Courts and the judicial system are supposed to produce resolutions in contested issues within the guidelines of the Constitution and in light of universally accepted rules. Yet in Turkey we have a highly politicized higher judiciary and many controversial Constitutional Court decisions that draw the ire of many. They seem to have locked themselves in a turf battle, not a separation of powers issue, and would like to retain the special privileges and perks they have been enjoying thus far.
The narrow worldview that only espouses parochial vested interests is no longer sustainable in the new emerging Turkey, active both politically and economically in many regions in its immediate neighborhood. Personally I have given up on a change in the mentality and thought processes of most people occupying posts in the higher judiciary. No matter how many training programs you throw out there, I do not think it will matter to these people. The latest program, by the way, was announced in April by the EU and Council of Europe together for a 3.3 million euro program of exchanges and training seminars especially targeting branches of the higher judiciary in Turkey, but I don’t imagine it will lead to any gains.
Sadly, most people abroad who have close dealings with the Turkish judiciary seem to agree on this point. The secretary-general of the Council of Europe’s Venice Commission, Thomas Markert, whom I had a chance to converse with during the summer session of the Parliamentary Assembly of the Council Europe (PACE), was very frank. He said he does not believe that change will occur in the older breed and suggested a hiring spree in the judiciary from members of the younger generation who have a better understanding of global values. I believe he is right.
Even the ambassadors of many Western nations that I speak to from time to time in Ankara concede the fact that the Turkish judiciary has disassociated itself from the universally held principles of independence, the rule of law and impartiality. When it was explained how the Constitutional Court may overstep its authority in the charter with judicial activism, one ambassador from an EU member state described it as the “suicide of the court.” Well, he is right. We have been on a suicidal path for a long time, indeed.
What will happen if the court goes ahead and violates the constitutional prerogative of the legislation by striking down the adopted amendment? It can review the changes on a procedural basis but not on substantive grounds as clearly laid down in the Constitution. But we have seen in the past how the court can become very active when it overturned the headscarf amendment adopted by 411 deputies in the 550-member assembly. The stain of judicial activism was permanently recorded in its register.
Now, unfortunately, the stakes are much higher, and the nation has a lot to lose if much-needed changes are to be struck down by the court. The business world does not like uncertainty and stresses the need for stability and predictability. We all remember how much the closure case against the governing party in 2008 cost the economy. The Treasury had to pay an extra TL 2.5 billion in interest just because of higher risk premiums. The total loss of companies in the İstanbul Stock Exchange (İMKB) topped $80 billion. During the seven months of the trial, outgoing foreign capital reached $997 million, while 20 international companies decided to suspend investments worth $3 billion. Economists estimate the cost of the trial to the Treasury to be TL 20 billion.
On a positive note, however, we have strong support from outside actors for the reform. The European Union, to which Turkey aspires to join, endorses these changes. When I asked why the screening results on Chapter 23 of the acquis communautaire, concerning the judiciary and fundamental rights, were not officially communicated to Turkey, Stephen Füle, the EI enlargement commissioner, repeated the EU’s support for these changes, putting some member states on the spot for the delay in communicating the results. “We shared the results with the Turkish government and have explained what needs to be done in judicial reforms on many occasions,” he said.
When he visited Turkey two weeks ago, Füle said in İstanbul: “If changes are put into practice, this could make positive contributions to Turkey’s performance in the enlargement process. It could have a positive impact on our assessment report to the European Parliament and the European Council in November about the progress Turkey makes.” The Council of Europe, the largest intergovernmental body championing the rule of law, democracy and fundamental human rights, lauded the changes. Its advisory body, the Venice Commission, welcomed the changes and said, “That is what we would have suggested to Turkey to do if it had asked our opinion.” Now Markert says the government is working with the commission to lay down a strategy to enact new laws in line with the proposed constitutional amendments.
I should also note here that it’s not only people in the higher judiciary who are working hard to prevent these changes from taking effect, but that some of our diplomats in foreign posts are also not happy with these changes. I was told by a senior justice official that he was rebuffed by some Turkish diplomats in EU member states over meeting with European partners to explain and consult on judicial reforms. The Justice Ministry has embarked on a briefing tour to inform European officials about these changes and consult with them to share their expertise. Yet a few of our own diplomats have tried to block these meetings, citing procedural grounds.
These futile attempts will not prevent the true account of what is happening from being disseminated in Turkey. Foreign diplomats know very well who is doing what in Ankara and are keeping a close tab on these reforms. But it would be a shame to miss the opportunity to have direct contact among Turkish and European justice officials. I would not be surprised if Foreign Minister Ahmet Davutoğlu starts chiding some of our diplomats for dereliction of duty.