Judicial Independence and Democracy in Turkey

July 12, 2010

Three years ago, when the Justice and Development Party (AKP) won the July 2007 early elections in a landslide victory and firmly consolidated its hold on power, the country appeared ready for a new and more democratic constitution — one that would finally replace the 1982 document written under military rule.

What emerged shortly after the elections was not a new constitution but a major political crisis. Unable to establish a parliamentary consensus, Prime Minister Recep Tayyip Erdoğan opted for a minor constitutional reform package that lifted the headscarf ban in Turkish public universities. This amendment ended up almost costing the closure of the AKP on the grounds that it followed an Islamist agenda. As we all remember, after months of political paralysis, the AKP and Erdoğan survived by a whisker. The Constitutional Court narrowly decided not to ban the party. Yet, the AKP was found guilty of nurturing an Islamist agenda.

All hopes for constitutional change vanished, and a bitter power struggle between pro and anti-AKP camps began. The country became increasingly polarized, particularly in the framework of the Ergenekon case — an investigation that led to the arrest of dozens of retired and active duty military officers, as well as dozens of secularist activists, on charges of plotting multiple coup attempts. Today, as Turkey approaches a crucial referendum for new amendments to the Constitution, the political stakes are once again very high. In essence, what the governing party is proposing is a major reform that would overhaul the judiciary by opening up the way judges are appointed and expanding its membership. The most controversial proposals relate to changing the composition of the highest court and overhauling the board that chooses senior judges and prosecutors. The AKP and proponents of these constitutional changes argue that the newly proposed judicial reforms are a step in the right direction for Turkish democracy, particularly in terms of ending a system of judiciary tutelage over elected governments.

Not surprisingly, the opposition maintains a quite different view. They see these reforms as steps that would seriously undermine the independence of the judiciary. Their position is quite predictable since they are primarily concerned about Islamization and the authoritarian tendencies of the government. This is particularly the position of the Republican People’s Party (CHP), the main opposition force in the Turkish Parliament. The CHP considers the Ergenekon case as a pro-AKP judicial plot to silence all the secularist critics of the government in order to establish an Islamist and authoritarian state. Kemal Kılıçdaroğlu, the new leader of the CHP, considers the judicial reform package as the AKP’s attempt to pack the courts with its supporters, and he is determined to campaign against the reforms.

Polls suggest that the referendum will secure a majority in favor of the AKP and the constitutional amendments it is proposing. Even those who have concerns about the independence of the judiciary are likely to support uncontroversial changes such as safeguards to data protection and civil servants’ collective bargaining rights. Similarly, the majority of voters support a provision curtailing the powers of military courts.

Is the CHP right to be concerned about the independence of the judiciary? The short answer is that the judiciary was never really independent in Turkey. After all, the Turkish Constitution and the Turkish political system have an official ideology: Kemalism. Whenever democratically elected governments clashed with the ill-defined and amorphous Kemalist principles of secularism and national unity, they have been closed by the Constitutional Court. It is therefore disingenuous to argue that these reforms will curtail judicial independence. The more legitimate question is whether a particular type of judicial authoritarianism will be replaced by another political type of pro-AKP authoritarianism. Some of the AKP policies against the press have given ammunition to those who argue that the current government’s agenda is far from being fully liberal and democratic. Yet, at the end of the day, politics and elections are often about choosing between imperfect options. The AKP may not be a genuinely liberal and democratic party. Given the alternatives, however, Prime Minister Erdoğan’s party is still the only “agent of change” among Turkey’s political parties. Sadly, Turkey lacks a better alternative. The current situation is once again a stark reminder that Turkey’s liberal democrats have no option other than the AKP for democratization in the country.