Hintergrund: Trkei

Nr. 9 / 06. Mrz 2014

Turkey: The Rule of Law under Threat

Charlene Rossler Turkeys formerly promising future path as a rapidly developing country and regional model of democratic reform is hanging by a hair for the sake of the governments increasing disrespect for the rule of law in terms of major interferences into the judiciary and the security apparatus, as well as in the media, in response to serious allegations of corruption.

A Nation Whose Judicial Power Is Not Independent Cannot Be Accepted As A State (Mustafa Kemal Atatrk) Allegations of corruption and accusations of plotting The rule of law is a system in which no one, including government, is above the law; where laws protect fundamental rights; and where justice is accessible to all (worldjusticeproject). This principle, which is deemed by political scientists as the corner-stone of a functioning democracy, is currently among the topics constituting a fervent debate in Turkey and beyond, particularly regarding its future direction. The larger debate about Turkeys increasing democratic deficits, amid a number of important steps enhancing the countrys democratic consolidation within the framework of the Helsinki Process and the Copenhagen Criteria, started in recent years sparked by the ruling AK Partys increasingly a uthoritative stance on socially divisive issues as well as the suppression of critical voices in the interest of the government. Political polarization and resistance reached its peak during the crackdown on the Gezi Park protests last summer; while the end of the year brought forth a series of events challenging the governments credibility and legitimacy from yet another angle. A court-ordered graft probe launched on December 17 that included the detainment of a number of people with close ties to certain state officials, and upon which a chain of related occurrences unfolded, triggered a rather regressive and controversial course of action taken on by the AKP and Prime Minister Erdoan. Corruption scandals, armament shipments, intelligence leaks and subsequent inte rHintergrund: Trkei Nr. 9 / Mrz 2014 |1

