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).
Guest Post: The Abysmal State Of Turkish Justice
January 31, 2013 § Leave a comment
Today’s post comes to you courtesy of Nick Danforth. Nick is a fellow Georgetowner and is a Ph.D. candidate in history currently spending his time in Turkey’s archives and writing his dissertation on national identity, democratization and U.S. foreign policy in Turkey in the 1940s and 1950s. Nick also occasionally writes about current Turkish politics, and is the proprietor of a geekily awesome new blog about Ottoman/Turkish/Middle East cartography called The Afternoon Map. If you have any interest at all in maps, go check it out. Nick’s post details the ways in which ideological polarization and using undemocratic means to pursue allegedly democratic ends has made for a hollow sense of justice in Turkey, and I think it is particularly timely given that these are the very same two issues currently tearing Egypt apart. Given the problems that Turkey faces on these fronts, it does not instill a sense of optimism for what lies ahead for the Arab world’s most populous country. But now for the topic at hand, which is Turkey, the AKP, and the courts:
Standing outside in the cold Istanbul rain on the 19th to commemorate Hrant Dink’s death – with a sign saying “For Hrant, For Justice” in Kurdish – it seemed like as good an opportunity as any to meditate on the frustrating contradictions of Turkish democracy.
For the uninitiated, Hrant Dink was a Turkish-Armenian journalist and champion of Armenian rights who was assassinated in 2007. After originally being content to charge Dink’s 17-year old shooter with acting alone, prosecutors recently decided that there was enough evidence to link Dink’s murder to a broader conspiracy. As with so much else related even peripherally to the sprawling Ergenokon case, the substance of the charge is perfectly plausible, even long overdue, but much else about it is suspect. That the shadowy people behind the killing had some shadowy ties to some of the other shadowy Ergenekon figures is all too likely, but it also fits nicely with the AKP’s ongoing efforts to blame every crime Turkey on its political enemies. The government continues to insist, to take only one of the most striking examples, that the brutal murder of three Christian missionaries in southeastern Turkey some years ago was not the work of radical Islamists, but a false flag operation, designed to look like just the sort of crime radical Islamists might have committed.
More broadly, while a number of people have documented the increasing mess the Ergenokon investigation has become, one of the things that makes these prosecutions both insidious and effective is that every round of arrests has included at least several figures who were almost certainly involved in plotting to topple a democratically elected government – alongside all the others whose only crime was being a little too critical. Tellingly, it was in one of the last and most suspect rounds of Ergenekon-related arrests that the government finally nabbed former Admiral Özden Örnek, whose “coup diary” remained one of the soundest pieces of evidence in the whole case.
The recent Paris murders were yet another example of the fact that, for far too many people like Dink who have been killed for being the wrong religion, the wrong ethnicity, or the wrong political orientation, no court’s verdict will ever convince more than half the population in this politicized climate. While many Kurds blame the government and the government blames rival Kurdish factions, the French police have gone so far as to speculate that it might have been nothing more than a crime of passion. Over the years, columnist Ismet Berkan has been fond of pointing out that when any incriminating evidence against one’s ideological allies can be dismissed – often rightly – as propaganda or disinformation, everyone will continue to believe their own version of the truth whatever facts emerge. On Saturday it was striking how many people were waving signs accusing the AKP of complicity in covering up the murder. When Muammer Güler , Istanbul’s mayor at the time of Dink’s death, was recently appointed Interior Minister, Dink’s lawyer called it another drop in a sea of shame.
The problem is not that people are overly susceptible to conspiracy theories (though that doesn’t help). The problem is that with the Dink case, as with the PKK murders and Ergenekon, there clearly was a conspiracy of some sort, but the Turkish political system in its current form cannot satisfactorily unravel it. Until the government gives its citizens reason to have faith in the independence if the judiciary and the independence of the press, its investigations, no matter how sincere or successful they are in any particular case, won’t convince anyone.
There are moments in conversations with AKP supporters where it seems like they are troubled by the undemocratic means their party has adopted in handling the Ergenekon case and the way this has politicized the country. Yet at the same time, many suggest that these means are justified by the historic magnitude of the problems they are trying to resolve. That is to say, some false arrests are a small price to pay for finally freeing Turkey from the grip of military authoritarianism. Unfortunately, it seems a similar – understandable but ultimately self-defeating – rationale is likely to justify the government’s heavy handed approach to resolving the Kurdish issue.
Negotiations with PKK leader Abdullah Ocalan already have already produced one striking example of questionable means directed at admirable ends. After a prosecutor called the legality of these negotiations into question and demanded that Turkish Intelligence Chief Hakan Fidan testify about them in court, the parliament speedily passed a law, recently upheld by the Constitutional Court, saying that the Intelligence Chief could only be forced to testify with the express approval of the Prime Minister.
The whole issue offers the depressing sight of arbitrary executive power pitted against arbitrary prosecutorial power, with the intelligence service a little bit closer to regaining the immunity it enjoyed in the heyday of the deep state. Where we once all hoped the AKP would steer Turkey toward a more democratic future in something resembling a straight line, Turkey now seems at best to be tacking towards that destination like a sailboat, moving closer to it in one direction and further away in another.
More depressing is the growing realization that in the coming year, the AKP will use the power it has amassed by bullying and censoring the press in order to win support for a policy of ending official intolerance and forced assimilation of Kurds. And those challenging the government by highlighting these undemocratic means will likely not be progressive liberals but the MHP, alongside the more nationalist wing of the CHP. With tolerance and minority rights ranged against against press freedom and rule of law, justice for Dink and his fellow citizens seems more elusive than ever.
