The Rule of Law and the Judiciary in the Democratization Process

After the HSYK removed the prosecutors of an ongoing case from their posts in disregard of the powers granted to it by law, how painful a wound the judiciary problem is for society was once again felt in all its intensity.

When talking about the judiciary problem in Turkey, the relationship between the bureaucratic administration of the judiciary and the local courts was generally overlooked. Perhaps HSYK's latest act showed how striking the problem is and what a corrupting and annulling defect it is for the whole ideal of justice. Perhaps on this occasion the judiciary problem has come to society's agenda with all this strikingness. In many places one after another, in scientific and civil gatherings on restructuring the judiciary, the outlines of a new paradigm on the judiciary are beginning to take shape.

In the Rule of Law and the Judiciary in the Democratization Process Conference, held over the past two days at the Strategic Thinking Institute in Ankara, Turkey's most distinguished jurists and academics discussed at length the problems of judicial institutions in particular. Justice Minister Sadullah Ergin took part on the first day of the conference, and State Minister Cemil Çiçek and former justice minister Hikmet Sami Türk on the second.

One of the most important questions sought to be answered was the structuring of a judicial system that could truly observe and put into practice the principle of the rule of law. For in its current state the structure of the judiciary is far from ensuring the rule of law; on the contrary, it works in every respect in a way that establishes an order of the supremacy of the jurist. The powers of the high judiciary, exempt from oversight and questioning, keep them above the laws. That they are authorities against whose decisions no route of correction or objection is open, and yet display a pattern of behavior that never shies away from abusing this, takes the judiciary question far beyond being merely a matter of legal legislation.

Let alone overstepping their authority, high judges enter without permission areas that the laws very clearly forbid them to enter. Although the Constitution says the HSYK is only an administrative body of prosecutors and judges and cannot work as a judicial body, this body, without conducting a trial, can remove from their posts prosecutors it appointed itself, because it dislikes their approach to the case in their hands, since their decisions have the quality of being "final," and they do not shy away from using this as a weapon.

Yet it is not a fate that politics has its hands tied against this power, established with an absolutist approach in every respect, when it exceeds legal texts and enters politics. There is a way that must not be overlooked: considering its decisions keen lem yekûn (null and void) and not publishing them in the Official Gazette.

The only concern all judicial institutions voice today about judicial reform is the possibility or danger that political interference will increase. Yet the judicial reform currently on the agenda of the Ministry of Justice itself contains ample measures that will bind the hands of governments further and reduce opportunities for interference. Moreover, the members of the judiciary who complain of this do not hold back from practicing politics at its finest. By constantly expanding their sphere of authority with a hinterland logic, they leave the politician almost no room to do politics with the decisions they take. It is impossible not to agree with these words expressed by Cemil Çiçek in his speech at the meeting: "Be assured that what falls to us is only to do what is left over from the politics they do. They have almost closed off the whole of politics themselves, and what falls to us is provisioning and sustenance."

This situation in fact explains how all the political problems we have been experiencing lately stem from the functioning of the judiciary. In Turkey the judiciary makes politics, yet politics pays the bill. While all the resources of the Turkish nation are being wasted under the management of a judiciary that sits in an utterly irresponsible office, the judiciary that decides in the name of that nation pays that nation no account whatsoever and feels no responsibility. Is this not a very strange situation?

Another question sought to be answered at the meeting was whether this parliament could make a constitution or a constitutional amendment. Part of the answer referred to a technical problem, namely the potential annulment by the AYM, and I personally find this sensitivity very wrong. The concerns voiced that the AYM will somehow annul a possible amendment fail to take into account that, after a while, they legitimize the possibility of the AYM entering an area in which it has in fact no authority and which is explicitly forbidden to it by law, and that they already facilitate its possible abuse.

Yet there is no way other than constantly reminding the AYM, loudly, by everyone, that it cannot enter this forbidden area, and that if it does so it will have completely ended its legitimacy. For there is no point in sitting and weeping that the AYM is also violating the Constitution and waiting for it to come to its senses.