Problems with the Supreme Court of Appeals’ views
by
YUSUF ŞEVKİ HAKYEMEZ*

From the perspective of problems encountered so far, it has become obvious that judicial reform is crucially needed. However, there are conflicting views, particularly those held by the Supreme Board of Judges and Prosecutors (HSYK), on the content of such reform. Disagreements resurfaced in recent discussions on the strategy and, to this end, the Supreme Court of Appeals president has expressed his dissatisfaction and disagreement with the structure of the HSYK as envisaged in the plan.

What needs to be done at this point is to revisit this issue with reference to the criterion of a democratic state based on the principle of the rule of law. European cases as well as advisory opinions by relevant commissions of the Council of Europe should be seen as guides on this matter. While Turkey does not have regulations on the personal and professional rights of judges and prosecutors -- as is the case in some countries, including Germany and England -- the executive branch and the political administration are authorized to elect and send into retirement judicial staff.

Matters of authority

In some European countries, HSYK-like institutions -- as it operates in Turkey -- are authorized to make decisions with respect to the personal and professional rights of judges and prosecutors. The list of this second category includes France, Spain, Italy, Portugal, Poland and Slovenia. There is no single country among these examples in which the judiciary alone is authorized to elect all members of the relevant board of judges and prosecutors. Quite the contrary, in the creation of the supreme judicial boards in six countries, along with members elected by the legislative or executive bodies, there are members elected by the judiciary. In all of the European examples, parliament is vested with the authority to elect members of such a board from among academics, leading lawyers and judicial members.

The "diverse" nature of the HSYK is fairly crucial. Reports by the Venice Commission of the Council of Europe, a consultative body on democracy, the rule of law and legal matters, and the Consultative Council of European Judges (CCJE) recommend diversity in the creation of higher boards of judges and prosecutors. These reports stress that judicial independence and impartiality be preserved, legal accountability maintained and negative impacts of corporatism avoided in the judiciary.

This brief explanation should suffice to conclude that it is a crying need to restructure the HSYK. The Justice Ministry's recent initiative may also be explained by this concern. These comparative examples are cited in the ministry's draft.

However, it will be useful to recall some statements and objections by the chair of the Supreme Court of Appeals to the ministry's plan because they will provide some clues on the court's approach vis-à-vis the matter. With respect to the emphasis on democratic legitimacy in the strategy draft, the court's view, as stated on Feb. 3, and the speech by the court's president say: “Without delving into the conceptual discussions on the subject matter, the Turkish judiciary, which employs its judicial authority and rights because of clear authorization in the Constitution on behalf of the Turkish nation, has never had a problem of democratic legitimacy.” In a country where this logic attracts supporters, it is very difficult to maintain a judicial system ready to answer to relevant bodies. Furthermore, this sentence contradicts itself; above all, the clear authorization in Article 9 of the Constitution states that judicial powers employed on behalf of the nation can be explained via the presence of democratic legitimacy. Second, considering that Parliament had some power in the formation and combination of the Constitutional Court and the HSYK under the 1961 Constitution, it can be concluded that there were concerns over democratic legitimacy with respect to the creation of the judicial system in the past.

The Supreme Court of Appeals' opinion and the speech by its president also raise objections to the method of mixed combination, a method widely employed in some E uropean countries and cited in the strategy draft. Despite the fact that the said countries have adopted a democratic parliamentary system with all its institutions and rules, there are ongoing discussions in Turkey concerning judicial independence, the rule of law and vital constitutional principles, including democracy, secularism and a social state governed by the rule of law. Subsequently, opponents also attract attention to Turkey's unique conditions and the lack of public awareness. In a country seeking to achieve the democratic standards of advanced democracies, opposing judicial reform in reliance on concerns and fears that will legitimize the preservation of standards of second-class democracy means an eagerness and a desire to see the domination and continuation of flawed democratic institutions. Even more important is witnessing such a demand being voiced by a high court.

Another example may be useful in showing how the notion of judicial independence is being used by different persons and institutions within the context of the HSYK. The Turkish Bar Association (TBB), in its draft constitution in 2007, recommends a seven-member higher board of judges whose members would be elected by the Supreme Court of Appeals (to be authorized to elect three among its members) and the Council of State (the same applies) and by the TBB executive board among lawyers practicing law for more than two decades.

The relevant part of the draft constitution noted that the justice minister could participate in the plenary session except that he would not have the authority to vote; and the inclusion of a TBB representative in the sessions was legitimized with the argument that his presence would make the deliberations more transparent. If the justice minister's membership on the board is dropped for the sake of independence, it should not be possible to promote the inclusion of a TBB representative. In fact, this TBB recommendation shows just how controversial notions and terms such as a new constitution, judicial reform, democracy and the rule of law as well as the separation of powers and judicial independence were stripped of their actual meaning and used in a different context by different figures and institutions to validate their political arguments and consolidate their political positions.

A politicized HSYK

The holders of these different views and opinions argue that the HSYK will be politicized if non-judicial members are included in this institution and that this will eventually undermine judicial independence and impartiality. However, European cases and examples confirm that this is not such a cohesive and consistent argument. The inclusion of members from the legislative and executive bodies on the board will not alone suffice for further politicization in the HSYK. To this end, three major cases should be recalled: Sacit Kayasu was barred from his profession after a decision by the board; likewise, Ferhat Sarıkaya was expelled from the profession following an indictment in the Şemdinli case by a decision favored by five HSYK members despite opposition by the justice minister and undersecretary, and finally attempts to appoint prosecutors and judges handling the Ergenekon case to different positions and places. Even these three examples alone clearly confirm that some controversial and delicate decisions were made by members who pay particular attention to their background and ideological orientation.

Despite the fact that European standards and practices on higher judicial boards are obvious and undisputable, the court of appeals and the TBB put an emphasis on Turkey's special conditions to promote their argument. This can be explained by their distrust of politics and elected politicians. However, it should be noted that such pretexts during a process of implementation of bold reforms that will take the country to the level of advanced democracies should be viewed as superficial statements and explanations by actors eager to preserve their strong positions. It should be noted that Turkey will have no option other than decisively implementing the reforms in this age.