When the Constitutional Court began reviewing the case concerning Çetin Altan’s parliamentary immunity, unease emerged within the Justice Party and its satellite circles. When the Court overturned the Parliament’s decision, this unease turned into a confused and angry panic.
They had planned everything in their minds. If the Constitutional Court upheld the verdict in the first case, they would pass the other cases one after the other through the Parliament, and thus they would ‘finish off’ Çetin Altan. But the greatest judges of the Republic of Turkey spoilt this game. And the verdict, as Çetin Altan wrote to our magazine, had a cold shower effect on the Justice Party members. They were surprised, angry, swearing. One of them called for an extraordinary meeting of the Assembly. The other said that the matter would be taken care of. They couldn't get their heads round it. Then the statements and writings began.
Prime Minister Süleyman Demirel opened the curtain:
- Now, the Constitutional Court said there was a procedural error. I have not read the reasoning of the judgement yet. According to what I read in the newspapers, it rejected the decision on the merits. This is a matter for the parliament. This is all there is to it.
If a person endeavours to become a statesman without putting the first mortar on the foundation of his knowledge of law, he will become confused and his words will become incomprehensible.
What is the Prime Minister saying?
- The court rejected the judgement on the merits.
Sir, when the courts examine a file, they first examine the matter in terms of procedure. If there is no deficiency in the procedure, then the essence of the case is examined and decided. Otherwise, a decision on the merits is not taken without a procedural examination. This is the same both in civil and criminal procedure. That is why lawyers who lose a case on procedural grounds are looked down upon in their professional life.
The Second President of the Constitutional Court, Mr. Lütfi Ömerbaş, did not think that the Justice Party members would be so uninformed when he announced the decision, and therefore summarised the decision as follows: “- By majority vote, it was decided to annul the decision of the National Assembly; and by unanimous vote, it was concluded that there was no ground to examine the substance of the case.”
These words are now interpreted as follows:
- The reversal of the judgement on the merits was rejected unanimously. All members rejected the objection on the merits, but reversed the judgement on procedural grounds, also by majority vote. Now, if the decision is duly passed by the Assembly again, there is no longer any objection to lift the immunity, since it has been rejected on the merits.
There is no shame in not knowing.
Since these Justice Party members, and Prime Minister Demirel in the first place, have never learnt anything about law in their lives, they have been stringing pearls upon pearls on this subject as well. They do not know what the Constitutional Court is and what it is not. I am sure they have never read a Constitutional Court judgement. But let them not worry, when they will soon have the judgement on the dissolution of the Justice Party in their hands, they will have the opportunity to cover their ignorance and they will not speak in such a public manner.
A Constitutional Court decision is analysed as follows:
There is a law numbered 44, the Law on the Establishment and Trial Procedures of the Constitutional Court. It is according to this law that the Court, which the Justice Party members are very uncomfortable with, is organised.
In a Constitutional Court decision, the name of the person or organisation applying to the Constitutional Court for annulment shall be written first.
For example, if an application is made to the Constitutional Court for the dissolution of the Justice Party pursuant to Article 32 of Law No. 44, the name of the person requesting the dissolution of the Justice Party shall be written first in the petition. In other words, according to Article 108 of the Law on Political Parties, since the Chief Public Prosecutor’s Office can make a request, the name of the Chief Public Prosecutor will be written at the beginning, and the subject of the request for annulment will be summarised below it.
In summary, it will be written, for example, that the Justice Party is requested to be dissolved because it has violated the prohibitions from Article 83 to Article 194 of the Law on Political Parties concerning ‘the protection of the secular state character and Atatürk's revolutionism, the state and the democratic order’. Thereafter, under the title of ‘initial examination’, the competence of the person or organisation applying to the Constitutional Court according to Article 2 of the Law No. 44 and the time limits according to Article 22 shall be examined.
