Institutionalization of a Turkish Crisis Regime and the Capture of Judiciary

Since July 15, 2016, the AKP government Adalet ve Kalkınma Partisi (Justice and Development Party) has detained and dismissed about 150,000 government employees, including 4,463 judges and public prosecutors, 8,693 academics, and 305 journalists. By last count in January 2018, 187 media outlets, more than 3,000 schools and NGOs, and fifteen universities have been shut down.Footnote ⁷ According to a Financial Times article titled “Assets Worth $11 Billion Seized in Turkey Crackdown” accessed in November 2017, about 1,000 businesses (allegedly linked to the U.S.-based cleric, Fethullah Gülen) have been seized and their assets, collectively worth over $11 billion, have been confiscated. In order to fill in the judicial vacancies, the government has transferred and appointed 9,073 judges and prosecutors in the period of July 2016 to December 2017, according to the publicly available Board of Judges and Prosecutors webpage, accessed in January 2018, which can be seen as one of the most drastic reconstructions of the country's judiciary. While the nature of this reconstruction remains to be seen, in the same period, 8,050 candidates were admitted into the Ministry of Justice's Justice Academy to be trained as a new generation of judges and prosecutors. In November 2016 alone, 3,800 new judges and prosecutors were recruited; in June 2017, 2,750 were recruited; in December 2017, 1,500 were recruited. These figures are gathered from public announcements issued for judgeship and prosecutorial office exams available on the Ministry of Justice's website. Most of these new recruits are viewed as those with close associates of the ruling AKP. Such perceptions are reinforced by reports, like a May 2017 article published in The Economist, that of the 900 judges and prosecutors appointed in April 2017, 800 had close AKP links.

The extensive institutional reforms and replacements since July 2016 indicate that the judiciary substantially lost its autonomy. This lost autonomy is not a detour but instead the consolidation and final stage of the process of the institutionalization of the crisis regime which can be seen through three broadly defined periods. The first period, 2007–10, is the reaction to the formative years of AKP during which the secularist judiciary constantly questioned the party's commitment to secular practices and democracy and threatened it with closure. In the second period, 2010–13, the AKP began taking control of the judiciary in alliance with the Gülenists,Footnote ⁸ a religious network that is claimed to have masterminded the 2016 coup. The third and final stage, 2013–17, indicates the dominance of the judiciary by the rising party-state regime.

The first period was marked by the secularist judiciary's scrutiny of the AKP's policies. For instance, in May 2007, the Constitutional Court (CC) annulled the first round of the presidential elections on procedural grounds in order to block AKP candidate and party founder Abdullah Gül's election. In June 2008, the CC cancelled the constitutional amendments to remove the headscarf ban for female university students. Although the 1982 constitution (Article 148) allows review of constitutional amendments solely on procedural grounds, the court reviewed the headscarf amendments on substantive grounds arguing that the proposed amendments indirectly altered the eternity clause (a constitutional provision that cannot be amended) concerning secularism (Article 2), thereby undermined the basic structure of the regime. A few weeks later, in the so-called AKP closure case, the CC, one vote short of the required 3/5 majority to dissolve the party and ban its leaders from politics, declared the AKP to be “the focal point of anti-secular activities” and cut half of its public funding as penalty.Footnote ⁹ From its founding in 1961 to 2008, the CC closed down twenty-four political parties, including three of AKP's predecessors—the National Order, Welfare, and Virtue parties. Although this time the governing party barely dodged the bullet, the threat of closure and ban from politics was imminent. The AKP responded to the threat with a constitutional amendment in September 2010, which, many commentators believe, aimed to pacify and take over the judiciary.

The constitutional amendment of September 2010 expanded the number of judges on the CC from eleven to seventeen, which would immediately change the majority on the bench in favor of the government.Footnote ¹⁰ It also changed the composition of the Supreme Board of Judges and Prosecutors (SBJP), which would in turn allow groups (e.g., Gülenists) aligned with the Islamist government to manage and control judicial appointments. The politicization of the SBJP has been especially important given that it is the key institution that oversees the appointment, dismissal, and disciplining of the members of the judiciary. The September 2010 amendment expanded the SBJP's members from seven to twenty-two, and empowered lower court judges and prosecutors to directly elect ten of those while the rest were to be appointed by the government and other judicial bodies. According to Mustafa Akyol in an Al-Monitor article, published on 2 September 2014, the changes introduced by the 2010 amendment, facilitated the ruling party and its then allies, the Gülenists, to take control of the SBJP—an old secularist bastion of the Turkish judiciary.Footnote ¹¹

