While the judicial battle between Turkey’s two supreme courts occupies the country’s agenda, President Recep Tayyip Erdoğan has once again suggested a new constitution as a resolution to the ongoing judicial crisis.
— MedyaNews (@medyanews_) November 11, 2023
On 8 November, the Court of Cassation refused to recognise a Constitutional Court ruling to release detained opposition MP Can Atalay, and lodged a criminal complaint against the members of the higher court.
According to the Constitution of the Republic of Turkey, the rulings of the Constitutional Court are final, and legislative, executive and administrative branches are obliged to comply with the Court’s rulings without modification or delay.
Analysts suggest that the ongoing judicial crisis in Turkey is a calculated move by the ruling Justice and Development Party (AKP) to fortify its long-standing demand for constitutional changes as opposition parties and legal organisations raise concerns about the government’s increasing influence on the judiciary.
“We are faced with the necessity of a new constitution for our country as soon as possible,” said Erdoğan on Friday, arguing that the crisis in the country’s legal system could be resolved with a new constitution.
Erdoğan has long advocated the adoption of a new constitution to replace the current one, ratified in 1982, which has been amended 19 times. The most recent amendment led to the abolition of the parliamentary system in 2017.
However, his persistent call for a new constitution faces skepticism from opposition parties and civil society organisations, with concerns growing over increasing authoritarianism.
Turkey’s constitutional shift
Erdoğan and the AKP have exerted considerable influence over Turkish politics and steered the nation away from its original foundations of secularism since coming to power in 2002.
But especially after the collapse of peace talks between the Kurdistan Workers’ Party (PKK) and Turkey in 2015, there has been growing concern, both at home and abroad, about a shift towards more authoritarian practices under Erdoğan’s leadership.
In 2015 and 2016, amid renewed hostilities, around 2,000 casualties were reported in security operations in Kurdish-majority southeastern areas of Turkey. A United Nations report highlighted the excessive use of force by state forces, including killings, enforced disappearances and torture. Turkey also continued to engage in military action against Kurdish groups in Iraq and Syria.
The aftermath of a failed coup against the Turkish government in July 2016 was the declaration of a state of emergency and the suspension of certain constitutional functions. This period saw over 100,000 people arrested, 130,000 civil servants dismissed and numerous educational institutions and NGOs closed.
The crackdown in the aftermath of the coup attempt extended beyond those linked to the accused Islamist movement to a range of opponents and critics of government.
Changes to the constitution, approved in a 2017 referendum, gave the president a stronger executive role, which resulted in the abolition of the post of prime minister.
This shift marked Turkey’s transition from a parliamentary democracy to a presidential model, which was criticised by the Council of Europe’s Advisory Group for its lack of adequate checks and balances against authoritarian tendencies.
In the aftermath of the coup, several Kurdish politicians were arrested, including members of parliament, local mayors and the co-chairs of the main Kurdish political party, the Peoples’ Democratic Party (HDP). The Constitutional Court is currently considering a case brought by the prosecution to close the HDP.
In 2017, the Parliamentary Assembly of the Council of Europe (PACE) opened a monitoring procedure for Turkey, citing ‘serious concerns’ about human rights, democracy and the rule of law. A 2018 report by the UN High Commissioner for Human Rights expressed concern about the deteriorating human rights situation and the erosion of the rule of law in Turkey.
Criticism continued in 2021, with the Council of Europe, the European Union and the United States condemning Turkey for withdrawing from the Council of Europe’s Istanbul Convention on preventing and combating violence against women and domestic violence.
In December 2022, the European Union urged the country to reverse its continued decline in human rights and the rule of law.
In March 2023, the Committee of Ministers of the Council of Europe reiterated its call for the release of former HDP co-chair Selahattin Demirtaş and human rights defender Osman Kavala, following rulings by the European Court of Human Rights in their cases.
The Council of Europe also urged general measures including reinforced guarantees for judicial independence from undue influence from the executive branch and all required action to strengthen political debate, pluralism and the freedom of expression of political representatives in the country.