The court announced that, by a vote of 9-2, it would examine the application in terms of “procedure” on July 5. However, this “procedure” concern is not at all convincing. It isn’t because in its earlier decision on the headscarf, the Constitutional Court began with the procedural issue but then ended up making a ruling based on substance and abolished a law that 411 members of Parliament had approved. The decision to annul was made by a vote of 9-2 on June 5, 2009.
The court opened up a new path with its justification. It linked the issue to articles in the Constitution that cannot be amended. Every person who supports democracy was concerned upon seeing the reasoned decision. They were concerned that the Constitutional Court would restrict the will of Parliament and do everything in its power to link every amendment to the Constitution’s non-amendable articles.
And that is what happened. The CHP rejected the package, claiming amendments to the structure of the Constitutional Court and the HSYK were a violation of the principle of the rule of law as stated in Article 2 of the Constitution and therefore constituted a violation of Article 4, which states that amendments to the first three articles of the Constitution cannot even be suggested.
Now everyone has their eyes turned to July 5. But this two-against-nine vote reality is sparking a lot of suspicion among those who support the rule of law. What is this two-against-nine cemented situation? Why are the members painting this kind of picture? How come we are able to know how members appointed by former Presidents Süleyman Demirel and Ahmet Necdet Sezer will vote? Of course no one should be left facing mere accusations, but should there not be an explanation of this two-against-nine picture?
While searching for an explanation, we can’t help but wonder if perhaps there is an invisible mentality, ideology or formation in the judiciary that controls the judiciary. We can’t help ourselves because there are some facts we know.
The big truth is that there is a military tutelage regime in this country. The judiciary, universities and the media have been supporting this tutelage since the May 27, 1960 coup.
The tutelage regime essentially represses the judiciary and tries to keep it under its control. Fortunately Taha Akyol recalled an important incident in his column last week in the Milliyet daily. The May 27 junta had discharged half of the Council of State members, one-sixth of Supreme Court of Appeals members and 520 judges serving in various courts. After every coup there were discharges and appointments based on patronage. But the most comprehensive and audacious patronage appointments were made during CHP governments by Justice Ministers Mehmet Moğultay and Seyfi Oktay.
With new information concerning Oktay being released, we are now seeing in surprise and dismay how patronage staffing continued and how the independence of the judiciary became impaired. We’re seeing how they sealed deals with the HSYK and how names provided by Oktay were made members of the Supreme Court of Appeals without looking at merit. This is not all. Transcripts of telephone conversations that were monitored by court decision are revealing how many cases in different parts of Turkey were interfered in. According to these transcripts, the former justice minister intervened in many dossiers, including cases that concerned drug trafficking, murder and illegal organizations.
You would think that this would cause a rattle in Turkey, but certain influential newspaper and television channels can’t see or don’t want to see this reality.
There is also no outcry in the judiciary. In fact, HSYK Vice President Kadir Özbek, who stands out as a key figure in documents pertaining to Oktay, notes that he worked with Oktay for a certain period and occasionally met and spoke with him, adding: “There are demands and references that come from people during Supreme Court of Appeals elections or similar appointments. But this is a procedure that is based on what the commission decides. It is not based on what someone says or wants.”
But it was. Everyone Oktay named became a member of the Supreme Court of Appeals.
There’s something even more important. Özbek does reject suggestions and advice from others even though it is against Articles 138 and 159 of the Constitution. He blatantly violates the Constitution and the law.
On July 5 we are not going to look at whether the vote is again going to be “two against nine.” We are going to look at how the judiciary handles its test as concerns the law.
