August 12, 2010
RIZA TÜRMEN (Former Judge at the European Court of Human Rights, Council of Europe – Strasbourg)
Milliyet – February 22, 2010
The arrest of Erzincan Chief Public Prosecutor İlhan Cihaner has indicated dangerous dimensions of polarization in Turkey. We cannot agree on even the most basic fundamentals such as “democracy,” “independence of judiciary,” and “separation of forces.” Each group is trying to exploit these concepts according to their own ideology. Everything is turning out to be a tool for something; the democracy and judiciary are no exceptions. But, they are not tools. They are objectives.
Another thing about the Cihaner discussion is that such notions have not been settled in Turkey yet. And that starts a nonsense discussion over priorities. Which is first, democracy or judiciary? Or what is the priority, independence of judiciary or neutrality?
The above concepts, however, are inseparable, interconnected and parts of a whole.
Democracy today is not just a parliament and a government elected. It is a system of values consisting of pluralism, human rights, law state, and separation of forces and independence of the judiciary. The separation of forces aims to prevent authority shifts and the government from being the only power. This is done through an independent judiciary. Boundaries of a government are drawn by judicial control and the government is forced to remain within the limits of law. It is wrong to see this as limiting people’s power by judges. The judiciary, here, makes decisions in the name of the people, provides people a mechanism to keep the government within the legal system.
In democratic law states, law is not a mean for politics, but a legitimate source of politics. This is the most critical question in the Cihaner incident.
What he was told, however: “You cannot apply law everywhere. If you apply the law on gold mines and religious communities, you will be in trouble.”
The judiciary and judges must be independent. The judiciary and judges must be independent of political power, of the judiciary and of their own thoughts even. On the other hand, impartiality and independence are inseparable. The goal of independence is neutrality. Could a judiciary dependent on the government be impartial? The European Court of Human Rights, in all its decisions, takes up neutrality and independence together.
A concept has been developed in Turkey that “The judiciary is acting ideologically not neutrally. Its dependence on the government at times is justifiable.”
We may criticize court decisions. But thinking “there is judicial tutelage, so let’s stop independence of the judiciary and free ourselves from tutelage” is extremely dangerous in terms of democracy.
In the incident involving prosecutor Cihaner, the government reacted against the Supreme Board of Judges and Prosecutors, or HSYK, for stripping off special authorities of the prosecutors assigned for a particular case. The government wrongly read this as “intrusion of authority.” That started the crisis.
About a problem that needs to be solved within the judiciary, the government takes side. But this is against the separation of forces principle. Besides, it has raised doubts that the prosecutors who are ripped of special authority have close ties with the government.
The justice minister is in a difficult position as well. He is a member of the Cabinet on one side and the chairman of the HSYK on the other. He preferred to wear the first hat in this particular case and threw away the second. If the justice minister quits the HSYK chairmanship, I think both he and the board will be relieved.
Article 159 in the Constitution allows judges and prosecutors to “grant temporary authorities” or “suspension of duty.” The HSYK Law, numbered 2461, regulates these permissions in detailed fashion. In this case, could it be possible to claim that the HSYK attempted “intrusion of authority”?
The HSYK possesses some certain authority while exercising its power. If the board has determined that the said prosecutors stepped out of their capacity, we should have respect of the HSYK’s decision.
If we want an independent and impartial judiciary, can we not leave the judiciary alone a little?