Turkey’s Constitutional Court elected Zühtü Arslan as its new chairman in February, replacing the outgoing Haşim Kılıç. With a master’s degree in human rights and civil freedoms and a doctorate in constitutional law, Arslan has taught courses on constitutional law, human rights, and state theories, and has worked for the European Court of Human Rights. Arslan is widely praised, including by some prominent conservative columnists for his record of defending liberal democratic values. Arslan’s loud criticisms of the Turkish military’s attempts to shut down the governing Justice and Development Party (known by its Turkish acronym AKP) in 2007, for example, are widely cited by many as a testament to his commitment to liberal democracy.
Arslan’s election comes during a time of growing concerns about the independence of Turkey’s judiciary and the future of the country’s democracy. Nearly a year ago, the government adopted controversial legislation that strengthened the Ministry of Justice’s hand over the High Council of Judges and Prosecutors, which deals with the appointment and promotion of judges and prosecutors. The High Council also functions as the Turkish legal system’s disciplinary body, and its members, when necessary, are judged by the Constitutional Court. The Court is Turkey’s highest judicial body, and has the authority, when called upon, to review the conformity of laws to the constitution. The Court also has the power to preside over impeachment cases against the president of the Republic and members of the Council of Ministers. The president of the Republic appoints, for 12-year terms, the 11 regular and four substitute members of the Court, who then elect a chairman and a deputy chairman from among themselves every four years by secret ballot and an absolute majority.
The Court’s current membership composition is largely a result of appointments made by Abdullah Gül, the former president and foreign minister of Turkey, and a co-founder of AKP. Although the Turkish Constitutional Court was established more than five decades ago to prevent the abuse of executive power and defend democracy, it has not always been loyal to this purpose. Following the military coup of 1980, the Court was frequently associated with rulings that shut down political parties and restricted freedoms in general. In the past decade, however, the Court became increasingly supportive of liberal democratic principles. Ironically, this advancement owes itself to the series of political reforms that were introduced during Recep Tayyip Erdoğan’s first term in office, when Turkey still espoused strong European Union membership aspirations.
Many interpreted last year’s controversial legislation as an effort on the part of Erdoğan, Turkey’s current president (and then the prime minister), to enhance government control over the judiciary by weakening the High Council’s independence. The move is also widely recognized to have been a response to the December 2013 graft scandal, an investigation that implicated a number of AKP cabinet members on charges of corruption. Erdoğan and his government argue that these indictments were fabricated within the Turkish police and judiciary by sympathizers of the Hizmet Movement, led by the prominent Turkish preacher Fetullah Gülen. The government accuses Gülenists of having created a “parallel state” with the intention of overthrowing the elected and legitimate government of Turkey. This line of thinking led the government to dismiss or reassign almost 200 judges in January alone, and purge a long list of police officers over the course of 2014 for their alleged links to the Gülen movement.
These developments have coincided with other democratic setbacks in Turkey. In recent years there have been increasing restrictions on freedom of expression, including the weakening independence of traditional media and temporary shutdowns of social media. Erdoğan also aims to transform Turkey from a parliamentary into a presidential system with strong executive powers. A shift away from the parliamentary system would severely compromise Turkey’s current separation of powers and could take Turkey down an increasingly authoritarian path. The retiring Constitutional Court chairman Kılıç has on several occasions openly criticized AKP for its increasing interference in the judiciary. Recently, on February 10, Kılıç warned politicians about the dangers of turning the judiciary into an “instrument of revenge” and said that Erdoğan’s government is undermining the judiciary’s independence. Such remarks have earned Kılıç accusations of being a coup-plotter and holding anti-Islamist views. Kılıç has not always been out of favor with AKP. In yet another irony, Kılıç was the Court’s chairman—and even cast the tiebreaker vote—in the 2008 ruling that rejected the indictment seeking to dissolve AKP for its “anti-secular activities.” Had the Court ruled in favor of the indictment, then Prime Minister Erdoğan, President Abdullah Gül and 70 other leading AKP members would have been banned from holding political office.
Like Kılıç, Arslan had also openly disapproved of the 2007 indictment to dissolve AKP. He was also among those who helped AKP in its attempts to draft a new civilian constitution in 2008, before Erdoğan revealed his majoritarian aspirations. At the time, Arslan had argued for changes to the preamble of the draft constitution to make it “much more liberal, and to emphasize the importance of individual rights and liberties and the rule of law.”
Arslan will be taking office as Turkey prepares to hold parliamentary elections in June. The elections’ outcome will shape the fate of Erdoğan’s constitutional vision for a presidential system. If AKP can secure more than 330 parliamentary seats (out of 550), Erdoğan will be able to make constitutional amendments that reflect his views of a strong executive, or even completely rewrite the Constitution and bring it to a referendum. If Erdoğan achieves his goal, the Court could be weakened in its raison d’être of holding the government accountable and protecting Turkey’s separation of powers.
Government accountability, checks and balances, and separation of powers are the principles Arslan believes in wholly and has worked to promote. It will thus be interesting to see how Arslan steps up to the bench. Will Arslan’s liberal convictions help defend the independence of the judiciary, and preserve the Court’s place in the Turkish political system as a check against the executive abuse of power? Arslan has repeatedly expressed his commitment to holding the law above politics. For this reason, his appointment may offer a safeguard against autocracy and could become a much-needed glimmer of hope for Turkish democracy.
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