Former minister: They're committing a crime by fabricating evidence

Former Justice Minister Hikmet Sami Türk, who is a law professor and former Cabinet minister, says that the government created a myth of a parallel state to cover up massive corruption allegations. In an interview with Sunday's Zaman, Türk also criticized the presidential system proposal that the Justice and Development Party (AK Party) wants to implement, stating that the model would weaken the separation of powers in the country since it aims to give the president the power to create and implement laws.

According to Türk, the popular vote to elect the president that Turkey will experience for the first time on Aug. 10 is more meaningful in a presidential system than a parliamentary system like Turkey's.

Will the election of the president by popular vote change the system?

First, I should note that the election of the president by popular vote is not something we are familiar with in a parliamentary system. This is an election method that is more meaningful in a presidential or semi-presidential system. Up until 2007, presidents were elected by Parliament. Nineteen elections were held and 11 presidents were chosen by Parliament. Now, the president will be elected for the 20th time. The reason for the change of method in the presidential election was the 367 requirement. In 2007, an argument was made to require that 367 members of Parliament be the precondition for a quorum. This was an inconsistent and ungrounded argument; it was never observed before in previous presidential elections. The goal was to ensure that Abdullah Gül would not be elected president. They concluded that if Parliament is unable to elect the president, then the people should. Prime Minister Recep Tayyip Erdoğan confirms this. If Parliament had elected the president, there would not have been such a change. This is the logic for the change in the election system. Now, the provisions of the Constitution should be analyzed as a whole. An amendment was made for election by popular vote, whereas the parts related to the duties and responsibilities of the president remain the same. So the rules and provisions the previous presidents observed have not changed. [If elected president] Erdoğan cannot exercise de facto powers the previous presidents did not. This would be unconstitutional. He is bound by the constitutional provisions.

But Erdoğan says he will exercise all powers spelled out in the Constitution.

He can. But there is a time and a place to exercise these powers. It is not possible to exercise all of them at the same time. At this point, what comes to mind in the discussion of presidential powers is being the head of the committee of ministers when he deems it necessary. Or calling for a Cabinet meeting under his chairmanship. But, if based on these powers, the president heads the Cabinet in all of its meetings, then we will have to ask the question what function the prime minister plays.

Why?

I served as a minister in three different governments. During this period, I recall that the president joined the Cabinet meeting just one time: Süleyman Demirel attended the meeting to say goodbye as president. He shared his political experiences. Nobody else joined Cabinet meetings. This constitutional provision has been in place since [Turkey's first president Mustafa Kemal] Atatürk, because there is a government that has that authority. The president has no responsibility other than in cases of treason. The decrees he undersigns are final. He undersigns legislation as head of the state. But the government is responsible for these actions. So it is not possible for the president to instruct the government to do whatever he wants. In their meetings, he may make recommendations to the government. They may exchange view on national issues, but other than this, he cannot give instructions that must be implemented by the government. In addition, the president may refer to some issues he deems important in the opening speech he delivers in Parliament every year, but Parliament holds the power to legislate. The president cannot tell Parliament to make a law. The president does not have the power to propose a bill. He can only send a bill that Parliament has adopted back to the plenary session for review. If he attempts to do so [propose legislation] this may lead to a regime crisis. Even in in a presidential or semi-presidential system, the president cannot exercise most powers all by himself. There are checks and balances.

Is it possible to create a presidential system especially for Turkey?

The AK Party's constitutional proposal was referred to Parliament, but it was not adopted. The president was granted very extensive powers in that proposal. For instance, he would have been empowered to make legal arrangements in the form of presidential decrees. However, in presidential systems, executive and legislative powers are strictly separated. The president has no power to propose a bill. In the AK Party's proposal, the president is empowered to make and implement the laws. So where is the separation of powers in that system? The most visible characteristic of a democratic regime is separation of powers, be it a presidential or a parliamentary system. In presidential systems, the separation of powers is more visible. It is less obvious in parliamentary regimes.

What sort of crisis might emerge if unconstitutional power is exercised?

First of all, a crisis would occur between the government and the parliament. What will he [the president] do in that case? He cannot instruct the government to propose a certain bill; he does not have the authority to do so. Decrees are negotiated by the cabinet, undersigned and then promulgated upon endorsement by the president. A decree is undersigned by the president; but this is the final signature. He cannot exercise powers not specified in the constitution. This would be unconstitutional. Look, there is this provision in our Constitution on the exercise of sovereignty: “The exercise of sovereignty cannot be left to any group or individual. No one shall exercise state power not defined in the Constitution.” This provision applies to the president as well. So, he is the head of state, but even he is not allowed to exercise powers not defined in the Constitution. If he does, it would be illegitimate. The opposition, courts and civil society organizations would oppose it. This would be unacceptable.

Will they have problems similar to those of former Prime Minister and President Turgut Özal and former Prime Minister Yıldırım Akbulut?

