CONSOLIDATION OF OR RESISTANCE TO DEMOCRACY:

REDEMOCRATIZATION AND THE

TURKISH GRAND NATIONAL ASSEMBLY

Ömer Faruk Gençkaya

Bilkent University, Turkey

Recent regime changes in Southern Europe, Latin America, and Central Europe

have focused the interest of many scholars on the role of political actors and

institutions in this process. Although the importance of a charismatic leader, the

military, or party leadership is accepted widely,the significance of parliament in the

redemocratization processes is perceived differently from one study to another

(Liebert, 1990: 14). For instance, some admit the crucial centrality of the parliament in

building legitimacy for the new regime; others consider its contribution as only one

possible way to democratic consolidation (Ibid.); and another view almost neglects the

role of the parliament in the re-establishment of the democratic consent (Di Palma,

1990). Obviously the centrality of the parliament during democratic transition, and in

particular in the redemocratization phase, needs to be examined empirically.

However a further move from transition to consolidation necessarily assumes a

critical role of parliamentary elites, parliamentary rules, and procedures (Liebert, 1990:

14-15). The introduction of elections, social movements, and mobilisation can be

especially well achieved by the parliamentary game (Liebert, 1990: 15, and O'Donnell,

et al., 1986). Through the mobilisation of the masses, the parliament may contribute to

the consolidation of the new regime in different ways: the integration of the political

and social forces of the country, including anti-system opposition; the stabilisation of

peaceful conflict regulation among the main political actors; and legitimation (Liebert,

1990: 15-17). Especially, legislatures in newly emerged or re-established democracies,

even when they have little influence on the making of public policy, may perform the

useful and significant function of displacement (Opello, 1986: 292). A legislature is a

multimember institution whose members are locally elected and link the periphery

with the centre, facilitating integration at both the mass, elite, and mass-elite levels

2

(Mezey, 1983: 526). Furthermore, a viable legislature may make a democracy more

stable and durable "by focusing public attention on politics, by importing to the

citizenry a sense of meaningful participation in and influence on public policy, and by

promoting general attitudes of support for the system" (Opello, 1986: 293; see also

Loewenberg, 1971 and 1973). In the absence or weakness of other organised groups

and institutions such as political parties, these functions of integration, conflict

resolution, and legitimation can only be performed by the parliament. Its success in

performing these functions, in return, also influences the emergence and development

of other institutions (Liebert, 1990: 18-19).

Indeed there are some institutional and political variables which greatly shape

the performance of parliament in democratic consolidation, such as predominance of

parliament in decision-making, the nature of parliamentary majority and party groups,

relations between groups and parties, and the electoral system (Ibid.: 20-22). Survival

of a parliament mostly depends on the major political actors and social groups being

integrated in the parliamentary institution and able to regulate conflict among them. In

this regard, parliamentary compromise may have two forms: majoritarian or

consociational (Ibid.: 17-18). In the first model, parliament is a "sounding board" for

interest articulation of those forces which are excluded from government and an arena

for the discussion of the major issues of the society. There is a strong and stable centre

or centre-right government to which parliament is either co-operative, subordinate, or

submissive. In the second model, all major political and social forces are represented in

parliament with a high level of legislative mediation and decision-making, but the

result is weak government. Both models have advantages and disadvantages for

political actors in terms of polarisation, parliamentary efficiency, and irresponsibility.

Whereas consensual decision-making may lead to the threat of polarisation between

political parties, symbolic opposition in the majoritarian model does not incure the cost

of governmental responsibilitiy (Ibid). On the basis of their decisional and integrative

role, legislatures can be classified as co-ordinate, subordinate, submissive,

indeterminate, and competitive-dominant (Weinbaum, 1975). Similarly, legislatures

may also be categorised as active, vulnerable, reactive, marginal, and minimal

according to their decisional autonomy and popular support (Mezey, 1979). In both of

the above-mentioned studies, it is noted that in newly emerging/democratising

3

countries, legislatures often have weak/moderate decisional/integrative capacity, and

their public support may differ from system to system.

Since the end of the Ottoman era, Turkish politics has faced varied

parliamentary experiences. Following the establishment of the Turkish Republic in

1923, this experience combined with attempts at democratisation. During single party

rule between 1923-1946, the Grand National Assembly of Turkey (hereafter the GNA)

made some efforts toward institutionalisation. But this trend was discouraged by the

Democrat Party elites, especially in the 1950s. In the following years, three military

interventions further disrupted the institutionalisation of the GNA. In short, the

processes of democratisation and legislative institutionalisation in Turkey show "a

cyclical pattern of convocation, transition, suspension and reorganisation"

(Kalaycýoðlu, 1990: 184). Since the third military intervention of September 12, 1980.

