Law of the jungle in Turkey

Failure to execute court judgments when it does not serve the interests of the political authorities, a lackluster performance in the effective implementation of judges’ orders and foot-dragging in their enforcement have now become hallmarks of the ruling Justice and Development Party (AKP) government under the authoritarian Prime Minister Recep Tayyip Erdoğan. Although the situation has certainly taken a sharp turn for the worse against the backdrop of a huge corruption scandal implicating Erdoğan and some of his family members, the arbitrariness in the observance of the rule of law during the AKP era is definitely not a new phenomenon. There have been several road markers indicating the government’s flagrant disregard of court judgments when it was not pleased with the decision.

The case law of both the European Court of Human Rights (ECtHR) and the Turkish Constitutional Court provide an ample window into decoding the policy of the Erdoğan government with regard to respecting the rule of law. For example, the privatization tender for the state-owned Cellulose and Paper Factory (SEKA) in Balıkesir on March 25, 2003, only a couple months after the AKP came to power, represents the classic mindset of the Erdoğan government on how to sell state assets to pro-government businesspeople for far under their prevailing market value. The state enterprise — situated on 1,800 decares of land (approximately 538 acres) with 185 housing units, social facilities and other buildings and assets — was sold to Albayrak Turizm Seyahat İnşaat Ticaret A.Ş. for $1.1 million through direct negotiations, during which the company was the sole bidder.

The sale of the paper mill gave Albayraklar Holding, the owner of daily Yeni Şafak, a staunch supporter of Erdoğan, a great advantage over its competitors, which were forced to import paper. The Cellulose Workers Union sued the Supreme Privatization Board (ÖYK), a government agency controlled by Erdoğan, to cancel the sale. On July 28, 2003, the Bursa 2nd Administrative Court ruled that the sale of the mill — which had been valued at $51 million — for just $1.1 million violated the public interest as well as the privatization law. In an interim decision, the court granted an injunction against turning SEKA over to its prospective owners and later decided to cancel the sale on Oct.15, 2003, notifying the Privatization Administration (ÖİB) in Ankara of its ruling.

The ÖİB was supposed to initiate procedures to repossess SEKA, yet it challenged the interim ruling by the Bursa 2nd Administrative Court in a higher court, the Bursa Regional Administrative Court. But it lost the appeal on Sept. 18, 2003. The ÖİB later filed a challenge in the top administrative court, the Council of State, to reverse the lower court’s rulings but again lost the legal suit when the Council of State refused to cancel the injunction decision on May 7, 2004 and upheld the lower court’s rulings on June 6, 2005. On Feb. 2, 2004, the ÖİB was finally compelled to notify Albayraklar Holding to return the properties it had acquired in the tender and filed two lawsuits against the company when it failed to do so. The company lost the first lawsuit in the court, and the decision was upheld in the appellate court as well. The decision on the second lawsuit is still pending.

When the Erdoğan government realized that it would not be able to bypass strict rules and regulations governing privatization deals by invoking administrative privileges, it decided to circumvent checks in the system using Parliament, where the ruling party has a majority and can push through any law it likes. The first attempt was made in December 2010 when the government buried a substantial revision in an omnibus bill to render legal challenges against completed privatization tenders futile. The provision in the draft cited the impracticability of implementing court decisions to reverse privatization deals and as such justified the failure to enforce court rulings. Faced with the opposition’s stand against the provision and the ensuing critical coverage in the media, the government had to drop the provision during deliberations on Law No. 6111 in the Planning and Budget Commission.

When the AKP’s maneuver in routine legislative work backfired in the commission, the Erdoğan government resorted to a new and more subtle approach. It parachuted a similar provision overnight into Parliament and had it tied to another omnibus law, No. 6300, in April 2012 during a debate on the assembly floor. The opposition did not have a chance to mount a significant challenge to this last-minute motion, and the issue escaped public and media scrutiny. Erdoğan immediately made the best use of this new law and had the Cabinet issue a decision in June 2012 that made challenging the SEKA privatization deal — among others — in a court of law impossible, citing “impracticability” issues.

