Politicized judiciary poses threat to separation of powers in Turkey

The Supreme Board of Judges and Prosecutors’ (HSYK) decision to strip specially authorized Erzurum prosecutor Osman Şanal, who ordered the arrest of Erzincan Chief Public Prosecutor İlhan Cihaner as part of an investigation, and three other prosecutors of their authority has opened the judiciary’s power to debate once again in Turkey.

Despite repeated calls from the government and from civic groups in Turkey for a major overhaul of the judicial system, the high judiciary, which had never been as politicized as it is now, remains one of the institutions most opposed to change.

Even though the Constitutional Court, the Council of State and the Supreme Court of Appeals have made several rulings limiting the authority of the executive and legislative branches, the judiciary continues to complain. Unfortunately, many steps Turkey will take or needs to take en route to European Union membership are blocked by the judiciary.

After this recent HSYK decision, the government accused the judiciary of harming the legal system, saying the HSYK overstepped its authority and violated many rules in the process.

Need for reform

Prime Minister Recep Tayyip Erdoğan expressed his concern about this situation a few days ago when he said, “There is no civilian tutelage in Turkey, but there is certainly judicial tutelage.” The HSYK’s removal of the Erzurum prosecutors is only the most recent development supporting the “judicial tutelage” thesis.

Turkey has now entered a path from which there is no return. First Justice Minister Sadullah Ergin and then President Abdullah Gül have explained the importance of judicial reform, especially in the wake of the HSYK decision.

However, reform is unlikely to happen at the moment because any step the government will take to this end will first encounter resistance from the high judiciary. As institutions begin to participate in the EU harmonization process, judicial bodies continue to put up resistance.

The development that politicized the judiciary to this extent was the Justice and Development Party’s (AK Party) rise to power. Circles that wanted to get rid of the AK Party, which became the sole ruling power after winning 35 percent of the vote in the 2002 elections, began collaborating with the judiciary. Former Supreme Court of Appeals Chief Prosecutor Sabih Kanadoğlu started the first controversy by filing a case 15 days before the elections claiming that AK Party Chairman Recep Tayyip Erdoğan could not become the prime minister.

In 2002 and 2004, the AK Party accelerated the EU harmonization process and introduced nine harmonization packages. But a majority of these packages were, once again, met by staunch resistance from the judiciary.

Constitutional Court’s political decisions

A significant number of laws passed by Parliament have been challenged, either by former President Ahmet Necdet Sezer, who was often at loggerheads with the AK Party, or the main opposition Republican People’s Party (CHP) and ultimately annulled by the Constitutional Court. These laws include the Ombudsman Law, the Court of Accounts Law (foreseeing oversight of military expenditures by the Court of Accounts) and the Foundations Law, which would return assets and property previously seized from minority foundations.

The legislation on military expenditures hasn’t been addressed since being annulled by the Constitutional Court.

The CHP filed a total of 150 applications to the Constitutional Court between 2002 and 2010. The Constitutional Court accepted 62 of these petitions either completely or partially. The court denied 33 applications, while 55 are still pending. During the same period, former President Sezer applied to the Constitutional Court64 times.

A general sentiment has formed that any application from the CHP to the Constitutional Court will be accepted. During the 2007 presidential elections, the CHP, inspired by an idea put forward by Kanadoğlu, was able to have the Constitutional Court rule that at least 367 deputies had to be present during the parliamentary session in order for the presidential elections to be held. This ruling, which would have prevented Gül from being elected president, became known as an unprecedented legal anomaly in Turkey.

The Constitutional Court’s most political decision was in relation to a constitutional amendment that abolished the ban on headscarves in universities. Claiming that lifting the headscarf ban constituted an indirect attempt to change the first three articles of the Constitution, which are considered sacrosanct and inviolable, the court deemed the amendments null and void, thereby giving itself the power to make constitutional rulings. With this decision, the court overstepped its powers and authority, usurping those of Parliament.

Another hard-to-reconcile decision from the Constitutional Court concerned the legislation allowing civilian courts to try military personnel for crimes not related to their military duties. The annulment of this major step for Turkish democracy was an impediment for many military personnel-related investigations, especially the Ergenekon investigation. The decision of the Constitutional Court, which was created in the aftermath of the May 27, 1960 coup, kicked off a process that has led to a debate about the purpose of its existence.

Even though plans to restructure the court are included in all party programs, no steps have been taken to this end.It closed six parties between the 1960 coup and 1980 coup and 19 parties after 1980. Sixteen other parties, among them the AK Party, faced closures case at the Constitutional Court, but the court ruled not to shut them down. The case against the AK Party was the first-ever closure case against a ruling party.

Speaking to Sunday’s Zaman, Burhan Kuzu, the chairman of the Parliamentary Constitution Commission, said: “The Constitutional Court has undersigned several political decisions in recent years. The Supreme Court of Appeals, the HSYK and the Council of State are all acting like a political party. Turkey needs the judiciary’s impartiality more than the judiciary’s independence.”