Turkey has had three general elections to the Grand National Assembly somewhat

enhancing the institutionalisation of the legislative system. However, the post-1983

GNA can be defined as having at best a nascent institutionalisation and a submissive

nature, simply because of a lack of seniority and professionalization, an overwhelming

control by party leaders and party executive committees, a lack of legislative control of

the executive, and an absence of formal rules determining the legislature's relation with

the executive (Kalaycýoðlu, 1990: 215; see also Hazama, 1992 and Keles-Hazama,

1993). Moreover, the constitutional and legal rules of the game in Turkey, including

the electoral law, favor a majoritarian model with special emphasis on political

stability. Although a centre-right-Social Democrat coalition government has been

running Turkey since December 1991, the overall policies generally imply centrist

tendencies and stability. A "concealed coalition" in the GNA between the so called

"nationalist" deputies of the DYP, the ANAP, the MCP and other right wing parties,

but excluding the RP, is another source of stability in Turkish politics (EP, 7-14 March

1993). Finally, the Turkish parliament is perceived by the Turkish people as one of the

nation's least trustworthy institution-- an indication of the extensive distrust of civilian

politicians by the people (see Table 1 at the end of this paper). This also shows that the

development of a pluralist political culture has had serious difficulties in terms of

Turkish political culture (TUSIAD, 1991: 23).

In this study, the main hypothesis is that a legislature with a majoritarian

orientation and a lack of institutionalisationi would be expected to play a less effective

4

decisional role in the democratisation process. First, I assume that a majoritarian

orientation excludes the consideration of "minor" but significant views when a

legislature is building a consensus. Second, a lack of institutionalisation especially

lessens the decisional autonomy and independence of a legislature as a superior law-

making body vis-a-vis other governmental branches. This study will test the above-

mentioned assumptions for the 19th GNA, with special reference to the amendment of

the Criminal Court Procedure Law (hereafter the CCPL), which is a good case study in

this context. First of all, this case fully illustrates the main procedural stages of law-

making in the Turkish legislative system, including committee work, general assembly

passage, presidential approval, and reconsideration by the GNA. Second, the

amendment of the CCPL is an important part of the "judicial reform," part of the

"democratisation package" of the DYP-SHP coalition government. Before analysing

this case, I will summarise recent key developments in the Turkish parliamentry

system.

REDEMOCRATISATION: RATIONALISATION OF

PARLIAMENTARISM OR SEMI-PRESIDENTIALISM?ii

The September 12, 1980 Coup and Its Aftermath

Following a joint letter to the major political parties' leaders, the President of

the Republic, and the Speaker of the GNA in 1980, the Turkish Armed Forces, under

the leadership of the Chief of the General-Staff Kenan Evren, overthrew the civilian

regime on September 12, 1980, on the basis of the Article 11 of the Internal Service

Law (also cited as justification for previous military interventions in 1971 and 1960).iii

As in the case of all three such military interventions--in 1960, 1971, and 1980--the

militaryiv

promised to modify and re-establish democracy and then return to the

barracks. However, since the 1971 coup, the role of the military in the daily politics

has been enhanced many ways, including increasing the number of military members

of the National Security Council (hereafter the NSC).

After abolishing the GNA in 1980, the most immediate and primary task of the

military "power", the NSC, was the restoration of order and the restructuring of the

political system within a new constitutional framework. To set up a new legal and

5

political framework which "would ensure the stability of the regime" (Tanor, 1983:

75), a new Consultative Assembly was appointed by the NSC on July 1, 1981 and

began work on October 23, 1981. A new draft Constitution was also prepared by the

Constitution Committee and debated by the Consultative Assembly;v after revision by

the NSC, it was submitted to a national referendum on November 9, 1982. As a result

of country-wide intensive supportive speeches by President Evren, it was accepted by

an unprecedented majority of 91 percent of the valid votes.vi

General Evren, the

Chairman of the NSC and the Head of State, was designated as President of the

Republic as a result of the constitutional referendum, and the members of the NSC

became the members of the Presidential Council, which had been dissolved in late

1989 because of the creation of the GNA in December 1983, as an "upper legislative

body" to supervise legislation and administration (Tanor, 1983: 84). The members of

the Presidential Council enjoy the rights and parliamentary immunity provided for

parliamentarians by the Constitution. Compared to recent history, however, this

military power has entrenched itself in power for too long a period to be acceptable

after restoring parliamentary democracy (Tuncay, 1984: 429).

