Constitutions say that judiciaries are independent and impartial, and nobody can order or give instructions to them. Our constitution rules this too.
However the “administration of justice,” in other words, those councils that appoint judges and prosecutors and that launch disciplinary action against them are not “independent and impartial,” then all these articles stay on paper.
In our country, it has always been like this. Thus, first a “tutelage” judiciary, then a “community” judiciary and later a “political power” judiciary were developed.
While the legal system was being transferred from one hand to the other as such in our country, the general provisions of the constitution were in effect, but on paper.
For this reason, the general provisions of the constitution are important, but those related to the administration, jurisdiction and control are more important.
The new Council of Judges and Prosecutors (HSK), formed after the referendum, with a “summer decree,” appointed several judges and prosecutors to various places. There were normal appointments but there were also “political” appointments that could not be explained as “normal.”
A top Istanbul judge of 30 years has been appointed to the Aegean province of Afyon. “We live in a time when people as young as our children are being appointed to Istanbul while we are being appointed to Anatolia. Once upon a time, there were seniority and competence principles in the judiciary,” he said.
Well, this is the main problem: When objective and measurable criteria such as seniority and competence are ignored, then there is no guarantee of being “independent and impartial.”
One should not be surprised that in such a country, a “justice march” is taking place.
The HSK has an appointment regulation dated 2013. For instance, a top judge or a prosecutor cannot be appointed to another region before expiring a seven-year term unless they personally want to.
We call these rules the “tenure of judges” or “legal guarantee of judges,” and they are present so that judges can work free of pressure and fear, so that arbitrary political or favoritism practices, in other words, hostile attitudes do not disrupt the administration of justice.
However, if there are doubts on the impartiality and independence of the HSK, would the judges feel “assured?”
According to the recent constitutional amendments, all HSK members will be appointed by the “political will.”
Can such a legal system be “independent” or “impartial” against the “political will?”
The government, on the other hand, views the judiciary through political lenses. The election of the members of the current HSK was done at the parliamentary commission, by the government block. There were no announced criteria.
If the main criterion had not been “political,” they would have announced their criteria, wouldn’t they?
Making the justice system “in favor of us” is assumed as a political gain in every era, but in time, this causes huge tensions in the country, while it loses credibility.
The most honorable way for the jurist is to treasure law over politics. The correct path for the politician is to accept that justice is superior to politics and execute this with a new constitution.