Judiciary being forced to prostrate

According to Article 138 of the Constitution: “Judges shall be independent in the discharge of their duties they shall give judgment in accordance with the Constitution, law and their personal conviction conforming with the law.

No organ, 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.” The Constitution also states: “Judges and public prosecutors shall not be dismissed or retired before the age prescribed by the Constitution.” These lines from the Constitution express the guiding formula for rulings on this front.

Alright, but what is the de facto situation in Turkey? Sadly, it appears that Turkey is now facing a deep crisis where its justice and legal system are concerned. The ruling political powers have expertly tried to manipulate public perception to make it appear as though the judicial system tried to carry out a coup against them. In this way, the justice system was placed under the domination of said political powers. The result is that members of the justice system can no longer comfortably breathe. It is not just the political leadership but those under their control and the media that is linked to them as well who now issue orders, advice and threats to members of the judicial system.

Moreover, despite it being anathema to the Constitution, judges and prosecutors whose decisions displease the political powers in Ankara are being banished from their positions and replaced by judges and prosecutors liable to make decisions more amenable to the political leadership.

And so it is that Turkey is now witnessing the scene of judges and prosecutors trapped between their conscience and their lives. Fully aware of what the law and their conscience require of them, prosecutors are forced to engage in personal moral calculations, pushed into a corner as they realize that a failure to sign off on certain decisions desired by Ankara will have dire consequences for them.

History repeats itself

Back on May 27, 1960, Judge Salim Baiol, who handed down the orders for the executions of 15 people from the Democrat Party (DP) at the Yassiada trials, replied to an appeal for the release of Prime Minister Adnan Menderes, who was later executed, with these words: quotBut this is what the powers who have placed you here wish for.” Those words from Judge Baiol are not so very different in character from the sentiments expressed by the state prosecutor after the 32nd Criminal Court of First Instance rendered a decision to have Hidayet Karaca and imprisoned police officers released: “If I sign off on this decision, they’ll kill me.”

In Baiol’s words, we see signs of a character that anticipates the pleasure and even the rewards he will receive from his tyranny. It is pertinent to point out that the judge was later made a member of the Constitutional Court. The prosecutor’s words reflect a man who has more difficulty carrying out his tyranny, but who will, in the end, be rewarded for his actions as well.

Strikingly, the same conservatives who condemned the courts and the judges involved in the decisions handed down by the May 27 Yassiada trials now appear to have undertaken the same roles they once vociferously condemned. By bowing down to an authoritarian power by remaining silent and/or passive in the face of tyranny, they are helping to massacre the law and forcing innocents to suffer.

There is essentially no difference between the members of the justice system who gave standing ovations at the briefings given by coup-plotters involved in May 27 and Feb. 28, 1997 and the justice members who salute the civilian coup-plotters of today. This is odd when one recalls that the conservative masses and press used to love loudly condemning members of the justice system in earlier eras. Something drastic must have changed for them to now herald their support for these members of the justice system who back the government. I believe the answer is quite simple really: Material goods have rotted some of the conservative factions. And since they do not live according to their beliefs, their beliefs have shifted to reflect how they live. Measures and judgments of values have changed. And since they have taken as role models the very same tyrants who they condemned in the past, they now accept it as normal that they would behave as these tyrants once did.

We have always had some fair judges and prosecutors

During the single-party era when Bediuzzaman Said Nursi and his students were tried and condemned to death in court, there were two fair judges — Ali Riza Balaban and Hesna iener — who were able to hand down acquittals rather than execution sentences, even though the era — 1943 — was one in which tyranny ran deep.

In later eras in Turkey, there were also brave and fair judges who were able to hand down courageous decisions. These were judges who believed in their hearts that “On Judgment Day, when there are no shadows, one of the seven categories of people who will stand in the shadow of God will be those judges who rendered fair decisions.”

For this reason, this class of judges never swayed from true justice they had no concern for their wallets or their lives. They did not sell out themselves, their religion or their conscience. They rendered decisions according to the Constitution, the law and their conscience, paving the way forward for a new generation. Our generation was in fact raised on the stories of these judges. And our prayers have always been offered for them. They are seen by many as role models and ideal humans.

We saw similar things during the March 12, 1971, Sept. 12, 1980, and Feb. 28, 1997 coups, when there were always some judges and prosecutors who acted fairly and honestly despite others in their professions who did not.

At the same time, the downtrodden in society have always maintained a belief in the existence of fair judges and fair trials, even if they come late. And to wit, justice has generally been served through the ages. Perhaps the biggest proof of this is the fact that today’s tyrants were in fact the oppressed of the past.

Today, I still maintain my own personal belief that there are some fair judges and prosecutors around. The judges and prosecutors involved in the Ergenekon and Balyoz cases are prime examples of this. They acted with great courage and self-confidence. As did the prosecutor who investigated the National Intelligence Organization (MiT) trucks and, in the most recent case, the judges who ruled to release detainees in the 29th and 32nd criminal courts. I am proud of these people who prove that there is hope for the future.

The justice system has no clothes!

We are at a critical juncture in our history today, much as we witnessed when the infamous April 27 e-memorandum was issued by the military in 2007. In the past, it was the military that tried to overturn our civilian governments today, we are witnessing civilian politics carrying out a coup against the justice system. This is how it will be remembered in the future.

The fact that prosecutors refused to comply with court orders to release Karaca and the police officers — thus trampling on some of our most basic and essential legal principles and violating our Constitution — is a disgrace of incalculable dimensions. Moreover, there is no example or precedent for this in the legal history of the world.

In fact, it appears Turkey, through these transgressions on the part of the prosecutor, have given world legal literature an entirely new concept to talk about.

As a result of these latest events, what we see emerging is the stark truth that our system is no longer able to hand down justice and that our people have been fooled into thinking it could. In the meantime, as the world around us is able to perceive this very basic truth of just how things are, I find it ridiculous that some members of Turkish society — some leftist factions in particular — are still portraying the entire situation as one that concerns a fight between the government and the Gulen movement.

President places final note on matter: Justice system is tied to me

In the end, President Recep Tayyip Erdogan expressed quite openly his criticism of the judges of the 29th and 32nd criminal courts, noting in reference to the two men: “The [Supreme Board of Judges and Prosecutors] HSYK has acted late on this, but it will make its decision.” In other words, he meant to say, the HSYK will do its job those judges will be removed from their jobs. He said this without even feeling the need to hide his intentions!

To wit, just half-an-hour after Erdogan spoke, Mehmet Yilmaz, the president of the 2nd Chamber of the HSYK, which ordered the two judges removed from their positions, made this interesting statement: “I apologize to the public. We were late in making our decision.”

And so we face the smoking ruins of a collapsed justice system, one that is unable to deal with fair judges who render decisions based on the Constitution, the law and their conscience. It appears that decisions are no longer rendered in courtrooms, but rather in political and crisis centers and only after permission is granted from up high. The focal point of our justice system is no longer justice itself. This means, by connection, that the very foundation of our state is shaken and no one is safe any longer. Where justice does not exist there can be no morality and no humanity collapse, dissolution and anarchy begin at just such a point.

At the same time, I do hold some hope that those who are aware of these truths — especially those judges and prosecutors who operate on the basis of the law and their conscience — will not ignore the dangers that face us and will continue to refuse to allow justice to be replaced, thus standing as an example to future generations. It is these sorts of people who will be crucial in helping rebuild our system and the faith that people must place in it.

*Sami Karahan is a member of the Faculty of Law at Marmara University.

SOURCE: TODAY’S ZAMAN