Well, in the end, Yıldırım Akbulut won the battle. The president does not have the authority. This is the official position of the president in our system. In monarchical systems, the king or queen holds the same position. The prime minister and ministers have responsibilities; therefore, they hold the executive power and roles. The president does not have executive powers; if he attempts to use that [power], Turkey will have serious problems.

It appears that Erdoğan will try to exercise excessive power.

They will not let him do this.

Nurettin Canikli, who filed the application for Erdoğan's candidacy, said he will be a different kind of president, one who will play an executive role.

How will he do this? With what power? What roles will the prime minister and ministers play? This will destroy the regime.

Who will win the upcoming presidential election?

The joint candidate of the opposition, Professor Ekmeleddin İhsanoğlu, is a well-respected man, but the Turkish people do not know him. He has no experience in domestic politics. Erdoğan, on the other hand, is experienced in domestic politics. He is known to the public. We have a very short time before the election. A month ago, the prime minister started his election campaign in Cologne. He did this by using state opportunities. He should not have done this. Things are difficult for İhsanoğlu.

Does Erdoğan have to resign as prime minister?

The presidential election law specifies who should resign, but there is no provision on this matter. But of course, it could be said that for ethical considerations and reasons, he should resign.

A new judicial reform package was adopted in Parliament. The criminal courts of peace were abolished and replaced by penal judges of peace. Why is the court of appeals being redesigned? How would you comment on these arrangements in the judiciary?

Recently, there has been a tendency to present weird innovations in the system as something good. There is an established system of criminal courts of peace and high criminal courts. Why change this? There have been attempts to make the judiciary submissive to the government. It is not reconcilable with judicial independence and the supremacy of law. This is not reasonable and this is not useful.

Erdoğan views the corruption operations as coup attempt. Do you call them a coup?

They have nothing to do with a coup. Look, the criminal code defines this crime. How does the criminal code approach a coup? Well, crimes against the constitutional order and the operation of this order… [He reads from the criminal code] Article 311 states: “(1) Any person who attempts to dissolve the Turkish Grand National Assembly [TBMM or Parliament] or partially or entirely inhibits the performance of the legislative organs by using force or threat, is to be punished with heavy life imprisonment.” This is a crime against Parliament. The next article focuses on crime against the government: “Any person who attempts to dissolve the government of the Turkish Republic, or partially or entirely inhibits its performance by using force or threat, is to be punished with heavy life imprisonment.” So, what happened on Dec. 17, 2013? Some bribery and corruption allegations involving the names of four ministers and their children were raised on Dec. 17. The office of the prosecutor in Istanbul initiated an investigation of this. The confidentiality of the investigation was violated and the content was revealed to the public. But what really matters in this case is that the prosecutor did his job to address these bribery and corruption allegations. The government labels this a coup. The prime minister even presented this operation as a coup against himself. We just read how a coup is defined. The Dec. 17 and Dec. 25 operations are not about a coup; they are all about the investigation of corruption and bribery charges. The government should have allowed the judiciary to address these allegations without any obstruction. A government and a prime minister who are confident would have acted this way. Instead, the prosecutors in the case were reshuffled. This is interference with the judiciary. A government that was not fearful about its own acts would have trusted the judiciary. The Constitutional Court is authorized to prosecute ministers and the prime minister. What the judiciary did in this case was to reveal the corruption and initiate an investigation of it. This has nothing to do with a coup. But it appears that the prime minister is suspicious and views the judicial process as a coup because if bribery is substantiated, the prime minister will have to face the consequences, which include prosecution by the Constitutional Court.

Is it possible to cover up the corruption by reappointing the judges and prosecutors?

This is what they are trying to accomplish. Every judge and prosecutor handling that case has been reappointed. They are intimidated. There is no greater pressure than this. This is a clear intervention in the judiciary's power. Parliamentary Speaker Cemil Çiçek made a statement on Article 138 which reads: “No organ, authority, office or individual may give orders or instructions to courts or judges related to the exercise of judicial power, send them circulars, or make recommendations or suggestions.” He said, “This provision of the Constitution is no longer applicable.” That is pretty significant. The prime minister's remarks are instructions to the judiciary. He simply tells them not to do anything about this matter or abrogates the legal process. But I suppose that nobody is strong or powerful enough to make this whole thing disappear. I hope the ministers and the prime minister implicated in the bribery charges referred to in those files are acquitted. In the end, they are the ministers and the prime minister of the Republic of Turkey. Nobody would want to see them jailed; but if they truly committed those crimes, they should be prosecuted.

After the Dec. 17 corruption investigation, an allegation of the Hizmet movement being a parallel state was made. This argument has been repeated often during the last seven months. The prime minister says that this parallel state has been active within the state over the last four decades and is responsible for the corruption investigation. You served as a minister for more than five years in the government of former Prime Minister Mustafa Bülent Ecevit. Did you notice the existence of this so-called parallel state?

