The judiciary is not being seized, it is slipping away

What has happened at the HSYK in recent days reminds us once again, hot off the press and with all its urgency, why the constitutional amendment package to be voted on September 12 is important.

The five members of the Council who are outside the politicians can be seen engaging in appointment operations, through surprise decrees, that will enable them to extract whatever results they want from whatever cases they want. There is a wish to bring Erzincan Prosecutor İlhan Cihaner, who is still on trial and whose ideological and organic closeness to them has become clear, to the extremely critical vacant Chief Public Prosecutor's post in Ankara. At the same time, by creating substitute memberships that did not previously exist in the specially authorized courts and trying to appoint specially chosen names to them, it is pursuing the creation of areas of interference in cases such as Balyoz and Ergenekon. Indeed, the surprise release of defendants for whom arrest orders were issued in such cases is always accomplished through the handiwork of this type of member.

It is a Council, after all; in light of the rights and powers recognized in the constitution, no obstacle to such a disposition seems to exist, but the political meaning of this action is immediately apparent, and it is understood that there is a clear intent and target in this authority exercised within legal limits.

In the Cihaner case, for the HSYK to show sensitivity in preventing a possible victimization of a prosecutor on trial is, in a way, a very touching gesture, if only the same sensitivity were shown to other judges or prosecutors. Yet the sensitivity displayed over Cihaner by a Council that personally pulled the strings of judges and prosecutors such as Sacit Kayasu, Gültekin Avcı, Reşat Petek and Ferhat Sarıkaya is in no way aimed at contributing to the rule of law. On the contrary, it shows that this high council, charged with administering the judicial organization, has no function left other than forming its operational teams against the cases it wants.

Essentially, given the way they are elected and the definitions of their duties and powers, this result is not surprising at all. It is this five (+2)-member council that conducts the appointment and promotion of all judges and prosecutors serving in the judicial organization in Turkey. There is, to begin with, something odd about prosecutors and judges both being appointed by the same council. The appointment of both the prosecuting and the judging authority by the same hand is a situation that radically corrupts the fair trial process. It is a tempting power that makes it possible to order the desired outcome in any case. That incredible legal scandals in our recent past came and went without any effect on those who made these decisions suggests that the real leak of justice in our legal system should be sought here.

Today it is claimed that the new constitutional regulation, under which the structure of the HSYK will be reorganized, will bind the judiciary to the government; yet the truth of the matter is that the judiciary will become more autonomous both vis-à-vis the government and vis-à-vis all other organs, first and foremost the HSYK.

Note that no criticism of the package comes from the judges and prosecutors in the courts where the judicial processes related to judicial reform actually take place, because what these jurists feel pressure from is not politics but the HSYK, in whose members' selection they have no say. We have perhaps said many times that the rule of law does not mean the supremacy of jurists, but I think it is not even possible to say this in Turkey, because what is at stake is truly not the supremacy of the jurist but of the five members of the council. Apart from that, you can listen to countless stories among local court judges about how it is impossible for a case to be opened or advanced in spite of the HSYK.

It is obvious that in the regulation to be voted on September 12, the HSYK will come somewhat closer to the standards in contemporary countries. The number of HSYK members is being raised to 22, and while the current members continue, it is envisaged in particular that the local courts will elect 10 members from among themselves. Together with the members to be chosen by the Justice Academy and the President, a pluralistic composition will in fact have been formed in the structure of the HSYK, in which no party or government could easily dominate on its own. Moreover, by ensuring that separate councils handle the affairs of judges and prosecutors, the way to controlling the two from a single hand will have been closed.

It is not an incomprehensible situation that the "no" camp insistently keeps the content of the package out of debate and opens a front on the basis that the package as a whole would benefit the AK Parti. The haste is not because the package would benefit the AK Parti. The real haste is that they feel the judiciary in their grasp at present and that, at the end of this process, they will no longer be able to use areas of power not earned through elections or democratic means, as in the old days.

They are only as loud as they are. The judiciary they truly held as a property is slipping out of their hands.