In the beginning of the first decade of the new millennium, Turkey made significant democratic progress through constitutional and legal reforms implemented under the influence of various internal and external dynamics. These reforms partially mitigated deep-rooted autocratic practices and created a climate of relative freedom, while also providing impetus to Turkey's bid for European Union membership. Turkey thus regained the trust of EU organs thanks to these democratic reforms. As a result, the 2004 progress report on Turkey suggested that the country met the Copenhagen political criteria and that negotiations could start.
A summit held on December 17, 2004 in Brussels decided that talks with Turkey would start in October 2005. The official negotiation process began on October 3, 2005 at an intergovernmental conference in Luxembourg.
Although the membership talks did not proceed as fast as the Turkish side would have liked, reforms to align the legal system with EU standards continued. In this regard, the September 12, 2010 amendments to the Constitution and following legal changes brought Turkey one step closer to EU standards. Indeed, the progress report for 2011 praised various aspects of the 2010 constitutional amendment. It can be said that the amendment expanded freedoms in general, strengthened the rule of law and gave momentum to demilitarization policies. Nevertheless, the most important aspect of the amendment was changes made to the structure and functioning of the Constitutional Court (AYM) and Supreme Board of Judges and Prosecutors (HSYK), which are the guarantors of the rule of law.
The 2010 turn: AYM and HSYK
According to the previous constitutional text, AYM consisted of 11 full members and four substitutes, and all members were appointed directly or indirectly by the President of the Republic. The 2010 amendment increased the number of its members to 17 and discontinued the substitute membership status. Plus, it gave the Turkish National Grand Assembly (TBMM) the right to select three of the 17 members, thus granting some democratic legitimacy to AYM. Furthermore, the amendment gave AYM the right to process individual petitions, and the court came to consist of two chambers and a general assembly.
The 2010 amendment had a much bigger effect on HSYK. The reform radically changed the HSYK’s number of members, membership composition and the methods to appoint those members, while decreasing the influence of the Minister of Justice on HSYK resolutions. In the previous constitutional text, the HSYK was made up of the Minister of Justice and their Undersecretary, as well as five full members and five substitutes, all of whom were appointed by the President of the Republic from among candidates presented by the Supreme Court of Appeals (Yargıtay) and Council of State (Danıştay).
After the amendment, HSYK came to comprise 22 full and 12 substitute members. The Minister of Justice and the Undersecretary remain natural members of HSYK. Four other members of HSYK are directly appointed by the President of the Republic, while the Supreme Court, the Council of State, the Justice Academy, and judicial and administrative judges and prosecutors play a role in the appointment of the remaining members. The number of members is more congruous with the importance of the HSYK, which has also become more representative of various echelons of the judiciary branch.
The independence of the judiciary vis-à-vis the government
Furthermore, it was decided that the HSYK would comprise three chambers and a general assembly, creating a mechanism for objecting to HSYK resolutions. The full judicial immunity granted by the previous constitutional text to HSYK resolutions was partially relaxed, and it became possible to object to HSYK resolutions regarding dismissals from the profession. On the other hand, this amendment has shifted the power to inspect members of the judiciary from inspectors of the Ministry of Justice to HSYK inspectors, and the former now only have the authority to inspect judiciary services. As such, the independence of the members of the judiciary vis-à-vis the government has been strengthened considerably.
The amendment of 2010 kept the Minister of Justice as the chairman of HSYK, but decreased their influence over its resolutions. According to the new Article 159 Paragraph 7, the Minister of Justice cannot participate in the activities of the chambers. The same paragraph also grants the power to select the presidents of these chambers to the HSYK General Assembly, and gives no say to the Minister of Justice in this respect. Paragraph 9 of the said article indicates that members of the judiciary can be inspected by HSYK inspectors, upon the proposition of the relevant chamber and the approval of the Minister of Justice. Thus, the authority to initiate the inspection process has been given not to the Minister of Justice, but rather to the relevant chamber. Paragraph 11 states that a general secretariat is to be established under the umbrella of the HSYK, and that the general secretary will be appointed by the HSYK President from among the three candidates presented by the HSYK.
