Over the course of the last week, a wave of detentions of more than a hundred police officers resulted in the arrests of a score of them and continued detention beyond the legal timeframe of the rest. This news largely went under the radar beyond Turkey.
The episode brings the relations between different branches of government in Turkey into question again. The separation of powers doctrine constitutes one of the fundamental tenets of democratic governance. In its ideal form, it suggests that the three branches of government (legislature, executive, and judiciary) should be independent of each other to establish an institutional mechanism to control state power. Ideally, it helps ensure that abuse of power does not occur. Separation of powers is also a key component of constitutionalism.
The notion of the separation of powers dates back to Montesquieu. In his book The Spirit of the Laws, Montesquieu states:
“when legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is not separate from executive power... If it were joined to executive power, the judge could have the force of an oppressor. All would be lost if the same man or the same body… exercised these three powers: that of making the laws, that of executing public resolutions, and of judging the crimes or the disputes of individuals”.
Ultimately, separation of powers protects individual citizens and their freedoms and helps to avoid arbitrary rule. While presidential democracies epitomize separation of powers, each branch being a completely different body, parliamentary systems appear to have some overlap between the legislative and executive branches, failing to uphold such a strict separation. We must note however, that the judicial branch is independent from the other two.
Corruption scandal aftermath
In recent months, Turkey appears to have significantly receded from its previous commitment to separation of powers in its parliamentary democracy. Some major judicial reforms have paved the way for politicization of the judiciary in the immediate aftermath of the corruption scandal involving members of PM Erdogan’s cabinet.
The initial wave of reforms included restructuring of the Supreme Board of Judges and Prosecutors (HSYK), which gave the justice minister extensive powers to control different chambers of the board as well as open investigation against any member of the board. This opens the way to the politicization of the judiciary and violates separation of powers. Noticing this, the Constitutional Court annulled the law in early March. This reform drew criticisms from different corners of society, including members of HSYK and lawyers across the country.
In the meantime, hundreds of members of the judiciary were purged to obstruct justice in the aftermath of the corruption scandal. As a result, the corruption charges are all but cleared in the judicial system, and the parliamentary inquiry into the involvement of four ministers in the allegations remains stifled due to obstruction by the majority holder, AKP. At this point, lack of progress into the allegations appears as a huge setback for accountability and rule of law.
Criticisms also came from external actors. European Commission President Barroso reinforced the EU’s commitment to separation of powers by stating, "Whatever the problems are, we believe that the solution for those problems should respect the principles of rule of law and separation of powers.”
Recent judicial reforms
An early harbinger of what was to come appeared in PM Erdogan’s victory speech immediately following the March 30 local elections when he suggested that the opposition would “pay for this” and that the government would “enter their lair”.
In June, PM Erdogan stated that legal reforms were on the desk of President Gul and that, “We are working on a project. When it is completed the process will pick up speed,” which was in reference to purging those who were actively involved in unearthing and prosecuting the December 17 corruption charges. Soon changes were instituted to the judicial system, annulling penal courts of peace (sulh ceza mahkemesi) and replacing them with penal judgeship of peace (sulh ceza hakimligi). When asked why such a change was necessary, Justice Minister Bozdag suggested that it was to “eliminate” differences in judicial application across the country and to decrease time of prosecution. Interestingly, PM Erdogan had a different take on this reform. He claimed, “What’s at the disposal of HSYK is very limited. Now that the judicial process is commencing, penal judges of peace will take it from here.”
Setting all arguments about the legal merits of the reform aside, two things are very clear. On one hand, the executive branch clearly has political motivations in instituting judicial reforms, which appears to be eliminating opponents through the legal system. On the other hand, the extent of executive intervention into the legal system is seriously concerning, severely undermining the objectivity of an independent judicial inquiry into the government’s allegations against opposition. It seems as if steps were taken to ensure the intended goal of the government before investigations even began.
A significant concern here is how appointments to this court are made. There is cause for concern. Three of the six judges appointed in Istanbul were controversial figures. Specifically, these judges dropped the cases against major figures in the corruption scandal early on without serious inquiries. Some even shared “likes” of Erdogan on their Facebook accounts. Developments during the week of July 21 gave it an interesting twist. More than a hundred police officers and chiefs were detained in their involvement in the corruption investigation. Curiously, it was the judges who dropped the corruption charges and were appointed to the newly-established courts to prosecute these police officers who in the first place brought the corruption charges to law. As it turns out, many of the detained police officers were kept beyond the legal timeframe for detentions without formal charges. Regardless of what transpires to the detained police officers and chiefs, the whole process is replete with an utter disregard for the rule of law and the principle of separation of powers.
None of this bodes well for Turkey. Membership of the EU is seriously under threat, as the EU expresses concerns about rule of law and separation of powers. Ordinary citizens face severe restrictions to their political liberties; it takes courage to speak out against government policies. Overall, fears increase that this might be Turkey’s turn to an illiberal democracy.