HSYK tried to dismiss Ergenekon prosecutors

The HSYK’s decision is yet another move in a series of attempts to obstruct the Ergenekon investigation by players that have been against the probe from the start. The HSYK’s removal of four prosecutors in Erzurum has taken place at a crucial time, as the prosecutors had come very close to having 3rd Army Commander Gen. Saldıray Berk testify in the Ergenekon investigation.

The significance of the most recent move can be better understood in light of HSYK member Ali Suat Ertosun’s proposal in June 2009 to reappoint some of the prosecutors conducting the Ergenekon investigation.

HSYK decisions are not open to appeal and all previous attempts to change its structure have been in vain. In 2003 the HSYK removed Adana Chief Public Prosecutor Sacit Kayasu, who wanted Kenan Evren, the mastermind of the Sept. 12, 1980 coup, and his co-conspirators to be tried. Kayasu opened a case against the state at the European Court of Human Rights over the incident, and the court ruled that his rights should be reinstated. Kayasu then applied to the HSYK requesting that he be reinstated in his position. Despite the positive report of the rapporteur, the board did not carry out the court’s decision. The compensation of 41,000 euros awarded to Kayasu by the European court was paid by the Turkish state.

The HYSK, a product of the Sept. 12 coup, also became infamous for its decision concerning the Şemdinli case in 2006. On Nov. 9, 2005 the Umut Kitap Evi bookstore in Hakkari’s Şemdinli district was bombed, and two of the offenders were caught while trying to escape from the site. They were later identified as noncommissioned officers Ali Kaya and Özcan İldeniz. Referring to Kaya, then-Land Forces Commander and later Chief of General Staff Gen. Yaşar Büyükanıt said, “I know him; he’s a good kid.” The Van prosecutor, Ferhat Sarıkaya, prepared an indictment related to the incident in which he mentioned Büyükanıt. He was later disbarred for this by the HSYK.

Speaking to Sunday’s Zaman, İlyas Doğan from Gazi University’s faculty of law said: “The HSYK is obligated to comply with the European Court of Human Rights’ decisions. The main problem stems from the HSYK’s reluctance to have its decisions be subject to judicial oversight. This alone violates Article 13 of the European Convention on Human Rights [ECHR]. … The HSYK ordered the reassignment of 1,332 judges and prosecutors after delaying its decision for six months in 2009. It’s clear that during this period it bargained with the government over some of the names.”

Supreme Court of Appeals’ political decisions

The Supreme Court of Appeals has announced its support for the HSYK’s removal of the prosecutors, which -- according to some jurists -- is a violation of the principle that a judge should avoid making comments reflecting bias about a particular case. It is also an indication of how politicized the judiciary has become.

Supreme Court of Appeals members were among the first to applaud decisions that true democratic lawyers termed scandalous. When reacting to the illegal monitoring of phone conversations, the court’s president and other members acted in a way that suggested they were in favor of coups. While they continued their close contact with the main opposition party, they also vehemently opposed the judicial reform package presented to the EU and any comprehensive changes to the Constitution.

While debates about the HSYK’s decision were under way, Supreme Court of Appeals Chief Prosecutor Abdurrahman Yalçınkaya indicated, in a way that seemed like he was threatening the ruling party, that he was getting ready to open another closure case. Even though the closure case filed against the AK Party in 2008 was rejected by the Constitutional Court, it was clear Yalçınkaya’s aim was to intimidate the ruling power.

“While the high judiciary in the rest of the world expands rights and freedoms for individuals, consolidates democracy, increases democratic standards and makes the rule of law dominate, the judiciary in Turkey makes the complete opposite decisions,” AK Party parliamentary group deputy chairman Bekir Bozdağ told Sunday’s Zaman.

Attempt to try the president

Members of the judiciary who tried to prevent Gül from becoming president by promoting the 367 quorum thesis filed a case against President Gül in 2008 claiming he should be eligible to stand trial for an old fraud case, the “lost trillion case,” which concerned the now-defunct Welfare Party (RP).

According to the Constitution, the president cannot be tried for any crime other than high treason, yet the judiciary still attempted to try the president over the fraud case, revealing how far the judiciary is prepared to go. Former Judges and Prosecutors Association (YARSAV) head Ömer Faruk Eminağaoğlu was among those who showed the most support for Ergenekon suspects. When the Justice Ministry began an investigation into him, Supreme Court of Appeals members backed him up.

Council of State’s political decisions

The Council of State, which supported the HSYK’s legal mockery, has undersigned many other controversial political decisions over the last eight years. Most recently, the Council of State issued a ruling halting the enforcement of a Higher Education Board (YÖK) decision to abolish the discriminative coefficient system that is used to calculate university entrance exam scores.

In a similar case during the period of the Democratic Left Party (DSP)-Nationalist Movement Party (MHP)-Motherland Party (ANAP) coalition government in 2000, the Council of State decided that “YÖK is responsible for determining the coefficient.” But during the AK Party administration, it made a ruling implying that it had the authority for making decisions on the coefficients.

Speaking to Sunday’s Zaman, Jurists Union President Sinan Kılıçkaya noted that it is a violation of the ECHR to exclude HSYK decisions from judicial oversight and added that he believes the judiciary in Turkey makes political decisions instead of decisions that consolidate rights and democracy.