Former President of the Constitutional Court Haşim Kılıç answered Hayrettin Dincelir's questions.
Kılıç stated his ideas in a wide range from the principle of separation of powers to the importance of the Constitutional Court, from the parliamentary system to the dilemmas of the presidential system, from the Decree Laws (KHK)'s to the functionality of law faculties, from the economic crisis to the tutelage discussions.
What would you like to say if you give your resume briefly?
In 1974, I started to work as the Auditor of the Court of Accounts. After working for seventeen years, I was elected as a member in the elections of the General Assembly of the Court of Accounts in 1985. After serving as a member of the Court of Auditors for five more years, the late Turgut Özal appointed me to the Constitutional Court from 1990 to February 2015. Among the three elected to the Constitutional Court in 1990, that is to say from among the three elected by the Court of Auditors. We served in court. I served as the vice president of the Constitutional Court for 2 terms and 4 years each, and served as president for 2 terms and retired after serving as president.
If you look at the separation of powers, what would you like to say about the importance of the Constitutional Court?
When the separation of powers is mentioned, the parliament makes the laws, the executive body implements this and the Constitutional Court as the judicial body supervises it. In other words, the main joke of the separation of powers is that the persons who make the law, implement the law and control the law are separate persons. Therefore, if you do not create the principle of separation of powers, it would be very difficult to reach the conception of the rule of law. The importance of the Constitutional Court stems from the fact that the law has overseen those holding this power by conducting an audit of constitutional compliance.
Can we perceive these actions as initiatives of any civil, military or bureaucratic custody focus during the closure case against the ruling party, which is the continuation of the e-memorandum event that followed the 367 crisis you witnessed?
If the developments had been abandoned to the natural course of democratic life, what you would have said would never have occurred. In Turkey, however, those who want to design political life, not complying with the presidential nomination of one mind as to who should be president has created serious shortages. Of course, the attitude of the judiciary was more important than the e-memorandum. The Constitutional Court has not passed a good exam in this regard. Although there are very clear provisions in the Constitution and the bylaws of the Assembly on what the meeting quorum will be, an interpretation was developed that the Assembly quorum should be 367, leaving the principle of honest interpretation. Both military and judicial fell behind this interpretation. In order to have such a meeting quorum in the Assembly, there should be a special provision in both the Constitution and the bylaws of the Assembly. In the general rule, it was clearly stated how many Parliament would meet. So it was one of the ways to start a fight and they started a fight. As a result, when you leave the right axis, the people correct it with their own votes, and in the end it corrected. I think that the votes of that day increased by 10-12 points, the answer was given. Therefore, this issue is one of the most exorbitant mistakes made in the history of law. I wish it had never happened, had not happened, but unfortunately we have faced such a situation. Those who caused this, those who made this interpretation, those who decided in accordance with this interpretation, took their place in history and they will never be forgotten, they will not be honored.
In the competition ceremony held in Competition Association in the last months; "Unfortunately, friends who started as morality and spirituality have left what morality and spirituality right now". Can you evaluate these statements in a wider scope?
That day was an award ceremony of the Competition Association. In fact, I have not made a broad statement there, it is the result of a short speech I made while the award was given. I gave the award to a friend for his work on how competition will develop in accordance with the procurement law. I stated that a tender law subject to more than one hundred amendments would not be able to provide competition, and that there could be only one reason for this change, and that these changes were made in order to move more easily, to give priority to someone more comfortable and to give privilege to someone. Thus, I mentioned that there is nothing to provide control in a place where people, society, institutions, moral rules to be audited and positive law rules are abolished. The erosion of moral values in this period, as well as the removal of positive rules that will enable people to act correctly, honestly and in the public interest, have led to the grave dimensions of the corruption incidents we all hear.
If we look at this point, can we see the effects of these disruptions in the legal order on the disruption of sociological, family and social structure?
Every place where haram bite enters is broken. This is the summary.
Again, in the perspective of what happened in that process, have you witnessed any pressure or direction faced by your person or the Constitutional Court that you chaired?
This has never happened to me. But if it was for other friends, those friends owe conscience to the nation to make the necessary explanations. However, I wrote about him at the beginning of the commentary at the beginning of the commentary section to make a note of what is going on, he goes beyond the explanation of the statement falls to the interlocutor friends. They need an explanation.
As you know, a referendum was held on 16 April 2017. With this referendum, there was a transition from the parliamentary system to the Presidential Government System. How do you evaluate this change in terms of justice mechanism and judicial independence?
Since the establishment of the Republic of Turkey, unfortunately, he has experienced serious questions about the independence and impartiality of the judiciary, and still continues to be experienced, it needs to be underlined. Those who were neutral and uncomfortable with the independence of the judiciary were others yesterday and others today. As I said, our problems in this area continue to get worse. I would like to clarify this aggravating problem by giving a few examples of the presidential system. First, the structure of the High Council of Judges and Prosecutors and its electoral system. Secondly, the structure and election system of the Constitutional Court. These two institutions are the most important and indispensable institutions of the judiciary. You cannot solve the problem of independence of the judiciary if you make the appointment system in these institutions without paying attention to the principle of separation of powers. When you look at the Constitutional Court as of the moment has 15 members. Of these 15 members, 12 are elected by the President, while the remaining 3 are elected from the parliament. As you all know, the majority party in the parliament will elect these members. Of course, the majority in parliament is likely to be the president's party. Thus, the will to appoint our judges in the Constitutional Court becomes a single will. This brings with it the question of independence and impartiality. I do not accuse the friends there that they are not independent neutral. Theoretically, when you look at it, it is a determination about what the system will bring and what it will take. Therefore, both the Constitutional Court and the HSK need to envisage a system that will ensure pluralism. Pluralism must be achieved. If you assign people of the same opinion, same opinion and belief to both institutions, problems will be inevitable after a while. If you can choose from different beliefs and different beliefs, you will prepare the ground for healthier and fair decisions because there will be a system of balance and control among themselves. However, a very caustic identity politics in Turkey consists of a magnetic field for influencing the judiciary is being carried out. With the politics of identity, the idea of seizing the forces in the hands of the state arises. For example, the seizure of institutions such as the judiciary, police, military and finance, and through them, seem to aim to internalize their policies and ideology even if they do not tell them from the outside. This understanding also affects the judiciary. In order to leave the judiciary alone, this seizure psychology must be eliminated. And political actors should move away from identity politics and move to a political platform that operates on more universal values.
When we compare it with the parliamentary system, we see that the weight and effects of the parliament and the deputies have decreased. How do you evaluate this situation?
Certainly, a number of powers and control systems of parliament in the parliamentary system were destroyed. The instruments of the Assembly, which will control and supervise the executive organ, have disappeared and problems have started. If the balance and control system were fully established, I think the name of the system did not matter. It can be a parliamentary system or a presidential system. The system now is a system that brought the world to practice in Turkey. We live in Turkey for the first time such a thing. Therefore, we faced a system that does not foresee the balance and control system which we call separation of powers. When this happens, problems arise and as a matter of fact, faults gradually started to show in the system. A new change and new projects have been started to solve the problems. We'll see it together.