TURKEY: NEW JUDICIAL APPOINTMENTS LAW IRKS SECULAR

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 002958

SIPDIS

SIPDIS

E.O. 12958: DECL: 12/14/2017
TAGS: PGOV PHUM PREL OSCE TU
SUBJECT: TURKEY: NEW JUDICIAL APPOINTMENTS LAW IRKS SECULAR
ESTABLISHMENT

REF: ANKARA 2731

Classified By: Political Counselor Janice G. Weiner, reasons 1.4 (b),(d
)


1. (C) Summary: President Gul's midnight signing of a new
law governing the selection process for prosecutors and
judges brought sharp criticism from a legal establishment
that sees the move as a challenge to its independence by the
ruling Justice and Development Party (AKP). The truth is
more nuanced. The law codifies prior regulations and
establishes a mechanism to allow private attorneys to enter
the judiciary's ranks. The MOJ sees the measure as critical
to help fill over 4000 vacant positions. Reform-minded
contacts from academia, private practice, and civil society
believe the law will infuse new blood and fresh ideas into a
backward judiciary. The new law may help spur badly needed
judicial reform but is unlikely fundamentally to alter the
composition of the judiciary anytime soon. End summary.

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GOT Enacts Controversial Law on Judges and Prosecutors
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2. (SBU) The Turkish Parliament recently passed, and
President Gul signed a new Law on Judges and Prosecutors that
codified existing regulations governing selection of judges
and prosecutors. It also expanded the candidate pool to
include private attorneys. The Union of Turkish Bar
Associations organized a December 9 rally in Ankara's
Tandogan square that drew thousands of lawyers from bar
associations, law faculties, and NGOs to protest the law's
expansion of the candidate pool, as well as the requirement
that all candidates take an MOJ-administered oral exam.
Keynote speaker Ozdemir Ozok, President of the Union of
Turkish Bar Associations, accused President Gul of acting as
an AKP official instead of an independent President,
representing all of Turkey.


3. (SBU) Minister of Justice Mehmet Ali Sahin defended the
law during a December 11 "N TV" roundtable discussion,
arguing it was necessary to begin to fill 4,062 vacant posts
for judges and prosecutors. Sahin rebutted claims that the
law would politicize the judiciary, noting that it merely
codified existing regulations and practice. The MOJ had
administered an oral exam since 1934, and in the past had
administered the written exam as well. Sahin claimed, "As
long as I'm the Minister of Justice, I won't allow the shadow
of politics to be case over the judiciary."

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New Law Introduces Few Changes
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4. (SBU) Didem Ulusoy, the EU Commission's legal expert in
Ankara, explained to us that the new law codifies the
existing exam practice. Upon graduating, law students had to
choose one of two career paths: become a private attorney or
join the judiciary (judges and prosecutors). Those who chose
to be attorneys could not later transfer into the ranks of
the judiciary. Those who entered the judiciary would be
administered a written exam by the High Council of Judges and
Prosecutors ("High Council") -- a nominally independent body
that oversees selection, assignment, promotion, and all other
aspects of prosecutorial and judicial careers -- and an oral
exam administered by five MOJ officials and two officials
from the Justice Academy in Ankara. Candidates who achieved
a required score then received one year of training at the
Justice Academy, after which the High Council assigned them
to judicial positions throughout the country.


5. (SBU) The new law, per Ulusoy, also expands the candidate
pool, allowing private attorneys with five years of legal
experience who are under age 35 to sit for the written and
oral exam. The law increases to 70 percent the weight given
to the written exam and sets forth what specifically the oral
exam tests, with a focus on analytical and oral argument
skills. The law also makes it more difficult to expel a
judge or prosecutor from the profession: an official may be
expelled only when the High Council determines he committed
an act that undermines the honor and dignity of the

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profession, and for which the law provides no other
appropriate remedy.

