Battle for democracy intensifies: Turkey’s top court confronts AKP gov’t on judicial independence

In what is seen as an escalation of the locking of horns between the judiciary and the government over judicial independence, the Constitutional Court announced on Friday it partially annulled a highly controversial law to restructure the HSYK, which went into effect in February after being approved by the president, reports Today’s Zaman.

The Constitutional Court announced on Friday it partially annulled a highly controversial law to restructure the Supreme Board of Judges and Prosecutors (HSYK), which went into effect in February after being approved by the president.

According to initial statements made by the Constitutional Court on Friday morning, the court annulled parts of the law that gives the justice minister sweeping powers over the board.

In its initial reaction to the Constitutional Court ruling, the government announced it would abide by the court’s decision. Justice Minister Bekir Bozdağ asserted that the HSYK regulation, which was enacted and signed off by President Abdullah Gül, conforms to the Constitution but the government would abide by the court’s ruling.

Bozdağ noted it impossible to retroact the Constitutional Court’s ruling when the government’s reassignments of judges and prosecutors are taken into consideration. Asserting that the government-sponsored law was not against the Constitution, Bozdağ said, “We will comply with the ruling but the timing is meaningful in terms of the court bringing the regulation onto the agenda.”

When asked whether the government is preparing for a change in the Constitutional Court’s structure, Bozdağ said there was no such plan for now.

The Constitutional Court’s ruling came after main opposition Republican People’s Party (CHP) parliamentary group deputy chairman Akif Hamzaçebi filed an appeal with the court against the HSYK law in March.

CHP Konya deputy Atilla Kart said the court’s decision is a positive development in terms of the law. “But the government has already achieved its aim. That was its aim, to make appointments [in the HSYK] within 15-30 days before the court’s decision. And it did it. In this regard, the government deliberately deceived Parliament, abused its majority [in Parliament],” Kart added.

After the law entered into force, the head of the committee of inspectors and his aides and all inspectors and administrative staff working for the HSYK were removed from their jobs. Then-Justice Minister Sadullah Ergin had appointed eight new names to the positions. Five of the newly appointed members started serving as aides to the HSYK secretary-general. Many other new names were appointed by the minister in the following days.

Journalist and writer Taha Akyol said on a TV program that everyone should respect the Constitutional Court’s verdict in reference to Prime Minister Recep Tayyip Erdoğan’s previous statement that he “does not respect” the Constitutional Court’s decision to lift a ban on Twitter.

Akyol emphasized that labelling the Constitutional Court as being part of a “parallel structure” or considering changing its structure similar to the Radio and Television Supreme Council (RTÜK), whose members are appointed by the political parties in Parliament, only harms those who voice such opinions.

Noting that the government passed a law in 2004 which was included in Article 90 of the Constitution which states that universal law principles will be considered when domestic laws contradict the universal law rulings, Akyol added: “Likewise, the government in 2010 allowed individuals to appeal to the Constitutional Court in cases of a violation of rights by the state. Today the same government is criticizing the Constitutional Court for hearing individual appeals. Accusing the top court of being aligned with anti-government elements due to the nullification of several laws is completely unreasonable. The government’s stance on the issue is completely political.”

Commenting on the Constitutional Court’s decision, criminal lawyer Ersan Şen said the verdict does not interfere in the operations of certain HSYK bodies but has only ruled on the articles which could damage the impartiality of judges and prosecutors, adding: “The court clearly ruled that the annulled articles might interfere with the impartiality of judges and prosecutors while making decisions. Reviewing such decisions given by the Constitutional Court is not appropriate. The result should be considered in accordance with the legal framework. Seemingly, the court took into consideration that a justice minister should not personally have such a wide authority over the HSYK and thus judges and prosecutors. The top court said the justice minister assuming so much control over the judiciary is against the Constitution.”

Faik Öztrak, CHP deputy chairman in charge of the economy, also said they had repeatedly stressed the HSYK bill was not in accordance with the Constitution and that it threatens the independence of the judiciary and the rule of law.

“When we consider the government’s attitudes, tensions in politics will increase [with the Constitutional Court decision]. Perhaps the government will try to enact some regulations regarding the Constitutional Court,” Öztrak said.

Former Chief Public Prosecutor Ahmet Gündel praised the top court’s ruling on the HSYK, noting that the legislation, prior to the partial annulment, was aimed at subordinating the judiciary to the executive power by giving the justice minister the authority to appoint judges and prosecutors.

“The court’s decision is completely correct and appropriate. The decision has two main points. One is to send a message to Prime Minister Recep Tayyip Erdoğan and his government. The second is to protect the HSYK’s independence from government intervention.”

