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).
The Means Matter As Much For Democracy As The Ends
January 9, 2014 § 2 Comments
One of the tricky things about democracy is that we think of it as being an end-state that a country can hopefully achieve and maintain – hold regular elections with peaceful transfers of power, establish rule of law, incorporate and protect civil rights – but the pathway to getting there matters. It matters for two main reasons. First, democracy is not only about substance, but also about procedure. Countries that have hollow democratic institutions, where you have parties and elections but ones that are rife with corruption, patronage, irregularities, may look democratic from the outside but are not because their process is fundamentally undemocratic. Elections themselves do not magically confer democracy. Second, people and governments are not inherently democratic. Democracy generally emerges as a way out of a political stalemate or as a compromise between parties who are not powerful enough to impose their will on everyone, and as democratic behavior is repeated and becomes habituated over time, genuine democracy takes hold. In other words, behaving democratically is not innate, but it becomes second nature as it is carried out.
The idea that process matters is enormously important in order to understand what is taking place in Turkey, and why the AKP’s constant drumbeat of claims about the high quality of Turkish democracy must be taken with a huge dose of skepticism. Almost everyone agrees that one of the AKP’s benchmark achievements has been to bring vertical accountability to Turkey, meaning that no unelected entity – in this case the military – wields ultimate power. It is for this reason that Iran is not a democracy no matter how many elections they have and no matter how free and fair they might be (not that they are), and very few people except a band of the most hardcore secular Kemalists would dispute that taking the army out of politics is a good thing and that power should be vested in those who win elections rather than those who carry guns. So the AKP’s campaign to bring the military to heel is an unqualified victory for democracy in Turkey, right? Except that it is not quite that simple, since the way the military was brought under control was through two investigations and trials, known as Ergenekon and Balyoz, that were fundamentally flawed and involved everything from detentions without trail to blatantly forged evidence. Nobody believes that these trials were victories for the rule of law, even if the ultimate end served democracy. Officers were subject to a witch hunt and the army was the victim of a campaign of recrimination in retaliation for its own decades of hounding Islamists and religious Turks, and so while it is an unqualifiedly good thing that the army will no longer be intervening in Turkish politics, nothing about the way that this result was carried out was model democratic behavior. All it did was reinforce the idea that Turkish democracy means winning power through elections and then using that power to act in fundamentally undemocratic ways.
Looking at what is taking place now as the AKP purges thousands of police officers and prosecutors in the name of subverting a coup attempt, you see a similar dynamic. The AKP talks about the Gülen movement as an undemocratic “parallel state” whose power needs to be curbed, and much like the move to curb the power of the military, there is truth in this. After all, it was the Gülenists who were responsible for the shady military trials, and to mistake them for pure democratic actors would be rank naiveté. Yet even taking the AKP’s claims about their former friends at face value, and granting that the Gülen movement uses its influence in the judiciary and the police in unsavory ways and that there needs to be some sort of check, the process here stinks to high heaven. Reassigning hundreds of police officers at once because they arrest people suspected of corruption, nakedly trying to remove all separation of powers and subordinate the judiciary to the power of the government, sending envoys from the prime minister to personally threaten the lead prosecutor of the graft cases, prosecuting eight television channels for reporting about the graft and corruption investigations…there is no way to justify this on democratic grounds, and yet this is precisely the gambit that Erdoğan and the AKP are attempting. By claiming that there is a coup attempt underway and that extraordinary measures must be taken in the name of protecting Turkish democracy, Erdoğan and his government are simply demonstrating that they don’t know the first thing about democracy or how it works.
It is a classic authoritarian gambit to use the powers of the state to go after your enemies and to claim that it is all being done in the name of security and democracy. The fact that the Gülen movement used this tactic to go after the military does not make it acceptable to use the same tactic to go after the Gülen movement. The notion that the corruption investigations constitute an attempt to carry out a coup and overthrow the government would be laughable if what was taking place in Turkey right now wasn’t so damaging to Turkey in the long term. When a government violently cracks down on protestors, fires prosecutors and police who dare to investigate allegations of gross misconduct, introduces legislation to eviscerate judicial independence, and darkly talks about foreign conspiracies supporting domestic terrorists without any shred of evidence, and does all of this in the name of “protecting democracy” and fulfilling the will of the people – people who, if the latest polls are correct, overwhelmingly condemn Erdoğan’s move to block the investigations and purge the police – it has taken an Orwellian turn for the worse. This goes double when hints of changing party rules midstream to allow Erdoğan to run for a fourth term are portrayed as being democratically necessary rather than extraordinary manipulation.
