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.