–Oya Yegen, Boston University, Department of Political Science
Turkish judges and prosecutors cast their votes last week for the election of 10 regular and 6 substitute new members to the Supreme Board of Judges and Prosecutors (HSYK). The council’s new makeup has been the center of speculation. HSYK manages the Turkish judiciary and makes decisions regarding the appointment, promotion and expulsion of personnel within the judiciary and in total has 22 regular and 12 substitute members. It is quite unusual that the election process of such an institution is front and center. In this post, I report on the expected new composition of HSYK, examine why Turkey witnessed such a contested election process, evaluate in retrospect how the 2010 constitutional amendments played out and examine the likelihood that the changes might be reversed in a future amendment.
The AKP Government and the HSYK Elections
The first and second rounds of elections concluded with disappointment for the AKP government. In the first round, 3 regular and 3 substitute members were elected from the Court of Cassation on September 23 and in the second round 2 regular and 2 substitute members were elected from the Council of State on September 29. Despite intense lobbying including personal visits by the Minister of Justice to public prosecutors in Anatolian cities, fancy dinners and promises for overseas training opportunities, the right to purchase and bear arms as well as personnel record clearance and salary increases, the pro-government candidates did not get elected in the first and second round of elections for the high courts.
The AKP government’s disappointment (and panic) revealed itself with public statements on the impending October 12 elections. Prime Minister Davutoğlu suggested a “coup d’état in the judiciary” was in the works; the parliamentary group deputy chairman Mahir Ünal stated that if a certain group, implying the followers of Gülen purported to be running a “parallel state,” were to win the elections they were ready to declare the results “illegitimate” and Deputy Prime Minister Yalçın Akdoğan signaled that in such an event the government could opt for a national referendum to elect HSYK members. Other ideas tossed around to circumvent the HSYK’s possible anti-AKP composition were to change the HSYK election law ahead of the polls and to amend the constitution based on the results of the October 12 elections.
However, in the October 12 elections candidates favored by the government or rather candidates that are not followers of Gülen movement captured 8 out of 10 primary slots of the HSYK . These eight new members running under a joint list do not just include conservatives that are predicted to be outright supporters of the government. Because nationalists, secularists and social democrats also ran and got elected under the same platform, it is likely that these members may be united in their opposition to Gülen movement’s strength in the judiciary but may have diverging opinions in other issues. In order for the government to have a compliant council, it needed to secure an additional five members .
HSYK: The Battleground between AKP Government and the Gülen Followers
A little background is necessary to decipher why there was such open interference in the HYSK elections. The AKP government believes that the graft investigation of December 2013 was an attempt by its ex-ally Gülen movement to topple it. The government alleges that through its followers in the state apparatus, mainly the police force and the judiciary, the followers of the self-exiled cleric Fethullah Gülen have instigated an operation tantamount to a coup . Its immediate response was to purge hundreds of police officers. With respect to the judiciary, the main target of the government has been HSYK–the board responsible for appointing and overseeing the members of the judiciary. The government first considered passing a constitutional amendment to reshape the HSYK but lack of support in the parliament prompted it to withdraw the bill, forcing the alternative route of making amendments to the HSYK’s judicial legislation. The proposed changes strengthened the executive’s influence over the body by providing greater control to Ministry of Justice and replaced the administrative staff of HSYK. The Constitutional Court overturned the most problematic provisions of the bill . In the summer of 2014, the government issued a decree, replacing approximately 2500 prosecutors and judges, including the deputy chief prosecutor in Ankara and a number of chief prosecutors across Anatolia.
Regretting the 2010 Constitutional Reform?
The 2010 amendments dramatically changed the structure and composition of the HSYK. Indeed, the changes with regard to composition of the Constitutional Court and the HSYK have been the primary focus of debate during the referendum campaign. Those who vehemently opposed the amendment package did so because they understood the changes introduced to the judiciary as attempts by the majority party to capture the third branch of the government. (There were nonetheless supporters of the amendments.)
The board had recently made a number of controversial decisions in order to suppress the activism of lower courts. Thus, supporters of the changes to the composition of HSYK (such as Bâli (2012)) argued that by expanding the composition of the board, the amendments made it “more representative of the professional at all levels” (p. 303) and helped end the unelected guardianship pursued by the military and state bureaucracy, specifically the high-judiciary . The previous composition of the board provided for a self-regulating system in which “a self-perpetuating oligarchy of judges applied ideological and other criteria to ensure that only like-minded members of the judiciary were promoted to senior positions” (Bâli 2012 , 304). It was argued that by direct election of judges and prosecutors, the board would become “more representative of Turkish society” (Bâli 2012, 299) and would only so far be representative of AKP .
