The new landscape in Turkey’s top judiciary

The presidents of both the Constitutional Court and the Supreme Court of Appeals have changed.

I know the new Constitutional Court President Zühtü Arslan from his book “Constitution Theory,” published in 2005. He is a well-equipped man of the law, who defends with determination the principle of the separation of powers and liberal democracy. He is worthy of the position to which he has been elected.

In his book, Arslan explained what an authoritarian, totalitarian thought the “union of powers” theory was. He said defending the “union of powers” under the concepts of “the rule of the people” and the “general will” could represent “authoritarianism with a liberal mask.” He argued that the distinctive feature of authoritarianism is “creating a new human type,” and advocates freedom of thought to counter this. I believe he will be a keen president regarding freedoms and the separation of powers.

Haşim Kılıç

Haşim Kılıç, who has just retired as the head of the Constitutional Court, no doubt has a special place in our constitutional law history. Look at these lines Kılıç wrote 17 years ago for a counter vote that he used in one of the Constitutional Court’s rulings: “In contemporary democratic societies, the fundamental function of constitutions is to expand and guarantee human rights and freedoms. The duty of the Constitutional Court is to protect these aims and support their implementations.” (Verdict Number: 1998/1)

Kılıç emphasized 17 years ago that the Constitutional Courts have another duty, beyond monitoring whether laws are in compliance with the constitution: “Expanding human rights and freedoms.”

Do you find these lines correct?

Kılıç had written this “counter vote” justification against the closure of the Welfare Party. That made him subject to ugly attacks and insults, and claims that he was “reactionary” and “unprogressive.”

More recently, when Kılıç decided that the government’s closure of Twitter last year was against “human rights and freedoms,” he was acting with the same legal philosophy. This time, he was subject to ugly attacks and insults from the other side.

Kılıç will hold an honorable place in our legal history, not only with his liberal democratic mentality, but also because of the organic and case law connections he helped form between our Constitutional Court and the European Court of Human Rights (ECHR). 

I am also very happy that he has declared that he does not have any political plans now.

Ali Alkan

Supreme Court of Appeals head Ali Alkan has also retired. I would like to draw attention to the following words he uttered in his farewell speech: “Those who cannot make the decisions that they know are right, due to fear or due to a certain expectation, should immediately take off their robe and leave their post.”

These words, from someone who was not often an outspoken head of the Supreme Court of Appeals, indicate how a feeling of “fear and expectation” has put pressure on Turkey’s justice system.
 
In truth, could the Supreme Board of Judges and Prosecutors’ (HSYK) “punishing and rewarding” appointments, made in violation of its own regulations, not create “fear and expectations” in judges and prosecutors?

Alkan’s words at the opening of the legal year about one-and-a-half years ago should also be noted:

“One of the inseparable principles of democracy is the separation of powers. Removing the independence of the judiciary or creating a judiciary dependent on the executive body would undermine its legitimacy … It is not right to regard the monitoring of elected organs by the judiciary as ‘tutelage.’”

At a time when the strong winds of “being in harmony with the executive” are blowing in the judiciary, Ali Alkan, who defended the independence of the justice system, will also no doubt hold an honorable place in our history of law. 

Those individuals who the history of law honors are those who place the law above “their fears and expectations.”