Although it is not possible to determine the end of the alliance, after Turkey's popular public protests against the ruling government, the so-called Gezi Park protests, in June 2013, relations between the AKP and Gülen movement began deteriorating. The declining relations between the two became more visible following a corruption probe in December 2013, which implicated several government ministers along with then Prime Minister Erdoğan and his family members.Footnote ¹² The release of documents led Erdoğan to accuse “Gülenist” prosecutors and judges of plotting a coup against his regime. The tense relation resulted in the adoption of several pieces of legislation in 2014 that strengthened the executive branch's control over SBJP and reorganized the Court of Cassation and the Council of State.Footnote ¹³ In a series of decisions that altogether aimed to hamper the judiciary's ability to prosecute the corruption charges, 680 judges and prosecutors were sacked and about 7,000 were transferred—in most cases against their wishes.Footnote ¹⁴

The ruling party tightened its already tight grip on the country's judiciary in the environment created by the attempted coup on 15 July 2016. While the failed coup exposed the extent of Gülenists’ reach within many key institutions, referring to the security-focused environment as “a gift from God,” Erdoğan launched wide-ranging changes in line with the party's vision for a “new Turkey.” The changes following the coup attempt were drastic. For instance, within twenty-four hours of the attempted coup, two members of the CC were arrested on charges of being members of “an armed terrorist organization.” In its reasoned decision, dated 9 August 2016, regarding the dismissal of judges in question, the CC ruled that due to the urgency of the conditions it was not necessary to produce concrete evidence to prove someone's membership in the “Gülenist terror organization (i.e., FETÖ)” instead a general belief formed by the majority about individuals in question was deemed sufficient to dismiss the suspects from the bench given the risks they allegedly posed to the constitutional and democratic order.Footnote ¹⁵

The CC's decision to dismiss its own members without requiring any legally admissible evidence was a direct assault on judicial independence as well as due process and the rule of law. In a more drastic way, in October and December 2016, the court curtailed its own power in response to petitions challenging the constitutionality of decrees issued under the emergency. According to Article 148 of the 1982 constitution, emergency decrees are not open to constitutional review by the CC. However, in landmark decisions in 1991 and 2003, the CC reinterpreted Article 148 and established some standards for validating decrees that aimed to protect fundamental rights and liberties even during times of emergency.Footnote ¹⁶ However, in multiple rulings in 2016, the court reversed its earlier jurisprudence and declared the emergency decrees to be beyond the CC's review. Some of the decrees (e.g., KHK 687) granted complete criminal and administrative impunity to government officials for actions related to their duties and provided legal shield for grave human rights violations committed by the regime. Hence, the CC (along with other higher courts) has become a willing accomplice in the Erdoğan regime's destruction of the constitutional order in Turkey.

The constitutional referendum of April 2017 established a presidential regime with unprecedented powers and with almost no checks.Footnote ¹⁷ Under the new system, the parliament has lost its oversight authority over the cabinet, and its powers to overwrite presidential veto are also reduced. The parliament cannot impeach the president or shorten his term; but the president can dissolve the parliament, unilaterally declare a state of emergency, and issue presidential decrees that carry the force of law.Footnote ¹⁸ Moreover, the 2017 amendment reduces the number of members on SBJP from twenty-two to thirteen and does away with elections. Six members are appointed directly by the president and the rest by members of the parliament (the majority of whom are handpicked by the president in his capacity as the chairman of his party—i.e., AKP). Likewise, the number of judges on the CC is reduced from seventeen to fifteen—twelve of whom are directly appointed by the president, and the rest by the parliament. Turkey's existing increasingly restrictive emergency rule and institutionalization of its crisis regime, especially in the aftermath of the 2017 April amendments, and the role that the Turkish judiciary has come to play in this new era of authoritarian legality are reminiscent of Indira Gandhi's emergency rule (1975–77) and the destructive role that the ISC played during this period.

