Judiciary strongly opposed to sharing of its power

A draft judicial reform, prepared by the Justice Ministry in 2007 and presented to the EU, has revealed that judicial bodies in Turkey are unwilling to share their power with other parties and are strongly opposed to the idea of the fulfillment of any judicial reform.

In a 34-pages report prepared by the Supreme Court of Appeals and included in the draft judicial reform, the court openly stood against the idea of the civilianization of judicial bodies.

The Supreme Court of Appeals claimed in its report that appointment of members to the Supreme Board of Prosecutors and Judges (HSYK) by the president or Parliament has negative impacts on the structure and identity of the board. According to the court, the president will be under the influence of his political views when appointing members to the HSYK.

“The power of the president to appoint a member to the HSYK overshadows the court's independence because the president, either knowingly or unknowingly, may reflect his political views in his appointments. Thus, the right to appoint the members of the HSYK should be conferred upon judges,” stated the report.

The court is also opposed to the fact that the parliaments of some European countries appoint members to their supreme boards of judges and prosecutors.

“In those countries mentioned, the democratic parliamentarian system has been adopted with all its principles. However, the independence of judiciary, the rule of law, democracy and secularism are issues of hot debate in our country. Those who have a great say in the formation and modus operandi of Parliament are leaders of political parties,” the report went on to say.

The Supreme Court of Appeals is also opposed to the idea of a prospective limitation in the wide-ranging freedom of the HSYK.

The EU demands that the decisions of the HSYK be open to objections, an idea the board is strongly opposed to.

The Supreme Court of Appeals also demands that the HSYK have autonomy in financial affairs and that the inspectors be reappointed in a way to work under the control of the board. The court believes that such moves will strengthen the independence of the board and reduce complaints of judges and prosecutors about the modus operandi of the board. The Supreme Court of Appeals went on to assert in its report that the authority of the justice minister to launch investigations into judges and prosecutors -- a principle enshrined in the Constitution -- overshadows the independence of the judiciary. According to the court, this authority should be conferred on the HSYK.

Supreme Court willing to undertake role of top court

The report openly indicated that the Supreme Court of Appeals is willing to take up the role of the Constitutional Court. The court asked that the title of Supreme State Council (Yüce Divan) -- a title the Constitutional Court undertakes when it tries ministers, prime ministers and other high bureaucrats -- be bestowed on it.

“Taking into consideration the training and qualifications of members of the Supreme Court of Appeals, it is almost a must to give the authority and title of Supreme State Council to the Supreme Court of Appeals. Such a move would also be in the right direction for the single-headedness in the judiciary. Given the fact that the purpose of the foundation of the Constitutional Court is restricted to the protection of the Constitution, its authority should be restricted to its duty. The fact that the title of Supreme State Council has been conferred on the Constitutional Court cannot be an excuse for wrong application, which does not comply with the principles of a state governed by the rule of law. The title and authority of Supreme State Council should be bestowed on the Supreme Court of Appeals,” stated the report.

Council of State is no different

Various suggestions included in the report of the Supreme Court of Appeals are supported by the Council of State, which contributed the preparation of the Justice Ministry's draft judicial reform.

The Council of State expressed opposition to the idea that the president and Parliament appoint members to the HSYK. According to the council, the appointment of HSYK members by the president or Parliament goes against the notions of national sovereignty and legitimacy.

It also believes that the right of the justice minister and his undersecretary to vote on HSYK decisions be annulled.

“The justice minister and his undersecretary are two of seven HSYK members who have the right to vote on the board's decisions. The remaining five members are appointed among judges of the Supreme Court of Appeals or the Council of State. Considering this, we see that this board does not reflect the whole judiciary,” claimed the Council of State report.