Wednesday, 10 September 2014

Rebalancing the Scales: The Forthcoming HSYK Election

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By Gareth Jenkins (vol. 7, no. 16 of the Turkey Analyst)

On October 12, 2014, Turkey’s judges and prosecutors will choose ten members of the Supreme Council of Judges and Prosecutors (HSYK) in an election which is likely to have far-reaching repercussions both for the government’s campaign against followers of the exiled Islamic preacher Fethullah Gülen and the broader issue of political control over the judiciary.

BACKGROUND: Although they had long been rivals within the Turkish Islamist movement, Recep Tayyip Erdoğan and the Gülen Movement formed an alliance of convenience against their shared critics and opponents. In exchange for its political support at home and its lobbying efforts abroad, Erdoğan allowed the Gülen Movement to establish an organized presence in the police and judiciary.

After the Justice and Development Party (AKP) first took office in November 2002 – and despite a growing backlog of cases in the court system – the number of judges and prosecutors initially declined, from a total of 10,377 in 2003 to 10,294 in 2006. However, the number grew rapidly from 2007 onwards to 12,710 in 2010 and 15,656 in September 2014. The difficulty in unequivocally identifying members of what has always been a very opaque movement means that it is impossible to state with any accuracy how many of the new judges and prosecutors were Gülen followers. The task is made more difficult by the varying degrees of devotion that Gülen inspires -- from hardcore activists to sympathizers and fellow travelers. As a result, estimates of the number of Gülenist judges and prosecutors range from 2,500 to around 5,000.

During the AKP’s early years in power, the higher echelons of the judiciary were still dominated by officials who were allegiant to the Kemalist principles of the previous regime. Nevertheless, starting in late 2007 -- after the AKP had rebuffed a clumsy attempt by the once powerful Turkish military to prevent it from appointing Abdullah Gül to the presidency and been reelected in a landslide in July 2007 -- Gülenists in the police and judiciary initiated what was to become a barrage of highly politicized court cases. The most notorious were the Ergenekon and Sledgehammer investigations, which were riddled with absurdities and often blatant criminality, such as the fabrication and planting of evidence.

On September 12, 2010, a series of constitutional amendments were approved in a referendum. Although they were sugar-coated by ostensibly democratizing reforms – none of which has yet been adequately implemented – the key measures were changes to the regulations governing the HSYK, including increasing its membership from seven to twenty-two. With the exceptions of the Supreme Court of Appeal (Yargıtay), the Council of State (Danıştay) and the Constitutional Court, the HSYK oversees all judicial appointments and disciplinary procedures. The addition of fifteen new members enabled the AKP-Gülenist alliance to secure a majority on the HSYK, which in turn allowed the Gülen Movement to fast track its members through the judicial system and shield them against disciplinary procedures.

In December 2013, long-running tensions between Erdoğan and the Gülen Movement finally went public when pro-Gülen prosecutors initiated corruption investigations against 96 suspects with close relations with the AKP leadership, including Erdoğan’s eldest son Bilal. Over the months that followed, Gülen sympathizers posted dozens of seemingly incriminating covert voice recordings on the internet, allegedly implicating Erdoğan and his close associates in everything from contract fixing to money laundering and interference in judicial processes. The intention was to try to damage Erdoğan’s public prestige in the run-up to the local elections of March 30, 2014. Erdoğan hit back, reassigning thousands of police officers and hundreds of judges and prosecutors in an attempt to purge the police and judicial system of suspected Gülen sympathizers.

The internet campaign failed to prevent the AKP from securing a resounding victory on March 30, winning 43.3 per cent of the vote in council elections, rising to 45.5 per cent in municipal areas. Once the elections were over, the stream of apparently incriminating voice recordings came to an abrupt halt. On August 10 Erdoğan became Turkey’s first directly elected president, with 51.8 per cent of the popular vote. On September 1, 2014, the charges against the 96 suspects named in the December 2013 corruption probes were formally dismissed.

Ahmet Davutoğlu, the new leader of the AKP, in his acceptance speech on August 27 pledged to work closely with the new president and continue his campaign against the Gülen Movement, or the “parallel state” as AKP supporters now refer to it. On September 6, Davutoğlu was formally confirmed as prime minister after his government received a parliamentary vote of confidence. Davutoğlu has made only minor changes to the Cabinet he inherited from Erdoğan, retaining Bekir Bozdağ – an Erdoğan loyalist and fierce critic of the “parallel state” – as Justice Minister.

IMPLICATIONS: Even though it has already been able to reassign hundreds of judicial officials, control of the HSYK is still seen as vital to the AKP’s attempts to crush the Gülen Movement: partly because it will make it easier for the government to instigate disciplinary procedures – rather than mere reassignments – against suspected Gülen sympathizers and partly because it will enable it to control the outcome if, as expected, it subsequently launches prosecutions against companies, NGOs and media outlets affiliated with the Gülen Movement.