Reversing Crisis Regimes: Lessons from Indira Gandhi's Emergency Rule and the Reassertion of Judicial Independence

Indira Gandhi served as the prime minister of India from January 1966 to March 1977, and again from January 1980 to October 1984. When Indira Gandhi became prime minister in 1966, she encountered an independent and defiant supreme court (a system her father, Jawaharlal Nehru, was instrumental in establishing from 1947 to 1964 as primeminister), which she considered an obstacle to implementing her socialist policies.Footnote ¹⁹ Ghandi preferred a “committed judiciary” and over the next decade pursued policies that undermined the independence and autonomy of the Indian Supreme Court (ISC). From 1966 to 1977, according to the website for the Supreme Court of India, she appointed twenty-four new judges to ISC and amended the constitution twenty-five times.Footnote ²⁰ Although the court remained fairly independent until about 1975, thereafter it was subjugated to the will of the prime minister reminiscent of Turkey's current picture.

Both in India and Turkey the ruling parties were emboldened by their electoral successes. By the 1970s, Indira Gandhi, with absolute majorities in both houses of the parliament, was in the midst of a nationalization and land reform program. Prime Minister Gandhi's battle with the Indian judiciary was an ideological one—just like Erdoğan's battle in the early 2000s with the secular Turkish judiciary. Right to property was at the center of debate between the government and the ISC. In 1967, the court struck down the 17th amendment, which had restricted landowners’ right to property and stated that the parliament could not amend the constitution to take away fundamental rights. The Congress Party struck back with two “radical” acts—the 24th and 25th amendments—that empowered the parliament to make changes to fundamental rights, and limited the court's jurisdiction in land acquisition and nationalization cases, respectively.Footnote ²¹

The constitutionality of these amendments was soon challenged at the ISC. In 1973, the court ruled in a landmark case (Kesavananda Bharati v. Kerala) that the parliament could not alter the “basic structure” of the constitution, and that fundamental rights included the right to property. Just like the Turkish CC's “basic structure” judgment in the above-mentioned 2008 headscarf case, the ISC in its 1973 ruling invoked an abstract framework (basic structure) in order to protect the constitutional order against the brute political power of the majority in the other two branches of the government.

A day after the historical Kesavananda judgment, Indira Gandhi altered the country's long-established judicial rules and appointed a loyalist as the chief justice of the ISC. In the face of the judiciary's growing activism, the prime minister grew increasingly frustrated and began contemplating a regime change that would increase the powers of the executive branch vis-à-vis other branches. In this respect, some Congress members suggested doing away with the parliamentary system in favor of strong executive presidentialism. As the idea of regime change was gaining traction within Congress circles, Indira Gandhi was presented with a “gift from God”—as Erdoğan might put it—in the form of a court judgment that she invoked as an excuse to declare a state of emergency. On 12 June 1975 the Allahabad High Court found the Prime Minister guilty of electoral fraud, effectively voiding her election to Lok Sabha and banning her from politics for six years. For Gandhi, the court's decision amounted to an “attempted coup” by the judiciary acting in alliance with the opposition. A few days later, the Congress Party declared its leader to be “indispensable to the nation.” Gandhi swiftly introduced another constitutional amendment and declared a state of emergency on June 26.

Echoing recent events in Turkey, under the Indian emergency civil liberties were also suspended. About 140,000 opposition members, academics, students, and journalists were arrested, while about 10 million people, according to Terrence McCoy's 2014 Washington Post article, were sterilized (in most cases involuntarily) for population control. In this new era the ISC became the guardian of the regime. It first set aside the Allahabad High Court's judgment and validated Indira Gandhi's contested election to the parliament. Thereafter, it set out to battle independent-minded high courts by overturning judgments that challenged the tyranny and lawlessness of the emergency while the government banished “non-submissive” judges.Footnote ²² In April 1976, the court ruled—just like the Turkish CC, which upheld the emergency decrees—that during the emergency all fundamental rights were suspended, including Article 21 of the constitution, which protects the right to life. In fact, at the hearing the Attorney General argued that even if life was to be taken illegally by the government during the emergency, the courts were helpless.Footnote ²³ The ISC simply accepted this outrageous assertion.

Like the April 2017 amendments in Turkey, which resulted in a wholesale regime change, Indira Gandhi's 42nd amendment (containing fifty-nine clauses) also introduced radical systemic changes. Although presidentialism was not part of the amendment, the package gave Gandhi near dictatorial powers. Overall, the amendment undermined the federal system, stripped the judiciary of its powers, curtailed civil liberties, and gave the parliament broad authority to amend the constitution. Unaware of the growing unpopularity of her regime, Gandhi made a strategic mistake and called for new elections in March 1977. In a massive defeat the Congress Party lost about 200 seats, including those of the Prime Minister and her son. Gandhi conceded and revoked the emergency, which had by that point already been institutionalized under the 42nd amendment—just like the April 2017 amendments in Turkey.

