Can the fate of the judiciary be left to the judiciary?

During the approximately three-hour-long meeting, our foreign colleagues had the opportunity to direct any questions on their mind about the judiciary, which is at the center of recent debates in Turkey, to the highest official -- in other words, to Minister Ergin. According to Ergin, during the meeting, the details of which you can find in the headline story of our daily today, our foreign colleagues mainly focused on claims that the government had intentions of seizing or taking control of the judiciary by introducing judicial reform within the scope of a small constitutional package, which Parliament will handle within the next 10 days.

Providing examples from many European countries with institutions similar to the Supreme Board of Judges and Prosecutors (HSYK), which dominates the entire judicial system in Turkey, Minister Ergin noted that no other country has a system similar to that of Turkey, where members are chosen by the high judiciary in a closed election.

Noting that there is a wrong impression, namely, that Turkey’s legislative and executive branches are against the judiciary, Ergin said the reason it seemed this way is because the judiciary shows resistance to reform. As you know, 23 of 36 chapters Turkey is expected to negotiate with the EU are related to reforming the justice system. Minister Ergin explained that judicial reform was part of efforts to open some of these chapters and recalled that preparing a strategy on implementing judicial reform had begun in 2008 and that these efforts were seen as extremely “inclusive and satisfying” in the 2009 EU Progress Report. Noting that a “document of consensus” was created during a meeting held in Kızılcahaman with the participation of judges, prosecutors, representatives from bar associations and academics, Ergin said they had identified 10 basic goals and 85 principles.

He underlined that despite all of these efforts the debate has been limited to just the HSYK and said: “The objective of this document was to make the judiciary independent, to improve its impartiality, efficiency and professionalism, to facilitate access and to increase the overall sense of confidence. There was consensus over all of these issues. However, the debate over how the HSYK will be structured is continuing. As the sole institution shaping Turkey’s judiciary, the HSYK is harshly criticized in EU progress reports and Venice Commission reports, which request that it become more representative. It is said that, in its current form, it does not represent the judiciary.”

In a rebuke of the EU on this issue, Ergin said they do not understand why the EU has not approved and delivered screening reports to Turkey even though the part of the screening process concerning the Ministry of Justice was completed in 2005. He said this was as absurd as a teacher asking a student why he did not do his homework when no homework had been assigned. Underlining that the judiciary had to resist pressure from not only the legislative and executive branches but also from within the judiciary in order to be truly independent, the minister said the current system is not able to do this. To solve this problem, Ergin said they envision an HSYK comprising 21 members, with most being justices on the bench, and added that after reform, the legislative and executive branches will only appoint six or seven of the members, with the 14 remaining seats being filled by elected judges, prosecutors and bar presidents.

Noting that the HSYK and the high judiciary -- which favor the current closed and non-representative system, which allows the Council of State and Supreme Court of Appeals to select HSYK members and the HSYK to choose members of high courts such as the Council of State and Supreme Court of Appeals -- are rejecting reform by saying “Leave the judiciary to the judiciary,” Ergin said: “They are saying the legislative and executive branches should not interfere in their business. When you ask if there’s any other example of this in the world, the HSYK immediately says Turkey has ‘special’ conditions. It says, ‘Instead of us taking others as an example, let us set an example for others’.”

The justice minister also notes that those who insist on leaving the judiciary to the judiciary do not feel the same way when it comes to the executive and legislative branches. “From time to time the high judiciary in Turkey has acted like a lawmaker by overstepping its limits spelled out in the Constitution and interfered in the executive branch. So, in light of what has occurred, is the executive branch trying to seize the judiciary? No. What we are trying to do is redesign the structure of the judiciary so that it is compliant with EU criteria. There is no intention of seizing anything. In fact, under the new model, the Ministry of Justice will be the one who loses the most authority. But we are ready to transfer our powers to a new HSYK, one that will be based on a broader foundation.”