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Political crisis and the question of rule of law in Turkey

Turkey’s rule of law is under severe strain and its judiciary is no longer independent. Halil Gurhanli explores why fears of a return to military command should not be underestimated amid corruption, escalating authoritarianism and embittered rivalry between the ruling AKP party and the Hizmet Movement

Halil Gurhanli
15 January 2014

Everything that has come out into the open following Turkey’s current political crisis in the wake of a graft probe on December 17, 2013, points in one direction: a brutal battle between the AKP government and certain civilian/bureaucratic circles within the judiciary and police forces.

The ensuing scandal poses the greatest challenge to PM Recep Tayyip Erdoğan in his 11 years as leader, threatening a break-up within his party in the face of three elections during the next 18 months as well as further damage to Turkey’s already fragile economy.

Portrait photo of Prime Minister of Turkey, Recep Tayyip Erdogan

PM of Turkey, Recep Tayyip Erdogan, during a meeting held in Chile, November 2012/ Wikimedia Commons/Government of Chile

Many Turkish analysts have locked themselves into a model zero-sum game of “who will win and lose?” But arguably the most worrying aspect of the current crisis is the exponential way in which it has permeated every sphere of the state, casting the principle of the rule of law in Turkey into question. As touched upon in detail below, instances of arbitrary use of executive and judicial power have been abundant since the unfolding of the graft probe, which has led the Speaker of Parliament Cemil Çiçek to admit that, at the moment, there is no independent judicial review in Turkey. This is an extremely dangerous prospect for Turkish democracy, whereby the public have justifiable reasons to doubt the independence and trustworthiness of its judiciary and wonder whether the rule of law even applies anymore.

Corruption probes

The current political crisis in Turkey began on 17 December 2013 when the police detained dozens of people in raids, including the sons of three cabinet ministers (of Interior, Economy, and Environment and Urban Planning), the CEO of the largest state-owned Turkish bank (Halkbank), a construction business tycoon and a mayor from the AKP, as part of an investigation into alleged bribery to win public tenders and the smuggling of gold into Iran.

At the centre of the investigation is Reza Zerrab (Sarraf after he obtained Turkish citizenship), an Iranian-Azeri businessman, who is accused of circumventing the US-EU embargoes over Iran through gold transactions from Turkey to Iran using Halkbank. It is claimed that in a complicated gold-for-oil (or gold-for-gas) trade scheme Turkey opened various accounts for Iran at Halkbank to pay for the Iranian oil and natural gas it was buying. Through his intermediary company registered in Turkey, Safir Gold, Zerrab and his team allegedly used the deposits in these accounts to procure $13 billion of gold from international markets and then sent them to Iran via couriers from March 2012 until the US government banned gold exports to Iran in July 2013.

In 2012 alone Zerrab’s company accounted for almost half of all Turkish gold exports (46%). The scheme not only enabled Iran to circumvent the international embargo, but also boosted Turkey’s export figures, helping the country to narrow its exceptionally high current account deficit. While Zerrab and his partners were getting their cuts, they were also paying millions in “commission” (i.e. bribes) to the Minister of Economy ($49 million), CEO of Halkbank ($7.7 million) and many others. Video footage of the police searching houses and offices belonging to the suspects revealed millions of dollars’ worth of cash stashed in shoe boxes and safes. Besides this, Zerrab and his partners are also accused of using front companies as well as Halkbank to launder billions of dollars of black money for numerous Iranian tycoons, including Babak Zanjani, once again paying “commission” to various people who are either AKP members or very close to the party.

