Last Word: Sami Selçuk

Turkish Review - - CONTENTS -

TR: What should the re­la­tion be­tween democ­racy and the rule of law be like? SAMİ SELÇUK: The terms “rule of law” and “supremacy of law” are prod­ucts of the An­glo-Saxon sys­tem seen as the cra­dle of democ­racy. Of th­ese terms, I pre­fer the lat­ter, in which the in­di­vid­ual and the state are equal be­fore the law. Un­like the for­mer, so­ci­ety -- not the state -- pro­duces laws. Democ­racy can evolve and live in such a sys­tem. TR: What is the sit­u­a­tion in Turkey re­gard­ing the re­la­tion­ship be­tween democ­racy and the rule of law? SS: I re­gret to say that it’s very back­ward. We haven’t been able to es­tab­lish the idea that lead­ers and so­ci­ety must fol­low the law. From time to time things are done in line with the warn­ings of the Euro­pean Coun­cil and the EU, but we quickly de­stroy the progress. We de­base ev­ery con­cept and in­sti­tu­tion we bor­row from the West. Sec­u­lar­ism, for ex­am­ple, and the Supreme Court of Ap­peals. Then we cry over spilt milk. Th­ese con­cepts have been de­vel­oped in the minds of peo­ple over thou­sands of years. They have not come into ex­is­tence overnight. You can­not speak of sec­u­lar­ism in a coun­try where reli­gion is guided by the state and where peo­ple’s reli­gion and re­li­gious ide­ol­ogy are determined by the state. Nowhere in the world is an in­sti­tu­tion made up of over 500 pres­i­dents and mem­bers with al­most 1.5 mil­lion du­ties called a “Supreme Court of Ap­peals.” The world’s old­est supreme court is the French Court of Cas­sa­tion, which has been a model for all supreme courts in Europe. It has 95 pres­i­dents and mem­bers, six cham­bers and al­most 30,000 du­ties. In Euro­pean coun­tries, the Court of Cas­sa­tion has the most great­est area of re­spon­si­bil­ity [in the ju­di­cial sys­tem], and this is­sue gen­er­ates big dis­putes. In the 1950s, an at­tempt to es­tab­lish a new cham­ber [in the Turk­ish courts] was dis­cussed. The sit­u­a­tion here is a to­tal dis­as­ter and the con­tin­u­ous in­crease in the num­ber of cham­bers and mem­bers il­lus­trates that ig­no­rance and sense­less­ness have reaches a cli­max. It re­ally makes me suf­fer. Re­ally, I’m em­bar­rassed by the state of the legal sys­tem. There’s no way an in­sti­tu­tion that is in the hands of ig­no­rant could be cor­rupted more [thank it is now]. TR: You wrote a let­ter to a mother who lost her son in the Ermenek min­ing dis­as­ter, say­ing that, “What has failed is not your hope, but the law.” What kind of con­nec­tion do you see be­tween a mine ac­ci­dent and the fail­ure of the law? SS: The law is a su­per­vi­sion mech­a­nism. A legal sys­tem that does not suc­ceed in do­ing this is use­less. Hu­man­ity can­not aban­don mines or stop trav­el­ing by planes, cars, ships and so on. Th­ese are a ne­ces­sity part of civ­i­liza­tion. In law, we call this “dan­ger that is en­vis­aged.” Yes, you are tak­ing a chance, but dan­ger is min­i­mized by in­spec­tions. But in Turkey this in­spec­tion is not es­tab­lished or sig­nif­i­cant. So­ci­ety is fa­tal­ist. TR: Judges and at­tor­neys need to be in­de­pen­dent and ob­jec­tive but isn’t it the duty of the leg­isla­tive branch of gov­ern­ment to pro­tect this in­de­pen­dence? What are judges and at­tor­neys’ du­ties to­day? SS: You’re ac­tu­ally an­swer­ing the ques­tion your­self. Judges and at­tor­neys have to be hon­est, con­sis­tent, main­tain an equal dis­tance from all par­ties, and be truth­ful, in­formed, ob­jec­tive, im­par­tial. In par­tic­u­lar, judges need to be de­tached from the leg­is­la­ture and the ex­ec­u­tive, public opin­ion, their world­views and their re­li­gious be­liefs. Of course, th­ese are not traits that can be ac­quired eas­ily. But a judge has to suc­ceed [in th­ese ef­forts]. When mak­ing a de­ci­sion, a judge is left alone with the law and the case file. The world apart from this is nonex­is­tent to the judge. But politi­cians don’t leave the ju­di­ciary alone! Each day, some­one takes their place and passes judg­ments. In 1999, when open­ing the legal year, I said that the ex­ec­u­tive had en­cir­cled the ju­di­ciary [in Turkey]. Af­ter warn­ings from the EU, peo­ple tried to fix the sit­u­a­tion, but there was no end to it and there have been re­gres­sions. In Turkey, the ju­di­ciary is not in­de­pen­dent at the mo­ment, and I am sorry to say that it is trail­ing in the wake of the con­sti­tu­tion of 1982.

A longer ver­sion of this in­ter­view is avail­able on­line.

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