Oktay’s conversations were being monitored legally, and he was briefly detained two weeks ago as part of the investigation into Ergenekon, a clandestine gang charged with plotting to overthrow the government.Former Republican People’s Party (CHP) leader Deniz Baykal called and told Oktay to “do something about” the reform package before Parliament. Oktay then called Kantarcıoğlu to intervene in the court hearing initiated by the CHP about the reform package. Kantarcıoğlu, as a Constitutional Court member, should not have discussed a case that would come before her. In the conversation she also made reference to the Constitutional Court’s annulment of a law that would have lifted a headscarf ban on university campuses. The language both speakers used indicated their clear bias about the case and about the possibility of the court issuing a stay of execution on the amendment package.
Kantarcıoğlu’s colleagues and others called on her to withdraw from the case and resign to preserve the principle of a fair trial, to maintain the dignity of the judicial office, to avoid impropriety and the appearance of impropriety, and to preserve the ethical conduct that allows public confidence in judicial independence, impartiality, integrity and competence. Kantarcıoğlu retorted that she has been a jurist for 40 years and a member of the Constitutional Court for 15 years. “Do you think I cannot evaluate what constitutes an appearance of impropriety?”
This is not the first time the Turkish public has come to know about such unlawful, unconstitutional interventions in serious cases. The actions of some bar associations, the Supreme Council of Judges and Prosecutors (HSYK), the Judges and Prosecutors Association (YARSAV), and their associates, individually and collectively, have been seen to contradict the principles of justice and the rule of law.
Many of the same issues occur in judiciaries throughout the world. However, our top judiciary has not become part of full or partial reform and resists learning from the reform and development in Central and Eastern Europe, Asia, the Far East and South America.
The crisis in our legal system can be partially but not wholly attributed to court operations being stifled by rising costs and caseloads, declining productivity, an inequitable distribution of resources or lack of modern management mechanisms. In fact, in recent years, court budgets have increased, Turkey’s judicial complexes have improved, and the government has promoted more judges to reduce the workload. We can now make the ambivalent boast of having the single largest court complex in Europe and super judges who can pass judgment on 1,500 cases a day.
The real crisis, however, is caused by judges who place themselves above and beyond the law. News coverage is replete with the cases of individuals, with the content of wiretaps ordered by courts dealing with cases of plots and coups, and with stories of judges and prosecutors acting in a wholly unaccountable and unjust manner. Under the guise of judicial independence, but concealing patronage and cronyism, these judges have often unduly influenced government authorities, political parties and the passage of the amendments aimed at EU accession. We are overly dependent on ideologically motivated judges who are often used as instruments to advance the interests of the protectionist elite and military bureaucracy.
Many challenges will remain as long as procedural delays or idiosyncratic interpretations undermine the administration of justice, as exemplified in Kantarcıoğlu’s remarks that we cannot know and practice law better than she and her cohorts. However, the passage of the latest constitutional amendment, albeit limited, is a significant step toward overcoming these problems. With adequate judicial education, advanced training, sufficient emphasis on judicial ethics and by learning from the professionalism and effectiveness of judiciaries throughout the developing world, we may continue to promote the rule of law and full democracy instead of the present juristocracy.
We should establish a strong framework for an independent, accountable and effective judiciary. Otherwise, judges who act as if they are above and beyond the law will continue to diminish public trust in the fairness and efficiency of the judicial system, and society will be further plagued with corruption. Without an independent judiciary and improvement in judicial ethics, the right to a fair trial and other fundamental rights, democratic governance, economic development and social equality will remain illusory.
