So-called judicial reform and half-baked strategy documents

While not a single iota of what the AK Party intends with its rhetoric of a “new and civil constitution” is yet clear, Minister of Justice Yılmaz Tunç has declared that a reform strategy document concerning the judiciary, constituting roughly one-third of the constitution, is being prepared.

Neither judiciary can be reformed, nor can a strategy document be produced without presentation of the objectives of AK Party’s rhetoric of a new and civil constitution concerning the judiciary. Mr. Tunç, who frequently resorts the catchphrase “new and civil constitution”, must be aware of this.

Questions for the Minister of Justice

Naturally, many questions come to mind, and we have the right to expect Mr. Tunç to answer, at least, the following questions:

(i) Will Mr. Tunç, with the judicial reform strategy document he says is being prepared, reveal the content of the so-called new and civil constitution written by Yavuz Atar in 2021 the details of which are known to no one? Or does Mr. Tunç mean to say that the AK Party’s draft of a so-called “new and civil” constitution will bring nothing new concerning the judiciary?

(ii) Does Mr. Tunç himself not believe in the AK Party’s rhetoric of a new and civil constitution? Or are the statements about the new and civil constitution that Mr. Tunç frequently mentions in almost every declaration, as analyzed by Murat Yetkin, merely an attempt to divert the public’s attention from their economic agenda? If so, is Mr. Tunç also trying to distort the true order of the day with his rhetoric on judicial reform and strategy?

What is the new constitution about if not the judiciary?

More importantly: since President Erdoğan isn’t proposing limiting presidential powers, what, apart from the judiciary, does the AK Party propose to change with the new constitution?

If nothing is being proposed for the judiciary, is the real aim of the AK Party’s (or Erdoğan’s) rhetoric of a new and civil constitution pretext to a fait accompli to enable Erdoğan to run for the presidency again beyond the current term limit?

What happened to previous strategies?

The AK Party government had bureaucrats from the Ministry of Justice prepare so-called judicial reform strategy documents in 2009, 2015, and 2019, which are mere to-do lists, far from containing any reform. Though many promises were made when announcing these documents, many fundamental issues such as the organic and functional independence of the judiciary, its provision of quality service, accountability and structuring in line with the country’s developmental objectives, the ensuring of meritocracy among judiciary members, eradication of partisanship in the judiciary, and countless other essential matters were and have not been addressed. None of these resulted in tangible outcomes; all but eroding the meaning of the term “strategy”.

Doom to fail reforms

The failure of judicial reform strategy documents created by the justice department’s bureaucrats without consulting the recipients of judicial services, is inevitable.

It is inescapable that palliative acts, prepared by bureaucrats based on their own personal biases will lead to new and further problems. What was done to commercial courts in İstanbul around 2016 is a good example to this.

Then there were 16 commercial court tribunals in Istanbul. One day all the tribunals with three sitting judges were converted into single-judge courts. Suddenly we had 48 single-judge commercial courts. The pending cases in the 16 tribunal courts were distributed among the 48 courts; new docket numbers were given, hearing dates set, and the trials were restarted. Shortly after, these 48 single-judge courts were reverted back to three-judge tribunal courts, reducing the number of courts back to 16. Cases were redistributed, new numbers were given, and the trials restarted once again… Similarly, couples in Kuşadası could not divorce for more than a year because bureaucrats wrongly opened a family court and later closed it realising that the town had not reached to 100,000 population which is the main criteria to open specialised family courts.

Reform’s core objective: Quality service

As with every other public institution’s the fundamental reason for the judiciary’s existence is the provision of quality service. Judiciaries’ purpose and duty is to contribute to society’s coherence and to strengthen reconciliation and cooperation by resolving disputes efficiently.

The quality of judicial services is closely related to and is a key element of development and prosperity. That is because the judiciary has a deciding impact on individual and collective productivity and efficiency in society. Also, the judiciary’s capacity to fulfil this important duty determines the quality of the rule of law and democracy – that is, the quality of governance.

Quality in any service can be achieved by providing service suitable for its purpose, ensuring the satisfaction of the service recipients, and being accountable.

Therefore, the primary, unchanging objective of judicial reform ought to be to make the judicial system capable of producing better quality services. The strategy document must determine long term objectives and how they will be achieved, setting out the actions to be taken, implementation plan, priorities and milestones accordingly.

The criteria of quality judicial services

Judicial services should meet the needs of society with simple and predictable processes that are easy to apply and comply with.

The judiciary must always endeavour to realise justice without any exception or compromise, and create confidence in society that justice will always be achieved.

Not only judges and prosecutors on the bench but lawyers, notaries, and other judicial officials should also be knowledgeable, experienced, and competent, performing their duties in compliance with fundamental judicial values and principles.

Judicial services should be provided exclusively by the members of the judiciary, and never be delegated or assigned to the executive’s agents, security officers, experts, assistants, and the like.

Judicial decisions should be based entirely on material facts, reasonable and sufficient discussion and evaluation. The material facts must be fully and correctly revealed. It must be ensured that everyone involved in trials acts honestly and truthfully in their statements to the court and the other party.

Judicial services should be provided at a reasonable speed and in good time in all circumstances.

Taxes, duties costs as well as attorney fees, and other expenses related to judicial services should be at reasonable levels; neither cheap nor exorbitant.

The primary criteria, however, is that those who provide judicial services should be fully independent from all external and internal influences, both in their formation and function; the judiciary should be able to perform its duty freely without needing permission or consent from anyone or any organization.

Independence, transparency and accountability

Organisational and functional independence of the judiciary is not a political issue but rather the first and foremost requirement of quality judicial service. The judiciary must be independent of the executive or the legislative powers because its main function is to limit the executive.

Quality in any service can be achieved provided that the service provider is transparent and accountable.

Because they benefit from the privileges and guarantees granted for and in relation to their services, judicial institutions and elements should adhere to the rule of law at the highest level and be fully transparent and accountable. In the event transparency and accountability is not effective at all levels of the judiciary internal dependencies and other power structures form, as Türkiye vividly experienced between 1971-1981, during the co-optation period between the HSK and the Court of Cassation where they appointed each other’s members.

Therefore, the judicial system should be designed as a lean, agile and efficient organization producing quality judicial services to society, fully transparent and accountable so that it earns public support to secure its independence.

To guarantee this, in place of judicial councils and justice ministries must be transformed into a fully independent regulatory authority regulating and ensuring provision of quality judicial services.

The Better Justice Association proposes 9 step reforms to transform Turkish judiciary into such an organisation.

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Translated by Charles Ediz Gun