—Dr. Ali Dursun Ulusoy, Professor of Law at Ankara University, Former Justice of Turkish Council of State (Danistay), Visiting Scholar, UCLA Law[*]
In some countries including Turkey, a special board of judges (and prosecutors) is in charge of nationwide appointments (for everything from regional to apex courts), reshuffles, reassignments, removals and disciplinary procedures of judges (and prosecutors). Under such systems, judicial independence will depend in some measure on the structure of these boards and their methods for administering appointments.
The Turkish constitutional amendments passed by referendum in April 2017 immensely affected Turkey both legally and politically. By far the lion’s share of international attention has focused on the fact that the amendments shifted the country from a parliamentary to a presidential system. Comparatively less attention was paid to the impact of the amendments on enhancing political control over the judiciary. Following the amendments, the membership of the Board of Judges and Prosecutors (BJP) is entirely designated by the political powers (the President and Parliament), greatly reducing judicial independence.
The new structure of the BJP
In the previous version of the Constitution, two-thirds of BJP members were designated by member vote of the apex courts as well as the judges and prosecutors of the first instance courts. With the new system, none of the BJP members are elected by the judiciary. Even though a majority of its members must be composed of judges and prosecutors, the members of BJP are now entirely appointed by the political authorities (the President and Parliament). In the final version of the amendment, the Parliament designates seven members, the president appoints four more, and the minister of justice as well as the undersecretary of the ministry of justice serve as permanent members (Art.159).
The members to be elected by Parliament must receive the support of at least a three-fifhts majority of that body. If this threshold cannot be met, lots will be drawn to select between the two candidates that received the most votes. This procedure is designed to avoid appointments by a simple majority; the objective is to ensure greater parliamentary consensus on the appointment of BJP members. Thus, in cases where a three-fifts majority cannot be met in Parliament, it becomes possible for some lucky opposition candidate to be appointed.
In fact, the earlier procedure was also problematic. Under that process. appointments for a majority of BJP positions were made through a vote by the entire corps of judges and prosecutors. In particular, well-organized but ultimately illegitimate groups were able to organize slates in the judicial elections that enabled them to manipulate the appointments and promotions processes of the judiciary through domination of the BJP. The newly adopted 2017 amendments simply bypass the judicial branch entirely in determining the composition of the BJP.
Moreover, the provisions revising the structure of the BJP and judicial appointments came into effect as soon as the referendum results were announced. Whereas other provisions that were part of the referendum package would took delayed effect—not becoming operative until the change to a presidential system in 2019—the changes to the BJP were immediate. The rushed timing of the implementation of the changes to the BJP’s composition is strongly suggestive of a desire to assert full political control of the judiciary at the earliest possible date.
Read the rest of this entry…