The massive defeat in India was caused by more than a reaction to the emergency. What made it possible was the ability of various opposition groups to put aside their differences and unite against Gandhi's authoritarian rule under the banner of Janata Party (JP), which offered the electorate a viable democratic alternative.Footnote ²⁴ JP ruled India over the next two years, during which time the rule of law was restored. The 43rd and 44th amendments were passed in order to repeal the anti-democratic provisions of the 42nd amendment and to restore powers to the judiciary and limit emergency powers in the constitution.

The JP government also restored and respected the independence of the Indian judiciary. It refrained from political appointments to the ISC and reversed the compulsory transfer of high court judges ordered by Gandhi. The JP era gave the judiciary much-needed room to reassert its freedom without fear of retaliation. After the emergency period, Indian judges experienced an ideological transformation through which they redefined the role of judiciary in a democratic society.Footnote ²⁵ In 1979, the ISC introduced a new legal tool known as “public interest litigation” (PiL). PiL can be filed by third parties or by the court itself in order to defend the public interest. Thanks to PiL, the post-emergency court soon emerged as an active protector of fundamental rights and social justice and thereby regained the trust of the Indian people.

A Comparison and Concluding Remarks

When contemplating whether the Turkish crisis regime can end and how the country's restricted judiciary can play a similar role, if any, in restoring the rule of law and democratic order, the Indian case can be instructive. Although there are differences between the two cases, the comparison yields both institutional and political insights. First, India is a federal system with state-level high courts in addition to the federal ISC. During the emergency, while the ISC was fully subjugated to the will of the government, most of the state-level high courts remained defiant.Footnote ²⁶ Second, the Indian legal system is based on common-law tradition, which gives greater freedom to individual judges. Turkey differs on both points. Turkey is a unitary state where all courts are under the control of the central government. Moreover, the Turkish legal system is based on Roman law, where judges “tend to have the mentality of civil servants rather than that of a superintendent over government.”Footnote ²⁷ It should be also noted that PiL, as a powerful legal tool, is not available to Turkish judges. But the Turkish judiciary could still play a positive role through lower courts activism and extended use of the individual application mechanism by the CC. Lisa Hilbink shows that activist Spanish judges had begun taking a stand against Franco well before Spain's transition to democracy thanks to an ideational shift that occurred among members of the judiciary. Spanish judges, Hilbink notes, redefined their roles as guarantors of fundamental rights, independently of the formal political context, and seized every strategic opportunity to “speak law to power.”Footnote ²⁸ This is certainly a possibility for the Turkish judiciary—especially for lower courts, which could provide disadvantaged groups with greater access to judicial processes than the CC or other high courts in Ankara.Footnote ²⁹

In 2010, under growing pressure from European institutions, the procedure of individual application (constitutional complaint) to the CC was introduced in Turkey. Although the CC has not yet been able to fully utilize this tool, in several landmark decisions between 2011 and 2016, it upheld the fundamental rights of individual citizens despite the strong disfavor and opposition of the AKP government.Footnote ³⁰ With the changing political environment, the court could potentially use individual complaints as a springboard to jump-start a rights revolution—just as the ISC utilized the PiL to champion human rights after the end of emergency.Footnote ³¹

However, in order to play this positive role, the autonomy of self-respecting individual members of the judiciary will be critical as much as their ability to see some light at the end of the dark tunnel of Turkey's declining democracy. That light in part should come from the political sphere and formation of a pro-democratic block of parties and citizens. If the Turkish opposition parties can replicate the success of the Janata alliance in the 1977 Indian elections by uniting around a common cause—ending Erdoğan's undemocratic and unlawful regime (assuming future elections will be “free” and “fair”)—they can encourage the judiciary to undergo an ideational transformation and emerge as the champion of human rights.

Indira Gandhi returned to power in January 1980. Although the Indian judiciary this time was more protective of its independence—thanks to post-emergency ideational transformation—Gandhi's second tenure certainly was a tense period which could have been completely avoided had the Janata government been able to properly review and hold Indira Gandhi accountable for violations during the emergency. India's experience shows that overcoming crises in the judiciary very much depends upon the capacity of the judiciary to redefine its mission and its own commitment to democratic values as well as on the ability of political opposition to offer a viable democratic alternative to the Turkish citizens and state institutions.