What is judicial tutelage, and what is it not?

Tutelage is regulated by the legislator in the Turkish Civil Code. In general, it is an institution established to protect the interests of those under legal disability and minors who are not under parental care. Through the regulation of tutelage, the legislator aims to protect the assets of the person under tutelage and, at the same time, to ensure their representation. This matter is, in fact, among the constitutional duties of the state. For the state has an obligation to protect the weak and those who may fall into a needy situation.

In short, tutelage is a legal term derived from acting as a guardian for those in need. Therefore, if a society cannot stand on its own two feet, tutelage arrives. Because this becomes a necessity.

MILITARY TUTELAGE

Military tutelage, on the other hand, gained a constitutional identity in Turkey with the 1961 Constitution and maintained this position in the 1982 Constitution. After the transition to multi-party political life, the army transformed into an institution that supervised politicians and intervened in politics where it deemed necessary. In this state, military tutelage is the subjection of the elected to the supervision of unelected state organs.

On the other hand, in a democracy, which is known as the people governing themselves, if the decisive element is the people, it would be a complete paradox to speak of tutelage.

The world order is built on inter-state relations. However, no state can survive without a strong army. Military tutelage, however, is based on those in uniform managing those without uniforms—that is, civilians—within the framework of their own feelings, thoughts, ideological approaches, and theories.

THE MILITARY MUST REMAIN IN ITS OWN DOMAIN

A democratic system can prevent military tutelage. First and foremost, by a democratic system, we mean people of different thoughts, beliefs, races, and lifestyles living together in accordance with the law. In military tutelage, there is a design of a single form, a single dimension, a single perspective, a single thought, and a single individual.

Tutelage can be in question not only in the military field but also in other areas. For example, is there not a Council of Higher Education (YÖK) tutelage over universities, or does the Council of Judges and Prosecutors (HSK), with its current structure, not serve the same purpose at the head of judges and prosecutors as a tutelage organ?

2017 TURKISH CONSTITUTIONAL AMENDMENT REFERENDUM

The referendum held on April 16, 2017, should be considered the founding date of the new tutelage system in Turkey.

Voters cast their ballots on amendments to 18 articles of the existing Constitution. After long discussions regarding the article amendments supported by the AK Party in government and its founder, President Recep Tayyip Erdoğan, the decision for a public vote was taken after it passed through Parliament with the support of the opposition Nationalist Movement Party (MHP). The amendment package aimed to abolish the existing parliamentary system and replace it with a presidential system, eliminate the office of the prime minister, increase the number of deputies in parliament from 550 to 600, and make changes to the structure of the Supreme Board of Judges and Prosecutors (HSYK).

With these changes, as we understand better today, the legislative organ has been rendered ineffective, the executive organ has been reduced to a single person with the Partisan Presidential System, and the HSYK has been completely politicized by determining a method where its members are chosen by the partisan President and that party's majority in the Grand National Assembly of Turkey (TBMM).

With the adoption of these constitutional amendments, tutelage has not been lifted in our country; the owners of the tutelage have changed.

So why can society not completely eliminate tutelage and transition to a true democratic system?

The philosopher Immanuel Kant defined enlightenment as follows: "Enlightenment is man's emergence from his self-incurred immaturity. Immaturity is the inability to use one's own understanding without another's guidance."

In fact, Kant criticizes the inability of humans to think and make decisions on their own behalf without using a guardian, a proxy, or a trustee. Nature has long since freed humans from remaining dependent on foreign guidance. For this reason, he says, the fault should not be sought in the intellect itself, but in the human who lacks the determination and courage to use their intellect without the guidance and help of another.

Therefore, Turkish society has not yet reached maturity in terms of exercising its democratic rights; it has not come of age. However, in my opinion, considering the recent local elections, it is also not entirely suitable to be placed under tutelage. The process we are experiencing and the lifting of tutelage in Turkey will be realized when the society as a whole comes of age and rejects tutelage.