The judicial crisis started with the weakest link in Türkiye, the cracks enlarge

The news that the Chief Public Prosecutor of the Court of Cassation sent a letter to the 3rd Criminal Chamber of the Supreme Court of Appeals on November 7, stating that the Constitutional Court had “exceeded its authority” in ordering the release of Can Atalay, not only showed that another decision of the Constitutional Court would not be respected. It also showed that the accumulation of energy in the fault lines within the judiciary had reached dangerous levels.

However, no one expected that the Supreme Court of Appeals would go so far as to file a criminal complaint against the nine members of the Constitutional Court who had ordered Atalay’s release.

On the evening of November 8, the Supreme Court of Cassation’s announcement started the judicial crisis that would also affect the administration in Ankara from the weakest link: the conflict between the two supreme courts, the Constitutional Court and the Supreme Court of Appeal.

The first reaction came from main opposition Republican People’s Party (CHP) leader Özgür Özel, who took over the leadership of the party from Kılıçdaroğlu just an hour before the ceremony. He called for an extraordinary and closed meeting of his party’s parliamentary group in response to this “judicial crisis,” which he described as a “coup against the constitution.”

Just as the Supreme Court’s reaction to the Constitutional Court was harsher than expected, the CHP’s reaction was also harsher than expected.

At midnight, Özel also called on the Parliament, civil society, and the public to “resist against unlawfulness”. His party decided to hold a vigil at the parliament.

Judicial crisis: Target is the Constitutional Court

Having to face his first test as chairman with Türkiye’s biggest judicial crisis in recent years, Özel said he had spoken with Parliament Speaker Numan Kurtulmuş in the morning and asked him to call for an extraordinary meeting of the parliamentary consultative council on the judicial crisis, which eventually was cancelled at the last minute.

“When I spoke to him on the phone, the Speaker of Parliament, Numan Kurtulmuş, was also not happy about this situation. What happened during the day that the Parliament could not convene the consultative council? I think it was the influence of the executive over the legislature,” he said to YetkinReport later that day.

As I asked, “Which authority do you mean by executive? Is it President Erdoğan?” He answered, “I don’t think any other authority can have an influence on Mr. Kurtulmuş.”

Justice Minister Yılmaz Tunç had previously called Özel’s call for people to resist “in the streets and squares” “wrong and irresponsible”, but Özel’s outburst shook politics—perhaps in a way it needed to.

It is important that Erdinç Sağkan, who called for an extraordinary meeting of the Union of Turkish Bar Associations, of which he is the president, stated that the Supreme Court’s goal was to “de facto abolish” the Constitutional Court.

At almost the same time as this statement, Ayhan Ogan, one of President Tayyip Erdoğan’s advisors, went to the roots of the debate that has been going on for years by stating that “the highest court in the hierarchy of the judiciary is the Court of Cassation”. This statement brought to mind Erdoğan’s People’s Alliance partner MHP leader Devlet Bahçeli’s declaration that “the closure of the Constitutional Court is a goal that can no longer be postponed” in 2021, in reaction to Erdoğan’s decision to shut down the HDP.

Erdoğan: “The Constitutional Court started to make many mistakes.”

President Erdoğan, on November 10, a day after the crisis erupted, made his first statement and defended the Supreme Court’s decision, stating that it was the Constitutional Court that has been “making many mistakes one after the other.”

“No one can deny that the Supreme Court of Appeals is also a supreme court. At this point, the Constitutional Court has unfortunately started to make many mistakes, one after another. This seriously upsets us. As of now, the decision taken by the Supreme Court of Appeals can never be discarded or pushed aside,” he said, adding that in his view, the Supreme Court is saying, “If you are a supreme court, I am also the supreme court, and I demand a sanction against you.”

He said that the Supreme Court is “demanding its ruling to be fulfilled” by relevant authorities, “whether it is parliament, it will be parliament.”

The aim is to force members to resign

The Court of Cassation’s criminal complaint aims to force the resignation of the nine members of the Constitutional Court.

The President of the Court, Zühtü Arslan, is retiring soon. By forcing the resignation, the court may also want to avoid a process that would bring about complex dilemmas in the trial of the Constitutional Court members threatened by the criminal complaint.

It is conceivable that a Constitutional Court that will approve the rulings of the courts at the discretion of the government will not bother anyone in power.

The Constitutional Court was established as a supreme court by the 1961 Constitution, taking European constitutions as an example, so that the conflicts that led Türkiye to the military coup of May 27, 1960, would not happen again. Since its establishment, the Constitutional Court and the Supreme Court have never been at odds. Especially in the early years of the AKP, within the framework of the European Union harmonisation reforms, this conflict escalated when Article 90 of the Constitution was amended to include the supremacy of the judgements of the European Court of Human Rights in cases where they conflicted with the judgements of national courts. As political relations with the EU deteriorated, this judiciary accumulated more energy on its fault lines.

Is the Constitutional Court not a national judiciary?

President Erdoğan’s Chief Legal Advisor Mehmet Uçum justified the criminal complaint against the Constitutional Court members and those who reacted to the Supreme Court of Appeals’ decision in his X account by saying: “It is a reactionary attitude due to the fact that the attacks against the National Judiciary have created a huge accumulation.”

It is actually a justification that the fault line has been broken by the accumulation of energy within the judiciary.

Uçum accused the Constitutional Court of ignoring Article 14 of the Constitution. It actually shows the loophole in Article 14. The fact that a court’s decision against a defendant is defined as one of the crimes against the state prevents him from enjoying any rights, including parliamentary immunity, and Uçum is of course in the best position to know that it was designed accordingly.

Uçum targets the binding nature of the ECHR judgements for the Constitutional Court with his words “Let it be clear who is in favour of the national judiciary and who is not” and that Türkiye will “defend its national judiciary to the end against the westernist and neo-liberal understanding of the judiciary”. These words, which expose the Constitutional Court to the pressure of being not a national but a “Westernist and neo-liberal” judiciary, also express the goal of determining what is considered national in line with political power.

The fight is inside; there may be aftershocks

Experienced judiciary reporter Alican Uludağ says that the Supreme Court of Appeals’ decision on the criminal complaint shows that a fight has started within the ruling party. Uludağ also attributes the developments to the reaction in the ruling circles to the re-election of Zühtü Arslan, who is about to retire, as president of the Constitutional Court, even though Erdoğan wanted İrfan Fidan to be elected.

“The crisis is the crisis of the People’s Alliance,” CHP leader Özel said in his speech after the group meeting on the night of November 8: “The crisis is the MHP-AK Party crisis. It is a crisis of conflict between the cliques within the AK Party. It is a crisis serious enough to put the state of the Republic of Türkiye into a judicial and state crisis by some people supported and pampered by the AK Party and a component of the People’s Alliance.”

Political backstage rumours suggest that the dispute is not limited to the Supreme Court of Appeals and the Supreme Court of Cassation but that there are extensions within the Justice Ministry and even within Erdoğan’s presidential team.

It is also rumoured that the eagles have found support from the MHP in this internal fight, which can be described as between hawks and eagles rather than hawks and trustees.

The judicial crisis that emerged as a result of the internal fight allowed the CHP’s new leader, Özgür Özel, to make a move that the CHP’s base had perhaps been longing for for some time. This move has both a legal and political dimension. The results of both will have an impact on both the democratic functioning of Türkiye and the course of the CHP on the road to local elections.