‘Judicial reform strategy’

The opening speech delivered by Supreme Court of Appeals President Hasan Gerçeker on Monday was one of the most important of these speeches. The Supreme Court of Appeals president is the person in charge of the judiciary. In his speech, he explained how judicial reform efforts, which are on the agenda these days, are viewed by the judiciary and listed their proposals. As always, this speech also included the judiciary's concerns about the fundamental principles of the regime. These two major headings represent the debates that the judicial front will maintain throughout the year.

What the judiciary understands from the concept of ‘unitary state’

In their previous speeches, the representatives of the judiciary would insistently stress the principle of secularism. Also, they would challenge the “enemies of secularism” with an authoritarian definition and concept of secularism, and they would express their attachment to the secular republic. The Supreme Court of Appeals president's speech did not emphasize secularism like we are used to seeing. Possibly, other speeches to follow will not include it as well.

Then, have the regime debates ended? No. The regime debates are being waged this time over the principle of the “unitary state.” In a nutshell, we can say: secularism out and unitary state in.

Some may argue that the definitions of the republic and the unitary state mentioned in the opening speech by the Supreme Court of Appeals president are problematic. This is not very important. Gerçeker is not giving an academic lecture but is expressing the stance adopted by the top judiciary. His efforts to reconcile the values of the republic and the unitary state with liberal democracy are refreshing. What we need is to introduce liberal aspects to the never-ending regime debates. These aspects or his intention to do so are clearly visible in Gerçeker's speech.

If we examine his speech without paying much attention to the concepts he preferred to use, we can see that what he really advocates is not the "unitary state," but the "nation-state." If we replace "nation-state" with "unitary state" then the debate is no longer a regime debate. It becomes an issue on which society as a whole will decide together.

Those who imagine "nation" as an ethnic entity will have difficulty in understanding the nation built upon such notions as law, citizenship and common awareness. In order to overcome this difficulty, we need to concentrate on the "nation-state," which will be adopted by the people as the main actor of liberal democracy instead of focusing on the "unitary state."

Legal review of the judicial power

The Supreme Court of Appeals president is generally positive about the work on judicial reform being conducted by the Justice Ministry and voices his proposals for it. In his speech Gerçeker set the main theme of the debates that continued throughout the week as the "partisan judiciary." The phrase "partisan judiciary" has two meanings. First, it means political powers exerting pressure on the judiciary and using it for its interests. Second, it implies that the judiciary sees itself as an alternative power competing with the democratic power and having organic relations with the opposition. When Gerçeker used the phrase "partisan judiciary" the opposition said he meant the first sense, while the government said that the second sense was his intention. In the final analysis, the politicized judicial system is what he means.

The draft reform is capable of eliminating the "partisan judiciary." The draft reform is largely based on negotiations conducted with the EU. It has been prepared by taking into consideration the proposals for reinforcing judicial independence and ensuring the judiciary's impartiality and effective functioning, noted in the progress reports. The draft Judicial Reform Strategy Action Plan, disclosed by the Cabinet, and the Judicial Reform Strategy, prepared by the Justice Ministry, give us a clear idea about the scope and targets of the reform.

The judicial reform will be sent to the legislature as the government's bill. With constitutional and legal amendments, the judiciary will go through a structural change. The judiciary will be cast into a new mold according to this change. The government does not bypass the judiciary with respect to the reform strategy. Gerçeker's speech shows that the reform process is making progress with participation from the judiciary. The government is using the tools of negotiating democracy with respect to the judicial reform. Indeed, in his speech, Gerçeker notes as a positive development that the ministry has consulted all the top judicial organizations and that an all-inclusive environment for negotiations will eventually be created.

A major problem with the Turkish judicial system is its inability to maintain its impartiality. Independence, which is a necessary complement to impartiality, can be said to exist in EU standards. Independence endows the judiciary with immunity against the legislative and the executive. In our country, this independence has given way to the judiciary creating itself a domain of power. Unlike what it is supposed to do, this provides protection to the impartiality of the judiciary. Our judiciary is independent, but not impartial.

The judicial scandals that erupted in connection with the Ergenekon trial show that independence does not bring impartiality. The recent controversies relating to the Supreme Board of Judges and Prosecutors (HSYK) prove that assurances to the judge that are supposed to bring about judicial impartiality may sometimes be provided not by independent judicial organs, but directly by the political power. There was a crisis within the HSYK. In this crisis, the judges were those who attempted to breach impartiality, and the government side was the one who preserved it. If the justice minister and the Justice Ministry undersecretary were not HYSK members, then the assurances provided to some judges would be lifted. In this framework, the restructuring of the HSYK as one of the most important ingredients of the judicial reform is important.

The main factor that raises suspicions about the impartiality of the judiciary and undermines its prestige and reliability is the tendency to regard the judiciary as a domain of power. The judiciary has emerged as a side to the competition for power within the state. All of the self-assumed ideological duties of the judiciary were there to provide justification for this power. In Turkey, there is a judicial power that fights against the democratically elected legislative and the executive. The position of the Constitutional Court and the HYSK does not provide the judiciary with impartiality but reinforces this power. It gains a de facto power, but this time, it loses its prestige and reliability. The Constitutional Court and the HSYK end up as tools for controlling the government and the judges, respectively.

Gerçeker's speech shows that the judiciary itself is displeased with this power. There have been many attempts to undertake judicial reform in the past, but interestingly, for the first time, a comprehensive harmony was able to be maintained. Empowering the Supreme Court of Appeals to act as the Supreme State Council (Yüce Divan), recasting the HYSK as a true assurance provider for judges and ensuring the impartial functioning of the Constitutional Court will advance steps for promoting the rule of law in Turkey. Only with these reforms can the judiciary's "potential for becoming partisan" be eliminated.

Justice Minister Sadullah Ergin recently participated in a TV program and responded to the Supreme Court of Appeals president. The justice minister stressed that their sole intention in implementing judicial reform is to put an end to these partisan judiciary accusations and to ensure judicial impartiality. He added that the draft reform will be examined by the EU Commission in October.