Judge says judiciary still under tutelage, implies gov't responsible

In what is seen as a significant challenge to the government, Constitutional Court President Haşim Kılıç has said the judiciary in Turkey is under a “new form of tutelage,” implying that the government is behind the tutelage.

In a speech marking the 52nd anniversary of the establishment of the Constitutional Court on Friday, he noted: “Courageous steps were taken to lift the pro-tutelage mindset with the constitutional amendment [of 2010]. A big gap emerged after pro-tutelage powers were rooted out. This gap was supposed to be filled by actions that reflect fair values and that embrace all segments of society, but we have failed to do this,” said the top judge, adding that the failure led to the emergence of a new form of tutelage. “No one should exempt themselves from the responsibility of the emergence of this [tutelage].”

Kılıç's remarks came as clear criticism to Prime Minister Recep Tayyip Erdoğan and his Justice and Development Party (AK Party) government, which have been recently at odds with judicial institutions including the Constitutional Court.

Erdoğan has been the target of harsh criticism due to his efforts to reshuffle the judiciary as his government struggles to contain a recent corruption scandal. Hundreds of judges and prosecutors have been removed from their duties and reassigned to different, often less powerful posts.

According to Kılıç, a judiciary under the tutelage of a ruling party cannot ensure the safety of the law. “Such a [judicial] system ensures the safety of the leaders [of a country] but leaves other people in states of fear and concern. If fear and concern dominate the people, they cannot act in accordance with their free will,” he stated, adding: “Fundamental rights and freedoms are universal. It is the Constitutional Court's fundamental duty to protect those rights and freedoms. This duty can only be fulfilled by members of the judiciary who manage to remain independent and objective.”

Kılıç's harsh remarks came amidst a deepening schism between the judiciary and the government over the latter's policies aimed at placing the judiciary under its control. The AK Party government passed a law in February that effectively reshuffled the Supreme Board of Judges and Prosecutors (HSYK), giving the executive branch a much tighter grip on the judiciary. The conflict between the Constitutional Court and the government took a new dimension in mid-April, when the prime minister directed harsh criticism at the court's judges after the court partially annulled the HSYK law and lifted a government-backed block on the microblogging website Twitter. Referring to the court's ruling on Twitter, Erdoğan said the Constitutional Court defended the rights of an international company instead of defending the rights of its own nation. The prime minister also said he did not respect the court's decisions.

Kılıç responded to the prime minister's criticism during his speech on Friday. “Claims that the Constitutional Court acts for political purposes and accusations that the court makes decisions that do not defend the rights of its own nation are shallow criticisms. Members of our court consider those claims and accusations as attacks on their dignity.”

President Abdullah Gül, Prime Minister Erdoğan, Parliament Speaker Cemil Çiçek, Justice Minister Bekir Bozdağ, Republican People's Party (CHP) Chairman Kemal Kılıçdaroğlu and a number of other ministers were among the audience. Throughout Kılıç's speech, Erdoğan expressed discomfort by frequently checking his watch and speaking to government officials sitting next to him. He later left the court building without attending the reception that followed the judge's speech.

‘Prove claims of parallel state'

In addition, Kılıç referred to the government's frequent use of the term “parallel state,” asking those who coined and continue to use the term to prove their claims regarding the alleged structure. “The judiciary has recently been faced with the serious and heavy accusation of being a parallel state or [even] a gang. The judiciary cannot survive [as a solid and respected institution] as long as it is associated with such a structure. Today, even the simplest court decisions are subject to discussion and the trust in the judiciary has been badly damaged. Everyone, including the judiciary and executive bodies, should put forward documents and evidence related to the claims [of the existence of a parallel state],” he stated.

Since a major graft operation went public on Dec. 17 of last year, the prime minister and a number of his government members have pleaded innocent to reports of alleged corruption and have called the investigation a “dirty operation” against the government that was orchestrated by a “parallel state” and a “gang within the state,” in a veiled reference to the Hizmet movement, inspired by Turkish Islamic scholar Fethullah Gülen.

Kılıç also voiced criticism over the government reassigning thousands of members of the judiciary and the police over accusations that they were members of the parallel state. “What is going on will go down in history. The judiciary is not and should not be a place for stepping traps against the will of the people. It is nonsense to try to fix the problem by reassigning people [who are alleged members of the parallel state] said to exist in the judiciary and the executive,” he said, adding that it is not possible for the judiciary to continue functioning as a solid and respected institution under such grave accusations.

According to Kılıç, groundless accusations against members of the judiciary represent a “corrupt conscience [on the part of those making such claims].” He advised: “Required sanctions must be imposed on those [members of the parallel state] if their existence is proven through methods that befit a state under the rule of law. We have to do this in order to allow free and independent judges and prosecutors to survive. We cannot fix our problems by intimidating others.”

About occupation of the judiciary

In yet another implicit reference to the government, the Constitutional Court president said Turkey would continue to experience serious problems as long as the judiciary remains “under occupation.”

“The judiciary is defined as the consciousness of the state. We all remember the bitter reality of what happened to society when this consciousness was occupied by the political and ideological powers of tutelage [in the past]. We will continue to experience new pains as long as this occupation goes on,” he stated. Kılıç added that a difference between the identities of those whose rights were violated in the past and those whose rights are being violated today would not lead the Constitutional Court to change its position.

“It is humane to oppose injustice. Only dignified people who defend the rights and freedoms of others can ensure the [peaceful] coexistence of differences, which serves as a guarantee of peace. The judiciary has always been considered a castle that needs to be taken over by ideological and political groups, and those groups have always wanted to impose their own tutelage system onto the judiciary. Those who have managed to occupy the castle have used the judiciary as a tool of revenge against their rivals. "It is a dream for an independent judiciary to be formed without ridding ourselves of this mindset, that is, the idea of capture,” the top judge explained.

Kılıç also slammed the AK Party government for swiftly passing a number of laws recently, which critics said were aimed at changing the legal system and even the country's political regime.

“Amendments on written laws that attempt to realize political aims do not ensure people's confidence in the judiciary. Those amendments -- which are capable of turning the economic and political spheres upside down -- are not predictable, which leads individuals to lose their confidence in the judiciary.”

The AK Party has recently drawn the ire of various circles for a number of controversial laws it passed, including the HSYK law; an Internet law that paved the way for greater control over the Internet and invasions of privacy; a law to close down prep schools; and a law on the National Intelligence Organization (MİT) that gives extraordinary powers to the intelligence agency.

Responding to questions from reporters during the reception that followed the ceremony, Kılıç said his speech reflected his sincere thoughts and identified the country's current problems. “These are my findings on our country's realities and problems,” he underlined.

Asked whether he would run for the presidential seat, Kılıç said: “I am currently the president of the Constitutional Court. I am doing my job,” effectively dismissing rumors that he has been involved in lobbying to seek a nomination for presidential candidacy.

Local media reported on Friday that his statement has been endorsed by all 17 members of the Constitutional Court.

Published on Today's Zaman, 25 April 2014, Friday