The HSYK members also argued that the proposal contradicts a constitutional principle of the independence and impartiality of the judiciary and seeks to subordinate the board to the justice minister.
Earlier this week, the Justice and Development Party (AK Party) issued a proposal to restructure the HSYK which was slammed by critics on the grounds that the bill will give the government a tighter grip on the judiciary.
The HSYK is the body responsible for appointments in the judiciary. It has 27 members.
The legislation allows the undersecretary of the justice minister to be elected as chairman of the HSYK. The bill also mandates that the board will no longer have the authority to pass decrees and circulars. Instead, the justice minister will be entitled to pass decrees and circulars on behalf of the HSYK. Furthermore, the board will be stripped of its authority to decide to launch investigations of HSYK members. This authority is again passed to the justice minister.
The bill has drawn the ire of legal experts and jurists amid mounting concerns over the gradual disappearance of the separation of judicial and executive powers and the ruling AK Party's firm position seeking to make the judiciary subservient to the government.
On behalf of 15 members of the board, HSYK Deputy Chairman Ahmet Hamsici issued a 66-page statement on Friday in which he said the proposal seeks to destroy the independence of the board as well as the separation of powers in the country. According to the statement, if adopted, the bill will place the HSYK under the order of the justice minister. In addition, it will make members of the board dependent on the executive, thus it will “politicize” the board. The HSYK members also complained that the government is moving away from a number of changes it made to the structure of the HSYK following the Sept. 12, 2010 referendum. The changes sought to bring the Turkish judiciary in line with EU standards.
In a counter-statement, the HSYK said Hamsici's statement reflects his personal opinion and it is not an “institutional statement” on behalf of the board.
The statement came hours before the parliamentary Justice Commission began discussing the proposal. If the commission accepts the proposal, it will send it to Parliament's General Assembly for discussion and voting.
The HSYK members also complained that the AK Party proposal ignores the principle of the rule of law as well as the independence of courts and guarantee of judges. The statement was sent to the chairman and members of the parliamentary Justice Commission as well as media outlets.
According to the proposal, the HSYK will comprise two separate bodies: One will include an 11-member board of judges while the other will be made up of a seven-member board of prosecutors. If adopted, the bill will allow Parliament and the justice minister to have more say in the election of the members of both of the HSYK bodies.
According to the HSYK bill, the topics to be discussed by the HSYK during the board's meetings will be selected by the justice minister. The minister will also decide whether to allow the board to discuss matters that do not directly concern the HSYK during its meetings. In addition, judges and prosecutors will seek the permission of the justice minister if they intend to travel abroad for purposes such as training and attending courses.
Hamsici also underlined in his statement that most of the articles included in the bill violate international law, including the criteria set by the Venice Commission, the Council of Europe's advisory board that seeks to uphold the constitutional principles of democracy, human rights and the rule of law, as well as some previous opinions of the Consultative Council of European Judges (EEJC) and a decision of the Committee of Ministers of the Council of Europe on the independence of judges. According to Hamsici, while reports prepared by national and international law bodies have so far recommended that the authority of the justice minister and his undersecretary over the HSYK should be restricted, the AK Party bill seeks to extraordinarily increase the authority of the two men. “The bill will inarguably make the justice minister the single authority over the board," he said.
The HSYK deputy chairman also stated that the ruling party wants to pass the planned changes to the HSYK structure in Parliament though it is fully aware that they are against the Constitution.
Justice minister calls on opposition to cooperate for constitutional amendment to change HSYK
Justice Minister Bekir Bozdağ has called on the opposition parties to cooperate to introduce a constitutional amendment to restructure the Supreme Board of Judges and Prosecutors (HSYK).
His call was welcomed by the main opposition Republican People’s Party (CHP), which is open to a legal amendment concerning the top legal body.
"We are sincerely ready to offer a member to any commission that is being considered to be set up. If you are sincere, then submit your proposal, and let's negotiate it tomorrow," said CHP parliamentary group deputy chairman Engin Altay.
Bozdağ also lambasted an HSYK official over a press statement the institution released that was critical of the government proposal seeking to strengthen executive powers over the judiciary. "Every day we see a press statement [by state institutions]. Politics should be left to politicians," Bozdağ said regarding the HSYK statement about the government’s proposal.
He also said motions about four ministers who have been implicated in an ongoing graft investigation had reached the Ministry of Justice and that officials are working on the documents before referring them to Parliament.
Reactions to HSYK statement
Parliament Speaker Cemil Çiçek, speaking on Friday about the HSYK statement, said Parliament will examine whether the bill violates the Constitution once the bill hits the General Assembly. He also said he views the discussions over the content of the bill crucial. “Everybody should express their opinion openly. If necessary, Parliament will invite legal experts and related institutions to consult their opinion [about the bill],” he noted.