It is clear that the probe has already cost the AKP government a great deal. Allegations of corruption, bribery, and tender-rigging implicating high-ranking members of Erdoğan’s government raise serious doubts about his party’s claims to “purity” (members and supporters have always insisted on being called AK [“pure” in Turkish] Party). Albeit denying any wrongdoing, three ministers whose names were involved in the probe resigned a week after the police raids. Unlike the other two who just left their posts and remained as AKP deputies, Minister of Environment Erdoğan Bayraktar resigned from both the government and the parliament urging the Prime Minister to step down himself, claiming that he knew about the construction projects under investigation. In total eight MPs resigned from the party during this period of turmoil, voicing their dissatisfaction with how the party had been dealing with the allegations.

PM Erdoğan, on the other hand, condemned the probe as part of the same panoptic conspiracy responsible for the June 2013 anti-government protests in Turkey, alleging plots against AKP government by domestic dark forces and foreign financial organisations, media and governments unhappy with Turkey’s economic growth and independent foreign policy in the region. Claiming the existence of a vast network consisting of a “parallel state” that has for long infiltrated deep into the ranks and cadres of state apparatuses and abused state power for its own purposes, he vowed to launch a war in order to cleanse the Turkish state of this clandestine organisation. His top political advisor took these claims even further and suggested that, through a series of coup d’état trials based on false evidence, the military had been framed by the same prosecutors of this “parallel state” who launched the corruption probe against the government using similar tactics.

Mother of all battles

Most observers of Turkish politics are convinced that the reference by Erdoğan and his staff to a “parallel state” is to none other than the faith-based Hizmet Movement led by US-based influential Muslim preacher Fetullah Gülen. The fact, in particular, that for the last few months Erdoğan and Gülen have engaged in a thinly veiled war of words through their corresponding media outlets, actually strengthens this conviction. According to its proponents, the current crisis stems from a recently emerging rivalry between the Islamist-rooted AKP and the Hizmet Movement. Followers of the latter are said to have held key positions in the ranks of police forces and the judiciary. They maintain that a series of incidents in the last few years have led to a deterioration in the relationship between these two religiously-informed actors, who had once forged a close alliance against the military tutelage used to fuel Turkey’s draconian secular regime over the past fifty years. Through a series of controversial coup trials that have led to the imprisonment of many high-ranking military commanders, including former army Chief General İlker Başbuğ, for planning to overthrow the AKP government, they have managed to establish civilian supremacy over military powers. As Henri Barkey recently observed:

“With the military gone, the two movements began to suspect each other. The Erdoğan government felt increasingly irked by the power of the Gülen movement, which was seen as overreaching by getting sympathetic prosecutors and judges to punish its critics in the media and elsewhere. The Gülen movement grew increasingly fearful of Erdoğan’s accumulation of power and his total domination of the Turkish political scene.”

The gap between the two began to show first when Gülen publicly denounced the Turkish government’s decision to expel the Israeli ambassador over the Israeli special forces’ attack on the Mavi Marmara aid flotilla that sailed from Turkey to Gaza in May 2010. Following the failed attempt to break the Israeli blockade, which resulted in the killing of 9 Turkish activists, PM Erdoğan condemned Israel’s move as a “historic mistake” and demanded an apology. Gülen, on the other hand, expressed his disapproval of the mission claiming the Turkish side was to blame because the flotilla had not obtained Israel’s consent.

But the real breaking point that poisoned relations between the AKP and Hizmet movement was the so-called “MIT (National Intelligence Organisation) crisis”. In February 2012, a prosecutor called in five intelligence officers, including the MIT head Hakan Fidan, PM Erdoğan’s most important confidant, for interrogation as suspects responding to charges that they had illegally made contact with several senior members of the Kurdistan Workers Party (PKK). Though it is impossible to say, many analysts, and apparently the government, believe that it is the followers of the Gülen movement within the judiciary who were behind the move against Fidan, whom they suspected secretly profiled Gülenists. But in any case, as Fidan and others refused to testify, warrants were issued for their arrests.

Defending his confidant vehemently, PM Erdoğan ordered a series of legal amendments before the arrests, taking MIT personnel under his personal shield. The operation quickly withered away as the prosecutor in question was removed from the case and investigated for overstepping his authority, while about 700 police officers who took part in the operations were transferred to different cities.

