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Turkey Rolling Back the 2010 Reforms?

–Oya Yegen, Boston University, Department of Political Science

Turkish judges and prosecutors cast their votes last week for the election of 10 regular and 6 substitute new members to the Supreme Board of Judges and Prosecutors (HSYK)[1]. The council’s new makeup has been the center of speculation. HSYK manages the Turkish judiciary and makes decisions regarding the appointment, promotion and expulsion of personnel within the judiciary and in total has 22 regular and 12 substitute members. It is quite unusual that the election process of such an institution is front and center.  In this post, I report on the expected new composition of HSYK, examine why Turkey witnessed such a contested election process, evaluate in retrospect how the 2010 constitutional amendments played out and examine the likelihood that the changes might be reversed in a future amendment.

The AKP Government and the HSYK Elections

The first and second rounds of elections concluded with disappointment for the AKP government[2]. In the first round, 3 regular and 3 substitute members were elected from the Court of Cassation on September 23 and in the second round 2 regular and 2 substitute members were elected from the Council of State on September 29. Despite intense lobbying including personal visits by the Minister of Justice to public prosecutors in Anatolian cities, fancy dinners and promises for overseas training opportunities, the right to purchase and bear arms as well as personnel record clearance and salary increases, the pro-government candidates did not get elected in the first and second round of elections for the high courts[3].

The AKP government’s disappointment (and panic) revealed itself with public statements on the impending October 12 elections. Prime Minister Davutoğlu suggested a “coup d’état in the judiciary” was in the works[4]; the parliamentary group deputy chairman Mahir Ünal stated that if a certain group, implying the followers of Gülen purported to be running a “parallel state,” were to win the elections they were ready to declare the results “illegitimate”[5] and Deputy Prime Minister Yalçın Akdoğan signaled that in such an event the government could opt for a national referendum to elect HSYK members[6]. Other ideas tossed around to circumvent the HSYK’s possible anti-AKP composition were to change the HSYK election law ahead of the polls and to amend the constitution based on the results of the October 12 elections.

However, in the October 12 elections candidates favored by the government or rather candidates that are not followers of Gülen movement[7] captured 8 out of 10 primary slots of the HSYK [8]. These eight new members running under a joint list do not just include conservatives that are predicted to be outright supporters of the government. Because nationalists, secularists and social democrats also ran and got elected under the same platform, it is likely that these members may be united in their opposition to Gülen movement’s strength in the judiciary but may have diverging opinions in other issues. In order for the government to have a compliant council, it needed to secure an additional five members [9].

HSYK: The Battleground between AKP Government and the Gülen Followers

A little background is necessary to decipher why there was such open interference in the HYSK elections. The AKP government believes that the graft investigation of December 2013 was an attempt by its ex-ally Gülen movement to topple it. The government alleges that through its followers in the state apparatus, mainly the police force and the judiciary, the followers of the self-exiled cleric Fethullah Gülen have instigated an operation tantamount to a coup [10]. Its immediate response was to purge hundreds of police officers. With respect to the judiciary, the main target of the government has been HSYK–the board responsible for appointing and overseeing the members of the judiciary. The government first considered passing a constitutional amendment to reshape the HSYK but lack of support in the parliament prompted it to withdraw the bill, forcing the alternative route of making amendments to the HSYK’s judicial legislation[11]. The proposed changes strengthened the executive’s influence over the body by providing greater control to Ministry of Justice and replaced the administrative staff of HSYK.[12] The Constitutional Court overturned the most problematic provisions of the bill [13]. In the summer of 2014, the government issued a decree, replacing approximately 2500 prosecutors and judges, including the deputy chief prosecutor in Ankara and a number of chief prosecutors across Anatolia[14].

Regretting the 2010 Constitutional Reform?

