What does the domestic security reform package entail?

Turkey is currently preoccupied with intense political and legal debates due to the much-discussed domestic security reform package. The most controversial articles of this package can be divided into several topics as follows: Firstly, instead of a judicial verdict, the permission of legally defined authorities would be considered sufficient in certain non-delayable cases, including immediate detentions, searches and wiretappings. Secondly, Molotov cocktails and similar explosive and flammable materials would be considered weapons by laws. Thirdly, protestors who cover their faces obstructing identification would be prohibited from participating in demonstrations and marches. Apart from these three topics, the transfer of security units, which are at the helm of the military, such as the gendarmerie and the Coast Guard, to a civil administration is still controversial, but opposition parties do not have a strong resistance in this regard. The government justifies this domestic security reform package by underscoring security vulnerabilities, lootings and other crimes committed during the Oct. 6-7 Kobani protests, which resulted in the deaths of more than 50 people. Thus, it stresses the necessity of more effective measures in order to ensure public order.

On the other hand, the opposition thinks that this law would turn the country into a police state and that the state would become more authoritarian. Leaving aside stereotypical statements that are highlighted in discussions, the following is more pertinent to the current circumstances of law: Judicial authority is being transferred to the executive sphere. This assertion should not be underestimated, not because it is legally true, but rather because it reflects a basic perception of law in Turkey. In Turkey, what is perceived as a state of law is that all administrative acts and transactions are subject to judicial review, an idea that develops the following argument: If all administrative acts and transactions have to undergo judicial control, then the administration is unreliable. In this case, all authorities that would be considered to secure freedoms should be delegated to judicial authorities that are independent from the administration. If these authorities are given to the judiciary, it is not benign to transfer them to the administrative bodies. This means that judicial authority is transferred to the administration and the judiciary is being disempowered.

This approach rejects the principle of trust in the administration, which is established by laws in line with the Constitution and has to abide by those laws. What should be understood from this point is not the unreliability of the administration and the transfer of inherently administrative authorities to the judiciary. Quite the contrary, the principle of trust in the administration is derived from this point in a rational judicial system. In other words, a body that is authorized by law has to act in accordance with law and it has to be trusted. If any mistakes are seen, one would resort to the judiciary. Otherwise, there is no need for the administration and this logic could also argue that executive authority might also be delegated to the judiciary. Actually, arrest and search warrants are administrative transactions rather than judicial ones. However, as personal security is quite important, it is found appropriate if this warrant is given by an adjudicator. Insisting on a judicial verdict in non-delayable cases might hamper the fight against crime. In this regard, the possession of authority by the administration and its subjection to judicial control is also compatible with the norms of the European Court of Human Rights.

Another criticism of this reform bill is that the regulation that stipulates the punishment of masked protestors is open-ended. This can be discussed in a coherent way. It would not be so consistent to criticize the regulation on search warrant claiming that the judiciary is being disempowered on the one hand, and removing the discretionary power of the judiciary asserting that the law should not be open to interpretation on the other. If such discussions are conducted in a legal framework, they would be more efficient, but this would not be a realistic expectation in a period when Turkey is heading toward general elections.