Friday, October 22, 2010

The proof of the pudding

In the wake of the referendum, the inevitable is already fully visible. The result has paved the way for a new phase -- certainly promising ups, as well as downs -- in the democratization process. The inevitable is the fact that society is now involved in interpreting the meaning of the changes already launched.
Initial indications of the implementation of the new rules, the restructuring the Board of Judges and Prosecutors (HSYK), have been rather strongly expressed dissatisfaction at the outcome of the vote which elected 10 new members to the body. In an unprecedented format of democratic elections almost 12 thousand judges and prosecutors participated in the process.
Then all hell broke loose. Pundits in the media known for their pro-status quo stand cried foul, claiming that those who were elected -- with great margins in votes -- were all favored and endorsed by the Ministry of Justice. Some went even further to argue that the “separation of powers” was now in the coffin, ready to be buried.

These views may be severely polluted by exaggeration, but if dug deeply, they may have a point. The article concerning elections to HSYK in the original draft amendments -- as voted through Parliament -- was based on the principle of “pluralism” in the elections to the supreme body. Put simply, each judge or prosecutor would have the right to vote for names rather than lists. The Constitutional Court, going through the petition by the opposition later disagreed with this principle and made its own adjustments based on the principles of a “majority” system. The adjustment was harshly criticized by experts at that time and its possible dangers were exposed.

At the moment, remaining cautiously alarmist, this should be said: In practice it is almost impossible to control a full electorate of the judiciary and direct it to vote on a perceived “ministry list” -- the voters are far too complex in their leanings and positions to be able to be guided into a single line. Moreover, it is the first time such a democratic election has taken place and it can be compared to a dam breaking and a flood rushing in. It is known that prosecutors and judges in the country have suffered systematic suppression under the old caste system of the HSYK -- which acted like a judicial politburo -- and looked with contempt at the “old rulers.” It will take time before the waters calm down and a new internal balance is established.

Does this mean that the judiciary is now falling under the control of political executives? It is a brand new situation and as with any transitional democracy, it must be strictly monitored by its practices. Any strict judgment now would be premature.

As the saying goes, “The proof of the pudding is in the eating.” Extreme alarmism should be taken with caution, since democracy -- as proven in any part of the world -- is a fluid process, which must be kept open to new problems and their solutions.

We are somewhere between panic and calm. On another front, in the wake of a directive by the Supreme Board of Universities (YÖK), the chronic search for the freedom of the wearing of the headscarf on university campuses continues -- and polarization on the issue shows no signs of abating. On Wednesday some Justice and Development Party (AK Party) deputies met with the three opposing parties to explore whether or not there would be a consensus. Merely an hour later, the Chief Prosecutor of the High Court of Appeals appeared on the scene again -- after a couple of years -- with a new threat. Declaring the wearing of the headscarf at universities to be “illegal” -- thus putting the YÖK directorate into question -- he warned that any party involved in policymaking on the issue would face “consequences” (read “closure”). The AK Party and the Speaker responded harshly, demanding an apology for intervening in “affairs of the legislative body.”

This is bound to heat up the debate.

It is clear that the high judiciary is keen to resume the fight from where it left off. If the parties (against all odds) decide to pursue the issue, the chief prosecutor knows he has very little chance of success with the new expanded 17-member Constitutional Court. With this old pattern of behavior, he would only succeed in victimizing the AK Party on the eve of new elections, thus putting the opposition in an even more precarious position.

If the move by the chief prosecutor is an outcome of a new escalation, one may expect the top command to declare soon that it is refraining from joining the Republic Day reception on Oct. 29, in which the First Lady will welcome guests while wearing her headscarf, putting an end to a practice of absence in prior years.

The remnants of the tutelage have -- sadly -- not yet learned the lesson of letting civilian politics alone to find their democratic balance.

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