US embassy cable - 03ANKARA3187

UNCLAS SECTION 01 OF 03 ANKARA 003187 
 
SIPDIS 
 
 
SENSITIVE 
 
 
DEPARTMENT FOR EUR/SE, EUR/PPD AND DRL/PHD 
 
 
E.O. 12958: N/A 
TAGS: PGOV, PHUM, PREL, TU 
SUBJECT: CONSTITUTIONAL COURT CHIEF JUSTICE DISCUSSES ROLE 
OF CONSTITUTION, RELIGION 
 
1. Summary: In a May 8 meeting with Ambassador, 
Constitutional Court Chief Justice Mustafa Bumin discussed 
his views on: the ruling AK Party; the threat of Islamic 
fundamentalism in Turkey; the role of the Constitution in a 
State of law; and the recent law lowering the retirement age 
for civil servants.  Bumin is scheduled to visit the U.S. May 
17-31 for a series of meetings in Washington, D.C. and San 
Francisco.  His comments provide insight into his views.  End 
Summary. 
 
 
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Court Blocks Retirement Law 
--------------------------- 
 
 
2. Bumin told Ambassador the Constitutional Court announced 
May 8 it had stopped the implementation of the new law 
lowering the retirement age for civil servants from 65 to 61. 
 He said the Court reached this decision because: 1) there 
should be a transition period to allow workers to make 
retirement plans, since for years they expected and planned 
for retirement at 65, and 2) this law improperly transfers 
powers from the legislative branch to the executive by 
permitting the terms of selected civil servants -- such as 
governors, ambassadors, and undersecretaries -- to be 
extended by the Cabinet.  These decisions would be 
subjective.  The personnel rights of civil servants in Turkey 
are regulated by law.  The Court decided to stop 
implementation of the law because a decision to annul the law 
would have taken 4-5 months to carry out, whereas a decision 
to stop implementation takes effect as soon as it is 
published in the Official Gazette.  Bumin quipped that the 
decision is a "gift" for Turkish Ambassador to the U.S. 
Logoglu, who would have had to retire under the new law 
(Note: Bumin's wife is a good friend of Mrs. Logoglu. End 
Note).  In general, he said, the Court blocks implementation 
of laws when there is a high probability the law will be 
annulled, and when it is clear that the consequences of 
implementation would be difficult to address after the fact. 
 
 
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Yes to Free Speech, No to "Fundamentalism" 
------------------------------------------ 
 
 
3. Bumin defined himself as a "humanist" and said when he was 
elected Court Chairman he told his colleagues they were all 
free to express their views, but he would not tolerate 
fighting.  He has studied decisions of the U.S. Supreme Court 
and the European Court of Human Rights (ECHR), and noticed 
many similarities.  One common thread is the belief that an 
idea can be controversial, even shocking, but its expression 
must be tolerated.  Bumin said his ideas have changed 
repeatedly over the course of his life, as is natural. 
 
 
4. Ambassador noted that Ataturk had challenged many 
conventional ideas, but after Ataturk's death many of his 
followers determined such challenges unacceptable.  Bumin 
said Turkey enjoys "the best form of secularism."  Two years 
ago, the ECHR President came to visit him.  At that time, the 
ECHR was preparing to review an appeal of the GOT's 1998 
decision to close the Islamist Refah Party.  Bumin said he 
explained to the ECHR President that while Europe had long 
ago eliminated the influence of religion in politics, Turkey 
could not.  Unfortunately, he asserted, there are people in 
Turkey actively seeking to exploit religious feeling for 
political ends.  In addition, Turkey's Islamic neighbors to 
the south and east promote fundamentalism in Turkey.  The GOT 
shut down Refah because, Bumin opined, it had become a center 
of anti-secular activities, including by promoting Sharia 
law.  He explained the danger of religious fundamentalism in 
Turkey, and urged the ECHR not to be naive when it reviewed 
the case.  If the ECHR ruled against the closure, it would 
bear the responsibility if Turkey drifted toward Islamic 
fundamentalism.  Later, Bumin and the other Court justices 
visited the ECHR in Strasbourg and exchanged views.  Their 
efforts bore fruit when the ECHR ruled in 2001 to reject 
Refah's appeal.  If the ruling had gone the other way, the 
consequences would have been very bad, Bumin claimed.  In 
general, Bumin said he does not like closing parties. 
However, both the Constitution and the Political Parties law 
require closure in certain cases.  Under a recent 
constitutional amendment, the Constitutional Court has the 
authority to amend the Political Parties Law.  The Court is 
now reviewing the Law and will likely cancel many articles. 
 
 
----------------------------------------- 
Bumin: AK Lacks Experience, Understanding 
----------------------------------------- 
5. Bumin said ruling AK Party leaders do not understand yet 
how the State works, but we must not lose hope in them.  He 
said he has told both PM Erdogan and Speaker of Parliament 
Arinc that more than half the votes for AK in the November 
elections were protest votes, rather than votes from loyal AK 
supporters.  As an Islam-oriented party, AK can play a 
valuable role in power if it respects the principles of the 
secular Republic.  If it does  not, however, the consequences 
will be terrible.  Unlike in some other countries, you don't 
need a specific education to enter government in Turkey.  In 
France, for example, graduates of the National School of 
Administration run the country.  There is also a problem with 
the concept of merit.  The personnel law in Turkey requires 
that certain government officials have certain 
qualifications.  Unfortunately, there are no such 
requirements for being elected to the Turkish Parliament, he 
added. 
 
 
--------------------------------------------- - 
The Role of the Constitution in a State of Law 
--------------------------------------------- - 
 
 
6. Ambassador asked about the prospects of the GOT drafting a 
new Constitution, rather than making piecemeal amendments to 
the existing one.  Bumin noted that the current Constitution 
was drafted in 1982, under the influence of the military, 
which had staged a coup in 1980.  Its authoritarian nature 
was a reaction to the freedoms of the previous Constitution, 
drafted in 1961.  He said he gave a speech on April 25, the 
41st anniversary of the Constitutional Court, in which he 
stressed that the Constitution should not be amended for 
special situations.  In other words, if you cannot accomplish 
something by changing a law, you should not try to achieve 
that end by amending the Constitution.  The Constitutional 
Court can oversee constitutional amendments only from a 
procedural point of view -- i.e. whether the amendment was 
adopted according to procedures.  The Court cannot review the 
contents.  Some people therefore might try to use the 
constitutional amendment process instead of the normal 
legislative process, where the Court can review the actual 
content.  In a state of law, you cannot change the 
Constitution in order to evade Constitutional Court control. 
Bumin said that when he made these comments during his 
speech, he looked directly at Erdogan, Arinc, President 
Sezer, and Justice Minister Cicek.  He said AK could use its 
majority in Parliament to change laws, but unless these laws 
comply with international norms they cannot become legally 
binding. 
 
 
7. Ambassador asked Bumin for his reaction to recent comments 
by Arinc that seemed to imply that natural law, or 
parliamentary authority, might be above the Constitution. 
Bumin noted that Arinc is a lawyer, and said he did not 
believe Arinc intended his words to have that meaning. 
Article 2 of the Constitution states that Turkey is a state 
of law.  There are certain things that cannot be changed. 
 
 
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Comment 
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8. Bumin sincerely believes himself to be an advocate of a 
state of law, but his comments reveal how incomplete that 
concept is in Turkey.  We request that interlocutors for 
Bumin's upcoming visit be informed about his views, but 
equally try to draw him out on key issues in order to 
stimulate his thinking. 
 
 
 
 
 
 
 
 
 
 
PEARSON