The politicization of the turkish judicary and its threat to democracy
In today’s post, we hear commentary from Begum Burak, an independent researcher based in Istanbul, Turkey whose PhD thesis entitled “The Image of the Undesired Citizens in Turkey: A Comparative Critical Discourse Analysis of the Hürriyet and Zaman Newspapers” explores the effects of concentration and government influence in media on the democratic environment in Turkey. Below is her commentary, originally published in March in Global Village Space, on recent developments regarding the Turkish judicial system and its democratic backslide, especially in the context of the rise of Recep Tayyip Erdogan’s Justice and Development Party.
Politicization of judiciary-a threat to survival of democracy in Turkey?
Turkey has been witnessing rising authoritarianism especially in the aftermath of the transition to a presidential regime. Without a sufficient checks and balances system, it is not surprising to see that this transition paves the way for further authoritarianism. The compromise and cooperation culture and the rule of law principle required for democracy have been weakening constantly.
The 2017 constitutional referendum paved the way for the transition to a presidential system, and the 2018 elections were won by Recep Tayyip Erdoğan’s ruling Justice and Development Party. It is known that the referendum was held in a state of emergency. The results of the referendum were contested.
International election observers from the OSCE (Organization for Security and Co-operation in Europe) noted that the referendum had been contested. According to the head of OSCE’s Office for Democratic Institutions and Human Rights the referendum took place in a “political environment in which fundamental freedoms essential to a genuinely democratic process were curtailed under the state of emergency, and the two sides did not have equal opportunities to make their case to the voters.”
On the other hand, since the transition to the presidential regime in 2018, a de facto “one-man” rule has been evident in Turkey. It is known that such regimes empower autocracy and finally lose legitimacy.
This article is an attempt to address the problem of the politicization of the judiciary in Turkey. The judiciary branch has never been independent of the political authority in its ideal form however Turkey has never witnessed as many politically motivated court cases before as it witnesses today.
Power of legal institutions
The High Council of Judges and Public Prosecutors is one of Turkey’s most powerful legal institutions in Turkey. It is responsible for appointments, transfers, and suspensions of all judges and public prosecutors. The Constitutional Court is the highest legal actor which issues final rulings on any law.
The other high courts of Turkey are the Court of Appeals and the Council of State. The appointments made by the ruling Justice and Development Party government have served to undermine judiciary freedom.
The Switzerland-based International Commission of Jurists published a report titled “Turkey: the Judicial System in Peril” in 2016. According to that report, the expansion of executive control over the judiciary has become a big threat to human rights and rule of law.
In a similar vein, Turkish academic Ergun Özbudun (2015) in one of his articles titled “Turkey’s Judiciary and the Drift Toward Competitive Authoritarianism” stresses the constitution of a “dependent and cooperative judiciary” with the legal amendments that increased executive power over High Council of Judges and Public Prosecutors. This can be seen as a clear manifestation of the politicization of the judiciary system.
Political persecution in Turkey
When the judiciary system fails to uphold the principles that guarantee the rule of law, no citizen can be free from political persecution. Today, the Turkish politicized judiciary functions as a tool for punishing government critics and opponents particularly in academia, media and parliament.
A recent example of this is the arrest of the university student Beyza Buldağ. Beyza Buldağ has been arrested as part of the investigation launched into the protests against the rectorate appointment of Boğaziçi University.
After President Erdoğan appointed Prof. Melih Bulu, an academic outside Boğaziçi community, as the new rector of Boğaziçi University, the students and faculty members of the university have protested the appointment. Mass protests at the university campus and online demonstrations on Twitter have been continuing since the first days of the appointment.
Amid the protests, it has been alleged that Beyza Buldağ was administering the Twitter account of the “Boğaziçi Solidarity” platform which has recently addressed an open letter to President Recep Tayyip Erdoğan. Buldağ has been released after 4 days of arrest.
Democratic freedom and its obstacles
Turkey lacks a strong civil society, rule of law, academic freedom, media freedom and checks and balances mechanism. Turkish democracy has an illiberal structure.
The institutions such as the state of emergency commissions established to meet the needs of certain conditions like providing a fair and effective process in the review of emergency measures cannot adapt to democratic and lawful demands and this causes them to lose their function and legitimacy.
According to a report published by Council of Europe in 2019 there are rising concerns over the legacy of the emergency decrees in terms of access to justice and to an effective remedy, legal certainty and foreseeability.
Turkey has never hosted a fully liberal democratic regime so far due to a combination of diverse parameters. This combination has its roots in the top-down Kemalist modernization process stimulated by the complex mixture of historical, legal/constitutional, and economic dynamics.
Besides the parameters noted above, one of the major factors that block democratic processes is Turkey’s current constitution. This constitution is a product of the military regime that dominated the Turkish political scene between 1980 and 1983. Without making a brand new constitution the fall of democracy instilled in every sphere of political structure and institutions cannot be eliminated.
In previous days, President Recep Tayyip Erdoğan said that the time has come to discuss the drafting of a new and civilian constitution, however the opposition party leaders did not find this statement as a sincere one.
Today, there is a strong need to draft a new civilian constitution with the democratic deliberation held by a vast sector of different groups of society and different political actors, only this can lead to a healthy democracy which requires the establishment of an independent and free judiciary system in Turkey.