The judiciary, last bastion of democracy, at risk

The election for Turkey’s key judicial council, the Supreme Board of Judges and Prosecutors (HSYK), on Oct. 12 will determine whether the last bastion of democracy will remain an independent and competent body in relation to other branches of the government — the legislative and executive, which have already been seized by political Islamists. So much is riding on the outcome of this election that Turks’ hopes may be dashed for a strong, independent and impartial judiciary, which would dare risking its neck against an increasingly authoritarian government and a tyrannical president.

Perhaps that was the reason why Austrian social democrat Stefan Schennach, who is the rapporteur for the Monitoring Committee in the Parliamentary Assembly of the Council of Europe (PACE), put special emphasis on growing worries over government meddling in the judiciary in Turkey in his scorecard for Turkey’s democracy. The concerns over independence of the judiciary are clearly highlighted in PACE’s upcoming progress report on monitoring that includes Turkey, among others. Turkey, a founding member of the CoE, has been under probationary process since 2004 as part of the Post-Monitoring Dialogue scheme because of shortcomings in the rule of law, fundamental rights and democracy.

After all, it was the Council of Europe (CoE) that put so much stock in the Turkish judiciary by endorsing the 2010 constitutional overhaul, which restructured the judicial council in a way to reflect more independence, democratic accountability and pluralist composition in its membership profile. The CoE’s Venice Commission, an expert body specialized on constitutional and judicial matters, openly supported changes in 2010 that were later approved in a landslide by Turks in a public referendum. The result was almost immediate in terms of improved efficiency, reduced case backlogs and shorter pre-trial detention periods. Turks started to see more judges ruling in favor of protecting the fundamental rights of individuals against the state.

The European Court of Human Rights (ECtHR), another body affiliated with the CoE, has a lot at stake in the HSYK judicial council as well. If that critical body falls prey to political Islamists, the Strasbourg-based rights court will face a tremendous number of cases originating from Turkey. Because Turks will not be satisfied with their own justice system that will likely be paralyzed by overt political influence, and instead will seek remedy in Strasbourg by applying to the ECtHR. This will surely increase the huge backlog of cases in the already-overburdened rights court.

Why is the HSYK so important for the Turkish justice system? This is the body that oversees judicial assignments, transfers, promotions, reprimands and even dismissals from the profession. Thanks to the CoE and EU-endorsed constitutional amendments in 2010, most members of the 22-member HSYK currently get elected by their own peers. Approximately 12,000 judges and prosecutors — everyone from the top members of the judiciary to judges serving in the remotest areas of the country — elect 10 members to the council. Six members are elected by senior judiciary — the Supreme Court of Appeals and the Council of State and the Justice Academy. The president selects four members.

Considering that President Recep Tayyip Erdoğan, the chief political Islamist, faces significant legal troubles ranging from a corruption scandal that incriminated him and his family members to allegations of providing material support to radical groups in Syria, he will select four loyalists who will try to filibuster the judicial council. Hence the election by the community of judges and prosecutors will determine the sway in the next HSYK as to whether it will be independent or subordinate to the executive branch. That is why the government has been doing everything in its power, including a pay rise for judges and prosecutors and open support for the pro-government list called the Platform for Union within the Judiciary (YBP-Yargıda Birlik). Justice Minister Bekir Bozdağ has been making a tour of the country to try to pressure judges and prosecutors to endorse the YBP list.

Clearly, Erdoğan and Prime Minister Ahmet Davutoğlu’s government want to stack the judicial council body with allies and ideologues rather than judicial thinkers who are qualified and independent. The government campaigns on the promise that it will purge the judiciary of the so-called parallel structure — a derogatory term employed by Erdoğan as part of the hate speech to refer to Hizmet, the popular social movement that was inspired by Islamic scholar Fethullah Gülen and represents the largest civil society group in Turkey. Hizmet is known as strong advocate of accountability and transparency in governance and is an ardent supporter of modern education and interfaith dialogue. Erdoğan accused the movement of cooperating with the US and the EU in corruption investigations that he claimed aimed to topple his government. Yet he failed to offer a single shred of evidence to support his claims that amount to conspiracy.

The government’s ultimate aim is not just to get rid of judges and prosecutors who may feel sympathetic towards Hizmet in their personal views, but also all others who have aligned themselves with opposition parties, social democrats, nationalists and religious groups such as Alevis as well. Hizmet is just a scapegoat and smokescreen for a government campaign that seems determined to promote judges and prosecutors who are absolutely loyal to their political masters on bended knees. The political Islamist zealots have no interest whatsoever in having a broad swath of the Turkish legal community, both in terms of judicial outlook as well as the political, social, ideological, racial, cultural and religious makeup of the country.

The Erdoğan-Davutoğlu camp simply wants to fill the HSYK with political Islamist hard-liners who are open to political pressure and manipulation. They want members with an ideological bias towards the ruling party, and they are afraid of an independent judicial council that will insulate judges and prosecutors from outside influence. If Erdoğan gets his way, the independent judicial oversight on government will end. He and his allies will consolidate power in all branches of the government in their hands. The abuse of the criminal justice system will become worse than it already is.

If the government-supported list gets elected next month, the democratic space Turks had been fighting to pry open for decades will be narrowed significantly. It would mean that tyrannical political Islamists who have no respect for the rule of law will effectively replace the authoritarian and meddlesome military rule of the past. Erdoğan and his allies in the government have already curtailed judicial independence to a significant degree through a series of legislative and administrative maneuvers and pressure tactics. They were able to appoint new judges and prosecutors to their liking in several cases that handle corruption and other major wrongdoings involving senior politicians.

The troubling signs are already there. A growing number of favorable rulings for political authorities in defamation lawsuits against journalists have already had a chilling effect on freedom of expression. If the judicial council gets totally subordinated to the political masters, it will eventually lead to the destruction of the justice system. That in turn will impede the country’s social and economic development and hamper reform efforts. This will trigger fresh calls for a judicial overhaul as investors and businesses will shy away from Turkey for fear of political reprisals through manipulated court procedures. In a vicious cycle, Turkey will be trapped in a never-ending debate of judicial reform amid growing mistrust of the justice system by citizens. That will be the hefty bill political Islamists will leave behind for Turks to pay before departing for good from the political landscape.

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