Mehmet Gün

Founder of Gun+Partners law firm, Chairman of Better Justice Association, Vice Chairman of TURKONFED

Turkey’s constitutional court, Ankara.

A head-on collision – as the Westerners say – is underway between the bar associations and the members of the Justice and Development Party (AKP). The reason is the discussions on changes to the bars ordered by President Recep Tayyip Erdoğan following Ankara Bar’s harsh criticism of Ali Erbaş, chair of Religious Affairs. These so-called democratic changes are, in fact, administrative in nature.

AKP members are determined to pass the amendment through the parliament into the Advocacy law. But there is no solid or logical rationale in the “Justification” section of the amendment proposal that the lawyer members of the parliament submitted to the Grand National Assembly of Turkey.

The only person supporting the proposal is Metin Feyzioğlu, chair of the Union of Turkish Bar Associations. His standpoint is ambiguous and quite open to question in this case: he seems to oppose to it, albeit reluctantly. The chairs of bar associations were stopped at the gates of Ankara for 27 hours and denied entry during their march to Anıtkabir (Atatürk’s Monumental Tomb) to protest the amendment proposed by AKP. And they had literally, excluded Mr. Feyzioğlu from this gathering by turning their backs to him. Furthermore, he owes remaining in his seat to the appeal reversal of a judgment that prevents an extraordinary union general assembly that would, for sure, unseat him. 

The bar associations of all 80 metropolises and cities in Turkey object to the amendments. They especially oppose the “multiple bars” proposal, which was kept a secret until its submission to the Grand National Assembly of Turkey, though parts of it had been leaked. Lawyers are resisting by exhausting democratic means, as they think that these amendments will tear the bar associations apart, weaken them, and ruin the last stronghold that has the power and courage to fearlessly criticize the government, the main party responsible for the failings of the rule of law and fundamental human rights. Tens of thousands of lawyers are participating in the protests held by bars in their provinces. Almost every lawyer is now standing up against the proposed changes. The throng in front of the Çağlayan Courthouse for the protest held by the Bar of Istanbul was enormous. The event to be held in Ankara by lawyers from every part of Turkey was prohibited under the auspices of COVID-19 measures taken by the Governor’s Office.

Other professional organizations that think it will be their turn soon are also supporting this struggle; they are raising their voices with statements on the themes “don’t touch my chamber” and “don’t touch my profession.”

A so-called democratic, “yellow” bar management

The Amendment Proposal for the Legal Profession Act that AKP submitted to the Grand National Assembly of Turkey proposes to reduce the representation rate to 07.5% from 41.5% of the bars of Ankara, Istanbul, and Izmir, which represent 73,262 of a total of 124,555 lawyers, corresponding to 58.8% (2019 year-end figures). It also proposes to establish “multiple bars” comprising 2,000 lawyers in Ankara, Istanbul, and Izmir, to reduce the representation rate of 23 relatively large provincial bars – representing 88.8% of lawyers across Turkey – to 31.5% from 67.1% in the General Assembly of the Union of Turkish Bar Associations. And it aims to increase the representation rate of 57 city bars – which represent 12.2% of lawyers – to 68.5% from 32.9%. 

The ratio of representation in big cities before and after the proposed change.

The aforementioned proposal has nothing to do with being democratic. Quite the contrary: it downgrades the current democratic situation and contains no expression in the “Justification” section that does justify the proposed amendment. Oddly, it is defined as “democratizing the bar associations and management of the Union of Turkish Bar Associations” in the statements to the press. In fact, this proposal will ensure that the city bars, which represent 51,293 lawyers, corresponding to 41.2% of the total number, will have a representation rate of 92.5% in the general assembly of the Union of Turkish Bar Associations, which means that the minority will dominate the majority. 

The ration of bar members in smaller cities far exceeds that of big cities in if the proposal is adopted.

The real separatism: multiple bars

Adding the statement “A bar can be established with two thousand lawyers in provinces where there are over five thousand lawyers” in Article 77 of the Legal Profession Act as proposed would lead to multiple bars in the provinces of Ankara, Istanbul, and İzmir, which would result in 73,242 lawyers in these metropolises being divided into more than 30 bars. 

The proposal to permit the establishment of more than 30 bars (“multiple bars”) in three metropolises would harm the unitary single-state principle adopted with the statement that “The State of Turkey, with its territory and nation, is an indivisible entity” in Article 3 of the Constitution. It also contradicts the principle of integrity of administration, which is a reflection of the former. It would also jeopardize the existence of the country in the long term. 

If the establishment of 6 additional bars in Ankara, 2 in İzmir, and 20 in Istanbul (2019 figures) are allowed, the total number of bars in these three provinces will shoot up to 31. If 28 additional administrative bodies, i.e. bars, are founded in these provincial structures, which are the smallest administrative units, this will obviously cause a hard-to-fix hole in the unitary state principle. That, in turn, will lead to other occasions that will harm said principle. 

