Ever since the government was confronted with a sweeping graft probe that went public in December of last year, it has taken steps aimed at crippling judicial review, thereby leaving the executive power unchecked.
In an effort to block the progress of the widespread corruption investigation in which four former Cabinet ministers are also implicated, the ruling Justice and Development Party (AK Party) went so far as to seek to decriminalize intervention in the judiciary.
Parliament has recently started discussing the fifth judicial reform package, including an amendment to current legislation that decriminalizes intervention in the judicial process.
The reform package has already been taken up by the parliamentary Justice Commission. During the talks in the commission, AK Party deputies submitted several proposals, adding new articles to the package. One of these new articles is Article 52 of the package, which makes changes to Article 277 of the Turkish Penal Code (TCK), in which intervening in the judiciary is defined as a crime. With the amendment, intervening in the work of security forces or prosecutors conducting an investigation will no longer be a criminal offense.
For Atilla Kart, a deputy from the main opposition Republican People’s Party (CHP), what the government has done to cripple the judiciary’s power of judicial review since the graft probe represents the elimination of the principle of the rule of the law.
“The government has been in a state of revolt against the Constitution and the Turkish state. These steps [the government has taken] stand for a [civilian] coup against the constitutional order,” Kart told Sunday’s Zaman, maintaining that the government has been panic-stricken since the graft probes of Dec. 17 and Dec. 25 of last year.
As some audio clips, following the corruption probe, leaked over the Internet revealed, Prime Minister Recep Tayyip Erdoğan may also well have found himself implicated in the sweeping graft probe if the government had not removed those prosecutors and high-level police officers who were conducting the investigation.
The judiciary, having had its power of judicial review over acts of the executive crippled, has almost been totally subordinated to the government following the graft probe.
In an effort to design the judiciary to suit its purposes, which proved essential for the government following the graft probe, the ruling AK Party introduced in February a draft law to restructure the Supreme Board of Judges and Prosecutors (HSYK), which is a judicial regulatory body also in charge of appointments and removals from office.
The Constitutional Court in April annulled some parts of the amendments to the HSYK law, but this annulment cannot reverse the acts that the executive introduced. When the newly passed law entered into effect, the government had already changed the structure of the HSYK and removed from office prosecutors conducting the graft probe by the time the court annulled some parts of the amendment.
Thanks to the amendment, the government was also able to replace leading staff such as the secretary-general and head of the committee of inspectors on the judicial board, rendering it a body subordinated to its will.
The HSYK amendment is a major attempt by the government to subordinate the judiciary to the executive. The amendment allows the undersecretary of the Justice Ministry to be elected chairman of the HSYK. In addition, 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.
Possibly panic-stricken, as Kart noted, by the graft probe, the ruling party has indicated by its deeds since it was confronted with allegations of corruption that it did not care much about separation of powers in a democratic system.
An omnibus bill currently being debated in Parliament’s Planning and Budget Commission allows the government to delay conforming to verdicts by administrative courts for up to two years.
Should the bill be adopted by Parliament, civil servants who, after being removed from office, go to court on the grounds that the executive’s decision was unjust, may have to wait, even if they obtain a court decision in their favor, up to two years for legal redress. The government also attempted, with the HSYK law, to prevent civil servants who were removed from office from seeking legal redress.
The current bill also saves the government from paying a penalty when the executive evades, within 30 days of a court’s decision that says the removal is unfair as required by law currently valid, reassigning a civil servant back to his post.
“Turkey can no longer be considered a state that functions in accordance with laws let alone as a state where the rule of law prevails,” said the CHP’s Kart, according to whom such blatant violations of the Constitution could only be possible when some personal and political ambitions are involved.
Prime Minister Erdoğan has been the target of harsh criticism due to his efforts to restructure the judiciary as his government struggles to contain a recent corruption scandal. Hundreds of judges and prosecutors have been removed from their duties and reassigned to different, often less powerful, posts following the graft probe.
“The omnibus bill [being discussed in Parliament] aims to nullify annulment verdicts previously given by courts regarding various privatizations and to nullify the effects of the Constitutional Court decisions that block the government’s arbitrary steps,” Kart added.
Sacit Kayasu, a former public prosecutor who currently works as a lawyer, also sees the amendments in the omnibus bill as an attempt to take the judiciary under the control of the executive.
“In terms of judicial review and freedom of expression, there has been a decline [in recent years],” Kayasu told Sunday’s Zaman, adding, “The tendency is towards an authoritarian legal system.”
The government’s “crackdown” on the judiciary was also harshly criticized by Haşim Kılıç, president of the Constitutional Court. In a speech marking the 52nd anniversary of the establishment of the court in April, Kılıç said the judiciary is under tutelage of the executive.
“No one should exempt themselves from the responsibility of the emergence of this [tutelage],” Kılıç told the audience in which Prime Minister Erdoğan was also present.