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Critics: Law an Affront to Judicial Independence
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6. (C) President of the Union of Turkish Bar Associations
Ozdemir Ozok told us he believes the new law contravenes the
fundamental Turkish constitutional principle of judicial
independence. His Union has stood against the newly-codified
regulations since their introduction following promulgation
of the 1982 constitution. Instead of diminishing the MOJ's
role, he sees PM Erdogan on a mission to gain total control
of the government by penetrating the judiciary -- the only
branch his AKP does not yet control. Allowing the MOJ to
continue its role in selecting new judges and prosecutors by
presiding over an oral exam is, he believes, Erdogan's
vehicle to accomplish that. Ozok also believed AKP's failure
to seek input from civil society or bar associations, as well
as Gul's late-night (upon his return from foreign travel)
signing of the law were further evidence of AKP's efforts
surreptitiously to gain control over the judiciary.

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Supporters: Law Necessary to Help Reform Backward Judiciary
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7. (C) Several attorneys and academics told us the
"misplaced" and "overblown" criticism was clouding the real
problem -- the desperate need to modernize a backward
judiciary. Dilek Kurban, Democratization Program Director at
the Turkish Economic and Social Studies Foundation (TESEV)
and a Columbia Law School graduate, told us the judiciary's
problems begin early: none of Turkey's best universities
have law faculties. As a result, top-tier high school
students generally opt for a career path other than law.
Galatasaray University Constitutional Law professor Emre
Oktem agreed, telling us law students generally speak no
foreign languages and have never traveled outside of Turkey.
Law faculties encourage rote memorization over critical
thinking. Upon graduating, the top law students nearly
always opt to become private attorneys with international law
firms; second tier graduates become domestic attorneys; and
the rest are left to fill the ranks of Turkey's judiciary.


8. (C) Following graduation, future judges and prosecutors
spend a year together in pre-service training at the Justice
Academy in Ankara. There they are taught both their job
requirements and the importance of protecting the principles
of the Turkish state. Once assigned around the country,
prosecutors and judges share housing units and office space
and socialize together, along with other government
officials. This environment, according to Kurban, molds
judges and prosecutors into fervently nationalistic
functionaries who prioritize protecting the state over
individual freedoms.


9. (C) Kurban hopes the new law will inject fresh life and
critical thinking into the judiciary by allowing young
practicing attorneys to enter its ranks. Oktem conceded the
new law would allow AKP to influence appointments but was on
balance positive because it would introduce a new pluralism
into the judiciary as well. Human Rights Association Chair
Husnu Ondul saw the new law as a step toward reforming a
judiciary that sees its primary duty as protecting the very
"state" (e.g., errant police and Jandarma officers) it should
be sanctioning.

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Law Falls Short of EU Recommendations
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10. (C) The EU Commission's legal expert Ulusoy told us the
new law falls short of EU requirements on judicial
independence. The EU's Advisory Mission on the Functioning
of the Judiciary in Turkey had concluded that MOJ involvement
in selecting judges and prosecutors contravenes EU and UN
rules on judicial independence. Either the High Council of
Judges and Prosecutors or a fully independent Justice Academy
should have that role. Still, Ulusoy believes that allowing

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attorneys to enter the judiciary will help dilute its current
inflexible ranks with fresh, independent thinkers.


11. (C) Comment: The Turkish media have depicted this issue
as a battle for total control over the judiciary. It
illustrates at once the need for reform, the difficulties of
achieving that reform and Turkish establishment concerns that
AKP already controls too many levers of power. The reality
is that the new law may help spur badly needed judicial
reform by allowing private attorneys to enter a previously
highly insular realm. The law is imperfect -- too small a
step -- but there is little chance it will fundamentally
alter the make-up and mindset of the judiciary anytime soon.
Much remains to be done to bring about the fundamental
structural and educational reforms necessary to transform a
backward and corrupt judiciary (Transparency International's
just-released 2007 Global Corruption Report gave Turkey's
judiciary a rating of 4 on a scale of 1 to 5, where 5 is
"highly corrupt") into a modern, objective, and accountable
institution. End comment.

Visit Ankara's Classified Web Site at
http://www.state.sgov.gov/p/eur/ankara/

WILSON