Judiciary gets failing marks in independence and impartiality

Yet Turkey’s recent history contains countless instances proving the judiciary is not independent as it is.

Professor Burhan Kuzu, the head of Parliament’s Constitutional Commission, asserts that to date, the judiciary has failed to express any reaction to the two coups d’état and three memorandums that have rocked Turkey, even taking sides with junta-like structures. Speaking with Sunday’s Zaman, Kuzu said: “With the Feb. 28 [1997] memorandum, members of the judiciary participated in military briefings with their judicial robes on. No justice spoke in opposition of the April 27 [2007] e-memorandum. The image of a judiciary that acts according to orders received from somewhere doesn’t suit Turkey well.”

Turkey’s recent history is full of striking examples of just how dependent and partial the Turkish judiciary is. Outside of failing to stage any opposition to any coup or military memorandum to date, the organs of the higher judiciary have failed to even maintain within their ranks any members who oppose coup-stagers.

Adana Chief State Prosecutor Sacit Kayasu, who had wanted to try Kenan Evren and his associates who were responsible for the Sept. 12, 1980 coup, was the first to be banned from practicing law by a decision of the Supreme Board of Judges and Prosecutors (HSYK). The strange thing about this was that the same legal circles responsible for this ban now want Evren and his associates to be tried. For this reason, both the Supreme Court of Appeals and the Council of State look positively upon one part of the ruling Justice and Development Party’s (AK Party) amendment package: the section that would repeal Temporary Article 15 of the Constitution and thereby pave the way for the trial of Evren and his friends.

The judicial report card on independence and impartiality

Following the ejection of Kayasu from his post and his disbarment on Nov. 24, 2003, the lawyer took the case to the European Court of Human Rights, and won. Despite the European court ruling in his favor, saying that Turkey must reinstate his rights, the HSYK did not enforce the ruling. Due to the HSYK’s resistance, all Kayasu was left with was the 41,000 euro compensation that the European court had decreed, and he demanded that this money be taken from those justices that had removed him from his profession.

When the public caught noncommissioned officers Ali Kaya and Özcan İldeniz trying to escape after throwing a hand grenade at the Umut Bookstore in Hakkari’s Şemdinli district on Nov. 9, 2005, then-Land Forces Commander Gen. Yaşar Büyükanıt said of Ali Kaya, “I know him, he’s a good kid.” The harshest reaction to Büyükanıt, who later rose to the position of chief of the Turkish General Staff, came from the judiciary. In his indictment over the bombing, Van Chief State Prosecutor Ferhat Sarıkaya also included Büyükanıt; he was disbarred by the HSYK following this.

Speaking with Sunday’s Zaman, attorney and International Human Rights Federation Vice President Yusuf Alataş said the organs of the high judiciary in Turkey have behaved like a guardian of the regime instead of the guardian of human rights, freedom, democracy and the supremacy of law. “Neither judicial independence nor judicial impartiality can be spoken of in Turkey because the rulings handed down in recent years show that in no situation has the judiciary acted independently or been impartial,” he said.

Following the beginning of the Ergenekon investigation, serious opposition from the judiciary began to arise when the investigation spread as far as retired and active duty military officers. HSYK member Ali Suat Ertosun officially recommended in June 2009 that İstanbul state prosecutors Turan Çolakkadı and Zekeriye Öz, the attorneys running the investigation, be removed from the case and reassigned. This attempt has continued to be a crisis topic between the Justice Ministry and the HSYK for nearly two years now.

The same institution sprang into action when the Ergenekon investigation extended as far as a top military commander for the first time. Erzincan Chief State Prosecutor İlhan Cihaner was arrested by court order, while Erzurum State Prosecutor Osman Şanal and four of his prosecutors were removed from their posts by order of the HSYK. An indictment Şanal had prepared required 3rd Army Commander Gen. Saldıray Berk to testify to prosecutors by Feb. 26, or else be taken by police to give a statement.