“The judiciary does not favor anyone’s interest. The main purpose of the judiciary is to make decisions within the law and the principle of the state of law. The verdict considered that the government’s tight grip is a violation of the law and the independence of the judiciary. Everyone should abide by the decision. If there are some who do not agree with the courts they should make an individual appeal to the Constitutional Court. In short, this ruling sends a message to everyone to respect the law and democratic principles,” Gündel said.

According to critics, the HSYK law gives the government a much tighter grip on the judiciary. The law empowers the justice minister in the HSYK in a number of ways, such as authorizing him to reshape the composition of all three chambers of the board and to initiate disciplinary procedures for HSYK members.

The HSYK law represents a major step back from a government-backed constitutional referendum in 2010 that brought a more democratic and pluralistic structure to the HSYK, by which most members would be elected by their own community of some 12,000 judges and prosecutors. With the new law, judges and prosecutors are required to have 20 years of experience as a prerequisite for HSYK membership. In this way, young judges and prosecutors will be prevented from becoming members of the board.

The CHP had taken the highly controversial HSYK law to the Constitutional Court in March filing a third petition after two others had been rejected.

Speaking to reporters after submitting the appeal, Hamzaçebi said the HSYK law is in open violation of the Constitution.

Soon after the appeal filed by the CHP, the Constitutional Court held an extraordinary meeting to discuss an annulment of the HSYK law.

Hamzaçebi said in a statement that their argument is based on Article 159 of the Constitution, which enshrines the independence of the board: “The Supreme Board of Judges and Prosecutors shall be established and shall exercise its functions in accordance with the principles of the independence of the courts and the security of the tenure of judges.”

The HSYK law represents a major step back from a government-backed constitutional referendum in 2010 that brought a more democratic and pluralistic structure to the HSYK, by which most members would be elected by their own community of some 12,000 judges and prosecutors. With the new law, judges and prosecutors are required to have 20 years of experience as a prerequisite for HSYK membership. In this way, young judges and prosecutors will be prevented from becoming members of the board.

The Constitutional Court ruled on April 2 that the Twitter ban is unconstitutional and unlawful, demanding an immediate lifting of the block adopted by the Telecommunications Directorate (TİB), which cited a lower court ruling on the removal of a Twitter account that was deemed pornographic for the ban.

Reklamlar

About yavuzbaydar

Yavuz Baydar has been an award-winning Turkish journalist, whose professional activity spans nearly four decades. In December 2013, Baydar co-founded the independent media platform, P24, Punto24, to monitor the media sector of Turkey, as well as organizing surveys, and training workshops. Baydar wrote opinion columns, in Turkish, liberal daily Ozgur Dusunce and news site Haberdar, and in English, daily Today's Zaman, on domestic and foreign policy issues related to Turkey, and media matters, until all had to cease publications due to growing political oppression. Currently, he writes regular chronicles for Die Süddeutsche Zeitung, and opinion columns for the Arab Weekly, as well as analysis for Index on Censorship. Baydar blogs with the Huffington Post, sharing his his analysis and views on Turkish politics, the Middle East, Balkans, Europe, U.S-Turkish relations, human rights, free speech, press freedom, history, etc. His opinion articles appeared at the New York Times, the Guardian, El Pais, Svenska Dagbladet, and Al Jazeera English online. Turkey’s first news ombudsman, beginning at Milliyet daily in 1999, Baydar worked in the same role as reader representative until 2014. His work included reader complaints with content, and commentary on media ethics. Working in a tough professional climate had its costs: he was twice forced to leave his job, after his self-critical columns on journalistic flaws and fabricated news stories. Baydar worked as producer and news presenter in Swedish Radio &TV Corp. (SR) Stockholm, Sweden between 1979-1991; as correspondent for Scandinavia and Baltics for Turkish daily Cumhuriyet between 1980-1992, and the BBC World Service, in early 1990's. Returning to Turkey in 1994, he worked as reporter and ediytor for various outlets in print, as well as hosting debate porogrammes in public and private TV channels. Baydar studied informatics, cybernetics and, later, had his journalism ediucatiob in the University of Stockholm. Baydar served as president of the U.S. based International Organizaton of News Ombudsmen (ONO) in 2003. He was a Knight-Wallace Fellow at University of Michigan in 2004. Baydar was given the Special Award of the European Press Prize (EPP), for 'excellence in journalism', along with the Guardian and Der Spiegel in 2014. He won the Umbria Journalism Award in March 2014 and Caravella/Mare Nostrum Prize in 2015; both in Italy. Baydar completed an extensive research on self-censorship, corruption in media, and growing threats over journalism in Turkey as a Shorenstein Fellow at the Kennedy School of Government at Harvard.
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