The Council of State has reached an important decision about the headscarf; female lawyers will be able to be present in trials with their headscarves on. I attach the utmost importance to this and take this opportunity to ponder the concept of the “impartiality of justice.”
The Council of State, for a long time, adopted all kinds of bans on the headscarf in the manner of an activist. Moreover, it was able to reach a verdict for a poor switchboard operator that her wearing the headscarf was regarded as an act damaging the public service tantamount to “boycott, occupation and blocking,” and for this reason the poor woman was laid off without compensation. (8th department, K:2000/4951)
The Constitutional Court, was also able to write a justification such as, “In a Muslim country, there cannot be secularism similar to what Europe has.” (K: 1989/2)
There were fears; my esteemed friend Alev Coşkun had given a heads-up that if the headscarf ban in universities was to be lifted, then “those girls not wearing the headscarf might be accused of immorality.” (Daily Cumhuriyet, Dec 11, 2002)
The ban was lifted and it was seen that this suspicion was baseless.
[HH] Who does the lawyer represent?
Let’s take the topic of female lawyers wearing the headscarf. Can a female citizen be banned from entering the court hall to claim her rights because she is wearing a headscarf? Never. Just as her own self, her “representative” cannot be deprived of this either. The lawyer at the court hall is not a representative of the state who has to be “impartial;” she is the “representative” of the citizen claiming her rights; and in this way, the lawyer is taking “a side” anyway.
The state, the Bar Association that have to be “impartial” also cannot be the “opposing side” on the matter with the political or faith relation of the lawyer performing his or her professional duties; they cannot exert bans.
Thus, the Council of State’s last decision to lift the ban of the headscarf for female lawyers is well-directed. It is one of the examples demonstrating the “impartiality” of the judiciary.
‘Justice on our side’
If the Council of State is impartial then it will surely annul those unlawful decisions of the conservative government.
As you know, Prime Minister Recep Tayyip Erdoðan from time to time complains “the justice prevented us from building a hospital.” The government wants to build a new hospital in Ankara; how nice…
However, the Council of State cancelled it because of “discrepancies in the tender conditions.” If there were actually “discrepancies in the tender conditions,” then the Council of State would of course cancel it. Justice is not a “detail” when it comes to “execution.”
As citizens, do we respect the law? Unfortunately, here, in us, the culture of “impartial justice” is in the form of historic anecdotes. In reality though, we want a “justice that is on our side.”
The reason why we ask, “Whose side are these judges from?” is the expression of the evil traces left in our minds of the practice of “biased justice” for years.
The supreme board model
While the Justice and Development Party (AK Party) was being victimized by the political attitudes of the judiciary, it was constantly defending the idea of “impartial justice.” The motivation lying at the essence of the 2010 referendum was this. There, with that regulation, today, 16 members of the 26-member Supreme Board of Judges and Prosecutors (HSYK) are elected from within the judiciary.
However, in the new draft Constitution of the ruling party, those 16 members will be appointed by the “President” and his/her “party.” The judiciary will only elect six members! This is diametrically opposed to the “Venice Criteria” that the government defended in the 2010 referendum. If this is the way things stand, then there would be no independence of the judiciary or its impartiality left.
Emphasizing this during the television program, I asked the prime minister, “Are you insistent?” He said they would not impose it and that it was open to debate. I was relieved.
In that case, there is a task waiting for those legislators in AK Party who have mentioned “Venice Criteria” at the 2010 referendum: To withdraw this draft and to accept that the number of those members of the HSYK elected within the judiciary will be in absolute majority.
Consequently, justice is fair as long as it makes a point of impartiality. We deserve justice as long as we want “impartial justice,” not “justice on our side.”
Taha Akyol is a columnist for daily Hürriyet in which this piece was published on April 3. It was translated into English by the Daily News staff.