Opportunity for judicial reform
by
MÜMTAZ’ER TÜRKÖNE

In Turkey, the judiciary is independent to the highest extent in accordance with universal standards. Yet, it is not impartial. A strong piece of evidence of its impartiality is that the members of the top judiciary describe it as a duty to actively take part in ideological issues. There is an official state ideology that is interpreted differently by different groups. This ideology is defined as Kemalism or Atatürkism and rendered differently by diverse political groups. There is also another ideological taboo called the “values of the secular republic,” about which hot philosophical and ideological debates are conducted. The members of the top judiciary tend to frequently state that judges are not impartial to these ideological values and they side with secularism and Atatürkism. These flexible ideological references inevitably drag the judiciary into ideological clique formations and political competition. Thus, the judiciary takes sides in political debates.

Judicial reform is expected to first make the judiciary impartial and then to transform it into a power that issues decisions in compliance with universal legal rules.

What do the judges think?

The spokespeople of the top judiciary opt to give moderate messages about judicial reform. Given the current defects and deficiencies of the system, it is impossible for them to deny the need for reform. Supreme Court of Appeals President Hasan Gerçeker said they would comply with judicial reform passed by Parliament, but this reform should not compromise their independence and impartiality. Even the head of the Supreme Board of Judges Prosecutors (HSYK), which is one of main targets of judicial reform, cannot defend the current situation.

There is an official document on the judiciary’s views about judicial reform. The “Strategy Plan: 2010-2014,” published by the Supreme Court of Appeals, analyzes the need for reform in detail. This plan also includes a SWOT (Strengths, Weaknesses, Opportunities and Threats) analysis. There is a list of weaknesses of the judiciary based on a survey conducted among first-class judges, excluding members of the Supreme Court of Appeals, and this is the most vivid proof of the need for reform. The deficiencies in the qualifications of judges are one of the frequently voiced self-criticisms. A lack of units that support judges concerning human rights is indicative of a strong need in this respect. Most importantly, the Supreme Court of Appeals law is now considered outdated, which is another sign of the need to reform.

As for the opportunities, the first row is occupied by the effort to amend the Constitution. The work toward judicial reform is also listed as a separate opportunity. The opportunity that is expressed in the longest sentence of the “Strategy Plan: 2010-2014” indicates the judiciary’s openness to change. The European Union harmonization process is regarded as another opportunity: “The fact that our national legislation will be harmonized with the acquis communautaire and contemporary legal norms and international generally accepted standards during the EU harmonization process. … A strong expectation in society for an independent, democratic, fair, impartial, fast, effective and efficient judicial process in parallel to development of democratic life and culture in Turkey.” Now that the judiciary believes that the society has such an expectation, we can say that it is far more advanced than we think. In this expectation, the emphasis on a “democratic” judicial process should be mentioned. The judicial community’s voicing expectations for change in line with a contemporary and organized society, as would be expected in a pluralistic civilian society, shows that the judiciary intends to harmonize with the contemporary world and universal values.

The HSYK, which is the primary target of the government’s judicial reform, is mentioned in the “threats” section of the SWOT analysis. The members of the top judiciary describe the HSYK in its current form as a “threat” for the future of the judiciary, implying that this must be changed. Thus, it can be concluded that there is an agreement between the judges and the government as to the need for changing the structure of the HSYK, which is located at the heart of judicial independence.

Purpose of constitutional reform

The main purpose of constitutional reform is to bring Turkey closer to the rule of law. To this end, the judicial bureaucracy should be changed, and the military’s legal immunities should be removed.

How does our judiciary perform compare to the external world? The judiciary’s capabilities for administering justice and protecting fundamental rights and freedoms are quite restricted. This is also evidenced in the decisions by the European Court of Human Rights. We, as citizens, are entitled to refer a final decision given by the judicial authorities in Turkey to the European court. There are about 10,000 applications from Turkey pending at the court. In about 90 percent of the cases heard by the European court, the Turkish state was found in violation of the European Convention on Human Rights. This is to say that our courts’ verdicts are in breach of fundamental rights and freedoms and the principle of a fair trial. Our judiciary’s report card is full of failures in the face of an assessment based on universal criteria of the civilized world and the rule of law.

One of the articles of the constitutional reform package aims to remove the military’s immunities from the rule of law. In this framework, it plans to amend the article in the Constitution that was used as a justification by the Constitutional Court to cancel the legal amendment that allowed military personnel to be tried at civilian courts.

It is obvious that the military has a corporate reflex for meddling with the judiciary. But, this is now seen as an institutional weakness. Our chief of General Staff has been delivering judgments about an ongoing major trial as if he were both a judge and a prosecutor. He evaluates the evidence. He issues his verdict. He acquits the defendants. He hurls threats at those who are not convinced by this show. He publicly interferes with the judiciary. Can this military be an advanced institution of a civilized country? Can a country where the commander of a strong military openly violates the law and issues instructions to the judiciary be transformed into a contemporary country?

A constitutional amendment that would allow the trial of military personnel by civilian courts will make things easier for judges and prosecutors who work to uphold the rule of law. This will ensure the supremacy of law over weaponry. Upholding the rule of law over weapon-based power will be a tremendous step forward for Turkey.