The judiciary system made the property of the qadi

Deniz Baykal has declared that he could support any constitutional amendment so long as the judiciary is not touched. Yet everyone now knows that a constitutional amendment that does not touch the judicial system will have no value or effect whatsoever.

The judiciary in Turkey rests, unfortunately, on a system that makes the court the private property of its kadi. With every step taken in the democratization process, it becomes clear how the judiciary has been established on arbitrariness. The oddities in the judicial system that were not very visible until now are being revealed in the course of the process in a glaring manner. At the end of a land clearing, it stands out as a distorted structure that cannot be touched but does not suit the place where it stands at all.

What kind of oddity the structure of the Constitutional Court carries had been seen before on many occasions, but with the 367 crisis, and with the stance it displayed on the application of the CHP members who objected to the amendment of articles 10 and 42 of the Constitution, it was seen what a great source of risk it is for democracy. It was able to examine on the merits, with an authority it produced for itself, an authority the laws never grant it, a constitutional amendment that it was competent to review only in terms of form, and to annul the amendment.

The Council of State did the same self-conferral of authority in connection with the coefficient regulation.

As for the HSYK, its structure, which was not at all brilliant to begin with and had already been noted on the occasion of its earlier dismissal decisions concerning Sacid Kayasu and Ferhat Sarıkaya, the prosecutor in the Şemdinli case, has been thoroughly exposed especially by the latest decree on judges and prosecutors. Owing to the insistent stance shown on replacing the prosecutors handling deep-state cases such as Ergenekon and KCK, the council's work was disrupted, and in the end the Ergenekon prosecutors were able to stay in their posts thanks to the minister's resolute attitude. However, even though the HSYK's tendency to display a similar attitude on these matters continuously had come to light, it had also become clear that there was no legal measure at all that could be taken against it.

The judges and prosecutors, who are entirely free and independent vis-à-vis politics, are not at all free and independent in their consciences vis-à-vis the HSYK. It was not politics but this council that could directly pressure and interfere with members of the judiciary, and there was no mechanism that could protect judges and prosecutors against this council's arbitrary interventions; this has come out plainly and clearly. This situation also presents a picture that explains why, for years, not a barleycorn's length of progress has been made in so many critical unsolved cases.

By tomorrow, three years will have passed since the anniversary of the murder of Hrant Dink; all the oddities experienced in the cases in which he was tried before his death were possible thanks to these dark spots in the judicial system. Had politics had a means of intervention, at least it would not have held back from taking over in time this case that disgraced Turkey in front of everyone; perhaps that would not have been bad in this particular case, but of course it could never have been the picture to be longed for. The picture to be longed for is that judges be independent not only of politics but especially of the HSYK, which keeps their own personnel records and can take decisions about them that cannot be reviewed in any way.

It would still be fine if the oddity in the HSYK's structure stopped there. Yet the Council's structure and the way its members are selected work like a closed community structure of a kind found in no developed country in the world. In the end, the HSYK's members are chosen from among the members of the Council of State and the Court of Cassation, but all the members of both these institutions are in turn chosen by this council consisting of only 7 people. Thus a very strange regime of passing the ball in a narrow field emerges. As retired Chief Public Prosecutor of the Republic Reşat Petek said on the program Tersi ve Yüzü on Mehtap TV, the judiciary works like a three-way volleyball among the Council of State, the Court of Cassation and the HSYK. The HSYK's decisions on the appointment and promotion of prosecutors and judges are final and closed to judicial review. Moreover, in these decisions it has no obligation to give account or state reasons. This much authority, concentrated in only five people apart from the justice minister and his undersecretary, carries the entire weight of the judicial system in Turkey. Isn't such a heavy burden really too much for five people?

The matter is truly a problem with technical dimensions, more important than the fact that the judiciary today works like the CHP's backyard. It is the problem of whether the judiciary in its present state can carry the great change and development visible on Turkey's horizon. An institution that carries this much authority which cannot be audited or questioned in any way produces only arbitrariness, and arbitrariness has been the most important problem of Turkish law since the Ottomans.

The horizon in view is simply not a matter of dealing with this or that man, of purging this or that man. Whoever holds this much authority in their hands becomes corrupted; no system can withstand such a concentration of power, especially in bureaucratic mechanisms that are not formed by election.