With the justified rage felt against the loathsome coup, the masses said: “The death penalty should be reinstalled.” If there is a referendum held now, I am sure a vast majority would want the death penalty back and also oppose the granting of Turkish citizenship to Syrians.
However, one needs to consider why referenda are very limited in mature democracies. Particularly, is it correct to decide on extremely critical matters with a mass psychology at a certain conjuncture?
I am saying “extremely critical” because the capital punishment issue is beyond the execution of coup plotters and terrorists instead of aggravated life sentence; it is also a decision on whether to place Turkey in the Western world or the Middle East.
Let us start from the simplest. It is a universal rule of law and it is written in our constitution’s Article 38: Aggravated sentences are not retroactive.
By changing the constitution and by withdrawing our signature from international contracts, if the death sentence is re-introduced, this can only apply to acts that occur after this is put into effect.
Since there was no death penalty in our laws at the time of the coup attempt, only aggravated life sentence can be applied.
Can we say there are “extraordinary circumstances” and issue a retroactive law?
This was done with the “Installing Peace” law in 1925 by the one-party regime. It was also done by the May 27 junta in 1960.
Both of them are black spots in our legal history.
Parliament Speaker İsmail Kahraman is a law person. He and other law experts within the ruling Justice and Development Party (AK Party) should enlighten the people: Would the reinstalled death penalty be made retroactive and applied to the July 15 suspects?
How was it abolished?
Most importantly, there is no capital punishment in the EU and the wider Council of Europe member countries; it is legally impossible. As part of the European Convention on Human Rights and the Protocol 6, both of which have our signature, capital punishment is banned.
The first step on this direction in Turkey was taken on Aug. 3, 2002, with the initiative of then-Justice Minister Hikmet Sami Türk of the Bülent Ecevit government. It was totally abolished by signing the Protocol 6 during on Jan. 13, 2003.
Besides, according to the rewritten Article 90 in 2004, international law supersedes local law.
Depending on the majority in parliament, all of these can be changed. We can withdraw our signature from Protocol 6. But this would mean withdrawing from the European Convention on Human Rights, being excluded from the Council of Europe and rejecting the authority of the European Court of Human Rights.
In other words, Turkey would almost change its place on earth, heading toward a different direction from the Western law and human rights world.
I don’t see any possibility for Turkey to be dragged into such loneliness when it needs to increase its friends in critical matters, such as fighting terror and strengthening its democracy, rule of law and foreign policy.
In our history of adopting Western law, there are sultans’ signatures of Abdülmecid I, Abdülaziz and Abdul Hamid II and the signatures of Mustafa Kemal Atatürk, İsmet İnönü, Adnan Menderes and Turgut Özal. This is not a temporary ambition; it is an essential need.
I regard this “reinstalling capital punishment” discourse as an expression of the people’s rage against the coup attempt. In the long run, for Turkey to be strong and peaceful, all depends on the strength of its democracy in the Western sense and the strength of rule of law.