In Turkey, the resolution of the jurisdiction issue is still pending. Trust in the justice system is yet to be established. Despite the fact that quite a diverse group was elected to the Supreme Board of Judges and Prosecutors (HSYK) in October 2014, the harm that the justice system suffered in the past could not be overcome. One of the main reasons for this setback is the severity of the damage caused by the Gülen Movement. Another reason, which in my opinion, is the most important, seems the structural and constitutional problems which lie at the heart of our judicial system.
Both these problems cannot be properly comprehended by those working at EU institutions, because they base their discussions and actions solely on expert opinion, which is insufficient for understanding Turkey's law and judicial system. Beyond expert knowledge, what seems needed is an awareness of the socio-political and historical facts about Turkey, if outsiders are to gain any insight into the judicial and legal problems of our country.
No system can be built without a history of political choices, and a certain goal must be pursued while building a new system. This goal is not related to the perfection of the system. On the contrary, it is related to the individual and social imaginations and ideals of the political elites and sovereign powers who build the system. This aspect of the issue is completely political, or at least, it requires knowledge and cultural accumulation. Expert knowledge, on the other hand, only has meaning within the context of local data and the consistency of the system that forms it. It is known that the original goal of the current system in Turkey is not a democratic one.
Last week, this problem came to prominence in all its dimensions at a meeting held by the Turkish Economic and Social Studies Foundation (TESEV) in Brussels. The views of the European Commission and European Council on the problems of Turkey are generally based on expert opinion. However, as stated above, such expert opinion is quite remote from the historical and sociopolitical facts, which shape the legal and judicial system. In this case, the question of why the judicial institutions are designed in a strict centralist way loses its sense.
The reason for the Kemalist political elites to attach so much meaning to jurisdiction cannot be explained. The discussions can also trivialize the matter of how the Gülen Movement was able to infiltrate judicial institutions. And once this issue is trivialized, it is difficult to see why this organization must be eradicated from the system. When this point is not understood, attempts by the government to deal with the situation give rise to uninformed accusations of "McCarthysm" - of some kind of putative witch hunt. Consequently, when viewed from the position of "expert opinion," all measures taken by the government and Parliament are seen to be wrong, and anyone who objects to this view turns into a "legal opponent."
Of course this approach might create a negative picture of Turkey. As furthermore, according to the picture painted by such expert opinion, any group not in accordance with democracy, even fascist, marginal or revolutionist groups can be automatically labeled as "democratic opponents." So when the rules of law or measures to protect social order are brought to bear upon those groups, the erroneous perception of "opposition under pressure" can be created.
Such outcomes are the unintended result of relying solely on expert opinion. But it seems that sometimes, this blinkered approach is a deliberate choice, since the fact that Turkey is reproachable in the EU can function as a political choice rather than a technical problem.
Highlighting expert knowledge to such a degree also leads to another problem. Turkey has EU candidate status. It must comply with EU standards in order to synchronize its legislation and judicial system. Therefore, the standards formerly practiced in countries that were ex-Soviet states are now applied to Turkey in the exact same way.
However, there is not a single mutual EU standard, particularly in jurisdiction. Such standards have been labeled by experts. They are generally the views approaching democratic will with doubt and which authorize experts and bureaucrats with as much sovereignty as possible. It is highly doubtful whether this is democratic. The EU should better highlight a political perspective beyond expert opinion on the matter of jurisdiction in Turkey.
About the author
Osman Can is a Law Professor and Reporting Judge at the Turkish Constitutional Court. He holds a PhD from the University of Cologne, Germany.