Reform has become one of the most common political buzzwords. Politicians around the world love to be identified as "reformists". They want to look determined to break with the status quo, bring about bold changes in legislation and resolve stagnant problems. What these political leaders often fail to say, however, is that introducing changes to the legal framework is only one part of the story. Making this work is another and much more difficult part. The case of the Turkish judiciary is ample proof of this.
In recent years, few other state institutions have harmed Turkey's international image more than its judiciary. All of the European Commission's annual reports monitoring Turkey's progress towards accession have highlighted the persistence of serious shortcomings in the legislative framework and operation of the Turkish judiciary.
State Security Courts (Devlet Guvenlik Mahkemeleri - DGM) used to be one of the favourite topics. Established in the early 1970s, they were mixed military-civilian courts responsible for crimes against national security. Soon the number of crimes falling under their jurisdiction expanded so much that virtually any act of political dissent could be understood as a "threat against national security" and prosecuted without a fair trial. DGMs were eventually abolished in 2004, yet a lot of problems persisted, not least of which were those concerning issues of political freedom.
The recent indictments against the incumbent Justice and Development Party (Adalet ve Kalkinma Partisi - AKP) and the pro-Kurdish Democratic Society Party (Demokratik Toplum Partisi - DTP) were no surprise. Since its inception in 1961, the Turkish Constitutional Court has closed 24 political parties. While AKP did not become the 25th, the decision in fact reflected the prosecutor's argument regarding the alleged anti-constitutional operations of the party; it only fell short of his proposal to shut the party.
A decision on the fate of DTP is pending and bound to have a major effect on relations with the Kurdish minority. If DTP becomes the 25th party to be banned, this could only weaken moderate Kurds and further deteriorate the situation in the southeastern part of the country. While experts have argued since a debate for a new constitution was launched last year that Turkish legislation should converge with the Venice Criteria, which set the European standards for freedom of political parties in December 1999, no change was recorded. Moreover, lack of reform was matched with the judiciary's negative predisposition. Many Turkish judges have seemed unable to follow suit with the pace of social and political developments. Between 1999 and 2004, when Turkey was moving full-speed towards democratisation and European integration, they seemed the exception, which confirmed the rule. When this process came to a standstill, they spearheaded efforts to undo parts of the reform.
Such opposition often came from the highest level. The Turkish Court of Cassations (Yargitay) has issued several decisions that are highlighted by a spirit of isolationism and obstinate opposition to reform steps. The law allowing the sale of real estate to foreign citizens has been repeatedly deemed unconstitutional. While Turkey's economy was thriving because of increasing foreign direct investment and numerous Turkish corporations expanded abroad, selling Turkish land to foreigners was seen as a compromise of national sovereignty that had to be fought.
In a decision last year regarding a case involving the Ecumenical Patriarchate, the court found the chance to reiterate the official denial of not only the use of the term "ecumenical" but also the legal personality of the Ecumenical Patriarchate. This came at a point when European pressure was mounting and several domestic voices were calling for a reconsideration of the Turkish official position.
In May 2008, the Court of Cassation reached a new peak by annulling a constitutional amendment that had been approved by the parliament and removed obstacles to the use of headscarves in universities. This provision was found to be against the constitutional principle of secularism and, therefore, automatically null and void. Thus, the court seemed to introduce a tutelary role over the parliament and its sovereign right to amend the constitution.
'Insulting Turkishness' or 'Turkish nation'?
Violations of freedom of speech through judicial action have also been plentiful. Due to the notorious Article 301 of the Turkish Penal Code, many intellectuals were prosecuted for "insulting Turkishness". The 2006 Nobel laureate author Orhan Pamuk and the Armenian journalist Hrant Dink whose murder by a nationalist juvenile in January 2007 shocked Turkey were two of the most prominent victims of this legislation.
Mounting pressure from Europe led to the modification of Article 301 in April 2008. What was protected from insult is now the "Turkish nation" and not "Turkishness". In addition, filing a case now requires the approval of the ministry of justice. This falls short of the abolition of Article 301, which local human rights organisations and European authorities require.
The AKP government decided to take a middle position between reformists and nationalists and avoid antagonising the judiciary. Anti-EU feeling was already growing in the judiciary. In a May 2008 speech, the departing president of Turkey's Conseil d'Etat (Danistay), Sumru Cortoglu, warned European authorities to respect Turkish sovereignty and not intermingle with Turkey's domestic affairs.
By identifying themselves with the radical secularist opposition to Turkey's EU-supported democratisation, a large part of the judiciary shows that they have had little understanding of the fundamental transformation of the Turkish society since the 1980s. An introvert and socially conservative outlook was often amplified by a lack of overseas education, even a command of foreign languages. This facilitated the rise of a phobic world view, which opposed the prospect of Turkey's democratic consolidation and European integration. Democratisation was linked with the rise of minority and particularistic interests and eventual partition, while European interest in Turkish domestic affairs was linked to imperialist attempts to partition the Ottoman Empire in the late 19th and early 20th century.
This is not to say that the Turkish judiciary is unique in being conservative and unwilling to compromise what it perceives as national interest for an improved protection of human rights. Analogous problems have been also observed in Greece where verdicts of the Court of Cassation (Areios Pagos) have sometimes resulted in humiliating condemnations for Greece at the European Court of Human Rights. Yet the current stakes in Turkey are high and the judiciary's involvement in political affairs unprecedented. Turkey needs an impartial and democratic judiciary, a custodian of human rights and the rule of law, not of a given social class. Educating Turkey's judges to this mission will be a key step towards the country's democratic consolidation.
(Published on Athens News on 17 October 2008)
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