Executive-Legislative Relations Under the 1982 Constitution

In the 1982 Constitution (hereafter the 1982C), the executive is organised as a power

equipped with the necessary authority to fulfill the duties given bythe laws. The

articles which empower the executive can be grouped under five titles: those related to

the emowerment of the executive, those empowering the President of the Republic,

those expanding regulative authority, those empowering the executive within itself,

and those empowering the executive by limiting judicial review (Karatepe, 1988: 35).

The empowerment of the executive is also attempted by rationalisation of the

legislative process. In the 1982C, some provisions aimed at speeding up the

parliamentary process, thus making it more efficient. Among these I can count the

following: the law-making process is simplified; a unicameral parliament is

established; the legislative period is expanded in order to let the executive accomplish

its main tasks; each party group's authority over its deputies is enhanced in order to

prevent the negative impact of delaying tactics of the opposition; and the quorum for

decisions is reduced to one third of the total number of the deputies. These provisions

6

are aimed at the efficient working of the legislature but also indirectly empowered

majority governments (Soysal, 1984: 16; Karatepe, 1988: 36).

The 1982C also expanded the scope of legislation by the executive, among the

most important being the legal status of executive decrees. The executive was given

the right to enact, in an emergency situation, sui generis decrees having the force of

law. This was a major change in terms of legislative authority compared to the

previous 1961 Constitution (Karatepe, 1988: 36-37;Duran, 1988; Tezic;

1988;Özbudun, 1989; 150-151, 199; and Saðlam, 1984).

From one point of view, it is clear that the 1982C empowers the executive,

especially the President's status, vis-a-vis the legislative. Further, it is obvious that the

President and Prime Minister, along with the Council of Ministers, will exercise some

functions, but precisely what functions these is unclear. Some argue that this two-

tiered status of the executive aims to enhance state authority rather than the executive

alone (Özbudun, 1989: 199; Karatepe, 1988: 38-39). Within this framework, some

subordinate state institutions, such as the State Supervisory Council and the Institute of

Higher Education, were reorganised under a hierarchical structure. The NSC was given

more a distinguished and effective status in the governmental structure.

According to the 1982C, "Sovereignty is vested in the nation without

reservation or condition" (Article 7). Although the executive was defined as a "duty" in

the 1961 Constitution, the 1982C empowers the executive as both a "duty" and

"power". It is not a reasonable argument that governments having less political

authority have come to power in the 1970s since the 1961 Constitution had also

accepted the executive as a "duty". It is also not reasonable to reformulate the position

of the executive on the basis of the new Constitution. However this new status of the

executive leads to some legal consequences (see Özbudun, 1989: 155-156). Except for

two key provisions, the formulation of the separation of powers stated in the 1982C is

almost the same as in the 1924 and 1961 Constitutions. These exceptions are powers

granted for presidential actions "issuing decrees having force of law on matters made

imperative by the state of emergency" (1982C Article 121) "by the state of martial

law" (1982C Article 122), and "the regulation of the establishment, the principles of

organisation and functioning, and the appointment of personnel of the General

Secretariat of the Presidency of the Republic by Presidential "decrees" (1982C Article

107).

7

One of the most striking questions about the 1982C with respect to executive

legislative relations concerns the present status of the President of the Republic.

Essentially, the new Turkish Constitution follows parliamentary tradition and declares

the impartiality of the President. However, under the 1982C, the President is allowed

to be more active and powerful with greater "political and appointive functions" than

was the case in the 1961 Constitution (Özbudun, 1988: 37). Impartiality is guaranteed-

-at least in form--by the electoral system for the President (1982C Article 102). This

rule also includes provisions for resolving a parliamentary deadlock caused by a

parliamentary inability to elect a President.

On the other hand, with respect to executive matters, the President is not

authorised, as a rule, to act alone. "All presidential decrees must be countersigned by

the Prime Minister and the ministers concerned, who will bear political responsibility

for such decrees" (1982C, Article 105). What is crucial in the two successive

Constitutions' language on the President's status is the substantially extended scope of

presidential powers concerning legislative, executive, and judicial functions (1982C

Article 104). While he must exercise many of them together with the Prime Minister

and the ministers concerned, in the case of a limited number of his functions (though

not of limited importance) he may act individually without any responsibility and

judicial review, including that of the Constitutional Court (for details see Özbudun,

1988: 38-40 and Parla, 1986: 80-85).

