Turkey's Illiberal Judiciary: Cases and Decisions

Article excerpt

Turkey is undergoing a very important transformation. Topics, which have been considered taboo during the Republican era, are now being publicly debated. Demands for solutions to the accumulated problems of the past decades are on the rise. These demands are impacting the political arena and Turkey is moving away from a restrictive and paternalistic administrative model, and taking crucial steps towards becoming a democratic society guaranteeing human rights and freedoms.

The attitude of the judiciary is very important during such times of social change, given the quintessential position the judiciary holds as one of the three main pillars of the political system. What is expected of the judiciary is that it solves disputes between the individuals and the state, guarantees individual rights and freedoms, and protects the rule of law by scrutinizing the power of special interest groups. If the judiciary is unbiased and independent in per forming its duties, it can help strengthen democracy and stability, contributing to change in a positive way. However, if the judiciary does not function in an effective manner and abandons justice, it will degenerate the political system.

Today, in Turkey, decisions delivered by the judiciary are making social and political change more difficult and increasingly problematic. Turkish judiciary, with its uncompromising attitude in contravention of the 'spirit of the times,' is unable to uphold democratic values or contribute to societal peace. While the judiciary contends itself with checking the executive and the legislative powers in democratic countries, it often renders the legislative branch dysfunctional in Turkey by making purely political decisions. Because of its tendency to step outside of its boundaries, the judiciary remains the focal point of disputes.

Discussions about the judiciary can be summarized under two main headings: political and social. At the political level, courts such as the Constitutional Court (AYM), High Court of Appeal, Council of State, and High Council of Judges and Prosecutors (HSYK) have constrained the freedom of choice of the political power especially through recent rulings they have delivered. These judicial bodies oversee "appropriateness" instead of "lawfulness" of a given legislation. Judiciary sometimes goes as far as to assume the role of the legislature by instituting a new ruling that interferes with the political decision making processes. Governments in Turkey are often confronted with the courts as a result of rulings that tie their hands. In this way, the courts become an active party to political tensions.

At the societal level, people do not trust the judiciary for various reasons. They complain that the courts are biased, partisan, and discriminatory. The prolonged lengths of the legal process, violation of basic rights during the court processes, and general disappointment with the outcomes of cases are some of the major areas of discontent with the judicial system. Ultimately, people's trust in courts is deteriorating and there is a profound and widespread belief that the courts do not distribute justice. (1) The proportion of those who see the state upholding the rule of law is decreasing daily.

When we consider the fact that the judiciary has been the subject of controversy as a result of its partisan attitude in political tensions, it is important to note that this is not a new phenomenon. For a proper account of the judiciary's controversial role in Turkish politics, we need to examine its historical background.

The Roots of an Illiberal Judiciary

The foundations of the current political and legal system in Turkey were laid down after the military coup d'etat of 1960. The transition to a multi-party democracy with the elections held on May 14, 1950, which resulted in the victory of the Democratic Party (DP), represented the unsettling of the position of the military and civilian bureaucracy that had previously wielded the political power in Turkey in an unchallenged manner. …