A young Turkish lady holding a banner against Facism in Turkey at the protest in Whitehall London

London protest in Solidarity with Turkish Protests against ruling AKP, June 2013/Demotix/ Pete Dewhirst

As a recently leaked 2004 national security document signed by PM Erdoğan and members of his cabinet revealed, the AKP government has long perceived the Gülen movement’s presence within the state as a potential threat and made contingency plans to cut it down to size. But with the MIT crisis, leading figures in the AKP government began to complain openly of a “parallel state” and the purges of Gülenists from state institutions have accelerated.

Erdoğan’s supposed coup de grace, as Barkey calls it, came when he announced the decision to shut down Turkey’s prep schools, a quarter of which are owned by Hizmet affiliates and constitute the Movement’s greatest source of financial revenue and a means of attracting followers. It is this latest attempt by the AKP government to cut the Gülen movement’s main blood vessel that led to the current situation of all-out war in which neither party pulls any punches anymore. While Erdoğan aims to eradicate Gülenists from the state apparatuses using whatever means necessary, including forging an unholy alliance with the secularist-military apparatus, the Movement seems to have burnt bridges not with the AKP per se but with Erdoğan, and thus started utilizing its full resources to force the AKP to transform itself by envisioning a future without him.

And the rule of law?

This “mother of all battles” narrative which portrays the current political crisis in Turkey as the latest round of a prolonged power struggle between the AKP and Gülen movement is quite convincing as an overwhelming majority of observers seems to concur. Though it gives partial credibility to PM Erdoğan’s assertion that the probe is the making of a clandestine organisation within the state, this narrative does not explain the AKP government’s conspicuous silence regarding the actual content of corruption claims that reach all the way up to Erdoğan’s son who was allegedly pictured in Istanbul while discussing a shady state-property deal with Yasin al-Qadi, a Saudi Arabian businessman until recently listed as a “specially designated terrorist” by the US Treasury for his links to al Qaeda. It also falls short of providing any toolkit to unveil what possibilities lay ahead for Turkish politics. Should one observe this battle from a safe distance (if there is such a place) deploring both sides whilst indulging in their ability to inflict increasingly deadlier blows on each other? Or should one plunge into pessimism, conceding that it is the Turkish public who will suffer most in this battle of giants, regardless of its eventual winner?

Notwithstanding the answers to those questions, it is crucial to observe that Turkish politics is proceeding on extremely dangerous ground where the state apparatuses are fortified by weapons alone. In what seems to be turning into a turf battle to control state institutions, the line between legal and illegal has become dangerously blurred. Since this scandal’s eruption, the government has given the impression that it is more inclined to punish the investigators than to root out corruption.

PM Erdoğan has unleashed a series of major blows against the police, dismissing or reassigning dozens of police chiefs and about 2000 police officers. Crucially the first wave of this massive reshuffling within police ranks was sanctioned by the previous Interior Minister Muammer Güler in the days after his son was detained and subsequently arrested. Although Güler offered his resignation immediately, PM Erdoğan, contrary to public expectations, kept him in the cabinet for over a week before accepting his resignation and appointing his own undersecretary to the post

A picture of Turkish PM Recep Tayyip Erdogan dressed as a Nazi is seen as protesters stage a demonstration in Berlin

Demonstration against AKP and Recep Tayyip Erdogan in Berlin, June 2013/Demotix/Christian Jaeger

Recent reports also indicate that newly installed police chiefs have refused to act upon the search and arrest warrants issued by prosecutors and judges. So much so that Muammer Akkaş, the head prosecutor leading the investigation, publicly accused the government as well as the Chief Public Prosecutor’s Office of exerting pressure and obstructing his task. Akkaş told the press that files have been taken away from him and that police chiefs, by disobeying his orders, have deliberately allowed room for the suspects to “take precautions, flee and tamper with evidence.” He was immediately removed from the case and is currently under investigation for breaching secrecy of the probe, whereas the Chief Public Prosecutor and the police chief in question have been offered immunity by the Justice Minister before any investigation has begun. Ominously, according to media reports, among the list of suspects to be summoned were Yasin al-Qadi and PM Erdoğan’s son, Bilal.

