The problem with Turkey's justice system

On Oct. 12, the Supreme Board of Judges and Prosecutors (HSYK), the administrative and disciplinary body of Turkey's legal system, will hold a critical election. In Turkey, prosecutors, like judges, are presumed independent and the two groups, therefore, fall within the jurisdiction of a single institution. This approach to the status of prosecutors is quite probably unique to our country.

The election, thus, relates to the future membership of such an institution. The HSYK has 22 members, two of whom, the minister of justice and the undersecretary, qualify as ad hoc members. Four others are appointed by the president while the Justice Academy contributes one board member. The Council of State and the Court of Appeals pick two and three names respectively. The remaining 11 seats are filled from among first-class judges and prosecutors. Parliament, meanwhile, provides no input into the election. Similarly, the president is entitled to appoint only four members. Candidates endorsed by the Council of State, Court of Appeals and Justice Academy as well as contenders from among first-degree judges and prosecutors compete in direct elections.

In other words, it is impossible to legitimize the electoral process with reference to democratic and representative institutions. The arrangements mentioned above obviously raise questions about the HSYK's democratic legitimacy. Despite certain improvements stemming from the 2010 constitutional referendum, the institution's current composition remains highly problematic according to European standards. Seventeen out of the Supreme Board's 22 seats are allocated to judges. Despite a lack of common European standards with regard to this specific arrangement, the Venice Commission would presumably find it problematic.

Although the Venice Commission tends to favor a major role for judges in such institutions, a two-thirds majority tends to create problems such as avoiding the perception of self-interest, self-protection and cronyism. As such, the HSYK's current composition represents a case of disproportionate representation according to the Venice Commission guidelines.

Another key question relates to the accountability of judges. Considering the disproportionate appropriation of HSYK seats, the institution has been largely unable to address the need to hold judges accountable when necessary. The 2010 constitutional referendum has also failed to tackle this pressing problem that has persisted since the HSYK's establishment. Judicial independence, however, cannot be isolated from the power of the people. A judiciary that cannot be held accountable ceases to uphold justice.

Finally, the Turkish judiciary's strong hierarchy and rigid centralism causes serious problems. An institution organized along the aforementioned principles inevitably finds itself at the center of power struggles. It goes without saying that all organizations seeking to accumulate power are inherently attracted to the judiciary - a mechanism with metaphysical references and the ability to design political institutions and even overthrow governments, yet with no need to account for its own deeds. This leaves no motivation to ensure justice, decrease work load or for personal career planning. In fact, those who are in a position to judge become estranged from their judicial position and the judiciary becomes the playing field of power struggles.

This has led the Gülen Movement, one of the country's most secretive and covert organizations, to seize control of key positions within the HSYK. They could not, however, attain their alleged goals due legitimacy. Considering the heavy losses that the movement encountered at all levels of government after attempting to overthrow the administration through the Dec. 17 and Dec. 25 corruption operations, Gülenists have no choice but to win the upcoming HSYK election to reclaim their past glory. This election, therefore, will determine whether or not the judiciary will take initiative to force out covert and outright dangerous organizations such as the Gülen Movement. Regardless of the outcome, the need to reform the nation's judiciary remains clear as day.