Yazıcı: Constitutional reforms aim at ending juristocracy

“The Constitutional Court, by regularly canceling acts of the legislative branch, in violation of the Constitution, and the Council of State, by canceling acts of the executive branch, in violation of laws and the Constitution, control the whole system,” she told Today's Zaman for Monday Talk.

She pointed out that in Turkey that the concept of judicial independence has been perceived as the absolute supremacy of the judiciary, so the judiciary is not limited to acting within the law and can overrule the Constitution if necessary. The constitutional amendment package prepared by the ruling Justice and Development Party (AK Party) with an eye to reform has long been debated in Turkey.

The package is finally under discussion in Parliament’s Constitutional Commission. There has been both applause and criticism directed at the package. Professor Yazıcı answered our questions and elaborated on the issues handled in the package.

You have indicated on different occasions that you support the constitutional amendment package despite its shortcomings. Would you explain why?

Because it involves fundamentally encouraging changes in its core. The basic character of the 1982 Constitution is that it is based on a tutelage system. The Constitution has turned the institutions that are supposed to be guarantors of the rule of law in pluralist democracies into institutions of a tutelage system -- for example, the Supreme Board of Judges and Prosecutors [HSYK] and the Constitutional Court. In Western democracies, these two institutions are guarantors of both pluralist democracy and the rule of law, but here they are institutions of a tutelage system.

Would you elaborate on that idea? How do these two institutions become tools of a tutelage system?

The Supreme Board of Judges and Prosecutors is an administrative institution that is supposed to be concerned with personnel matters pertaining to judges and prosecutors. That means that it is an institution that should be concerned about the admission of judges and public prosecutors into the profession, their appointment, promotion and disciplinary matters.

This is contrary to the public perception of the HSYK.

This institution has been portrayed as if it were a judicial institution although it is an administrative organization. When we look at the literature, we see that such institutions in Western democracies -- those institutions are called judicial councils there -- have a mixed structure when it comes to their members. There are those who are from the profession of judging and there are those who are not from the profession of judging. And some members of those institutions in Western democracies are selected by their parliaments so those bodies will have democratic legitimacy and accountability. Additionally, Turkey is required to have a mixed structure in that body, as indicated in the reports of some international institutions of which Turkey is a member.

What do these institutions specifically recommend?

For example, the 2007 report of the Venice Commission, which is a body under the Council of Europe, indicates that if such a judicial council consists only of judges, that structure might lead to professional cooptation, and therefore the body should have a mixed structure. Again, the same report emphasizes that some members of such a council should be selected by Parliament to make the council democratically legitimate and accountable. Moreover, the Council of Europe’s Consultative Council of European Judges [CCJE] indicates similar views and guidelines on the selection of members of the judicial council. When it comes to the selection of judges for the body, it further indicates that members who are judges should be from every level of the judiciary. That means that members who are judges should come from lower level courts, higher level courts and courts of second instance, and those judges should be selected by their peers. According to the CCJE, judicial council members who are not judges should be selected by parliaments.

‘Turkey’s judicial council has a closed caste system’

How is Turkey’s HSYK structured?

The HSYK’s structure is regulated by Article 159 of the Constitution. It consists of five regular and five substitute members who are selected by the Council of State and the Supreme Court of Appeals, plus the minister of justice and the undersecretary to the minister. Since there are no members selected by Parliament, the HSYK lacks democratic legitimacy and accountability. And there are only representatives of the high courts. More importantly, the HSYK selects all members of the Supreme Court of Appeals and three-fourths of the Council of State. In return, the Supreme Court of Appeals and Council of State select members of the HSYK. Turkey’s HSYK has exactly the situation of cooptation that should be avoided according to the reports of European institutions. It is a closed caste system.

Most critics in Turkey say this is a system that is suitable for European democracies, but is not suitable for Turkey’s political culture. What would you say regarding that view?

It is not right. In Turkey’s political system, there was a system which was in harmony with Western democracies. In the 1961 Constitution, the name of the Supreme Board of Judges and Prosecutors was the Supreme Council of Judges, which had 18 regular and five substitute members, some of whom were selected by Parliament.

Why do you think the architects of the 1982 Constitution aimed at a different structure in the council?

