The Politics of the Turkish Judiciary
January 15, 2014 § 4 Comments
The ongoing fight between the AKP and the Gülen movement has now moved into a new phase, where the government is not only reassigning police officers and firing prosecutors, but seeking to get rid of the separation of powers that exists between the government and the judiciary by proposing to have the body that appoints judges – the HSYK – become subject to the oversight of the Justice Minister. The opposition and the HSYK itself have declared this move to be unconstitutional and the EU has warned the government against passing such a measure, but Prime Minister Erdoğan hasn’t shown much inclination to back down. In World Politics Review, I have a long essay tracing how we got to this point. My argument is that the Turkish judiciary has throughout its history been a political actor, both in how it has behaved and how it is perceived, and thus successive governments – including the current one – have had no problem in treating it as such. Going after the judiciary in such a brazen manner seems extraordinary, but it is keeping with a long tradition of thinking about Turkey’s courts as an arm of the government rather than an impartial institution. Here’s an excerpt:
The Turkish judicial system appears to contain all the hallmarks of one that is enmeshed in a rule of law regime—independent courts, numerous avenues for appeal, civilian justice walled off from military justice and robust legal guidelines that adhere to a written constitution. Nevertheless, appearances can be deceiving. The Turkish judiciary suffers from a fundamental flaw, which is that it has often behaved as a political actor and is widely perceived by average Turks to be overly politicized. While the notion that courts are completely insulated from politics is a fallacy—in the U.S., for instance, politicians used to be routinely elevated to the Supreme Court, and Justice William Douglas even mounted a presidential campaign while serving on the court—the perception in Turkey is that the judiciary pursues political aims and that justice is far from being impartial.
This is not to say that the entire system is rotten. Problems with Turkey’s administration of criminal justice are generally blamed on police and law enforcement abuses rather than on the courts. And there are many Turkish judges and prosecutors who perform their jobs in a manner comporting with the highest ethical standards. The level of confidence in Turkey that the judiciary as a whole is neutral or impartial, however, is not nearly as high as it should be.
There are good reasons for Turks to believe that the judicial system is an overtly political one. The first and primary reason is that the courts have intervened in Turkish politics even more often than has the Turkish military, which precipitated a coup during each of the past four decades of the 20th century. Articles 68 and 69 of the Turkish Constitution grant the Constitutional Court the power to shutter political parties whose platforms or activities violate a number of principles, including Turkey’s independence and territorial integrity, human rights, equality, rule of law or—and this is the crucial one—the principles of the secular and democratic republic. The Constitutional Court has relied upon this expansive but nebulously defined power on numerous occasions to close down political parties that have threatened Turkey’s hegemonic Kemalist ideology, targeting Islamist parties and Kurdish parties in particular as violating the principles of the republic.
One might argue that the onus for this lies more with the drafters of Turkey’s constitution drafters than it does with the justices of the Constitutional Court; after all, the justices were granted a constitutional power so it is well within their right to use it. The problem is not that the court has closed political parties per se, but the sheer scope of how often this power is invoked: Since its establishment with the 1961 constitution, the court has closed down 27 political parties. To put this into context, postwar Germany—a state that knows the dangers of illiberal parties all too well—has only outlawed two. The total number of parties closed down in all of Western Europe in the post-World War II period is four. One need not be an expert in the vagaries of the Turkish constitution to understand that the Constitutional Court has oftentimes not acted as an impartial arbiter of law, but has rather functioned as a vanguard for the Kemalist elite and its particular vision of what constitutes Turkey’s best interests.
To read the full piece, including analysis of how the courts almost shuttered the AKP in 2008, how the courts have not really evolved in the switch from Kemalist governments to the AKP but simply changed their priorities, and how the current fight over the judiciary fits into the larger picture, please head over to article at World Politics Review by clicking here (and using this link will allow you to get around the paywall and read the article for free).
Kemalism Is Alive And Well
December 11, 2012 § 3 Comments
Since the AKP came to power in 2002, it has been increasingly fashionable to declare that Kemalism – Turkey’s dominant political ideology since the founding of the republic in 1923 – is on life support. Successive governments have paid lip service to Kemalism, particularly since the military has always viewed itself as the ultimate guardian of Kemalist principles and crossing Kemalist red lines has been the best way to precipitate a military coup, but the AKP is viewed as hollowing out Kemalism through its electoral dominance. Most people immediately associate Kemalism with secularism and Westernization, and whether it be the AKP’s battle to make wearing a headscarf acceptable in universities or the controversial decision to allow middle schoolers to attend imam hatip religious schools, the government certainly does not appear to feel that Kemalism should constrain its policies.
