The judiciary has no law to obey other than what the legislature makes

The deliberations on the new draft constitution continue in the Constitutional Commission. The 17 articles taken up were voted on one by one and adopted. When the others are adopted as expected, it will be brought to the General Assembly of the Parliament as soon as possible. The CHP and MHP are carrying out their opposition as expected. But as Fehmi Koru has written several times, none of the objections made to the package in general terms can be voiced much in the details, because in particular the matters concerning judicial reform really do not contain any provision that would justify the opposition's criticisms of the type "putting the judiciary under the influence of politics." On the contrary, it is understood that in the details restrictions even greater than the present ones are imposed especially on the political power. In addition, as a result of the talks held with civil society organizations on the initially announced text, some corrections and additions were made, and the draft, initially proposed with 26 articles, was raised to 30 articles. The government thinks it has shown in this way that it has taken the criticisms into account.

Following the signature crisis stirred up over the first draft of the constitutional amendment submitted to the parliament, last week the government withdrew the first draft and resubmitted it with new (this time wet) signatures and with a few changes. This move was also interpreted as an acceptance of the rightness of the CHP members' criticism over the signatures. Yet what has emerged is a quite different ironic situation. In fact there was no problem at all with the signature, but all the same it was good that this move was made, so that there would be neither expectation nor further gossip.

Of course, this was a move reminiscent of Architect Sinan's famous straightening of the minaret of the Selimiye Mosque. Would the children gathered in front of the Selimiye Mosque, the work by Architect Sinan that gave the world an architectural marvel, not say "The mosque is beautiful but its minaret is crooked"? Hearing this, Sinan, without looking at whether the children's perception was right or wrong in their own terms, says "Well, there is a way to straighten it" and hands them a huge rope. The children, hanging on the rope attached to the tip of the minaret, pulled until they were drenched in blood and sweat. As soon as Sinan, judging that they were thoroughly tired, said "Now look and see whether it has straightened," the children, in a mixture of joy at being rid of the work, said "There, now it's right." Thus the minaret, which was in fact not crooked at all, was saved from becoming the victim of the gossip of the beardless children who had started the rumor, again thanks to the sweat the children had shed.

Now we have in hand a draft constitutional amendment that also contains the childish joy of the CHP members, as if straightening the Selimiye.

Together with this joy, the criticisms of the package, with the accusation of encircling the judiciary in general terms, are continuing at full speed. Yet their criticisms are still to be considered normal. What is noteworthy, however, is that the same criticisms are being made by the representatives of the high judiciary, never going into details but with the same mouth and arguments as the main opposition.

We have grown accustomed and inured to this fierce opposition that members of the judiciary display against constitutional amendment initiatives in the name of "judicial independence," but how normal is it? Moreover, the Prime Minister or representatives of the legislature too do not refrain at every opportunity from saying that they take the views of members of the judiciary on this matter. Yet before the independence of the judiciary, the independence of the legislature is fundamental, and this is far more important than the independence of the judiciary. What need is there for a negotiation with judges in order to protect the independence of the judiciary?

The Constitution is made by the legislative organ, and the judiciary is obliged to interpret the text of the law that has been made, moreover being "necessarily" faithful also to the intention of the organ that made the law. The independence of the judiciary does not mean an unlimited freedom of interpretation to interpret as it likes, to make its own additions or corrections, once the laws have come out of the legislative organ. On the contrary, the texts that the judiciary has no task other than to apply are entirely the work of the legislative organ. That is, it is obliged to remain bound to the end to the legal texts coming from the legislative organ. Even if they concern matters within its own field of duty, the judiciary has no authority such as disliking the laws that the legislative organ will duly enact.

I am truly ashamed to be making these simple reminders, but as the judiciary enters into political debates, a confusion about the role of the judiciary seems to be gradually becoming accepted. That is, it will almost be supposed that, as though it were a natural right and duty of the judiciary, it has an authority such as determining in advance the laws that the legislative organ will enact.

So what is it, then? The judiciary is not a parallel legislative organ. The independence of the judiciary is bound to interpreting the laws put before it by the legislature.

Within the judiciary's sphere of authority, there is no disliking the laws made by the legislative organ, no giving directives to it, no "falsifying the book" by interpreting the laws made by the legislative organ as it likes against the intention of the lawmaker. It is shameful for it to enter into a strange race of hierarchy with the legislature. Of course it is independent, but its independence does not open up for it a domain of lordship above the laws.