Obviously, their goal was to control the whole system through the high judiciary. This structure also doesn’t provide security for members of the judiciary. A judicial council is a required body for judicial independence. But in Turkey, judicial independence has not been evaluated in a multidimensional way. Judicial independence actually has two dimensions: institutional and individual independence. When we talk about institutional independence, we mean that no political or influential institutions or persons can give orders to influence decisions of judicial institutions. This is not enough, because members of the judiciary should be also guaranteed individual independence, and at that point, we see the vital role of the judicial councils, which are supposed to provide security for judges and prosecutors. So this brings us to the essential issue that such councils should be autonomous of legislative and executive powers, plus all pressures within the judiciary. The reports that I mentioned clearly point out this factor. A closed caste system erodes the individual independence of the members of the judiciary. We see its evident demonstration in Turkey in the decisions of the Supreme Board of Judges and Prosecutors regarding prosecutors Sacit Kayasu and Ferhat Sarıkaya [who were disbarred after attempting to indict members of the military].

‘Judicial council should be proportional to the size of a country’s judiciary’

The government’s proposal increases the number of HSYK members to 21, but Parliament has not been given authority to elect any members of the board. Would you elaborate on the positive and negative aspects of the government’s proposal regarding changes to the HSYK?

It is a positive development that the number of HSYK members has been increased in the proposal. The CCJE indicates that the number of members of such a judicial council should be proportional to the size of a country’s judiciary. In Turkey, there are approximately 7,000 judges and 4,000 prosecutors, and there are about 3,000 vacant posts waiting to be filled. On the other hand, the proposal also allows representation of the lower courts at the HSYK in addition to the representation of the Council of State and Supreme Court of Appeals. This is also in line with European democracies. In addition, the members will be selected by their peers in both the lower and higher courts. However, there is an important deficiency, which is that Parliament does not have a right to elect members to the HSYK. Instead, the president has a right to select four members of the body. We should note that our Constitution gives the president strong powers that are not in line with the nature of a parliamentary system. And giving the president the power to directly select four members of the body will further strengthen his powers, but we should also note this: According to Article 159 of the current Constitution, both the Council of State and the Supreme Court of Appeals each select three HSYK members whose appointments are finalized by the president. The proposal, however, allows the Council of State and the Supreme Court of Appeals to directly select some members of the HSYK without the president’s approval.

Serap Yazıcı A professor of constitutional law at İstanbul Bilgi University, she was the only female member of the six-person team of academics who prepared a draft constitution in Turkey in 2007. She graduated from the law school at Ankara University in 1984 and received her doctorate from the same institution in 1995. She pursued her graduate studies at the University of Bristol as a British Council fellow. Her publications include several academic articles in Turkish and English. Her most recent books are “Turkey in the Democratization Process” and “Preparation for a New Constitution and Turkey: from elitism to societal consensus.”

The prominent roles of the justice minister and his undersecretary at the HSYK have been subject to criticism. Has this issue been addressed in the proposal?

They will not have power according to the proposal because the HSYK will have three chambers and the minister and his undersecretary shall not attend chamber meetings. The minister will be the president of the plenary sessions, and he will be able to vote only at the plenary sessions. The undersecretary will be an ex-officio member and his attendance at the meetings is not obligatory, and meetings can be held in his absence. In addition, the demands of critics regarding the formation of a secretariat have been addressed. So there will be a secretariat attached to the HSYK, which will also have an independent building and budget, plus the inspectors will work under the HSYK not under the Justice Ministry.

‘All HSYK decisions should be open to judicial review’

Going back to presidential powers, why do you think the president has been given such authority?

In Turkish political life, it has been assumed that if authority is wielded by Parliament, that carries the risk of having political motives, but if authority is wielded by the president, then it has a better chance of being independent of political motives. This is an assumption that does not match reality. Presidents also have political tendencies, and we cannot criticize them for having political ideas. And all presidents use their authority in line with their political tendencies. If Parliament were given the authority to select some members of the HSYK in the proposal, it would probably be expected that there would be a debate about the selection of those members and different political parties would be expected to compromise. As you know, the Turkish Parliament often cannot compromise on issues that call for a compromise, and the process comes to a deadlock. It is likely that the government’s proposal tried to avoid a probable deadlock at Parliament.

Another serious defect of the current HSYK system is that its decisions are not open to judicial review, and there is not even an effective channel to object to their rulings. Do you think the proposal would fully address this issue?

The proposal has an important offer in that regard. The HSYK is supposed to have three chambers so as to make objections to their rulings possible. More importantly, their decisions regarding removals from the profession will be open to judicial review. This is a good offer, but it would have been much better if all of its decisions were open to judicial review because this is required in a state governed by the rule of law.

Tomorrow: Second part of the interview “Any crack in this system would bear positive results for society”