The 2010 amendments dramatically changed the structure and composition of the HSYK. Indeed, the changes with regard to composition of the Constitutional Court and the HSYK have been the primary focus of debate during the referendum campaign[15]. Those who vehemently opposed the amendment package did so because they understood the changes introduced to the judiciary as attempts by the majority party to capture the third branch of the government[16]. (There were nonetheless supporters of the amendments[17].)

The board had recently made a number of controversial decisions in order to suppress the activism of lower courts[18]. Thus, supporters of the changes to the composition of HSYK (such as Bâli (2012)) argued that by expanding the composition of the board, the amendments made it “more representative of the professional at all levels” (p. 303) and helped end the unelected guardianship pursued by the military and state bureaucracy, specifically the high-judiciary [19]. The previous composition of the board provided for a self-regulating system in which “a self-perpetuating oligarchy of judges applied ideological and other criteria to ensure that only like-minded members of the judiciary were promoted to senior positions” (Bâli 2012 , 304)[20]. It was argued that by direct election of judges and prosecutors, the board would become “more representative of Turkish society” (Bâli 2012, 299) and would only so far be representative of AKP [21].

The events since December 2013 from the start of the graft scandal are relevant. The HSYK elections in October 2010 following the amendments had been celebrated by some circles as ending the judicial tutelage and criticized by others as “court-packing” [22]. However, the open rift between the government and the HSYK reveal that it was not one or the other. Looking back at why the AKP chose to blatantly attack the judicial council by shuffling its members, expanding the executive control, and meddling in the election process show that the government is not pleased with the repercussions of the 2010 reforms. HSYK’s bold moves during the corruption scandal show that its directly elected members’ allegiance did not rest on the government. Fearing that a hostile HSYK can complicate matters for the government, the AKP had been pushing for a board willing to work in “harmony” with the executive body. The October 12 elections show that the government is content with the outcome [23].

More Amendments on the Horizon

What would have happened had the government-backed candidate failed to get elected to HSYK? President Erdoğan had hinted at alternative plans, including a referendum or another constitutional amendment. These options seem to be put aside for now, at least in the short term. However, the Minister of Justice Bekir Bozdağ, while expressing his pleasure following the HSYK results, also added that the current election system of HSYK was polarizing for the judiciary and the relevant article was in dire need of change. He described the 2010 amendment regarding HSYK’s composition was well-intentioned but susceptible to abuse. Thus, looking back at the intense debate surrounding the 2010 reforms, perhaps no one was right. The newly-composed the HSYK did not become an agent of the AKP nor did it represent a more pluralist body enhancing judicial independence.

No doubt disappointed with the turn of events, the government will most likely seek to once again reshape the HSYK’s composition and structure. However, it will have to wait for 2015 general elections for another constitutional amendment or possibly even constitutional replacement. In the meantime, if the AKP concludes that the HSYK is undermining its authority, the AKP will most likely pursue changes to the board’s legislation. But the Constitutional Court, another organ that was radically changed with the 2010 amendment, might block the AKP’s grasp for more power.

Suggested Citation: Oya Yegen, Turkey Rolling Back the 2010 Reforms?, Int’l J. Const. L. Blog, Oct. 24, 2014, available at: http://www.iconnectblog.com/2014/10/turkey-rolling-back-the-2010-reforms

[1] The elections were held on October 12. Seven primary and four alternate members were elected from justice courts and three primary and two substitute members were elected from the administrative courts. The composition is determined by Article 159 of the Turkish Constitution as amended in 2010 reforms; “The High Council of Judges and Prosecutors shall be composed of twenty-two regular and twelve substitute members; shall comprise three chambers. The President of the Council is the Minister of Justice. The Undersecretary to the Ministry of Justice shall be an ex-officio member of the Council. For a term of four years, four regular members of the Council, the qualities of whom are defined by law, shall be appointed by the President of the Republic from among members of the teaching staff in the field of law, and lawyers; three regular and three substitute members shall be appointed by the General Assembly of the High Court of Appeals from among members of the High Court of Appeals; two regular and two substitute members shall be appointed by the General Assembly of the Council of State from among members of the Council of State; one regular and one substitute member shall be appointed by the General Assembly of the Justice Academy of Turkey from among its members; seven regular and four substitute members shall be elected by civil judges and public prosecutors from among those who are first category judges and who have not lost the qualifications required for being a first category judge; three regular and two substitute members shall be elected by administrative judges and public prosecutors from among those who are first category judges and who have not lost the qualifications required for being a first category judge”.