The events since December 2013 from the start of the graft scandal are relevant. The HSYK elections in October 2010 following the amendments had been celebrated by some circles as ending the judicial tutelage and criticized by others as “court-packing” . However, the open rift between the government and the HSYK reveal that it was not one or the other. Looking back at why the AKP chose to blatantly attack the judicial council by shuffling its members, expanding the executive control, and meddling in the election process show that the government is not pleased with the repercussions of the 2010 reforms. HSYK’s bold moves during the corruption scandal show that its directly elected members’ allegiance did not rest on the government. Fearing that a hostile HSYK can complicate matters for the government, the AKP had been pushing for a board willing to work in “harmony” with the executive body. The October 12 elections show that the government is content with the outcome .
More Amendments on the Horizon
What would have happened had the government-backed candidate failed to get elected to HSYK? President Erdoğan had hinted at alternative plans, including a referendum or another constitutional amendment. These options seem to be put aside for now, at least in the short term. However, the Minister of Justice Bekir Bozdağ, while expressing his pleasure following the HSYK results, also added that the current election system of HSYK was polarizing for the judiciary and the relevant article was in dire need of change. He described the 2010 amendment regarding HSYK’s composition was well-intentioned but susceptible to abuse. Thus, looking back at the intense debate surrounding the 2010 reforms, perhaps no one was right. The newly-composed the HSYK did not become an agent of the AKP nor did it represent a more pluralist body enhancing judicial independence.
No doubt disappointed with the turn of events, the government will most likely seek to once again reshape the HSYK’s composition and structure. However, it will have to wait for 2015 general elections for another constitutional amendment or possibly even constitutional replacement. In the meantime, if the AKP concludes that the HSYK is undermining its authority, the AKP will most likely pursue changes to the board’s legislation. But the Constitutional Court, another organ that was radically changed with the 2010 amendment, might block the AKP’s grasp for more power.
Suggested Citation: Oya Yegen, Turkey Rolling Back the 2010 Reforms?, Int’l J. Const. L. Blog, Oct. 24, 2014, available at: http://www.iconnectblog.com/2014/10/turkey-rolling-back-the-2010-reforms
 The elections were held on October 12. Seven primary and four alternate members were elected from justice courts and three primary and two substitute members were elected from the administrative courts. The composition is determined by Article 159 of the Turkish Constitution as amended in 2010 reforms; “The High Council of Judges and Prosecutors shall be composed of twenty-two regular and twelve substitute members; shall comprise three chambers. The President of the Council is the Minister of Justice. The Undersecretary to the Ministry of Justice shall be an ex-officio member of the Council. For a term of four years, four regular members of the Council, the qualities of whom are defined by law, shall be appointed by the President of the Republic from among members of the teaching staff in the field of law, and lawyers; three regular and three substitute members shall be appointed by the General Assembly of the High Court of Appeals from among members of the High Court of Appeals; two regular and two substitute members shall be appointed by the General Assembly of the Council of State from among members of the Council of State; one regular and one substitute member shall be appointed by the General Assembly of the Justice Academy of Turkey from among its members; seven regular and four substitute members shall be elected by civil judges and public prosecutors from among those who are first category judges and who have not lost the qualifications required for being a first category judge; three regular and two substitute members shall be elected by administrative judges and public prosecutors from among those who are first category judges and who have not lost the qualifications required for being a first category judge”.
 In the first round three regular and three substitute members were elected from the Court of Cassation on September 23 and in the second round two regular and two substitute members were elected from the Council of State on September 29.
 One member elected from the slot of the Court of Cassation is close to Gülen movement, one is considered a social democrat and the other is presumed to be a nationalist. One member elected from the slot of the Council of State is believed to be a follower of the to Gülen movement and the other member is considered to be a social democrat
 “’Yargıda darbe isteniyor’” Al Jazeera Turkey, October 3, 2014, http://www.aljazeera.com.tr/haber/yargida-darbe-isteniyor
 “AKP’li Mahir Ünal: HSYK’yı Cemaat kazanırsa seçimi gayrımeşru sayarız” http://haber.sol.org.tr/devlet-ve-siyaset/akpli-mahir-unal-hsykyi-cemaat-kazanirsa-secimi-gayrimesru-sayariz-haberi-97698
 “’Hükümet HSYK seçimlerinde istediği sonucu alamazsa referanduma gidecek’”http://t24.com.tr/haber/hukumet-hsyk-secimlerinde-istedigi-sonucu-alamazsa-referanduma-gidecek,271777
 A group of candidates favored by the government ran under Unity in Justice Platform (YBP), while those purported to be the candidate of “parallel state” ran as independents. The independents won two seats. However the members elected under YBP are not all outright pro-AKP. United under YBP list, conservatives, social democrats, nationalists formed an alliance against “parallel state” candidates. See, Saymaz, Ismail “HSYK seçimlerini ülkücüler mi kazandı? http://www.radikal.com.tr/turkiye/hsyk_secimlerini_ulkuculer_mi_kazandi-1218626
 Candidates from the Judges and Prosecutors Association (YARSAV) and the jurist Union (Yargıçlar Sendikası), representing the secularist and social-democrats ran under a joint list but did not get elected. However those close to YARSAV, including one of its founders ran under the YBP list and got elected. The elections show that secular and Kemalist judges and prosecutors who usually support YARSAV chose to instead give their supporter the like-minded candidates running under the YBP list.