As was stated earlier, one of the main arguments against the 1961 Constitution

was that it created a weak executive surrounded by autonomous state organs which

exercise sovereignty together with the three branches of the government. A similar

view was shared by the head of the military regime who defended the 1982

constitution, saying that "the sole purpose of the powers invested in the president and

the council of ministers under the new Constitution is to enable the executive branch of

the government, which was rendered powerless by the 1961 Constitution, to function

efficiently and purposefully" (Evren, 1982). It has been argued elsewhere, however,

that the Constitution was not the sole reason for the weakness of the executive, which

was due to various additional factors. One of the conflicts between the military and

civilian officers concerned the means and principles of executing states of emergency

and martial law.

8

Surprisingly enough, this confrontation resulted in a little change in the 1982C.

The composition of the NSC prescribed in the 1982C implies one further step towards

more autonomous/effective military power in state organisation. To ensure that

civilians will never obtain an majority, even the President of the Republic is a civilian

(see Tanor, 1986: 121-122). To enable the executive "to function efficiently and

purposefully," the 1982C relies heavily on the powers of the President of the Republic,

which earlier was a symbolic office, and the Council of Ministers, which together form

the executive power. The former is empowered with greater authority than the latter.

Among various important powers, the President may call for new elections under

particular conditions (1982C, Articles 99 and 111). Moreover, the President cannot be

held accountable for his actions connected with his duties. Thus the presidential office

is given real power rather than symbolic (Turhan, 1983: 146-147). In short, according

to the present Turkish constitutional system, the President can neither act completely

independently from the government (the Council of Ministers) nor can he impose a

program upon the government or lead its main policies (Erdoðan, 1990: 62). But, in

recent instances, President Özal was the founder of the governing party (ANAP), and

he openly directed the nation's economic and social policies. This development, on the

one hand, focuses attention on the debates concerning the establishment of a

presidential system, and, on the other hand, causes the parliamentary system to lose

legitimacy. Probably the current regime is parliamentary, but which functions belong

to which branch is unclear (see Turan, 1989).

According to the 1982C, the GNA mainly exercises legislative power and may

have an influence upon the activities of the Council of Ministers through its oversight

power, such as parliamentary questions, inquiries, investigations, and interpellations

(Article 98; see also Özbudun, 1989: 276-282). However, under the 1982C, it became

more difficult to dismiss a government by interpellation. On the one hand,

governments are based on a working majority in parliament as a result of the electoral

system. On the other, the motion of interpellation must be made either in the name of

a political party consisting of at least 20 members or upon the signatures of at least

twenty members (earlier, ten members had been sufficient enough). Although

parliament elects the president, it cannot supervise him because of the lack of

accountability of the president's actions. Meanwhile, the president exercises some legal

duties and signs important documents without any legal responsibility. Thus, both a

9

Council of Ministers ("political power") responsible to the GNA, and an irresponsible

President ("state power") with expanded powers, were created by the 1982C (Duran,

1988: 51; see also Heper, 1990: passim).

This complex structure of the executive in the Third Turkish Republic causes

an important dilemma for the institutionalisation of the political regime lying in the

relationship between the President of the Republic and the Prime Minister on the one

hand and the Council of Ministers on the other (Erdoðan, 1989). Both the conflictual

and harmonious relationship between two sides of the executive undermine the

legislative power and its importance in the system. Probably parliaments in Turkey

have "never had power that they could later lose" (Heper, 1990: 316), but they have

played some critical role in the governmental processes in the 1970s, such as in the

presidential elections of 1973 and 1980. The first one was a good example of

compromise between political groups, while the second became the raison d'etre for

subsequent military intervention.

The experiences of the last decade prove that strengthening the executive can

lead to "personal power" rather than a "strong executive," and eventually to "arbitrary

rule" (Duran, 1988: 68-69). This tendency has been extended and intensified as the

former Prime Minister Özal obtained presidential power. He began to act not as head

of state, but also as the natural leader of the dominant political apparatus.vii

THE POLICY-MAKING ROLE OF THE GNA IN THE

CONSOLIDATION OF DEMOCRACY IN TURKEY

After a long ruling period, the ANAP suffered a clear loss in the general

elections of 20 October 1991 (see Table 2). The ANAP votes feel to 24 percent, while

the alternative centre-right part, the DYP, increased its votes to 27. Moreover, this

election also indicated that the parliamentary party system was becoming more and

more fragmented, contrary to what had been anticipated by the 1982C-maker, the

ANAP government, and by some scholars (Ergüder, 1988: 130-132; Ergüder and

Hofferbert, 1987: 19; and Turan, 1988). Further, minor political parties, either alone

like the DSP or in a coalition like the RP-MCP-IDP Alliance, became able to benefit

under the electoral law by surpassing the 10 percent national threshold. This period

was also marked, for the first time in recent history, by a multi-party government.

