Today’s Zaman, Turkey
May 24 2009

Overreaching judges blamed for politicization of justice system

Although not much of a surprise for those with a political diary in
Ankara, the national agenda in the fast-paced capital picked up on
another familiar issue — the politicization of the legal system —
when an Ankara court came down with a very controversial ruling
stipulating that President Abdullah Gül should stand trial in a
decade-old fraud case, a decision most jurists consider to be a clear
violation of the Constitution.

Against the prosecutor’s recommendation made earlier that the case
should be dismissed, the Sincan 1st High Criminal Court decided last
week that President Gül should stand trial for allegedly
committing fraud while a member of the now defunct Welfare Party
(RP). The ruling has certainly resurrected legal controversies of the
past in which the Constitutional Court, the nation’s highest court,
denied Parliament the right to exercise its authority to elect the new
president by issuing a notorious 367 quorum decision which many
scholars declared as lacking legitimacy. The top court was also
accused of judicial activism by stepping on the toes of legislators
when it annulled a popular constitutional amendment allowing women to
wear the headscarf in public places. Despite a clear constitutional
ban of judicial review for constitutional amendments on anything but
procedural grounds according to Article 148, the court went ahead and
asserted its
jurisdiction, evaluating and then invalidating the contested
amendments on the basis of substance rather than procedure.

Many in Turkey now warn that, when added altogether, these cases may
risk eroding the legitimacy of the justice system in Turkey and might
polarize public institutions in the ensuing highly divisive
environment. Never-ending confrontations stirring public controversies
between liberals and conservatives on the one hand and hard-line
secularists and nationalists on the other continue to hurt the country
and divert its energy away from much-needed attention to
economics. The only solution left for the Turkish judicial system is a
complete overhaul — especially of the top court — and greater
involvement of Parliament as a collective representative body of the
various segments of Turkish society, many pundits advocate.

`The Constitutional Court must reflect the values of the people to
some extent. It should not follow the inevitable changes in the
popular mood, but its decisions must take into account the fundamental
values of the community,’ said Herman Schwartz, a professor at the
American University Washington College of Law. Speaking to Sunday’s
Zaman, Schwartz emphasized the importance of Parliament having a say
in the top court’s proceedings in one way or another.

`I believe that the legislature should be involved in some way,’ he
said. `There must be a way in which the most popular branch of the
government has its views reflected to some extent in the workings of
the Constitutional Court.’ Schwartz dismissed the argument that
Parliament’s involvement in top court nominations will lead to a
stalemate in the political system.

`The experience in other countries with parliamentary systems is that
a variety of methods, most of which involve the legislature in one
form or another, are quite workable. Those can involve a combination
of representatives from the judiciary, the president’s office and the
legislature, perhaps with the legislature represented by the prime
minister and the leader of the opposition,’ Schwartz noted.

Sincan court’s poor record and a controversial judge

As expected, last week’s ruling by the Sincan court triggered a heated
debate over whether courts in the country are increasingly politicized
and if judges are increasingly leaning toward political affiliations
when it comes to decision making on the benches. Some even questioned
the timing of the ruling as it coincided with the president’s
announcement on new and bold initiatives to solve Turkey’s Kurdish
problem. `I don’t think the real issue is whether Gül should
stand trial or not here. I believe the decision of the court may be
linked to Gül’s efforts to heal the Kurdish issue,’ Mehmet
Altan, a columnist and author, told Sunday’s Zaman.

The poor track record of the Sincan 1st High Criminal Court is another
indication that the court is highly politicized. According to one
account published by a daily last week, in the last four years, only
24 of 185 rulings of this court were upheld in an appellate court. In
84 cases, the Supreme Court of Appeals rendered the decisions handed
down by the Sincan court null and void. In 18 cases, it upheld some
portions of the ruling while canceling the rest. The appeals court
sent 11 cases back to Sincan for problems of technicality and ruled
that the Sincan court did in fact have jurisdiction in 39 cases that
were dismissed earlier based on no jurisdiction rulings by the court
itself. The appeals court rejected nine cases, citing that they were
not properly filed by the lower court.

The ruling has problems on procedural grounds as well. It was found
that the court had accepted an appeal petition a month after the
period for filing had expired. Stressing that the Turkish Penal Code
(TCK) specifically prohibits filing motions after the statute of
limitations expires, Servet ArmaÄ?an, a professor of law, said
the ruling will certainly be overruled in an appellate court.

Another issue raising eyebrows in the case focuses on the chief judge
himself. It appears this ruling is not the first controversial
decision handed down by Osman Kaçmaz, the head of the Sincan
1st High Criminal Court. He previously overruled the dismissal of a
case over a campaign by Turkish intellectuals to apologize for the
killings of Anatolian Armenians in 1915. He also overruled a decision
by the Ankara Chief Public Prosecutor’s Office on the wiretapping of
criminal suspects. This decision was made after a petition was filed
by Ã-mer Faruk EminaÄ?aoÄ?lu, the head of the Judges
and Prosecutors Association (YARSAV), known for his staunch opposition
to the ongoing investigation into Ergenekon, a criminal network
charged with plotting to topple the government.

The same court also overruled the dismissal of a case against Prime
Minister Recep Tayyip ErdoÄ?an over his alleged use of the term
`esteemed’ to refer to Abdullah Ã-calan, the jailed leader of the
outlawed Kurdistan Workers’ Party (PKK) terrorist organization.

President rejects ruling

In his defense, President Gül rejected the Ankara court’s
ruling, stressing that the Constitution stipulates that the president
can only be put on trial for treason. The government offered its
backing to the president and criticized the ruling as well. `Whose
benefit would it serve to open a debate on the political immunity of
the president? Such a debate will harm Turkey and its image,’
government spokesperson and Deputy Prime Minister Cemil
Ã?içek told Sunday’s Zaman.

`A president is the highest representative of the nation and the
state. While other state officials have political immunity, would it
be logical to deem that the president does not?’ asked
�içek. He also said that insofar as he knows the
president, Gül would not have the slightest concern about
appearing before the judge over the claims.

Burhan Kuzu, a professor of constitutional law, said it is not
possible to try the president as he is immune from
prosecution. Parliament Speaker Köksal Toptan backed Kuzu’s
statement and reiterated that Gül cannot be tried on such a
charge according to the Constitution.

The Turkish judiciary, dominated by secularist judges and prosecutors,
has for long been criticized for engaging in judicial
activism. Controversial rulings have created tensions and heightened
emotions in the country. The European Union, which Turkey has aspired
to join for some time now, has repeatedly called for judicial reform
to bring the country’s legal code and justice system in line with EU
norms.

According to Nazlı Ilıcak, a leading commentator on
Turkish politics and a longtime observer of the judicial system, says
the Sincan 1st High Criminal Court is not acting in good faith
regarding its ruling on Gül because it ignored the fact that
the Constitution does not allow presidents to be put on trial except
in cases of treason. `Most of the suspects in the `lost trillion’ case
were acquitted of all charges. A statement released by the
Ã?ankaya presidential palace press office said that the Sincan
court was far from acting in good faith. It is clear that some circles
have laid an ambush and are manufacturing new sources of tension to
increase polarization in the country,’ Ilıcak write in the
Sabah daily last week.

24 May 2009, Sunday
ABDULLAH BOZKURT ANKARA