Roadblocks to Judicial Reform

Prime Minister Erdogan announced last Sunday that the contents of the mini-democracy reform package will be released to the public and introduced to parliament by the end of the month. The prime minister presented the package as in line with the EU harmonization process, arguing the reforms are necessary to secure Turkish accession. He also said the Turkish public should get used to referenda, re-stating the AKP's plans to take the package to a public vote once it is voted down in parliament.

The government argues reforms are based on universal criteria instrumental to a healthy judiciary that respects democracy and the rule of law while opposition parties and the judicary argue they are part of a process by which the AKP is trying to consolidate its power by undermining the "independence of the judiciary." While problems with the Ergenekon investigation have raised concerns about the AKP's own understanding of an "independent judiciary," it seems only a small sector of citizens would argue that the judiciary is truly independent.

Since the package will contain numerous constitutional amendments, the AKP needs at least 367 deputies to vote for passage; however, with 330 votes the AKP can take the package to a referendum (it ha 337 deputies, and is likely to gain the support of the Kurdish Peace and Democracy Party (BDP). The CHP and the MHP have stated they will not support the initiative, and the CHP has said it will take any amendment to the Constitutional Court for annulment (this is a right reserved for political parties under the Turkey's current constitution). Moreover, CHP leaders this week announced their plans to challenge the constitutionality of any attempt to hold a referendum, vowing to challenge any referendum at the Supreme Election Board(YSK). In a shaky legal argument that resembles the infamous "367 rule" the CHP puled out of its legal hat to oppose the election of President Gul (for details, see ), the CHP is arguing that the recent law parliament passed to reduce the timeframe for a constitutional referendum from 120 to 60 days requires at least one year to go into effect, during which time the government cannot hold any referedum whatsoever. The CHP is asserting that the referendum law falls under the Elections Law, which under the constitution requires a period of one year to go into effect; however, the AKP asserts that the law falls under the Referendums Law, for which there is no such constitutional prescription. (The bill was initially to reduce the time between a parliamentary vote and a referendum to 45 days, though the Parliamentary Commission changed the bill to 60 days after the YSK said 45 days did not allow it adequate time to prepare for an election.)

Additionally, in a bold, intrusive move, President of the Supreme Court of Appeals Hasan Gerceker said on Friday that the judiciary would not support AKP-proposed reforms to the Supreme Council of Judges and Prosecutors (HSYK), a key part of the reform package and a continually re-stated condition for the satisfaction of EU criteria for Turkish accession. Constitutional Court President Hasim Kilic has said the Constitutional Court may reject the package unless the government reaches a political compromise with the opposition and the judiciary. Obviously, such statements speak to the very need for judicial reform in Turkey as it is unacceptable in any democracy governed by the rule of law to have judges throwing around their judicial weight as a means of garnering a particular political compromise or solution. Kilic has said previously that he cannot review the reform package since amendments may eventually find their way to the Court.

The HSYK currently consists of seven members -- five from the Supreme Court of Appeals and the Council of State, and two from the Justice Ministry (the Minister, who heads the Council, and the undersecretary). Gerceker has said the representatives of the Justice Ministry should be removed. AKP officials have said they will propose to increase of the HSYK's membership to 21 members, three of which will be appointed by the parliament. Other members will continue to be appointed by the judiciary or by the president. Opposition from the judiciary argue that allowing the parliament a role in choosing appointees will politicize the judiciary.

Among other reforms the mini-democracy package is to include are an office of ombusdman (once vetoed by President Sezer and another time annuled by the Constitutional Court), the Political Parties and Elections Law (including the 10 percent threshold parties must meet to enter parliament, and even more important, law on party closures), law to make military officials accountable to civilian courts, the Foreingers and Refugees Laws (made in line with a recent initiative to conclude a re-admission agreement with the EU on refugees that enter the EU through Turkey, and including a commission on refugee and migration matters to be administered by the Interior Ministry), collective bargaining rights for public servants, affirmative action (for women, children, and the elderly), and laws pertaining to the protection of personal data.

While these plans are ambitious, they are not as ambitious as a new civilian constitution, which some EU officials have stated is a prerequisite to membership. Nonetheless, opposition parties and the judiciary will evidently remain flatly opposed. If a referendum even happens, it is unclear whether the judiciary would uphold the results, much more not subject reforms to review under the current military constitution. Yet, the government is moving boldly forward, as it will have to continue to do if reform is going to happen. The return to using the EU as leverage for reform is welcome, and though it is nowhere near as valuable a tool as it once was, if played right, perhaps the government can reinvigorate support for the accession and reform processes, which as I have before argued, are intimately and inextricably linked to one another.