Cablegate: Turkish Opposition Appeals to Court to Annul the Nuclear

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DE RUEHAK #3015 3531053
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R 191053Z DEC 07
FM AMEMBASSY ANKARA
TO RUEHC/SECSTATE WASHDC 4739
INFO RUCPDOC/USDOC WASHDC
RHEBAAA/DEPARTMENT OF ENERGY WASHDC
RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHUNV/USMISSION UNVIE VIENNA 0177

UNCLAS ANKARA 003015

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USDOE FOR CHARLES WASHINGTON
USDOC FOR 4212/ITA/MAC/CPD/CRUSNAK

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: ENRG EINV BEXP TU
SUBJECT: TURKISH OPPOSITION APPEALS TO COURT TO ANNUL THE NUCLEAR
POWER LAW

REF: ANKARA 2755

SENSITIVE BUT UNCLASSIFIED. PLEASE HANDLE ACCORDINGLY.

1. (SBU) SUMMARY: The opposition Republican People's Party (CHP) and
Democratic Left Party (DSP) asked the Constitutional Court on
December 6 to annul the recently passed Nuclear Power Law. They
assert that the law is unconstitutional because it usurps
parliamentary authority, violates the "greater public good" by
making the Turkish public bear some dismantling costs, and fails to
set personnel qualifications. CHP Deputy Faik Oztrak expects the
court to halt the February 21 tender process, while GOT energy
advisor Faruk Demir said these were old issues that already had been
addressed. The challenge may succeed because the law is vague,
especially on the tender process. It illustrates why the government
wants to amend the constitution to remove "public good" legal
standards that it says impede needed economic reforms. End Summary.

2. (SBU) The main opposition party CHP and DSP jointly asked the
Constitutional Court on December 6 to annul the Nuclear Power Law
passed on November 9 (reftel). They challenge the constitutionality
of articles 3, 7 and temporary article 1 of the law, which deal with
the tender process and selection criteria; Treasury liabilities for
the Decommissioning Account; and the definition of the
qualifications of personnel, respectively.

3. (SBU) The two parties argue that the law is unconstitutional
because it circumvents the Legislature's regulatory power and leaves
too many critical issues to the Government's discretion. For
example, the Nuclear Power Law allows the Turkish Atomic Energy
Agency (TAEK) to decide the principles for setting technical
criteria. It also does not define the criteria for selection of the
contractor and plant location, licensing costs,
infrastructure-related incentives, terms of fuel supply and
production capacity.

4. (SBU) They also object to the provision that requires the
government to pay for dismantling cost overruns (the government's
liability is limited to 25% of the amount accumulated in the
Dismantling Account). They claim this article does not serve the
"greater public good," a constitutional requirement for all
legislation. Their third objection is to vague personnel
qualifications set by the law, which the parties say violates the
constitutional "principle of certainty."

5. (SBU) The GOT and the opposition parties who filed the action
gave predictably opposing analyses of how effective this court
challenge might be. CHP Deputy Faik Oztrak told us he expected the
Constitutional Court to prevent the GOT from moving forward with the
tender process on February 21, based on its mandate to protect the
public good. Oztrak added that CHP was particularly concerned about
how investors would handle nuclear waste management, given the lack
of guidance or expertise in Turkey on this issue. However, Faruk
Demir, an independent adviser to the Energy Minister, dismissed the
action as purely political. He said "the greater public good"
argument was made by former President Sezer when he vetoed a prior
version of the law, and the GOT addressed this when it amended the
law in line with Sezer's veto.

6. (SBU) Comment: This challenge may succeed because the government
pushed the Nuclear Power Law through the parliament in just two days
without amendment, and it remains vague on several issues,
particularly on the tender process, which was a focus of opposition
complaints when the law was debated in parliament. This is one of
several lawsuits that CHP has filed against the government, and
illustrates why the government wants to amend the constitution to
remove vague, "public good" legal standards that it says impede
needed economic reforms. End Comment.

Wilson

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