A small but decisive step towards rule of law in Turkey?

“The power to become habituated to his surroundings is a marked characteristic of mankind,” writes John Maynard Keynes in the opening sentence of The Economic Consequences of the Peace. “Very few of us realize with conviction the intensely unusual, unstable, complicated, unreliable, temporary nature of the … organization by which Western Europe has lived for the last half century.”

Keynes wrote his book shortly after participating in the 1919 Paris Conference, but replace “Western Europe” with “Turkey” and you’ll get a sense of what we felt like in the wake of the failed military coup attempt on the night of July 15. 

7/15 for Turkey is much like what 9/11 was to the United States – a major trauma that will leave an imprint on everything that comes after it. It has been three months now, and the country is still under a state of emergency. This is an appropriate constitutional response in democracies. France also activated a state of emergency after the terrorist attacks in its capital. 

There are many differences between the Turkish and French cases, but two are particularly striking. Turkey’s state of emergency legislation was drafted by the government of the successful coup of 1980. It was designed for General Kenan Evren to run the country single-handedly with no checks and balances. Ironically, today’s anti-coup government is not shy about wielding that power. Herein lies the first significant difference: Turkey and France are now both governed under a state of emergency, but there is judicial control over administrative decisions in France, while so far there is no such control in Turkey. The state of emergency in Turkey has temporarily abolished the separation of powers. 

The second difference is that Turkey, unlike its European counterpart, is not a country with strong institutions. Institutions that cannot protect themselves from a political firestorm have trouble doing their jobs. If you ask me, rising concerns over freedom of expression are directly related to the overhaul of the judiciary system. Having weaker judicial influence over the police department and public prosecutors is definitely detrimental to freedoms. 

Turkey has never been very strong in terms of the rule of law. The World Justice Project’s recently released Rule of Law Index 2016 is a case in point. This year, Turkey ranks 99th out of 113 countries, down from 82nd out of 102 in 2015. We rank last in the “Eastern Europe and Central Asia” category and 36th out of 37 in the upper middle income group. In comparison, Brazil is 52nd and South Africa is 43rd. Even Russia - where people have been “disappeared” and elections are rigged – is ranked above Turkey in 92nd place. This is what we mean when we say that the “state of emergency a la Turca” is definitely bad for the country’s rule of law ranking. 

But amid all this bad news, Turkey still took one step in the right direction this last week - a small yet decisive step. It is both about strengthening the role of parliament and bringing back judicial control over administrative decisions. Coming back from recess on Oct. 1, parliament discussed and accepted the first “decree by the power of law” (DBL 667) of the State of Emergency. DBL 667 is now an “ordinary” law and can be contested in court. The Constitutional Court now cannot refrain from accepting a case to overview the state of emergency measures related to DBL 667. This was the first step to reestablishing the rule of law after 7/15. 

Of course, this is only a small step. The rule of law will continue to be a hot topic of debate for Turkey. Nevertheless, it is a step in the right direction. It indicates that the country still sees itself as a state of laws. 
Now Turkey needs to do three more things. 

First, open all the remaining DBLs to judicial review, making the Turkish state of emergency commensurate with the French one. Second, establish a deliberative parliamentary commission for the drafting of new DBLs and overseeing their implementation. Third, start a judicial reform process. These things are all under discussion in Ankara and all are moving forward, albeit at different speeds.