Transparency in budget, independence in judiciary

The recent Gezi Park protests and ensuing anti-government demonstrations in Turkey, the increasing signs of trouble in the settlement process with the terrorist Kurdistan Workers’ Party (PKK) and the growing uneasiness among millions of Alevis across the nation as well as the unexpected military coup in Egypt, Turkey’s major ally in the Middle East, seem to have caught the ruling Justice and Development Party (AK Party) off guard and unprepared. More unwelcome developments are likely in the pipeline for the government as the unrelenting world economic woes and deepening regional political instabilities may add additional burdens to the capacity and capability of the government to handle problems.

All these developments have prompted the ruling AK Party to hastily arrange a comprehensive democratization package to ride out the storm that has dropped a rain of new challenges confronting the Turkish government. The details of this belated move are not yet known and will soon be unveiled following Prime Minister Recep Tayyip Erdoğan’s final touches to shape the scope and the extent of the package. The legislative action on the package will start when Parliament resumes its work after summer recess. Unfortunately, however, this may be too late and too little on the eve of a consecutive election period next year when the country will experience a lockdown on the agenda.

The nation lost valuable time with this government’s on-and-off approach in adopting urgently needed reforms, reinforcing allegations that it lacks a strong commitment to furthering the democratization drive in Turkey. While Erdoğan and his people were enjoying the comfort of the AK Party’s popularity and the absence of a credible alternative, many pending issues could have been easily addressed. Instead, since the 2011 national elections, the government has displayed a pattern of behavior that it acts only when its hands are forced into implementing further reforms. The problem with that is that by the time the government feels compelled to act on a democratization move, it might already be too late. The impact of changes adopted under “force majeure” conditions may also be severely limited because the government may not be perceived as sincere in adopting these new changes.

In the meantime, the AK Party does not seem to be giving up on cutting corners on democracy, heightening the impression that it will do anything to roll back the democratic gains that the country already recorded in the last decade when it suits its own parochial interest. The last-minute government-backed legislative initiatives that have dealt a series of blows to transparency and accountability rules in governance are clear evidence in this regard. Here are a few recent examples the nation witnessed just before Parliament went into recess: One bill slashed the powers of a senior auditing agency to review and examine government expenditures in corporations or institutions where the state has less than a 50 percent share. Another change in the same bill effectively stripped civilian prosecutors of jurisdictional powers over crimes committed by Turkish Armed Forces (TSK) military officers serving on domestic duty under orders from the governor’s office or the Cabinet. This is a setback in efforts to assert civilian supremacy over the military. Another bill adopted last month assaulted the independence and impartiality of senior judges and prosecutors in the country, risking the politicization of the judiciary.

First, the AK Party — buried in the omnibus bill that lumped together many unrelated changes to various laws together — removed the powers of the Court of Accounts in auditing expenditures of corporations, foundations, agencies or institutions where the share of the state is below 50 percent. Article 73 of the omnibus law amended Court of Accounts Law no. 6085, which was adopted only three years ago and was hailed as a major reform in harmonizing auditing rules with the EU and universal standards. With the majority of seats controlled by the governing party, all motions by the opposition in an attempt to reinstate the December 2010 changes to the draft were easily defeated.

What this means is that major multi-billion dollar corporations like Turkish Airlines (THY) and Turkish Telekom will now be exempt from the scrutiny of the Court of Accounts because the state’s share in these business is less than 50 percent. The government will also take advantage of this ceiling limit when establishing new state enterprises or institutions where the stakes will be deliberately put at less than 50 percent. It is a fancy loophole that the governing party may use and abuse to its liking. In the past, the court had the right to review expenditures of these partially state controlled enterprises from the shareholder perspective. The AK Party, which promised more transparency in governance in the election campaign of 2011, had no trouble in trumpeting the rights of taxpayers to know whether state expenditures in these enterprises were justified.

This was not the first attempt by the AK Party to the neuter auditing powers of the Court of Accounts. As they did last week, the AK Party brought forward a last-minute change last year — again just before the Parliament recess in the summer — and cloaked the proposal in another omnibus law. The changes were so radical that they limited the court’s rights to audit a public institution both in terms of its spending and in terms of performance. As a result, for the first time in the republic’s history, the court could not send the auditing reports of state institutions to Parliament in the fall when the 2013 budget deliberations were held in the Planning and Budget Commission. The Constitutional Court ruled against curbing the court’s powers at the end of last year, reintroducing strong rules for the transparency and accountability of expenditures made by state institutions. It seems obvious by now that the government did not give up on the idea of keeping at least some expenditures out of public view and slashed the powers of the court once again.

Last month, a government-sponsored bill was adopted in Parliament ostensibly to improve efficiency in the judiciary by amending laws concerning judicial services. The bill, also known as Law no. 6494, made it obligatory for judges and prosecutors to serve at least 20 years in their professions to become members of the high judiciary as opposed to 15 years. The practical meaning of this change is that the government closed the door of the higher judiciary for reform-conscious young bloods while giving old guns more power to stick to their position in higher courts. In other words, the older generation of judges who have more inclinations to protect the state over individual rights and freedoms will have less competition now to occupy senior positions in the judiciary. This will potentially roll back recent attempts to realign decisions of Turkish courts with the case law of the European Court of Human Rights (ECtHR). The law will benefit some 3,000 judges who entered the profession before 1993 when neo-nationalist culture was dominant in the judiciary. The young generation had become eligible to compete for senior positions after Venice Commission-backed changes were approved in the 2010 public referendum.

Focusing more on seniority and the number of years served in the profession is old school habit. Many European countries have abandoned this approach in recent years in favor of merit-based selection rather than mere seniority for higher judiciary posts. With the 2010 constitutional changes that brought pluralism and merit-based competition to the judiciary, many talented judges and prosecutors were able to compete for senior positions based on their track record of rulings in the profession. Younger and dynamic members helped contribute to speeding up judicial processes in the notoriously cumbersome Turkish justice system. The government defeated the purpose of these amendments with a simple change in the law for no reason whatsoever. Many jurists believe the law will be annulled by the Constitutional Court if the opposition contests the changes.

These examples expose the insincerity of the AK Party in Turkey’s democratization. It rather wants to consolidate all the powers in the executive branch and remove checks and balances in the system, including auditing and examining the state expenditures. Instead of moving towards enhanced transparency, accountability, efficient management of taxpayer money and public auditing, which are essential for public confidence in government, the AK Party government insists on moving in the opposite direction by throwing a cloud of secrecy on government expenditures. It also signals that the government wants a politicized judiciary compliant with the wishes of the executive branch.

As the demands of the Turkish people for more transparency, accountability and separation of powers including independence and impartiality of the judiciary grow, the AK Party government is trying to paddle upstream in the opposite direction of the democracy river. That is a futile endeavor, however.

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