Impartial and independent
Nowadays, the government is frequently emphasizing that justice is “impartial and independent” and wants “respect for justice.” This is absolutely correct but do we need to remind them what they said even about the Constitutional Court just yesterday? Let us look at what the government understands regarding the independence of the judiciary.
According Turkish Penal Code Article 277, whether at the prosecutorial stage or at the court stage, whoever “orders or puts pressure or exerts influence on those in the judiciary” is considered to be committing a crime.
By order, influence and pressure, it is obvious that those who hold such positions are meant. However on June 18, 2014, the government changed the law and this sentence was removed.
Now, in Turkey, ordering, putting pressure or exerting influence on those who serve justice” is not crime. Now, the crime is “obstructing the disclosure of truth or influencing with the intention of creating injustice.”
For instance, ordering a prosecutor “to look at this evidence and not look at those,” or put pressure or exert influence is not a crime. It is also not a crime to do the same for drafts of indictments. This change pardons previous offences also.
It can be argued that such an arrangement was necessary for the fight against the Fethullahist Terrorist Organization (FETÖ). It would not have been a problem if this arrangement was done for a certain period to cleanse the network and strengthen the independence of the judiciary. But authorities are saying that FETÖ has no effect left on the judiciary. Moreover, many innocent people have also been dismissed for the sake of this cleaning. If the government wants an independent and impartial justice, why doesn’t it change this arrangement that opens the door to “orders, influence and pressure?”
If the aim is not to open investigations with fake accusations against journalists by “giving orders, exerting influence and pressure,” then why doesn’t the government criminalize them again?
Another issue on the independence of the judiciary is the situation of the Council of Judges and Prosecutors (HSK). The members of the HSK are appointed by the president, who is also the chair of a political party with a qualified political majority in parliament.
How can we find the right balance? We can look at the principles of the Venice Commission. The Justice and Development Party (AK Party) knows the Venice Commission very well. In their closure case, they made their defense with documents of the Venice Commission; the 2010 law reform was structured with Venice Commission documents.
Then why not look at the criteria for the administration of an independent judiciary of the Venice Commission now? They are extremely important in terms of politics and society. In societies where trust for justice is not adequate, tensions rise, as can be seen today and in the history of the century…
When statesmen say “our judiciary is independent,” the administration of justice must be closed to political interventions if they are to be credible. It should be trusted that the appointment of judges and prosecutors are done based on merit, not party membership.
As a reminder, in the darkest days of the May 27, 1960, coup regime, some professors wrote a declaration demanding “extraordinary courts and retroactive laws.” When they took the declaration to Professor Tahir Taner to sign, he rejected it, saying, “I am afraid of history.”
One should act with the probable verdict of history in mind, as well as the winds of today.
