Neutered Ombudsman Law

There is yet another piece of evidence indicating that the ruling Justice and Development Party (AK Party) has been suffering from reform fatigue and a lack of vigor: The neutered Ombudsman Law that was passed in Parliament late Thursday night. The law came with a major flaw by excluding the military from the oversight of the ombudsman, saying that the actions of the Turkish Armed Forces (TSK) will be exempted from review.

It is difficult to understand why the AK Party government endorsed a law that has no teeth with regard to the oversight of military activities when in fact it was the AK Party itself that had been subject to military meddling and intrusion into civilian governance for years. Why did the government choose to water down a bill that was supposed to align the legislation with the 26-item constitutional amendment package that was overwhelmingly approved in a public referendum by the people in 2010? Would this not lead to the questioning of the legitimacy of the AK Party, which made it a central theme of its election campaigns to put an end to the powerful military custodianship over civilian governments, as it is was clearly not acting in accordance with its promises?

While they were at it, why not include the police? Article 5 of the law stating that an ombudsman cannot inspect those activities of the TSK that are of a “solely military nature” could have been expanded to include the police for activities of a “solely security nature.” Since the employees of the National Intelligence Organization (MİT) were already covered by a special law, and in fact their armor was strengthened by a new amendment made to the law in February when the government rushed to save a political appointee at the head of the spy agency, I guess there is no need to include MİT in this law. But I’m sure there are many other public institutions that were eager to see the granting of special exemptions and protections from independent oversight just like the military obtained on Thursday night.

The whole thing is like a joke, and it has certainly dealt a heavy blow to transparency and accountability. No institution should be above the law, and all public agencies should be subject to the oversight scrutiny of the ombudsman, aka the Public Monitoring Institution (KDK). In fact, the military should be at the top of the list for which the ombudsman has powers to examine complaints simply because there have been so many grievances accumulated against the military from the public for decades.

The TSK successfully lobbied the government to get the exemption while the bill was being debated in the subcommittee sessions in the Constitutional Commission. Representatives of the TSK openly said their first preference was to get a blanket exemption from the oversight. When that was too much even for the governing party deputies, they scaled back on their demands and instead suggested a vague phrase to be placed in the bill, which was later approved. During the debate in the commission, Chairman Burhan Kuzu from the AK Party did not even allow any discussion to take place on that phrase. Finally, the bill was approved in the general assembly just the way the military wanted.

When questioned, the military people lobbying the commission members said the TSK has been quick to settle complaints under the military justice system. The TSK lobbyists also raised concerns over the negative impact of having an ombudsman review acts of the TSK concerning discipline in the ranks. When they were asked what constituted military duty in the law, they said “standing guard, military drills and tactical maneuvers and such” should be considered as “military nature.” Looking at the track record of the military, which is used to cover-ups, I find these arguments far from convincing. Unfortunately, we have too many cases where the military simply decided to sweep the dirt under the carpet, even silencing victims using methods like threats and assassinations.

Just to name few, civilian prosecutors in Malatya and Diyarbakır are reopening cases where a number of military officers were killed or died in suspicious circumstances in the early 1990s, including Gendarmerie General Command chief Gen. Eşref Bitlis, Diyarbakır Gendarmerie Command chief Gen. Bahtiyar Aydın, Adana Gendarmerie Command chief Gen. Temel Cingöz, Mardin Gendarmerie Command chief Col. Rıdvan Özden, Col. Kazım Çillioğlu and retired Gen. Hulusi Sayın. The military claimed some of these deaths occurred as a result of an accident or in a clash with a terrorist organization. But new evidence suggests otherwise, pointing to a series of cover-ups in the military.

Two examples caught public opinion in recent years. In August 2009, the military claimed that the death of four soldiers in the eastern province of Elazığ was the result of a hand grenade accident. When a newspaper report indicated that their death was in fact perpetrated by their superior, who had forced Pvt. İbrahim Öztürk to hold a hand grenade with the pin pulled out because he had dozed off while on duty, the military changed the story.

The second example was the Şemdinli case, where Turkey’s former chief of General Staff, Gen. Yaşar Büyükanıt, was able to save suspects that had ties to JİTEM, an illegal intelligence unit inside the gendarmerie, who were caught red-handed in a 2005 bookstore bombing in Şemdinli, a district of the southeastern province of Hakkari. While the suspects were sentenced to more than 39 years in jail by a civilian court, they were let go following their first hearing in a military court after the civilian court’s authority was challenged by the TSK.

Therefore, restricting the authority of the ombudsman as an independent public authority assigned to hear complaints or grievances concerning public agencies, such as the military, was not right. Having a powerful ombudsman as an impartial mediator between people and public institutions has proven to be very useful in countries that are in transition or emerging from periods of armed conflict. Because the Turkish democratic process has been interrupted by military interference four times since 1960, and there were numerous other unsuccessful attempts, we need a strong ombudsman office in Turkey.

Thanks but no thanks to the AK Party government, the military was given a perfect excuse to challenge the authority of the ombudsman when complaints are raised against the military. Instead of clarifying what subjects regarding the military fall outside the ombudsman’s jurisdiction, the bill left it vague and highly ambiguous. The definition of “military nature” will be left to interpretations by administrators and military people. This will undoubtedly be a constant cause of friction. As a result, the ombudsman will not be able to work effectively and efficiently.

The lack of an ombudsman in Turkey has been a source of concern raised in the Council of Europe (CoE) for more than a decade. Ankara is still under the so-called “post-monitoring dialogue” with the CoE, a sort of probationary period during which a country must adopt certain reforms — including establishing an ombudsman’s office. The European Union has been asking Turkey, a candidate country, to implement reforms in this area as well. But if you ask me, the one that was adopted in Parliament this week falls short of meeting the demands from both the CoE and the EU.

The exclusion of the military from the Ombudsman Law will not solve Turkey’s headache in the European Court of Human Rights (ECtHR) either because Turks who cannot solve their problems in Turkey will keep knocking on the door of the Strasbourg-based court. Just last month the ECtHR ruled against the Turkish military in a case in which four military officials were sentenced to solitary confinement by their commanders on charges of not following their superiors’ orders.

The court dismissed the defense of the government, which argued that the military disciplinary procedure is beyond the scope of the convention. The government cited Article 129 of the Constitution as well as Article 21 of Law 1602 of the Supreme Military Administrative Court, which both exclude the disciplinary decisions of the armed forces from judicial review. But the ECtHR did not buy that argument, recalling that Article 5 of the convention guarantees the fundamental right to liberty and security. It ordered the Turkish government to pay 17,500 euros in total as compensation to the victims. I’m afraid the same will happen with the Ombudsman Law as well.

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