Claiming that the draft does not introduce major improvements, he voiced concern that the right the draft grants to Parliament and the judiciary to appoint judges to the Constitutional Court and the Supreme Board of Judges and Prosecutors (HSYK) could, in fact, mar judicial independence. He said there were positive improvements but noted that he did not agree with the draft as a whole. He also expressed disappointment over the widespread criticism citing the Turkish judiciary's poor performance and its lagging behind the standards of universal law. Analysts say the legislative body's appointment of some members of HSYK-like institutions is common in European countries to ensure democratic legitimacy in those institutions and that the criticism leveled against the judiciary is not unwarranted, as claimed by Gerçeker.Commenting on Gerçeker's criticism of Parliament's appointment of members to the HSYK as envisioned in the draft judicial reform, Sabah's Nazlı Ilıcak says in many European countries great importance is given to the establishment of “democratic legitimacy” by extensive representation and the appointment of some members by the legislative body in institutions similar to the HSYK. “In the current HSYK, there are five members except for the justice minister and his undersecretary, and all of them are appointed by the president from among candidates designated by the Supreme Court of Appeals and the Council of State. Even though this privileged situation ensures the judiciary's freedom to a certain extent, it leads to concerns about the judiciary's neutrality because the HSYK acts as a part of the tutelage created over the nation's will,” explains Ilıcak. She says the judges make rulings in the name of the Turkish nation but that the nation is missing, so the appointment of some HSYK members by the legislative organ will ensure their contact with the nation. “If Gerçeker had criticized the justice minister presiding over HSYK meetings and the fact that the HSYK meetings cannot be held when the justice minister and his undersecretary are absent, this would be a fair criticism. Nevertheless, it is not right to claim that the appointment of some HSYK members would mean the politicization of the judiciary and the violation of its independence,” says Ilıcak. Complaining that the HSYK has so far performed badly in major cases such as Ergenekon and made efforts to change the course of the cases, she says an amendment that will diversify the members of the HSYK will enable the institution to act in a more neutral way.
Citing Gerçeker's statements about the criticism of the Turkish judiciary when he said: “We are deeply saddened by the criticism that the Turkish judiciary has failed, it was found guilty in many cases in the European Court of Human Rights [ECtHR], it failed to raise its standards to those of Europe, it fails to produce law and cannot internalize the produced law,” Star's Mehmet Altan says he was both surprised and upset by Gerçeker's comments about criticism against the judiciary. “Dear Gerçeker, you should not be deeply saddened by the social criticism which aims for a Turkey and a judiciary of universal standards. The thing that should really upset you should be the arbitrary rulings of the institution you represent instead of its siding with universal law. If you do not make reckless rulings which deeply sadden some, you will not be a target of criticism that will deeply sadden you,” says Altan.
