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Published online by Cambridge University Press: 24 May 2018
Five days after the attempted coup d’état of 15 July 2016, a state of emergency was declared in Turkey. Under the emergency rule, constitutional rights and liberties are suspended and parliament and the courts are reduced to the regime's rubber stamp, while the country is ruled by one man through decrees. While many question how the legal and political developments in Turkey will unfold, and whether and how the democratic backslide and decline in rule of law can be reversed, Indira Gandhi's emergency (1975–77) offers a useful historical heuristic case. With striking similarities to the conditions in Turkey today, during the Indian emergency the judiciary, especially the Indian Supreme Court (ISC), was subjugated to the will of Prime Minister Gandhi through means of constitutional amendments and political appointments that compromised the integrity of justices. Yet, shortly after the end of emergency the ISC regained the trust and respect of the Indian people, thereby playing an instrumental role in the restoration of Indian democracy. Through a close analysis of the Indian emergency rule, the present article explores the conditions of democratic survival and whether and how the Turkish judiciary can reclaim its independence, spearhead a rights revolution, and help restore the democratic order.
3 Maria Haimerl, “The Turkish Constitutional Court under the Amended Turkish Constitution,” https://goo.gl/ps7fMW, accessed November 2017.
4 In comparison to other Eastern European cases, however, Turkey's democratic backslide and decline in rule of law have been much deeper. According to the most recent report by the Varieties of Democracy Index, Turkey is one of the top five countries in the world to experience the worst democratic backslide over the period of 2011–16 (https://goo.gl/J8Xbab). Likewise, according to the World Justice Project's Rule of Law Index, in 2016, Turkey ranked last in the Eastern Europe and Central Asia Region and 99th out of 113 countries globally (https://goo.gl/N8aghw).
6 Arato, Andrew, Post Sovereign Constitution Making: Learning and Legitimacy (Oxford: Oxford University Press, 2016)CrossRefGoogle Scholar; Özbudun, Ergun, “Turkey's Judiciary and the Drift toward Competitive Authoritarianism,” The International Spectator 50, no. 2 (June 2015): 42–55CrossRefGoogle Scholar; Kim Scheppele, “Worst Practices and the Transnational Legal Order,” last modified 2016, https://goo.gl/jksRzi; Tushnet, Mark, “Authoritarian Constitutionalism,” Cornell Law Review 100, no. 2 (January 2015): 392–461.Google Scholar
7 “Turkey's Post-Coup Crackdown,” Turkey Purge, last modified 9 January 2017, https://turkeypurge.com.
8 The Gülenist cadres are reported to have begun systematically moving into the judiciary at the beginning of the 1980s. Hence, by 2010, they were already a formidable center of power within the Turkish judiciary.
9 Arato, Post Sovereign Constitution Making, 238–44.
12 Yüksel Sezgin, “Erdogan-Gulen-Gul Rivalry: All the Sultan's Men,” Al Jazeera, 1 January 2014, https://goo.gl/jPbJyT.
13 Özbudun, “Turkey's Judiciary.”
15 The ruling justified the dismissals in the following words: “(31) The facts that the FETÖ/PDY has been organized within nearly all the public institutions and that the concrete coup attempt stemmed from this structuring turned the danger into present danger and made it compulsory to take extraordinary measures in order to maintain the democratic constitutional order. (32) Dismissal from profession of members of the judiciary, who are considered as having any links with terrorist organizations, particularly the FETÖ/PDY, or structures, organization or groups engaging in activities against the national security, is of special importance for ensuring the reliability and honor of the judiciary which is one of the fundamental values of a democratic society.” See, “Press Release,” The Constitutional Court of the Republic of Turkey, last modified 8 September 2016, https://goo.gl/kPyKFi.
16 Selin Esen, “Judicial Control of Decree-Laws in Emergency Regimes—A Self-Destruction Attempt by the Turkish Constitutional Court?” last modified 19 December 2016, https://goo.gl/ueLDrG.
17 Esen, “Judicial Control.”
18 Yüksel Sezgin, “How a Constitutional Amendment Could End Turkey's Republic,” The Washington Post, 24 January 2017, https://goo.gl/RqsXZu.
19 Austin, Granville, Working a Democratic Constitution: The Indian Experience (New York: Oxford University Press, 1999), 124Google Scholar.
21 Austin, Working a Democratic Constitution, 235.
22 Baxi, Upendra, The Indian Supreme Court and Politics, Mehr Chand Mahajan Memorial Law Lectures, (Lucknow: Eastern Book Co, 1980)Google Scholar.
23 Anshul Kumar Pandey, “The Darkest Hour in Indian Judicial History—When the Supreme Court Surrendered Its Autonomy During Emergency,” India Times, 30 May 2016, https://goo.gl/CicMYJ.
24 Austin, Working a Democratic Constitution, 396–97.
28 Hilbink, “The Origins,” 590.
30 Belge, Ceren, “Friends of the Court: The Republican Alliance and Selective Activism of the Constitutional Court of Turkey,” Law & Society Review 40, no. 3 (September 2006): 653–92CrossRefGoogle Scholar; Yildirim, Engin and Gulener, Serdar, “Individual Application to the Turkish Constitutional Court as a Case of Constitutional Transfer,” Global Constitutionalism 5, no. 2 (June 2016): 269–94CrossRefGoogle Scholar.
31 On 11 January 2018 the CC ruled in response to individual applications of two jailed journalists, Sahin Alpay (https://goo.gl/pzU1dt) and Mehmet Altan (https://goo.gl/Tigyuq) that the journalists’ prolonged pre-trial detentions violated their “right to personal liberty and security,” and the “freedom of expression and the press.” It would be premature to view these two recent decisions as precursor to a post-emergency rights revolution—as we do not yet know whether this was an early sign of forthcoming systematic changes in the court's treatment of the emergency regime or simply a “mistake”—given the court's track record since July 2016 the latter seems more likely. In any case, at the time of writing, lower penal courts, where the two journalists stand on trial, have not yet complied with the rulings claiming that the high court has overstepped its jurisdiction and thereby refuse to release the journalists from prison.
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