Process and procedure matter. Rule of law is not something to be subverted in order to arrive at democratic ends, because the process of implementing rule of law is itself the mark of democracy. The more that Erdoğan and the Turkish government do whatever they please because they have won elections, the more Turkish democracy withers. The only way for democracy to really take root is to have democratic behavior become repeated ad infinitum until it is routine. As Steven Cook so aptly points out today, the AKP is trying to manipulate Turkish political institutions to achieve its own ends, and Erdoğan’s and the AKP’s “fealty to democratic change extends only so far as it advances their interests.” For those still desperately clinging to the vestiges of 2002 through 2007 and the conviction that “Turkey has never been more democratic than it is under the AKP” despite all recent evidence to the contrary, the repeated and by now habitual flouting of democratic process is not something that Turkey will be able to just shake off when the AKP decides that it is time.
What I Got Wrong, 2013 Edition
December 30, 2013 § 4 Comments
As it’s the end of the year, it’s time to revisit my 12 months of screw-ups (last year’s mea culpa is here). There don’t seem to be as many big ones this year as last year, but that is not a function of my improving analysis and is rather a function of my increasingly neglectful blogging habits; last year I wrote 276 posts, this year only 65. Thankfully for all of you though, there’s still plenty of material for you to use in heaping scorn upon my head. Here are some of the lowlights.
Israeli-Palestinian peace talks: On February 13, I wrote a post entitled “The Prospects For Real Peace Talks” in which I downplayed the idea that Israel would enter into substantive talks with the Palestinians. I didn’t think the makeup of what I expected to be the new Israeli coalition government would allow for real negotiations to take place, and I wrote, “even if Tzipi Livni brings Hatnua into the government nobody should be getting their hopes up too high for a big diplomatic push on the horizon.” We can debate whether the current talks are going to lead anywhere real, but certainly the process is taking place and there have been enough signs that the talks have been substantive and are going well that this call was wrong on my part.
Erdoğan’s relative reasonableness: This seems destined to become a permanently recurring theme, as a similar prediction made this list last year too. Last year it was about Erdoğan realizing that his interests should override his harsh rhetoric on Israel, and this year it was about Erdoğan realizing that his interests should override his harsh stance toward the Gezi protestors. In trying to figure out how Gezi was going to resolve itself, I wrote on June 7, “Erdoğan does not want to back down, but my instincts tell me that as he is reminded of just how much his popularity depends on the economy and as he faces the prospect of losing the bid for the 2020 Turkish Olympics, he will try to come up with some sort of solution to end the chaos in the streets without having to go so far as to issue a formal full-blown apology. The fact that there is no opposition party poised to take advantage of the situation makes backing down slightly easier for him to do, and even Erdoğan understands just how crucial it is for his and his party’s longterm political future to make sure the Turkish economy keeps humming along. Only the prospect of serious economic damage will get him to back down, since giving in to the protestors in any way is completely anathema to his general philosophy and outlook. How long it will take for him to get to this point is way beyond my prognostication skills, but I’d be surprised if he doesn’t get there at one point or another.”
Oops. Erdoğan did not ease up on his rhetoric in any measurable way, and he in fact actually became increasingly harsher and waited for the protests’ momentum to peter out over time, which it did. Eleven days after my prediction, I was forced to write another post dealing with Erdoğan’s even more over-the-top responses to Gezi, as the prospect of economic losses clearly had not moved him. It’s worth remembering now as the corruption scandal is raging around him, since unlike last year, this time I really have learned my lesson. The only way Erdoğan is backing down this time, economic crisis be damned, is if his party forces him to do so by default in replacing him.
