Opposition’s judicial promisses: Priorities set despite shortcomings

The most striking aspect of the Common Policies Consensus Document (CPCD) announced by the opposition parties’ Table of Six on January 30, 2023, is perhaps the fact that “law, justice and judiciary” ranked first, “public administration” second and “anti-corruption, transparency and audit” third in the list of common policies. This shows that the six leaders, who highlighted “arbitrary and noncompliant wild governance” in the first paragraph of the text, are prudent to prioritise the country’s fundamental problems – regardless of the criticisms that may be levelled against the policies, goals and programs described under these headings.

Indeed, the reason that the people’s sense justice is crumbling in our country is that the judiciary’s capacity is insufficient; it cannot perform its duties without restraint; ruling politicians are untouchable, and it is impossible to investigate the offences of public officials if it not consented by ruling politicians. This situation reflects into our daily lives in the form of arbitrary and unaccountable governance, lack of merit in the state, and offences of nepotism, corruption and bribery.

The excuse of Executive Stability

What is underlined in the second paragraph of the consensus document as “woes threatening the survival for the state” is real. However, it is not the “current presidential system” as claimed in the CPCD, but the state of our state system that has been deteriorating for a long time, which compromises everything for stability of the executive, and treats the judiciary as an accessory. The presidential system, which worsened our state system, brought more instability while trying to solve the problem of stability, and entrusts all state powers in the hand of a single person, is indeed a consequence of this situation. As a matter of fact, the current presidential system was introduced with a small margin of votes as a result of controversial Supreme Election Council (SEC) decisions under the State of Emergency conditions following the 2016 coup attempt due to the “woes for survival of the state” that existed in the parliamentary system prior to 2017.

It is a brutal fact that Turkey’s state system has been drifting from a faulty democracy to an autocratic monarchy since 1980 for the sake of “stability of the Executive”, a fact that foreign institutions that flourish in liberal democracies openly expose to our faces, but which a significant section of people choose to ignore. As I dwelled in my previous article , it is crucial to transform the judiciary into being capable of producing quality services and fully independent and to ensure fair representation of the people in the legislature to reverse this declining course and to solve our “middle democracy” problems.

The need for balance among state powers

To maintain the balance between the legislature and the executive, it is essential to divide executive powers into three meaningful groups: permanent policy councils, independent regulatory institutions, and executive ministries, and to disseminate the enormous executive power to a broader segment of the bureaucracy. Whether it is the president, or the chief executive directly elected by the people, or the prime minister and ministers appointed by the parliament, the parliament should be able to supervise the executive power and remove from office when necessary. Instead of being haunted to unstable governance in the name of “stability”, it should be ensured that there are no gaps in governance.

Judicial independence and the Ministry of Justice

The Table of Six had previously expressed its promises under these three headings, which it precisely prioritised on various occasions. The constitutional package that was previously introduced included the division of the Council of Judges and Prosecutors into two different boards, namely the Council of Judges and the Council of Prosecutors, the exclusion of the Minister of Justice and his undersecretary from the Council of Judges, the establishment of these boards through a pluralist method – through elections in the Parliament- the possibility of judicial review of decisions on admission to the professions of judges and prosecutors and disciplinary penalties, and aligning the prosecutors to the defence, the abolition of the multiple bar association system, the introduction of tenure guarantees for “judges reserved to the first class” and “first-class” judges, the establishment of a judicial law enforcement – court marshall- system, etc.

Abolishing the statute of limitations on corruption offences is a positive and innovative promise; it should be expanded to offences of all public officials and immunities and be strengthened by abolishing the requirement for superiors’ consent to prosecute the offences of public officials.

What are the new judicial promises ?

Ensuring pluralism in the election of members to the Constitutional Court, preventing the election of members through a collusive meritless election process, expanding the scope of individual human right violation complaints and authorising the Constitutional Court to annule the law provisions that violate human rights have further elaborated the previously announced promises. I can list the “new” promises that caught my attention as follows:

– Reducing the electoral threshold to 3 per cent and providing treasury aid to the party that received 1 per cent of the votes in the last election,
– Representation of citizens abroad with 15 deputies and the creation of an overseas electoral district for this purpose,
– Ending the enactment of omnibus laws, making political party closures more difficult requiring prior warning and the authorisation of the Parliament to initiate closure proceedings,
– Detailed regulation of political financing within the framework of the principles of transparency, auditability and transparency of election expenditures, public disclosure of donations to political parties and all expenditures during election periods,
– Strengthening freedom of the press, restructuring the Turkish Radio and Television Corporation (TRT) and Anadolu Agency according to the principles of independence and impartiality, making media ownership and financing transparent, preventing monopolisation and cartelisation, ensuring pluralism in the media, and authorising the Turkish Competition Authority to conduct ex officio examinations in this regard.

Shortcomings in abuse of authority

The document promises to correct everything that has been done wrong through what is called the “Casuistic” methodology. For example, a counter-promise was developed to prevent a reoccurrence of the mistake in the selection of Hakan Fidan to the constitutional court. On the other hand, while authorising the institutions that take macroeconomic decisions to be independent and to empower their executives, measures to prevent them from abuse or arbitrary use of powers are not envisaged… I see this aspect as a significant shortcoming of the strong economic promises.

Although the existing institutions are independent, do not their managers, who are granted extraordinary protection, take decisions arbitrarily at the expense of abuse of power? What can guarantee that the same arbitrary decisions will not be taken by managers who will be granted similar guarantees by the Table of Six? I find it regrettable that the opposition bloc, which emerged with the promise of a transition to a new and better system, has not developed a proposal for a safer and more stable system to replace the system that was created under the conditions of the early 2000s but deteriorated towards the 2020s.

There are inconsistent points.

It isn’t easy to understand this document, which took so much effort to draft and takes hours to read. I would have expected the Table of Six to identify coherent policies and objectives when drafting the CPCD, followed by smart goals, and to propose measurement and evaluation criteria with actions or projects for achieving the targets, which would have resulted in a more readable text. This scientific method would make the objectives clearer and more realistic and increase trust among the voters by ensuring accountability.

The need for wise guidance

The most important point that struck me while analysing the Consensus Document was the need of the Table of Six for wise leadership that would end the multi-headedness that is evident even in the drafting of the text and unite them on common goals that are easy and possible to achieve.

As the election date draws even closer, the Table of Six needs to revise the text of the CPCD under such wise leadership. This would be a worthwhile endeavour for the six leaders and the teams they have dedicated to this work. A shorter text that is easy for the public to understand and that the presidential candidate can agree upon and adopt willingly could increase the opposition’s chances of winning the election and eliminate the possibility of a fiasco.