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Abdullah Bozkurt
The first post-election bill submitted to Parliament by the ruling Justice and Development Party (AKP) government of President Recep Tayyip Erdoğan shows that Turkey will effectively be governed under a perpetual state of emergency even after emergency measures were lifted, albeit only in name, and that the legislation paves the way for a worse situation in some cases.
The bill makes permanent many of the harsh measures implemented during the last two years under the state of emergency. Not only the central government but also local governors now have the power to declare a state of emergency and restrict rights and freedoms as they choose. The allowable period of detention is still long, and judicial review is done away in many situations such as in obtaining detention and search and seizure warrants. Erdoğan is also retaining the policy of asset seizures for another three years, bringing even more chaos to the economy by declaring that any transaction, asset transfer or change in management in companies is deemed void from the day a secret probe was launched into them.
The purge will also continue, and the government will neither compensate victims nor offer the same rank, position or title to a dismissed employee even if the state of emergency (OHAL) Commission, established in 2017 by the government after a deal with the Council of Europe to investigate complaints related to the loss of state jobs though government decrees, has ruled that they were wrongfully dismissed. The intelligence agency received fresh exemptions on top of the broad immunities it already enjoys, while the abusive anti-terror and defamation laws, which are the main articles in the Turkish Penal Code (TCK) under which a massive number of prosecutions were conducted, gained sharper teeth.
The 25-article bill was submitted to Parliament on July 16, 2018 by four deputy chairpersons of the AKP parliamentary group, hastily moved through the Justice Commission and will soon be taken up on the floor with likely approval. In an example of significant overreach, Erdoğan granted governors in 81 provinces the power to declare a state of emergency for 15 days, restrict the right to travel freely and the right to assembly on security and safety concerns. Article 8 of the bill amends the Turkish legal code on the right to freedom of assembly and authorizes governors to approve or ban any public meeting past sunset.
The list of crimes that can be prosecuted during a state of emergency has been expanded to include more penal code articles, including the notorious Article 299 of the TCK, which criminalizes insulting the president. The sentence can be increased by a sixth if committed publicly, and a third if committed by the press or media. This article, which states that anybody who insults the president of the republic can face a prison term of up to four years, is one of the most frequently invoked articles by Erdoğan to jail journalists, critics and opponents. Just this week, Erdoğan filed a criminal case against main opposition party Republican People’s Party (CHP) leader Kemal Kılıçdaroğlu and 72 members of Parliament on accusations of insulting him by posting a caricature of him deemed to be offensive on social media. The caricature, called Tayyipler Âlemi (World of Tayyips), had also led to the arrest of four Middle East Technical University (ODTÜ) students who displayed it during graduation ceremonies earlier this month.
The government also brings an interim measure to be applied to counterterrorism laws for the next three years, effectively keeping in place harsh measures that were seen during the state of emergency. For example, the detention period was limited to four days but was allowed to be extended up to 12 days at the request of a prosecutor. Legal motions challenging the abusive pre-trial detentions, allowed once every 30 days, can be made without hearing the defendant. In other words, the judge can issue a ruling without hearing the suspect, which is a violation of the European Convention on Human Rights (ECHR). The defendant has the right to appear before the judge once every three months. The European Court of Human Rights (ECtHR) has in the past faulted Turkey on many occasions for not granting defendants the right to defend themselves in court hearings.
Erdoğan also empowered prosecutors with search and seizure warrants that used to be granted only by judges. Public prosecutors who are mostly appointed from Erdoğan’s party ranks will no longer need a judge’s approval to issue search and seizure warrants that will be submitted to the court after the fact. Judicial review is also eliminated for the removal of the rank of dismissed officers in contrast to the past practice of waiting for a court ruling to impose such severe punishment on officers in the military.
The measures suggest Erdoğan’s mistrust of the military is continuing. The bill empowers commanders of army bases to execute preventive (meaning that no reasonable suspicion is required) search and seizure orders without a court order. The catch-all preventive measure is a rather disturbing provision that will cast a wide dragnet and target all the people in a particular location without specific or justifiable reasoning to violate the privacy of so many at once. During the state of emergency, the prosecution of some crimes was only possible if Erdoğan’s office gave it a head’s up, implying that Erdoğan would not take a chance and would not allow his cronies who committed crimes to be prosecuted.
