Media watchdog model for supreme council of judges
It was two years ago when then-Prime Minister Recep Tayyip Erdoğan defended the Radio and Television Supreme Council (RTÜK) model for the Supreme Council of Judges and Prosecutors (HSYK). However, this did not happen because it required a constitutional amendment.
It has not been officially disclosed, but today some are also saying the RTÜK model is being considered for the HSYK.
I absolutely do not think the opposition will accept such a constitutional amendment. I also have another hope: I think that when the topic is explained to him by his own legal experts on an academic level, Professor Ahmet Davutoğlu will also refuse to accept this.
Why? It is not just because of his academic background, but there is also another development that has given hope to me. There was this phrase in the ruling Justice and Development Party (AKP) election manifesto and Davutoğlu’s 64th government program: “In the top judicial management and in the formation of appeal courts, we will strengthen the role of parliament.”
I criticized that. I wrote that it might be fine, to a certain extent, if the top justice administrators are politically selected, but the selection of members to high courts of appeals by parliament – that is, political parties – would be unthinkable.
In the Action Plan Davutoğlu read last week, the courts of appeal have been removed from the sentence. It reads as such: “Let us restructure the HSYK. Let us strengthen the power of parliament in the formation of the top administration of the judiciary.”
Yes, there must have been recognition of the impending disaster had political parties in parliament been able to select members to the high courts that convinced the powers-that-be to give this up.
There could be others who insist on a RTÜK model, but this rational and good-willed act of the prime minister should be appreciated and supported.
The bleeding wound that is the issue of the HSYK also involves constitutional and legal issues. The structure of the HSYK and who will select its members is constitutional.
While the new constitution is being written, a RTÜK model (a euphemism for parties) should never be considered for the HSYK.
The HSYK is a different top council; it has to work according to the principles of the “independence of courts and the legal guarantee of judges,” (Constitution, Article 159).
If parliament is to select a few members, then, according to the principles of the Venice Commission, “the predominant majority in the HSYK should be made up of members within the judiciary.” Parliament also has to make its election based on a “qualified majority.” The way to be elected to the HSYK should not involve becoming the favorite of political parties; on the contrary, it should be keeping an equal distance to all – in other words, political impartiality.
There are issues that could be corrected with legal changes without the need for a constitutional amendment. Actually, this must be done immediately. The current method, under which incumbent members of the judiciary elect members to the HSYK from a “list,” should be abandoned and a method of “one vote for one candidate” should be introduced.
In so doing, any list belonging to a community, an association or the Justice Ministry on behalf of the ruling party will be prevented, votes will spread and, as a result, a pluralist, independent and impartial HSYK will be formed.
It was like this in the first text anyway, but the Constitutional Court unfortunately canceled it in 2010 and introduced the list method.
However, in 2014, the Constitutional Court opened the door for the “one vote per one candidate” principle; as such, the ruling party again processed a law validating the “list method” in 2014. By this means, the Justice Ministry intervened in HSYK elections and ensured that its own list won.
Today at the HSYK, “the list of the Justice Ministry” is dominant. The Justice Ministry is even meddling with the elections at the Supreme Court of Appeals (Yargıtay) and the Council of State (Danıştay).
Is there any trust in judiciary left in the country?
Esteemed Prime Minister, I hope for the continuation of the hope you have stimulated. Let us have an HSYK in line with the EU’s “Venice Criteria.” What do you say?