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So what?

HDN | 8/10/2010 12:00:00 AM | JOOST LAGENDIJK

The choice on Sept. 12 is not between an independent or a politicized judiciary but about looking to change the status quo.

It is good to see that next to a populist campaign against the constitutional amendments package based on distortion and distraction, the main opposition party is trying to justify its call for a “no” vote by going into the details of the proposals.

Republican People’s Party, or CHP, leader Kemal Kılıçdaroğlu published a long article in daily Hürriyet two days ago, in which he argues against the proposed changes to the Constitutional Court, or CC, and the Supreme Board of Judges and Prosecutors, or HSYK. In his column in Milliyet, former Turkish Judge to the European Court of Human Rights Rıza Türmen formulated some additional arguments, supporting the basic thesis of Kılıçdaroğlu. The problem with both efforts is that they come up with some valid points of criticism but that they are totally silent on the main reason behind the proposed changes.

Let’s start with two of their objections that I share. When the package will be adopted on Sept. 12, the Turkish Parliament will gain a role in appointing the members of the CC. That, in itself, as Türmen acknowledges, is a positive step. Out of 17 members, the Parliament will elect three. The problem is that these three CC members will be chosen by simple majority, giving the present governing party, but in fact any future party or coalition that has a majority in Parliament, the power to select their candidates without having to take into account the views of the opposition. It would indeed be better if the Parliament would vote on these appointments by qualified majority (for instance 2/3), because that would force the majority and the minority to reach a consensus, as happens in the German Bundestag.

The second reasonable point of criticism is the ongoing presence of the minister of justice in the HSYK. Although I do not agree with Kılıçdaroğlu’s claim that the role of the minister will be increased, I do share his point that it would have been better to remove the minister from the HSYK, to make the separation of powers as clear as possible.

For Kılıçdaroğlu and Türmen these are sufficient reasons to vote against the amendments. My problem with that conclusion is their deliberate reductionism. They simply do not mention the main progress that will be achieved and the most important reason why most Europeans are in favor of the CC and HSYK amendments. The current composition of both CC and HYSK is not representative of the judiciary as a whole: only senior members of a limited number of other courts are selected to become members of the CC and HSYK. At the moment, a younger generation of judges has no say, making the CC and the HSYK conservative institutions, defending the status quo. According to the main organization of European judges, bodies like the CC and the HSYK should have a mixed composition because that “would present the advantages both of avoiding the perception of self-interest, self-protection and cronyism and of reflecting the different viewpoints within society, thus providing the judiciary with an additional source of legitimacy.” That is exactly what is going to happen in Turkey when and if these changes are adopted. Will that lead to more CC and HSYK members who are closer to the AKP? It probably will, but so what?

The present CC and HSYK are composed of members who share a particular view on Turkish society and who prefer the same lifestyle, both represented in politics by the CHP. That will change because other views, and other lifestyles will be represented as well. Ideally, the higher judicial institutions in every country should more or less reflect the different political views that exist in that society. That is why most Europeans, despite sharing some of the criticism on the details, agree with the bigger picture presented in the constitutional amendments package and are not impressed by warnings that the AKP will use the new rules to appoint CC and HSYK members who are close to the party. Of course, the EU will also closely follow the implementation of the amendments, but it welcomes the changes themselves.

The choice on Sept. 12 is not between an independent or a politicized judiciary, as Kılıçdaroğlu wants us to believe. It is between keeping a system in place, which is not representative of present-day Turkey or modernizing the key judicial bodies, reflecting Turkish plurality and enabling them to critically monitor every party in power.

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