Understanding Turkey’s Restructured System for Judicial Appointments and Promotions

—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)[1] 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.[2]

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[3] 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.[4] 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.

The prospective consequences of the BJP’s new composition

In the new system the entire membership of the BJP is to be designated directly by the president and the MPs of the ruling party. Reelection to serve multiple terms on the BJP is also permissible.

The authority of appointment, reassignment, dismissal, initiation of disciplinary and criminal investigation of all judges and prosecutors[5] belongs to the BJP. In spite of the fact that the BJP is de jure supposed to be impartial and independent from the elected branches of government, the structural reforms to the board call into question the extent to which judges and prosecutors will maintain objectivity, impartiality and independence in cases, investigations and prosecutions that are particularly sensitive to political power.[6]

When it comes to members of apex courts, since their status is not directly protected by the Constitution, the political branches are able, by a simple law, to abolish all the positions held by apex courts and dismiss all current members of these courts. Indeed, this was the experience of the apex courts in 2016 well before the constitutional referendum.[7] The ability of the political branches to remove members of the high judiciary at will clearly indicates the vulnerability and fragility of judicial independence in Turkey even under the previous system.[8] Needless to say, asserting complete political control over the composition of the BJP does little to improve prospects for judicial independence after the referendum. Arguably, it will be extremely difficult in practice for the judicial branch to be independent of the legislative and executive branches, as the new structure of the BJP makes membership entirely dependent on a political appointments process.

The government has argued that the reason for the new modification is to prevent illegitimate structures from within the state to secretly organize themselves to assert control over the bureaucracy and the judiciary. The ruling party (AKP) and its supporters have complained that the previous system of selection of the BJP members was vulnerable and open to manipulation by secretly organized structures, such as the Gulenist Organisation. Such concerns about a recalcitrant “deep state” and allegations that the unelected judicial branch and the state bureaucracy place illegitimate constraints on the majoritarian elected branches of government are not unique to Turkey. Yet Turkey is an important case for close examination because the expression of these concerns over the last few years has been especially stark in the country and has grounded a fundamental transformation of the constitutional order.

Placing the judiciary under direct control by the political branches cannot be a legitimate solution for concerns about the manipulation of the state bureaucracy and judiciary by shadowy groups in a “deep state” configuration. The structural reforms to the BJP undermine basic precepts of judicial independence and the rule of law, however legitimate the goal of preventing illicit and covert organized groups from manipulating the judiciary. There is real reason to worry that the solution is worse than the disease it was designed to address.

How to compose the BJP in the name of judicial independence?

What might have been a more balanced reform to the composition of the BJP that would be responsive to concerns about the capture of the judicial branch from within? One more balanced model would have been to designate that one-third of the BJP members be appointed by the apex courts themselves (i.e., Yargitay and Danistay), with another third appointed by the president and the remaining third designated by a qualified majority (at least 60 percent) of the Parliament.

In addition, rather than relying on the method of drawing lots, it might have been stipulated that the authority of appointment shall be automatically passed to the plenary of apex courts in cases where the three-fifths majority is not met in Parliament for appointment of BJP members. As such, incentives for compromise on appointment of BJP members in Parliament would have been stronger and in cases where a compromise could not be reached, the formation of a more objective and less politically engaged board structure could be ensured by appointing these members through a vote by the members of apex courts. At this point, it is difficult to understand why there is still a lack of confidence in the apex courts designating the members of BJP, even after the purge of Gulenists in the judiciary.

As a conclusion, the undermining of judicial independence in Turkey following the 2017 constitutional referendum is an obstacle to the country’s goal of attaining consolidated democracy and the rule of law by Western standards. To address this basic conundrum, the government would be well-advised to adopt a system of meaningful checks and balances in judicial appointments that would involve revising the structure of the BJP and bringing its method of appointment for members in line with basic democratic standards through a new constitutional amendment.

