Was a Constitutional Court redesign part of Erdoğan’s judicial reform?

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A number of recent judicial developments, particularly the nomination of a pro-government candidate for Turkey’s top court and the postponement of in important judicial election, are casting serious doubts for hopes of improving the state’s justice system.

Turkey was ranked 109th out of 126 in the World Justice Project’s 2019 Rule of Law Index.

It was only last month President Recep Tayyip Erdoğan announced far-reaching reforms, including a judicial package, in a move that may have inspired confidence in those seeking stability in Turkey, which has suffered from the effects of a nationwide crackdown in the years that followed the 2016 coup attempt.

Erdoğan said the package was designed based on consultation with legal experts and human rights groups.

On Wednesday, Istanbul Chief Prosecutor İrfan Fidan, who just last week was appointed to the Supreme Court of Appeals, announced his candidacy for the elections that determine nominees for the Constitutional Court. He is one of 11 judges and prosecutors appointed as members to the Supreme Court on Nov. 21.

Fidan, known for close ties to Erdoğan and his ruling Justice and Development Party (AKP), oversaw a number of high-profile cases, including that of Turkish businessman Osman Kavala, who is currently behind bars on charges of espionage, and the 2013 corruption probe.

It is safe to say that his letter announcing his candidacy to members of the Supreme Court and asking for their votes has caused a stir.

Moreover, a separate election that was set to be held on Tuesday at the Supreme Court of Appeals to select a member to replace outgoing member Burhan Üstün has been postponed until Dec. 17.

Critics maintain that the delay was prompted by Ankara’s desire to usher their candidate Fidan.

Celal Çelik, lawyer of Turkey’s main opposition leader, Kemal Kılıçdaroğlu, said both the appointments of 11 members by the Board of Judges and Prosecutors (HSK) on Nov. 27 and the delay of the Constitutional Court elections were moves made on Ankara’s orders.

In a string of messages on Twitter, he went even further to say that eight of the Supreme Court of Appeals nominees for the Constitutional Court would be forced to withdraw ahead of Dec. 17.

“Fidan actually had no chance of becoming a Constitutional Court nominee,” Çelik, who worked as an investigative judge for the Supreme Court of Appeals, told Ahval.

“The head of the Supreme Court of Appeals delayed the elections set to take place on Tuesday to Dec. 17 on the government’s request to allow Irfan this opportunity.”

The lawyer said there is a joint effort by the HSK and the government to ensure that Fidan, who has not worked in the court a day of his life, becomes a member of the Constitutional Court.

Ankara seeks to send a message to the top court, which has been signing off on rulings not in the government’s favour, through this move, Çelik said. The message the government is looking to send is, “Look, I made the man you accused of signing off on rulings that violated rights as your member”, he said.

Fidan has until today filed cases against virtually every person the government has asked for at the Istanbul chief public prosecutor’s office, and now he is set to find a place in the country’s top court, Çelik said.

Meanwhile, all eyes are on the senior members of the Supreme Court of Appeals to see how they will react to the nomination of this pro-government newcomer.

“Under such circumstances, it is necessary the experienced members of the court to react, object and take a stance during the elections to take place at the Supreme Court General Committee,” administrative legal expert Metin Günday told Ahval.

“What is being done is really ugly. And the state of the higher judiciary, the silence of the top judges is heart breaking.”

Anyone who had confidence in an effective judicial reform – and the positive effects of the HSK’s inclusion Ankara and Istanbul’s chief public prosecutors among the 11 members appointed to the Supreme Court of Appeals – ought not to hold their breath, Günday said.

“The delay in the elections, HSK’s appointments are all part of the government’s plans to ensure Fidan is elected (as a Constitutional Court) nominee,” Günday said.

“This ought to be a source of shame for the members of the higher judiciary and its members.”

For such developments to take place within a higher judicial institution after the government has heralded a judicial reform package is “embarrassing for judicial independence, the respectability of the judiciary, state of law and justice”, Günday said.

The ratio of Erdoğan-appointed members to Turkey’s Constitutional Court is slowly shifting in his favour. As it currently stands, there are six members of the top court appointed by Erdoğan, eight appointed by his predecessor Abdullah Gül and one member appointed by Gül’s predecessor Ahmet Necdet Sezer.

Should Fidan win the upcoming Dec. 17 elections, Turkey’s strongman will have an even firmer grip on the judiciary.

Ahval

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