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The ’more equals’
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Letters from readers have underlined the need to elaborate a little bit on the judicial immunity enjoyed by parliamentarians as well as the law on the procedures of trial of civil servants. Though Turkey neither has a socialist system of governance nor have I any intention of criticizing socialism, I have to underline that indeed very much like the situation described in the famous "Animal Farm" novel of George Orwell in this country "all animals are equal but some are definitely more equal than others."
In a country where a young hungry boy stealing a loaf of bread can land himself in prison, the "more equals" of the country practically get away with any crime, except in flagrante delicto, that is unless captured red-handed. Indeed, the only time we saw a parliamentarian detained by police was in the 1989 case of a murder of a deputy from Siirt (Abdürrezzak Ceylan) by yet another deputy from Siirt (İdris Arıkan).
The Article 83 of the current Turkish Constitution regulates parliamentary immunity. The first paragraph of the article stresses that "Members of the Turkish Grand National Assembly shall not be liable for their votes and statements concerning parliamentary functions, for the views they express before the Assembly, or unless the Assembly decides otherwise on the proposal of the Bureau for that sitting, for repeating or revealing these outside the Assembly." Furthermore, the second paragraph of the same article clearly underlines that a parliamentarian "who is alleged to have committed an offence before or after election," shall not be arrested, interrogated, detained or tried unless the Assembly decides otherwise.
Are there any exceptions? Yes, there is one. The article underlines that "this provision shall not apply in cases where a member is caught in the act of committing a crime punishable by a heavy penalty and in cases subject to Article 14 of the Constitution if an investigation has been initiated before the election. However, in such situations the competent authority shall notify the Turkish Grand National Assembly immediately and directly." The constitutional Article 14 referred to in the above paragraph, on the other hand, as is amended in October 2001, stresses that "None of the rights and freedoms embodied in the Constitution shall be exercised with the aim of violating the indivisible integrity of the state with its territory and nation, and endangering the existence of the democratic and secular order of the Turkish Republic based upon human rights."
Before elaborating further, let me clarify the constitutional stipulations regarding the judicial immunity or "non-accountability" granted to the president. Article 105 of the constitution clearly underlines that except impeachment by an absolute majority of Parliament on grounds of high treason demanded by at least one third of parliamentarians, the president cannot be held accountable for his decisions, actions or decrees he signed while in office. The non-accountability of the president, therefore is limited to his term in office and to his duties as president and definitely does not provide a wide judicial immunity like the one granted to parliamentarians.
Non-accountability of the president
One last point, besides the judicial immunity granted to deputies and the non-accountability of the president, under the law on procedures of trial of public servants, unless an immediate senior authorizes the trial of a public servant s/he cannot be brought to court. This principle provides a very strong shield of undeclared judicial immunity to civilian and military public servants and thus places them as well in the group of "more equal." In the latest Lighthouse charity fund scandal, for example, the Radio and Television Supreme Board chief could not be taken to court so far because of the refusal of the related minister to authorize his questioning. There are many such examples.
Particularly since 1997 there has been repeated efforts to eradicate judicial immunities, however, even tough back in 2002 Prime Minister Recep Tayyip Erdoğan committed himself to work for the "restriction" of immunities including those enjoyed by public servants, no concrete action has so far been taken on the issue. One reason might be the fact that, including ones against Erdoğan himself, there are various allegations and investigations against scores of parliamentarians and the premier and his men are scared of being "hunted" by the prosecutors should they put down their constitutional immunity shield. For transparent and good governance, however, Turkey is obliged to convert the "more equals" into plain equals.
The Article 83 of the current Turkish Constitution regulates parliamentary immunity. The first paragraph of the article stresses that "Members of the Turkish Grand National Assembly shall not be liable for their votes and statements concerning parliamentary functions, for the views they express before the Assembly, or unless the Assembly decides otherwise on the proposal of the Bureau for that sitting, for repeating or revealing these outside the Assembly." Furthermore, the second paragraph of the same article clearly underlines that a parliamentarian "who is alleged to have committed an offence before or after election," shall not be arrested, interrogated, detained or tried unless the Assembly decides otherwise.
Are there any exceptions? Yes, there is one. The article underlines that "this provision shall not apply in cases where a member is caught in the act of committing a crime punishable by a heavy penalty and in cases subject to Article 14 of the Constitution if an investigation has been initiated before the election. However, in such situations the competent authority shall notify the Turkish Grand National Assembly immediately and directly." The constitutional Article 14 referred to in the above paragraph, on the other hand, as is amended in October 2001, stresses that "None of the rights and freedoms embodied in the Constitution shall be exercised with the aim of violating the indivisible integrity of the state with its territory and nation, and endangering the existence of the democratic and secular order of the Turkish Republic based upon human rights."
Before elaborating further, let me clarify the constitutional stipulations regarding the judicial immunity or "non-accountability" granted to the president. Article 105 of the constitution clearly underlines that except impeachment by an absolute majority of Parliament on grounds of high treason demanded by at least one third of parliamentarians, the president cannot be held accountable for his decisions, actions or decrees he signed while in office. The non-accountability of the president, therefore is limited to his term in office and to his duties as president and definitely does not provide a wide judicial immunity like the one granted to parliamentarians.
Non-accountability of the president
One last point, besides the judicial immunity granted to deputies and the non-accountability of the president, under the law on procedures of trial of public servants, unless an immediate senior authorizes the trial of a public servant s/he cannot be brought to court. This principle provides a very strong shield of undeclared judicial immunity to civilian and military public servants and thus places them as well in the group of "more equal." In the latest Lighthouse charity fund scandal, for example, the Radio and Television Supreme Board chief could not be taken to court so far because of the refusal of the related minister to authorize his questioning. There are many such examples.
Particularly since 1997 there has been repeated efforts to eradicate judicial immunities, however, even tough back in 2002 Prime Minister Recep Tayyip Erdoğan committed himself to work for the "restriction" of immunities including those enjoyed by public servants, no concrete action has so far been taken on the issue. One reason might be the fact that, including ones against Erdoğan himself, there are various allegations and investigations against scores of parliamentarians and the premier and his men are scared of being "hunted" by the prosecutors should they put down their constitutional immunity shield. For transparent and good governance, however, Turkey is obliged to convert the "more equals" into plain equals.
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