10

After Süleyman Demirel's appointment as Prime Minister, the DYP and the SHP

formed a coalition government, the first that Turkey had been since the 1970s--a

decade of political instability which began and ended with the military interventions of

1971 and 1980. In both cases, the civilian Prime Minister who was unseated by the

generals was Süleyman Demirel (Heper, 1992: 106).

In the Coalition Protocol signed between the DYP and the SHP on November

19, 1991, it was stated that the coalition government will be guided by certain political

views and aims. Among them, the following are the most important:

* There will be a free, co-operative, and fully democratic regime.

* Turkey needs a contemporary constitution that will reflect the principle of the

supremacy of law and will create a fully democratic and pluralistic system.

* Such a constitution should be prepared with the consent of the related institutions,

starting with the political parties.

* Basic human rights principles enshrined in the Paris Charter and preceding related

documents are vital to the state, society, and Turkish democracy.

* Human rights practices in Turkey must be brought up to the standards of the

country's international commitments, the nation's political system, and the

country's wish to integrate with the Western world.

* The Government...will swiftly abolish those legal constraints and practices

stemming from the "September 12, 1980" law.

In Annex I of the Coalition Protocol, these central "Democratisation Proposals"

were explained in detail. After reviewing the fundamental principles of the Proposals,

specific laws were also listed, including proposed laws on political parties and

elections, the ratification of ILO agreements, the penal code and the CCPL, and the

Turkish radio and television. Similar commitments were also emphasized in the

Coalition Government's Program of November 25, 1991:

Turkey will review its legal system to integrate with the world, update

it, and make it comprehensive as part of the new world order, as a

result of new global developments, and in line with the requirements

11

of the CSCE process and the Paris Charter of November 20, 1990, to

which Turkey is signatory.

Judicial reform was early supported by the coalition government as the main

framework of Turkey's redemocratisation process. The key reason for the changes in

the original CCPL statement was the allegations of widespread torture and serious

restrictions on the right of defense in Turkey. In the international context, the Western

countries considered these changes as a test for democratisation in Turkey. These

amendments sought to eliminate torture, which is, indeed, banned by the 1982C, and to

make credible and valid testimony obtained in preparatory stages of the investigations.

The government draft amending some articles of the CCPL and the State

Security Courts (hereafter, SSCs), and abolishing some articles of the Police Law and

Anti-Terror Law, was submitted to the Speaker of the GNa on April 20, 1992. The

draft law was additional to a separate bill dealing with the CCPL which had been

submitted by an ANAP Deputy earlier, and referred by the Speaker to the Justice

Committee. After consultation with the Ministry of Justice, the Bar Associations, and

the Law Faculty of Ankara University, the Justice Committee approved the draft law

with some minor corrections and submitted its report to the Speaker on May 11, 1992.

The General Assembly of the GNA began to debate the draft law on May 21,

1992, during the 79th meeting of the GNA. Deputies from the various parliamentary

party groups stated their views, which mainly concentrated on the "democratisation,"

"demilitarisation," and "international" dimension of the issue. Only one deputy, Ali

Oðuz, RP Deputy, disagreed with the idea that international factors influenced the

submission of the draft law to the GNA and that acceptance of the draft law would be

very important for Turkey's full integration with the West. Following these general

remarks made by the Deputies, the draft law was enacted by the General Assembly

without any serious opposition or amendment.

The draft law, as adopted by the GNA, was sent on for presidential approval on

May 25, 1992. Hüsamettin Cindoruk, the Speaker of the GNA, who was also acting

President at that time, did not sign the law, but chose to leave it to incoming President

Turgut Özal. As had been expected, Özal vetoed it on June 8, 1992 and sent it back to

the GNA for a second debate (under Article 89 of the 1982C). Although he made clear

that he did not object to every article, the points on which he did disagreed were

12

important. First of all, he pointed out that under the 1982C fundamental rights and

freedoms may be limited in cases of curfew, states of emergency, and martial law and

wars. When ordinary crimes are considered under the same conditions as crimes of

terror, certain inconveniences will arise. The presidential veto was clearly not based

upon a concern with ordinary criminals, but rather upon concerns about organised

political violence and state security. Essentially he argued that a reduction in the period

of detention could hinder investigations into such crimes. Moreover, referring to a top

level officers' meeting (of the NSC) held in Ankara on May 22, 1992, the day after the

draft law was enacted by the GNA, Özal emphasized that many of the higher military

officers shared these criticisms of the law. However, both Prime Minister Süleyman

Demirel and Minister of Interior Ismet Sezgin denied that any such concerns were

expressed at that NSC meeting--or even that the subject of the draft law was on the

agenda (Briefing, June 22, 1992: 8). Interestingly enough, President Özal was in the

USA when the meeting was held. It was obvious that the anti-terror lobby within the

state structure, organisations such as the Armed Forces, the Interior Ministry, the

police, judges and pqrosecutors of the SSCs and other courts, and the National

Intelligence Agency, supported the veto.