ferences into the judiciary and the national security apparatus in the form of on-going mass purges heated the debate on Turkeys future political path anew. Weighing the states democratic gains against its losses, particularly the recent infringements on judicial independence, analysts are even speaking of a crisis of state. About ninety people have been arrested during the two waves of the graft investigation in late December; among them the sons of three government ministers who subsequently resigned, and the general manager of the state-run Halk Bank. The ruling partys response was an immediate government reshuffle; the Prime Minister assigned ten new ministers to posts in his administration, whereas he responded to the corruption allegations by dismissing or removing about seventy police officers, including the Chief of the Istanbul Police force. The newly appointed Chief, a former governor with no police career, firstly initiated a nationwide prohibition of journalists access to police stations, which was deemed illegal by court decision. Furthe rmore, the second anti-corruption wave issued on December 25 failed due to the polices refusal to conduct searches and arrests upon court order; the leading prosecutor was taken off the case. In a familiar enemy-of-the-state rhetoric, the government accused outside alliances of plotting against Turkey, of staging a judicial coup aiming at shaking the countrys political and economic stability and strength. The continuously aggressive-defensive statements by the Prime Minister most likely conceal direct reference to the socio-political Islamic Hizmet or Cemaat movement, a former ally to the AKP, that holds influence in state institutions such as the police and the judiciary. As opposed to the first graft probe, where e.g. large amounts of money were found stacked in shoe boxes at the house of one of the accused, the government has no hard evidence or convincing, solid arguments for supporting its claims of being victim to plotters. Nonetheless, it seeks to cleanse the states institutions from those officials involved in investigating the corruption allegations while framing these actions in terms of uprooting a parallel state structure. Since December 17, about 7,000 police officials and more than one-hundred judges and prosecutors were dismissed or relocated to different and mostly smaller cities, or assigned to less influential posts. Draft bill and mass purges impeaching the constitution and its 2010 public referendum The governments growing pressure on the security apparatus and its negligence of the judiciarys autonomous legal authority to execute investigative operations upon probable cause has been visible throughout the past months on several occasions, raising serious doubts over the effectiveness of these bodies in their functions as balancing and protective powers; hence, questioning the role of the judicial process, the nature of the state, and the importance of constitutionalism in Turkey. The independence of the judiciary in particular has recently been jeopardized by the countrys ruling eli tes, most clearly discernible in the AKPs proposal to restructure the Supreme Board of Judges and Pros ecutors (the HSYK). This draft bill suggests to strongly increasing the Justice Ministers powers, as for instance concerning legal discipline and the appointment of judges and prosecutors. The bill has been rejected by the political opposition and criticized by the European Union for being unconstitutional, as the fifty-six articles contained therein aim, for the most part, at diminishing the constitutional guarantee of relative autonomy of the Board. In addition to the attempt of changing rules and regulations in favour of the executive branch, the Erdogan administration is repeatedly exerting pressure on members of the media, the police, and the judiciary who are involved in investigating offenses such as money laundering, fraud, accepting bribes, securing construction permits for protected areas, or searching trucks allegedly carrying weapons from Turkey to civil-war torn neighbour Syria. What raises suspicion is that the government appears to protect the accused by punishing those who intend to, by legal means, launch an inquiry into
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the truth behind the accusations. To name a few examples, the MIT (National Intelligence Organization) refused the inspection of a truck in the city of Van that was inducted by the state attorney upon receiving a tip-off; the governor ordered the police to retreat. In Hatay Province as well as in Adana, located close to the Syrian border, artillery-loaded busses were stopped and scanned as a result of the prosecutors warrants. Adanas local governor ordered the security forces to stop, the prosecutor was reassigned elsewhere, and the officers conducting the operation in Hatay were removed from their posts. Furthermore, court orders to examine allegations of bribery concerning highly ranked officials at the Izmir Port were ignored by the police force, marking yet another intervention by the executive that challenges judicial autonomy and the law. Regarding the AKPs direct confrontation to Turkish law, or more specifically the constitution, in form of the highly disputed HSYK Bill, has been approved by Parliaments Justice Commission, but the draft has partly been frozen after the first twenty-two of its fifty-six articles. While this could be considered a positive outcome, it must be noted that those remaining articles of the draft bill which have been adopted by Parliament imply the restructuring of the Turkish Justice Academy according to the plan the entire bill is aiming at - the subordination to the Minister of Justice who is representative of the executive branch. In spite of strong criticism from the opposition and the EU, the AK Party recently decided to reintroduce the HSYK-Bill to Parliament, which approved it on February 15. It is currently awaiting the final decision of the Constitutional Court, to whom the main opposition Republican Peoples Party appealed for the third time on March 3, following President Abdullah Gls signing of the bill into legislation on February 26. As a result, 600 members of the Board had to give up their posts as Justice Minister Bekir Bozda immediately appointed new affiliates to these positions; the top leading class of the Justice Academy has also been removed, and all decrees and resolutions enacted by the HSYK over the past four years were annulled. The balancing power of the judicial branch of government has thus been diminished; the principle of the separation of powers is also heavily threatened by the adoption of the bill. These developments, in combination with the above mentioned actions impeding judicial independence and impartiality in favour of a power-battle over controlling state institutions in the midst of major corruption scandals reaching up to highly-ranked officials, indicate a rather self-serving approach to the rule of law by the Turkish governing elites. In the Republic of Turkey, like in other states formally governed by the rule of law, the governments institutions are split into three power divisions: the legislative (the Turkish Grand National Assembly), the executive (the President and the Council of Ministers), and the judicial branch (independent courts). This formal requirement termed the separation of powers, which emphasizes the independence and impartiality of the judiciary including the judicial review of state actions, seems to be at stake when looking at current developments on Turkeys political scene. The latter part, namely a courts authority to examine an executive or legislaIstanbul / Copyright: Annette Fleck tive act and to invalidate that act if it is contrary to constitutional principles, has been constantly hazarded since the first graft probe by actions subordinating the law to subjective elements such as power and will.

