Legal persons, yesterday and today
Can a legal person be conservative, liberal or socialist? Of course they can.
There can also be differences of opinion among them in legal interpretations. However, if the concept of a “pluralist democracy” has been adopted, then there are sine qua non fundamental principles of this. At the top of them are separation of powers, independent and impartial justice and fundamental rights and freedoms.
According to these principles, the “elected” rule the country; they make laws but they have to abide by the law. It is the independent judiciary that monitors this. The judiciary, just like the legislative and executive, is a right of sovereignty.
Until recent years, there was a general common stance among the liberal, conservative and liberal-leftist legal persons. We were against both the military interventions and the Feb. 28, 1997, post-modern coup. We were criticizing the speeches of the military commanders influencing ongoing cases, as well as the attempt to close the Justice and Development Party (AK Party). The secularism definition of the Constitutional Court and the scandalous “367 decision” were also among what we criticized…
A prominent Turkish jurist, Sami Selçuk, criticized the Supreme Court of Appeals for violating the procedural law and sentencing President Tayyip Erdoğan with these words: “The decision of the Supreme Court of Appeals has demolished the fundamental principles of law… The right to a fair trial has been violated…” (Özlenen Hukuk, page 243)
The ruling party, in its legal adjustments and amendments, was basing its decisions on universal criteria such as the “EU criteria and Venice criteria.” The draft of a new constitution was being prepared by liberal Prof. Ergun Özbudun and his colleagues.
Instead of who, ask how
Today we have certain liberal and conservative legal experts who do not criticize the practices of the government that are contrary to universal principles and even the controversial laws that are made and remade like a game. Or they explain these government practices through “circumstances.”
I will not name any; my aim is not a polemic. With the Karl Popper method, I am trying to deal with these matters not by asking “who?” but by asking “how?” Just as I criticized tutelage yesterday, today I am criticizing the laws and acts of the government that I see as contrary to the above mentioned principles.
Most of all, I believe the legal experts within the ruling party should prioritize the fundamental principles of constitutional law such as the separation of powers and value it above the sense of political power.
At this point, I have a quote from the expert of experts, Prof. Ali Fuat Başgil. It must have been the year 1938 or 1939, when Prof. Başgil was lecturing at a university and said:
“The most truthful definition of cruelty is the gathering of all the powers of legislation, execution and judiciary in one hand. This person or this center may or may not obtain this power by proxy, may obtain it by appointment or may gain it by elections; it does not make any difference. … The only guarantee of rights and freedoms in a country is the restriction of these powers by each other.”
These words were uttered at a time when the “union of powers” was being practiced in its strictest form.
Today we are in the year 2016. Prof. Özbudun is a constitutional expert with international references. In Prof. Özbudun’s “Constitutionalism and Democracy” published from Bilgi University Publications, he criticizes authoritarianism. In the book, he also scrutinizes one by one the so-called “jigsaw” laws, a phrase used to describe the laws made by the government only to be changed after a short while, often times going back to the original version or contradicting the amendment made by themselves.
Today, Sami Selçuk, in his book titled “Türkiye Cumhuriyeti Başbakanına Beş Mektup” (Five Letters to the Prime Minister of the Republic of Turkey), is explaining how law is bruised.
Can it be that all of these have no meaning for legal people, none?
With which legal theory can the argument of defining the “power of sovereignty” by only legislation and execution, excluding the judiciary be defended?
Of course there are different party and system preferences. But, what I am saying is that legal experts should be as sensitive as they used to be in old times regarding rule of law and universal references…
When they do, then both the tension will drop and the matter of the constitution will be debated, not by the language of a political war but by the language of legal discussion.