Judicial independence — what Turkey must learn from India

The G-20 Summit does give Turkey an opportunity to learn from the mature democracies, particularly India, as far as the appointment of judges and judicial independence are concerned. Last month, the Indian Supreme Court in a bold decision struck down the constitutional amendment on the establishment of the National Judicial Appointment Commission where the federal law minister was made just one of the six members of the commission. The Turkish government must accept that the independence of the judiciary is a cherished right of citizens and not a private right of the judges themselves. The Nov. 10, 2015 report of the European Commission has also noted an alarming decline in judicial independence since 2014 and has recommended reducing the role of the justice minister in the Supreme Board of Judges and Prosecutors (HSYK).

Even in other democracies the government attempting to place pro-government judges is not a new phenomenon. British judge Justice Wills in Lee vs. Bude observed, “We sit here as the servants of the Queen and Parliament.” But then the supremacy of parliament and not the constitution is the first principle of British law. Even in the United States there is a heightened focus on ideology, which leaves the impression with the public that judges are not independent and impartial, but ideological and partisan. The Indian Supreme Court’s decision, which denied any role to the government in judicial appointments, is praiseworthy as the new government is indeed sympathetic to the ultra-right Hindutva ideology of one religion, one language and one country, and rejects the diversity of the country.

It is a shame that the former Supreme Court of Appeals president in Turkey, Sami Selcuk, had to painfully say: “I have always been proud of being a Turk. However, they are destroying this pride. On behalf of the public, I am disturbed by the existence of such a judicial system. We are approaching the Turkish Republic’s 100th anniversary, but we have still not established a proper judiciary in the country.”

In a modern democratic society, it is no longer acceptable for judicial appointments to be in the hands of the executive. Ultimately, judicial legitimacy (and power) rests on public confidence in the courts, in the judges themselves and in their decisions.

The independence of the judiciary is the most cherished goal of any legal system, and the process of the appointment of judges is rightly seen as a crucial mechanism to achieve this goal. Judges must be independent of the executive and in their ideology. If judges owe their appointment to someone, they cannot be relied upon to deliver impartial and quality decisions. Every other day the judiciary is called upon to adjudicate the lawfulness of government actions. Thus the judicial appointments system must be, and must be seen to be, independent of the government. It must be transparent. It must be accountable. Turkey, which wants to join European Union, has to ensure the same level of judicial independence as is available in the countries of Western Europe in order to strengthen its claim to EU membership. The former chairman of the Turkish Constitutional Court, Hasim Kılıc, has stated that judges today are in constant fear of being relocated and thus cannot discharge their duties impartially and fearlessly.

As to the evils of the government’s influence on the appointment of the chief justice of India, Justice Tulzapurkar, a widely respected retired judge of the Indian Supreme Court, rightly observed that “sycophantic chief justices” were a threat to the independence of the judiciary because they could easily pack the court or withdraw cases from one bench to another. Indeed, nothing impacts the outcome of cases more than the constitution of benches. The Indian judiciary has come through with flying colors in successfully blocking governmental initiative from having a say in the appointment of judges. The Supreme Court of India in its 1,030-page judgement gave detailed treatment to the idea of independence of the judiciary to conclude that independence of the judiciary is the basic feature of the constitution which necessarily includes the appointment of judges with primacy to the opinion of the chief justice of India, and since basic features of the constitution cannot be changed, even by a constitutional amendment, a new law passed with rare unanimity in parliament and duly ratified by more than 20 provinces is unconstitutional.

Justice Khehar, the presiding judge of the five-judge bench, in his 440-page judgment of Oct. 16, 2015, elucidated the issue of government influence on judges at length and expressed his genuine concerns about what he called the “culture of reciprocity.” Human beings do live in a “web of indebtedness.” He quoted several authoritative sources to bring home the point that government favors do generate feelings of obligation and the desire to reciprocate. He observed: “Reciprocity, and feelings of pay back to the political-executive, would be disastrous to the independence of the judiciary. [With] The participation of the political-executive, the selection of judges, would be impacted by political pressure and political considerations.” In the Indian cultural scenario, an act of not reciprocating towards a benefactor would, more often than not, be treated as an “act of grave moral deprivation.” When the favor extended is as important as the position of judgeship in the higher judiciary, Justice Khehar observed that “one would best leave it to individual imagination, to determine the enormity of the reciprocal gratitude and loyalty.” Even B.R. Ambedkar, the father of the Indian constitution, was worried about the adverse impact of political pressure on judges due to the executive’s participation in the appointment of superior judges. Turkey is lately falling into this trap of reciprocity with the government assuming for itself a decisive say in judicial appointments and with the government creating fear in the minds of the judges as to their appointment, transfer and even arrest. Security of tenure has become a distant dream.

