Ali Duran Topuz
Esteemed Supreme Court, can the death penalty ever be a precautionary measure?
Esteemed and meticulous lawyers succinctly criticized the Supreme Court’s decision to block the Peoples’ Democratic Party’s (HDP) treasury aid; in sum: it is a decision that has nothing to do with the law.
Even before the Court’s decision, Turgut Kazan, one of the veteran names at the Istanbul Bar Association, stated that the request itself was a disgrace, let alone the verdict, and foreseeing the danger it posed, wrote:
“The injunction request for the treasury aid HDP was set to receive is a complete disgrace. Article 69 of the Constitution outlines that if the alleged violation is determined by the final verdict, “the rule for a partial or complete deprivation [of aid] can be made.” Therefore, a sanction can never be applied as a precautionary measure.”
The idea Kazan articulates is clear: the Constitution says you can decide to cut the aid either partially or entirely, which is the predicted sanction in the case. You cannot use the predicted sanction in the form of an “interlocutory order” as a “precaution.” In doing so, you would be handing down the final verdict before its time. You cannot make a “final verdict” in the mold of an interlocutory one.
Let’s analogize: Had the predicted sanction been the death penalty, one would not have been able to make such a decision as an interlocutory order. Because you cannot choose to re-execute someone as per the final verdict when you have already executed them once. If the predicted sanction is the partial or complete denial of the aid, yet you decide to restrict aid under the guise of “blocking” or an “injunction” as an “interlocutory order,” of what importance then is the final verdict?
Indeed, Cihan Aydin, one of the former Diyarbakir Bar Association Presidents, stated that the blocking decision constituted “comments reflecting bias.” Both Cihan Aydin and Republican People’s Party (CHP) Deputy and fellow former Diyarbakir Bar Association President Sezgin Tanrikulu stated that the decision was contrary to prescribed procedures: The constitutional provision and the provisions in the Supreme Court's founding rules are clear; this decision must be taken by a two-thirds majority.
Akin Atalay is yet another of the notable lawyers drawing attention to the problems in the decision. Atalay indicated that though the court tended to produce “case law through interpretation,” it did not comply with any of the necessary preconditions for this.
It is worth repeating one of the issues that Cihan Aydin touched on. The Chief Prosecutor’s first request had been rejected on the basis that there was “no justification.” Yet the second request was accepted without even feeling the need to ask the HDP. What changed in the interim? Is there a justification? Had there been, we would have seen it in the explanation of the Supreme Court. There is no justification presented there, because it is already outside the bounds of possibility for such a justification to exist. Cihan Aydin interprets this as “acquiescing to political pressure.” This resembles willing cooperation much more than it does acquiescence. If you ask me, it would not have been possible for a hypothetical committee to issue a verdict of such legal incompetence without the desire for cooperation.
Well then, if the verdict is not a lawful one, what is it? Turgut Kazan named it already: a dirty campaign trick. This is, however, a quality campaign trick, akin to aggravated fraud.
If you are electing to dress up a decision you could have made if, and only if, it had been the final verdict in the case as an “interlocutory order” in advance of said final verdict, you are serving the cause of those who requested this decision of you in two ways: You still hold in your hands the leverage of shutting down the party, and you pave the way for severe inequality during electoral campaigning by cutting treasury aid.
To tell the truth, the most important explanation regarding the verdict came not from lawyers nor from any opposition parties, but from Recep Tayyip Erdogan himself. After the Supreme Court released its decision, Erdogan made the statement, “We can pull the election to an earlier date.” Thereby, the decision found its place and translation in the language of the ruling authority: the performance of minimum wages and the show of pensions and public servant salaries have been completed, the vice gripping the HDP has been tightened; now, before the given wage increases are lost to inflation, it is the time to make haste and start working.
In short, the regime has already started, the Supreme Court only sounded the gong.