In the past month, a nasty fight has broken out in public between Turkish Prime Minister Recep Tayyip Erdogan and his ruling Justice and Development Party (AKP) on one side and Turkey’s judiciary on the other. Given Turkey’s international reputation as an emerging democracy, casual observers of Turkey may be surprised at the battle underway. After all, judicial independence and integrity are hallmarks of democracy and rule of law, and the fact that the government is alleging improper judicial interference in its activities and attempting to limit the courts’ powers is striking.

While the AKP’s assault on the judiciary indeed does not speak well for the state of Turkish democracy, it comes against a background of decades of the Turkish judiciary behaving as a political actor. Turkey’s courts and prosecutors have inserted themselves into politics in ways that have blurred the line between fairly deciding legal disputes and shaping political outcomes, and this has made it easier for the Turkish government to go after the judiciary with impunity. Previously, both the desire of successive governments to use the judiciary for their own political ends and the willingness of judges to play a political role have eroded Turkey’s judiciary and damaged an important and necessary component of democracy. Now, with the current contretemps between the government and the judiciary, Turkey’s courts appear destined to remain enmeshed in politics for the foreseeable future.

The history of the Turkish judiciary is intertwined with a particular political agenda. Mustafa Kemal Ataturk viewed the judiciary as a central component of his project to build a new modern state that emulated Western institutions. As Turkey evolved politically, so too did its courts, whose powers have ebbed and flowed through different iterations of the Turkish constitution. One constant, however, is that the Turkish state has always envisioned the judiciary as a component of a larger political project, and thus Turkish courts have never been insulated from the wider politics of Turkey. Turkey’s judiciary and legal system were part and parcel of the strategy to create a modern Western state, and it is thus no surprise that they were inculcated with the secular and nationalist values of Kemalism. Like the rest of Turkey’s political institutions, the judicial system was envisioned as part of a state-building project and concerned with protecting the prerogatives of the state, rather than with expanding rights or protecting Turkish citizens from the powers of the state. In keeping with this tendency and Ataturk’s worldview, genuine separation of powers between the legislature and the judiciary did not exist until the 1961 constitution, which laid out the basic judicial system that is in use today and established Turkey’s Constitutional Court.

Turkey’s judicial system will be recognizable to anyone familiar with the legal systems of other European countries. Aside from regular civil and criminal courts and a separate military justice system, Turkey’s Constitutional Court rules on the constitutionality of all legislation passed by Turkey’s Grand National Assembly and has jurisdiction over Turkish government and judicial officials and Turkish political parties; the Court of Cassation is the highest court of appeal from decisions of lower civil and criminal courts. The Supreme Council of Judges and Public Prosecutors, known by its Turkish acronym HSYK, is in charge of all judicial appointments and comprises 22 members, 20 of whom are elected by other judges or members of legal bodies. As the gateway for all judges in the Turkish civilian judicial system, the HSYK wields a large degree of power and is meant to be independent from the government.

The Turkish judicial system appears to contain all the hallmarks of one that is enmeshed in a rule of law regime—independent courts, numerous avenues for appeal, civilian justice walled off from military justice and robust legal guidelines that adhere to a written constitution. Nevertheless, appearances can be deceiving. The Turkish judiciary suffers from a fundamental flaw, which is that it has often behaved as a political actor and is widely perceived by average Turks to be overly politicized. While the notion that courts are completely insulated from politics is a fallacy—in the U.S., for instance, politicians used to be routinely elevated to the Supreme Court, and Justice William Douglas even mounted a presidential campaign while serving on the court—the perception in Turkey is that the judiciary pursues political aims and that justice is far from being impartial.

This is not to say that the entire system is rotten. Problems with Turkey’s administration of criminal justice are generally blamed on police and law enforcement abuses rather than on the courts. And there are many Turkish judges and prosecutors who perform their jobs in a manner comporting with the highest ethical standards. The level of confidence in Turkey that the judiciary as a whole is neutral or impartial, however, is not nearly as high as it should be.

There are good reasons for Turks to believe that the judicial system is an overtly political one. The first and primary reason is that the courts have intervened in Turkish politics even more often than has the Turkish military, which precipitated a coup during each of the past four decades of the 20th century. Articles 68 and 69 of the Turkish Constitution grant the Constitutional Court the power to shutter political parties whose platforms or activities violate a number of principles, including Turkey’s independence and territorial integrity, human rights, equality, rule of law or—and this is the crucial one—the principles of the secular and democratic republic. The Constitutional Court has relied upon this expansive but nebulously defined power on numerous occasions to close down political parties that have threatened Turkey’s hegemonic Kemalist ideology, targeting Islamist parties and Kurdish parties in particular as violating the principles of the republic.