Meanwhile the draft law became a problem between the coalition parties.

While the DYP deputies were taking the reaction of the NSC and the security

authorities into consideration, the SHP deputies objected to the calls for change. After

long negotiations between the representatives of the coalition parties, the Justice

Committee--with 4 members absent--decided that the changes provided in the new

draft law would be applied in regions under a state of emergency and for crimes under

the scope of the SSC. However, many of the DYP deputies were still dissatisfied with

this change.

The General Assembly of the GNA convened an extra-ordinary meeting on

August 26, 1992. The second plenary session on the draft law underwent intense

debate in the morning meeting. For instance, Oltan Sungurlu, ANAP deputy, openly

opposed the draft. He accused the government of utilizing the issue for political and

ideological ends. He also stressed that such a very crucial issue should not have been

decided quickly, for otherwise deficiencies and inconveniences would be possible--as

had been the case of the earliest draft law. H. Orhan Ergüder, an ANAP deputy,

stressed that the GNA is the central authority in the decision-making process, not the

13

government or the prime minister or the president. He also stressed that anti-terror

policies should be made through the participation of all political parties. On the other

hand, Mahmut Alınak, a HEP deputy, in criticising the changes in the draft law,

identified two crucial questions:

Which meeting is that President Özal referred to? Who did disagree

on some of the articles of the CCPL? Is there any such "power?" Are

those power-holders' will above the will of the GNA? The draft law

offer a two year delay for the implementation of some articles. We

sometimes refer to the "Constitution," "loyalty to the Constitution,"

and "democray." According to the Constitution, everybody is equal

before the law...but in practice, there is no equality.... Prohibitions and

repressions, non-contemporary practices, are the greatest premium for

violence...because, this notion (equality) is not established well in our

country, in our parliament, in our democratic institutions and in our

public opinion (Minutes of the GNA, 26 August 1992: 238).

He continued that the above mentioned concerns had never been answered by

the DYP-SHP coalition, which could easily be identified as a general-staff

government. This statement, especially, led to angry confrontations in the General

Assembly.

In the afternoon session of the General Assembly, some deputies raised the

question to the Speaker of alleged procedural mismanagement. ANAP and the DYP

deputies asked the Speaker to make Mahmut Alinak correct his statement identifying

the government as a general-staff government. Mahmut Alinak, however, reaffirmed

his statement and added that President Özal's veto was a reflection of a decision taken

by the NSC. Some deputies from the DYP attacked him and attempted to pull him

from the rostrum. Upon the continuation of the disorder, the Speaker had to adjoin the

plenary session. This clearly indicated that no compromise had, indeed, achieved been

between the DYP and the SHP party groups. In addition, about 70 DYP deputies did

not participate at all in the plenary session in reaction to killings of members of the

PKK, an illegal Kurdish Workers Party, the day before the session opened. According

to the Rules of Procedure of the GNA, a rejected draft law may not be redebated for

14

one year. The chairman of the Justice Committee, Cemal Þahin, withdrew the draft

law, under article 89 of the 1982C, in order to prevent it from being rejected. Thus this

second stage of "legal reform" ended in further impasse.

Following the opening of the new legislative year on September 1, 1992, the

Justice Committee convened, on October 21, 1992, with the Justice Minister and other

representatives from the Justice Ministry present. The draft law was slightly revised

from its original form, but some minor provisions were made subsequent to the

Presidential veto. First of all, a new article (Article 29) was added concerning the

scope of the duties of the SSCs. The number of crimes over which the SSCs would

have jurisdiction was reduced. According to these changes, the SSCs would only

investigate terrorist crimes, arms and drug smuggling, and offences which would cause

a declaration of a state of emergency. In other words, the SSCs would no longer have

jurisdiction over cases which involve violating laws on demonstrations and rallies, the

prevention and prosecution of smuggling generally, strikes and lock-outs, and the law

on associations. As was mentioned in a opposition letter by five members of the

Justice Committee, it is not clear whether a person arrested while carrying a banner

saying "Long live the PKK" in a demonstration would be considered as a terrorist.

According to the existing Anti-Terror Law, carrying a similar banner would be to

praise terrorism and could be regarded as a terrorist crime, resulting in no access to a

lawyer while in detention (Turkish Probe, Dec. 8, 1992: 6). In support of this idea, new

specifics of the draft law concerning arrest, detention, testimony, and representation by

a lawyer, were declared to be non-applicable to crimes which fall under the SSCs

(Article 31). Thus, with such radical changes in the original draft law, the goal of the

amendments changed from one of attempting to abolish all human rights violations in

Turkey to one of reaching a consensus that only "terror suspects" could be ill-treated

while under detention (Turkish Probe, Nov. 24, 1992: 2).

