The government bill sent to parliament cancels out the members of the Supreme Court of Appeals (Yargıtay) and Council of State (Danıştay). The new members will be appointed “in five days” by the Supreme Council of Judges and Prosecutors (HSYK) and the president.
This is a public question: While the government was drafting this bill, did it ask the opinion of these two high courts? The esteemed presidents of the high courts, what do you think about this bill concerning your institutions?
I do not know of any case in republic or Ottoman history where members of the higher judiciary were written off as such. The republic was a radical regime change, but it did not make such a sweep in the high judiciary.
The continuity of the staff in judicial institutions is one of the most important conditions for the impartiality and independence of justice. In the U.S., members of the high court are appointed for a lifetime; thus, no president can form a group according to his/her preference.
The Justice and Development Party (AK Party) government, also, in the text it submitted for the 2010 referendum, had increased the number of members of the Constitutional Court from 11 to 17, but it had not totally wiped out the former members.
In order to decrease the number of members in the two high courts, instead of a total elimination, objective criteria such as seniority and age could have been suggested.
A total elimination of members in judicial institutions has no other meaning but politicization and consequently there is no other example in the world.
Very valuable new members could be appointed to the high courts in question but at least half of Turkey will not trust them. We have the example of the HSYK before us. While the government was engaged in its “frequently changing” laws in 2014, it made a similar total elimination for the HSYK, but the Constitutional Court unanimously annulled it. However, because the annulment is not retroactive, the appointed staff is on duty.
The new judiciary members appointed by the HSYK are opening cases and making arrests according to the discourse of the government. The Gezi Park cases are self-explanatory.
Journalists Can Dündar and Erdem Gül were accused of spying and supporting a terror organization by the court but we have learned from the Constitutional Court’s ruling that there was no other evidence in the file but “newspaper clippings.”
According to the new bill, if there is an investigation opened against a company on an “anti-constitutional attempt against the constitutional order, spying or exposure of state secrets,” a trustee can be appointed with a judge’s decision. Moreover, even if the trustee intentionally causes the company to go bankrupt, they will not be responsible.
The trustee has absolute exemption from responsibility. He could suppress, crash, bankrupt and finish a company but would not be responsible.
In such cases, the appeals authority will be the new Yargıtay and new Danıştay.
How many years would it spend at the Constitutional Court and the European Court of Human Rights?
This was to fight the “community.” Even in the fight against the outlawed Kurdistan Workers’ Party (PKK), the authorities emphasize how much care is exerted to comply with laws.
Parliament Constitution Commission head Mr. Ahmet İyimaya: You are a good law person. In which part of your two-volume “Problems of Political Law” book does this bill fall?