It goes much further than that: the ideological influence, corporatist structuring and loyalties other than those of the profession make it a decisive tool -- a “weapon” as stated by a former high prosecutor -- which the pro-reform and counter-reform camps will use beyond its limits and purpose. It is in this context one must see the ongoing -- and unfolding -- row within and around the Supreme Board of Judges and Prosecutors (HSYK), which further cut across the divides of the society, sharpening the intent to win the “war.”
The intense strife between the HSYK and the government took a new turn with an unusual and unusually harshly worded communiqué issued by the former and an equally sharp response by the Ministry of Justice. It is another clash between an elected power and an appointed one, but, as experienced in the closure case, this one raises the stakes much higher than one can imagine.
The rule of law can lose its entire meaning if it is eclipsed by the ideology and is indifferent to the dynamic of democracy, represented by its legislature.
While the HSYK claims that the government interfered with the independence of the judiciary, in the extended disagreement within itself (two of its seven members are from the government), the Ministry of Justice says the HSYK now acts beyond its powers, makes illegal demands and tries to hijack an otherwise normal process of overseeing the performances and appointments of judges and district attorneys.
But the most sensitive part of the ministry's statement is about a “last second” push by the members of the HSYK with high-court backgrounds to replace eleven prosecutors and judges that are involved in the Ergenekon case. This is not denied by the HSYK and if true, this last attempt -- surpassing the HSYK's given authority -- should be interpreted as a direct attempt to “take control” of the course of the trial.
Has the battle been won by either “side”? What raises deep, serious concerns is the agreement with the government on the declared changes on how the “super prosecutors” (with extended judicial powers) will be supervised from now on. Until very recently, the supervision of the complaints on their conduct was given to the deputy chief prosecutor of İstanbul, Turan Çolakkadı. The HSYK decided that he be “equaled” by another deputy, Olcay Seçkin, already criticized in the media as a possible “stumbling block.” Further more, in any operation from now on, even a signature by the chief prosecutor himself, Aykut Cengiz Engin will be required.
What this in practice may come to mean, it is feared, is that the brakes will be put on the Ergenekon case, to eventually leave it to “rot,” as the Şemdinli case has shown so clearly.
Another element in the HSYK's decision file completes the picture. It speaks of the foundation of a “special court” in Ankara, to deal with the “coup plotting” part of the Ergenekon trial; the part that contains ex-four-star generals, expected to be indicted in the next phases. Why, this? The argument goes: The “crime scene” (of the coup) was Ankara, so it must be dealt with there.
So, if this happens, the new court in Ankara will ask the one in İstanbul whether it is willing to transfer that part of the indictment there, and if İstanbul says no, it will be the High Court of Appeals which will decide.
One can already conclude how this will go, can one not?
It does not end there, either. The next “round” of the HSYK will be in September, and there may be other decisive moves (at least intense sparring) about not only the Ergenekon case, but also the ones such as the massive JİTEM-related killings of Kurds in the '90s in Diyarbakır.
The explanation is that the increasingly resistant judiciary, encouraged by the “guardians of the old republic” has now chosen to “divide and disintegrate” to pre-empt moves about facing the ugly past.
Have no doubt, however complicated they may have become (or been made), these cases are all about the future of the reform process; about whether democratization in Turkey will have any chance at all. Any backlash will turn Turkey back to the horrendous '90s, with fierce consequences.
But whether the government has a strategy is unclear. It seeks to stand on the ground of legitimacy, and moves on by minimal concessions. It uses already existent mechanisms that have kept the judiciary dependent on “political power” (such as representation within the HSYK), but it will be harder to go ahead, as long as it will have to deal with not only a “nondependent” but also a “partial” rule of law. Yes, the judiciary is bastion. It needs to be restored -- “reformed” -- swiftly so that its role of “major judgment” becomes rational.
