Supreme Court of Appeals seeks to maintain status quo

Supreme Court of Appeals President Hasan Gerçeker, who met with 30 court department heads on Monday to discuss the reform package, asked the top judges to research the unconstitutional aspects of the proposed reforms. A report summarizing their findings, which has been obtained by Today’s Zaman, says most of the changes challenge the principle of separation of powers and the first three articles of the Constitution, which are deemed unchangeable. The court’s grounds for opposition to the package are likely to be a departure point for the main opposition Republican People’s Party (CHP), which has already announced that it would appeal to the Constitutional Court for the annulment of changes if the package passes in Parliament.

The presidency of the Supreme Court of Appeals is expected to send the report to the Justice and Development Party (AK Party) government and ask the government to consider the court’s objections. However, even if the government takes the court’s opinions into consideration, it is unlikely to accept the court’s proposal to delay the changes until a new Parliament is established after next year’s elections, a demand also voiced by the opposition.

While the high court strongly criticizes the most crucial changes included in the package, it has also found some positive aspects.

Criticism of Parliament

Stating that the separation of powers, which is based on the independence of the executive, judicial and legislative branches, is an indispensable principle of parliamentary regimes, the court said in the report that it is not possible to say that the legislature in Turkey is currently independent since it is under the influence of the leader of the AK Party, which has a majority of seats in Parliament. The court said the 10 percent election threshold should be lowered for Parliament to represent the nation’s will, adding the package should be left to the next Parliament to enable the contribution of all political parties, state institutions and NGOs.

The court even finds the planned changes to the party closure system, which have been applauded by both the European Union and the Council of Europe’s Venice Commission, unacceptable on the grounds that it challenges the principle of separation of powers. While objecting to the change that would make it possible for members of the military to be tried in civilian courts, the court approves of the amendment to prevent civilians from being tried in military courts. While the court says the fact that the ombudsman institution will have to answer to Parliament could cast a shadow on its impartiality, it says opening it up to judicial oversight is a positive change.

In a move that could be seen as a reaction to the Constitutional Court’s silence about the changes, the Supreme Court of Appeals also voices strong criticism of the planned changes to the structure of the Constitutional Court. If the reforms pass in their current form, the court will be made up of 19 members, three of whom will be approved by Parliament. The remaining 16 will be appointed by the president. The members will be appointed for a term of 12 years with no possibility of serving a second term. The package also includes a change to Article 144 to allow the Justice Ministry to monitor the activities of judges and prosecutors.

While the Supreme Court of Appeals supports increasing the number of Constitutional Court members, it says the Supreme Court of Appeals should appoint at least five members to the court. The appeals court argues that the appointment of some members of the Constitutional Court by Parliament is the “government’s seizure of the court,” even though the change is in line with the views of the European Union and the Venice Commission.

Changes to HSYK strongly censured

The article in the reform package foreseeing a change to the structure of the highly criticized Supreme Board of Judges and Prosecutors (HSYK) received the fiercest objections from the Supreme Court of Appeals. With the change, the board will be made up of 21 permanent and 10 alternate members. The justice minister will continue to be the chairman of the board. The Justice Ministry undersecretary will be a member of the board. Four permanent members will appointed by the president from among academics in law, economics and political science and lawyers; one permanent and one alternate member will be appointed by the Constitutional Court from among the court’s rapporteurs; three permanent and two alternate members will be appointed by the Supreme Court of Appeals General Council from among the court’s members; one permanent and one alternate member will be appointed by the Council of State from among its members; seven permanent and four alternate members will be appointed by judicial judges and prosecutors from among judges and prosecutors of the highest rank; while three permanent and two alternate members will be appointed by administrative judges and prosecutors from among the highest-ranking administrative prosecutors and judges.

Reiterating that it is not appropriate to include the justice minister and the Justice Ministry undersecretary in the board, the court has found the number of members to be appointed by the court lacking. The court said at least six members should be selected by the Supreme Court of Appeals and at least five by the Council of State.

The Supreme Court of Appeals also opposed the possibility of the package being taken to a public vote as a whole. The AK Party cannot currently amend the Constitution by itself as it has 338 seats in Parliament. Constitutional changes that are approved by more than 330 but less than 367 deputies should be taken to a public vote, according to the Constitution. The AK Party is determined to take the package to the public if it fails to be approved in Parliament.

On the other hand, some changes included in the package were approved by the Supreme Court of Appeals. These articles introduce affirmative action for women, children and the disabled as well as the abolishment of temporary Article 15 of the Constitution, which bans any legal action against coup generals.