[Major judicial problems and draft judicial reform (1)]
Why do we still lack a judiciary with EU standards?
by
YUSUF ÇAĞLAYAN*

However, in our country, the judiciary faces serious problems in many areas, including a crushing workload and a lack independence, impartiality and public and institutional awareness. The judicial reform package seeks to introduce reforms on the institutional and professional organization of the judiciary and to publish ethical principles for judges.

However, the draft reform package seems to be unable to offer comprehensive and lasting solutions to existing problems because of its superficial content.

Excessive workload a major issue faced by the judiciary

The figures of concluded cases handled by the courts raise serious concerns. A total of 594,800 lawsuits were filed with the criminal chambers of the Supreme Court of Appeals in 2008. In the same year, 522,451 cases were concluded and the handling of 362,551 was postponed to 2009.

The dramatic increase in the number of cases before judicial bodies, the inability of courts to conclude the suits in a timely manner and an excessive workload resulted in the accumulation of dossiers before local courts and the Supreme Court of Appeals. The same also applies to the Council of State and commercial courts. It is now essential to introduce radical reforms to restructure the judicial process and create a functioning legal mechanism.

The issue of raising awareness

Unless the people become aware of the growing importance of justice and this turns into a natural attitude, the pursuit of personal interest and satisfaction of individual pleasures will be a priority. In this age, people suffer from the repercussions of the absence of moral values; they mostly follow their ambitions and personal interests. This eventually leads to the domination of a model of going after one's interests. The judiciary now has to deal with extensive work and a growing number of dossiers because the masses have been defeated by their ambitions and selfishness. For this reason, immediate measures should be taken to raise awareness and promote general courtesy among people.

The issue of relativity in law

The official ideology is the chief reason for relativity in the law. Like a dictator, any official ideology seeks to organize the political structure and institutions in accordance with its objectives and goals. In a cultural atmosphere where the official ideology and its institutional structure are praised, laws equipped with provisions protecting this structure will eventually seek to safeguard the authority and perpetuity of that official ideology. It is not possible to argue that laws promulgated for specific reasons and goals will bear aspects of objective law. Relativity in law is not limited to the internal structure alone because the international monopolies impose legal arrangements seeking to maximize their interests to their local stakeholders that have become extensions of the global system constituted by these monopolies. Such laws, created through a lengthy process, should be revisited and reformed if necessary.

Judicial independence and impartiality

Judges should be free of concerns over impositions from any institutions or actors. In principle, they do not receive instructions or orders from outsiders. However, they should also be objective enough to remain uninfluenced by their worldviews and to stick to the principles and requirements of due process. It will be a great assurance for all to know that the judiciary, as the final arbiter of disputes, will not be influenced by any political or ideological process. The criterion for a fair judicial system in a given country is its ability to make sure that even a disadvantaged person is entitled to seek justice for his case.

The separation of powers is the greatest principle regulating relations between politics and the judiciary. However, the judiciary is authorized to inspect the legislative body with respect to the constitutionality of the laws and the executive body with respect to the suitability of its actions with existing legislation. This is a functional relationship limited to the suitability check on behalf of the nation.

However, a process of oversight or inspection that is to be carried out by judges seeking to fulfill the demands of the status quo in accordance with a constitution bearing provisions favored by the official ideology disrupts this normal relationship between the legislative, executive and judicial bodies. This eventually leads to an inspection process focusing on compliance with the official ideology.

What sort of sanctions can the judiciary face if it loses this authority in its relationship with the legislative and executive bodies? Our legal system includes some restrictions and safeguards to ensure the impartiality of judges such as professional career tracking. However, it is obvious that these measures have failed to become functional. Checking for impartiality is almost impossible for judges who evidently fail to act impartially and make their judgments objectively. The primary reason for this is the presence of polemics taking place between some circles suggesting that the “safeguards of the judges are undermined” or that the judges have been “put under pressure.” This paradox eventually leads to the politicization of the judiciary and the emergence of political and ideological decisions.