[2] In the first round three regular and three substitute members were elected from the Court of Cassation on September 23 and in the second round two regular and two substitute members were elected from the Council of State on September 29.

[3] One member elected from the slot of the Court of Cassation is close to Gülen movement, one is considered a social democrat and the other is presumed to be a nationalist. One member elected from the slot of the Council of State is believed to be a follower of the to Gülen movement and the other member is considered to be a social democrat

[4] “’Yargıda darbe isteniyor’” Al Jazeera Turkey, October 3, 2014, http://www.aljazeera.com.tr/haber/yargida-darbe-isteniyor

[5] “AKP’li Mahir Ünal: HSYK’yı Cemaat kazanırsa seçimi gayrımeşru sayarız” http://haber.sol.org.tr/devlet-ve-siyaset/akpli-mahir-unal-hsykyi-cemaat-kazanirsa-secimi-gayrimesru-sayariz-haberi-97698

[6] “’Hükümet HSYK seçimlerinde istediği sonucu alamazsa referanduma gidecek’”http://t24.com.tr/haber/hukumet-hsyk-secimlerinde-istedigi-sonucu-alamazsa-referanduma-gidecek,271777

[7] A group of candidates favored by the government ran under Unity in Justice Platform (YBP), while those purported to be the candidate of “parallel state” ran as independents. The independents won two seats. However the members elected under YBP are not all outright pro-AKP. United under YBP list, conservatives, social democrats, nationalists formed an alliance against “parallel state” candidates. See, Saymaz, Ismail “HSYK seçimlerini ülkücüler mi kazandı? http://www.radikal.com.tr/turkiye/hsyk_secimlerini_ulkuculer_mi_kazandi-1218626

[8] Candidates from the Judges and Prosecutors Association (YARSAV) and the jurist Union (Yargıçlar Sendikası), representing the secularist and social-democrats ran under a joint list but did not get elected. However those close to YARSAV, including one of its founders ran under the YBP list and got elected. The elections show that secular and Kemalist judges and prosecutors who usually support YARSAV chose to instead give their supporter the like-minded candidates running under the YBP list.

[9] The HSYK has 22 members in total. Four of these are appointed by the President; the Minister of Justice and his undersecretary serve as ex-officio members and one member is elected by the Justice Academy, which is responsible for training justices and prosecutors and the Minister of Justice exerts control over the institution. The quota for decision-making is a simple majority of 12 members.

[10] “Turkish graft scandal deepens with more arrests, police dismissals” http://www.reuters.com/article/2014/01/07/us-turkey-corruption-idUSBREA0607420140107

[11] The bill passed on February 15 and entered into force on February 26, 2014.

[12] Dismissal included the secretary general and deputy secretary generals, chairman, vice chairmen, inspectors, investigating judges and the administrative staff of the council inspectors. The justice minister assigned new personnel and the law prohibited the dismissed staff from seeking legal redress. The Minister of Justice was provided with greater powers such as the authority to oversee the composition of HSYK’s three chambers and initiate disciplinary procedures for its members.

[13] The Republican People’s Party, the main opposition party had filed an appeal and the Court gave its ruling on April 11, 2014. The ruling did not have a retroactive effect, the dismissed personnel did not recover their posts.

[14] Another controversial act was the decision of the Minister of Justice (also the chair of HSYK) Bekir Bozdağ to launch an investigation into a prosecutor and three judges that were involved in the graft probe.

