Ergin: Judiciary will not be ‘under siege’ if package approved

“The only purpose of the opposition is to be engaged in a political polemic with the government. In order to avoid discussing what the reforms will bring about, the opposition focuses on polemics,” he told Today's Zaman regarding the rift between the government and the opposition in relation to the constitutional amendment package to be voted on in a referendum on Sept. 12 -- the 30th anniversary of the 1980 military coup. The opposition Republican People's Party (CHP) had taken the reform package to the Constitutional Court, saying that it would be harmful to society. The top court, which looked into the package's substance – despite its mandate to review only the form of the amendments -- did not object to it, although it required some minor changes.

Ergin stressed the top court's decision because the Constitutional Court in Turkey has a habit of canceling acts of the legislative branch, in violation of the Constitution.

Ergin said the current Constitution, which is a product of the Sept. 12 coup, is obstructing Turkey's goal of becoming a major power by 2023.

“The changes are to give individuals more power against the state. It is about strengthening our democracy,” he said, adding that in developed democracies governments serve the people, but in less developed democracies, citizens have been educated to serve their government. The most contentious articles of the new package regard changing the structure of the Constitutional Court and the Supreme Board of Judges and Prosecutors (HSYK).

The proposal offers 17 regular members instead of the 11 regular and four substitute members currently composing the Constitutional Court. Parliament will be able to select two members from among the three members nominated by the plenary of the Court of Accounts and one member among the three members nominated by the heads of bar associations. The remaining 14 members, four directly and 10 indirectly, will be selected by the president. Some observers have been critical of the fact that Parliament is not being given any direct authority to select members and that the president has been given too much power in selecting the members of the top court.

The term of office for members of the Constitutional Court will be limited to 12 years, consistent with European countries where the term of office for members of the top court is limited to between nine and 12 years. When it comes to the status of the current members, four substitute members will become regular members, so in total 15 current members will become regular members of the court. In addition, the 12-year limit on terms in office will not apply to current members, and they will remain on the bench until the age of 65. This is not compatible with one basic principle of public law, which is that if rules governing status are modified, current holders are bound to that modification. Observers note that, as a result, there will not be a structural change in the Constitutional Court for some time, and when finally implemented, changes will be gradual.

Turkish parliamentary Justice Commission Chairman Ahmet İyimaya told Today’s Zaman that the opposition’s claims that the judiciary will be “under siege” by the government were baseless.

“Even if the Constitutional Court does not give credit to the opposition’s claims, what else can we say?” he asked. “Our efforts are to raise standards in Turkey, to make it more compatible with developed democracies around- the world.”

When it comes to the HSYK’s structure, it currently 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. There are no members selected by Parliament.

In addition, the HSYK selects all members of the Supreme Court of Appeals and three-quarters of the Council of State. In return, the Supreme Court of Appeals and Council of State select members of the HSYK.

Justice Minister Ergin stressed that European institutions in reports indicated that this was a closed caste system and would require changes from Turkey – as an aspiring EU member. “That’s why the Council of Europe voiced its support for the package,” he said. “This package brings Turkey closer to the EU.”

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. The Council of Europe’s Consultative Council of European Judges (CCJE) argues 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.

The reform package 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. In addition, the members will be selected by their peers in both the lower and higher courts. The president has a right to select four members of the body. The proposal further allows the Council of State and the Supreme Court of Appeals to directly select some members of the HSYK without the president’s approval.

“These are the changes that the Constitutional Court, bar associations and civil society groups want. These changes are required if Turkey is going to reach international standards. If we call those changes ‘bad,’ then don’t we mean that ‘democracy is bad’?” İyimaya added.