July 15, 2015

Is Turkey’s high judiciary squirming out of political pressures?

Yavuz Baydar

Did the Constitutional Court deliver a severe blow to President Recep Tayyip Erdoğan's personal ambitions of bringing all parts of the state under full control by overturning the Justice and Development Party (AKP) government's decision to shut down privately owned prep schools?

The question is an important one and unfortunately I was out of reach when Ceylan Yeğinsu, a reporter for The New York Times, called me seeking comments.

The ruling comes at a time when Turkey is, once again, seeking a series of paths to balance its shaken and stirred politics by way of coalitions. If the voters on June 7 manifested to the world that all solutions are to be sought within the paradigms of democratic order, the result also brought in a crucial element: The vote that slowed down Erdoğan's pace has an inherent wisdom; Turkey since the Gezi protests and the Dec. 17 -25, 2013 graft probes has been facing a huge legal debris due to power abuses.

The Constitutional Court's ruling is certainly the strongest signal, after its historic verdict to lift a Twitter ban last year, of imposing itself vis-à-vis the political executive. This one about prep schools will have vast consequences.

Its legal context leaves no doubt. Prof Ergun Özbudun, one of the most prominent constitutional experts and a member of the Venice Commission, had made it clear in his strong arguments some time ago that Erdoğan's sanctions against private prep schools violated eight clauses of the Constitution. The court agreed, with strong majority, with many of those claims.

It was a given that such an intervention meant an attack on freedom of enterprise, especially as Turkey has been one of the strongest market economies in the eastern flank of Europe. If Turkey is to remain as a democracy -- albeit a deeply flawed one -- such arbitrary sanctions meant an assault on freedom of education.

So, the court's ruling means reestablishing a rule in favor of free market, leaving the doors open for anyone to launch activities to run prep schools.

In this context, I find the following phrasing in The New York Times story rather simplistic and inaccurate: “The schools, attended by students seeking to pass national high school and university entrance exams, are run by Fethullah Gulen…”

It gives the impression of “exclusive rights,” which is untrue as there are many other private entrepreneurs in the market, although a large part are run by people who are inspired by Gülen's views.

In addition, families in Turkey who do not sympathize with Gülen's views have the freedom of sending their kids to other private prep schools.

Let's leave aside the legal and administrative consequences. They will cause turmoil and take time. The question asked in the first part of this column is equally important.

The overall expectation within Turkey's reform circles is that the judiciary is emboldened enough by the June 7 election results and is starting to clean up the mess caused mainly by one man. For some time now, the Constitutional Court has been criticized by pundits and experts for its delays in cases that required swift action.

This case, as well as the so-called “National Intelligence Organization [MİT] law” -- which provides immunity to the covert actions of the intelligence agency and restricts media freedom -- has been delayed for far too long. Turkey does not have the luxury of time on issues that require a reversal of reforms and damages caused onto the rule of law.

The latest ruling is maybe a little too late, but never too little: It may further encourage members of the judiciary to act with professional dignity.

These are also the days when we hear louder voices from within the high judiciary about systematic pressures.

Ali Alkan, who recently retired from his post as head of the Supreme Court of Appeals, confessed to T24 that “the independence of the judiciary has been suspended” and that “prosecutors often receive phone calls from ministries recommending they open or close files.”

Finally, to further put these into context, most of those high judges who voted in favor of keeping private prep schools open are those appointed by former President -- and Erdoğan's discreet antagonist -- Abdullah Gül.

Whether or not this will have any political significance, though, remains to be seen.

I wish my readers a pleasant Eid Al-Fitr and happy holidays!

Published on Today's Zaman, 15 July 2015, Wednesday