Or more correctly, as they knew the truth was different, they assumed that an authoritarian regime that would impose normative definitions would create the targeted nation. Thus, they refused to accept the separation of powers from the start. There was a constitution in place, but it had been drafted as the ruling leaders wanted it to be, and elections were being held, but only the people endorsed by the ruling leaders could run for them. Furthermore, the existence of a single party was thought to be sufficient and the heads of provincial organizations of that party were also the governors of their respective provinces. In other words, the political party governing the country was identical to the bureaucracy. In this case, elections would mean nothing but a means for some bureaucrats to become deputies or for the people who were close to the leader to climb the ladder of their bureaucratic career first by being elected as a deputy.This identical nature of the legislative, executive and the administrative organizations could also be seen in the sphere of the judiciary. This was so not only in terms of the judiciary opening lawsuits as if it was the natural extension of the executive, but also, as seen in the case of the Courts of Independence, Parliament could elect some of its members who had no legal background and arbitrarily appoint them as judges. Thus, this thing called separation of powers evolved as acts by the strong and unquestionable executive.
The multi-party regime changed this scene more pronouncedly with respect to the relations between the legislative and the executive. Thus, the judiciary freed itself from the influence of the executive but keyed itself to an unchanging ideological orientation. This orientation consisted of the founding principles of the republic and was considered as independent from the demands and preferences of society. In this process, the Turkish judiciary evolved into an object that conducts the ideological review and tries to implement the norms it had developed concerning society despite the preferences of the executive. This signified nothing other than the emergence of the judiciary acting as a political party and positioning itself as the watchdog of the single-party era.
For this reason, today, no one is surprised to learn that the high-ranking members of the judiciary have close relations with Ergenekon defendants. While we cannot say that these members of the judiciary are directly involved in crime, it can still be claimed that most of them lend ideological support to military coups and regard the tools that can be used to pave the way for a coup as quite normal. Indeed, some members of the Supreme Board of Judges and Prosecutors (HSYK) do not feel the need to conceal their efforts to displace the prosecutors dealing with the Ergenekon case and other cases of political murders connected with it. We have recently learned that the most popular of these members, Ali Suat Ertosun, a former general director of prisons, had prevented the assassination of businessman Özdemir Sabancı from being revealed and arranged that a suspect who wanted to disclose facts about the assassination be murdered by other prison inmates.
This person is one of seven members of the HSYK. He was appointed to this position by President Abdullah Gül. However, in order to comprehend it, we need to investigate the mechanics of the appointment: Two of the seven HSYK members are the justice minister and the justice undersecretary. The remaining five members are appointed by the president from among three candidates nominated by the Supreme Court of Appeals and the Council of State each. However, these candidates are nominated not collectively, but individually. In other words, the top judiciary makes its selections individually and presents them to the president. In this way, they ensure that the candidates are ideologically identical.
However, the system is further secured as the five HSYK members are elected by the Supreme Court of Appeals and the Council of State. Who do you think elects the members of these institutions? Yes, they are elected by the HSYK. In other words, there are two judicial planes which elect each other reciprocally, and neither the legislative nor the executive can interfere with it. As a final securing seal, the Constitution forbids judicial review of the decisions of the HSYK.
This corporatist judicial mentality not only imposes an ideological restriction on the sphere of civilian politics but also introduces a privileged caste system for the judges and prosecutors who manage to secure this ideological protection. This keeps the regime on an authoritarian plane, restricts rights and freedoms and excludes the people or parties having unapproved ideas from the political sphere.
This judicial independence has given birth to a judiciary that is ideologically untouchable and that regards itself as unaccountable. The notion of judicial independence does not work in Turkey as it is applied in liberal democracies. This is because Turkey is still not a liberal democracy. As the foundations of the regime are defective, institutional independence starts to represent a sort of feudal power. The legitimacy of an independent judiciary stems from its neutrality. A judiciary that is not ideologically neutral, with the exception of exercising sensitivity toward human rights issues, is a great threat to democracy when it is independent because it uses the power it obtains from being independent for institutional politics. Turkey can only now comprehend this reality.