Initially, the AKP government aimed to thwart the probes mostly by replacing police officers who carry out the investigations; its authority over the judiciary remains much more limited thanks to an earlier bill the party supported as part of a constitutional change accepted in a referendum back in 2010. A week into the crisis, however, the government decided to extend its sphere of influence over the judiciary, pushing through a decree that obliged public prosecutors and police chiefs to inform their superiors (i.e. the government) of their investigations in advance. Once the Supreme Council of Judges and Prosecutors (HSYK) found the decree unconstitutional, the Council of State annulled it the following day. PM Erdoğan then openly declared war on what he referred to as the “judiciary coup”. Debate then focused on the need to restructure the HSYK, the body that appoints and removes members of the judiciary and the prosecution service.

The European Commission and Amnesty International, on the other hand, have already voiced their concerns, identifying the move as a serious setback for the independence of the judiciary in Turkey that would allow the government to cast its shadow over the judiciary at all times. Although some of its clauses have already been passed by the parliament where the AKP holds absolute majority, legal scholars hope the Constitutional Court will annul the decree. But the problem is that despite the shrewdest and most seasoned observers of Turkish politics, it is near impossible to predict what the court’s decision will be.

And this is the most worrying aspect of the current turmoil which has already turned into a fully-fledged ‘state crisis’. Combined with the AKP government’s already questionable record in the areas of human rights, rule of law and democratization, it has shaken Turkey’s politico-legal system to the core.

Although the probes appear to have stalled for the moment largely because police and prosecutors working on them have been replaced, with the March 2014 local elections approaching, which many consider to be the most challenging round yet for the AKP, it is quite possible that new waves of confrontation between the two sides are imminent. In fact some consider the current situation to be the calm before the storm; once parties submit their finalized candidate lists to the Supreme Electoral Council, the point of no return will have arrived. The expectation is that voters will decide once all the dirty laundry has been publicly washed and then make their voice heard loud and clear on 29 March.

Protesters gathered in Taksim Square are intercepted by riot police.

Police intervene in protests in Istanbul, July 2013/Demotix/Evren Kalinbacak

However, the question is, can one still take the basic democratic principle of “free and fair elections” for granted in Turkey? After all, it is a special branch of the judiciary which oversees the voting and counting process (Supreme Electoral Council), and, if necessary, intervenes by commanding the police in order to ensure that this principle is upheld. The sheer brutality of the current battle seems to have so blinded Turkish decision-makers that in order to be victorious they have resorted increasingly to the arbitrary use of executive, legislative and judiciary powers, forgetting that it is precisely this principle they cast into question. As Daniel Dombey from Financial Times has recently warned:

“During a crackdown on protests last year, Turkey at times looked like Hungary, whose heavy-handed government has eroded the independence of state institutions in recent years. Today, it risks becoming more like Ukraine, where observers question whether the rule of law even applies”.

Should the country fail to restore this tarnished reputation of the judiciary and rule of law before the local elections, on March 30, 2014, voters (especially those in the two biggest metropolises, Istanbul and Ankara, where the election race is expected to be very close) may well find themselves questioning the most basic principles of representative democracy having possibly been denied free and fair elections.

It would be a huge shame to roll the country back to the dark ages of democracy after all that has been accomplished in the course of the last decade. This emerges as the most pressing aspect of the current crisis because the distance between today’s Turkey and a failed state is unfortunately a lot shorter than one would have thought just a few weeks ago, so much so that some even speak of a possible return of the military tutelage system.

 

  

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