Following this constitutional amendment, Law no. 6087 was passed on December 11, 2010, decreasing the influence of the Minister of Justice over HSYK decisions. Indeed, according to Article 6, the Minister of Justice will not participate in General Assembly meetings where disciplinary issues are to be discussed or in the activities of the chambers. This amounts to a significant limitation of the authorities of the Minister of Justice. Article 8 states that the Undersecretary to the Minister of Justice is a member of the first chamber but cannot become its president. Articles 29 and 30 of the Law no. 6087 list the cases where the Minister cannot participate in the General Assembly and the Undersecretary cannot participate in the meetings of the first chamber, which prevent them from hampering the functioning of HSYK.
According to Article 29, the Minister of Justice presides over the General Assembly. When the simple majority of the General Assembly members sign a petition to convene the General Assembly to discuss a specific issue, the Minister is obliged to invite the Assembly to its meeting. The quota to convene the General Assembly is 15 and the quota for decision-making is the simple majority of participants. This provision shows that the Minister does not have the luxury of not convening the Assembly if he does not feel like it. The quota to convene the General Assembly is 15, and the 22-member Assembly includes 15 members who are judges. Accordingly, the member judges always have the force to convene the General Assembly.
Article 30 concerns similar quotas for the chambers. Chambers with seven members can convene with five members and take a decision with the simple majority of participants. On the other hand, the demand of the simple majority of the total number of members is sufficient for the Chamber President to convene the concerned chamber to an extraordinary meeting. Accordingly, neither the Minister of Justice can impede the General Assembly from convening, nor can the Undersecretary stop the First Chamber from doing so.
This suggests that the 2010 amendment and the subsequent Law no. 6087 have considerably strengthened the independence of judges and prosecutors compared with the previous period, and have remarkably weakened the influence of government on the judiciary system. Indeed, the Venice Commission has expressed its favorable opinion to the government regarding the 2010 amendment and the above-mentioned law. According to the Commission, these changes serve to strengthen the independence of judiciary in Turkey.
Pluralistic democracy or majoritarian democracy?
The 2010 amendment partially summarized above has aligned the institutions of judiciary oversight such as AYM and HSYK—both legacies of the 1980 military coup—with their equivalents in the democratic world. Naturally, domestic and international public opinion has interpreted this as a step towards pluralistic democracy. However, the government's policies during and following protests which broke out in Gezi Park and spread across the country in May and June 2013, suggest that the shift in Turkey is not toward a pluralistic but rather a majoritarian democracy. During the events eleven protesters were killed; while according to the Chamber of Medicine 8,163 were wounded, eleven lost an eye and countless people were arrested.
This data shows that the security forces used excessive force towards citizens exercising their constitutional right to assembly and protest, in violation of the Constitution's Article 13 on the Limitation of Basic Rights and Freedoms, Article 26 on the Freedom of Expression and Article 3 on the Freedom of Assembly. Furthermore, these practices are also in breach of the EU Charter of Fundamental Rights cosigned by Turkey, and the resolutions of the European Court of Human Rights, considered to be binding by Turkey since 1989. As such, the government's stance toward the Gezi protests has in a way reversed the wave of democratization in the early 2000s, and rapidly steered the country away from European norms.
The Corruption probe of December 17-25, 2013 and rupture with the rule of law
On December 17, 2013, a hitherto unseen corruption probe was initiated. The operation was directed at four ministers at the time (Egemen Bağış, Zafer Çağlayan, Erdoğan Bayraktar and Muammer Güler) as well as their children, and the Azeri businessman Rıza Sarraf. They were accused of large scale embezzlement and corruption.
When faced with accusations of corruption, the government did not choose to support an independent judiciary probe that would either have either prosecuted or acquitted the accused, as should be the case in a democratic society. Instead, the government passed legislative changes to bring the judiciary under its control. To this end, Law no. 6524 was passed on February 15, 2014, which included provisions that increased government's powers over the judicial system.
Law no. 6524 made amendments to the Law on Judges and Prosecutors dated February 24, 1983 and numbered 2802; the Law on the Organization and Duties of the Ministry of Justice dated March 29, 1984 and numbered 2992; the Law on Turkish Justice Academy dated March 27, 2003 and numbered 4954; the Law on Supreme Board of Judges and Prosecutors (HSYK) dated December 11, 2010 and numbered 6087; and the Law on Structure and Judiciary Processes of the Constitutional Court (AYM) dated March 30, 2011 and numbered 6216. Law no. 6524 has introduced the following changes to the legislation, some of which are hardly legible for even experienced jurists:
a. The power to send judges and prosecutors abroad for professional training, which previously belonged to HSYK and the Minister of Justice, was granted exclusively to the Minister. As such the government has come to have direct discretion on the professional development of the members of the judiciary.
