Erdoğan’s HSYK dilemma

The pro-government media put an extremely positive spin on Prime Minister Recep Tayyip Erdoğan’s visit to Brussels last week. Some went so far as to refer to a “new spring” in Turkish-EU ties. Reports in the European media, however, do not corroborate this impression of the visit.

It is clear from official statements from the European side that Erdoğan received serious warnings over the legal and administrative steps his government has been taking, and is trying to take, since the corruption scandal broke on Dec. 17. The EU is particularly concerned over the changes the government proposes to introduce to the law governing the Supreme Board of Judges and Prosecutors (HSYK).

If accepted, these will bring the HSYK under government control, which is what Erdoğan and his government clearly want in order to avert fresh corruption and bribery investigations that tarnish the government’s image. That, however, violates the separation of powers principle, the cornerstone of any democracy.

The EU’s position was in fact made clear by German Foreign Minister Frank-Walter Steinmeier before Erdoğan even traveled to Brussels. According to a German embassy transcript, Steinmeier told reporters in Brussels on Jan. 20 that the only thing to be done at now is to ask Turkey to comply with the requirements of a state based on the rule of law.

European Commission President Jose Manuel Barroso, for his part, said during a joint press conference after his talks with Erdoğan in Brussels that Erdoğan had given “reassurances of his intention to fully respect the rule of law, the independence of the judiciary and, generally speaking, the separation of powers.”

It was telling that the government shelved work on the HSYK bill in Parliament after Erdoğan’s return from Brussels. Erdoğan insists that his government will continue work on this bill this week. Be that as it may, Erdoğan is faced with a quandary.

The reason can be found in a Jan. 14 statement by Gianni Buquicchio, the president of the Venice Commission – an advisory body of the Council of Europe that Turkey is also a member of – which is composed of independent experts in the field of constitutional law.

Underlining that they had not seen the HSYK bill, Buquicchio said the following: “However, we are aware that serious concerns have been raised as to the compatibility of the amendments with international standards and the Turkish Constitution. By contrast, the current legislation, introduced only a few years ago, was positively assessed by the Venice Commission and is generally compatible with international standards.”

Erdoğan’s dilemma rests in the final sentence. The changes to the HSYK in 2010 were done to satisfy EU criteria and were, as Buquicchio said, up to “international standards.”

Any change to the current law will only be acceptable for the EU, and other relevant international organizations, if it improves on the current law.

Erdoğan, however, wants to do the opposite and bring the judiciary under government control. But this violates the separation of powers principle. The bottom line is that Erdoğan wants to reverse the changes to the HSYK law made in 2010 while making this appear as if he is advancing democracy and the rule of law in a manner that complies with the separation of powers principle.

This, of course, is impossible to do. So if he pushes on with his plans for the HSYK, by disregarding the “reassurance” he is said to have given in Brussels last week, there won’t be much of a “new spring” in Turkish-EU ties.

If, however, he complies with EU demands, he will appear to have submitted to outside pressure, a fact that his political rivals in Turkey will use to the hilt. The next few days should give an indication of how Erdoğan works his way out of this quandary.

One cannot help wondering, though, why he insists on painting himself into such corners, which also have negative political and economic consequences for the country as a whole.