[Major judicial problems and draft judicial reform -2 ]
Why do we still lack a judiciary with EU standards?
by
YUSUF ÇAĞLAYAN*

Because politics takes action in accordance with such relative principles as real politics, the raison d'être, the sustenance of the state, public benefits and interests, national interests and outlook, it cannot be compatible or reconcilable with pure and absolute justice. If judges make their decisions based on such relative principles and precepts and if they define themselves against or in favor of the existing administration in power, they cannot represent pure and absolute justice. When the judges see themselves as watchdogs of the established order rather than as deliverers of justice on behalf of the nation, this is most unfortunate for a society and the entire nation.

The most obvious indicator of such corruption is best observed when a judge adopts a political attitude and position vis-à-vis the people and declares a certain ideological tendency. A partial judge prefers the benefit of the state over the rule of law. The function of a judge who views himself as the representative of a certain ideology is protecting the status quo rather than delivering justice. A judge assuming political missions will play active roles in discarding political actors and toppling the political administration at the behest of the opposition. (Etyen Mahçupyan, April 2, 2008, Zaman daily).

Official ideology and judiciary

The most typical example of a structure based on official ideology was the former Soviet Union. In the USSR, the judiciary was the institutionalized extension of the official ideology. To this end, the judiciary in the USSR had become a tool to legalize all actions and policies introduced by institutions of the official ideology. In such a case, the introduction of advanced safeguards for judges performing such functions meant the judges sharing this mentality would have safeguards for their ideological attitudes. For this reason, introducing advanced judicial reform in Turkey, an advanced legal mindset of European standards, is needed first. It is not possible to talk of the independence and impartiality of the judiciary where the official ideology occupies a central place because the development of a culture of internal security in line with the official ideology and its influence over the making of laws and judges is almost inevitable.

How can a judge briefed by military officers remain impartial in cases relating to internal security issues? Under these conditions, even judges eager to preserve their dignity and impartiality will have to deal with growing pressure and risks that will lead them to make decisions incompatible with their profession or legal mentality. They will either have to accept the criticism suggesting that they are acting as protectors of the enemies of the state, or they will compromise justice to avoid such accusations or criticism.

The history of our judiciary is full of examples of partial actions of judges eager to preserve the interests of the state. Our history also reveals that there were courts established during extraordinary times of military coups to prosecute opponents. There are also court judgments against criticism for actions of the state. Courts have been established to legitimize the actions and decisions of coup makers. We also witness the closure of the Council of State by the 1960 junta. Its judges were relieved of duty and the council was subsequently reorganized to observe the interests of the coup perpetrators.

We also notice that the Şemdinli prosecutor -- a case that involves uprisings in the town of Şemdinli in Hakkari which began with the explosion of a bomb -- Ferhat Yalçınkaya and the prosecutor of the Sept. 12 indictment (prosecutor Sacit Kayasu prepared an indictment against Kenan Evren and those involved in the Sept. 12, 1980 coup) were subjected to unfair treatment. There are also illegal institutions relying on extrajudicial methods to pursue their interests. We witnessed such incidents in the past, incidents that may encourage some circles to provoke or exploit the judiciary to realize their plans.

A recently revealed secret action plan prepared against the Justice and Development Party (AK Party) and the Gülen movement is a striking example in this regard. The role reserved for the judiciary in the plan is pretty interesting. If this is really accurate, evidently the plan was based on three basic assumptions: that the judiciary may be misled, provoked or used. In other words, the plan assumes that the judiciary can play a role to illegally or unjustly prosecute people. This is a plan that will be implemented based on the assumption that the judiciary may be exploited and misled. However, the silence of the members of the judiciary in the face of such a plan is also worrisome.

The reason for the inability to introduce bold judicial reforms in our country is the risk that the institutions may take shape in accordance with the political missions of the judiciary. This is a risk suggesting that the judges following ideological precepts will serve the best interests of the official ideology rather than justice and the interests of the nation. The above examples of widespread exploitation of safeguards also give a clue about the magnitude of such a risk.