« In the midst of its own constitutional and democratic crisis, Israel can learn a lot from what went wrong in its neighbor, Turkey, a darkly instructive example of what happens when political elites tamper with judicial independence. » Simon A. Waldman’s analysis in Haaretz on February 21, 2023.
In the midst of its own constitutional democratic crisis, Israel can learn a lot from what went wrong 500 miles north in Turkey, a nearby and darkly instructive example of what happens when political elites tamper with judicial independence.
Turkey is not, and never was, a democracy. And in recent years, President Recep Tayyip Erdogan and his Justice and Development Party (AKP) have all but extinguished the country’s once-tangible opportunity to become one.
However, there was a period from 1999, when Turkey became a candidate for EU accession, to around 2008, that Turkey was in a very real process of democratization.
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Students of political science will be familiar with James Madison’s comment in the Federalist Paper 51 that, “ambition must be made to counteract ambition.” This need to check unbounded hubris is especially true in countries dominated by populist or charismatic leaders who don’t feel humbled by the institutions they represent: figures such as Putin, Trump, Orban, Erdogan, and, indeed, Benjamin Netanyahu.
Madison also explains that it is essential to “enable the government to control the governed; and in the next place oblige it to control itself.” In other words, power must be separated in order to institute a system of checks and balances, else risk individuals, groups, or factions dominating government and eroding democratic practices.
Netanyahu and his coalition want to enable the Knesset, with just a simple majority, to appoint members of the Supreme Court while also weaken the court’s ability to judge whether legislation passed in the Knesset is constitutional. The first reading of a bill to ensure just this change passed on Monday.
Doing so would essentially tilt the balance of power into the hands of the executive and legislative branches, so much so that it is inconceivable that the judiciary would be able to make a serious challenge to the government if it passes legislation that contradicts any of Israel’s Basic Laws or even the Declaration of Independence, the cornerstones of Israel’s unwritten constitution which in practice are the key anchors protecting foundational civil and human rights.
Followers of Turkish politics over the past two decades have seen what happens when judicial independence is targeted. That’s what Erdogan did in 2010, when constitutional amendments were enacted that changed the composition of the Constitutional Court and how its members were appointed.
Erdogan’s onslaught against the Constitutional Court was motivated by retaliation for the events of 2008, when Erdogan’s own party faced closure after the court was asked to decide whether the AKP had violated the secular republican basis of the constitution. Citing Erdogan’s speeches, AKP municipal policies and the lifting the headscarf ban inside universities, the court alleged that the AKP was attempting to expunge the secular principles of the constitution.
The Constitutional Court was just one vote shy of shutting down the AKP but still froze its funding, banned several of its members from politics and issued it with a stiff warning about its anti-secularist activities.
For Erdogan and the AKP, the court’s perceived interference highlighted the behind-the-scenes influence of the military in Turkish politics. Indeed, the men in uniform continued to wield considerable power even after its formal interventions in 1960, 1971, 1980, and 1997.
It was under the purview of the armed forces that the constitution had been drafted in 1982, meaning that the military played what it framed as the role of « guardian » of Turkey’s republic and was represented in nominally civilian bodies and institutions.
In the eyes of Erdogan, the AKP, and their supporters and sympathizers, the beneficiaries of the military’s role were those who considered themselves secular and Western and therefore enjoyed a privileged social, economic and political positions.
Erdogan and the AKP believed the Turkish system was rigged against them and needed a wholescale overhaul to represent the socially conservative values of their supporters.
Erdogan’s ambition to right perceived past systemic wrongs is not a far cry from the discontent voiced by the largely religious, nationalist right in Israel which claims that the Supreme Court serves as a “judicial dictatorship” serving the interests of the secular Left. In their eyes, through Israel’s institutions, and especially the judiciary, the progressive Ashkenazi Zionist establishment restrains right-wing governments’ social, political and political agenda.
After Turkey’s 2010 drastic constitutional changes, Turkey’s democratic moment soon ended.
Instead of greater openness, investigative reporters were arrested. Instead of toleration for contrary views and the freedom of assembly, such rights were trampled on as seen by the brutal suppression of the Gezi Park protests in 2013.
Instead of greater accountability, the opposite happened. For example, in December 2013, a serious investigation into fraud and corruption on the part of governmental officials and even the sons of two ministers was launched; however, the probe was conveniently dismissed as a conspiracy launched by the Gulen Movement, followers of the exiled cleric Fetullah Gulen, and then dropped in 2014.
Instead of freedom of expression, tens of thousands of Turkish citizens a year are now being charged for “insulting” government ministers, especially President Erdogan.
Instead of a fairer playing field in parliament, the opposition, especially the progressive and Kurdish oriented Peoples’ Democratic Party, is constantly targeted, its members’ parliamentary immunities lifted and politically motivated terrorism charges brought against its leading members, most notably the still-detained Selahattin Demirtas.
Then, after the 2016 attempted coup, there was a mass purge of dissenters and opponents in state institutions, and more restrictions on the media and Kurdish politicians. The following year, after a referendum brought to the public under a state of emergency, Erdogan and the AKP managed to pass another constitutional « reform » package that transformed the country’s political system into a centralized Presidency.
Today, Erdogan has the power to issue decrees, declare a state of emergency, dominate parliament, and appoint the majority of judges in the Constitutional Court which has been reduced to being a rubber stamp on governmental policies. No wonder that every year since 2016, Freedom House has defined Turkey as “not free.”
By limiting judicial independence, Turkey’s democratization process was all but extinguished. The same could happen in Israel if the Supreme Court, once celebrated by Netanyahu himself, that ensures constitutional standards in legislation is unable to do its job properly.
Once the judiciary falls, like a stack of dominoes, so too do other democratic institutions and practices. That is why Israelis should take heed from what happened in Turkey.
Dr. Simon A. Waldman is a visiting lecturer at King’s College London and the co-author of The New Turkey and its Discontents (Hurst/OUP, 2017)
Haaretz, February 21, 2023 by Simon A Waldman.