As in many recent legal changes, Erdoğan’s favorite agency, the National Intelligence Organization (MIT), gets a fresh mandate and exemptions in this bill. Accordingly, the MIT is no longer subject to the freedom of information act that requires government agencies to respond to citizens’ petitions. The intel agency already enjoys blanket immunity and its operatives act with total impunity in many human rights violations including a systematic and deliberate campaign of enforced disappearances for government critics. The agency has been so emboldened that some abductions took in the Turkish capital in broad daylight, and illegal renditions were conducted in blatant violation of Turkey’s commitments under the UN treaties. The intelligence agency is now also exempt from the settlement and arbitration remedies that are available in the Turkish legal system.
Article 19 of the bill states that no compensation benefits will be paid to dismissed public employees in the event the OHAL Commission accepts their applications and decides that they were wrongfully dismissed. It also blocks their return to previous positions if they were working at the management level when they were fired. This also confirms the view that the purge has nothing to do with fighting terrorism but rather is a plot to transform the civil service and fill the vacant positions with Islamist and neo-nationalist cronies.
The measures for members of the military and police force are harsher than others. If the OHAL Commission finds that an officer in the army or police department was wrongly dismissed, he or she cannot get their position back within the army or police force and cannot enjoy any benefit bestowed by the title, position or rank. It is up to the government whether to grant that position. If the commission rules they were victimized by the purge, they will be shipped to research centers to be established within the Ministry of Interior or Defense, meaning they will be isolated and prevented from fulfilling any real task. This suggests the government does not trust the decisions of its own commission and that even if the victims were cleared by the OHAL Commission, they will be marked for life and won’t be trusted with anything important.
Moreover, the Erdoğan government is extending the purge for another three years by adding Article 23 to the bill, which states that the government can fire any person deemed to be a terrorist, or is associated with, in affiliation with or came into contact a contact with a terrorist group. Again, the dismissal would be made without any judicial review and without the accused having a chance to defend him or her self. It is clear Erdoğan will continue the purge in Turkey, fire civil servants in large numbers and replace them with partisans. Ideology rules over the merit system in government jobs. This is like the Sword of Damocles hanging over the rest of the government employees who are still lucky to have their jobs. Let’s say any judge who issued a decision not to the liking of the government, or any prosecutor who investigates a crime that extends to Erdoğan’s thugs, or any diplomat who hesitates to carry out the dirty bidding of the Turkish president on foreign soil will immediately be declared a terrorist and fired right away. The cancellation of passports for such people will be in effect, and their children and spouses will be impacted by the revocation of passports as well.
The government also brings complete impunity and immunity to any official involved in these purges in one capacity or another. Any claim of wrongdoing against these officials either on administrative boards or judicial bodies will not be processed unless Erdoğan or his subordinates allow such an investigation and prosecution to take place. This is carte blanche for continued human rights violations in Turkey and encouragement of unlawful profiling activities based on personal and political views, ethnicity or religious or social affiliation.
Judging from the wording in the draft bill’s articles, asset seizures will continue for another three years as well. The Savings Deposit Insurance Fund (TMSF), the government’s tool for taking over the wealth and assets of dissidents and critics, will continue to liquidate the assets it has already seized. By the way, a huge change is made to the law to expand asset seizures even further. According to Temporary Article 1 in the draft, the government will consider all transactions, transfer of shares or changes in board structures null and void from the date an investigation was opened against a company, entity or person. This means that Erdoğan can seize assets even if they were sold and transferred long before a court’s seizure decision. Considering that in some cases secret investigations can continue for three to five years before any court action is actually seen in the case file, this would create chaos in the Turkish economy and bring more uncertainty to the business world.
Erdoğan has no political willingness to move Turkey away from the dictatorship he has already created, and he and his cronies have been busy making amendments to create a permanent fascist state that is rooted in political Islam and neo-nationalist ideology.