Taboo-breaking jurist Osman Can: Judiciary cannot be supra political

    Some argue that the high judiciary is one of the last strongholds that can protect the regime in Turkey, and others suggest that the structure of the high judiciary is one of the obstacles to democratization, but everybody agrees that Turkey is going through a rapid social, political and economic transformation that brings structural changes.

Can suggests that when the discussion heats up, the best thing to do is to get out of the discussion and examine its reference points and divert the discussion towards them. His and the Judges and Prosecutors Association for Democracy and Freedom’s reference points are “human,” “human dignity” and the “democratic process,” as is stated in the first article of the bylaws of the association. Another reference point for Can is history.

“To study law without reading history is pointless,” he told Sunday’s Zaman in an exclusive interview.

The most frequent historical reference he uses is the political and social developments in Germany during the period of the 1920s and after 1945, not only because he is the child of a family who has lived in Germany but because he thinks that in essence, there are many similarities, especially when it comes to the consequences of militarism.

‘Turkey is undergoing a bourgeois revolution’

When he talks about judiciary-democracy relations, he refers to European history in general and he describes the rapid transformation that Turkey is passing through as a “bourgeois revolution.”

According to him, the bureaucratic oligarchy in Turkey is in the process of giving its place to democratic society. “It is time for a constituent assembly, ” he underlines.

Can argues that the best way to draft a new constitution is to establish a constituent assembly, which must represent the whole of society without any preconditions. “I repeat once more, without any preconditions,” he says.

According to him the institutions should not draft a constitution because the institutions will be defined by the constitution. To draft a constitution by the hand of the institutions will mean bureaucratic interference.

“A constitution that is not a product of society cannot be successful. We should not aim for the ideal constitution because we are not doing it for Mount Olympus but for ourselves, and this is why it should be the product of society,” Can says and underlines that since all segments of society were represented in the 1921 Parliament of Turkey including “an imam defending Bolshevism,” Turkey’s most respectable constitution was the one prepared by the 1921 Parliament.

“Constitutions are not manuals for society. There is no reason to try and find answers to all the questions, but the aim must be to create a free constitution in which the people can find the answers they are looking for. This is why social dynamics should be taken as a reference. Only after that can academics as technicians formulate the constitution on the bases that are agreed upon by society,” he suggests.

When asked how this method could be implemented in Turkey he once again points to the constituent assembly. “But such an assembly should be formed without any preconditions, without any election threshold, without the effects of inner party discipline and similar preconditions,” he says.

However, he accepts the difficulties of removing all these preconditions and the possibility that Parliament cannot devote all its time to drafting a constitution, so his second suggestion is to form a consultative assembly that represents all segments of society in addition to Parliament.

“All segments of society should be able to put their signature to this constitution. But if you try to formulate all the constitutional norms, when it gets longer, not everybody might be able to agree on everything. So in this case, we have two options: First, determine the basic principles in the constitution and leave experts to formulate the rest, and second, have a short constitution, agree on the basic principles and leave the rest to legislation. So you open the door for all political ideas to gain the majority in Parliament and through legislation they contribute to forming the state.

Parliament should have a say in appointing judges

Can and the Judges and Prosecutors Association for Democracy and Freedom frequently underline that the claim of the judiciary of being “supra political,” or “above politics,” is the opposite of democratic politics.

“The experiences in Turkey and the world show us that any attempt to create fields ‘autonomous from democratic politics’ and to attempt to put some institutions above politics can only feed totalitarian tendencies,” Can says.

According to Can, the understanding of the principle of the “separation of powers” in Turkey should be revised, too.

“To defend the participation of the legislative, executive and judicial branches in the administrative process on an equal basis might lead to turning the judiciary into a political actor and an instrument of the administration. Every power should only have that authority which is related to its function. Of course, among these powers a hierarchy cannot be acceptable, but the principle of separation of powers cannot be perceived in a way that will harm the chain of democratic legitimacy,” he explains.

This idea leads Can to suggest that the members of the Supreme Board of Judges and Prosecutors (HSYK) should be appointed by both Parliament and the judges and prosecutors.

“What we are suggesting is that all political parties in Parliament should have the right to nominate judges to the HSYK, but it should be formulated in a way that a candidate shown by one party should be acceptable for the other party. Let’s say that a candidate judge can be elected by two-thirds of Parliament, then such a consensus can be ensured,” Can says.

When asked how he can be sure that Parliament will reflect the whole of society, especially when there is a high election threshold, when the system of checks and balances is not improved and when civil society, which can serve as a control mechanism over Parliament, is not strong enough, he smiles. According to him all these concerns are right to a certain extent but derive from not being able to read the dynamics of democracy correctly:

 “Look, even if you accept these concerns as right, and they might be to a certain extent, this means the political party in power will appoint some of the members of the HSYK, and when the power changes, the new political party will appoint its own members to the HSYK, and such a situation eventually will lead to pluralism, although what we are suggesting is a consensus among the political parties on the appointment of the members of the HSYK,” he underlines.

He emphasized that once democratic legitimacy is reflected in the formation of the top judicial bodies, then the judiciary will start to produce its own democratic culture very rapidly:

“I am absolutely sure about it,” he stresses.

‘We want to lead to a mental transformation’

Can and the Judges and Prosecutors Association for Democracy and Freedom, as is openly emphasized in their bylaws, are not suggesting a one-dimensional solution to the problems of the judiciary; they are suggesting a whole systematic revolution for it.

For example, they suggest that members of the judiciary should know about comparative political history and about non-democratic movements and their implications for the world and also for Turkey.

According to the Judges and Prosecutors Association for Democracy and Freedom, judges and prosecutors should have the right to form syndicates. They are categorically against attempts to unite members of the judiciary under official organizations.

They also suggest that judges should interact with society and should be given enough economic means to ensure they will be free from outside pressure while handing down verdicts. To ensure their interaction with society, privileges such as government housing and official cars should be removed, too.

The association’s bylaws also suggest that the prosecutor of the Court of Appeals should not be given any duties that are outside the jurisdiction of the Supreme Court of Appeals; for example, he should not have the right to file cases against political parties. They also argue that the Constitutional Court should serve as the court for society when there is a conflict between the state and society and that it should act like a court of freedom when there is a conflict between authority and freedom.

The Judges and Prosecutors Association for Democracy and Freedom even suggests that the politicization of the judiciary is related to their being located in Ankara, the capital, so the high courts that are not directly related to the administrative structure of the state should be moved to other Anatolian cities in order to get closer to society.

There are very well-known names as the founding members of the Judges and Prosecutors Association for Democracy and Freedom, such as retired military judge Ümit Kardaş, Orhan Gazi Ertekin, Kemal Şahin and Faruk Özsu besides Osman Can, who are known for their contributions to the discussions of the structure of the judiciary with reference to the European style of social democracy.

Can thinks that day by day their number of members will increase.

“Our bylaws are based on internal and international experience, are a product of long hours of discussion and a well-defined philosophy,” he says, and adds, “because we want to lead a major mental transformation.”

When questioned about the length of time this mental transformation might take, he was not pessimistic at all.

“No, it will not be possible to perform this mental transformation within one day, but it will not be that long, either. Look, the whole of society is searching for the answers to questions because everybody is aware of the structural problems that we are facing. The usual references are no longer not valid. If you have satisfactory answers to questions and objections, the mental transformation starts. To put it more correctly, the moment that you find the answers, the former structures will start to be replaced with new ones that are democratic and based on freedom.”