It is not just the AKP, however, that has embraced this trend. The opposition CHP, which was essentially created to translate the precepts of Kemalism into tangible policies, has also seemed to go through a post-Kemalist phase. In July, CHP leader Kemal Kılıçdaroğlu defended charges that his party has moved away from Kemalism by declaring that Kemalism is a dynamic ideology and that he rejects a “traditional” interpretation of Kemalism. Kılıçdaroğlu’s elevation to CHP leader was widely viewed as heralding a new direction for the party, which has been out of power for decades, and part of this new direction was a greater focus on social liberalism and less of a focus on traditional Kemalist principles.
Kemalism, however, was always about much more than secularism, and the CHP’s current line of attack against the government demonstrates that Kemalist principles still carry some weight. Kemalism has six arrows, and the two that bear on recent events are republicanism and populism. Republicanism meant popular sovereignty, freedom, and legal equality, and stood in stark opposition to the Ottoman sultanate and caliphate. While Atatürk’s idea of republicanism was based on the French model, the pre-democratic reality of Turkish republicanism was a paternalistic dictatorship containing aspects of liberal rule. Republicanism in the Kemalist sense meant sovereignty of the people as the basis of the state rather than sovereignty of the sultan, and the idea that the state existed to further the advancement of its citizens rather than the glory of a royal dynasty. Connected to this was the idea of populism, which was the notion that the Turkish people should be mobilized in the name of social progress and modernity, but also encapsulated a sense of solidarity among disparate societal or professional groups. Unity was essential in Atatürk’s mind to building a modern state, and he believed that only through popular unity and solidarity had Turkey achieved its independence. Populism was operationalized in a way that would ensure unity among different groups and eliminate class conflict by enacting socioeconomic and educational reforms meant to achieve equality and social mobility. This tied into republicanism, since equality and unity required the rejection of the Ottoman sultanate as it privileged a ruling class above the people. It was also a response to Marxism and the concept of revolutionary class struggle, and was meant to forestall any such possibility in Turkey. Throughout the 1930s, populism was used to push off dealing with potentially disruptive social issues by repeating that there were no class or social fissures in Turkey, and among the six principles of Kemalism this was the one that gained the most widespread acceptance prior to WWII.
During the parliamentary debate yesterday over the next budget, the Kılıçdaroğlu accused Prime Minister Erdoğan of running roughshod over republican principles by trying to circumvent the Grand National Assembly’s role in budget planning. Kılıçdaroğlu claimed that Erdoğan and the AKP are trying to elevate themselves above the republic, which Erdoğan vehemently denied and said that making comparisons between Turkey’s economic performance under the AKP and Turkey’s economic performance in decades prior is intended only to demonstrate how the AKP has improved Turkey. This seems like a strange argument to be having, as there shouldn’t be a question as to whether the current government is part and parcel of the republic or not, yet it can be understood in the context of Kemalism and whether or not the AKP is adhering to its tenets. Republicanism was meant to forestall exactly the charge that Kılıçdaroğlu is hurling at the government, of placing its own glory above the good of the people and the state, and the fact that it appears to have hit a nerve with Erdoğan demonstrates just how ingrained Kemalism really is. The CHP is attempting to tar the AKP with only looking out for its own interests, and Erdoğan’s response has been that the AKP’s success is actually Turkey’s success and the republic’s success, which feeds directly into the Kemalist republican ideal. Similarly, the debate involves populism as well, since the idea of popular solidarity and unity is violated by the AKP’s claiming economic success as uniquely its own.
In a world in which Kemalism was defunct, none of this would really matter; in fact, it would be perfectly natural for a party to crow about its economic success and use it as a tool with which to hammer its opponents. The fact that Erdoğan felt the need yesterday to reiterate his commitment to the republic and that Kılıçdaroğlu was nakedly appealing to two of the six tenets of Kemalism in order to score political points demonstrates that for all of the talk about post-Kemalist Turkey, shaking off decades of Kemalist ideological hegemony is easier said than done. As much as the AKP may want to water down the secularist component of Kemalism, the rest of it is still very much intact.