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No branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law (legal-dictionary). In other words, as an approach to wielding power, constancy to the rule of law in combination with accountability and curbing corruption can be understood as good governance within the schema of modern democratic states. In the case of Turkey, there have been several long-standing shortcomings in this regard. Most of these deficits are the result of a tradition of military coups which in turn brought forth a specific political culture protecting the state, supplemented by legal measures to facilitate this priority. The current constitution, a remnant of the last military take-over of 1982, has thus been widely condemned by local groups and international actors. The European Union in particular has been pushing the Turkish government within the framework of the accession process to change the highly defective laws contained therein. The government eventually decided for a constitutional amendment in a referendum in September 2010 that produced significant changes in support of Turkeys democratic consolidation. The structure of the HSYK was henceforth amended to ensure independent representatives and neutrals would deliver justice while reflecting the complexion of the broader judicial community and Turkish society at large; to gain a more pluralistic make-up. Nonetheless, the EU Progress Report of 2013 criticized a lack of objectivity in the jurisdictional process, and stressed the need to bolster institutional mechanisms against corruption by pointing out that members of Parliament and other officials still enjoy excessive immunities in this regard. Since reform programs need to be mindful of the respective national political culture they are built upon, the current backlash of the Turkish government in terms of trying to undo the above mentioned changes fits into the pattern of protecting the state and its ruling elites at the expense of democratic principles such as the separation of powers, the impartiality of the judiciary, procedural and legal transparency, accountability, avoidance of arbitrariness, and above all the supremacy of the rule of law. The latter in particular appears to be ignored by the government in its most basic aspect, which is not only ordinary individuals but also authorities conformity with formal legal rules. The more prosec utorial decisions are based on the personal discretion of a government official, the less they are based on law (legal-dictionary). Thus, the guarantee for the rule of law in practice is an institutionalized mechanism for checks and balances. Before the 2010 public referendum, crucial decisions related to the military were exempted from judicial review; the peoples vote succ eeded in disempowering the military apparatus by restructuring the top judicial board in line with European standards. In order to arrive at a more pluralistic structure, the members were thus elected by a community of 12,000 judges and prosecutors. This judicial reform led to greater democratic legitimacy by establishing an accountable and independent judiciary, whereas the AKPs draft bill appears to aim at reversing this achievement by drastically increasing the Justice Ministers influence on the HSYK. The proposal furthermore suggests to alternatively restructuring the board by having the parties in Parliament elect the candidates according to seats held, which was also rejected by the opposition for exposing the HSYK to political influence, especially due to the AKPs overwhelming majority of parliamentary seats. Moreover, the bill, as well as other actions by the government in relation to the corruption and smuggle investigations previously touched upon, is unconstitutional in terms of violation of Article 159 and thereby also violating Articles 138 and 139 of the Turkish constitution. Article 159 stipulates that the HSYK executes its duties and functions in accordance with the principles enshrined in Articles 138 and 139 - the independence of courts, which dictates that legislative and executive organs and the administration shall comply with court decisions; these organs and the administration shall neither alter them in any respect, nor delay their execution, and the security of tenure of judges a nd public prosecutors, meaning that judges and public prosecutors shall not be dismissed, or retired before the age prescribed by the constitution (Hellenic-resources-network). There are numerous examples from
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the past two months that show a clear breach of these laws on part of officials of the security force and the government. Among those are the previously mentioned refusals of the police or the MIT to follow gendarmerie tip-offs or allowing searches concerning illegal artillery transfers. These events were in turn either the result of a governors order contravening that of the public prosecutor, or r esulted in the removal of those who intended to comply with the latter. Obstructing the judicial process constitutes another blow to Turkeys historically flawed system Since 2005, following demands of the EU and civil society groups, the judicial police is obliged to take orders only from the prosecutor in charge and prohibited from reporting to others. An attempt by the AKP to establish that prosecutors must inform their superiors and thus dismiss this principle of investigative confidentiality a few days after the first graft probe was suspended by the Council of State for violating the rule of law. It should be noted here that the line of superiority leads up to the Prime Minister, who pursued this decree. However, the judicial police desisted court orders on several occasions, as for instance in mid-January timed raids as part of a bribery investigation in Istanbul. Moreover, the Justice Minister granted permission to launch an inquiry into three prosecutors involved in the operation. The leading prosecutors of the two anti-corruption operations of late December were also removed, while one-hundred-fifteen others were reassigned by Istanbuls new Chief Prosecutor, including the attorney investigating bribery allegations at the Istanbul Fire Department- an operation that was also hindered by the police. Immediately after the first graft probe the government appointed two new prosecutors to lead the investigation, thereby unrightfully intervening in the judicial process, since only those who initiated the operation obtain comprehensive knowledge and understanding of the details involved. In a similar manner, the Chief Public Prosecutor of Izmir was removed from his post after revealing to the public that he was urged by the Justice Ministrys Undersecretary to retract the courts decision to invest igate corruption, fraud, and tender-rigging accusations at the Izmir Port and State Railways from the police department. Interestingly, the bureaus most affected by the mass purges are those dealing with financial crimes, smuggling, organized crime or terrorism, and the officials thereby afflicted were usually assigned to less influential posts or moved from the main cities of Istanbul, Ankara and Izmir to smaller municipalities. This cleansing of state institutions in the form of relocating and dismissing an immense number of police personnel and public prosecutors in a very short time is highly questionable as these actions are not based on judicial judgements. Furthermore, in spite of the governments duty to investigate the graft allegations and other offenses thoroughly and impartially, the Prime Minister and his party are framing the corruption probes as a judicial coup- a plot targeting the prosperity and stability of the Turkish state. In a political climate of growing tension and polarization, the perpetuation of this familiar notion of enemies-to-the-state is far from being fruitful in bringing about results based on dialogue, moderation and reason. Moreover, Mr. Erdoans divisive rhetoric aims at convincing the remaining impressive number of AKP supporters among the population that the current rather undemocratic actions are essential to safeguarding Turkeys future stability. The governments tactics to divert from the corruption scandals, as well as the ways it is dealing with the corresponding procedures, fall short of crucial democratic tenets such as transparency and accountability. While holding the right to selfdefence, the party in power still has certain duties, and must exercise them by publicly obeying the law. In this respect it can be argued that the AKP contravened Article 285 of the Turkish Penal Code, which criminalizes the violation of confidentiality, and even more so Article 288: attempting to influence the impartiality of the judiciary. The mass purges in the security apparatus and the judiciary, in
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addition to continuous pressure on other regulatory agencies such as media outlets, firms, banks, and single individuals, constitute a major intervention in the judicial process and the entire criminal procedure on various levels. Not only is corruption antithetical to the rule of law, but allegations of bribery, fraud et al. ought to be controlled by the courts and the prosecutor in charge, especially when those are linked to the government. Furthermore, the attempt to subordinate the judiciary to the state and the profiling of civil servants, including about 2,000 senior officials, cannot be tolerated in a state of law and contravenes the 2010 constitutional referendum. Within the framework of a democratic institutional structure, the rule of law in practice entails the plural representation of different political and social groups in the constitutional bodies. Since the HSYKs structure was adjusted along more democratic lines by the constitutional amendment advanced by this government, the recent comparatively reactionary efforts to abrogate these changes by that very government question its commitment to Turkeys democratic consolidation and to the rule of law in general. The Council of Europe and the Venice Commission maintain doubts over the compatibility of the HSYK - amendments with the Turkish constitution and international standards on judicial procedures. When looking at the immense number of cases brought before the European Court of Human Rights against the Republic of Turkey since individuals could legally file complaints in 1987, a pattern is discernible in which the Turkish institutional structure of the judicial bodies and related laws and regulations habitually protect the state before the citizen. This reflex to safeguard the state is a clear remnant of a legacy of military coups and of the 1982 constitution; the difficulties of properly implementing the rule of law in Turkey are henceforth not of normative nature, but are the result of a tradition of ideology-driven elites in the states constitutional branches. Thus, it appears as if the AKP is taking up the paradigm of military tutelage of the Kemalist generals in terms of regarding the state as its property, while regarding itself as the guardian of the unity and stability of the Republic. Turkeys democratic progress in serious backlash Since the opening of accession negotiations with the EU in 2005, Turkeys tutelary regime of prioritizing the preservation of the state over that of its citizens, underwent a number of reforms that were vital in transforming the judiciary and other bodies in order for stronger adherence to the rule of law. However, analysts argue that these changes rather served as revisions within the system instead of altering the system at large. Furthermore, when looking at the political trend of the past three years, the EUs influence on effectively encouraging Turkeys democratic consolidation seems to be steadily declining. Still, the current state Protests in Istanbul against increasing censorship and obscure arrests / Copyright: Annette Fleck of political instability and economic uncertainty does not repress a growing energy and movement within Turkeys civil society, with a mus hrooming number of NGOs and the nation-wide anti-government demonstrations sparked by the Gezi Park protest. Nevertheless, this apparent commitment to democratic values and freedoms can be pitHintergrund: Trkei Nr. 9 / Mrz 2014 |6