 The HSYK has 22 members in total. Four of these are appointed by the President; the Minister of Justice and his undersecretary serve as ex-officio members and one member is elected by the Justice Academy, which is responsible for training justices and prosecutors and the Minister of Justice exerts control over the institution. The quota for decision-making is a simple majority of 12 members.
 “Turkish graft scandal deepens with more arrests, police dismissals” http://www.reuters.com/article/2014/01/07/us-turkey-corruption-idUSBREA0607420140107
 The bill passed on February 15 and entered into force on February 26, 2014.
 Dismissal included the secretary general and deputy secretary generals, chairman, vice chairmen, inspectors, investigating judges and the administrative staff of the council inspectors. The justice minister assigned new personnel and the law prohibited the dismissed staff from seeking legal redress. The Minister of Justice was provided with greater powers such as the authority to oversee the composition of HSYK’s three chambers and initiate disciplinary procedures for its members.
 The Republican People’s Party, the main opposition party had filed an appeal and the Court gave its ruling on April 11, 2014. The ruling did not have a retroactive effect, the dismissed personnel did not recover their posts.
 Another controversial act was the decision of the Minister of Justice (also the chair of HSYK) Bekir Bozdağ to launch an investigation into a prosecutor and three judges that were involved in the graft probe.
 The 2010 amendments were introduced as a package that included changes to 26 articles. It passed with less than two-thirds majority requirement (but more than three-fifths), which according to the amendment-making rules of Turkey prompted a national referendum. The yes vote received 58%.
 According to Tombus (2013), if the real intent of the AKP government was to structure an independent judiciary, the amendment would have ended the Minister of Justice’s membership in HSYK. See Tombuş, H. E. (2013), Reluctant Democratization: The Case of the Justice and Development Party in Turkey. Constellations, 20: 312–327.
 Professor Özbudun highlighted that the Minister of Justice’s role was reduced to a “symbolic and ceremonial one”. However coupled with changes introduced thereafter and the practice of the Minister of Justice Bekir Bozdag such as his visits to prosecutors in Anatolia to lobby for pro-government candidates tell a different story. Özbudun, Ergun (2011) “Turkey’s Constitutional Reform and the 2010 Constitutional Referendum”, Mediterranean Politics.
 Its acts during the Şemdinli incident investigation was its most infamous one. See Gunes Murat Tezcur. “Judicial Activism in Perilous Times: The Turkish Case”, Law & Society Review, Volume 43, Number 2 (2009). The European Union has criticized the board and called for reform, see “Concerns remain about the independence, impartiality and efficiency of the judiciary,” Turkey 2009 Progress Report, at 11, SEC (2009) 1334 (Oct. 14, 2009)
 Bâli, Asli Ü. (2012) “The Perils of Judicial Independence: Constitutional Transition and the Turkish Example”, The Virginia Journal of International Law Association Vol. 52 No. 2.
 Before the 2010 amendments, the Minister of Justice and his undersecretary were still members of the board but the rest of the five primary and four alternate members (in total HSYK was composed of )seven regular and five substitute member) were chosen by the President from a pool of candidates nominated by the Court of Cassation and the Council of State. Under this arrangement, HSYK’s members were dictated by the two high courts that in return also controlled these courts.
 The changes were welcomed by the European Union as well. Venice Commission “Interim Opinion on the Draft Law on the High Council for Judges and Public Prosecutors (of 27 September 2010) of Turkey,” Venice, 17-18 December 2010.
 The elections were held for the directly elected members of the court (in total 10 members).
 “Government pleased with vote results for top Turkish judicial body”, Hurriyet Daily News, October 13, 2014. http://www.hurriyetdailynews.com/government-pleased-with-vote-results-for-top-turkish-judicial-body.aspx?pageID=238&nid=72893&NewsCatID=338