Which Constitutional Articles Does The HSYK Bill Violate?

The Justice and Development Party's (AK Party) planned changes to the structure of the Supreme Board of Judges and Prosecutors (HSYK) are an open violation of Article 138 of the Constitution, which deals with judicial independence.

Article 138 of the Constitution says: “Judges shall be independent in the discharge of their duties; … No organ, authority, office or individual may give orders or instructions to courts or judges regarding the exercise of judicial power, send them circulars, make recommendations or suggestions. … No questions shall be asked, debates held or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial.”

In addition, they violate Article 159 of the Constitution, which puts forward that the HSYK shall exercise its functions independent of the courts. However, the bill seeks to pass most authority of the board to the justice minister, who is a member of the government. This means that the judiciary will be put under the control of the executive.

The bill also violates Article 2 of the Constitution, which stipulates the principles of the rule of law and the separation of powers. Legal experts say the executive will tighten its grip over the judiciary, and thus the separation of the judicial and executive powers will be damaged if the bill is adopted in Parliament.

Article 2 is as follows: “The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk and based on the fundamental tenets set forth in the Preamble.”

With the bill, the government seeks to remove from duty the secretary-general and his aides, the head of the committee of inspectors and his aides, all inspectors, investigations judges and administrative staff working for the HSYK. New names will be appointed to their positions by the justice minister if the bill passes in Parliament. The bill also prevents the removed staff from seeking legal redress. This situation violates Article 36 of the Constitution, which says: “Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures. No court shall refuse to hear a case within its jurisdiction.”

(Cihan/Today's Zaman)