If the proposal is passed into law and if 2,000 lawyers get together to establish additional multiple bars in their provinces where there are already administrative organizations: 

  • If 2,000 lawyers can establish a bar that supports the government;
  • If 2,000 lawyers who are sect members can establish a bar for religious purposes;
  • If 2,000 lawyers can establish a bar that is intended to support atheism;
  • If 2,000 lawyers from ethnic groups can establish a separatist bar;
  • If 2,000 lawyers can establish a bar that is intended for race-based discrimination;
  • If 2,000 opportunist lawyers can establish a bar for corruption purposes;
  • If 2,000 lawyers can establish a bar for anarchy.

This will damage the unitary state principle that this country adopted after much turmoil and many hardships. Similar demands will emerge in different areas after a short while. And then, people will find the courage to request second or third municipalities, neighborhood administration bodies, governor’s offices, and district offices. All of these developments have the potential to jeopardize the unitary state principle. 

It is obvious that if the regulation “multiple bars in three metropolises” that the proposal suggests is passed into law, the bar associations will no longer be independent professional organizations. Such action will turn the bars into interest groups that defend the interests of their members instead of the rule of law; groups that compete with each other to get more members in pursuit of these interests. There will be a toxic environment that promotes misconduct in a way that will disunite the members of the legal profession. 

Could one of the three pillars become independent?

More importantly, if the proposal passes into law, independent defense, one of the three main pillars of an independent and unbiased judiciary, will disintegrate. And this will harm the independent functioning of the judicial power as well. This will seriously injure the ability of lawyers and bars to fulfill the duty to “defend the rule of law and fundamental human rights,” a duty entrusted to them, requiring objectivity towards the government when it conducts unlawful actions. 

In contradiction with the provision, “No privilege shall be granted to any individual, family, group or class” stated in Paragraph 4 of Article 10 in the Constitution, which regulates the principle of equality before the law, under this proposal lawyers in small cities (non-metropolitan areas) will be given privileges. In some regions of the country, it will be obligatory to have 2,000 lawyers to establish a bar while in others only 30 lawyers will suffice. In some regions, if the number of lawyers drops below 2,000, bars will have to close down. Meanwhile, in other regions where the number of lawyers corresponds to 2–3% of this number (40, 80, 90), the bars can remain open. 

Are force and conflict necessary for a solution? 

Bars are professional organizations considered to be public institutions. That is why everyone desires them to be among the advanced and exemplary democratic organizations in our country. Everyone is interested in enhancing their structure and their organs’ elections, as well as lawyers’ representation in management and participation in the decision-making process as members of the bars. This will benefit not only the bars but the whole country. Democracy, the law, and welfare will improve, paving the way for many more improvements. 

So, do we really have to marginalize, polarize, force, and enter into conflicts with each other to reach this shared goal? Hasn’t Turkey suffered enough from discrimination and polarization during the dissolution of the Ottoman Empire, which lasted for centuries, as well as the post-republican period? We seem to have quickly forgotten about the days before 1980 when we suffered from polarization among public servants based on their political views and tendencies. There was a time where we had Pol-Bir and Pol-Der; our public servants and even the police force were divided into groups based on their political views: idealists, revolutionists, etc. What good did that do to our country? 

Why impose the multiple bars proposal, which poses many threats to lawyers who will elect their own professional organization, when all lawyers stand up against the proposal? If justified reasons and problems are leading to a need to come up with a proposal like this, couldn’t they be solved through methods such as increasing the number of the organs or members of the bars as needed; assigning deputy chairs to be responsible for commissions, districts and courthouses; and making management duties into full-time paid jobs? Do these opposing views have no validity or justification?  

Why cause the delegation system to deteriorate even further, which is quite anti-democratic and useless, instead of revoking it from all laws? Why can’t all lawyers, instead of delegates, elect the chair and organ members of the Union of Turkish Bar Associations, as is the case in provincial bar elections? Now that we have decided to hold the presidential elections with the two-round system, why don’t we do the same for the chair of the Union of Turkish Bar Associations, chairs of provincial bar associations, and even the heads of neighborhood administration units? If they have been the subject of complaints, why don’t we ban closed lists in elections? 

Regulating bars means regulating justice

Bars and the Union of Turkish Bar Associations represent defense, one of the main elements of independent and unbiased jurisdiction. Besides, they are professional organizations that are considered as public bodies established as per Article 135 of the Constitution, whose organs are elected in democratic ways by their own members. Because bars are an independent element of the independent judiciary, entrusted with the duty of defending the rule of law and fundamental human rights, they have a quite different and important function compared to industry chambers and other professional organizations considered public bodies established as per the same article. For this reason, strict attention must be paid to avoid anything that negatively affects the functions of the judiciary when making regulating bar associations. 

The solution: sincere responsibility and a common mind

Article 83 of the Constitution offers immunity to members of the parliament for their votes and statements in parliamentary works and their thoughts. But it does not give them the right to act arbitrarily. Members of the parliament must use their authorities and privileges as stated in Article 5 of the Constitution. Especially that of “protecting the Republic and democracy.”

All parties involved must act responsibly and constructively, and AKP members should withdraw the proposal from the Grand National Assembly of Turkey. All parties involved should get together with no preconditions or prejudices, detect the problems together, and use the common mind to come up with a solution. 

There is no problem that Turkey cannot solve. The only barrier is imposing a single view onto opponents, creating conflicts, thus wasting valuable resources on meaningless arguments. 

Turkey will be freed from its chains once it manages to tolerate differences and use the common mind.