Turkey's top judge urges gov’t over separation of powers, ‘copy-paste’ charter

“The underlying root of the principle of separation of powers is the core of constitutionalism, which is the limitation of power. In places where the power is not limited through laws, fundamental rights and freedoms are in danger. Centralizing executive, judicial and legislative powers on one hand would be the end of freedom, just like Montesquieu put it,” said Zühtü Arslan, head of the Constitutional Court, on the occasion of the 53rd anniversary of the foundation of the top court. 

Erdoğan, Parliament Speaker Cemil Çiçek and Prime Minister Ahmet Davutoğlu were among the participants of the ceremony.  The statement by the top judge came at a moment when Turkey was discussing the adoption of the presidential system as a result of Erdoğan’s insistence on the administrative change.  

Recalling that separation of powers should not be seen as a conflict between three powers, Arslan stressed the constitution described it as a contemporary and limited division of labor and cooperation between three powers. 

“In fact, no single organ can resolve its problems without the assistance and cooperation of other organs. In this sense, we should underline that we need cooperation between organs using state power more than ever,” he said. 

No ‘copy-paste’ charter 

Reiterating the need of a new constitution for Turkey, the top judge expressed his own views about the character and content of the new charter. 

“As known, there is a need for an appropriate climate to make a new constitution. What is required for this climate is not polarization through acts and language but a positive approach highlighting dialogue and reconciliation,” he said, adding it was everybody’s responsibility to act in this way. 

This country has been seeking its constitution for the last 150 years, he said, “Making a constitution that ignores sine-qua-non characteristics of democratic constitutions such as separation of powers, human rights and pluralism would be as wrong as writing the charter through a copy-paste method.” 

Judicial independence must be protected 

Arslan also underlined the need to protect judicial independence from political influence and instruction as a must for judges to do their jobs in the best way. “It should not be forgotten that those whose minds and consciences are not free cannot be a judge. Those who rent his or her mind and conscience to others or who allows others to guide his will cannot perform as judge. No remote control judge and justice can be thought of in rule of law,” Arslan said. His words were interpreted as a reaction against judges and prosecutors allegedly under the influence of U.S.-based Islamic scholar Fethullah Gülen’s community. 

Justice should not turn into a tool to impose tutelage on politics, nor vice versa, Arslan said. “Imposing influence on the judiciary as an institution or creating divisions within on the basis of political views are great dangers. In this sense, politicization of the judiciary would be the end of rule of law,” he said.

The top judge said justice should not be politicized and politics should not put itself into the place of justice, as both would mark the end of democracy and rule of law.