[15] The 2010 amendments were introduced as a package that included changes to 26 articles. It passed with less than two-thirds majority requirement (but more than three-fifths), which according to the amendment-making rules of Turkey prompted a national referendum. The yes vote received 58%.

[16] According to Tombus (2013), if the real intent of the AKP government was to structure an independent judiciary, the amendment would have ended the Minister of Justice’s membership in HSYK. See Tombuş, H. E. (2013), Reluctant Democratization: The Case of the Justice and Development Party in Turkey. Constellations, 20: 312–327.

[17] Professor Özbudun highlighted that the Minister of Justice’s role was reduced to a “symbolic and ceremonial one”. However coupled with changes introduced thereafter and the practice of the Minister of Justice Bekir Bozdag such as his visits to prosecutors in Anatolia to lobby for pro-government candidates tell a different story. Özbudun, Ergun (2011) “Turkey’s Constitutional Reform and the 2010 Constitutional Referendum”, Mediterranean Politics.

[18] Its acts during the Şemdinli incident investigation was its most infamous one. See  Gunes Murat Tezcur. “Judicial Activism in Perilous Times: The Turkish Case”, Law & Society Review, Volume 43, Number 2 (2009). The European Union has criticized the board and called for reform, see “Concerns remain about the independence, impartiality and efficiency of the judiciary,” Turkey 2009 Progress Report, at 11, SEC (2009) 1334 (Oct. 14, 2009)

[19] Bâli, Asli Ü. (2012) “The Perils of Judicial Independence: Constitutional Transition and the Turkish Example”, The Virginia Journal of International Law Association Vol. 52 No. 2.

[20] Before the 2010 amendments, the Minister of Justice and his undersecretary were still members of the board but the rest of the five primary and four alternate members (in total HSYK was composed of )seven regular and five substitute member) were chosen by the President from a pool of candidates nominated by the Court of Cassation and the Council of State. Under this arrangement, HSYK’s members were dictated by the two high courts that in return also controlled these courts.

[21] The changes were welcomed by the European Union as well. Venice Commission “Interim Opinion on the Draft Law on the High Council for Judges and Public Prosecutors (of 27 September 2010) of Turkey,” Venice, 17-18 December 2010.

[22] The elections were held for the directly elected members of the court (in total 10 members).

[23] “Government pleased with vote results for top Turkish judicial body”, Hurriyet Daily News, October 13, 2014. http://www.hurriyetdailynews.com/government-pleased-with-vote-results-for-top-turkish-judicial-body.aspx?pageID=238&nid=72893&NewsCatID=338

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Published on October 24, 2014
Author:          Filed under: Analysis
 

16 Responses

  1. Andrew Arato

    Dear oya yegen

    Your description of all this is correct. Your interpretation is internally conflicted. The aim of the 2010 reform was court packing. That aim continues to guide the akp government. In 2010 akp and the gulenite hizmet were allies. Thus the constitutioal court and other judicial entities were packed in part with gulen supporters. So now there is a need to unpac and repack, given the new conflict between hizmet and erdogan. It is true, the26 or so articles voted on in2010 had important elements. But this was not the essential thing at all. Yes, some of the positive procedural innovations are now being rolled back, but the same personalist, authoritarian prject continues.

  2. Oya

    Dear Professor Arato,

    Thank you for your comment. I do agree that the collapse of the alliance is the main reason of tension. But although I do also myself think that the 2010 reforms were not genuine attempts to create a representative council without access to constitutional commission’s archives I can’t say with confidence that it was purely intended for court packing. The reason that the 2010 elections of the HSYK were able to be packed with Gulenites was partly because the Constitutional Court struck down a part of the amendment regarding the council. In its original format the members of the high courts and judges and prosecutors in direct elections could vote for one member only. But the Constitutional Court struck down that provision which made it possible for judges and prosecutors to vote as many members as they were electing- making it possible to vote as a block (that is also why in the recent elections it is possible to decipher how many Gulenites are in the judiciary because they vote as a block to fellow Gulenites). But definitely, if the alliance did not end so bitterly the AKP government would not be concerned about HSYK’s composition. Again, I agree that the whole presidential system debate shows it is essentially a personalistic project.

