What happens recently at The Supreme Board of Judges and Prosecutors (HSYK), in the heat of the moment urgently reminds again why the constitutional reform package which will be put to a referendum on Sept.12 is significant.

The five members of the Board apart from politicians have been seen to attempt some appointment operations that will help them get the desired consequences from the desired cases with surprise ordinances. Erzincan Chief Public Prosecutor İlhan Cihaner, whose trial continues and who is obviously known to have ideological and organic connections with them, has been wanted to be appointed to the vacant and extremely critical position, which is the position of Ankara Attorney General. Furthermore, by forming substitute memberships for special courts and by trying to appoint chosen people to these memberships, the Board is after creating interference areas in Balyoz and Ergenekon cases. As a matter of fact, in these cases that after their arrest the accused are released is all a product of this kind of members’ capability.

After all it is a Board; there is no hindrance for their making a restriction in witness of the rights and authorities given by the constitution; yet the political implication of these acts draws the attention and it is understood that there is an obvious intention and aim of the authority used in legal boundaries.

In Cihaner case, that the HSYK shows sensibility in order to resist an unjust treatment is a very tear-inducing act as long as the Board shows the same sensibility for other judges and prosecutors. However, keeping judges and prosecutors such as Sacit Kayasu, Gültekin Avcı, Reşat Petek, Ferhat Sarıkaya under control the Board, shows sensibility for Cihaner case and it is by no means directed towards the contribution to the rule of law. On the contrary, it proves that having the authority to control jurisdiction the Board, has no function but forming its operational teams for the desired cases.

Indeed, in terms of their modes of election and job and authority definitions, this outcome is not surprising. The appointments and promotions of all judges and prosecutors in Turkey’s jurisdiction system, are all shaped by this Board with five (+2) people. In the first place there is peculiarity in the fact that both judges and prosecutors are appointed by the same board. The appointment of both prosecution and jurisdiction by the same hand, vitiates the fair judgment process fundamentally. This is a perverting authority which allows for ordering the desired outcome in any case. The incredible law scandals occurred in our recent past, did not have an effect on those who made these decisions; accordingly it implies that the real law-breaking in our legal system should be analyzed from this perspective.

Today it is claimed that the new constitutional reform, which will reconstitute the structure of the HSYK, will attach jurisdiction to the government; however the truth is that jurisdiction will be more autonomous by being responsible towards both the government and other bodies, particularly the HSYK.

Indeed, the judges and prosecutors from the courts, where there are real legal processes, do not criticize the constitutional reform; because the pressure they feel is not politics, but the HSYK to which they cannot make a contribution during the election of members. We have said many times that the rule of law does not mean the rule of lawyers; yet I suppose it is not possible to say this in Turkey; because the point in discussion is not actually the rule of lawyers, but the rule of five members of the Board. Apart from this, innumerable accounts on the fact that among the judges from local courts bringing or continuing a lawsuit despite the HSYK is not possible, can be heard.

With the constitutional amendment, which will be put to the vote on Sept. 12, it is crystal clear that the HSYK will be much closer to the standards in contemporary states. The number of HSYK members will be increased to 22; moreover besides the current members, the election of 10 members among and by the local court is proposed. With the members elected by the JusticeAcademy and the President, there will be a pluralistic composition in the structure of the HSYK, on which no political party and administration will easily have control on their own. What is more, by enabling different bodies to deal with judges and prosecutors, the way to control both (judges and prosecutors) by the same hand will be blocked.

Those with “no” votes keep themselves away from discussions about the content of the constitutional reform package and oppose it by claiming that generally the AK (Justice and Development) Party will provide benefit from it. And this is not incomprehensible. This is not actually about the benefit provided by the AK Party, but panic. The real panic is that they feel jurisdiction in their hands and unlike in the past they will not be using their authority which is not gained by elections or democratic ways.

It is indeed worth objecting. Sure enough they have been losing jurisdiction which is controlled like a property of their own.

(Published on Yeni Şafak [newspaper] on August 14, 2010).