March 29, 2007 Special Dispatch No. 1520

Turkish Judiciary At War With AKP Government to Defend Its Independence

March 29, 2007
Turkey | Special Dispatch No. 1520

A deepening rift between Turkey's AKP government and Turkey's highest court of appeals (the Yargitay) and high administrative court (the Danistay) has recently become a focus of public debate in Turkey, and has received extensive media coverage. On March 20, the Supreme Board of Judges and Prosecutors (HSYK) held a press conference to publicly protest against the government, for the first time in Turkey's history, because it obstructed the appointment of judges to the high courts for over 10 months so that it could fill vacant posts with its own Islamist-minded appointees.

This crisis comes amidst political tensions in the run-up to the presidential election in the AKP-majority parliament, which is set for May 16. It appears that the AKP government is seeking to postpone all important appointments until after the new president takes office, so as to avoid a probable veto of their nominees by the outgoing, staunchly secular President Ahmet Necdet Sezer. Secular circles fear the new president will be an Islamist – most probably the current prime minister, Recep Tayyip Erdogan, himself.

The following are excerpts from the Turkish press on the issue:

Secular Columnist: A Shameful Picture

Emin Colasan, a prominent columnist for the secular, high circulation daily Hurriyet, was the first journalist to alert the public of the state of affairs in Turkey's judiciary. In a series of articles on this subject, he wrote:[1]

"[…] Let's begin with the scandal in the Sayistay. By law, members of this constitutional institution, which controls state spending and finances, are elected by parliament. The Sayistay board selects four candidates for each vacant position, and sends the names to the office of the speaker [of parliament]; then the appropriation committee examines and cuts the number of candidates down to two, after which parliament votes for one of these two names. This way, the AKP majority in the parliament chooses as the new Sayistay member the name that it deems closest to itself. Now, let's look at what happens: For seven positions vacated two years ago, the Sayistay nominated 28 candidate names, and sent the list to parliament. But the AKP government did not like any one of these names! They were not their people. Thus, since January 2006, they have, for over 14 months, been refusing to choose any of the names to fill the positions, just because they are not close to the AKP.

"As for the highest court, the Yargitay, and the highest administrative institution, the Danistay: Same thing there! It is the seven members of the Supreme Board of Judges and Prosecutors [HSYK] that elects Yargitay and Danistay members. The president of this board [HSYK] is the justice minister. His undersecretary is also a member of the board.[2] The others are three board members sent by the Yargitay, and two sent by the Danistay. Four of the votes of the seven board members determine which candidate fills any given vacancy.

"The board's agenda is determined by the justice minister. There are [currently] 23 vacancies in the 250-member Yargitay, and nine in the 96-strong Danistay. The five judiciary members of the board want to hold an election to

fill those vacancies. The justice minister [and his undersecretary], knowing that he will not be able to impose the government's choice of candidates for justices on the rest of the board members, is refusing to bring the elections to the agenda of HSYK meetings – thus blocking the appointment of any judges. Judicial elections for these high courts are now more than 10 months overdue. With these unfilled vacancies, the judiciary remains overwhelmed with a mounting workload, and is unable to function properly.

"The AKP government does not care at all that the judiciary cannot function, that it is wounded. All they care about is placing their own people in every institution. This is the shameful picture in our judiciary under AKP rule. They are attacking all public institutions and filling them all with their own people. They have fired thousands of our citizens and have ruined families. And they have succeeded in infiltrating all the institutions – that is, all the institutions besides the judiciary! That is why they are trying to punish the judiciary.

"[…] In no other country would such plots against the judiciary be allowed, except in fascist, Communist, and theocratic dictatorships.[…]"

Judges Stand Up to the AKP

In another article in his series, on March 21, Emin Colasan wrote about the development of the crisis between the government and the judges:[3]

"Yesterday, there was an explosive development in the games that the AKP government is playing with the judiciary. The [five] judicial members and five alternate judges of the constitutional institution HSYK held a press conference, and issued a written statement disclosing this scandal to the public.