  3. Andrew Arato

    There was court packing, no? six new judges to const court? At that time it was thought to be safe to add gulenites. But they turned against the presidentialist gambit, that i predicted in 2010.

    This has been going on since 2007, and it wa sfoolish not to have recognized waht was going on by2010.

    But people who were wrong then just cannot bring themselves to admit it. I assume you supported the yes, but maybe i am wrong.

  4. Oya Yegen

    I agree and think that AKP calculated back in 2010 that by expanding the number of members directly elected by judges and prosecutors (and not just from high courts) it would get a council that is more or less representative of Turkish society- hence with a majority supporting the government. However when the Constitutional Court struck down the provision to have the HSYK voting system from “one vote for one candidate” principle to “block list”, it helped open the gate for Gulen followers to get elected running under the same list. It was no problem for AKP at the time because they were cozy friends.

    Fast forward to 2014, the opposition and Constitutional Court came to support “the one vote for one candidate” and the government support “the block list”. Same with the prerogatives of the Minister of Justice. The 2010 constitutional reforms reduced its authority, the 2014 changes to the HSYK law increased the powers of the minister of justice. And this time, Constitutional Court overturned these controversial provisions that heightened the powers of the executive over the council.

    Also we see that even back during the failed attempt to write a new constitution AKP was not happy with the turnout of 2010 changes. During the debates of the Constitutional Conciliation Commission, AKP supported dividing the council into two separate councils, one for judges and one for prosecutors.

    I actually voted “no” because I thought the hasty way of making reforms was senseless when there was actually a talk over making a new constitution.

  5. Hootan

    Dear Oya and Andrew,

    Thanks for your very interesting perspectives, but I wonder if in practice the distinction between “reform” and “court packing” is as sharp as you assume? If by “reform” we mean achieving some political goals (ex. removing military-judicial tutelage, expanding the powers of elected institutions, strengthening the rule of law and democracy, encouraging FDI and economic development, etc.) can we conceptualize “court packing” as a possible “reform” strategy? As someone who has written critically about the pre-2010 Turkish Constitutional Court, I’ve often wondered how the court could have been “reformed” without raising charges of “court packing” and interference with “judicial independence.” Short of death, retirement, or removal of “obstructing” judges, courts can be “reformed” by shut down and recreation ala Russia or reformers could take the less drastic measure of “packing the court” with “reform supporting” judges. In either case, the motivation is political. As creation of the political branches, the structure of courts (particularly constitutional courts) reflects the interests of political coalitions that create them. Consequently, “reform” becomes necessary and possible only when the composition and the interests of the ruling coalitions change. If the new coalition can “reform” the court in its own image (Turkey’s 1982 constitution or the 2010 amendments) then the crisis might be avoided but the cost might be a decrease in judicial independence. The fragmentation of the reforming coalition, however, might provide new opportunities for courts to express their independence. I think you both might be correct in suspecting that the recent rulings against the government reflect the growing rift between AKP and the Gulen movement, but is that something unique to Turkey or necessarily a long-term negative development for judicial independence, rule of law, democracy, etc.?

  6. Andrew Arato

    Moreover, do you expect to find in the archives some statement that we are doing all this to be able to pack the Constituional Court? Did Roosevelt, Chavez, orban et.al. Ever say they were packing anything?

    Actions must be interpreted in light of what happened before, namely amendment to the constituion declared unconstitutional on procedural grounds, that involved substance. Not to speak of the drive to presidentialism from 2007 on. Stop looking for the smoking gun, and think politically!

  7. Andrew Arato

    I dont see the point. Roosevelt was interested in reform. He wanted to pack for good reasons.
    Yet the idea was corrosive for constitutionalism.

