Damaging judicial impartiality

"Justice is the foundation of the state" is written on the walls of Turkish courthouses. But lawyers and human rights activists believe this is no longer the case in Turkey, where the already fragile foundation has received yet another blow.

A controversial law allowing sweeping changes to the functioning of bar associations passed in parliament on 11 July with the votes of the ruling Justice and Development Party and its ally, the Nationalist Movement Party (MHP). The law oversees the split of current bars and the creation of alternative ones. Experts believe this could lead to many bar associations mushrooming across the country based on lawyers' political views.

Bar associations were neither consulted nor were they allowed into parliament during the discussions on the bill at the General Assembly despite its direct impact on them.

Lawyers and bar associations overwhelmingly expressed their opposition in a public statement. The chairs and members of bar associations also marched to Ankara late last month, only to be met by police. They also carried out a sleepless night-time "justice watch" in nearby public parks. All have, however, been in vain.

The main opposition Republican People's Party (CHP) has already taken the new law to the Constitutional Court, and bar associations have assured their staunch opposition to the law.

"Rule by division"

Before the new law was passed, every lawyer in Turkey was obliged to register with one bar association in the city where he or she practices law. Every province has one bar, as long as there are 30 registered lawyers there. There are 80 bar associations across Turkey, which has 81 provinces. Two small and remote provinces share one bar association.

But the new law envisages that in cities with over 5,000 lawyers, any group with at least 2,000 lawyers can set up its own bar association. This rule will primarily affect the country's largest cities, Istanbul (with more than 47,000 lawyers), Ankara (with 17,500) and İzmir (with almost 10,000). The Antalya Bar Association in the country's south has fewer than 5,000 members. However, all together, they account for more than half of all registered lawyers in Turkey. These cities are naturally also hotspots for judicial problems.Lawyers, human rights activists and political analysts say that allowing more than one bar in a city will mean splitting lawyers along political lines. With political polarisation so rife in Turkey, such splits seem inevitable. Judges and public prosecutors will also know which bar association a lawyer is from as lawyers' bar associations are written in judicial correspondences. Lawyers say this will damage judicial impartiality.

Concern outside Turkey too

International watchdogs have raised the same concern.

In a Facebook post, Dunja Mijatović, the commissioner for human rights of the Council of Europe, argued that these amendments cannot be isolated from the rule of law crisis in the country, also documented in her most recent report on Turkey, raising concerns that such a move will "further damage the appearance of impartiality within the justice system."

A similar view came from Róisín Pillay, director of Advocates for Justice and Human Rights' Europe and Central Asia programme, who underlined that this bill "will only deepen mistrust in Turkey's justice system as lacking independence by dividing the legal profession along political lines."

It has been reported that during the preparations for the bill, there had been concerns among AKP and MHP officials about permitting lawyers to group in bars according to their political leanings. But when these concerns were raised, they were firmly rebuffed by President Recep Tayyip Erdoğan, who wanted to go ahead with the plan.

"Let multiple bars be established to show everyone's true face. Let it be clear that there is a [outlawed separatist Kurdistan Workers' Party] PKK bar association that looks like a CHP bar; let there be a PKK bar that looks like one," pro-government Hurriyet daily writer Abdulkadir Selvi had said in a recent column.

More democracy?

The government claims that the new law will make bar associations more democratic and pluralistic since it will increase the representation of the provincial bar associations in the Union of Turkish Bars (TBB), a key umbrella organisation that controls and distributes significant financial resources to provincial bars to cover legal aid services.

Before the amendments, each province would send three delegates and then one for every 300 members of a bar association. But after the amendments, all bars, including the newly established ones, will be allowed to send four delegates to the union, and then one delegate more for every 5,000 members. As a result, the smallest bars will gain much greater power than they used to have and will exercise greater influence over the activities of the union.

Under these new regulations, a provincial bar with fewer than 100 lawyers will have four delegates at the TBB, but Istanbul, with 47,000 lawyers, will be represented by 12 lawyers instead of the current 153.

Similarly, the Ankara and İzmir bar associations, which act as human rights watchdogs with commissions that focus on marginalised groups, will lose power too.

All this comes after a statement made by the Ankara Bar Association condemning Ali Erbaş, the head of Turkey's Directorate of Religious Affairs (Diyanet), for saying that homosexuality was the "cause of illnesses" and that it "withers generations". The Ankara Bar Association claimed that Erbaş incited hatred, while Erdoğan said the bar was insulting Islam. It was then that Erdoğan called for a law to regulate bar associations.

"This is very obviously another effort by the government to divide and weaken the structures that they don't control. The AKP government did this to many other institutions," said Ruşen Çakır, the editor-in-chief of the independent news site Medyascope.

This verbal skirmish is only one of the many clashes between the two political camps in Turkey. But what is certain is that lawyers have lost their powers.

All eyes are now on the Constitutional Court. However, until it announces a ruling, new bar associations can be set up, with some preparations already underway, and it will not reverse the division among lawyers.

 Ayse Karabat

© Qantara.de 2020