The basic principle of the independence of the judiciary is stated in Article 138 of the Turkish Constitution: “Judges shall be independent in the discharge of their duties; they shall give judgment in accordance with the Constitution, laws, and their personal conviction in conformity with the law. No body, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions.” It further provided that “no questions shall be asked, debates held, or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial. The legislative and executive body and the administration shall comply with court decisions; these bodies and the administration shall neither alter them in any respect, nor delay their execution.” In many cases bail orders passed recently by judges were not implemented, and in several cases prosecutors refused to sign the lawfully passed judicial orders for the release of illegally detained people.

Article 139 similarly gives security of tenure. It says: “Judges and public prosecutors shall not be dismissed before the age prescribed by the Constitution.” Turkey has a tripartite judicial system, divided into judicial, administrative and military jurisdictions. Judicial courts deal with civil and criminal cases. Administrative and tax courts deal with cases brought against the executive branch of government in relation to implementation of legislation. The Constitutional Court, established in 1961, sits above these courts. It reviews the constitutionality of laws and decrees. It also has the power to review constitutional amendments, but on the grounds of form only. The court comprises 17 members, 14 of which are appointed by the president from candidates nominated by lower courts and the Higher Education Board (YOK), and three of which are elected by the assembly. Parliament passed a controversial law that restructured the Supreme Board of Judges and Prosecutors (HSYK), an autonomous body mainly of judges that admits and appoints judges and public prosecutors. The method of selection of its members set out in the Constitution was the subject of a constitutional amendment in 2010, as was the law on the HSYK, of which the Constitutional Court subsequently found a number of provisions unconstitutional and thus null and void.

On Dec.17, 2013, more than 50 suspects of bribery and corruption in the award of government contracts were detained by the police, including three sons of Cabinet ministers, a municipal mayor from the ruling party, the general manager of the largest state-owned bank and a high-profile construction tycoon. The police officers, prosecutors and judges (Judge Ozcelik and Judge Baser) who had handled this major scandal were subsequently suspended, transferred and dismissed. The two judges were in fact arrested for staging a coup and for being involved in terror crimes. On May 1, 2015 the judges were arrested and detained by the Bakırkoy 2nd High Criminal Court on charges of “attempting to overthrow the Turkish government or hindering the government’s operation in part or full” and “being a member of an armed organization.”

In June 2014, the government issued a decree, replacing approximately 2,500 prosecutors and judges, including the deputy chief prosecutor in Ankara and a number of chief prosecutors across Anatolia.

The European Association of Judges (EAJ) in its May 16, 2015 statement condemned the illegal arrest of the judges and called for their immediate release: “Any attempt to undermine the freedom of a judge to establish facts and apply the law in a particular case constitutes a clear breach of judicial independence.” The Judges and Prosecutors’ Association (YARSAV) also condemned the arrest of the judges, stating that two judges being arrested over the decisions they made is an “intimidation message” from the government to all Turkish judges. Even Hikmet Sami Turk, former justice minister, stated that the arrest of the judges “shows that Turkey has entered a period during which judges will no longer be able to give verdicts independently in line with the Turkish Constitution, the law and their personal conviction. No judge can be arrested, and they should not have been arrested for the verdicts they gave.”

In February 2014, the Turkish government passed new legislation to transfer to the minister of justice the power to appoint judges, the management of judicial disciplinary investigations and the selection of judicial training personnel and HSYK staff. In April 2014, the Constitutional Court found most of the new provisions of HSYK law no. 6524 unconstitutional and gave the legislature a deadline of three months to adopt revised legislation. The court held that the new powers given to the minister of justice “transformed the [HSYK] into a Directorate General factually affiliated and dependent upon the Ministry of Justice” and was contrary to the principle of the independence of the HSYK set out in Article 159. However, the Constitutional Court’s decision did not have retroactive effect, and therefore the members of staff who had been dismissed were not re-appointed and the new appointments were not rescinded. On June 20, 2015, the Venice Commission, an advisory body of the Council of Europe, issued a “Declaration on Interference with Judicial Independence in Turkey,” which criticized the new amendment giving a prominent role and powers to the minister of justice and condemned the arrests of judges.

In view of a recent ruling by the Indian Supreme Court to go back on its constitutional court’s changes to the role of the justice minister and enlargement of his powers following international outcry against measures which interfere with judicial independence, the Justice and Development Party (AKP) government must abandon its plan of amending the constitution to give greater control to the legislature and the president in the appointment of judges. With a lack of trust in the government, let us not allow the justice minister too much say in judicial appointments. Let Turkey learn from other mature constitutional democracies and conform to the classic Islamic ideal of independence of the judiciary.