TURKEY: CONSTITUTIONAL COURT CHIEF'S SURPRISINGLY

C O N F I D E N T I A L SECTION 01 OF 02 ANKARA 000909

SIPDIS

E.O. 12958: DECL: 05/08/2018
TAGS: PGOV PREL TU
SUBJECT: TURKEY: CONSTITUTIONAL COURT CHIEF'S SURPRISINGLY
PROGRESSIVE REMARKS CALL ON ALL FOR HIGHER STANDARDS

Classified By: Political Counselor Janice G. Weiner, for Reasons 1.4 (b
,d)


1. (C) SUMMARY AND COMMENT. Constitutional Court Chairman
Hasim Kilic candidly acknowledged tensions between law and
politics in Turkey, noting a serious crisis of confidence
within society in April 25 remarks marking the Court's 46th
anniversary. Kilic challenged all players, the judiciary
included, to uphold their roles and pursue social
transformation by adopting contemporary Western values. He
rejected the false dichotomy of democracy and secularism, and
advocated for national unity under democracy and rule of law.
Kilic called for a new civilian constitution, urged judicial
self-criticism, was critical of those (opposition Republican
People's Party (CHP)) using the judiciary to upend the
legislative process, and issued a stern warning to the ruling
Justice and Development Party (AKP) to address the concerns
of those with opposing views. Kilic's surprisingly
progressive speech emphasized protection of individuals and
minorities and defended freedom of expression. Although some
dismiss Kilic, an Ozal appointee, as pro-AKP and Islamist,
his perceptive remarks make it hard to do so. Indeed,
fiercely rival political pundits Emre Kongar and Cengiz
Candar agreed his speech was remarkable, although it received
little media attention. Only a handful of people could have
a delivered such a courageous speech at such a sensitive time
in Turkey: it packed punches for players across the board,
underscored the importance of democracy and credibly demanded
Turkey raise its standards of law. END SUMMARY AND COMMENT.

A Civilian Constitution
--------------

2. (SBU) Kilic's speech took a bold tack, declaring the
Constitutional Court's essential duty is to protect
individual rights and freedoms against state institutions.
Failure to do so would lead to a crisis of legitimacy, he
said. He proposed Turkey adopt a new constitution that uses
the bureaucratic structure to realize the nation's democratic
will, that does not recognize any sacred value other than
human dignity and freedoms and that limits basic rights only
with contemporary exceptions. Constitutions written in
extraordinary periods (i.e., by the military) were extreme
reactions to earlier conditions, he noted. With
normalization, society needs a new constitution "purfied of
rigid ideological dogmas," open to change and integrated with
the values of society and compromise. For Turkey's social
transformation to continue peacefully, politics and the
bureaucracy must internalize a democratic culture consistent
with modern Western values, Kilic commented. A
constitutional platform incorporating all views and sectors
would result in a document acceptable to all. Noting
parliament currently has no role in appointing Constitutional
Court judges, Kilic said allowing this would create an
important link between the people, parliament and the Court
that would help eliminate a mutual lack of confidence.

Judicial Decisions Open to Constructive Criticism
--------------

3. (SBU) Kilic acknowledged highly politicized cases referred
to the Court in the past year have resulted in intense public
focus on the judiciary. He defended the right to criticize
judicial decisions -- in democratic states, any other
situation is unimaginable. Since justice is the most
fundamental societal value, court decisions should be
dissected and discussed to satisfy the nation's sense of
justice. But he emphasized that even disputed decisions are
binding; non-implementation or delay are also unimaginable
where rule of law governs.


4. (SBU) Criticism of the judiciary that is insulting rather
than constructive threatens social calm, Kilic added. He
regretted pressure on the Court both at home and from abroad,
noting in particular criticism concerning the pending AKP
closure case. Such negativity will not prevent the Court
from protecting the unitary and secular structure of the
Republic, he said. Kilic also objected to media assessments
of how individual judges will vote, often including photos,
which can make judges targets (as occurred two years ago with
the Council of State shooting). Law, said Kilic, is the

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protection of individuals against arbitrary administrations;
the main guarantor of such a system is the judge. Erosion of
this notion and making it a tool of unproductive political
rivalry would be the worst thing for society.

Let Every Institution Observe its Limits
--------------

5. (SBU) Kilic accused Turkey's legislature, executive and
judiciary of exceeding their constitutional authority,
blaming all three branches for a "clash among powers." This
clash will continue, Kilic predicted, until they understand
that separation of powers centers on an appropriate division
of labor and cooperation, rather than which branch has more
authority.


6. (SBU) Focusing on the judiciary, Kilic pointed out that
European Court of Human Rights' judgments against Turkey stem
from human rights violations in Turkish judicial decisions.
Legislative amendments affirming that international
supersedes national law have failed to eliminate judicial
negligence (or unwillingness) in implementation. Supremacy
of law does not mean supremacy of the judge, Kilic stressed;
a judge cannot assume a mission beyond that specified in the
constitution and laws. "We must not forget that where
society loses faith in justice, it is easy to lose social and
political ties as well," he said. Constitutional bodies
should have the courage to be self-critical.


7. (SBU) Kilic argued democracies cannot impose the tyranny
of the majority, even as majority rule is key to a democratic
decision-making process; a pro-freedom approach means the
majority must be limited to protect minorities as well.
Describing freedom of expression as a sine qua non of a
democratic state of law, Kilic added that freeing people from
the "think from inside" concept does not authorize expression
that leads to violence. Similarly, preferring democracy over
secularism, or the reverse, is objectively wrong and
politically dangerous, he noted. Secularism, the basic
guarantee for the coexistence of different faiths, is a
"great peace project" under the protection of the Turkish
nation. Initiatives to save the regime or the country
through illegal powers would only serve to hasten the
country's decline, Kilic warned.

Moving Forward, Together
--------------

8. (SBU) According to Kilic, a serious crisis of confidence
among political, ethnic, and religious sectors of society is
undeniable. Rather than inciting to polarization, Kilic said
societal and institutional compromise are needed now more
than ever. Without naming AKP, he warned societal fissures
will deepen if those in power do not eliminate the fears and
doubts of those who defend opposing views. The fears people
feel cannot be denied, he said. "We must solve our problems
through dialogue and within the boundaries of legal
principles, not through conflict." Every problem can be
solved with democracy and rule of law; it should be a common
goal for the Turkish boat to sail in peace, comfort, and
security, Kilic concluded.

Visit Ankara's Classified Web Site at
http://www.intelink.sgov.gov/wiki/Portal:Turk ey

WILSON