The revised draft law was reported to the Speaker of the GNA on October 23,

1992, and the General Assembly of the GNA began to debate it on November 18. In

this third and last session on the draft law the debate was more focused than it had

been in the first two sessions. The discussion centered around the following topics:

human rights, extraordinary courts such as the SSC, demilitarisation, democratisation,

and the discouraging impact of the original draft law on the morale of the security

forces.

15

While Murat Baþesgioðlu, ANAP deputy, emphasized the importance of

developing the concept of democratisation in the people's mind, Ali Oðuz, RP deputy,

pointed out that special courts such as the SSCs were futile for the nation. Similarly,

Yüksel Yalova, DYP deputy, emphasized that the de-militarization of the regime

should coincide with democratisation attempts, otherwise the latter would be

incomplete. In his address to the General Assembly, H. Uluç Gürkan, CHP deputy,

stated that the GNA should have readopted the original draft law without any change

and sent it again to the presidency for approval. Instead of this, he added, the GNA has

created more anti-democratic exceptions than President Özal favored. He emphasized

that such changes would cause another presidential veto as well as have a negative

impact on the anti-terror struggle of the security forces:

It is a requirement of the concept of a state of law that trial procedure

must be same in all criminal courts.... In the SSCs, evidence obtained

in violation of the law can be taken as reason for a verdict. This

implies that torture will be legal at the SSCs.... Another important

issue is that the exceptions of the judicial reform will be applied to the

cases in certain regions. This is a separatist consideration that cannot

be acceptable.... We do not qualify the people living in that region

(Southeast Turkey( as being able to have democracy with its present

form. This consideration supports terror because the government of

the state of emergency regions created such a view that there is a

second border around Turkey which was designed by the government

of the state of emergency region.... This implies that the PKK terrorist

are told that "you can move freely within this border." (Minutes of the

GNA, 18 November 1992: 62-64).

In his response to the Deputies, Seyfi Oktay, the Justice Minister, stressed that

the draft law took its roots from the Coalition Protocol. He stated that as the draft law

was being prepared, the representatives of associations and organisations such as the

Human Rihgts Association and the legal Bars had participated in the discussions at

length.

16

We, the government, the political power, the GNA, are not the

products of a military regime and have no military aspect in nature. If

there was a military regime, upon an order some technocrats would

come together and make a draft, then it would be enacted and

promulgated in the Official Gazette and put into force (Minutes of the

GNA, 18 November 1992: 67).

However, he also added that, in preparing the draft law, only the realities of Turkey

and its international obligations were taken into primary consideration.

Following these speeches, the draft law was reconsidered, article by article,

and thirteen additional amendments were considered. Only the three proposals which

had been submitted by the coalition parties, however, were approved. Probably the

most positive sign in those amendments was the exclusion of Article 24 of the draft

law from those articles not applicable to the SSCs' crimes. According to that article,

which is valid for all suspects, evidence obtained in violation of the law cannot be

taken as the basis for a verdict. The other amendments, which regulate the scope of the

SSCs' duties, Articles 29-31, state that Articles 4, 5, 6, 7, 9, 12, 14, 15, 18, 19, 20, and

22 are not applicable to crimes which fall under the judiciary. For instance, suspects

caught in the state of emergency regions --presently East and Southeast Turkey--may

be held under detention for twice as much time as allowed for individual crimes (48

hours) and group crimes (15 days).

With these amendments, the draft law was readopted, not as a "judicial reform"

but simply as a compromise on what is "terror crime" and what is not. In other words,

at this stage of Turkey's struggle against terrorism, terrorist criminals were not given

rights which would weaken the morale of the security forces, as had been repeatedly

stressed by the DYP and ANAP deputies. Thus the 19th GNA, within 6 months, made

some changes in its position on a crucial issue of the consolidation of democracy in

Turkey. This inconsistency may further support the view that the Turkish Parliament is

one of the least trustworthy institution in Turkish political culture. The law was

approved by President Özal and was promulgated in the Official Gazette on December

1, 1992, thus coming into force.

17

CONCLUSION

Turkish experience with parliament and democracy still improves but slowly.

Traditionally the principal features of the GNA are the party elite and leadership, and

party groups with strong party discipline. Eventually the executive, either the

Presidency or the Council of Ministers, became very influential in the legislative

process. In other words, the role the GNA plays in redemocratisation is still a limited

one.