    As for the turkish court, the decisions of 2007 and 2008 were in the defense of constituionalism, and consesual constitution making. Yes, they were counter majoritarian. But majoritarianism is not democracy, especiallly when it comes to constitution making.

    I dont care whether the judges were kemalist or are as currently gulenites. Packing through known governmental appointees is bad whether orban does it through his 2 thirds, or erdogan moving in known sustitute members, and addin two presidential appointees.

    Look at the results in turkey and hungary both? Do you like them? Or only one of them.

  8. Anndrew Arato

    One more note. Oya and i agree, but we evidently do not agree with Hootan, who does not even seem to be shaken by erdogan’s politics since gezi (authoritarian reforms, corru ption, transperent coverup, support for isis, attacks on the kurds, hyperpresidentialist project etc.). Fine. Authoritarians too have their lawyers, we must live with that.

    As to the distinction between reform and courtpacking , assuming but not admitting that the turkish constituional court needed to be reconstituted, th is should have been done within a new, consensual, civilian constituion, with guarantees for judicial independence, and a fair, non governmental system of appointments. Under the veil of ignorance that is. We can however speak of court packing when the veil of ignorance is removed as in Hungary with orban creating an appointment ru le that is purely governmental, or erdogan picking the known substitue mebers plus adding two presidential appointments.

    note well, court packers can be disappointed. In korematsu, 2 major roosevelt appoinment svoted against the president. In Hungary, a new court majority including orban’s previous top advisor, voted against the government on the transitonal articles of the constituion, iniating amen dent review in effect, and the gulenites voted against erdogan. But this does not justify court packing and especially repacking.

  9. Oya Yegen

    Dear Professor Arato and Shambayati,

    I want to first say that I am a bit confused whether the discussion is on HSYK or the CC.
    If we are talking about HSYK, its composition both after the 2010 and the 2014 appointments and elections did not result in favor of the AKP government. The 2010 composition had a majority of Gulenites which critics found horrendous but the way the council acted surprised them (same thing with the recent decisions of the CC). The 2014 composition based on the profile of members elected also do seem to include not just conservatives but nationalists, kemalists, social democrats, gulenites etc. However the problem stems exactly from this: regardless who gets elected/appointed, the suspicion is that their decision-making will be based on their ideology and the political cadre they belong to and would not be an independent one. So whether the council is packed or not, judicial independence is difficult to achieve in the Turkish case, in the short-term at least. How can that be changed? Better education, training? Is it a cultural issue? I would love to hear your comments.

    I agree with Professor Shambayati, and do suspect that a major reason that we see a CC that ordered that access to Twitter be restored and annulled the legislation that expanded the executive control over HSYK is because of political fragmentation. So does this mean that if the Gulen movement and AKP were to bury the hatchet we would see a CC acting in “harmony” with the government? I don’t really have the answer.

  10. Andrew Arato

    Dear oya
    I cannot see how you can agree with shambayati, but no matter.
    It is i who confused the issue onTCC and HSYK.
    1. I argued that the essential thing in the 2010 reform was courtpacking
    2. And that this was sugarcoated with many things including Hsyk reform, that was improved as you say by the old TCC (this is something shambayati could never admit!)
    3. Neither of these changes worked subsequently for Akp because of the split with gulenites
    4. Today we know what the trajectory was , not reform but authoritarian personalism. You accept that. Shambayati certainly does not.

  11. Hootan

    Andrew,

    I think where we disagree is that you seem to view the authoritarian tendencies of Turkish politics as a new phenomenon whereas I see them as the continuation of old practices. In other words, all the things you mention might be true but I am not sure if Erdogan and present government are acting any differently from how previous governments acted. I think what might be different is that in previous decades authoritarianism was institutionalized in the constitutional structure, whereas the present variety seems to be more personality based.

