Turkey’s judiciary: how much sense does the European Commission make?

There were few surprises in the European Commission’s 2010 progress report for Turkey, which was published on November 9th. On the issue that has most divided Turkey over the past year—the effect of September’s constitutional reforms on the judiciary—the Commission’s report formalises the cautiously optimistic line that many international observers have taken. First, it welcomes the reforms as “a step in the right direction.” Second, it qualifies that welcome by noting that the “implementation of the amended constitutional provisions through legislation, in line with European standards, is key.”

I have a few reservations about this formula. For one thing, I think that the phrase “through legislation” could usefully be removed from the second quote in the paragraph above. Yes, legislative change is an integral part of any constitutional reform process. But concerns about the implementation of reforms don’t end with the drafting of new legislation. That legislation then has to be applied on the ground, and it is at this stage of the process that the gap is widest in Turkey between formal moves towards democratisation or liberalisation and aspects of the country’s political culture (some authoritarian, some traditionalist) that pull in other directions.

To illustrate this with reference to previous Commission reports, take the issue of women’s rights. When the Commission issued its first progress report on Turkey in 1998, it somehow felt able to say the following: “The status of women in Turkey is increasingly in line with that prevailing in most EU countries.” Moreover, it gave the impression that most remaining problems could be dealt with by a single vote in parliament: “A new draft Civil Code was approved by the Council of Ministers on 25 August 1998. It is now at the Committee stage in the TGNA. If approved by the Parliament, these new provisions would remove most of the discrimination still existing between men and women.”

To say that this assessment of gender equality in Turkey was breathtakingly naive would be an understatement. For one thing, we have to make our way through four more annual progress reports before the Commission can confirm that the Civil Code referred to above had taken effect at the start of 2002. And, of course, the code didn’t magically remove most remaining discrimination in the way the Commission had thought it would. In its 2003 report the Commission pointed out that implementation both of the code and of other measures relating to gender equality had been “very limited.” (A good illustration here is the report’s next sentence: “The internal code of the Parliament is still not in line with the provision lifting the ban on the wearing of trousers by female civil servants.”) In last week’s 2010 report, the Commission notes with rueful understatement that gender equality remains a “major challenge.”

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With hindsight, the Commission would probably have been better off had it adopted a less rose-tinted assessment of the status of Turkish women back in 1998. I wonder now whether the same applies to its assessment of the judicial reforms that were approved in September’s referendum. In formal terms, I think the Commission is right to say that the changes are a step in the right direction. But how much does this mean in a country where many formal provisions are more honoured in the breach than the observance?

I would have preferred the Commission to have described the changes as a potential step in the right direction, subject to their implementation in line with European standards, and in line with the progress that’s needed on a range of potentially related broader issues (including, notably, the corruption that pervades Turkish public life).

In addition to providing a more realistic assessment of what has actually happened (and one that learns from the lessons above about the risks of prematurely ‘banking’ improvements that have yet to be fully delivered), a greater degree of caution from the Commission in its response to September’s judicial reforms would have made for good tactics in terms of positioning the European Union as a more credible voice across Turkey’s  increasingly polarised political spectrum. A sizeable minority in Turkey worries that the AKP government’s judicial reforms are as much about extending the party’s political control as they are about deepening democracy. The Commission appears to be content to ignore these views entirely.

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Three pages of the Commission’s 2010 progress report deal specifically with Turkey’s judicial system, which is assessed across three dimensions: independence, impartiality and efficiency. The first two of these are of more fundamental importance than the third, but on both of these crucial dimensions elements of the Commission’s reasoning are weak and troubling.

Take the Commission’s first paragraph in relation to judicial independence, which reads:

“As regards the independence of the judiciary, the constitutional amendments increased the number of full members of the High Council of Judges and Prosecutors [HSYK] from seven to twenty-two. In addition to representatives of the Court of Cassation and the Council of State, the new members include representatives of first instance judges, the Justice Academy, law faculties and lawyers. This new membership lays the foundation for making the High Council representative of the judiciary as a whole.”

Do these three sentences make any sense? Without at least one unspoken and unsubstantiated assumption, I’m not sure that they do.

The core of the argument in this quote from the Commission appears to be that the judiciary will be more independent if the HSYK is more representative. But that can’t necessarily be the case. It’s very easy to construct a scenario in which greater representativeness leads to reduced independence. For its argument to make sense, the Commission must believe that individuals in the heretofore under-represented tiers of the judiciary are more independent than their counterparts from the Court of Cassation and the Council of State. Perhaps. But that’s not a trivial claim and it’s certainly not self-evidently true. If the Commission’s argument rests on such a claim, shouldn’t it at least be stated—and preferably defended—rather than just being silently assumed?

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The Commission devotes three paragraphs to the question of the impartiality of the judiciary. All three concern the military in one way or another. The first paragraph applauds a shift in the balance of power away from military courts and towards their civilian counterparts. The second paragraph explains the way in which the membership of the Constitutional Court will be increased, highlighting for criticism the fact that two military judges will retain their positions. The third paragraph notes that “Senior members of the judiciary and of the military have made statements that could put the impartiality of the judiciary at risk in important cases.”

Is it really credible that the only threats to judicial impartiality come from the military? In the Commission’s view, it appears that “civilian”and “impartial” are synonyms. If the military’s influence on the judiciary can be ended, the unspoken argument seems to run, then impartiality will have been achieved.

Surely this takes us back to the realm of breathtaking naiveté? Off the top of my head I can think of a variety of non-military factors that might undermine the impartiality of Turkey’s judiciary. First, the  corruption and patronage that are endemic in the country. Second, the undue strength of the executive branch, which is of particular concern at the moment given the near-total absence of a legislative counterweight owing to the lack of an effective opposition. Third, the political polarisation that colours so much of Turkish public life.

Of course, the elephant in the room in relation to questions of judicial impartiality in Turkey at the moment is a fourth factor: worries about the possible attitudes to secularism and Islam of the judges that will rise through the system while the religiously rooted AKP is in power. This question is at the heart of the “confrontational political climate” that the Commission refers to in its report, and yet the analytical framework that the Commission adopts when assessing the judiciary overlooks it entirely.

I’m not arguing that the Commission should necessarily agree with the AKP’s critics in its assessment of the judicial system. I’m making the much more modest suggestion that the Commission needs to be asking a broader range of questions than it currently seems to be asking. There is more to the healthy functioning of Turkey’s judiciary than its protection from military influences. If the Commission can’t develop a framework in its progress reports to reflect this fact, then it would seem unlikely that the Commission (or the EU more broadly) will wield significant credibility (let alone sway) in the debates currently swirling around the country about the direction in which Turkey ought now to go.