One of the implications of this study is that there was indeed a majority

("concealed coalition") in the GNA, which has implications for re-democratisation in

Turkey. The prevailing view among those "concealed coalitions" Deputies is that "any

granting of human and civil rights is per se a concession to terrorism and/or an act of

weakness of the state" (Briefing, August 31, 1992: 7). These nationalist and centrist

deputies ("hawks") generally resist changes in the status quo.

The specific case study contained in this paper also indicates that re-

redemocratisation in Turkey does not depend solely on the political will of the

government or of the GNA. The civilian and military bureaucracy has to be convinced

in order to reach the necessary consensus. Indeed, the real struggle for democracy

occurs between the traditional state elite and the new political elite of contradictory

elements. Demilitarisation and debureaucratisation attempts of the latter will be an

indicator of a development toward democracy. Otherwise, parliamentary debates over

ideal human rights principles without any institutional element seem to be fruitless.

18

Table 1

Trust in institutions in Turkish political culture (percentage of responses)

Institution Very much Never

Military 60.7 02.0

Religious 39.1 10.9

Education 35.3 07.4

Pension 32.8 06.2

Police 31.8 13.7

Courts 29.9 10.7

Parliament 28.8 17.2

Source: TUSIAD (1991). For camparative data for Southern Europe, see Liebert

(1990: 268).

19

Table 2

Distribution of the Seats in the National Assembly Deputy Elections after 1983

POLITICAL PARTIES 1983 1987 1991

DYP center right - 59 178

ANAP center right 211 292 115

SHP* center left - 99 98

RP** pro Islam - - 62

DSP center left - - 7

HP center left 117 - -

MDP center right 71 - -

Source: State Institute of Statistics (1985, 1988 and 1992).

* In the 1991 elections, the SHP made an alliance with the People's Labour Party (pro-

Kurdish) in the south-east provinces. Later many of these deputies resigned from the

SHP and joined the HEP. After reopening of the Republican People's Party (CHP,

center left) some members of the SHP also joined the CHP.

** The Prosperity Party (RP,pro-Islam), the Nationalist Work Party (MCP, pro-

nationalist), and the Reformist Party (IDP, pro-Islam) were formed an Alliance under

the head of the first one just before the 1991 early elections as an electoral front

against 10 percent national threshold. Soon after the elections some members resigned

from the RP and joined their original party or remained independent.

20

NOTES

i Institutionalization is defined as the establishment of boundaries (autonomy), the

growth of internal complexity, and the development of universalistic as opposed to

particularistic decision-making rules (Polsby, 1968).

ii According to Duverger (1980: 166), a political regime can be considered as semi-

presidential if its constitution combines the following three elements: (1) the president

of the republic is elected by universal suffrage; (2) he possesses significant powers;

and (3) a prime minister and ministers stay in office only so long as they have the

confidence of the parliament.

iii

For more information about the events prior to the coup, see Hale (1980), Heper

(1980), Karpat (1981), Weiker (1981), Dodd (1983), and Barkey (1990).

iv

Frank Taschau and Metin Heper (1983) classify the three successive military

interventions in terms of Nordlinger's typology as follows: 1960-"guardian," 1971-

"moderator," and 1980-"guardian." See also Rumpf (1988) and Tanör (1986: 98-99).

v See Minutes of the Consultative Assembly, 4 August 1982 to 22 September 1982,

Sessions 120 to 155.

vi

Participation in the referendum was compulsory and those who did not vote would

pay a fine. Also "pink" papers meant "yes," and "blue" papers--which could be easily

detectable in an almost transparent envelope by careful eyes--meant "no." Out of

18,841,900 valid votes cast (about 91 percent of all registered voters), 17,215,559

(91.37 percent of valid votes) were "yes" and 1,626,431 (8.63 percent of valid votes)

were "no" on the 1982 Constitution. Official Gazzette, No. 17874, 20 November 1982.

vii

There were many instances of such confrontation between the President Kenan

Evren, the Council of Ministers, and Prime Minister Turgut Özal. When Evren vetoed

the municipal election law, the government resubmitted it with minor adjustments and

it was enacted by the GNA within a week of the veto. Later, on June 29, 1987, Özal

blocked General N. Öztorun's candidacy as chief of the general staff despite the fact

that President Evren supported his appointment. Furthermore, the MP government

declared, on June 8, 1990, that the NSC would no longer approve military contracts.

On December 3, 1990, the chief of the general staff, Necip Torumtay, resigned his

office, reportedly because he disagreed with President Özal's notion of state (See also

Heper, 1990: 308-315).

21

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