Republic Day Highs and Lows
October 29, 2012 § 5 Comments
Today is Republic Day (Cumhuriyet Bayramı) in Turkey, which marks the anniversary of the founding of the Turkish Republic in 1923. While most Americans would probably assume that Republic Day is like July 4 here and that it is a controversy-free public holiday where people gather with friends and family to celebrate, Republic Day is not quite that simple. Because Turkey’s institutions were created concurrently with Kemalism, a set of challenges arose that continue to this day, and the various controversies playing out on this year’s Republic Day illustrate how unsettled Turkey still is when it comes to the basic issue of what the purpose of the state should be and what role ideology should play.
When Mustafa Kemal Atatürk founded Turkey out of the remnants of the Ottoman Empire, he did so with clearly thought out ideas about how his new state should be organized and what goals it should seek to attain. Furthermore, unlike in other states where an ideology may be adopted after the institutions of the state are already in place, Atatürk built Turkey’s political and social institutions at the same time that he was installing Kemalism as the state’s official ideology. This enabled him to create structures and rules that were explicitly designed to strengthen and enable Kemalism, meaning that any challenge to the state would unmistakably be a challenge to Kemalism as well. Kemalism was so entrenched and well articulated that its tenets were explicitly written out and incorporated into the ruling CHP’s flag during Atatürk’s tenure so that there was no ambiguity about which theories and actions comported with Kemalism and which did not.
Since ideology was so wrapped up and intertwined with the state itself, it meant that Turkey was unable to convert first order battles over ideology into a lower grade conflict even after the initial transition to democracy after WWII. Any ideological wobble away from Kemalism precipitated a crisis, particularly given the fact that the most important and powerful state institution, the military, saw itself as the ultimate guardian of Kemalism irrespective of which party was in power. Thus, ideological conflict ensured that once ideological fights erupted into the open post-transition, the system was unable to successfully manage them. Lingering ideological issues hampered Turkey’s political development for decades, leading to a cycle of military interventions and shaky returns to civilian government.
Turkey today under Erdoğan and the AKP seems to have broken the pattern of military coups, which is certainly something to be celebrated during this year’s Republic Day. The fights over Kemalism, however, and whether the state should still be pushing a specific ideology that is linked to both secularism and statism (among other things) are very much ongoing. On a positive note, this is the first Republic Day during Abdullah Gül’s time as president that the leaders of the Turkish military are attending the official reception at the presidential palace. The reason that they had not attended in the past was because Gül’s wife Hayrünissa – along with the wives of other top government officials – wears a head scarf, and Kemalism frowned upon head scarves to the point of banning them from government buildings and universities. That top officers are going to the presidential reception this year might partially be a function of the Ergenekon and Sledgehammer investigations intimidating the military into changing their behavior out of fear, which is not a good development, but I think that the stronger impulse at work here is an emerging realization that ideological battles need to be put aside and deemphasized in order to make Turkey the strongest and most successful state that it can be.
On the other side of the ledger on this Republic Day is the unfortunate tendency of the AKP government to view ideological challenges as existential threats that require clamping down on freedom of expression. The government banned any Republic Day gatherings at the old Grand National Assembly building, which is closely associated with Kemalism and the founders of the Republic, under the theory that they would devolve into anti-government rallies. As a result, politicians and journalists, including CHP leader Kemal Kılıçdaroğlu, have been sprayed with water hoses and pepper spray today while hundreds, if not thousands, of Turks have been prevented from entering Ankara. This too is a result of the lingering legacy of Kemalism, but unlike the standoff in previous years between Gül and the military, this episode is not being resolved peacefully or amicably, and instead is a reminder of the AKP’s darkening record on freedom of speech. While Republic Day rallies may very well be aimed at criticizing the current government, true democracies are able not only to absorb such criticism but to enable it. As Turks celebrate this Republic Day, they should at the same time hope that future Republic Days remind everyone what an amazing country Turkey is rather than get hung up on still-unresolved issues surrounding Turkey’s ideological legacy.