"[Earlier, the judges had declared that they would force the election issue into the agenda in the March 20 meeting, by refusing to discuss any other matters before the election issue was resolved. But not only did] the justice minister not show up, he [also] didn't send his undersecretary to the scheduled HSYK meeting. Once again, they succeeded in blocking a vote!

"This is the first time in the history of the Turkish judiciary that representatives of the highest courts are making such a statement, [and] are complaining about the government and bringing their grievances to the public's attention.

"The statement included these important words: 'This situation represents an assault on the independence of the judiciary, an attempt to block the HSYK's activities, and interference with the functioning of the judiciary…'"

Secular Columnist: "Do Not Harm the Judiciary"

Hasan Pulur, columnist for the secular, mainstream Turkish daily Milliyet, wrote:[4] "[…]Elections must be held at the Supreme Board of Judges and Prosecutors [HSYK] to fill the vacancies in the Yargitay and Danistay high courts. […] The government does not like the candidates, and does not want them elected. So what can the government do? Prevent the elections, and keep postponing them… The way to do this is for the justice minister and his undersecretary to not show up at the meeting. That way, there aren't enough members present, and a vote cannot be taken…

"Politicians in the government do not have the right, or the luxury, to be [either] at odds or too friendly with the judiciary. […] No matter how hard the politicians try to harm the justice and the judiciary, there will always be judges and prosecutors determined to defend it. What the HSYK members are now doing is an example of this."

Oktay Eksi, columnist for Hurriyet, wrote:[5] "[…] It was believed that the AKP came to power saying that it wanted a country with 'independent judiciary and rule of law.' Apparently, what they were thinking was, 'once we come to power, we will hand the state to those who share our mentality, [and] we allow no institution or organ to be independent.'

"Apparently, the AKP was not at all sincere when they declared that their government would treat all citizens equally and justly, and that nobody would be excluded. Now they are excluding everyone who is not one of theirs.

"They [i.e. the AKP] are at war with the presidency. They are at war with the universities […] They are at war with the military […], with the judiciary, with the media. [This is] because they cannot tolerate any view or decision […] that is contrary to their wishes. How can we allow such an ideology to totally eliminate the independence of our judiciary – which has already been diminished?"

Reactions to the Judiciary-AKP crisis

The wide-circulation Islamist Turkish daily Zaman termed the judicial crisis "bickering":[6]

"[…] The main opposition, the Republican People's Party [CHP] leader Deniz Baykal, has accused Justice Minister [Cemil Cicek] of obstructing the election of new Council of State [Danistay] and High Court of Appeals [Yargitay] members. Baykal claimed that this was an attempt by the government to 'control the judiciary and turn it into a tool of its worldview [i.e. Islamism].'

"Baykal said, 'There is an urgent need for judges in the High Court of Appeals, but this election cannot be held. The justice minister is obstructing the election, because he believes that the ones who would elect the new members would not elect those whom the AKP favors.' [He continued,] 'Where is the independence of the judiciary, where is the constitution, where is democracy?'

"[…] The Turkish Bar Association also criticized the government for obstructing the election, saying that this showed that Turkey's judiciary was not independent, and that it revealed how the justice minister had the power to influence its functioning. The Bar Association statement said, 'What happened yesterday clearly shows how the justice minister and those who carry out his unlawful orders are undermining and hurting the judiciary.'"

[1] Hurriyet (Turkey), March 13 and 20, 2007.

[2] The Turkish media often criticize the fact that politicians sit on and preside over the Supreme Board of Judges and Prosecutors, in violation of the separation of branches of government.

[3] Hurriyet (Turkey), March 21, 2007.

[4] Milliyet (Turkey), March 24, 2007.

[5] Hurriyet (Turkey), March 24, 2007.

[6] Zaman (Turkey), March 22, 2007.

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