In addition, since the beginning of 2014, the higher echelons of the Turkish judicial system – particularly the Constitutional Court -- have emerged as the most effective check on Erdoğan’s increasingly autocratic rule. The members of the highest courts are drawn from the lower echelons on the judicial system, which are under the control of the HSYK. In the longer term, control of the HSYK would enable the AKP to filter out what it regards as undesirable elements before they can rise to sufficient prominence to be considered for the highest courts.

Although meetings are chaired by the justice minister, decisions at the HSYK are taken by a simple majority. The justice minister and undersecretary are ex officio members of the HSYK. Ten of the other members are appointed directly by other institutions, namely the Supreme Court of Appeal (three), the Council of State (two), the Justice Academy (one) and the Presidency (four). As a result, only ten members will be directly elected by judges and prosecutors on October 12, 2014. Given that the sympathies and allegiances of the other twelve members are already known, the AKP needs to win at least five of the ten seats that are up for election in order to secure an overall majority.

The AKP has formed what is called the Unity in the Judiciary Platform (YBP), which has drawn up a list of approved candidates for the HSYK elections that will be distributed amongst judges and prosecutors. In recent years, Erdoğan’s rhetoric has often been fiercely sectarian and anti-Alevi. Most of the names on the YBP list are known AKP loyalists. However, in an indication of the party’s determination to eradicate the Gülen Movement, the YBP list also includes some Alevis.

Two other blocs have also emerged. One consists of judges and prosecutors who are broadly sympathetic to the AKP but unwilling to identify with it by joining the YBP. The other is composed of completely independent candidates, mostly social democrats or Kemalists. The Gülen Movement has adopted a low profile. Instead of openly identifying with the movement, pro-Gülen candidates will run as “independents” and rely on word of mouth, rather than the publication of a list, to rally support.

It is currently unclear whether the AKP will succeed in securing a majority on October 12. In addition to attracting international opprobrium, Erdoğan’s increasing authoritarianism and his attempts to utilize the judicial system for his own political ends – not least in the draconian punishments pro-AKP prosecutors have attempted to impose on those who participated in the 2013 Gezi Park Protests – have meant that senior judicial officials have become more willing to speak out. On September 1, Erdoğan led an AKP boycott of the official ceremonies to mark the beginning of the judicial year for fear that senior judges would take the opportunity to criticize what they regard as increased political interference in judicial affairs. There is a possibility that, regardless of their individual political preferences, some judges and prosecutors may be swayed by such expressions of concern by respected members of their own profession.

On 8 September, in what the AKP’s opponents have described as an attempt at bribery ahead of the HSYK elections, Justice Minister Bekir Bozdağ announced details of substantial salary pay increases for judicial officials, including a hike of 29 per cent in the pay of first-time prosecutors. Bozdağ also announced plans for an amnesty for disciplinary offences committed by judicial personnel.

CONCLUSIONS: Although there are undoubtedly many judges and prosecutors who sincerely try to apply the rule of law and remain faithful to the principles of due process, the Turkish judicial system has always been overshadowed by the interests and ideological prejudices of whoever dominates the state at the time. Consequently, it would be misleading to suggest that the AKP’s attempt to control the HSYK represents a violation of pristine judicial independence. What is new is the attempted monopolization of influence over the judiciary, particularly as it coincides with – and is partly a product of – Erdoğan’s dreams of concentrating all political power in his own hands, whether in a de facto or de jure presidential system.

In the years before the AKP came to power, influence over judicial processes was fragmented and could be wielded either by politicians or institutions, most notably the military. Influence over the judiciary remained divided even after the demise of the old regime, albeit this time mainly between the AKP leadership and the Gülen Movement.

Although the Gülen Movement’s size – both in terms of personnel and its vast financial resources -- means that it is unlikely to disappear in the foreseeable future, its domestic and international credibility have suffered irreparable damage. More pertinently, even if it succeeds in having some of its members elected to the HSYK on October 12, in the longer term its influence within the judicial system is likely to continue to decline.

A victory for the YBP list would be yet another setback for any hopes that Turkey might one day have a fully independent judiciary. The inclusion of Alevis on the YBP appears to represent a tactical maneuver rather than a change in Erdoğan’s worldview. The Alevis are likely to be discarded once they are no longer regarded as useful. Similarly, a victory for the genuinely independent candidates for HSYK membership would provide only a temporary respite. If the AKP fails in this attempt to impose its will on the judiciary, there will be others.

(Image Attribution: HSYK)

Read 5101 times Last modified on Tuesday, 16 September 2014

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The Turkey Analyst is a publication of the Central Asia-Caucasus Institute & Silk Road Studies Joint Center, designed to bring authoritative analysis and news on the rapidly developing domestic and foreign policy issues in Turkey. It includes topical analysis, as well as a summary of the Turkish media debate.

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