Within ten days of the submission of the petition to the Constitutional Court, if it has been examined whether or not it meets the conditions stipulated in Article 26 of the Law No. 44, it shall be concluded that there is no inconvenience in proceeding to the merits of the case and the case shall be judged on the merits. And to return to our example, the Justice Party is dissolved. This decision is final.
The decision whether or not to proceed to the merits is a procedural decision made at the end of the first examination. It has no effect on the merits of the case or the legal nature of the claim. It only announces the end of the first examination and the beginning of the final examination, the judgement phase related to the merits of the case. It is not necessary to be a lawyer at all to understand this. It is only necessary not to be a member of the Justice Party!...
If that’s the procedure
The Constitutional Court examined the case of Çetin Altan and rendered its decision in accordance with Article 33 of Law No. 44 on the lifting of immunity. The Court, recognising a clear procedural error in the decision, reversed the decision in this respect and deemed it unnecessary to go into the merits. In other words, the decision was so flawed that the court overturned it on procedural grounds without going into the merits. Moreover, the decision of the Parliament is in fact in the nature of lifting the irresponsibility, not the immunity. When the Constitutional Court enters into the merits, it will examine this characteristic of the decision and will rule the case on the merits, seeing that the Parliament has exercised an authority that it does not possess, and that the procedure for lifting immunity has been replaced by the procedure for lifting irresponsibility.
- But he did not overturn it on the merits.
But this was not deemed necessary for the time being. The Justice Party members were spoilt by this and tried to spite us:
There is a time for everything. If the decision is taken for the second time, then it will be overturned on the merits and all Justice Party members will be silenced. Because the Constitutional Court is the only authority that can define the scope of the irresponsibility written in Article 79 of the Constitution. This is the concept called ‘the merits of the case’. Otherwise, as Mr Süleyman wants to say, the essence of the case is not to examine the elements of the offence. This examination will be made by the Serious Criminal Court. Of course, in the case of Çetin Altan, no one was authorised to determine the elements of offence in these articles because of the irresponsibility that was abolished. No organ in Turkey can exercise a power that does not derive its source from the Constitution. The procedures for the lifting of immunity and the lifting of irresponsibility cannot be disguised with sophistry.
The Constitutional Court cannot be deceived like the Justice Party voters. They are the highest judges of Turkey. They do not rely on any power or concept other than their legal knowledge and high conscience.
According to Demirel:
- The Constitutional Court is not authorised to decide whether there is an offence or not.
Yes, it is so, but neither Kemal Bağcıoğlu, nor the Justice Party ‘legions’ Coşkun Kırca and Emin Paksüt have this authority. Those who declare that the Constitutional Court cannot decide on the elements of a criminal offence should know that the Parliament does not have this authority either.
Don’t say it Recep, we are religious brothers
While Prime Minister Mr Süleyman Bey was listing pearls of wisdom, would the master Mümtaz Fenik stop?... He also started pontificating in his column:
- The judiciary is officially on holiday. All courts are on holiday. However, on-call courts are active to deal with very urgent cases. Only the Constitutional Court did not go on recess in case Çetin Altan applied to us for the lifting of his immunity and waited for the possible petition.
Well done, indeed. What deep knowledge, what marvellous intuition!... What a superhuman intelligence!. So when a person is a writer for the Justice Party, he becomes a genius!..
It is a shame to say that, Article 55 of the Law No. 44 on the Establishment and Judicial Procedures of the Constitutional Court, which entered into force on 22.4.1962, is as follows:
“The president and members of the Constitutional Court may be granted annual leave of forty-five days each, provided that such leave does not interfere with the execution of the works subject to a stay of execution in the capacity of the Supreme Court or in accordance with the Constitution.”
The period stipulated in Articles 81 of the Constitution and 33 of Law No. 44 for the decision on immunity is fifteen days. The Constitutional Court does not go on recess like other judicial organizations. The leave of absence of the members of the Constitutional Court is regulated by Article 55 of Law No. 44. In this article, it is written that leave shall not be taken in cases which are dealt with in the capacity of the Supreme Court and in cases which are subject to a time limit.
