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The Separation of Powers in Turkey: Erdoğan vs. the Judiciary

By Blaise Misztal, Jessica Michek

Monday, April 21, 2014

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Jessica Atlas contributed to this post.

In recent months, Turkey’s embattled government, led by Prime Minister Recep Tayyip Erdoğan, has taken extreme measures to combat allegations of corruption. He has adopted several pieces of legislation to expand the power of the executive. These laws undermine the separation of powers and rule of law in Turkey. Although Turkey’s Constitutional Court ruled to overturn several articles of the law restructuring Turkey’s Supreme Board of Judges and Prosecutors (HSYK), scoring a small victory for checks and balances, the government’s response suggests it is unlikely to abandon its attempts to tame the judiciary.

Why does the HSYK law matter?

HSYK is central to the administration of law and justice in Turkey. It oversees the legal curriculum for students, admission into the profession, as well as the appointment, promotion, and disciplining of judges and prosecutors. The new law, passed before the March 30 local elections, subordinates HSYK and, therefore the Turkish judiciary, to the executive, placing many of HSYK’s core functions under the control of the Justice Minister. The Bipartisan Policy Center’s Turkey Initiative, in its recent report, Legislating Autocracy? Recent Legal Developments in Turkey, wrote, “By controlling HSYK, the prime minister will be able to effectively replace the rule of law with rule by his own fiat.” In short, under this new arrangement, lawmakers would also be the law’s enforcers.

What changes did the Constitution Court make to the law?

After several unsuccessful attempts to block the law’s passage, Turkey’s main opposition, the Republican People’s Party (CHP), challenged its constitutionality. On April 11, Turkey’s Constitutional Court decided to overturn several portions of the law on the grounds that they violated the principle of separation of powers enshrined in the Constitution. The court’s ruling decreased the powers the law granted the Justice Minister, sending the statute back to parliament to be rewritten.

Among the powers stripped from the Justice Minister were the powers to:

  • Select the presidents that would preside over each of HSYK’s three chambers
  • Appoint members to HSYK’s inspection board
  • Initiate investigations into professional misconduct by judges and prosecutors and administer disciplinary actions against those deemed guilty.

The Justice Minister, however, is to retain his power over the Justice Academy, the body responsible for training Turkey’s judges and prosecutors.

The court’s decision also calls into question the legitimacy of appointments made by the Justice Minister following the passage of the law. Justice Minister Bekir Bozdağ dismissed active judges and replaced them with more than 100 AKP loyalists, many of whom had never served as judges previously.

In addition, the administrative staff of HSYK was removed, including:

  • the secretary-general and his aides
  • the head of the committee of inspectors and his aides
  • all inspectors and administrative staff working for the HSYK

Many of these vacancies were filled by Minister Bozdağ. CHP Deputy Chair Sezgin Tanrıkulu called on these new members of HSYK “to ethically resign,” saying, “they should resign as soon as the [Constitutional Court’s] decision is published in the Official Gazette. The independence of the judiciary is very important and no shadow should be cast over it.”

Why are these changes controversial?

The ruling did little to improve the prime minister’s admiration for the judiciary. The Constitutional Court had previously drawn Erdoğan’s ire for overturning the government’s ban on Twitter. “The Constitutional Court’s ruling on Twitter did not serve justice,” he told AKP parliamentarians. “This ruling should be corrected.” He also attempted to position the court as an enemy of the state, saying “I don’t find it right and patriotic that the Constitutional Court has adopted such a decision…While they are protecting an American company, our national and moral values are being disregarded.”

Following the HSYK ruling, Erdoğan went further, accusing it of making its decision for political reasons. “If someone wants to be involved with politics,” he challenged the court’s judges, “then he should get out his chair, take off his judge’s robe and start doing politics.” He has also claimed that the court has been infiltrated by the “parallel structure,” an oblique reference to the Gülen Movement, which Erdoğan has blamed for being behind the corruption accusations and leaked recordings implicating him, members of his family, and AKP officials in widespread corruption.

Justice Minister Bozdağ, stripped of many of his newly found powers, also disagreed with the court’s decision, arguing that the HSYK law “is a regulation that conforms with the constitution. The constitutional court’s cancellation decision has not changed my opinion. But of course we will abide by the court’s decision.” He also accused the court of making a politically motivated ruling. “I don’t approve of the fact that the Court is found at the center of political debates,” Bozdağ said, “I hope we can keep the Court far from the country’s agenda.”

President Gül, on the other hand, recalled that he appointed 10 of the court’s 17 members, and praised the members of the court for “basing their decisions on universal principles of law.”

What do these changes mean for Turkey’s democracy?

The willingness of the court to challenge the AKP through its rulings, both on the Twitter ban and the HYSK law, restores some optimism for the future of rule of law in Turkey, presenting a barrier to Erdoğan’s attempts at creating a more authoritarian state. Checks and balances continue to exist: the Justice Minister has had his powers lessened, making it harder for him to use HSYK as a means of punishing judges who rule against the administration, and stacking courts with AKP supporters.

Erdoğan’s attempts to undermine the Constitutional Court and its decisions has the potential to lead to a showdown between the prime minister and Turkey’s judiciary. He has argued that the next president, who will be elected by popular vote for the first time in Turkey’s history, will become the de facto executive. “The system has changed,” he said, “there won’t be any interregnum, because that would be the executive office.” He also promised that, if he were to be elected, “I will be the people’s President. I will use my full constitutional competences.” “But we are going to take necessary measures against those who do not obey their superiors,” he continued. “If you call this a witch hunt, then we’ll carry out a witch hunt.”

It seems likely, thus, that Erdoğan will continue to rein in the still independent judiciary and rid it of what he views as Gülenist influences. What form this conflict will take next, and who will emerge victorious, is yet to be seen.