The state of law, economy and stability

METİN FEYZİOĞLU

Turkey has arrived at a point characterized by progressively deepening political and social polarization and inter-institutional conflict, a situation brought about through the impact of illegal intervention in the law and politics. In short, Turkey has a democracy that cannot govern and a judiciary that cannot ensure justice. Efforts to dominate the judiciary as well come to the forefront, and no dissident pressure group, in particular the media, is tolerated.

Under these circumstances and in a period in which there is undoubtedly a need for concrete legal reform through a new Constitution symbolizing the “social consensus document” of Turkey, the current ruling party enacted a Constitutional Amendment Package through the referendum held on Sept. 12, 2010. This package contained neither parliamentary immunity reform, nor any solutions with regard to intra-party democracy, the anti-democratic Political Parties Law, or the 10 percent election threshold.

Modern constitutions are meant to set up controlling and balancing mechanisms that enable individual rights and freedoms to be exercised effectively, without injuring the delicate balance between political authority and freedoms. Democracy cannot survive in a place where there is no faith and confidence in the judiciary!

Politicians and practitioners of law sometimes ignore the vital correlation between the state of law, democracy and the economy due to their training and experience. However, it is a proven fact that the more independent the judiciary is in a country, the more confidence the investor will feel toward that country and thus, the more employment opportunities will emerge, the greater Gross Domestic Product and economic growth will be achieved, and of course, the more tax opportunities will be ensured for the state.

The lower the confidence is in the institution of law, rule of law and independence of the judiciary in a country, the more risky that country is likely to be considered by investors. In short, it goes without saying that there is a direct causal relation between the state of law, economic growth and stability. It is not a coincidence that the rule of law dominates and economic prosperity is higher in industrialized countries as compared to developing countries.

As the Union of Turkish Bar Associations, we believe that sustainable development, which is of vital importance for Turkey, can be achieved only in an environment of stability. Stability, in turn, can be ensured only in a democratic and secular state of law, where the law prevails in the true sense.

To this end, restructuring the High Council of Judges and Prosecutors (HSYK) and the Constitutional Court is a must, and a new regulation that will release the judiciary from political pressure is required. Although the composition of the HSYK, election of its members, working procedures and principles have been regulated twice in the recent period, the minister of justice and the undersecretary of the Ministry of Justice have retained their positions as president and member of the council, respectively.

The HSYK should have a structure that consists of two separate high councils (one of judges and one of prosecutors) just as it did before the 1982 Constitution and make decisions based on independent, impartial, and objective criteria. As required by democratic legitimacy, its members should be elected with a high quorum of decision (3/4 or 4/5). The indispensable priority in the new HSYK model to be created must be to secure the principles of judicial independence and security of judges and prosecutors, as well the independence of the new HSYK from the legislative and executive organs.

It is high time for the political parties to do something beneficial by abolishing the institution of secret testimony, banning voice recordings and digital data from constituting evidence on their own, and rendering the HSYK impartial and independent by amending the Constitution for the sake of themselves and the 77 million citizens of our country.

Only once we manage to judge unlawfulness as unlawful and injustice as unjust can we make substantial progress on the path toward democracy, rule of law and justice.
 
Attorney Professor Metin Feyzioğlu is the President of the Union of Turkish Bar Associations. This article is an abridged version of the original article published in Turkish Policy Quarterly’s Summer 2014 issue. www.turkishpolicy.com