I have never seen such a parallel state. He should have referred to an opposite state rather than parallel state. “Parallel” refers to lines that do not cross. I did not see this, but if public servants do not perform their jobs and commit a crime, they are to be punished according to the Turkish Criminal Code [TCK]. The prime minister makes this allegation, but what is this parallel structure? What did it do to play this role? AK Party Deputy Chairman Mehmet Ali Şahin argued that there was an imam from this so-called parallel state within the Supreme Court of Appeals. The court made a statement noting that this argument had been considered but nothing raised in the argument has been identified. The prime minister has made some other allegations, as well. He argued that the Gezi protesters consumed alcohol inside the Dolmabahçe Mosque and that they attacked a woman. The prime minister was unable to prove these allegations, and despite his allegations even being proved wrong, he still makes the same arguments for political reasons. In this case, the allegation about a so-called parallel state is also unproven. Besides, up until recently, the prime minister had good relations with what he refers to as the parallel state. He started making these allegations after the Dec. 17 investigation. When the Dec. 17 operations started, he made these allegations. When the corruption charges were addressed, he called the investigators members of this parallel state. And he still makes the same allegations. I believe that what should be done is to prove that illegal transactions were conducted and to take them to the realm of the judiciary.

The same allegations were made before. The Ecevit government was also told that the Hizmet movement was a parallel state.

Prime Minister Ecevit was not in the judiciary, so he was in no position to judge this matter. And I do not recall any legal action resulting from the allegations made back then.

Why did Ecevit not take these allegations seriously?

Back then, it was Nuh Mete Yüksel, the prosecutor at the Ankara State Security Court [DGM], who made these allegations. He was an inconsistent and unstable man. He said there was a Gülen [Fethullah Gülen, a scholar who inspired the Hizmet movement] organization; but if you are referring to an armed or even an unarmed organized criminal group, one must have more than two people. It is not possible to create a one-man organization. None of the current allegations about the so-called parallel state have been proven. Who held meetings? What sort of organization did they create? How might they stage a coup? What offenses or crimes did they commit? Will they stage a coup? Did they make their preparations in military facilities? Were their arms ready for a planned coup that was prevented by the government? Nothing. The government assumes that there was a conspiracy against it.

Why do they insist that there is a parallel state responsible for all this?

Of course, their goal is to cover up the corruption allegations. They want to keep these allegations fresh so as to tell people, “There is no corruption or bribery; these are allegations made up to stage a coup against the prime minister and to undermine his image; the parallel state made up these allegations.” But it is the judiciary that should make the final decision.

There are striking charges in the motion submitted by former Interior Minister İdris Naim Şahin to Parliament. He says that there are efforts to present the Hizmet movement as a criminal organization. How do you evaluate the anti-Gülen plan?

They fabricate false evidence and documents to implicate people. The requests made in that document go beyond the duty and mission of a prosecutor. A prosecutor takes action to initiate an investigation when he is confident that a crime has been committed. The questions he raised in the document go well beyond that. Like a commission of inquiry set up by Parliament, he reviews the case in detail. Determining the people who made donations has no relevance to an investigation. This is outside the scope of an investigation. This is unacceptable. It is unacceptable to declare everyone a criminal. What will you do with the students who attend their schools? Will all of them be profiled? And where will this profiling information be used? The prosecutor will initiate a legal case if there is strong evidence to do so; what is the other information for?

Is that not a crime?

Of course it is. It is a crime under the criminal code. It is a crime against justice [He reads from a criminal code booklet]: “Creating an offense: Any person who notifies the authorized bodies of an offense that was not committed as if it was committed, or produces evidence or signs of an uncommitted offense just to provide for the commencement of an investigation, is to be punished with imprisonment of up to three years.” It is really surprising to me. Justice is the foundation of a state. Justice is served if only the truth is identified properly. What do they expect from this? This is part of a dirty struggle. This should not be done. This should not be done under the Constitution. This should not be done in a state where the supremacy of the law reigns. But unfortunately, it is being done because of a political struggle and cause.

Is there a democratic retreat?

We are not moving forward; we are going backward in terms of democratization. A more repressive regime is being created. There is huge pressure on press freedom and the freedom of assembly. There is huge oppression. Democratic rights and freedoms are under serious threat.

Who is Hikmet Sami Türk?

He is a law professor, former deputy and minister. He graduated from İstanbul Kabataş High School in 1954 and from the law school at İstanbul University in 1958. He received a doctoral degree in law from the University of Cologne in 1964 and became a full professor in 1988. Türk was elected to serve as a deputy from Trabzon in 1995 and 1999 and served as state minister for human rights in the coalition government formed on June 30, 1997, defense minister in the coalition government formed on Jan. 11, 1999 and justice minister in the coalition government formed on May 28, 1999. He currently serves as deputy chairman of the Democratic Left Party (DSP).

Published on Sunday's Zaman, 20 July 2014, Sunday