The referendum of Sept. 12 was a turning point in the 80-year democratization process of the Republic of Turkey.
In particular, the assurance that judicial independence would contribute to a real balance between the legislative, executive and judicial branches of government. The judicial system that had been monopolized by the state since the establishment of the republic, for the first time, was given the opportunity to be impartial. The appointment, assignment, and changing posts of judges and prosecutors as well as all investigative authority in case of any problem was put under the control of the Supreme Board of Judges and Prosecutors (HSYK), which would be elected by the judges and prosecutors themselves.
It was an important move for democracy and the public was a step ahead in their concern for how authority is wielded between the state and the people.
When a mistake is made in legislation, numerous innocents may be jailed in relation to the crime in question. When citizens suffer from injustice, the law is wrong.
In Turkey, when electing members to the HSYK, the legal system would be independent of the government; however, a grave situation, unexpected and unacceptable in any legal system, has emerged. It was the oversight of the principle of impartiality in the independently held HSYK elections. The Fethullah Hodja community, which makes its presence strongly felt in state institutions, has created a virtual community monopoly over the HSYK through successful organization, outwitting political circles during the elections. Somewhat independent of the state, the HSYK system has thus been caught by the group and has lost its impartiality.
While fighting against Ergenekon, the government and the legal system created specially authorized courts (ÖYM). Chief judge positions and effective tasks were given mostly to judges and prosecutors from a certain group.
While fighting against Ergenekon on the one hand, the ÖYMs were entrusted with great authority that - just like the independence tribunals - have started to pose a threat to those who do not sympathize with the Fethullah Hodja movement on the other hand. Operations such as creating crime and discrediting and sometimes threatening various persons and organizations using the natural authority of the court have started to emerge. Complaints by society during the Ergenekon period were not often expressed due to psychological threats and pressure, as was the case in military coup periods.
Extreme legal practices were mentioned in the media from time to time, but the events were forgotten a few days later.
The cases of Hanefi Avcı, Ahmet Şık, Nedim Şener, Fenerbahçe, Deniz Feneri, Cübbeli Hoca, Okyanus, Metro and even the espionage case tried in İzmir are very similar to each other, and each case has separately led to great debates among the public.
With regard to the Dec. 17 process, the legal system was biased in the hands of a group that has attempted to overthrow the entire legitimate civil government, leaving aside discrediting several persons and institutions, and having the false idea that it has the power to do that. Together with the Dec. 17 process, not only can it be seen that the legal system, but also the police have been so monopolized that it would not accept orders within its own hierarchical structure. The government has avoided the civilian coup danger by calmly taking measures. And it has reinforced its position by receiving great support from the public in the elections. The Turkish legal system, which was seriously problematic and unable to gain the full trust of citizens in previous years, has become a frequent subject of debate. In GENAR's survey on trust in institutions, the trust in the assembly is 70 percent, in the government 60 percent, while trust in the legal system is 38 percent. However, the legal system must be the most trusted institution in a society. The government must introduce a new legal reform project to the public.
People need legal reform to re-establish trust in the legal system, discussed by NGOs and universities, participated by the society and supported and approved by everybody. As citizens, we wish not only an independent but also an impartial legal system. Maybe following discussions concerning legal reform, the demand for a new constitution can be put on the government's agenda.
About the author
İhsan Aktaş is Chairman of the Board of GENAR Research Company. He is an academic at the Department of Communication at Istanbul Medipol University.