One might argue that the onus for this lies more with the drafters of Turkey’s constitution drafters than it does with the justices of the Constitutional Court; after all, the justices were granted a constitutional power so it is well within their right to use it. The problem is not that the court has closed political parties per se, but the sheer scope of how often this power is invoked: Since its establishment with the 1961 constitution, the court has closed down 27 political parties. To put this into context, postwar Germany—a state that knows the dangers of illiberal parties all too well—has only outlawed two. The total number of parties closed down in all of Western Europe in the post-World War II period is four. One need not be an expert in the vagaries of the Turkish constitution to understand that the Constitutional Court has oftentimes not acted as an impartial arbiter of law, but has rather functioned as a vanguard for the Kemalist elite and its particular vision of what constitutes Turkey’s best interests.

The ruling AK Party has itself come close to the precipice of being closed down by the Turkish courts. The party’s predecessor, the Refah (Welfare) Party, was banned in 1998 for violating the principles of Turkish secularism, less than one year after a Refah Party government was toppled by a military coup. Refah had been formed after two of its forebear parties had themselves been banned, and the AKP arose out of the ashes of Refah in 2001 and came to power in 2002. In 2008, however, following its second consecutive electoral victory, the AKP was brought up on an indictment before the Constitutional Court that sought to ban the party and 71 of its members from politics for violating the secularism enshrined in the constitution. While six of the court’s 11 justices voted to institute the ban, Turkish law requires seven votes to shut down a party and bar politicians from public life. Thus the AKP narrowly escaped the fate met by many of its predecessors. The court did decide, however, by a 10-1 vote to cut the AKP’s public funding in half for engaging in activities contrary to Turkey’s secular principles. Given the Kemalist makeup of the court, it was in some ways a surprise that it did not go all the way and ban the AKP entirely, overwhelming electoral victories notwithstanding.

The AKP closure case is a good example of the malignancy baked into Turkey’s judicial system. There is no doubt that the courts themselves are politicized and have used their powers to punish political adversaries, but at the same time the powers granted to the judiciary make it structurally impossible for Turkey’s judicial system to ever be viewed as entirely impartial and above political pressures. In Germany, for instance, the Constitutional Court has the power to ban parties but only if they seek to undermine or abolish the democratic order or endanger the existence of the German Republic. These are narrower grounds than those set forth in the Turkish constitution, and the Turkish Constitutional Court thus frequently becomes enmeshed in political struggles. By comparison, in the U.S., the “political question” doctrine is a settled area of constitutional law that prevents courts from ruling on issues that are political, rather than legal, in nature. Despite the fact that the Turkish constitution explicitly requires political parties to behave in a certain way and vests power in a court to determine whether or not parties should be allowed to remain legal, it does not change the fact that judging parties to be outside the bounds of certain principles is a normatively political decision. When a court comprising 11 justices has the power to unilaterally dictate which parties and individuals are allowed to participate in formal politics based solely on an ideological litmus test, it must exercise restraint if it is to be perceived as being an impartial and fair adjudicator. Because of its history of interventionism, the Turkish Constitutional Court is perceived as a political actor no different than political parties or advocacy groups, and is not granted the deference due a nonpartisan apolitical institution.

During the era of Kemalist domination and military tutelage, the judiciary was viewed as being a cog in the engine of the state, enforcing Kemalism and complicit in efforts to harass the state’s political enemies. During the second part of the AKP decade, what has changed is not the role of the judiciary but the groups upon which it sets its sights. As the AKP won three consecutive national elections and installed judges and prosecutors who shared its worldview, the judiciary remained a tool of the state, but one with new priorities. The judiciary now began to target those who had previously persecuted religious and non-Kemalist Turks, namely the military. The AKP has been widely lauded for bringing the military to heel and making it subordinate to elected civilian governments rather than the other way around, and the judiciary was the actor perhaps most greatly responsible for this turn of events through its prosecutions of hundreds of officers for coup plots.

This process, however, was not a straightforward one in which the rule of law was respected. Rather, it involved going after the AKP’s political opponents, blatantly fabricating evidence and generally treating the military as a target of reprisal in reciprocation for previous coups directed against religiously inspired or Islamist governments. The AKP and its allies in the Gulen movement were using the judiciary against the military in the same way that the Kemalists had used the judiciary against them, and by the time the Ergenekon and Balyoz trials—the two most prominent prosecutions targeting the military—were over, one in five of all living Turkish generals were in prison, the Turkish navy was left without any officers of a high enough rank to serve as service chief of staff and prosecutors had requested 15-20 year prison sentences for hundreds of officers.

Erdogan and the AKP have continued a long Turkish tradition of viewing the judiciary as an institution that can be effectively used to bolster the authority of the central government. Rather than try to create a truly independent judiciary, Erdogan has worked to create a judiciary more sympathetic to his views and beholden to the newly ascendant Turkish political class. In 2010, the AKP held a referendum, which passed by a wide margin, to approve as a package deal a number of proposed constitutional amendments, including some that dealt with judicial reform. The most controversial amendments dealt with reform of the HSYK, as they involved a nakedly blatant attempt to make the body more sympathetic to the AKP. The council was enlarged by 15 people, four of whom were directly appointed by President Abdullah Gul, himself an AKP co-founder, and 10 of whom were elected by Turkey’s judges and prosecutors, whose ranks by then included many more AKP supporters than had previously been the case.

