The HSYK and the state of the "civilian" judiciary

The fierce defense mounted against the legal regulation on the trial of soldiers in civilian courts has exposed a regime of privileges operating effectively beneath our legal system. On this occasion it has been better understood that the republic's ideal of a "classless, privilege-free, integrated society" is merely a huge, hollow ideology that only the masses are expected to believe.

Frankly, those who expect us to believe in the law do not themselves believe in it; as long as it does not produce privileges for them, they find it unacceptable.

For years it was suggested in Turkey that the greatest threat to the principle of separation of powers and the autonomy of constitutional institutions was political governments. Yet the natural legitimacy that the principle of separation of powers has in all democracies functioned like a wall behind which deeper dependencies were protected.

For example, an extremely sacred and legitimate value such as the autonomy of universities was made to serve no purpose other than consolidating the power of YÖK, which for years established and maintained the real great tutelage over universities and left no field of autonomy to universities and scholars.

Frankly, until recently no share of the autonomy and freedom that YÖK consumed by using it to the hilt was left for either scholars or universities. The single-voicedness prevailing in all universities and the sensational "unanimities" achieved with the participation of all rectors on extremely political matters showed only by what kind of tutelage system this autonomy had been taken captive.

Today it is understood more clearly that in that period universities, with their rectors, faculties and departments, had been badly subjected to a regime of unconditional obedience that had formed within the YÖK structure. The only thing that disturbed this regime, which drew its power from no democratic process, was democratic processes and demands. Conflict was inevitable. But for the YÖK administration to present the conflict as political pressure on universities was sheer hypocrisy. Because in this conflict YÖK was in fact representing not its own autonomous constitutional existence but deeper centers that had previously sold their spirit of autonomy.

In the matter of the judiciary the situation is no different. The visible resistance the judiciary has shown to Turkey's democratization process and the judicial cadres' exercise of an utterly arbitrary discretion over the interpretation of legal texts have become almost the routine of the country. The CHP does not even need to hide that it sees the judiciary as an area of opportunity in which it can maneuver as it wishes. The "understanding of the rule of law" runs at a level of primitiveness in which the philosophy and logic of an impartial judiciary are not observed, and on the contrary the judicial power is regarded as the jurist's most natural right and property.

The crisis in the HSYK's appointment decree, if the leaked information is correct, also shows what kind of recklessness arbitrary discretion over this power can produce, and frankly it is quite frightening. It appears that there was an attempt to change, all at the same time, the posts of the Ergenekon prosecutors and judges, as well as of the five specially authorized prosecutors who were both investigating the unsolved murders in the Southeast and launching operations against the PKK's urban structure, and even of all the judges who accepted these cases.

It also appears that they do not care at all what kind of image it gives that all of this is being done at the same time.

The pinpoint appointment demands lay bare the sham of the legal system in all its nakedness. In fact there is by now no reason at all for us to believe too much in the independence of the judiciary from the political government. But this situation also reveals that the judiciary, which is utterly independent of the political government, has far worse dependencies.

Unfortunately, no share of the independence that the HSYK uses so freely falls to the judges and prosecutors, who are the real actors of the law.

Frankly, in a situation in which the judicial power has been staffed and organized in this way, it is understood that the matter does not end with the regulations made on the "trial of military persons in civilian courts." If we take what the same HSYK, which heads the process we call civilian judiciary, did regarding the Şemdinli prosecutor as a reference for what it will do, one would have to be too optimistic to expect civilian courts to behave more independently than military courts.

In the end, it was the Court of Cassation of the civilian judiciary that issued a "decision of lack of jurisdiction" on the case in which the indictment prepared by the Şemdinli prosecutor resulted in a 39-year conviction, and "handed" the file over to the military court.

At a time when the high level of the civilian judiciary is this militarized, it is perhaps a little early to rejoice at this development that integrates the law and equalizes the citizen, but still one must not give up. The road Turkey has to cover in its democratization process is not short; it is not at all without hardship.