A bad omen for efforts to draft a new constitution

I’m no legal expert, but a layman’s practicality tells me that the constitution is the basic law of the land, and in any civilized country, requires respect. It is unthinkable, for example, that a U.S. or German president would come out, after a ruling by the high court he or she does not like, and say, “I do not respect this and will not abide by it.”

An individual may not respect a specific ruling, but if this individual is the highest representative of the state who has sworn to uphold the constitution, political propriety requires that he or she weighs any remark on the topic carefully.

Turkey clearly does not have an ideal constitution. The present one still carries traces of the 1980 military coup, after which it was drafted. The idea then was not to increase liberties and enhance democracy but the opposite.

Many positive amendments have been made since, including the individual right to petition the Constitutional Court, which, to its credit, was introduced by the ruling Justice and Development Party (AKP).

The reaction of President Recep Tayyip Erdoğan, and government officials who quickly fell in line with him after Can Dündar, the editor-in-chief of Cumhuriyet, and Erdem Gül, the paper’s Ankara bureau chief, were released from prison, shows that the AKP regrets having introduced this amendment.

Dündar and Gül were charged with espionage and imprisoned for reporting on an illegal arms cache sent by Turkey’s intelligence agency, MİT, to Syrian rebels in 2014. The basic story had already been reported on by the time Cumhuriyet picked it up again with some new material. 

An enraged Erdoğan threatened Dündar, saying “he will pay dearly” for this “espionage.” Appearing to take the cue, a court in Istanbul brought a case against Dündar and Gül, which earned the Turkish legal system added international notoriety and was widely condemned in the free world. 

Following a petition by Dündar and Gül, 12 members of the Constitutional Court ruled that their constitutional rights had been violated, saying the pair had merely done their job, and cited the relevant constitutional article guaranteeing freedom of the press.

One of the three members of the court who opposed the ruling was tellingly appointed by Erdoğan, while two were also tellingly selected by parliament, which means they were selected by the AKP. The other two members were absent on the day of the ruling.

Dündar and Gül were subsequently released after 92 days in prison, but the espionage case against them continues. Justice Minister Bekir Bozdağ, in a Kafkaesque manner, is now arguing that the 12 members of the Constitutional Court exceeded their authority and violated the constitution. 

He is also saying the court’s ruling puts pressure on the ongoing espionage case against Dündar and Gül in the lower court. His basic argument is that all domestic legal recourse had to be completed before the Constitutional Court could deem that a petition made to it is admissible.

Like I said at the beginning, I am no legal expert, but Bozdağ’s approach appears to be doubletalk. His approach is also being seconded by other AKP members, even though a party spokesman initially welcomed the high court’s ruling, and Prime Minister Ahmet Davutoğlu has said he would have preferred Dündar and Gül not to have been sent to prison.

Bozdağ appears to be saying: “We would have preferred Dündar and Gül to go through a long and arduous legal process which would have prolonged their incarceration.” He also appears to be saying: “The highest court of the land has made it difficult for us to secure the heavy penalty we want for Dündar and Gül.”

This clearly does not bode well for current efforts to draft a new constitution for Turkey which the AKP claims – unconvincingly so – will be democratic. Especially when the AKP’s real aim is to write a constitution that makes Erdoğan an all-powerful president.