As stated in the article, immunity is also a matter subject to a deadline. And the members of the Constitutional Court were summoned to Ankara by telegrams in accordance with this article. This is an order of law concerning the organisation and functioning of the Constitutional Court.
Mümtaz Faik’s pearls do not end with this. He is so frightened of the Constitutional Court that he writes with fear and astonishment.
- Everything is in the hands of fifteen, or at least eleven judges.
What did you think?.. Will everything be in the hands of Menderes or Demirel?.. This is called the principle of supremacy of the Constitution in constitutional law, read and learn a little.
Besides, let’s give Mümtaz Faik another scary news. According to Article 81 of the Law on Political Parties, if those eleven judges he dislikes so much wish, they can also record the revenues of the Justice Party as revenue to the treasury.
In democratic countries, the authority of those who come out of the ballot box ends at the door of the Constitutional Court. The decision to lift immunity is not the decision of the parties, but of the Parliament. But the decision cancelling this decision is the decision of the Constitutional Court, which is an organ above the Parliament. This should be firmly fixed in the minds.
Look at the author!...
Fatih Rıfkı Atay, in his own words “today’s spokesman of the 950-60 era of oppression and robbery”, immediately rolled up his sleeves:
- A solution must be found for this. Those who commit offences must be held accountable during the recess. If their offences warrant imprisonment, they should not return to the Parliament.
Here, have you seen the master writer of the years?.. The man has written for years, but he has never bothered to read a law book. He has no idea what the constitution is, what irresponsibility is, what immunity is. He has to swear. Let him defame this and that. And this is called writing... Anyway, if he gets his hands on his grandchildren’s citizenship book these days, he will read it and learn about these subjects.
“Tonton” Orhan Seyfi is in a panic. He must have turned pale. Look what he says:
- It cannot be denied that the decision given by the Constitutional Court did not have an effect on the supporters of the democratic freedom regime in the sense of leaving the field empty for communist propaganda. Those who were against communism were startled and astonished by this decision.
Okay. They got out of it. The Constitutional Court is also communist. After university students, academics, and the Supreme Court President, the Constitutional Court is also communist. Look how far the communists have infiltrated!.. Tevetoğlu will probably examine the leftists in the Constitutional Court in the second volume of his book. Well, the time has come for that too.
The great Turkish thinker and itch, Tekin Erer, has caught it right at the crucial point. He says:
- Because we believe that no matter what procedural refusals the Constitutional Court may seek and find, in the end, what the nation says, what the nation wants, what the nation desires will prevail. There can be no stage where the power of the National Assembly is not sufficient.
If the Justice Party is the representative of the nation, do these gentlemen think that the Constitutional Court is a neighbourhood headman?
And they threaten the supreme judges. They are saying that you can decide as much as you like, but we will do as we please. Being a bully in front of the Constitutional Court does not bring good to a man!
Sit where you are
The immunity of Çetin Altan has strengthened the Constitutional front once more. It has once again become clear that it is not possible to destroy the freedoms brought about by the 27 May revolution with the institutions brought about by 27 May itself. The revolution will protect the freedoms it brought with its own institutions. But let alone this side of things, look at the misery of these Justice Party circles. They do not know economics, they do not know law, they have chewing gum in their mouths; they just say,
- Communists, communists...
If you ask them what communism means, they don’t know that either. They couldn’t write a word that would make sense about immunity. Swearing, threats, blackmail. That's all.
The state pays you a lot of money for these jobs. You walk around claiming to be a statesman and strut around claiming to be a writer. Read a piece of book. Shame on you, shame on you. You keep on banging on about the Constitution; learn what the Constitutional Court is. Is it above or below the parliament, to the right or to the left?
And we are sitting here trying to tell you our troubles in the heat of summer. Keep going. Only lawlessness suits you.
