The new judicial year and the question of judicial independence

Yeni Şafak · Yasin Aktay - The new judicial year and the question of judicial independence

This year the opening of the judicial year was held with a ceremony, for the second time, in the conference hall of the Court of Cassation's own new building, after being held for 3 years in the Presidential Complex. The earlier opening ceremonies having been held for three years in the Presidential Complex had been the subject of serious criticism from the standpoint of judicial independence. Yet the sole reason for this was that the Court of Cassation's own conference hall had become inadequate owing to the increase in the number of its members. For this reason the opening programs, just as they had been held for 7 years in the ATO's conference hall before the Presidential Complex, can be hosted in the huge conference hall of the Presidential Complex, which is able to host many such events.

As is customary at the opening ceremony, before the President's speech there were speeches by the President of the Union of Turkish Bar Associations (TBB) and by the President of the Court of Cassation. Throughout the long speech of the TBB President an extremely negative picture of the present state of the judiciary was painted. He spoke of the absence of judicial independence, of politicization, of long periods of pretrial detention, of the lack of freedom of expression, and further of the implementation of ECtHR rulings and the penalties Türkiye is exposed to as a result. Citing the words of previous bar presidents, he said that trust in the judiciary had fallen to the lowest level in history and that this situation had become dangerous to the point of threatening the existence of the Republic of Türkiye. Again citing his predecessors, he restated the country's law faculty problem as "diploma mills." He criticized in harsh terms the political decision to withdraw from the Istanbul Convention. Of course, he also spoke of the problems of lawyers and set out his proposals on the legal regulations that need to be made.

He ended his speech, in which he scarcely uttered a single positive sentence about the functioning judiciary, with an invitation to return to Atatürk's principles and reforms and to his understanding of judicial impartiality and independence. Of course, that he takes as a reference for a conception of justice the period in which the independence tribunals were established, one of the rare models in the world in which all powers were gathered in a single hand, a period in which the practices of the independence tribunals were made the model of nearly all courts, is a subject that deserves separate attention.

Every kind of criticism can be made of the present state of the judiciary. Indeed, the President of the Court of Cassation, Mehmet Akarca, who took the floor after him, himself touched on the problems of the judicial institution he heads that persist despite all the reforms and improvements. He also stated that court decisions and the judiciary are open to every kind of criticism, provided it does not amount to insult and aggression against the judge as a person.

We are on a plane where all these criticisms can be made, and the Bar president was able to make all his criticisms in the very presence of the President and the state's leadership, whom he all but implied to be responsible for all these negative things. But that a period in which neither he nor anyone could ever have made these criticisms before the state's leadership is taken as a reference in terms of justice (it may perhaps be taken as a reference for many other things) shows what kind of justice and what kind of picture of the independence of law is yearned for.

The opening of the judicial year was first held in 1943, and whoever wishes can read the opening speeches of all the presidents of the Court of Cassation up to 1949, beginning with the first speech by the Court of Cassation President Halil İbrahim Özyörük. In none of them is there the slightest criticism, other than immoderate praise of all the judicial and legal practices and of the political regime of the single-party period. At that time neither the independence of law, nor the separation of powers, nor impartiality in the judiciary occurred to any Court of Cassation president or member of the judiciary. The task of the judiciary is to help the state and governments in establishing the revolutions and the regime.

Do you know when the subject of the independence of the judiciary first comes to mind? At the opening of the judicial year held in 1950, the year the Democrat Party came to power, the Court of Cassation President Mustafa Fevzi Bozer, in what we could almost call a paradigm change in Türkiye regarding the judiciary, speaks of the impartiality of the judiciary toward political power and even, when the occasion calls for it, of standing with the nations that "swell their chests with confidence and defy their rulers."

Yet the rulers before whom he was delivering the oration had only just been elected by the nation itself, and indeed before them stood a government that had come to office through real elections for the first time ever. This was the record that the periods of tutelage were thereby beginning, with judges having stayed silent against the imposition, by rulers who until then had not been elected, of the revolutions they wanted upon their own nations, in spite of the nation. From that day on, the judiciary in Türkiye saw itself not in the name of the nation but, in the name of that founding power, as the chief actor of tutelage against the people's elected rulers, and therefore against the people.

If a revolution was to be made in terms of justice, it was necessary of course to begin with this mentality first. The AK Party, taking on a role worthy of its name, broke this tutelary mentality as the result of a long and thorny struggle. Today we can speak of the judiciary too truly being the nation's judiciary. Of course, together with all its problems that must certainly be discussed, that continue, that are left over from the past or have emerged with the new system.

The TBB President's criticisms of politics for cancelling the Istanbul Convention, or of the Turkish judiciary for not complying with ECtHR rulings, can also be seen as tutelage's search for a footing through an international mentality.

It cannot be ignored that these criticisms are made while disregarding the secret and open support Europe gives to terrorist organizations working against Türkiye. How can we forget that the administrations of the Bar associations, which express such sensitivity about human rights violations, have only barely and recently accepted even their headscarved members?

Do you not notice at all the vengeful language in the discourse of those who nowadays open their mouths about the independence of the judiciary? Can one find this mindset, which nearly dreams of independence tribunals, whatever may have been lost in the name of the level of justice? Can the slightest hope regarding judicial independence come from this mindset?