Not only did Erdoğan bypass constitutional protections of judicial review on administrative decisions, he also tried to escape from the legal consequences of his government’s actions. For example, in another privatization deal that awarded Eti Alüminyum A.Ş. to Ce-Ka A.Ş. for $305 million on June 2005, an Ankara court issued a judgment against Erdoğan, five Cabinet ministers and two government officials for disregarding various court decisions that canceled the sale and ordered the restitution of the properties that had been handed over to the company. Erdoğan had to pay a fine for proceeding as if there had been no court decision and pressing ahead with the privatization deal nonetheless. Hence, the last-minute change in the omnibus bill allowed Erdoğan to escape the consequences of his contempt of the judges’ orders and to act with impunity in lucrative contract and tenders.

However, Erdoğan’s jubilation turned out to be short lived because the Constitutional Court — acting on a petition for annulment from the main opposition Republican People’s Party (CHP) — decided to cancel this provision of the law. On Oct. 3, 2013, the Constitutional Court ruled that the provision which gave the Cabinet the power to bypass judicial review on administrative decisions based on a “physical impracticability” proviso violated the Constitution. It said the provision contravened several articles of the Turkish Constitution that emphasize the rule of law, the independence of the courts and judicial review of government actions. It also warned that the Cabinet cannot assume the role of the judiciary in adjudicating legal disputes over privatization tenders.

What is more, most of the Constitutional Court judges did not find the government’s defense of the amendment “credible.” For example, in defense of the new provision in the law, the government cited lengthy judicial proceedings that last for years and that make it difficult to reverse privatization deals because the company would have invested already and it would therefore be costly to return properties to the government. That is not true, however; the court granted an injunction against the SEKA deal after four months, but the ÖİB intervened very late and tried to return the properties handed over to Albayraklar Holding. Hence the damage due to delay cannot attributed to the court but rather to the government agency that was initially reluctant to comply with court judgments. The court also said that it is always possible to calculate the amount of compensation to be awarded to a company for capital investments and other costs incurred in the meantime.

According to the Constitutional Court, the provision violated the right of access to the courts and the right to fair trial because the administrative body — the Cabinet — is empowered to prevent implementation of court judgments. The Turkish Constitution mandates that only the courts can adjudicate legal disputes and not the executive branch. It also said that the law in its current form violated the rule of law enshrined and protected in the Constitution. Though the top court announced its interim decision on Oct. 3, 2013, the government did not enforce the Constitutional Court’s decision, claiming that the reasoned decision had not yet been published in the Official Gazette, according to Finance Minister Mehmet Şimşek, responding to a parliamentary question on March 11, 2014. The court’s decision was published in the Official Gazette on March 27, 2014, and we still do not know when and how the government will enforce this judgment. SEKA is unfortunately just one example, and there are many other cases like it.

As with the Constitutional Court’s decision ordering the lifting of the Twitter ban in Turkey, a decision which Erdoğan said he did not respect, he probably loathes the court for the decision that canceled the law to bypass the judicial system in privatization tenders. The SEKA case clearly reveals how the Erdoğan government wanted to circumvent the rule of law in Turkey ever since the first days of his rule. Erdoğan just feels more comfortable now in blatantly disregarding the court rulings as he has consolidated so much power in his hands over the 12 years of his rule. That is why he defied a court decision reiterating the illegal nature of the destruction of an Ankara forest where the government is currently finishing the construction of a huge new complex for the Prime Ministry in a first-degree environmentally protected zone. Despite the Ankara 11th Administrative Court’s decision to halt the construction on Feb. 17, the government has continued with the construction and Erdoğan has vowed, “I will open it and sit inside it.”

Fearing that investors will be scared away from investing in Turkey with the suspension of the rule of law, Turkey’s economy czar and Deputy Prime Minister Ali Babacan warned this week that the country cannot be governed by what he called “the law of the jungle.” Perhaps it is “the law of Erdoğan” that keeps undermining the rule of law and prevents the full and expeditious compliance of the government with the courts’ judgments.

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