Bibi’s position in Likud: I don’t know why I am so insistent on this point, but every few months I seem to write a post predicting trouble on the horizon for Netanyahu within Likud to the point that he will be split the party or be ousted. While I am going to stubbornly insist that events will at some point vindicate my point of view, they haven’t yet. On June 27 in a post called “The Likud Bell Is Tolling For Bibi” I ran through some of Netanyahu’s recent troubles and then denigrated an op-ed my Mati Tuchfeld in which he predicted that Netanyahu could retake the party pretty much any time he wanted. I wrote, “I think this is a bad misreading of the situation that does not take into account just how much things have changed. Likud members used to venerate their prime minister, but at last year’s Likud convention, Netanyahu was being disparaged left and right in a way that had never occurred before. In addition, much like the younger generation of Congressional Republicans here, folks like Danon have little desire to stand on tradition and do not venerate Netanyahu, and are not going to “fall at his feet” just because he wishes it….There is a new coterie of deputy ministers and up and coming backbenchers who not only do not like or trust Netanyahu, they don’t feel as if they owe him anything. He did not mentor them and they got to where they are now via the Likud primary, which Netanyahu now wants to get rid of, and so they are not going to back him just because he asks. And unlike a year ago, they are no longer revolutionaries and they speak for a larger percentage of the party.”
While my assessment of the dynamic was correct, my assessment of Netanyahu’s grip on the party and power to influence outcomes was not. Earlier this month, three proposed Likud constitutional amendments whose aim was to weaken Netanyahu were withdrawn under pressure before they could even be brought up for a vote. It seems clear that the new deputy ministers do not like or trust Netanyahu a great deal, but it seems equally clear that Netanyahu is still very much in control of the party and is not going anywhere.
I’m sure there is more, and please feel free to point out any other things that I got egregiously or embarrassingly wrong this year. Here’s hoping to a great 2014.
This Is What A Panicked Erdoğan Looks Like
December 26, 2013 § 8 Comments
I said last week that I thought things were inevitably destined to get uglier, and it seems that uglier has arrived. The latest from the AKP-Gülen fallout is that over 500 Turkish police officials and officers have been sacked, investigations have been launched into Prime Minister Erdoğan’s sons Bilal and Bürak along with the newly government-appointed Istanbul police chief, the chief prosecutor in the corruption case has publicly claimed that the government is obstructing his case by ordering the police not to arrest suspects and not to implement judicial decrees, and, in the biggest sign of just how much things have gone off the rails, Erdoğan last night replaced ten cabinet members at once. There is now no question left that this is the biggest crisis by far of the AKP’s time in power and that it overshadows Gezi by orders of magnitude.
If anyone still harbors any doubts that this is an AKP-Gülen fight, those doubts can be put to rest. After the initial arrests and announcements of corruption probes, Erdoğan purposely went after one of the Gülenists’ strongholds in replacing high-ranking police officials wholesale. What is now happening is a showdown between prosecutors, who are still largely Gülenist, and newly appointed police who refuse to carry out the prosecutors’ orders. Any semblance of impartiality and rule of law on either side has been completely thrown out, and Turkish institutions are being harmed in ways that will take years to overcome. When the courts and the police are being used to further nakedly political agendas, it is the first and easiest sign that Turkish democracy is as hollow as it has been since the military was openly running things. How this is going to eventually be sorted out I have no idea, but at this point neither side appears willing to back down and each day brings a new escalation.
Were this the only element to this, I’d put my money on Erdoğan emerging from this bloodied but still standing. However, the earth shattering cabinet shuffle, how it was done, and how Erdoğan assembled his new cabinet lead me to believe that the prime minister is in very serious trouble. In fact, this is the first time it has ever crossed my mind that his tenure as PM is legitimately in danger. First there is the fact that in the span of just a couple of days, Erdoğan went from denouncing any and all allegations of wrongdoing as a foreign plot to accepting the resignations of the three ministers he had been defending so wholeheartedly. Of the three, his closest ally was Erdoğan Bayraktar, who on his way out revealed that he was not resigning of his own free will but had been fired, and – this one is the real shocker – threw Erdoğan under the bus by alleging that any corruption in construction deals had been signed off on by Erdoğan and called on him to resign. For those of you who do not follow Turkey as obsessively as others, high level AKP officials simply do not publicly challenge Erdoğan like that. To put this in context, deputy PM Bülent Arınç made front-page headlines last month when he criticized Erdoğan’s stance on mixed-sex university housing and said that there was a contradiction between his own statements on the issue as the official government spokesman and the PM’s position. That was about the harshest public disagreement I can ever recall seeing between Erdoğan and one of his cabinet members or inner circle. Now, one of his closest cabinet allies has called on him to resign and implicitly accused him of wrongdoing. In addition, the previous interior minister, Idris Şahin, resigned from the party over the police purge and after accusing Erdoğan of allowing a small oligarchy to run the party. While this might be sour grapes due to his being replaced in the last cabinet shuffle earlier this year, it is still another crack in what up until now has been an impenetrable dam. Bayraktar made his comments during a live interview on NTV, which tried to cut him off and then later edited the interview clip on its website and during subsequent airings on television so that Bayraktar’s comments about Erdoğan were absent. That Turkish cabinet ministers now have to be censored because of comments they have made about the prime minister, and particularly when it is a minister known to be close to him, is one sign that the AKP is right now floundering around without much of an idea how to right itself.
