Statements and information files regarding Turkish State’s Coup-minded trustee policies against local/elected authorities
Being unfolded is a regime in violation of the constitution, domestic laws and international treaties
In the wake of the coup attempt on July 15th, the regime declared a State of Emergency which has been put into practice by gradually repealing the system of checks and balances, and disabling the separation of powers. The Parliament is rendered ineffective and the public will is nullified through a rule by decrees with the power of law.
I. The Decrees with the Power of Law enacted in the regime of State of Emergency are in violation of the universal law, fundamental human rights, and international treaties ratified by Turkey, particularly the European Convention on Human Rights and the mandatory provisions of United Nations conventions.
II. However, this is not a recent situation. President Erdogan did not acknowledge the results of the election on June 7th, 2015, rendering the Parliament inoperative, preventing the formation of a government, and Turkey was dragged into another election on November 1st , 2015 through a civilian coup of sorts, against the elected Parliament.
Subsequently, the legal immunity for our deputies were lifted through an amendment violating the Constitution and international customary law and practices, restricting the means of the deputies to actively participate in politics, signified the second step that rendered the Parliament inoperative.
III.In a third step, AKP government brought a draft to the Parliament’s agenda, prescriptive of amendment in Municipality Law. The proposal included severe violations of multiple articles of the Constitution, and after harsh debate and opposition it was withdrawn through an agreement of all parties in the Parliament.
However, in spite of this agreement, AKP government and Erdogan moved the verbatim content of the draft into a decree with the power of law. With this maneuver ignoring political ethics and the parliamentary platform, they have stayed clear of all review by the Constitutional Court.
On the basis of this decree which includes regulations pertaining to the assignment of trustees for municipalities, mayors and deputy mayors dismissed due to “abetting terror and terrorist organizations” will be replaced by designated individuals. In the case of metropolitan municipalities and provincial municipalities, these individuals will be determined by the Minister of Internal Affairs in 15 days, and governors will be responsible for the same in other municipalities. Moreover, budgets, financial works and transactions of the municipalities will be processed in fiscal directorates of governorates. Municipal councils will not be able to meet unless called upon by the mayor.
This regulation aims to render the municipal executives elected in local elections inoperative. With this regulation, trustees shall be assigned to the city halls by the government, initiating the process of repudiation of the public will. This regulation is also in violation of the European Charter of Local Self- Government signed by Turkey.
This regulation is another step that carries on the civilian coup that has been enforced by President Erdogan since June 7th, 2015, by taking advantage of the coup attempt on July 15th, 2016. Witj this attitude, the government has declared that it opts for an oppressive and authoritarian system instead of democratization.
a. This Decree with the Power of Law will pave the way for dismissal of elected mayors and council members, and their replacement by representatives through appointment, instead of elections.
This regulation, in essence, targets the local administrations, city halls in Kurdish cities, elected by 65% to 95% majority. Stationing managers by way of designation, instead of election, in the posts of mayors and city councilors that are dismissed through accusations of “Terrorism or aiding and abetting terrorist organizations,” is an obvious coup against the public will.
Dismissals of mayors and councilors through arbitrary decisions will further aggravate the current problems particularly in Kurdish cities, compound the insolubility of the Kurdish issue, and further increase tension and polarization in the society.
The present Turkish Penal Code and the Anti-Terror Law are highly problematic as is: it is a frequent agendum in the EU harmonization process, harshly criticized in progress reports,brought up as a criterion for a prospective visa exemption with the EU, and it is essentially utilized to oppress the opposition. On the other hand, over 3,500 judges and public prosecutors were dismissed after the coup attempt on July 15th and were replaced by the government, clearly demonstrating the non- existence of an impartial jurisdiction.Furthermore, we have recently witnessed members of top judicial bodies buttoning up their togs to pledge loyalty to Erdogan during the official inauguration of the court year, proving criticism on judicial independence and neutrality valid.
The government aims to oppress, and even purge all opposition circles with a biased jurisdiction, the Turkish Penal Code and the Anti-Terror Law which disregard human rights and freedoms completely.
b. This regulation includes a transfer of the tasks of municipalities by decisions of governors, to other institutions, and subsequently to private companies, seizing related budgets of city halls. The purpose of this step is to put city halls out of service financially, and simply, to paralyze local administrations.
c. Another universal legal norm violated with this regulation is the principle that laws do not apply retroactively. Currently, the mayors, deputy mayors and council members previously dismissed for “aiding and abetting terrorism” are replaced in accordance with Article 45 of the Municipality Law in force. This new regulation stipulates that, even if a new mayor to replace the dismissed one were already chosen by the municipal council, Minister of Internal Affairs in metropolitan cities and provinces, and the Governor in other municipalities will make appointments to replace these newly elected individuals within 15 days.
d. The plan is to use this regulation to make unlawful re-appointments in place of elected representatives who have ongoing court cases without having to wait for a verdict. This regulation also precludes a court decision on the unlawfulness of such dismissal and reinstatement. It states that reinstatement is at the complete disposal of authorities processing the dismissal, hence a regulation that does not recognize even judicial rulings is put in force.
e. This regulation in the law decree is clearly in violation of the following;
– Article 36 of Constitutional Law stating that “Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through lawful means and procedures.”
– Article 127 of Constitutional Law stating that “The formation, duties and powers of the local administration shall be regulated by law in accordance with the principle of local administration.”
– Provision included in Article 127 of Constitutional Law stating that “These administrative bodies shall be allocated financial resources proportional to their functions.”
– Article 138 of Constitutional Law stating that “Legislative and executive organs and the administration shall comply with court decisions; these organs and the administration shall neither alter them in any respect, nor delay their execution.”
– Decision of Constitutional Court numbered 2009/148 and stating that “The first and simplest condition of legal security is that any law to the disadvantage (of the accused) is not applied retroactively”;
– Right to due process as stated in Article 36 of Constitutional Law;
– Article 11 of the Constitutional Law stating that “The provisions of the Constitution are fundamental legal rules binding upon legislative, executive and judicial organs, and administrative authorities and other institutions and individuals.Laws shall not be in conflict with the Constitution.”
f. Consequentially, this regulation hinders the municipal governments from performing their Constitutional and legal duties, placing these duties under the regulation of governors –who are civil servants appointed by the government– and therefore constitutes a severe violation of the Constitutional Law, an unlawfulness and a coup against the public will.
In fact, this regulation clearly disregards the current Municipal Law. This regulation builds a new regime. This regime, established step by step, is a totalitarian and oppressive one that disregards the will of the electorate, exercises arbitrary and unlawful pressures, custodies and arrests on those elected; imposes singularism instead of celebrating pluralism and a variety of voices, disregarding the principle of separation of powers, adopting a principle of unity of power instead.
Built upon the mentality of a one-man rule, this regime will lead to further exacerbation of social problems. This new situation built upon the destruction of the political system based on people’s will in local governments shows that the government in Turkey is distancing itself away from universal democratic criteria and human rights and freedoms.
We know that the most effective instruments of struggle against coups are universal law, democracy, and human rights. These are the principles we must embrace now. The antidote to coups and the damage they inflict should be sought in democracy. The society should not be forced to make a choice between a coup or an anti-democratic government. This cannot be considered progress.
As HDP, we will continue our democratic struggle in all spheres against the by-pass of current laws, and against this regime currently being constructed in total disregard of the people’s will and in grave contradiction of international treaties ratified by Turkey.