Suggested citation: Ali Dursun Ulusoy, Understanding Turkey’s Restructured System for Judicial Appointments and Promotions, Int’l J. Const. L. Blog, Apr. 18, 2018, at: http://www.iconnectblog.com/2018/04/understanding-turkeys-restructured-system-for-judicial-appointments-and-promotions/

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[*] Email: ulusoydlaw@gmail.com. I thank Professor Asli U. Bâli for her valuable suggestions and edits.

[1] “Hakimler ve Savcilar  (Yuksek) Kurulu” in Turkish. The word of “Yuksek” (High) has been eliminated by the constitutional amendment of 2017.

[2] It is in practice almost impossible to get the majority of BJP for the Opposition’s candidates in Parliament. The president and his/her party’s candidates would have to both fail to receive a three-fifths majority in Parliament and lose every draw (seven draws in total) in an extraordinary episode of bad luck. Thus, the probability of the ruling party losing all seven drawing lots and thus losing control of the BJP is nearly impossible mathematically (a probability of 1 of 128). If the ruling party wins only one draw of seven, when combined with presidential appointments this would be sufficient to give the party a majority of the BJP and thus to control the judiciary.

[3] In the aftermath of the coup attempt of July,15, 2016, significant evidence has emerged suggesting that an organization of followers of the exiled religious sect leader Fethullah Gülen (the Gülenist Organization) had engaged in a systematic effort and with a strategic ambiguity to infiltrate the state bureaucracy, judiciary, police and military forces, in addition to their public activities that dominated much of the Turkish educational sector. The organization is seen by the Turkish public opinion as orchestrating power of the failed coup.

[4] Many observers assert that the Gulenist Organization’s backed candidates gained a clear success in the 2010’s elections of members of the BJP among around 12000 total judges and prosecutors and they lost in the following election in 2014 by a close margin (See. Bill Park, “Turkey’s Struggle: Erdogan vs Gulen”, https://www.opendemocracy.net/bill-park/turkeys-struggle-erdo%C4%9F-vs-g%C3%BClen (Access: Jan.8,2018); Cagri Ozdemir, “The Turkish Government judicial problem”, http://www.middleeasteye.net/in-depth/features/turkish-governments-judicial-problem-457420840 (Access: Jan.8,2018).

[5] The BJP appoints all members of the Court of Cassation (Yargitay) and 75 percent of members of the Administrative Court of Appeal (Danistay). However, the power to investigate and dismiss the high justices of these courts belongs to the plenary of each apex court (Art. 154 and 155 of the Constitution). There is no change on this matter by the last referendum.

[6] Around 4,000 judges and prosecutors were dismissed by the BJP following the July 2016’s Coup attempt, with the charge that they had link to Gulenist Organisation. See https://www.ft.com/content/0af6ebc0-421d-11e7-82b6-896b95f30f58 (Access:Jan.8, 2018)). Several individual cases are still pending before courts against these dismissals on the ground that no effective investigation was applied.

[7] By a law enacted on July,1,2016, right before the July,15, 2016’ coup attempt- the memberships (high justices positions) of the apex courts (excluding presidents of chambers and the presidents and vice-presidents of each court) were immediately abolished and all current high justices were dismissed. Soon the number of memberships (high justice positions) were decreased and within 15 days new members were appointed instead (Law numbered 6723 of Jul. 1, 2016). The Government argued that this law was enacted merely for removing the Gulenist members of apex courts and the current members of these courts not linked with this organization would be reappointed. However, after this law, some members of apex courts who are known not to be affiliated with that illegitimate organisation, but voted, in some sensitive cases, against the interests of the political branches were not reappointed as apex court members but instead were made ordinary judges of first instance courts. Even though there was a legitimate aim in the origin of the purges, the modality was highly controversial as dismissing all members (justices) of apex courts by a simple law showed how vulnerable and fragile the independence of judges and judiciary was.

[8] See Asli Bali, “Courts and Constitutional Transition: Lessons from the Turkish Case”, I-CON (2013), 1-36; Ergun Ozbudun, “Turkey’s Judiciary and the Drift Toward Competitive Authoritarianism,” The International Spectator: Italian Journal of International Affairs, Vol. 50, No.2 (2015), pp. 42-55.