Foreign Minister Ahmet Davutoğlu said the HSYK bill hopes to “clarify some ambiguous points in the judiciary and executive.”
Independent deputy Ertuğrul Günay, who recently resigned from the AK Party, said the ruling party's plans to make a change in the structure of the HSYK violate the Constitution and the principles of a democratic state governed by the rule of law. He called the plans an “unfortunate attempt" that will cause huge damage to the rule of law in Turkey. He also said the HSYK bill will make the legitimacy of the AK Party government controversial.
The opposition, on the other hand, continued to raise its voice against the bill.
Republican People's Party (CHP) leader Kemal Kılıçdaroğlu said, “Every judicial expert knows that the AK Party's HSYK proposal violates the Constitution.”
In a press conference he called in Parliament, CHP Deputy Chairman Faik Öztrak claimed that the HSYK will become the “high board of Prime Minister Recep Tayyip Erdoğan and Justice Minister Bekir Bozdağ” if the bill is adopted. He also said the prime minister is violating such principles as the rule of law and the independence of the judiciary in order to impede an investigation into corruption and bribery claims.
In addition, CHP Deputy Chairman Akif Hamzaçebi said his party will take the HSYK bill to the Constitutional Court for annulment if it is approved in Parliament.
Planned changes to the HSYK have come amid a heated debate over the future of a corruption and bribery investigation, which has also involved some AK Party government members. The sons of two former ministers are among 24 high-profile names, including some bureaucrats and businesspeople, who were arrested in mid-December on corruption and bribery charges as part of the investigation.
Since the launch of the investigation, the government has faced fierce criticism of interfering in the area of judicial authority to impede the investigation.
Ankara Bar Association Chairwoman Sema Aksoy said the HSYK will no longer be an independent institution but will instead become a “department of the Justice Ministry” if Parliament adopts the bill on the restructuring of the HSYK.
Justice Academy criticise HSYK proposal
Head of Turkey's Justice Academy and member of the Supreme Court of Appeals Hüseyin Yıldırım criticized the HSYK proposal, arguing that the new law will end the duties of chairman, deputy chairmen, head of the education center, its deputy heads, judges, experts and all other administrative and auxiliary personnel in a way that could be unseen at "extraordinary times," referring to coup periods.
Yıldırım said this situation will not be in line with the rule of law and the principle of security. He stressed that the HSYK proposal will result in serious personal damages and loss of rights.
In the meantime on Friday, two board members of the Jurists Union Foundation (HBV) announced their resignations, claiming that the foundation adopted a “political stance” in the face of recent developments in the country.
Lawyers Hayrettin Açıkgöz and Hasan Basri Aksoy, when announcing their resignations, argued that the foundation recently moved away from its position to defend and protect democracy, human rights and the rule of law, and instead became an actor that works to legitimize the activities of the executive.
In a statement on Dec. 26, the HSYK harshly criticized an overnight change in regulations governing “judicial police” -- law enforcement officers operating under the supervision of the judiciary, saying it is in violation of the Turkish Constitution. The HSYK said a regulation that asks police chiefs to notify civil administrative chiefs who have no judicial position about investigations ordered by prosecutors is an open violation of principles of independence of the judiciary and checks and balances as well as openly violates the Turkish Constitution and relevant laws of the Code on Criminal Procedure (CMK).
The HBV slammed the HSYK the same day, arguing that the board sought to “interfere in the judiciary” with its statement.
Which constitutional articles does the HSYK bill violate?
The Justice and Development Party's (AK Party) planned changes to the structure of the Supreme Board of Judges and Prosecutors (HSYK) are an open violation of Article 138 of the Constitution, which deals with judicial independence.
Article 138 of the Constitution says: “Judges shall be independent in the discharge of their duties; … No organ, authority, office or individual may give orders or instructions to courts or judges regarding the exercise of judicial power, send them circulars, make recommendations or suggestions. … No questions shall be asked, debates held or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial.”
In addition, they violate Article 159 of the Constitution, which puts forward that the HSYK shall exercise its functions independent of the courts. However, the bill seeks to pass most authority of the board to the justice minister, who is a member of the government. This means that the judiciary will be put under the control of the executive.
The bill also violates Article 2 of the Constitution, which stipulates the principles of the rule of law and the separation of powers. Legal experts say the executive will tighten its grip over the judiciary, and thus the separation of the judicial and executive powers will be damaged if the bill is adopted in Parliament.
Article 2 is as follows: “The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk and based on the fundamental tenets set forth in the Preamble.”
With the bill, the government seeks to remove from duty the secretary-general and his aides, the head of the committee of inspectors and his aides, all inspectors, investigations judges and administrative staff working for the HSYK. New names will be appointed to their positions by the justice minister if the bill passes in Parliament. The bill also prevents the removed staff from seeking legal redress. This situation violates Article 36 of the Constitution, which says: “Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures. No court shall refuse to hear a case within its jurisdiction.”