Undoing Juristocracy–One Reform At a Time

[Originally published in Hurriyet Daily News]
The “From the Bosphorus: Straight” column, which “represent the consensus opinion of the Hürriyet Daily News and its editorial board members,” was pretty straight forward two days ago. “Don’t expect us to believe this ‘reform,’” read its headline. The “reform” in question was the new constitutional amendment package that the Justice and Development Party, or AKP, government has just proposed. And it was supposedly too bad because it would “essentially make the judiciary an arm of the government.”

Well, I am afraid I fail to conform to that “consensus opinion.” I rather agree with what Joost Lagendijk, the chair of the EU’s Joint Parliamentary Committee with Turkey, wrote also in these pages two days ago: “These changes were long overdue and, if and when adopted, will make Turkey a more democratic country.”
To tell you why, let me first tell you a true story.
The military’s yes-men
Five years ago, a pro-Kurdish bookstore in Şemdinli, a town in the predominantly Kurdish Southeast, was bombed by two men, who turned out to be gendarmerie officers. The prosecutor of the town, Serhat Sarıkaya, arrested the red-handed soldiers and then wrote an indictment which spoke about the “criminal networks” in the military and even mentioned the name of Chief of General Staff Gen. Yaşar Büyükanıt. It was a quite a brave move for a humble prosecutor.
In fact, much too brave. Right after the indictment came out, the Supreme Board of Judges and Prosecutors, or HSYK, got so mad that it intervened in the case, canceled the indictment and transferred the case from the civilian court to a military one. Moreover, Mr. Sarıkaya was fired not only from his post but also from the whole legal profession – and cannot even be a lawyer in this country. (He then remained unemployed for a long time, sold his car to make ends meet and recently found a job in Ankara as a legal advisor to a modest company.)
But why did the members of the HSYK decided to engage in a character assassination against a man of their own profession?
Last year, then-retired Büyükanıt explained the behind-the-scenes developments with a single sentence on a TV show named 32. Gün. To a question on why the HSYK acted that pro-militarily, he simply said, “I gave the order.”
This, in fact, was just one of the many incidents in which the HSYK, and other bodies of Turkey’s supreme judiciary, acted on the “orders” of the Turkish military. During the “post-modern coup” of 1997, the generals invited these judges and prosecutors to military headquarters to give them “briefings” about Turkey’s “enemies within.” The well-briefed men in gowns then went back to their courthouses in order to file cases against prominent liberals, Kurds, and religious conservatives.
In many other cases, most of Turkey’s top prosecutors and judges did not even need such “orders” from the military, for they already share the latter’s authoritarian ideology (a.k.a. Kemalism). A survey made among these judges by TESEV, a liberal think tank, has shown they define their highest mission as “the protection of the state’s interests” – and not the protection of the citizens’ interests from the state.
Now, this is the judiciary that we are speaking about – and which the government is trying to reform.
Is the AKP government trying to do this because they are a team of liberal idealists inspired by, say, Montesquieu?
Not really. They are rather more pragmatic. They are rightly fed up by all the ideological impositions and hostilities they have received from this juristocracy – which includes an insane “closure case” that they barely survived.
But will the constitutional reform package turn things just the opposite by “making the judiciary an arm of the government?”
Well, that argument is the new line of resistance to change. But it is not the truth.
Against the status quo
Currently, the HSYK and other bodies of the higher judiciary work within a co-optation system, in which staunchly Kemalist judges simply elect each other in order to keep the ruling caste intact. What the government proposes instead is a “broad representation” system, according to which the seats at the HSYK and Constitutional Court will increase along with the sources of their appointment.
The Parliament would only have the right to appoint three members of the Constitutional Court, whose number will rise from 11 to 19 – in a way similar to those in most European countries. In the HSYK, there is not even that – the Parliament will not appoint any member. The institution will just be more “broad based,” with 7 of 21 members being elected directly by judges across the country. Four members will be appointed by the president, and the rest will be appointed by bodies of the high judiciary.
None of this will make the judiciary “an arm of the government.” But they will help saving it from being an arm of the state ideology, which, again and again, has proven to be an obstacle to a more free and democratic Turkey.
That’s why I support the reform. It could have been better, but it is certainly better than the status quo.