In Turkey, experts highlight need for checks and balances
As debate over a new constitution continues, civil society groups and legal experts highlight the importance of checks and balances to strengthen Turkish democracy and the rule of law.
By Menekse Tokyay for SES Türkiye in Istanbul -- 26/03/12
A system of checks and balances to regulate the inter-play between the executive, legislative and judicial branches of government, by guaranteeing their respective independence and control over each other, is particularly important in Turkey's judicial sector, experts say.
The judiciary has traditionally put the interests of the state before the rights of individuals. The Sign reads, "No to judicial despotism." [Reuters]
One of the main criticisms leveled against the judiciary is its partiality and lack of independence from political interventions, as well as its poor record of complying with international norms.
In Turkey, the judiciary is conceived as a "stick" used by the ruling authorities to obtain power, whereas the essential function should be to overcome imbalances and inequalities between the weak and strong in both society and politics, says Orhan Gazi Ertekin, the co-chairman of the Democratic Judiciary Association.
"The judiciary shouldn't be a means for the state to gain control and guidance over society, but should be an instrument used by society to control and limit the power of the state," he told SES Türkiye.
The constitutional referendum of September 12th 2010 made some headway in reforming the make-up of Turkey's top judicial institutions, especially by redesigning the Supreme Council of Judges and Prosecutors (HSYK), an independent body that elects members of the Supreme Court of Appeals and the Council of State, as well as applies disciplinary measures concerning judges and public prosecutors.
Following the changes, the number of members in HSYK was increased from seven to 22, 16 of which are now elected directly by more than 11,000 judges and prosecutors. The move was interpreted as a more pluralistic structural change.
"However, the fact that the minister of justice still remains the president of the HSYK through his undersecretary is a source of concern," Nur Centel, a law professor at Koc University, told SES Türkiye.
Experts suggest the member structure of HSYK should be redesigned. "For this, the representation of all political parties within the Turkish parliament, as well as of the High Court judges and those of Court of First Instance, should be taken into account," Ertekin said.
As underlined by a comprehensive report, "Strengthening Checks and Balances System of Turkey through Constitutional Reform", published in early March by the Istanbul Policy Centre, the Turkish judiciary should also use the standards of the European Court of Human Rights (ECHR) as a reference point.
In 2011, Turkey ranked at the top, with 174 cases concerning the violation of judgments delivered by the ECHR. During the period between 1959 and 2011, Turkey won the dubious distinction of violating the European Convention of Human Rights 2,404 times, more than any other signatory. It currently has nearly 3,000 cases open against it in the ECHR.
Speaking to SES Türkiye, main opposition CHP deputy Umut Oran says that this picture clearly shows the systematic deficiencies within the judicial sector.
"As long as our judicial system gives priority to the state rather than to the individual, and as long as it has a perspective devoid of democratic principles, such records will never surprise me," he said, adding that judicial authorities should be constantly updated about ECHR rulings.
There are, however, some positive developments.
HSYK recently decided to follow new criteria for the promotion of judges and prosecutors, obliging them to base their decisions on ECHR rulings. The justice ministry has also begun providing translations of ECHR decisions on its website to help non-English speaking prosecutors understand the rulings. The ministry is also set to implement a series of reforms in human rights, freedom of expression and freedom of press in order to reduce the number of cases against Turkey in the ECHR.
Fuat Keyman, director of the Istanbul Policy Centre (IPC), says taking ECHR norms as the basis of judicial reform will lead to a significant drop in infringements. "This will bring a revolution in mentalities when giving verdicts which are in line with the internationally accepted democratic norms," he said.
Keyman also repeats the suggestions made in the IPC report, underlining that specially authorised courts should be removed on the grounds that they prioritise state security over basic human rights.
"As these courts are predominantly occupied by cases related to the terror and coup, their workload can be transferred to the high criminal courts," Keyman told SES Türkiye.