    Furthermore, you seem to view the TCC’s 2007 and 2008 decisions, by which I assume you mean those regarding the annulment of presidential elections, the headscarf ban, and the closure of AKP, as defending “constitutionalism.” The general view among the constitutional experts at the time was that they violated both democratic principles and “constitutionalism.” If I remember correctly, Ozal and Demirel had used similar strategies for securing the presidency (i.e winning with a simple majority in the third round of balloting and in the absence of opposition parties) but the court did not step in to annul their elections. The 1982 constitution clearly forbids the court from reviewing the substance of constitutional amendments, a provision that was added at the request of the military, and the court had accepted that limitation in its previous rulings. These decisions might have been in defense of the ‘correct’ political goals, as you seem to argue, but I don’t think they were in defense of constitutionalism. You are, of course, correct in saying “majoritarianism is not democracy,” but neither is constitutionalism.

    As for consensual constitution making, none of Turkey’s 4 constitutions (and, in particular the 1982 constitution) meet the minimum requirements of consensual constitution making. AKP tried half-heartedly, but even that is more than can be said about the previous constitution makers.

    Oya, concerning the HSYK, to what extent are the 2010 reforms a return to the pre-1980 structure? If I remember correctly, the 1982 constitution drastically altered the composition of the HSYK. Also, isn’t the kind of factionalism that you are describing in your response a natural by-product of elections? If so, this might not be unique to Turkey.

  12. Andrew Arato

    Wrong, wrong and wrong again.
    1. In tdurkey from 1995 to 2002 and even 2004 major constituional changes were made consensually.
    2. In 2007 the CC supported akp in allowing the referendum on the election of the president
    3. In 2008 the headscarf decisons were on procedure, but substance was used epistemologically. Are you supporting the authoritarian designers of 1982 on this ban?
    4. The TCC did not dissolve theAKP. What are you taling about?

    Enough. I am getting bored of this.

    • Hootan

      I was referring to the prosecutors decision to file a case against AKP, the Court’s decision to take up the case, and the decision to fine the party.

      Actually, the ban on headscarf came from a decision of the TCC itself in the late 1980s not from the military junta. I don’t think the court was politically or constitutionally correct in annulling the amendment that lifted the ban.

      I guess we just have different readings of recent Turkish history.

      • Andrew Arato

        guess so. I see a country democratizing and constitutionalizing itself from 1995 to 2007, and the subversion of that process in new colors.

        You do not answer my points 1 and 2, and misunderstood 3. I meant the ban on amendment review twice escaped by the court through a correct argument referring to the eternity clauses, that make substance procedural.

        • Hootan

          Sorry for misunderstanding your argument and not responding to all the points you had raised. I was trying to keep my response short because in your previous message you had indicated you were “bored” with the discussion and wished to put an end to it.

          Obviously, we are looking at different cases. You are looking at the decision to allow the presidential referendum to move forward while I am looking at the court’s initial decision to annul the election of the president that made the referendum necessary in the first place. I don’t think the latter decision contributed to “constitutionalism.” As for the decision on the referendum, I think it can easily be argued that the court was engaging in political “damage control” after its first decision was overwhelmingly rejected by the voters in the 2007 parliamentary elections.

          I don’t think the late 1990s in Turkey is a period of “democratizing and constitutionalizing,” as you suggest. This is a period coinciding with the “soft coup” and the “28 February Process” when the TCC shut down 8 political parties (including AKP’s predecessors), tolerated massive human rights violations, and legitimated the crackdown against the Kurds, Islamists, and other critics.

