The law and democracy test for bar associations

Bar associations are professional organizations for lawyers who represent the defense. The primary sources of legislation regarding the profession of seeking justice and defense are the Attorneys Act and the Attorneys Act Regulation. Binding/mandatory regulations concerning the legal profession, which constitutes the defense pillar of the judicial activity consisting of the prosecution-defense-decision triad, are inherent to the nature of the profession. The fact that a law license is not issued in the presence of the bar association without taking the oath of entry into the profession, which states; “I swear upon my honor and dignity that I will act in accordance with the law, morality, and the honor and rules of the profession” should be reflected upon.

In Article 76 of the Attorneys Act, titled 'Establishment and Qualifications of Bar Associations': “Bar associations are professional organizations with the status of public institutions that carry out all activities to develop the legal profession, ensure honesty and trust in the relationships of professional members with each other and with clients; to defend and protect professional order, ethics, dignity, the rule of law, and human rights, and to meet the common needs of lawyers, possessing legal personality and conducting their work according to democratic principles.” This definition,

Article 95 of the Attorneyship Law, titled 'Duties of the Board of Directors,' states:  '1- To ensure the protection of the honor of the legal profession and professional order, and to ensure that the profession is practiced with commitment and honor in accordance with the goals of justice, 21- To defend and protect the rule of law and human rights, and to make these concepts functional.' These provisions demonstrate that the rights and responsibilities of bar associations extend beyond merely being professional organizations.

It is a known reality that the influence of political power in the formation of high judicial bodies such as the Constitutional Court, the Court of Cassation, the Council of State, the Council of Judges and Prosecutors (HSK), and the judicial bureaucracy has reached dimensions that eliminate judicial impartiality. With the removal of the system of checks and balances between the legislative, executive, and judicial branches—that is, the separation of powers—following 2017, and the transition to a single-person/presidential regime, Turkey appears to be a country that has been relegated from the league of democracies.

With the weakening of the legislature following the 2017 referendum, the will of a single person/single leader has superseded the national will represented by the Grand National Assembly. The transformation of Turkey from a Constitutional State into a state with a constitution has largely rendered law and the judiciary, starting with the Constitution itself, meaningless.

In a process where judicial independence has vanished and trust in the judiciary is steadily declining, we are witnessing a period where bar associations—which are legally mandated to defend the rule of law and human rights alongside seeking justice—are being brought into line and placed under the control of the government. The amendment to the Attorneyship Law, which allowed for the formation of second bar associations in provinces like Istanbul and Ankara, carries no meaning other than the activation of partisan entities under the title of 'bar association' that serve as legal branches of the government.

In a process where trust in a judiciary under the influence of political power has hit rock bottom, Constitutional Court rulings are ignored, the hierarchy of norms is turned upside down, professional organizations are being pressured to become partisan, and 'legal branches' masquerading as bar associations are being activated to replace those that cannot be brought into line, will the silence of the bar associations not amount to being the timid endorsers of the new regime?

Beyond protecting the rights and interests of their members, bar associations are obligated to defend and uphold the rule of law and human rights; they must not ignore their historical responsibility to serve as institutions of trust for society and citizens seeking justice. For bar associations to avoid their historical duty of being a leading force in the return to democracy, the rule of law, the parliamentary system, the separation of powers, and judicial independence would be seen as a denial of their very reason for existence. In moments when there is no third option between democracy and dictatorship, the stance taken will undoubtedly be recorded in the annals of history on either the page of shame or the page of honor, as it deserves.