Turkey’s Supreme Board of Judges and Prosecutors (HSYK) has immense influence over who will be presiding over key trials by being able to nominate replacements and promotions on an annual basis. The way it has conducted itself has drawn the ire of many observers and the government alike who feel that, up until today, it is more like a “legal fortress” which has been able to elect its own board members from within its own ranks -- or at least nominate only those colleagues who were perceived to be dedicated to defending a rather static outlook on how judges and prosecutors are supposed to interact with the changing needs of an emerging civil democracy.
The government via its justice minister or the undersecretary not only has the right to attend the deliberations, but without its approval the HSYK cannot proceed with its annual list. At present the minister refuses to attend further meetings as he is not convinced on a number of proposed nominations and reassignments.
Two issues are presently at stake. First, is the government right in voicing opposition to certain nominations and reassignments? In other words, what is at the heart of the matter and why does the government, similar to 2009, refuse to agree to a number of nominations and reassignments? Second, how will the upcoming referendum shape the future of this important body?
Commenting on the first issue, it must be said that the government has to find a delicate balance between supporting or opposing nominated or to-be-reassigned judges and prosecutors in order not to be seen as unduly influencing the process. It must be stressed, though, that today’s deadlock would not have occurred if a number of members of the current HSYK did not confuse legal objectivity with politics. The government is absolutely right to voice its concerns.
This leads us to the second subject. As a number of investigations are at present under way with regards to shedding light onto deplorable -- and often criminal -- incidents in Turkey’s very recent, as well as not so recent, past (including plans to topple the democratically elected government or cause mayhem amongst the public), it is widely believed that the current list of names -- including removing a number of key judges and prosecutors from their duty overseeing exactly these cases -- has a political nature.
The latter issue is, of course, hotly debated, and part of the solution is that a restructuring of sorts will be put to the electorate in the upcoming Sept. 12 referendum on constitutional changes. The HSYK board will have 22 members, compared to today’s seven. Changing numbers alone would not necessarily guarantee more transparency; hence, the bodies and institutions that will be able to nominate judges and prosecutors to the annual list of promotions and placements would also be modified. For example, Turkey’s president will be able to propose four board members. It is widely expected that the reform of the internal HSYK structure will not unfairly increase the government’s influence over those who will make the annual list, far from it. It simply brings more democracy to one of those Turkish institutions which are in need of a certain degree of fine tuning.
Coming back to the title of this Saturday’s column I wish to ask you a question: What does actually make a good judge, or prosecutor, for that matter? You will have your own feelings about this issue, but personally speaking I truly believe a country’s leading legal professionals (that includes by definition the minister himself) must not be above the law. This interpretation allows for the assumption that a judge can, for example, rule in favor of a person who tried to topple a democratically elected government because they are “above” the law and implies that this judge may interpret it his way, rather than be solidly anchored within the law. The law is based on a Constitution that is currently being amended. The law is for everyone, everybody is equal and everyone has to respect it.
