The judiciary problem, the most important problem

The newspaper Taraf has announced the Ministry of Justice's reform package envisaging changes to the structure of the HSYK under the headline "Plan to rescue the judiciary from the hands of the judiciary." Unfortunately, it has been an expression that summarizes very well the oddity concerning the judiciary in Turkey.

We say "unfortunately" because an intervention seeking to rescue the judiciary from the hands of the judiciary should at first glance have evoked a political tutelage, yet the state of our judiciary is at present in a far graver condition than political interference with the judiciary.

The appointment decree crisis we experienced only recently revealed all the dimensions of the tutelage that the HSYK is able to establish single-handedly over the whole judiciary. On this occasion, in all its frightening nature, it was seen what a terrifying sphere of influence and authority the HSYK members have in the judiciary, members who set about making the judges of many cases that continue before the whole public's eyes, and whose every stage can be followed in full transparency, withdraw from the cases they were hearing, and appointing in their places judges of their own choosing. This was also an event that explains why the sense of justice in Turkey has remained for years such an unrequited feeling, and why the course of many critical cases has been dragged into incomprehensible channels.

Frankly, seeing the highest offices of justice draw in and consume justice like a black hole made us tragically realize what an insecure world we live in.

After the picture that has emerged, no one can any longer claim that the judiciary is under political pressure. It has been clearly seen that the HSYK, whose decisions are final and can in no way be audited, can appoint whichever judge it wishes to whichever court it wishes, and can use this to extract whatever result it wishes from whichever court it wishes. The removal of prosecutor Ferhat Sarıkaya from his post because of the indictment he wrote in the Şemdinli case is unfortunately not an exceptional example. Judges and prosecutors in the local courts, who, in my view, can produce very sound decisions when left alone, feel the very heavy pressure not of politicians but of the HSYK itself. It is no secret in courthouse circles that the judicial mechanism does not work freely at all because of these pressures.

The judiciary, which according to the principle of the separation of powers should be independent of the legislature and the executive, has produced within itself a far more dangerous dependence. The judiciary has become the captive of the judges themselves, and the way to end this captivity does not pass through the present judiciary. Unfortunately, because judicial power has been almost personally embezzled by the judges, giving up this property does not seem easy for them. A situation of embezzlement in which looking at case files not according to their content but according to the identity of the plaintiffs or defendants is seen as a right... Like an unlimited right of use over a sphere of authority allotted to oneself…

Yet the rule of law or the independence of the judiciary should not be able to produce such a property for the jurist. Law is above the judges too, and the most important way to ensure this is for judges also to be auditable at every level and for their decisions to be open to question.

In truth, jurists too of course are not blameless for the condition of the law's being embezzled by jurists, but the openness of the way to this is an inevitable result of the wrong structuring of the judicial bureaucracy itself. While the way members are selected spontaneously produces a closed-circuit caste system, the finality of their decisions encourages them to use this power recklessly. Especially when there is also a chronic problem such as the camps formed along certain identity and group lines entrenched in Turkey, ensuring the impartiality, rather than the supremacy, of law becomes an urgent need.

Impartiality, rather than the supremacy of law, is a value that has recently been emphasized much more in contemporary legal literature. The draft the Ministry of Justice is working on is in any case not in search of "a special system for Turkey." It merely proposes the ways and solutions that common reason found long ago in EU countries as well. In place of a judicial bureaucracy that, even when it embezzles the law it is charged with applying and uses it arbitrarily, does not have to account to anyone, an effort is being made to establish a judiciary that gives every decision with transparency and a traceable logic and reasoning. For this, the basis is to increase the number of members of the higher judiciary sufficiently and to form a more pluralistic structure in their election.

For re-establishing hope in a judiciary that has grown ever more distant from producing justice, this reform is a more important matter for Turkey than the Kurdish issue or the coup issue. Because the solution of all issues can be completed first of all only with the existence of a strong, just and impartial judiciary.

Whichever issue you tackle before that, unless it is supported by a good judiciary, it continues to reproduce itself or its like continually.