It was precisely at this stage that the Supreme Court of Appeals and Council of State began to lead the list of institutions backing the HSYK’s historic decision. As if this wasn’t enough, the Supreme Court of Appeals chief prosecutor went so far as to defend the HSYK’s decision. All this despite the fact that neither the institution itself nor the Supreme Court of Appeals or Council of State had the least bit of information about Şanal and his four aides. The five prosecutors themselves were removed from their posts without knowing what they had been charged with.

It is well known that the same HSYK took no action over Judges and Prosecutors Association (YARSAV) President Ömer Faruk Eminağaoğlu, who rocked the nation’s agenda time and again with his remarks in opposition to the Ergenekon investigation from the very start.

What kind of independence is this?

The high judiciary has opposed all of the constitutional amendment packages presented since 2008, when Turkey took constitutional change onto its agenda, and today the judiciary is the biggest obstacle ahead of a total change in Constitution. The 26-article constitutional package that the government has prepared contradicts the principle of separation of powers according to the Supreme Court of Appeals, which has already declared that the package is unconstitutional.

But the most attention-grabbing sections of the Supreme Court of Appeals’ report criticizing the reform package has to do with the military judiciary. The Supreme Court of Appeals and Council of State both find it positive to end the trial of civilians at military courts but haven’t been able to muster up a similarly courageous stance when it comes to the trial in civilian courts of military members charged with crimes outside their capacity as members of the armed forces. The Supreme Court of Appeals instead stops at recommending that the government leave topics having to do with the military judiciary to the military judiciary.

Even if the organs of the higher judiciary accusing the government of attempting to take hold of the judiciary are right in one sense, in the last 20 years in Turkey decisions made by the judiciary have resulted in the transfer of much authority from the legislature and executive to the judiciary.

During the 2007 presidential election, the Republican People’s Party (CHP) succeeded in cancelling the election results using a legal opinion of former Supreme Court of Appeals Chief Prosecutor Sabih Kanadoğlu that said at least 367 deputies must be present in Parliament during presidential elections. The fact that this decision was made following the April 27 e-memorandum is a good indicator of to what extent the judiciary is truly independent.

Secondly, on June 5, 2008 the Constitutional Court cancelled the amendments to Articles 10 and 42 of the Constitution that lifted the ban on headscarves at universities. The amendments, which had been passed with the support of 411 deputies in Parliament, was determined by the court to indirectly violate the first three articles of the Constitution -- which are unchangeable, and to which amendments cannot be proposed -- and were therefore cancelled.

In this way, the judiciary assigned itself as a partner to Parliament in the power to legislate constitutional law, despite the fact that the judiciary only holds the authority to make procedural evaluations of constitutional changes. It was the first time that the Constitutional Court had made an interpretation of the content of a constitutional change, setting what many feared was a dangerous precedent and restriction of the legislature’s ability to do its job.

Not stopping there, the Constitutional Court also cancelled a law that foresaw the trial of military officers accused of crimes outside the scope of their duties in civilian courts. This decision of the Constitutional Court contradicted the practice of democratic nations worldwide. In many European countries there is no military judiciary/civilian judiciary distinction to begin with, but nevertheless the Supreme Court of Appeals and Council of State led the pack backing the court’s decision. Following the cancellation of that law, the government was forced to put forward this latest 26-article reform package.

This guardianship exhibited by the judiciary toward the military during various investigations was fully documented with the Ergenekon investigation; the words spoken during telephone conversations by Mukaddes Eruygur -- the wife of former Gendarmerie Commander Gen. Şener Eruygur, the ideological father of the Ayışığı and Sarıkız coup plans who is currently in custody as part of the investigation -- had demonstrated clearly the lack of judiciary independence and impartiality. In the conversations, Eruygur had requested that the trial be moved to a court closer to the couple’s ideals.

The accusations against Ferda Paksüt -- the wife of Constitutional Court Vice President Osman Paksüt -- in the Ergenekon case indictment also indicate that judicial independence and impartiality are nothing more than words in Turkey. It was revealed that Ferda Paksüt had met with Ergenekon suspects regarding a closure case opened against the AK Party in 2008 and had been interrogated by the İstanbul State Prosecutor’s Office over this.