as they control %90 of the land mass of Turkey. Their staff is often recruits from the military. Further future reforms may bring about changes in the structure of the gendarmerie as well.
Responding to a question on whether he finds the argument that the ruling AK Party may actually be taking over the courts, Parslow mentioned that the number of justices in the Constitutional Court is being increased to 17 from 11, allowing the parliament and the President to appoint justices. However, their term of service is being limited to 12 years from the life-time appointment they previously enjoyed.