Cablegate: Constitutional Court Chief Justice Discusses Role

This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 03 ANKARA 003187

SIPDIS

SENSITIVE

DEPARTMENT FOR EUR/SE, EUR/PPD AND DRL/PHD

E.O. 12958: N/A
TAGS: PGOV PHUM PREL TU
SUBJECT: CONSTITUTIONAL COURT CHIEF JUSTICE DISCUSSES ROLE
OF CONSTITUTION, RELIGION

1. Summary: In a May 8 meeting with Ambassador,
Constitutional Court Chief Justice Mustafa Bumin discussed
his views on: the ruling AK Party; the threat of Islamic
fundamentalism in Turkey; the role of the Constitution in a
State of law; and the recent law lowering the retirement age
for civil servants. Bumin is scheduled to visit the U.S. May
17-31 for a series of meetings in Washington, D.C. and San
Francisco. His comments provide insight into his views. End
Summary.

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Court Blocks Retirement Law
---------------------------

2. Bumin told Ambassador the Constitutional Court announced
May 8 it had stopped the implementation of the new law
lowering the retirement age for civil servants from 65 to 61.
He said the Court reached this decision because: 1) there
should be a transition period to allow workers to make
retirement plans, since for years they expected and planned
for retirement at 65, and 2) this law improperly transfers
powers from the legislative branch to the executive by
permitting the terms of selected civil servants -- such as
governors, ambassadors, and undersecretaries -- to be
extended by the Cabinet. These decisions would be
subjective. The personnel rights of civil servants in Turkey
are regulated by law. The Court decided to stop
implementation of the law because a decision to annul the law
would have taken 4-5 months to carry out, whereas a decision
to stop implementation takes effect as soon as it is
published in the Official Gazette. Bumin quipped that the
decision is a "gift" for Turkish Ambassador to the U.S.
Logoglu, who would have had to retire under the new law
(Note: Bumin's wife is a good friend of Mrs. Logoglu. End
Note). In general, he said, the Court blocks implementation
of laws when there is a high probability the law will be
annulled, and when it is clear that the consequences of
implementation would be difficult to address after the fact.

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Yes to Free Speech, No to "Fundamentalism"
------------------------------------------

3. Bumin defined himself as a "humanist" and said when he was
elected Court Chairman he told his colleagues they were all
free to express their views, but he would not tolerate
fighting. He has studied decisions of the U.S. Supreme Court
and the European Court of Human Rights (ECHR), and noticed
many similarities. One common thread is the belief that an
idea can be controversial, even shocking, but its expression
must be tolerated. Bumin said his ideas have changed
repeatedly over the course of his life, as is natural.

4. Ambassador noted that Ataturk had challenged many
conventional ideas, but after Ataturk's death many of his
followers determined such challenges unacceptable. Bumin
said Turkey enjoys "the best form of secularism." Two years
ago, the ECHR President came to visit him. At that time, the
ECHR was preparing to review an appeal of the GOT's 1998
decision to close the Islamist Refah Party. Bumin said he
explained to the ECHR President that while Europe had long
ago eliminated the influence of religion in politics, Turkey
could not. Unfortunately, he asserted, there are people in
Turkey actively seeking to exploit religious feeling for
political ends. In addition, Turkey's Islamic neighbors to
the south and east promote fundamentalism in Turkey. The GOT
shut down Refah because, Bumin opined, it had become a center
of anti-secular activities, including by promoting Sharia
law. He explained the danger of religious fundamentalism in
Turkey, and urged the ECHR not to be naive when it reviewed
the case. If the ECHR ruled against the closure, it would
bear the responsibility if Turkey drifted toward Islamic
fundamentalism. Later, Bumin and the other Court justices
visited the ECHR in Strasbourg and exchanged views. Their
efforts bore fruit when the ECHR ruled in 2001 to reject
Refah's appeal. If the ruling had gone the other way, the
consequences would have been very bad, Bumin claimed. In
general, Bumin said he does not like closing parties.
However, both the Constitution and the Political Parties law
require closure in certain cases. Under a recent
constitutional amendment, the Constitutional Court has the
authority to amend the Political Parties Law. The Court is
now reviewing the Law and will likely cancel many articles.

-----------------------------------------
Bumin: AK Lacks Experience, Understanding
-----------------------------------------
5. Bumin said ruling AK Party leaders do not understand yet
how the State works, but we must not lose hope in them. He
said he has told both PM Erdogan and Speaker of Parliament
Arinc that more than half the votes for AK in the November
elections were protest votes, rather than votes from loyal AK
supporters. As an Islam-oriented party, AK can play a
valuable role in power if it respects the principles of the
secular Republic. If it does not, however, the consequences
will be terrible. Unlike in some other countries, you don't
need a specific education to enter government in Turkey. In
France, for example, graduates of the National School of
Administration run the country. There is also a problem with
the concept of merit. The personnel law in Turkey requires
that certain government officials have certain
qualifications. Unfortunately, there are no such
requirements for being elected to the Turkish Parliament, he
added.

--------------------------------------------- -
The Role of the Constitution in a State of Law
--------------------------------------------- -

6. Ambassador asked about the prospects of the GOT drafting a
new Constitution, rather than making piecemeal amendments to
the existing one. Bumin noted that the current Constitution
was drafted in 1982, under the influence of the military,
which had staged a coup in 1980. Its authoritarian nature
was a reaction to the freedoms of the previous Constitution,
drafted in 1961. He said he gave a speech on April 25, the
41st anniversary of the Constitutional Court, in which he
stressed that the Constitution should not be amended for
special situations. In other words, if you cannot accomplish
something by changing a law, you should not try to achieve
that end by amending the Constitution. The Constitutional
Court can oversee constitutional amendments only from a
procedural point of view -- i.e. whether the amendment was
adopted according to procedures. The Court cannot review the
contents. Some people therefore might try to use the
constitutional amendment process instead of the normal
legislative process, where the Court can review the actual
content. In a state of law, you cannot change the
Constitution in order to evade Constitutional Court control.
Bumin said that when he made these comments during his
speech, he looked directly at Erdogan, Arinc, President
Sezer, and Justice Minister Cicek. He said AK could use its
majority in Parliament to change laws, but unless these laws
comply with international norms they cannot become legally
binding.

7. Ambassador asked Bumin for his reaction to recent comments
by Arinc that seemed to imply that natural law, or
parliamentary authority, might be above the Constitution.
Bumin noted that Arinc is a lawyer, and said he did not
believe Arinc intended his words to have that meaning.
Article 2 of the Constitution states that Turkey is a state
of law. There are certain things that cannot be changed.

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Comment
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8. Bumin sincerely believes himself to be an advocate of a
state of law, but his comments reveal how incomplete that
concept is in Turkey. We request that interlocutors for
Bumin's upcoming visit be informed about his views, but
equally try to draw him out on key issues in order to
stimulate his thinking.

PEARSON

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