Another sign is that it wasn’t just the three ministers whose sons have been implication in corruption who were shown the door. Egemen Bağış, who was EU Affairs minister and who is one of Erdoğan’s closest confidantes and attack dogs, and who often provides a window through his comments into what the prime minister is actually thinking, was removed as well, which to me is the most illuminating part of this entire episode. There have been rumors floating around about Bağış’s role in the scandal and about videotapes of him accepting seven figure bribes, but jettisoning him under pressure is still a remarkable move given his proximity to the prime minister. Furthermore, the new cabinet ministers are only going to make the AKP’s political problem worse, because instead of appointing people who might be more conciliatory, Erdoğan appears to have doubled down in appointing close allies with not much political experience and who are known hardliners. As a representative example, new Interior Minister Efkan Ala is not a member of parliament but is rather one of Erdoğan’s political aides, and reportedly urged Erdoğan to crack down harder on Gezi protestors this summer, calling the Istanbul chief of police to cajole him to use greater force. This is the guy who is now going to be in charge of Turkish domestic security and dealing with unrest, which signals to me that Erdoğan is in full panic mode and not thinking clearly. Once the public becomes more involved in this ongoing saga, things are going to get even worse, and I fear that what we have seen so far is just the warmup act to much more unpleasantness ahead.
All the while, Erdoğan’s comments and the comments of those around him increasingly beggar belief. Whether it is veiled threats to expel the U.S. ambassador, the by now rote accusations of U.S. and Israeli perfidy, the denunciation of foreign plots, Erdoğan’s claiming that photos of ministers accepting bags from businessmen implicated in the corruption scandal could be bags of books or chocolate rather than money (yes, he really said both of those things), Ahmet Davutoğlu’s tired refrain that this is all resulting from the jealousy of unnamed foreign countries determined to keep the new Turkey down…does any of this sound like it is coming from a government that has things under control? Let’s also keep in mind that this is all going down before large-scale or widespread public protests have broken out, and if Erdoğan already felt so much pressure that he was backed into turning over his cabinet in the middle of the night, just think about what will happen once real mass public pressure begins to bubble up. The AKP is shockingly off-message and has gone into full-blown populism mode, but with everything that has gone on and the implicit acknowledgement with the cabinet shuffle that all is not right, I think that Erdoğan might actually have suffered a fatal political wound. If the AKP does worse than expected in the local elections in March, which is a very likely possibility, it seems to me that Erdoğan’s aura of invincibility and stranglehold on his party will be permanently broken. Once that happens the long knives are bound to come out, and with the perfectly acceptable alternative of Abdullah Gül waiting in the wings, Erdoğan’s tenure as the sun around which Turkish politics revolves (to quote my friend Steven Cook) may be done. While I have learned enough to know that Erdoğan should never, ever be counted out or underestimated, we may have finally arrived at the exception to this longstanding rule of Turkish politics.
Graft, Gülen, and the Future of the AKP
December 17, 2013 § 10 Comments
For months now there has been open war between the AKP and its erstwhile allies in the Gülen movement. The feuding can be traced back to an overzealous Gülenist prosecutor’s attempt to interrogate Turkish intelligence chief Hakan Fidan, and things have spiraled downward from there, with Gülenist media outlets such as Zaman now routinely slamming the prime minister and government officials making shadowy threats about the Gülen movement having to be put down. When the government announced a couple of months ago that it was going to shut down the largely Gülen-run prep schools called dershanes, things began to get really nasty, and despite Tayyip Erdoğan’s eventual partial walk back, in which he announced that nothing would be done about the dershanes until September 2015, this was an effort to strike directly at the Gülenists’ livelihood, which they could not simply ignore. The aftermath of the dershane fight saw all sorts of uncomfortable leaks about the government, including the revelation – that the government did not deny – that back in 2004, the Turkish National Security Council had issued a directive (signed by Erdoğan and Abdullah Gül) that plans should be made to counter and block the Gülen movement. While deputy PM Bülen Arınç and others immediately claimed that the directive was only advisory and was never implemented, the damage was done and the fighting between the top layers of the AKP and the Gülenists was fated to keep on escalating.
