The current state of the judiciary

The anniversary of the Turkish Council of State (Danıştay) was dodged with a low-profile ceremony this year. The ban on the press was just not appropriate for this high court. I would have personally wanted to listen to Danıştay head Zerrin Güngör, hearing her voice, observing her actions. That was not possible; I only read her speech. 

We always swing from one extreme to the other. Thanks god we have overcome the old sanctimonious judicial mentality looking down on the executive and legislative bodies. But now, a “harmonious” judiciary has come out, which is being scolded by the executive, which is being brought in line by the “jigsaw puzzle laws” of the legislature. 

When the judiciary has “guidance,” regardless of whether it is bureaucratic or political, it kills the entire justice system. 

The Danıştay head stressed fundamental concepts such as the independence of the judiciary and impartiality. “It should not be forgotten that a judiciary that cannot preserve its impartiality will draw the rage and reaction of society,” she said.

She was indeed pointing to a reality in the constitutional theory when she said our constitution has adopted a cooperation and balance between powers. However, she made her own interpretation, defining the principle of separation of powers as “cooperation and harmony.” This is quite problematic in practice in Turkey. 

The government has passed laws restricting applications to administrative justice and to the Danıştay. It made laws shrinking the Danıştay’s jurisdiction. They made laws granting power to the executive body to postpone certain verdicts. Some of these laws were overturned by the Constitutional Court but others are still there. 

What was expected from the head of the high court was that she would emphasize rule of law, remind people that court verdicts should absolutely be executed and while laws are being prepared, especially those concerning the justice system, the government should ask for the views of the judiciary… Unfortunately these topics were not present in her speech. 

The phrase used in the constitution to define the relationship among powers is not “cooperation and harmony,” it is “division of labor and coordination.” Also, “balance” is one fundamental concept in constitutional law. 

The High Council of Judges and Prosecutors (HSYK) dismissed from the profession the prosecutor and judges who conducted the Dec. 17 and 25, 2013, investigations. The government thinks this is just; the opposition thinks it is unjust. 

The “old HSYK,” in 2005, had dismissed Van prosecutor Ferhat Sarıkaya. While the Republican People’s Party (CHP) thought it was very correct, the Justice and Development Party (AKP) said it was too harsh. 

Do you see how the judiciary has changed hands? It was not impartial, it has only moved from one side to the other. 

Just as yesterday’s HSYK dismissed the Van prosecutor, the new HSYK, which is full of names supported by the Justice Ministry, dismissed others; both of them were no surprises.

Can any prosecutor, from now on, open investigations without the fear of the rage of the executive? 
The judges and prosecutors can challenge the “dismissal from the profession” decisions. Let us see how the Danıştay will rule in this matter.

Will the decision be one of “cooperation and harmony,” or will it be an “independent and impartial” one? 
Most probably, this will be taken to the Constitution Court and the European Court of Human Rights (ECHR). 

Recent surveys reveal the public’s trust in justice has gone down to lower than 20 percent. Well, isn’t that obvious?