Labeling Turkish Political Parties
July 12, 2012 § 2 Comments
Issandr El-Amrani has a terrific post over at The Arabist on the various labels that people assign to Arab political parties, and he makes the case that there is too much inappropriate conflation between different types. For instance, he says that all non-Islamists in the recent Libyan election were dubbed as liberals, when in fact that group included many parties and that were neither economically liberal or socially liberal. Similarly, secularists and liberals are often used interchangeably, when in fact secularists might be moderate Islamists or decidedly non-liberal conservative felool. He also argues that the term Islamist is overly broad (an argument that most knowledgeable observers have made and would agree with) but dives down even deeper than the Salafi/non-Salafi divide, asserting that in Egypt one can speak of Ikhwani Islamists, Salafi Islamists, and Wasati Islamists. He has a lot more in there, and you should go read the whole thing for yourselves.
It got me thinking about Turkish politics and the labels that outsiders tend to use with regard to Turkish parties. You almost universally see the AKP referred to as Islamist, but this is wrong in many respects. To begin with, the AKP itself rejects the Islamist branding, and looking at virtually every other Islamist party in the world, it is easy to see why. The AKP does not advocate for disbanding the secular state or legislating according to the principles of sharia, and it has not made any overt moves to do so. The AKP governs not as an Islamist party, but as a secular party whose members are personally devout. The fears that many expressed upon the AKP coming to power in 2002 have not come to pass, and even if the party has led the way toward a more visibly pious or conservative Turkish society, nobody can credibly argue that it has done this through legislative government action. Compared to Arab Islamist parties, the AKP is not even in the same ballpark, and should reasonably be characterized as a socially conservative party rather than a religious one. Prime Minister Erdoğan won himself no Islamist fans in Egypt when he traveled there last fall and lectured a Muslim Brotherhood audience about the vital need for a secular state, which is a strange move for the head of a supposed Islamist party to make.
Similarly, the terms secular and liberal have not traditionally coincided in Turkish politics. The current incarnation of the CHP under Kemal Kılıçdaroğlu has tried to remake itself as a socially liberal party, but historically the CHP’s fealty was to Kemalism above all else. Atatürk and Inönü were not liberals in the sense we use the term today although they were (to turn a phrase) religiously secular and carried out socially liberal reforms that conformed with their secular vision, and the CHP and other secular parties abetted much illiberal behavior on the part of politicians and the army. Turkey’s military coups were carried out by staunch secularists, but the coups were the very apotheosis of illiberal behavior. The 1982 constitution enshrined military-imposed secularism basically at gunpoint (yes, I know that there was technically a referendum, but that was not exactly what we would call a free and fair election free from coercion), which may have enshrined principles that we associate with liberal governance but was certainly not a liberal document. The nationalist party, the MHP, is also a secular nationalist party that is not a liberal one, and thus the secular-liberal fusion that we are used to in the West does not apply to Turkey quite so neatly.
None of these ideas are new, but they bear repeating. It is considered common knowledge in most of the world, and even within some quarters in Turkey, that the AKP is Islamist, which is what drives much of the talk about applying the “Turkish model” to Arab states where Islamist parties are strong. It is also assumed that any secular parties in government will automatically be less authoritarian and more committed to liberal democracy than the AKP appears to be at times. Both of these assumptions are fallacies, and those of us who work on Turkey might want to take El-Amrani’s words to heart and be a lot more careful about the terms we use and what those terms imply when we discuss Turkish politics.
Egyptian Elections and the Turkish Model
May 23, 2012 § 3 Comments
For anyone who spends their time thinking and writing about the Middle East, today’s big news item is the Egyptian presidential election. While I spend most of my (non-dissertation) time on Turkey and Israel these days, my original academic interest was in the Arab world and I follow it generally, and Egypt specifically, very closely. Lots has been written over the past year about the “Turkish model” and whether it is applicable to Egypt, and indeed a recent Brookings poll indicates a preference among Egyptians to emulate Turkey. There is no need for me to rehash the specific reasons that Egypt may or may not be a good place to replicate the Turkish model, since plenty of smart people who know Egypt far better than I have already done so. I would only quickly note that based on the Brookings poll, Egyptians don’t actually know how Turkey is governed, as 54% of the respondents listed Turkey as the country that best reflected their aspirations for the role of Islam in politics while 66% of Egyptians support basing their laws on sharia. Even allowing for the 83% that say sharia should be adopted to modern times, a majority of Egyptians appear to believe that Turkish law is based in some loose way on sharia, which is not the case.
