Mimar, Artun

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Recognizing Turkey’s Anti-Rule of LawSystemArtun Mimar 2020-10-20T10:10:59On October 13, a criminal court of first instance defied the authority of the TurkishConstitutional Court (TCC). A similar challenge to the TCC’s authority by a firstinstance court had occurred over two years ago. In present-day Turkey, however,it is wrong to see such fundamental violations of the rule of law as an unfortunateexception to an abstractly conceived system of rules. Rather, they should beconsidered as the manifestation of a well-functioning anti-rule of law system.Beyond the doctrinaire explanationAs was already made clear over two years ago, the refusal by first instance courtsto implement a TCC judgment is unconstitutional. It has been unfortunate inthe meantime to see that Turkish constitutional(ist) commentators, in trying tomake sense of what is going on, have been limiting their explanatory frameworkto normativism (the legal belief that duly enacted legal rules are/should be self-executing, no matter what is happening in the context in which those rules aresupposed to apply) which simply leads them to explain how the first instance court’saction is legally incorrect and how the first instance court should have decided thecase. These writers generally go on also to remark that it is unacceptable, in astate under the rule of law, to not follow a judgment rendered by the ConstitutionalCourt (see, e.g., here, here and here) as such action harms the fundamentals ofconstitutional rule. In other words, in their opinion, law, no matter what is happeningoutside legal texts, is/should be taken to be a system of self-executing rulesoperating according to a hierarchy of norms and further thinking is to be based onthis conception of law.Yet, none of these commentators have been able to answer questions that havebeen gaining importance over the last couple of years such as, “How is it possiblethat first instance courts defy the authority of the TCC and get away with it? How is itthat the TCC does not stand up for its authority? Why is it that other state actors aresilent on this defiance? Can we reasonably predict the kind of cases where we willwitness disobedience on the part of the first instance courts, or violations of the ruleof law in general?” Considering this shortage in normativism, I would like to suggesthere that, in today’s circumstances, the constitutional commentators (in Turkey andin other countries where the rule of law cannot be presupposed anymore) shouldprimarily adopt an empirical approach instead of a normativist one so that they cantruthfully claim to possess “constitutional knowledge”. In today’s circumstances,it does not make sense to take a normativist approach unless one has, in thefirst place, well-worked out empirical prepositions as the normativist approach isnot applicable across all the legal scene and that the empirical approach would- 1 -provide the normativist approach with information on whether it is worth engaging innormative thinking in a particular situation.Developing a solid empirical approachTo develop such a guiding empirical approach we should first examine the exactrange of institutions that engage in the open breach of the law and when theyengage in it, which would make us avoid overestimating the actions taken by afirst instance court (or any other individual entity) by holding them responsible foreverything bad that is happening. Then, once we understand systematically whois breaching the law and in which situations, we can put forth general prepositionsabout the limits of the rule of law in Turkey and thus avoid wasting time discussinglegal mathematics that are ineffectual beyond the proposed limits of the rule of law.What would be of particular interest when arriving at general empirical prepositions isto ask whether all state institutions that engage in the open breach of the rule of lawagree on where exactly the anti-law space begins. If not, why?First, the question of which institutions breach the rule of law in Turkey. It is veryeasy to answer this question because since 2015-2016 all state institutions havebeen rule of law-violators from time to time. Not only the Executive (the Head of theState, the Ministers, the governors, the prosecutors etc.), but also the Legislatureand the Judiciary at all levels have violated the rule of law. One should mention inthis connection that the TCC itself contributed a great deal to an anti-rule of lawculture. For example, it unconstitutionally dismissed two of its members. Even worse,this action by the TCC encouraged other institutions (judicial and non-judicial) tounconstitutionally dismiss their own members too.Another prominent example is the case of Osman Kavala, a philanthropist, humanrights activist and a prominent civil society leader who was detained in October2017 with the allegation that he attempted to overthrow the Government by forceand violence or to prevent its proper functioning by having been, in the view ofthe prosecutor’s office, the instigator and leader of the Gezi protests. AlthoughKavala filed a constitutional complaint against his detention arguing that none of hisactions were criminal and therefore there was no “reasonable suspicion” as to hishaving committed a crime, the TCC upheld the first instance court’s decision with noreasonable legal argument. Kavala’s case was then brought before