The need for judicial reform as a result of another HSYK event
by
ADNAN KÜÇÜK*

Moreover, they extended this support by making a “prejudgment,” which is against the law because it jeopardizes a fair trial. This is the “I am the high judiciary; when necessary, the laws do not apply to me” mentality. All of these developments clearly reveal one point: the need for urgent but non-revanchist judicial reform. After all, the Justice Ministry is not completely unprepared for this. It has been making such preparations for many years as part of European Union harmonization efforts.

So is reform required just because of the recent developments? No. The selection of HSYK, Supreme Court of Appeals and Council of State members is immensely problematic. The current system establishes a “caste system” within the judiciary. It’s like a give and take relationship. While the Supreme Court of Appeals selects a portion of HSYK members (specifically three members), the HSYK appoints all members of the Supreme Court of Appeals.

A similar practice is applied in the Council of State. Due to this situation, there is no possibility for anyone other than those supported by the majority of these two high courts to reach the president for final approval. The positions the majority represent become the only positions in the Supreme Court of Appeals and the Council of State. The HSYK not only forms this disposition with the people it selects, but also shapes the Council of State and Supreme Court of Appeals as a reflection of its own political positions. The phenomenon developing in the judicial community is such that among first-class judges and prosecutors, there are some who can be appointed to the Supreme Court of Appeals, Council of State and HSYK regardless of their qualifications and some who can’t in any way be appointed to these positions even though they are highly qualified in terms of creativity and fulfilling their duties.

India’s caste system applied to Turkish judiciary

This is a version of India’s caste system adapted to the Turkish judiciary. Another result of this is the elimination of diversity in interpretation. However, representing different positions in the high judiciary, enabling their interpretations to be effective within the judiciary and ensuring diversity in this respect is necessary for an efficient and productive judiciary. A narrow-minded judiciary cannot get rid of ideological obsessions.

This caste system also engenders the following notion: “No matter who is in power, we cannot allow anything that we disapprove of to take place.” This is also known as “the superiority of the appointed over the elected.” Even though Article 68 of the Constitution states that the elected are a sine qua non component of democracy, in the end, the courts control everything. The Supreme Court of Appeals’ chief prosecutor can open a case against a political party and the Constitutional Court can shut it down, and that would be the end of it. In this way political parties are blocked from deviating from the judiciary’s positions.

Let us not forget that beyond the very close call to punish the Justice and Development Party (AK Party) with a Treasury fund fine instead of closing it down, the issue wasn’t that the AK Party’s ideas contained violence and that these violated the Constitution and the Political Parties Law, the issue was that the Constitutional Court had a different interpretation of the legally protected principles and values than the AK Party.

This is what AK Party is being told: “This is how we read and understand the Constitution and the Political Parties Law. You do not have the right to read and understand it differently than we do. You cannot develop a policy outside of our understanding. Even though Article 2 of the Constitution states that the Republic of Turkey ‘is a democratic secular state,’ AK Party, you cannot defend the ‘democratic secularism’ foreseen in the Constitution, for if you do, we will shut you down or cut off your Treasury funds.”

A fundamental judicial reform

This is called the siege of the political system by the judicial organs; in other words, it is the administration of judges. What needs to be done as a response to this situation is “fundamental judicial reform.” The steps that need to be taken within the scope of such reform can be summed up in the following way:

A system in which the qualifications of the judges play a determinant role when selecting members of the Council of State and Supreme Court of Appeals, instead of their ideological political tendencies should be adopted. Within this system, the high judiciary should not be seen as forts that need to be conquered and brought down with ideological staffing practices within the scope of the “domestic threat vs. non-threat” division. To the contrary, these places should be turned into judicial organs where qualified judges and prosecutors as well as every type of position can exist. Procedures to select members should be designed to ensure this result. The current caste system that is used to determine HSYK members should be abolished, and a pluralistic structure like that in the West should be established. Judges and prosecutors serving in the judiciary should not have to worry about whether they will be blocked by the HSYK like prosecutors Ferhat Sarıkaya, Sacit Kayasu and most recently the Erzurum specially authorized prosecutors who were removed for doing their job. In order to ensure this, in addition to the judicial community, which includes justices on the bench, Parliament, the president, bar associations and higher education institutions should also be allowed to appoint members to the HSYK, which is an administrative institution. This will enable it to stop being an ideological institution that represents only one tendency. Also there should be more members on the board. This will eliminate concerns about the independence of the judiciary being impaired if the justice minister -- to whom judges and prosecutors are bound to in terms of their administrative responsibility -- were to participate in the board. It will also make the Justice Ministry undersecretary’s membership less significant within this majority. In brief, as a result of these steps, the HSYK should be freed from being a board that acts with ideological impulses. The most important change in terms of the guarantees of judges and prosecutors is allowing judicial oversight of HSYK decisions. Until this occurs, judges and prosecutors will not be able to fulfill their duties under constitutional protection. The impartiality of the judiciary for the sake of a fair trial is as important as its independence. It is for this reason that more focus needs to be placed on the impartiality of the judiciary in the education of judges and prosecutors. Let us not forget that impartiality has to do with education, personal ethics and judicial ethics, not the law. Judges and prosecutors need to be impartial, reliable distributors of justice that aim for justice, not ideological militants. It’s very important to instill this kind of belief in society in order to ensure the functionality of the judiciary.

The aspect of judicial reform that concerns the Constitutional Court is a subject of another article, and for this reason, I am not including it in this piece. If the government postpones reform efforts one more time as previous governments have, then the entire nation, starting with AK Party, will suffer because of this.