ted against a possible loss of the notion of justice among the Turkish citizenry on the other hand. The governments most recent step in (digital) media censorship, by means of a newly adopted law that permits its Telecommunications Directorate to ban websites without court consent and grants authorities access to internet users two-year-browsing-history records when demanded, only contributes to a declining belief in and reality of being able to exercise civil democratic rights. The curbing of free access to information in favour of a government-friendly media landscape is not compatible with international human rights standards; the new legislation has been strongly criticized by the EU. Before the AKP came to power in 2001 the Turkish state was in a situation of crisis akin to that of today. However, the current loss of its democratic gains, the increasing polarization of society, and the return of coup attempts on the states radar makes the latter more worrisome. If there really is a plot against the incumbent government by an organization, it should be revealed via legal and legitimate procedures in order to promote the supremacy of law. The reactionary activities of the government that either halt or hinder the judicial process constraining corruption, and the hasty and ambiguous draft bill now granting the Justice and hence also the Prime Minister control over the Justice Academy, in turn exposing the justice system to political influence, does not only undermine public trust but also renders law enforcement agencies and the judiciary dysfunctional. Neither can the disproportional power-balance among state institutions be considered legitimate. Upholding the rule of law in practice requires a liberal democratic approach that avoids arbitrariness, and adheres to procedural as well as legal transparency and accountability, including the effective judicial monitoring of the state and government actions. Charlene Rossler is a political scientist and currently an intern at the Turkey project of the Friedrich Naumann Foundation in Istanbul.

Impressum Friedrich-Naumann-Stiftung fr die Freiheit (FNF) Bereich Internationale Politik Referat fr Querschnittsaufgaben Karl-Marx-Strae 2 D-14482 Potsdam

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