Naysayers argue that the judicial reform package will give too much power to the ruling Justice and Development Party (AK Party). Professor Ergun Özbudun, a prominent professor of law, stresses on many TV programs that there are parts of the judicial reform package that he wished could have been better formulated. However, he strongly disputes the claim that it gives too much power to the AK Party. He rightly argues the AK Party will not stay in power forever and therefore such fears and claims are baseless; moreover, the reform package does not enable any political party to accumulate too much power.
Professor Özbudun was the head of a team drafting a brand new constitution back in 2007 to replace the military-dictated one from 1982. But the draft constitution failed to be enacted due to the absence of a parliamentary consensus with regard to the need to rewrite the 1980 military coup document.
In addition, despite fears raised by certain segments of society that the ruling party will use judicial reforms to create its own judicial system, the Constitutional Court -- famed for previous highly controversial anti-government decisions -- approved the package with slight changes. This alone displays the fallaciousness of the above-mentioned fears.
The judicial reform package is also in accord with criteria set forth by the European Union in its Turkey Progress Report of October of last year. Turkey is a candidate country seeking full membership in the EU.
A highly political speech made by Hasan Gerçeker, head of the Court of Appeals, last Monday on the occasion of the opening of the new judicial year, made me recall once again the poor, undemocratic state of the Turkish judiciary.
“The judiciary is nobody else’s backyard,” Gerçeker said. He asserted that the Turkish judiciary has no problem of democratic legality. But Yıldıray Oğur from the Taraf daily recalled last Tuesday that the period since the Sept. 12, 1980 coup tells us the opposite of what Gerçeker claims when he says that the judiciary is nobody else’s backyard. It was in fact the judiciary that declared 1980 military coup leader retired Gen. Kenan Evren as the guarantor of judicial independence, he recalled.
The same judicial mentality applauded the Feb. 28, 1997 post-modern coup architects during frequent briefings given by the then-top echelon of the Turkish military.
This same judicial mentality stripped then-Van Prosecutor Ferhat Sarıkaya from all of his duties simply because he angered then-Turkish Land Forces commander retired Gen.Yaşar Büyükanıt over an indictment he prepared that implicated Büyükanıt and some other commanders in a bookstore bombing. Büyükanıt also drew strong criticism at the time when he defended one of the noncommissioned officers who was suspected of throwing the bomb into the bookstore in the southeastern city of Şemdinli in November 2006.
The Turkish judiciary is generally perceived as the extension of the military tutelage system due to its verdicts that protect the state against the citizens.
Lately some powerful judicial organizations have been very vocal, criticizing their colleagues for launching probes and opening trials against coup plotters, including many retired and active generals and former service commanders. This has displayed not only a deep polarization among Turkish jurists but also the emergence of judges and prosecutors bravely initiating probes and taking military personnel (once regarded as untouchable and immune) to court for their alleged unconstitutional acts.
Associate Professor of constitutional law Osman Can, who is also a rapporteur for the Constitutional Court, says in his newly published book that there have been positive developments taking place that have been restricting the use of the judiciary as an ideological weapon (Osman Can, “End of Coup Judiciary: From a Judiciary of the Military Headquarters to the Judiciary of the People,” TİMAŞ, İstanbul)
Consciously or unconsciously those who vote for “no” during Sunday’s referendum will be serving the coup mentality.
