The Turkish Judicial System: Guardians of the Ancient Regime
By Firat Demir
For Syria Comment – April 2, 2010

A test of true democracy in any country is whether it has a constitution that protects the rights of its people. Turkey, as with most Middle Eastern countries, has failed this test in the past. Military dictators have written Turkey’s constitutions, and democratic rights were not among their topmost concerns.

The 26 constitutional amendments proposed by the Erdogan government are particularly important in this context because they have the potential to bring Turkey closer to real democracy. By limiting the powers of the country’s judicial oligarchy, they help democratize Turkey’s Kemalist state, which has traditionally been run by a narrow elite. These are significant developments which may point the way out of the Middle East’s democracy deficit.

It is little wonder that the Supreme Court, Supreme Court of Appeals, Supreme Board of Judges and Prosecutors (HSYK), as well as additional judicial bodies have launched a desperate attempt to stop the amendments. One of the articles in the reform package, foreseeing a change to the structure of the HSYK, received the sharpest objections from the Supreme Court of Appeals. Under the current system, HSYK appoints the members of the Supreme Court of Appeals, who in turn appoint the members of HSYK. Presently, the Supreme court has almost unlimited powers to declare new laws unconstitutional, including new amendments by the parliament. Opposition to the 26 amendments by the Judiciary, Kemalist parties, and ultra nationalist parties reached such ferocity that most ended up defending as sacrosanct the 1982 constitution, which was written under a military dictatorship and enshrines a very limited conception of democracy.

Some of the proposed changes to the constitution include (for a full list, click here):

• allowing civilian trials of military officials on charges of crimes they commit against security of the state and the constitutional order.
• allowing the parliament (rather than the judicial system alone) to decide on political party closures.
• establishing an ombudsman system for resolving disputes between citizens and the state.
• increasing the number of members of the Constitutional Court and the Supreme Board of Judges and Prosecutors, and bringing arrangements to allow the parliament to elect members to the court.
• allowing appeals to the decisions of the Supreme Military Council (YAS) at courts, which are currently outside of judiciary supervision.
• affirmative action for women.
• removing the legal immunity for the organizers of the September 12, 1980 military coup.
• allowing civil servants and public workers to form unions and have collective bargaining rights.

The European Parliament’s Turkey Rapporteur Ria Oomen-Ruijten welcomed the constitutional amendments. Are the amendments sufficient? Certainly not. Among the proposed changes, for example, there is no mention of:

• increasing voter participation in the parliament through reducing national election ceiling,
• removing MP and civil servant legal immunities,
• Kurdish (and other ethnic groups’) cultural and political rights, including the right to education in native languages,
• eliminating the dual judicial system (one for the military and one for civilians),
• subordinating the military Chief of Staff to the minister of defense instead of the prime minister,
• limiting the powers of the President
• allowing universities and other higher education institutions to have autonomy in their academic, and non-academic affairs.
• limiting the powers of Higher Education Council (YOK).

Despite these limitations, it is a step forward, and this itself is a sufficient reason to support the proposed changes, especially given the shamelessly archaic nature of the status quo in the country.

PM Erdogan is fast approaching a watershed moment for his government. He will have to decide whether he wants to drive home change and thus join the ranks of great leaders who have been able to transform their societies. For the moment his direction is ambiguous. He dances between embracing nationalism with racist overtones and Islamism. It is not clear whether he is aware of the challenges he faces. One moment he is the defender of Palestinian civilians and another the murderers in Darfur. One moment he decides to heal the wounds between Turks, Armenians, and Kurds and in the next he threatens them with deportation. One moment he asks German Chancellor Merkel, on behalf of 3 million Turkish residents in Germany, for permission to open Turkish elementary and secondary schools in Germany, arguing that people should first have a good command of their natives languages, but in the next he dismisses any proposal to open Kurdish schools in Turkey. Just this week a Kurdish singer, Rojda, was given a prison sentence of 18 months for singing a Kurdish song in a festival in Turkey. In another recent incidence, former chairpersons of  the pro-Kurdish Democratic Society Party, Ahmet Türk and Aysel Tuğluk “face imprisonment of 45 and 70 years respectively under charges of “spreading PKK propaganda””.

In Turkey, Proposed Changes Aim at Old Guard

New York Times, April 2, 2010. By SABRINA TAVERNISE and SEBNEM ARSU

Turkey’s governing party moved this week to further reduce the power of the country’s staunchly secular old guard, submitting a series of amendments to Turkey’s military coup-era 1982 constitution, but passage is far from assured.

Turkish constitutional reform plans anger judges

Guardian, Monday 22 March 2010 20.13 GMT, Robert Tait

“We sense that the constitutional package is aimed at decreasing the power of the judiciary. We are definitely objecting to this,” Judge Hasan Gerceker, chief of the supreme court, told the Turkish television channel NTV.

Supreme Court of Appeals seeks to maintain status quo

Today’s Zaman, 26 March 2010, Friday, ERCAN YAVUZ

According to a report prepared by the Supreme Court of Appeals, which is waging a war against the government’s recently announced constitutional reform package and has directed fierce criticism at Parliament, the amendments in the package are in contravention of the first three unchangeable articles of the Constitution.

The court even finds the planned changes to the party closure system, which have been applauded by both the European Union and the Council of Europe’s Venice Commission, unacceptable on the grounds that it challenges the principle of separation of powers. While objecting to the change that would make it possible for members of the military to be tried in civilian courts, the court approves of the amendment to prevent civilians from being tried in military courts. While the court says the fact that the ombudsman institution will have to answer to Parliament could cast a shadow on its impartiality, it says opening it up to judicial oversight is a positive change.

Can the AK Party Change the Constitution?

Ihsan Dagi, March 22, 2010

Amending some articles of the Constitution may be a fresh beginning for a new round of democratic reforms, which is desperately needed to speed up the European Union accession process on the one hand and to consolidate democratization on the other.

When debating the content and methodology of constitutional change, we should keep in mind that however limited the amendment package may be, it will be a good thing in terms of Turkey’s democratization. Political reform cannot be thought of without it including a constitutional dimension.

The reason for this is obvious: The Constitution of 1982, introduced by the military administration of the time, is the basis of undemocratic institutions, mechanisms and principles at play in Turkey today. The Constitution has an authoritarian spirit designed to protect the state vis-a-vis individuals. It did not set limits to the power of the state, but to the liberties of individuals — which goes against the very essence of constitutional movements worldwide. The bureaucracy and the judiciary are appointed as vanguard institutions over the elected representatives of the people. Individual rights are stated but often weakened by phrases of “but” and exceptions. Kemalism is protected as the official ideology of the state. It is a constitution that hijacks sovereignty from the people and entrusts it to the bureaucracy and the judiciary. In short, the very logic and starting point of the 1982 Constitution contradict the principles and institutions of a contemporary liberal democracy.