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).

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§ 4 Responses to The Politics of the Turkish Judiciary

  • Marc Dubey says:

    It can and should be argued that most Judiciaries are political actors, often they are voices of previous rulers and administrations. The current US Supreme Court and it always has been. It can be easy to think that a court should be outside of politics but it is ultimately a political institution but the long appointments that are common to such an institution should prevent a good court from being petty, overly topical, overly partisan and free to consider both issues of justice and the long term health of the state. Both the Egyptian and Turkish courts can be accused of being “political” and even partisan but one of the roles of an independent judiciary is to restrict the power of other power centers and to preserve both the state and the rights of the public. In the case of Turkey, their court accomplishes that, the biggest problem facing Turkey is not the politicization of the court but the encroachment of the AK parties political power over all institutions and the weakening of secularism. Ten of fifteen years ago the problem was the lack of rights for religious people and now we the opposite problem so the question is not is the court too political but is it doing its job well enough to be valuable. One look at American politics in any election year will tell anyone that the court is not only perceived as “a political actor” but one that must be won to the left or the right depending on the election year. The problem is not the perception of the court in Turkish society, it is not so unique a perspective but that the most powerful political party wants to control it.

  • albert nekimken says:

    I would like very much to read your entire article in World Politics, but, unfortunately, your “click here” link did NOT succeed in getting me beyond the firewall. Can you distribute a better link?

  • […] of the military and 800 journalists from the state-run TRT news conglomerate).  Most worrying is a bill that will be up for debate in Grand National Assembly this week that, if passed and signed by […]

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