Again, the HSYK

What do you say to the principle of the rule of law? I guess everybody would say “yes” to it. The government, which has submitted a bill to Parliament in order to put the Supreme Board of Judges and Prosecutors (HSYK) under the control of the executive power, would also say “yes.”

So, let us think in terms of the rule of law: If there are any professional doubts about the director of security in the capacity of a prosecutor, a judge or a law enforcement officer, what kind of a procedure is applied in today’s HSYK?

The general assembly of the HSYK has 22 members, 16 of whom have been elected by the judiciary. They work in three departments. This is the most important assurance for the independence of the judiciary, an adjustment that was introduced with the 2010 referendum. However, the new proposal aims to make the executive power dominant in the HSYK.

It is not possible to summarize the bill, which contains 50 articles. There is no need to go into technical details. Let’s only look at conducting research and investigation about police directors.

The Committee of Inspection that conducts legal research and investigations used to report to the Ministry of Justice. With the 2010 referendum, this was handed over to the HSYK. Today, the head and the deputy head of the Committee of Inspection are appointed by the independent general assembly. In the new proposal, this authority is given to the justice minister; in other words, the executive power!

The inspectors to carry out research and investigations are also appointed by the general assembly. In the new bill, however, the general assembly will chose between the two candidates proposed by the minister; in other words, the executive power!

Since 2010, the HSYK inspectors carried out their duties under the supervision of the independent Third Department within the HSYK. If the bill passes, then inspectors will be responsible to the head of the HSYK; in other words, the justice minister.

Reign of the executive

Let us look at a few other details: In the HSYK, it will be possible to raise the size of the quorum to make it impossible for the board to meet. The power to issue circular letters will be taken from the general assembly and given to the justice minister.

All the circulars and regulations prepared within the spirit of the separation of powers will be void.

With the bill’s provisional clauses, the Justice Academy will be almost abolished. Today, eight members of the 31-member general assembly of the Justice Academy are appointed by the Ministry of Justice; if the bill passes, the number of members appointed by the ministry will go up to 22.

A number of HSYK general assembly members cannot be changed by new laws because this was constitutionally determined with the referendum; however, the appointment of the HSYK’s bureaucratic staff will be given to the minister.

The bill submitted to Parliament will make the executive power dominant in both the HSYK and in the Justice Academy. Moreover, even provincial justice commissions will be subject to appointments by the ministry.

Is there anything positive about the bill? Well, for example, it is good that “one person votes for one candidate.” It is also good that the age limit has been raised for certain positions. But these positives seem like a drop in the ocean.

Yes, Article 159 of the Constitution does give the power to arrange these matters with laws, but this power has to be used in accordance with the Constitution and the principle of the separation of powers.

To make the executive power this effective in the management of justice is not only contrary to the promises and commitments of the government in 2010; but, more importantly, it is contrary to the principle of the separation of powers.

“Parallel states, mobs, communities, foreign powers, interest rate lobbies, etc…” These kind of political justifications cannot be used as an excuse to make the executive so effective over the judiciary. Wasn’t it yesterday that those who were defending “state tutelage” over the judiciary used these same excuses of “foreign powers, reactionaryism, etc.”?

Both the executive and the judiciary should carefully refrain from producing more uncertainty about the independence and impartiality of justice.

Taha Akyol is a columnist for daily Hürriyet in which this piece was published on Jan 9. It was translated into English by the Daily News staff.