Members of Turkey’s Constitutional Court are convening on Thursday to elect a new chief justice at a time when there are widespread concerns about the court’s waning authority due to the failure of lower courts to act in line with its rulings.
The new chief justice will replace Zühtü Arslan, who had been elected as a member of the court for the first time in 2012. He became the chief justice in elections held in 2015, 2019 and February 2023.
The tenure of the court’s 15 members is limited to 12 years.
Arslan, whose term will end on April 20, will not be able to run for the presidency again but will take part in the voting.
The candidate who receives the support of at least eight of the 15 members will be elected chief justice for a period of four years. If none of the candidates manages to get the required majority, the election will be repeated.
Possible candidates
Among the possible candidates are deputy chief Justice Hasan Tahsin Gökcan, who displays a pro-opposition stance, and court members Yıldız Seferinoğlu and İrfan Fidan, who are both pro-government, according to the Bianet news website.
Gökcan had been appointed to the court by former President Abdullah Gül in April 2014. He was elected deputy chief justice in April 2023, and his tenure ends in 2026.
Gökcan is one of the judges who ruled that there had been a rights violation in the continued incarceration of opposition lawmaker Can Atalay, who was not released from prison despite gaining parliamentary immunity in the May elections.
He also voted for the removal of a freeze on state funds allocated to a pro-Kurdish party, the Peoples’ Democratic Party (HDP), which is facing a closure case on terrorism-related charges.
In a controversial decision in January 2023, the top court had deprived the HDP — then parliament’s second-largest opposition group — of a key source of revenue heading into elections, on the grounds that it had links to terrorism.
The court reversed its decision by a majority of votes in March 9, allowing the party to receive 539 million lira (then valued at $29 million) in treasury funding that year. There were media reports at the time that President Recep Tayyip Erdoğan had called some members of the court to justify their decision to remove the freeze as he was unsettled by their ruling.
On the other hand, Seferinoğlu is a political figure. He was elected as a lawmaker from the ruling Justice and Development Party (AKP) in the 2015 general election and served as deputy justice minister before his election as a member of the top court in January 2019. He voted in line with the government’s stance in the cases of Atalay and the freeze on HDP funds.
İrfan Fidan as Erdoğan’s star
Former İstanbul Chief Public Prosecutor İrfan Fidan, known for his steadfast support for Erdoğan in politically charged, controversial cases and investigations during his time as a prosecutor, was appointed to the Constitutional Court by Erdoğan in 2021.
Erdoğan had to navigate a rather unusual procedure to be able to get him seated at the top court.
On November 27, 2020 Fidan was assigned to a post at the Supreme Court of Appeals, which was supposed to nominate a candidate for the Constitutional Court on December 1. The nomination meeting was postponed to December 17 due to “coronavirus concerns.” Fidan started his Supreme Court of Appeals assignment on December 11 and a few days later threw his hat into the ring for the Constitutional Court nomination. In an election held even before he had settled into his new office at the appeals court, Fidan received the most votes and was appointed to the Constitutional Court by Erdoğan on January 23.
Fidan figured prominently in almost all investigations that threatened Erdoğan.
When Erdoğan was hit by a corruption investigation involving billions of dollars that implicated four ministers as well as his son in December 2013, Fidan was tasked with taking over the investigation as a prosecutor in the face of this unprecedented challenge to Erdoğan’s rule. He later removed all the prosecutors and police officers who took part in the probe and released all the suspects in remand. He ultimately dropped the case.
After being appointed as the chief İstanbul public prosecutor, he took charge of all such investigations and shut them down. Among these was a probe into the alleged links of many members of Erdoğan’s ruling party to a radical pro-Iranian group called Selam Tevhit. Fidan was also instrumental in thwarting an investigation into trucks operated by Turkish intelligence that were intercepted while carrying weapons to neighboring Syria. He later launched several noteworthy criminal investigations targeting Erdoğan’s critics, including a terrorism-related investigation into businessman and human rights defender Osman Kavala; the probe of a group of academics who signed a petition calling for a peaceful settlement of the military conflict in the country’s predominantly Kurdish Southeast; and an investigation on coup accusations directed against people who joined the nationwide Gezi Park protests in 2013.
Fidan also voted against the commission of a rights violation in Atalay’s case.
Judiciary in crisis
The top court’s election is being held at a time when Turkey has been experiencing a judicial crisis sparked by the imprisonment of Atalay, who was kept in prison despite two decisions from the Constitutional Court in his favor.
The Supreme Court of Appeals, which upheld an 18-year sentence for Atalay in a politically motivated trial, refused to act in line with the Constitutional Court’s decisions and filed criminal complaints against the members of the top court due to their ruling, a first in the judicial history of Turkey.
Atalay was eventually stripped off his parliamentary status last month in defiance of the successive rulings by the Constitutional Court.
The disregard for the Constitutional Court’s rulings in the case of Atalay as well as other political trials when the court found a rights violation has raised concerns about the rule of law and the separation of powers in Turkey. Critics argue that disregarding the court’s decisions undermines democratic principles and legal certainty.
Concerns about the rule of law and claims of government control of the judiciary reached new heights following a failed coup on July 15, 2016, after which the government launched a massive crackdown on non-loyalist citizens under the pretext of an anti-coup fight and removed more than 4,000 judges and prosecutors from their posts via government decrees.
Many say there is no longer a separation of powers in the country and that members of the judiciary are under the absolute control of the government and cannot make judgments based on law.
In a sign of the deteriorating rule of law in the country, Turkey was ranked 117th among 142 countries in the rule of law index published by the World Justice Project (WJP) in October.