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February 08, 2013, Friday

A sign of judicial activism

The radical changes to Turkey's judicial system proposed by the ruling Justice and Development Party (AK Party) to the parliamentary Constitutional Reconciliation Commission, which is tasked with drafting a new constitution for Turkey, have triggered a heated debate, with many opposition party members and columnists arguing that the government aims to have the judiciary under its control and that it holds politics above the law.

They are mainly concerned about the proposed change to the method of appointment to the Supreme Board of Judges and Prosecutors (HSYK). While today 15 of the 22 HSYK members are elected by judges and prosecutors and the rest are appointed by the president and Parliament, the proposal suggests that the president appoint seven, Parliament appoint seven and that the rest are elected by judges and prosecutors.

Taha Akyol from the Hürriyet daily says judicial activism persists in Turkey and it is what prevents the judiciary from functioning effectively. According to the proposal, the authority to determine the HSYK members is largely in the hands of the president. Akyol says he fully supported the 2010 referendum, the ratification of the 26-article constitutional amendment package, because the referendum made it possible for some members of the Constitutional Court to be elected by Parliament and that the members of the HSYK are elected by a diverse group. And at the same time, he says, he has been defending the idea that the majority of members of the HSYK should be elected by the judiciary. Today Akyol says he holds the same views, but the government appears to have changed its mind and is acting completely differently than it did in 2010.

Radikal's Cüneyt Özdemir writes that we first need to ponder why the government felt the need to make such a drastic change. The most important reason is the huge difference in the perception of the government and the judiciary of what the “new Turkey” is. For example, Prime Minister Recep Tayyip Erdoğan has consistently expressed his dissatisfaction over the detention pending trial of former Chief of General Staff İlker Başbuğ and says he prefers Başbuğ be released pending trial. However, the judiciary has not responded to the prime minister's call. There are many other examples indicating dissent between the judiciary and the government. As a matter of fact, this is the way it is supposed to be considering the principle of separation of powers, the columnist says

As for the content of the proposal, Özdemir thinks it seems that the proposal is an attempt on the part of the government to have the judiciary under its control. The fate of judges and prosecutors will depend on the government's decisions after the planned changes are made, he says.

Nazlı Ilıcak, a columnist for the Sabah daily, is also critical of the proposal. She recalls that Erdoğan previously said that they would not change the amendments made with the 2010 referendum. However, the new proposal is totally contradictory to the changes made after the referendum and what's more it is an attempt to have political control over the judiciary, she argues.

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