the ECtHR whichnot only found that Turkey had violated Kavala’s right to liberty but also that hisdetention was carried out for purposes other than those prescribed in the Convention(violation of article 18 of the Convention), namely to silence dissent. This and manyother cases show how the TCC has been discouraging citizens from exercising theirconstitutional rights and how authorities have been getting away with not followingthe law.Secondly, we should answer the question of when state authorities deviate fromthe law. This is also very easy to answer. They deviate from the rule of law in caseswhere President Erdo#an requires so (or appears to require so) and in cases where,given the authoritarian constitutional tradition of Turkey, state authorities havenever been adequately held accountable anyway (for example, the factual power- 2 -of policemen to randomly ask for identity cards without cause). Following the latestnews about President Erdo#an’s wishes and reading a bit of Turkish legal historywould help citizens to know and act upon the legal situation much more than readinglegal texts and putting forth legal arguments. Erdo#an often makes his wishes quiteclear and once he does, constitutional commentators should reasonably predict thatnorms cannot stop him from getting what he wants (see e.g. for such a public speechby Erdo#an, see the case of Kavala, para.61). The anti-rule of law takes action firstand foremost against people who have the potential of creating effective oppositionto the regime. People who used to be opposition actors but who gave up, go back tobeing a subject of the rule of law (e.g. Nazl# Il#cak, a dissenting journalist, who wassent to prison, apologized to Erdo#an in a letter after spending some time in prisonand then was released).The ultimate decision-makerWe can now put forth general empirical prepositions about the limits of the rule oflaw.1. There is no institution that one can always trust in terms of rule of law application.Any institution of the state can potentially ignore the rule of law.2. There is no subject matter that can be said to be necessarily outside the anti-rule of law space as there is no legal/institutional limit on what Erdo#an mightillegally require. Many dissenters have been suffering, for example, from civildeath since the two-year state of emergency declared in 2016; i.e. they have beenunconstitutionally prevented from exercising even basic rights.3. Therefore, one may suggest that Turkey is a dual state. Unless Erdo#an requiresotherwise, individuals will be governed under the rule of law and enjoy equaltreatment. But if otherwise, they will be governed by anti-rule of law.An interesting question is why first instance courts have challenged the TCC inthe cases mentioned above and how they have gotten away with it. My tentativeexplanation is this: It is a fact that Erdo#an had not made strong statements againstthe individuals involved (unlike, e.g., Kavala) and they were not as much high-profile as other persons (like Ahmet Altan in the first case and Can Dündar in thesecond case, both journalists who have been governed under the anti-rule of lawsince Turkey’s dual state turn). In addition, the TCC might have taken it upon itselfto defend the Constitution in situations where Erdo#an appears to have some sortof preference, but not a strong one. However, the first instance courts judges, asthey have more career concerns than the TCC judges, are much more attentive toErdo#an’s wishes (for example, the prosecutor who wrote the indictment of Kavalawas quickly promoted). They are afraid that one day in the future the fact that theysomehow “upset” Erdo#an can be used against them. They do not wish to leavetheir career to luck. Finally, Erdo#an does not seem to be bothered by what’s goingon, which implies that he has chosen to side with the first instance courts in thesecases. The fact that the Council of Judges and Prosecutors, captured by Erdo#an,does not start disciplinary proceedings against these judges is a sign of this (seehere and here). This is the reason why the TCC could not stand up for its authority,- 3 -as it is Erdo#an who ultimately decides where the anti-rule of law starts, and all stateinstitutions should realign themselves accordingly.Informed reflectionsThe refusal of first instance courts to implement the TCC decisions cannot beregarded as an attack on the authority of an independent constitutional courtconceived of as the last beacon of the rule of law because there exist no morecontre-pouvoirs in Turkey. Rather, it should be formulated as a disagreementbetween dual state organs on where exactly the rule of law ends and the anti-rule oflaw begins. In concrete cases (both about individual rights and allocation of powers amongdifferent authorities), commentators should thus first empirically ascertain whetherErdo#an has preferences, whether he appears to have changed his preferencesover time, whether the persons and issues involved are high-profile and the kind ofinterests different state organs possess. Without this, one cannot convey knowledgeabout the functioning of the current regime in Turkey and, going one step further,one cannot reflect on how to change the way things are.- 4 -

Recognizing Turkey’s Anti-Rule of Law System

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Recognizing Turkey’s Anti-Rule of Law System

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