The judiciary’s suicide

This process, which implied that the independent judiciary had finally taken control of the situation and that perpetrators of any offense -- whoever they are -- would have to stand trial, has been hailed by many with satisfaction. However, this joy was short-lived because of the boorish intervention by the Supreme Board of Judges and Prosecutors (HSYK). As one of the major mechanisms for judicial tutelage in Turkey, the HSYK arbitrarily stripped the five prosecutors who were conducting one of the most critical investigations in the history of Turkey of their powers and authorities without paying the least attention to the rule of law, established practices and the principle of judicial independence, without having any information about the evidence collected by the specially authorized prosecutors about Cihaner and Berk, without feeling the need to conduct any investigation into said prosecutors and without providing any justification.

By moving to viciously meddle with the independence of the prosecutors and the courts with the purpose of affording protection to a chief public prosecutor and an army commander who are accused of committing crimes in collaboration with the Ergenekon terrorist organization, the HSYK has committed a full-fledged offense. It literally conducted a “judicial coup” and overstepped its constitutional powers and authorities and violated laws. By daring to block an ongoing investigation, it made Turkey experience another shameful Şemdinli scandal. And it did this in an extremely disgraceful manner. In the case of Şemdinli, the HSYK had at least bothered to conduct an investigation into prosecutor Ferhat Sarıkaya -- even though it was done just to pay lip service to procedures. They then removed Sarıkaya from office as a prosecutor and even cruelly debarred him, as they were ordered to do. The fact that Sarıkaya had referred to Gen. Yaşar Büyükanıt, who was then a land forces commander, but would later become the chief of general staff, in the indictment he had prepared served as the beginning of the end for him.

To briefly summarize, some noncommissioned officers and members of the military disguised themselves as members of the Kurdistan Workers’ Party (PKK) and bombed a bookstore in Şemdinli. But they were caught red-handed by the people along with their weapons and delivered to the security forces. During the investigation phase, Büyükanıt was quick to interfere, and he afforded protection to the bombers, referring to them as “good boys.” Since the indictment prepared by Sarıkaya mentioned how these bombers were connected to Gen. Büyükanıt, the military urged the top judiciary to take action to protect them. The HSYK complied with orders coming from the commanders and immediately removed prosecutor Sarıkaya from office -- and even invalidated his law degree. This disproportionate punishment imposed on a prosecutor who was only trying to fulfill his duty was actually a model punishment intended to intimidate others who would consider any similar attempts in the future. With this punishment, the HSYK wanted to show prosecutors where their powers and authorities start and where they end and conducted a pre-emptive strike to deter and discourage those prosecutors who would dare fulfill their responsibilities properly.

This disgraceful incident -- etched in the history of Turkish law as a shameful event -- has ever since been used in European Union progress reports and other EU documents as proof of why Turkey needs radical judicial reform and why there is no judicial independence in Turkey. But the recent scandal caused by the HSYK is far more disgraceful and embarrassing for the judiciary than Şemdinli. Still, what is more ignominious than the HSYK’s decision to nullify the prosecutors’ powers is that the people who represent the top judicial organizations, such as the Supreme Court of Appeals and the Council of State, which maintain a monopoly over selecting members of the HSYK, blindly lent support to the HSYK, stating that the HSYK’s extrajudicial action was lawful, although they knew nothing about the case-file concerning developments in Erzincan. However, these members of the top judiciary, as honest and democratic jurists, know well that the HSYK is an administrative institution and that it can never be regarded as a court or a legal authority. They also know that no one, not even the HSYK, is entitled to block an ongoing investigation that is being conducted in compliance with legal procedures.

This judicial coup is much more scandalous than the military e-memorandum of April 27, 2007. Thus, like April 27, Feb. 17, 2010 will take its place as a disgraceful page in the history of our democracy and the rule of law. It is obvious that the highly arbitrary decision made by the top judiciary gang is extremely political since it intends to protect the offenders and aims to block the ongoing independent judicial processes and prevent prosecutors and judges from performing their duties with courage and in line with the universal principles of law. Another proof of its political intentions is that threats of launching a new closure case against the ruling AK Party have come out of nowhere. The AK Party has been exerting a strong political will -- despite all its flaws and inexperience -- to ensure that the independent judiciary can perform its duties freely.

Here, I openly caution the military and top judiciary that do not want to give up their tutelary roles and domination over our democracy and judiciary. Avoid arbitrary behavior that will erode public trust in the judiciary and law and do away with your reflexes to protect criminal networks fighting against the nation. Also do away with your illegal and shameful collaboration with these networks.