• It is the spirit and not the form of law that keeps justice alive.
    Earl Warren

SEPARATION OF POWERS AND JUDICIAL INDEPENDENCE IN THE REPUBLIC OF TURKEY AFTER THE CONSTITUTIONAL AMENDMENTS

Ever since the times of the ancient Greece and perhaps more prominently of the Roman Republic, the concept of “separation of powers” has constituted the founding stone and the strongest pillar of the governance of the state. Reinforcing the concept is “judicial independence” which has the aim of guarding the exercise of justice from undue influence. In Turkey, both the separation of powers and judicial independence are under constitutional protection. However, the latest changes in the Turkish Constitution brought by the referendum of September 12, 2010 carry the risk of causing great erosion in these concepts whereby undermining the Turkish democracy as we know it.

In the most concise sense, the separation of powers connotes that the three branches of the government, namely the executive, the legislature and the judiciary must be separated and independent from each other. Put simply, it is of essence that those who enact the laws and execute them are not identical to those who review the legality of the implementation of such laws. The concept also ensures a system of checks and balances whereby it guarantees that no branch of the state becomes too powerful. Among the branches of the state, the judiciary has been historically seen “as the most important of powers, independent and unchecked”. Hence, the independence of the judiciary is of immense significance. An independent judiciary promotes the integrity of democracy, ensures the rule of law and thwarts the misuse of political power.

The concept of separation of powers and the idea of judicial independence are protected by various articles of the Turkish Constitution. To start with the former concept, i.e. the separation of powers, the Preamble of the Constitution defines the concept as a civil division of labor and cooperation between the branches of the state. Article 2 of the Constitution gives this definition a statutory footing by stating that “The Republic of Turkey is a democratic, secular, and social state governed by the rule of law, respecting human rights, loyal to the nationalism of Ataturk, ensuring the peace of the public and national cooperation, and is founded upon the principles of the Preamble” [Emphasis added]. Article 4 reinforces the protection of the concept by prohibiting amendments and the proposals for amendment of Article 2. The separate natures and powers of the legislative, executive and judicial powers of the state institutions are also laid down in Articles 7, 8 and 9 of the Constitution respectively. Article 7 states that “the legislative power belongs to the Grand National Assembly of Turkey on behalf of the Turkish People” and that “this power may not be delegated”. Article 8 provides that “the executive power and duty is used and carried out by the President and the Council of Ministers, in compliance with the Constitution and the laws”. Lastly, Article 9 pronounces that “the judicial power is used by independent courts on behalf of the Turkish People” [Emphasis added].

Evidently, Article 9 of the Constitution also serves as the basis for the independence of the judiciary. The independence of the judiciary is outlined in more depth by article 138. The article in question states that: “Judges are independent while carrying out their duties; they render their decisions according to the Constitution, the laws and their conscience. No institution, authority, department or person may issue any order or instruction to the courts and the judges while the courts and the judges carry out their duties; nor can they send any notice or make any recommendations or suggestions. No question on the execution of the judicial power may be posed in the Parliament in relation to a pending lawsuit; nor can a hearing be held or a statement be made to that end. The legislative and executive institutions and the administration are under the obligation to abide by court rulings; these institutions and the administration may not, under any circumstance, alter the court rulings or procrastinate their execution”.

Notwithstanding the protection which the foregoing general remarks of the Constitution provides to the judiciary, whether the judiciary is de facto independent is largely shaped by the relationship between the executive and judicial branches of the state. It is undisputed that the foremost precondition for the judiciary to be independent is a politics-free mechanism for the election and appointment of the members of the branch. The latest amendments made in the Turkish Constitution as a result of the referendum of September 12, 2010, in that sense, rings the alarm bells for judicial independence and ultimately the democracy in the Republic of Turkey.

There are two vital changes brought by the referendum which are prone to affect the independence of the judiciary. The first of these changes relate to the structure of the Constitutional Court of Turkey. With the latest amendment in Article 146, the number of judges of the Constitutional Court is increased from 11 to 17 who are nominated by the Court of Appeal, Council of State, Court of Accounts, and High Council of Education as before and approved by the President. The new members are to be elected by the Parliament.

The second critical change is brought in relation to the structure of the Supreme Board of Judges and Prosecutors (“Board”). With the latest amendment in Article 159, the number of the members of the Board is increased from 7 to 22. Before the amendment, 5 of these members were nominated by the Court of Appeal and Council of State while the Minister of Justice and the Undersecretary of Justice were natural members. In the new structure, the 5 members will be appointed as before and the additional 15 members by the President, the Turkish Justice Academy, the civil judges and prosecutors and the administrative judges and prosecutors.

The changes brought in relation to structure and functioning of the Constitutional Court and the Board have two important ramifications. First, it is apparent that the increase in the number of the members of the Constitutional Court and the Board has a diluting effect on the former members and that the Constitutional Court and the Board will no longer be merely composed of members (excluding the Justice Minister and the Undersecretary of the Justice Minister) who were appointed as a result of the nomination of the Court of Appeal and the Council of the State but from officials who are originally appointed to their positions by the state. Secondly, and perhaps more importantly, the new system creates a vicious circle which allows the government to exercise control over the judiciary. This is because, as per Articles 154 and 155 of the Constitution, the Board elects the members of the Court of Appeal and the Council of State. Such members, in return, are to elect the members of the Board. When the executive branch gains control over the Board (given that now, the Board is no longer composed of the members who were appointed as a result of the nomination of the Court of Appeal and the Council of the State), it indirectly gains control over the Court of Appeal and the Council of State. This, in return, ensures the continuity of the control of the executive branch over the Board.

In simpler terms, the Board elects the members of the Court of Appeal and the Council of State. These members together with the Ministers and the Undersecretary (natural members) and the other state authorities listed above elect the members of the “Board”. Thus the members of the Board inevitably become agents of the government. The same scenario is displayed for the constitution of the members of the Constitutional Court.

On top of the foregoing, the Justice Minister continues to be the president of the Board and the Undersecretary of the Justice Minister remains as a permanent member whereby the decisions of the Board will remain to have a political touch. Compounding this problem is the requirement for the president of the Board (i.e. the Justice Minister) to give their approval for any inspection, investigation or inquiry carried out in relation to the judges and the prosecutors. In practice, this could well mean that any judge or prosecutor who acts with political views in favor of the ruling party and whose acts deviate from legal standards may remain totally immune from prosecution if the Justice Minister (whereby the government) so desires.

The amendments have drawn immense criticism from various parts of the society, including members of the judiciary, the press, academics and most notably from the laymen. Perhaps the most striking criticism has come from the President of the Court of Appeal, Mr. Gerceker. Mr. Gerceker has expressed his view that the amendments brought by the referendum diminish the independence of the judiciary and undermine the separation of powers and hence are anti-constitutional. Given the role of the executive branch on the appointment of the members of the Constitutional Court and the revised structure and functioning of the Supreme Board of Judges and Prosecutors, it is rather difficult not to share Mr. Gerceker’s views. After all, “the independence of the judiciary has to be real, and not apparent merely”.

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