          Constitutional amendment packages that were adopted during this period might have had the support of the opposition parties in the parliament but they did not radically alter the nature of the regime. Furthermore, you seem to assume that collaboration among the different parties was a deliberate strategy aimed at strengthening democracy, whereas I see it as a political maneuver necessitated by the realities of weak coalition governments. Taking your advice “to think politically” seriously, it seems to me that the questions we need to ask is when do self-interested politicians take actions (i.e. consensual constitution-making) that strengthen constitutionalism and if those conditions were present in 2010 Turkey? For me, how politicians approach constitution-making is at least in part determined by the relative strength of the opposition. Until AKP’s rise to power, Turkey was ruled by a series of weak coalition governments under the tutelage of a powerful military and its judicial allies. These circumstances might have forced political parties to occasionally cooperate with each other, with the possible side effect of strengthening “constitutionalism,” according to your analysis. Similarly, AKP’s motivation in pushing the 2010 amendments was political. From the perspective of the AKP the 2007 and 2008 decisions showed that it had little choice but to move against the TCC and the judiciary if it was to avoid the fate of Welfare and Virtue parties. This ‘urgency’ combined with the fact that the party had crushed the opposition twice at the polls and was seeking to “reform” the very institutions that the opposition had relied upon to constrain AKP made “consensual decision-making” unlikely. Accordingly, I would respectfully suggest that the obstacle to “constitutionalism” in Turkey might not be the authoritarianism of the AKP and/or Erdogan but the inability of the opposition parties to provide a viable alternative, but that is an entirely different discussion.

          My apologies to Oya for moving this discussion far from her original contribution.

  13. Ertug Tombus

    Dear Oya, Andrew and Hootan,

    I was planning to write a comment on Oya’s post on the HSYK but this heated debate diverted my attention.

    I think the main objective of the 2010 amendments was to pack the court and to take the control of the judiciary over from the Kemalist establishment. I don’t think this would change if we think the Kemalists before the amendment already packed the court. The 2010 amendments, I think, was a repacking process.

    The AKP knew all too well that with legislature, executive and judiciary under their control, putting some rights to the constitution would not mean anything other than a couple of written words on a piece of paper. Who will enforce them to limit themselves with the constitution? Since the Gezi and after December 17, we saw numerous instances of violations of both constitutional rights and liberties and also separation of powers.

    And it happened exactly in that way. Even the very liberal changes the AKP made in the 2010 amendments turned into ineffective provisions in the constitution: Ombudsman is a joke. There was a provision in the 2010 amendments regulating privacy. Yet, we now know that the police has been violating our constitutionally protected rights of privacy and not without the government’s knowledge. There were amendments about the unions and general strike. Yet again, we know that the working conditions and the lives of workers mean nothing for the government, from Soma to Tuzla. And again, we witnessed what happened to our constitutional right to hold meetings and demonstrations during the Gezi Park protests.

    In 2010, the AKP had the control of the legislature and the executive. The President Gul could not be considered as a power to check and balance the AKP. In a situation where the AKP controlling every branch and institution in Turkey, even a Kemalist court could be considered as part of checks and balances instead of hegemonic preservation. When the AKP changed the composition of the court and made changes in the HSYK, it already accumulated power by taking the institutions of the Kemalist establishment. At that point, the AKP’s court packing meant nothing but concentration of power; not unpacking the court to create an independent judiciary.

    The fact that Turkey has been suffering authoritarian rules in one form or another before the AKP would not necessitate us to see the AKP reforms undermining the Kemalist tutelage as reforms for democratization. All the AKP reforms on the institutions of the Kemalist tutelage have been to take over them and to use in the exactly same way. Acknowledging this would not mean to support the Kemalist status quo at all.

    I agree with the inability of the opposition parties to provide alternative. As a consequence, the AKP has been able to present itself as the only option for a democratic society and for the peace process. However, claiming this inability as the obstacle to constitutionalism in Turkey would be misleading at best. It is the AKP and Erdogan who chose to violate the constitutional rights of the protesters since the summer of 2013 by violently cracking down the protests; to censor the Media and force newspapers to fire journalists who are critical to the AKP; to control the judiciary including HSYK. Lack of an opposition with a viable alternative has nothing to do with these. Maybe not in a party form, but streets have been trying to produce an alternative. And we know very well what was Erdogan and the AKP’s response to that.

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