The two judges talk about their plan to free Erzincan Chief Public Prosecutor İlhan Cihaner, Col. Dursun Çiçek and several others on trial for being involved in a criminal deep-state gang. In the recording, one judge tells another that he will become the head of the Supreme Court of Appeals if he ensures that the two cases against Cihaner and Çiçek are merged and that they are freed from prison. They label some members of the Supreme Court of Appeals as “cowards” for not acting to save Cihaner.The newly revealed voice recordings provide yet more evidence for the Turkish people of the contradictions that prevail among the state bureaucracy; how inconsistently the judiciary deals with different groups and the reasons for that inconsistency. These events show once more that in a situation of lawlessness it is hard for any administration to pursue successful judicial reform. No judicial reform with such officials in place could establish an independent and effective judiciary.
During the latest debates on constitutional amendments there appeared a real chance that, due to the opportunities brought about the social and political movements and changes in social settings, judicial reform will succeed. If not a fully independent, at least an effective judiciary is a reasonable expectation for 21st century Turkey.
This has not come to pass so far for many reasons -- previous military interventions and constitutions drafted under military tutelage changed administrations but not the relationship between the state, civil society and individual. Due to political dilemmas in subsequent periods and some politicians’ lust for power and eye for short-term gains, the reform-minded have not been able to reach the goals they set for themselves. This was not because governments did not want to carry through on their promises, but because of structural problems and obstacles installed after each military intervention. Judicial reforms became piecemeal, producing an ineffective and partial judiciary. Reforms did not amount to positive action for rights and freedoms, consolidating civil society, but were organized and interpreted in such a way as to protect the interests of powerful actors taking advantage of the political process. Public and academic discussions of the judicial process and the execution of parliamentary decrees or amendments in Turkey often touch on the problem of “double sovereignty” and the dualities of the republican elitists vs. reformists, Kemalists vs. religiously conservative, secularists vs. religious. But the dilemmas of judicial reform which are central to the discussion attract no serious or formal consideration by the bureaucratic judiciary and their friends in the media.
Yet the complexities and contradictions of incremental and systemic reform must be confronted. For example, reform-minded civil society groups, academics and journalists have drawn attention to the lack of finality in the litigation process, and the resulting weakness of incentives to settle. In addition, ethics training for judges will do little to obviate underlying motivations for receipt or solicitation of bribes and promotion in a corrupt system, as is discussed by the two judges in the voice recording. The appointment of a few new judges to the Supreme Board of Judges and Prosecutors (HSYK) and other courts will do little to alter the corporatist culture of a career judiciary.
Currently, our legal system in Turkey lags far behind developments in the global arena in technical standardization, professional rule production, human rights, intra-organizational regulation in multinational enterprises, contracting, arbitration, and legal pluralism. These legal frameworks have worldwide validity independent of the law of nation-states. But the Turkish judiciary, in the grasp of ideological and power-hungry judges and prosecutors, as we have just witnessed, has blithely ignored the consequences of globalization in the legal and judicial arenas.
Reform will involve considerable investment of money, time, social capital and non-partisan political efforts to increase the efficiency, accountability and independence of the judiciary, at least to the level of the developed democracies of the EU or other developed democracies of the industrialized world. Legal NGOs and local, national, and international legal institutions of legal professionals must be encouraged to contribute to discussions and amendment of legal practice. In addition, there needs to be adequate study of why and how judges and prosecutors’ sense of justice becomes ideological and how this can be avoided, and of how judicial corruption and the disenchantment of the masses with the judiciary can be prevented. The current effective immunity of high-level officials must be removed so that any irregularities open the way to suspension and early retirement or even due punishment. Society needs to be organized in accord with individual rights, majority rule, and the rule of law. The rule of law must be a true guide rather than a mere hindrance, illusion or myth.
