The flagrant violation of the laws and regulations on the books governing the promotion and replacement of judges and prosecutors in Turkey by select members of the Supreme Board of Judges and Prosecutors (HSYK) shows once again the fundamental problem the country has been facing for some time: judicial activism, which focuses on preserving the parochial interests of a few and usurping the authority of the legislative and executive powers, disregarding the boundaries of the law and the constitution.
Law no. 2461, regulating the HSYK, clearly states that the draft proposal or circular listing the names of judges and prosecutors who are about to be promoted or reassigned to different benches is to be prepared solely by the Justice Ministry’s personnel department. Then, the seven-member HSYK either approves the list or makes changes based on a simple majority vote after deliberations.
My sources in the Turkish capital tell me the government submitted the draft list to the HSYK on May 15. After a three-week period of examination, the HSYK formally started deliberations on the list on July 6. When the proceedings were about to finish on July 13, after almost a week of long debates, some members, reportedly headed by Ali Suat Ertosun, brought an alternative draft list to the table out of the blue, surprising many, in the late evening hours on that day.
First of all, the HSYK has no authority to make up the circular list on its own. It may, however, make changes to the draft list already presented by the Justice Ministry. In this case some members apparently drafted a new alternative list in the back room, without even informing all members of the board.
Here comes the tricky part: The new list specifically targets the removal and relocation of two judges and all prosecutors involved with the ongoing Ergenekon case, which has been dubbed the trial of the century in Turkey. The trial seeks to clean out a clandestine network of people who are accused of working to topple the democratically elected government in Turkey by resorting to violence and pitting segments of society against each other to create chaos.
It does not stop there. There are talks in Ankara circles that the HSYK is also discussing whether to reassign a prosecutor who was carrying out an investigation into jailed Col. Cemal Temizöz, who has been charged with a string of civilian murders committed by gendarmes in the 1990s in southeastern Turkey. In an indictment presented to the court last week, the prosecutor demanded nine life sentences for Temizöz, who will be tried for unsolved murders in the region using evidence of human remains found in recently unearthed “death wells.”
While submitting the circular in flagrant disregard of the law, these HSYK members did not even bother to include their reasoning for seeking to replace the judges and prosecutors they propose to reassign. Article 138 of the Constitution ensures the independence of the judiciary in Turkey, saying, “Judges shall be independent in the discharge of their duties and no organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars or make recommendations or suggestions.”
As an administrative body, the HSYK is in no position to order the removal of judges from their benches. By doing so it may alter the course of proceedings in ongoing trials. Thankfully the government, which commands two votes through the representation of the justice minister and his undersecretary in the HSYK, noticed the attempt being made to impact the Ergenekon trial and other critical trials around the country.
Article 10 of law no. 2461 stipulates that the HSYK meeting can only pass decisions when all seven members are present at the meeting. If a member is absent, his or her replacement must attend the board meeting to comply with this requirement. Therefore, it is illegal for some members of the board to try to pass a circular using a simple majority on the board without first satisfying the quorum criteria as clearly stipulated under the law.
The stalemate on the board is on the front pages of Turkish dailies now, revealing the plot apparently designed behind closed doors and away from public scrutiny. The Turkish press reported on Friday that HSYK member Ertosun, who is leading the charge for the removal of judges and prosecutors on critical cases, met with Ergenekon suspect Engin Aydın. Newspapers published photos of him meeting with Aydın at the Ankara Kent Hotel after the government submitted the circular to the board, on June 15, raising the suspicion that the two may have discussed the circular.
The leak and public exposure are putting pressure on the HSYK to come clean and get its act together. Otherwise, it will hurt the impartiality of the board and seriously damage the image of an independent judiciary in this country.