Politics and the judiciary

Rule of law has been one of the leading topics of discussion since the establishment of the Republic of Turkey. The founders of the secular republic which was built on the ruins of the Ottoman State, attempted to ground it in a hybrid model of politics and law, in every sense of the word. Almost a century later, the young republic, in a jumble of reference values and principles, still cannot make up its mind on “what it is” exactly. A radical project of Westernization, from abolishing the Caliphate to changing the alphabet, was imposed on the political and social legacies of the Ottoman by the Kemalists. Obviously, the result was a disaster. The elite, having transformed themselves voluntarily, exiled the social segments and their values that had occupied the social and political center for centuries. In the almost one hundred years since then, the real tensions revolved around the question of “who will acquire the state”? There was a constant struggle between those who tried to hold on to the state and those who were trying to get a hold of the state.

Once the transition from single party to multi-party state was complete, the masses that had been expelled from the center by force began to move towards the center once again, albeit rather hesitant and shy. After the electoral victories of various right parties representing these masses in the 1950s, they attempted to control the power of the center once again. This attempt was prevented with the coups planned by the military – the self-declared guardians of the regime. AK Party as the first actor that managed to overcome the threat of a military coup actually took control over the social and the political center by the power vested in it at elections.

Even though the military tutelage was forced to withdraw to a certain extent, the ideological codes and references of the secular state survived within the judiciary. Particularly the constitution, a product of the 1980 coup, persisted with all its problems. All the partial redrafting of the constitution in 2010 managed was a simple reorganization of some institutions of the judiciary. Even though the constitutional institutions were relatively more democratic after the referendum, they were not above being exploited by certain organized structures with in the judiciary. Nevertheless, even if the judiciary were reorganized to become the most independent legal system in the world, the problem that is facing us right now would not disappear. That is the main issue that is source of the problems today.

That is to say, not even the most just legal system can compensate for a scenario in which the prosecution, the judiciary and the police collude.

It is futile to expect the law to resolve the predicament we are in right now. We are, in fact, facing a political problem, not a legal one. If there is a solution to this, it can only be found after a political intervention to restructure the judiciary to become more democratic. In other words, the police-prosecution-judiciary bonds must be severed in a way that would prevent them from colluding in the future. This is an organizational issue. The bigger issue at stake is drafting a new constitution that is the source of reference for the legal system. The legal system that Turkey has been condemned to for almost a century, a legal system that cannot carry its weight, can only be transformed with a new constitution. Also, such a move would save the state from being perceived as the center of power that needs to be acquired.