The complete removal of legal defense in Turkey

Nobody listened to the President of the Supreme Court of Appeals during the opening ceremony for the legal year on Sept. 1 because everybody was curious about what President Recep Tayyip Erdoğan was going to say. 

This is also because the approach adopted by the high court president to correct the "separation of powers,” described as the “cooperation of powers” formula, means that all powers depend on one person. In this approach, cooperation means undertaking the duties that fit the President’s strategies of control wholeheartedly. This could mean delivering a speech today, collecting tea leaves in a performance tomorrow, and on another day, it could mean visiting with trustees along with the President of the European Court of Human Rights (ECHR).

I won’t belabor this point any further. 

President Recep Tayyip Erdoğan, in a ceremony held at the Beştepe Presidential Palace in Ankara (which, the choice of this venue is a cause for several protests), said a mechanism for “disbarment” is needed. If an outsider who wanted to know what is going on in Turkey listened to that speech alone, they would think that there is no mechanism to expel lawyers in Turkey from their profession. However, such a mechanism does exist, and in fact it is exactly what the President refers to: the Legal Profession Act, currently in force in Turkey, lists the mentioned items one by one, such as stipulations that ban a lawyer from doing his/her practice. “Terror” is one of them. 

Legal proceedings take too much time  

Indeed, it is not because the President does not know this. He made his statement with an intention in mind. This law currently in practice, despite all its problems, has several aspects that resemble the law. For now, it is not so easy to enforce a professional ban on a lawyer and prohibit them from performing their practice. There has to be a judgement following a proper trial, and the judgement has to be reached with proper evidence. On the other hand, it is not too difficult either, but it takes time. During the trial, any possible fraud may be exposed; even if nobody pays attention, this fraud is recorded. In other words, there may be several witnesses, and what has been done is seen, heard, and recorded in history, and so on. Also, the judicial system is suffering from too high a workload — so, why doesn’t the executive take some of the burden off the judicial system, right? 

Obviously, the President wishes for something different than the existing law. What could he have wished for by demanding disbarment, when disbarment already exists? He wants a mechanism that will function silently: without any proceedings, without a trial and without any fuss. We know from experience, like the time only a couple of years ago, when tens of thousands of civil servants were dismissed from their jobs, banned from practicing their professions and sentenced to civil deaths (loss of civic rights) through statutory decrees (KHK). The President wants that. More precisely, he wants the order of proceedings to change. According to the current law, first there needs to be a court decision, then expulsion or disqualification could happen. Or, if demanded, first one can be disbarred, and then there could be a court case, a committee review, and so on. This all could end, perhaps, with the presentation of an honorary doctorate degree to President of ECHR Robert Spano, which would help legitimize the whole process.

The only ideology of the judiciary 

Erdoğan said, “The sole ideology of the judiciary should be justice.” Justice as an ideology? Yes, for the moment, justice is not the sole principle adopted by the judicial system or any other unit in the administration. What is called “justice” is now the tool for the ideological war for building the “new Turkey,” the ongoing war accompanied by all kinds of stimuli and nurturing. 

We already know that the sole ideology of judges in Turkey is “the state.” The presidents of the Supreme Court of Appeals have made that clear at each opening ceremony for the legal year since 1943. Of course, the thing called “the state” does not automatically accept “justice” as its main principle, even the one that looks like it is the “most just.” What makes justice possible is the search and the fight for it. Only as a consequence of these struggles are mechanisms that restrict the state established. For these mechanisms to function, powerful institutions and establishments are necessary. Powerful political groups are needed to prevent such institutions and establishments from being worn down or excluded. The opening ceremony of the legal year two weeks ago was the declaration that such things do not exist here, and even if there are places where there is a possibility for them to exist, you can be sure that they will also be shattered soon. 

Innocence and defense ignored  

What the president of the high court said in his speech concerning justice can be summed up in two vague sentences. In one of them he mentioned the  “presumption of innocence,” but with no other content to support it. In the other one, he referred to the importance of the defense and lawyers. That was about it. That was it because he was likely informed of what he was going to say only a short while before he took the floor. One should not overemphasize the significance of the principles of law and defense too much, you know. After all, our legal system here is “in accordance with our culture.” He, too, was eager to hear what the President would say, just like everybody else — ready to take his words as instructions. Well, the instructions were clear: the defense, in other words, the practice of law, was to be reorganized. The defense was necessary to achieve justice, but at the same time it had the potential to create problems concerning the well-being of the government.     

What is wished or demanded is actually not disqualifying a lawyer from practicing his or her profession, but actually, the removal of the defense altogether — just as it was done when public institutions and departments in universities were abolished. The next stage in this routine is to invite the President of the European Court of Human Rights to visit, organize banquets with state officials together with bar association representatives —  the ones who are more like trustees waiting for instructions — and then the entire operation will end positively.

Also, there is the principle of the “presumption of innocence.” President Erdoğan’s speech served as a repeated declaration that this principle has now become history. Lawyer Ebru Timtik died due to her hunger strike, which she started with a demand of a fair trial, but there was no state official there to hear her. What was said about Ebru Timtik during the speech was the repetition of the point that the presumption of innocence had no significance for the head of the executive. 

There is more to write about, which I will, on how a mind-boggling decision by the Council of State (Danıştay) includes the interpretation of the “presumption of innocence” principle according to our “local and national” law. It will be titled, “None of us are innocent, except for the state.”