When the judiciary doesn’t serve justice

The Democrats had come to power in 1950, after a quarter of a century of single-party dictatorship, with an impressive slogan: "Enough! The nation has the word!" But when they won three elections in a row, the powers that be decided to say "enough" to them, too.

After the military coup, all MPs of the Democrat Party were imprisoned on Yassıada, one of the Princes' Islands in the Sea of Marmara. A show trial was set up, and they were tried for "high treason." In one of the sessions, a remarkable scene took place. One of the accused, Samet Ağaoğlu, objected to one of the peculiarities in the case and asked why. The president of the court, judge Salim Başol, gave a bold answer. "It is that way," he said, "because the power which brought you here demands that way!"

Protecting the state
In other words, Mr. Başol was serving not justice but the power that executed the military coup. He was his master’s gavel.

Mr. Başol is dead today, but his spirit lives. There is a very strong tendency among Turkey’s judges and prosecutors to protect "the regime" rather than the rights of its citizens. They in fact proudly declare that they are not impartial when it comes "to the principles of the Republic."

A recent study that sheds light to this problem is the survey titled, "Justice Can Be Bypassed Sometimes: Judges and Prosecutors in the Democratization Process." Authored by Mithat Sancar and Eylem Ümit Atılgan, both of Ankara University’s Faculty of Law, and published by TESEV, Turkey’s leading liberal think-tank, the report is based on interviews with 51 Turkish judges and prosecutors. "I am the prosecutor of the Republic," one of these men says, "of course I will not be impartial when the state is involved."

This should explain why so many people or organizations that happened to clash with the state ideology have been persecuted by courts in Turkey. It should also explain why criminals within the state (such as torturers, coup makers, extrajudicial killers) have almost never been sentenced. The legal system is designed to protect the state from society, not the other way around. The crucial point here is that this is not just a system, but also a mentality. As seen in the TESEV report, many men of justice genuinely believe that their first and foremost duty is "to protect the state."

But where does this mentality come from?

One common answer is that, with some notable exceptions, Turkey’s judicial class has not been able to internalize the liberal democratic norms of the modern West. That is definitely true. But it only explains why the problem remains unsolved. It does not explain its origin.

To see the origin, we have to look at history. And when we do, we see something very interesting: The unsuccessful transition from the shariah, i.e., Islamic law, to modern law.

Noah Feldman, professor of law at Harvard University, has an interesting analysis on this in his book, "The Fall of Rise of the Islamic State." As he explains, shariah, as a God-given law "discovered" and interpreted by independent scholars, served as a check on political authority during the Islamic Middle Ages.

When Ottoman Sultan Yavuz (the Grim) decided to convert all Christians under his empire to Islam, for example, the gatekeeper of shariah, the Sheik-ul Islam, had objected by noting, "This is against shariah." No one, including the Sultan, could rise above this divine code.

From shariah to tyranny
"But the scholars did not manage to retain this role," Feldman recalls, "at least not in the Sunni Muslim world." And he explains the consequence: "The judicial function was eventually taken up instead by a new class of judges trained in modern law, which is to say Westernized law. Unlike the scholarly class, the new judges had no tradition (however attenuated) of independence from the state.

To them, Law emanated not from God but from government; and ... this worldview often translated into a reluctance to treat the organs of the state as subordinate to the law."

This is the origin of the tragedy of Turkey’s judicial class. They have abandoned the traditional divine norms of justice, but have not been able to grasp its modern liberal norms either. The type of modernity they adhere to is strictly authoritarian, and therefore their justice is designed to serve the authority they uphold.

Is there any way out of this problem? I am not sure. And not very optimistic, either.