b. Previously, successful judges and prosecutors were appointed to overseas representative offices and international courts upon the permission of HSYK and the approval of the Ministry. Law no. 6524 has eliminated the requirement of HSYK’s permission.
c. Law no. 6524 has also weakened HSYK's influence on on-the-job training of judges and prosecutors.
d. Law no. 6524 has given the Minister of Justice full authority to appoint the President and Vice Presidents of the Turkish Justice Academy which organizes the above mentioned on-the-job training programs. Previously, the Minister of Justice could only make a choice from among candidates nominated by the Academy's Board of Directors.
e. Law no. 6524 has also revised the composition of the Academy's Board of Directors. While representatives of Supreme Court and Council of State used to form a majority, after the new law, representatives of the Ministry have come to enjoy a majority.
f. Law no. 6524 has introduced important revisions to Law on HSYK no. 6087. A case in point is Article 8 of Law no. 6087. In the old text of the article, General Assembly had the authority to appoint the full and substitute members of various HSYK chambers, and the members had the chance to elect the chamber presidents. Law on 6524 granted the Minister of Justice the authority to choose the members of chambers, and stipulated that the chambers' presidents are to be elected by HSYK General Assembly from among two candidates suggested by the chambers. This amendment to Law no. 6087 was rightly deemed to be unconstitutional by the Constitutional Court and struck down.
g. Law no. 6524 revised Articles 6 and 7 of Law no. 6087, and shifted the right to appoint the HSYK Chief Inspector from the HSYK General Assembly to the HSYK President, that is, Minister of Justice. This revision was similarly struck down by the Constitutional Court for being unconstitutional.
h. Law no. 6524 amended Article 15 of Law no. 6087 to give to the General Assembly the power to appoint Assembly Inspectors from among two candidates to be nominated by First Chamber for each vacant seat. This power, previously granted exclusively to HSYK General Assembly by the Constitution's Article 159 and the previous law, was limited to First Chamber. The Constitutional Court overruled this amendment, too.
i. Law no. 6524 amended Article 29 Paragraph 2 of Law no. 6087, to grant the Minister of Justice vast powers for convening HSYK to extraordinary meetings. This amendment was likewise struck down by the Constitutional Court.
j. Law no. 6524 revised Article 36 of Law no. 6087 to shift the authority to start an inspection regarding HSYK members, which previously belonged to the General Assembly, to the Minister of Justice. Likewise, the power to appoint the inspection commission was also granted to the Minister. These revisions were also overruled by the AYM.
k. Law no. 6524 revised Article 19 of Law no. 6087 to change the electoral procedure for determining HSYK members coming from the Supreme Court, the Council of State, the Justice Academy and from the areas of judicial and administrative law. While the general assemblies of the Supreme Court, the Council of State and the Justice Academy will have one vote in determining these members, judicial and administrative judges will vote in proportion with the number of their members. This revision gave the impression that the government was keen on shaping the HSYK in line with its own tendencies. Nevertheless, the Constitutional Court struck it down for breach of the principle of equality.
Law no. 6524 introduced the above mentioned revisions (and others) to various laws, with the aim of increasing government control over the judiciary. Such an attempt is clearly at odds with the principle of judiciary independence, the sine qua non of the rule of law. Accordingly, after steering towards constitutional and legal reforms to strengthen the rule of law in line with the Copenhagen political criteria in early 2000s, it seems Turkey has shifted toward rule by laws—a sign of authoritarianism.
Rule by “omnibus laws”
The government's tendency to pass omnibus laws deserves discussion here. This tendency is not new, and has been a dominant aspect of legislation since early the 2000s. However back then, omnibus laws—which amend numerous laws at one time—served to revise the authoritarian and antidemocratic norms which then dominated the judiciary system in favor of harmonization with EU standards.
The objective of the omnibus laws frequently passed in recent times, especially after the corruption probe, is to shape the legal order according to the preferences of the AKP leadership, and to ensure the control of the majority party over the administrative system and judiciary bureaucracy. Such a tendency is clearly at odds with pluralism and rule of law, which form the pillars of European democracy.
The results of the upcoming presidential elections and the following general elections will show whether the Turkish democracy is set to evolve towards pluralistic European democracies or towards authoritarianism based on polarization, exclusion and majoritarianism.