That brings us to today, when Turkish police arrested nearly 50 people at Halkbank, including the sons of two cabinet ministers, over corruption allegations in the government tender process. Halkbank has long been reputed to be actively involved in evading U.S. sanction on Iran, and indeed is the bank that processes Turkish payments for Iranian oil and gas, so it is highly likely that this probe is not based on fictitious charges. Nevertheless, it does not escape notice that the Turkish police and judiciary are dominated by Gülenists, and that the Istanbul prosecutor’s office has now arrested a number of people who are prominently connected to the government. Given the timing involved, this does not seem like a mere coincidence. I’ll also note that this fight has been taking place on the margins for awhile (in June 2012 I speculated that a split was coming, and I think that my hunch about who had tapped the PM’s office was likely correct in light of recent events).
Parsing what exactly is going on here is difficult, but I’ll take a stab at it nonetheless. The first big mystery is why Erdoğan decided to take a conflict that had been going along at a barely perceptible simmer and turn it into a huge conflagration with his aborted move against the dershanes. My hunch is that after three national elections in which each subsequent margin of victory was larger than the previous one, Erdoğan decided it was time to flex his muscles and show the Gülenists – who are in many ways natural rivals given their own Islamic, conservative backgrounds and tendencies – who was boss. In doing so, Erdoğan made a mistaken political calculation to rival the mistake he made in his approach to Gezi. If you need proof of this, think about how the conversation a few months ago was about who Erdoğan was going to install as a puppet PM after he assumes the presidency, and now it’s about whether he will be able to control his own party. Because Erdoğan never admits wrongdoing and loathes backing down, this feud was destined to get worse, and my bet is that it will get even worse still. Erdoğan is not going to crawl into a corner and lick his wounds, and I’d bet my last Turkish lira that the fallout from this will get uglier yet. As of this writing, Erdoğan is putting together a board that will have the power to fire prosecutors, which is a direct shot across the bow at the Gülenists.
The second big mystery is what the Gülenists hope to get out of this. There are some who think that the electoral alliance between the AKP and the Gülen movement is now over, but I’m not so quick to declare this marriage completely spent. I don’t see that the Gülenists have anywhere else to go; are socially conservative, religiously pious, pro-growth voters suddenly going to abandon the socially conservative, religiously pious, pro-growth party and vote for CHP? The same CHP that in public and in private denigrates religious voters, or that is so closely associated with the institution – the military – that is the Gülen movement’s biggest foe? I find it very difficult to see a situation in which that is a long term or even sustainable short term political solution for Gülen adherents. I think what is going on here is a struggle to take over the AKP rather than cast it aside now that the Gülenists are feeling personally threatened by past and present government decisions. Based on what I observe, the calculation seems to be to weaken the party ahead of municipal elections in March to the point where some important posts, such as the Istanbul mayoralty, are lost, and make the AKP higher ups realize that they risk losing a great deal if they so blithely cast the Gülenists aside. At the same time, the Gülenists seem to want to do whatever they can to destroy AKP officials or keep them under their thumb, which explains the rumors flying around now about AKP ministers on tape accepting 7 figure bribes and the Halkbank prosecutions. I don’t think the intention here is to break away from the AKP, but to more thoroughly control the AKP.
The great danger in all of this, of course, is that once things get too far out of hand, there is no going back. The Gülen movement may want to show how valuable/powerful they are in an effort to control the party, but the law of unintended consequences always rears its head and may end up blowing up the party instead. Similarly, Erdoğan may want to put the Gülen movement in what he views as its proper place while keeping them in the fold, and instead could prompt his own downfall. There is just no telling where all of this will lead, and neither party seems to want to back down or deescalate in any way. Both the AKP and the Cemaat may have a final aim in mind and think they know how to get there, but the environment right now is amazingly combustible and volatile. Each side is playing a very dangerous game of chicken, and anyone who claims to know precisely how this will end is much wiser than I. But stay tuned, because this is a battle of epic proportions whose chaos has the potential to overwhelm everything else taking place in Turkey.