Instead of getting into the weeds on Egypt, I’d like to discuss why no country, Egypt included, should be looking to replicate the Turkish model. To be clear, when I talk about the Turkish model I don’t mean the military being the arbiter of secular politics or guardian of the state, but an ostensibly Islamic party governing through secular state institutions without imposing any religious dictates. To begin with, the synthesis of Islam and democracy in Turkey has taken a very long time. The fact is that the Turkish model has only emerged in the past ten years after decades of instability, military coups, varying degrees of authoritarianism, and a complete lack of vertical accountability. When Mustafa Kemal Atatürk founded Turkey out of the remnants of the Ottoman Empire, he did so with clearly thought out ideas about how his new state should be organized and what goals it should seek to attain. Furthermore, unlike in other states where an ideology may be adopted after the institutions of the state are already in place, Atatürk built Turkey’s political and social institutions at the same time that he was installing Kemalism as the state’s official ideology. This enabled him to create structures and rules that were explicitly designed to strengthen and enable Kemalism, meaning that any challenge to the state would unmistakably be a challenge to Kemalism as well.
Since ideology was so wrapped up and intertwined with the state itself, it meant that Turkey was unable to convert first order battles over ideology into a lower grade conflict even after the first successful transition to democracy after WWII. Any ideological wobble away from Kemalism precipitated a crisis, particularly given the fact that the most important and powerful state institution, the military, saw itself as the ultimate guardian of Kemalism irrespective of which party was in power. That the AKP was finally able to emerge out of the ashes of the Refah Party, win multiple elections, and govern without completely dismantling the state is the culmination of a long process of ideological softening on both sides. The overarching point here is that this process took 75 years to play out, and took 50 years after Turkey’s first democratic election. Democracy does not happen overnight under the best of circumstances, and Egypt is far from being an ideal staging ground. There are many things to contend with: a strong authoritarian legacy, social cleavages, a pending economic crisis, disputes over religion and what the state should look like, just to name a few of the big ones. Aiming for a synthesis of Islamic politics and secular government is a fool’s errand in the short run, and while Egypt may be able to eventually pull it off successfully, it will be years before that happens.
Another primary reason why the Turkish model cannot be replicated is that, as Steven Cook points out in Ruling But Not Governing, Turkey adapted for a specific purpose, which was joining the EU. The EU process made future military interventions more unlikely while also forcing the state to become more democratic, but at the same time it made the non-secular AKP soften any tendencies it might have had to weaken state secularism. When joining the EU is the ultimate goal, there is zero chance of adopting any type of sharia law or religious compulsion, and while I do not fall in the camp of those who think that the AKP actually desires to do this anyway, it would never happen while the EU negotiating process is underway. Egypt, and all other majority Muslim countries, do not have this structural constraint to contend with. If the Muslim Brotherhood is in power in Egypt and decides that it wants to legislate according to religious dictates, there is no comparable outside incentive to slow that down. The Turkish model did not emerge in a vacuum, but out of a highly specific context that does not exist elsewhere.
Finally, the specific electoral rules used in Turkey contribute to a unique situation in which extremist views on the poles of political thought are kept at bay. One need only look at the op-ed on Indonesia in the New York Times yesterday to get a sense of how this works. In Indonesia, the government coalition includes a number of extremely conservative Islamist parties, which in turn leads to restrictions on religious minorities and religiously motivated violence that the state ignores. In Turkey, however, the vote threshold for parliament is 10% of the vote, which means that smaller and more extremist parties get left out. This in turn has made the AKP a big tent that includes religious conservatives, merchants, the middle class, and some of the new urban elite. Such a party cannot afford to alienate religious minorities or condone any Islamist-led violence, and thus the AKP largely keeps its religious piety confined to personal behavior and governs over a secular state. Erdoğan’s lecture to the Muslim Brotherhood on his trip to Egypt about the vital need for secular governance was not an act; say what you will about him, but he practices what he preaches.
If Egypt is able to get to a place down the road where it embodies Alfred Stepan’s twin tolerations of the state being free from the yoke of religion and religion being free from the yoke of the state, it will be an amazing accomplishment. If it is able to replicate the Turkish model, it would be a positive development for its citizens and governing institutions. Nobody should fool themselves, however, on the likelihood of this happening. The Turkish model emerged out of a confluence of events playing out over decades with some unique structural constraints weighing on the entire process, and it is folly to imagine that this might happen elsewhere in what is in historical terms the blink of an eye.