Erdogan and the AKP portrayed reform of the HSYK as a way to make the body more democratic and responsive to the will of the people, and while this may have been technically accurate, it obscured the AKP’s intent of creating a judiciary that was more friendly to itself and its allies and less so to its foes. In this case, responsiveness and independence were working at cross-purposes. Winning elections in many democratic countries, including the U.S., involves the right to appoint like-minded judges to various courts, but the remaking of the HSYK fed into Turkey’s history of using the judiciary as a blatant extension of government power.

The fight that has broken out over the past couple of weeks, centered directly on the judiciary, can only be properly understood as fitting into this context of the judiciary as a political actor. While the battle is one between the AKP and its erstwhile Gulenist allies, the AKP has turned it into a proxy fight over the judiciary, which is believed to be largely controlled by members of the Gulen movement. After prosecutors launched wide-ranging graft investigations into executives of the state-owned Halkbank, ensnaring sons of three government ministers and others closely connected to the AKP and looking to bring Erdogan’s son Bilal in for questioning, the government fought back furiously. More than 2,000 police officers have been purged or reassigned; lead prosecutors in the investigations have been replaced or threatened; the government attempted to pass a law that would require all police officials to notify their superiors—such as the interior minister—of any investigations in progress; and prominent AKP members have darkly accused anti-government forces of attempting a “judicial coup.”

Moreover, despite having reformed the composition and manner of choosing members of the HSYK in 2010, the government this week introduced legislation that would strip powers from the HSYK and transfer them to the justice minister along with granting the justice minister supervisory powers over the HSYK that will eviscerate any independence it has. The opposition and the head of the HSYK itself have declared the bill unconstitutional, but Erdogan appears poised to move ahead with the legislation nonetheless.

Finally, in a further move targeting his previous compatriots in the judiciary, Erdogan has voiced support for reopening the military trials that were prosecuted by the same officials now taking aim at Erdogan’s government for graft. Observers have interpreted this as Erdogan trying to gin up the military’s support, but this misses the true aim. Erdogan is not concerned with gaining the support of the military, a body that will never fully trust him no matter what he does. Rather he is using any means possible to discredit the judiciary. After all, if the same people now going after him can be shown to have organized sham trials in the past, then their credibility will be ruined. And thus, Erdogan’s old enemies in the military are now his newfound friends.

Erdogan’s allegations about a politicized judiciary carrying out a vendetta against the government are not meritless. Much as prosecutors and judges had no qualms about using limited evidence of a military plan to replace the government as the basis for mounting a full-fledged assault against Turkish officers, the fact that the graft allegations are very likely true does not change the fact that the timing of the new investigations is political. The corruption investigations have been widely interpreted as the Gulenist response to Erdogan’s attempts to close down the Gulen movement’s prep schools, which are an enormous source of funds and recruits for the movement. While the AKP and the Gulen movement were allies for the better part of a decade, tensions have built up between them in the past few years as they have emerged as Turkey’s two most powerful actors, and the prep school closure proposal was seen as Erdogan’s move to check Gulenist power.

That many Turks accept at face value that the judiciary is trying to overturn the results of free and fair elections, and that Erdogan and government spokesmen can brazenly wage open war against Turkish law enforcement and judicial officials without missing a beat, is as good an example as exists of how the judiciary is viewed in Turkey. The courts are not seen as upholding the rule of law, but as upholding the prerogatives of the state. Whereas in the past the courts convicted prominent people for appealing to religion—such as Erdogan himself, who was jailed while mayor of Istanbul for inciting religious hatred after reciting a poem in public that referred to mosques as barracks and minarets as bayonets—now the courts convict prominent people for insulting religion. Those who control the state have changed, and the courts have correspondingly changed along with them, but their political role has remained constant.

Turkey’s judiciary is a byproduct of the original sin of using the courts to protect the state and the state’s ideology, rather than using the courts to protect the citizens and their rights. The judiciary, from the courts to the prosecutors, has always been composed of political actors with a political agenda, and this type of legacy is very difficult to overcome. The judiciary is seen by all sides as another prize to be won and is treated as political spoils, and the courts themselves have often fed this image by willingly playing the part. This is a thread that has survived the transition from the Kemalists to the AKP, and the current AKP machinations seeking to more tightly control the judiciary and eliminate any vestige of judicial independence make perfect sense in light of this history. The prospects for the Turkish judiciary to evolve into a less political role are grim so long as the judiciary is seen as a political actor by Turks of all stripes. As Erdogan and his government brawl with the courts and the courts hit back, democracy and rule of law suffer in ways that will take decades to fully repair.

Michael J. Koplow is the program director of the Israel Institute and an analyst of Turkish and Middle Eastern politics. He blogs at Ottomans and Zionists.

Photo: Turkish Prime Minister Recep Tayyip Erdogan, June 7, 2012 (photo from the website of the government of South Africa).