"Il Rule of Law identifica la fonte primaria dell'ordinamento non già nella legge, come gli ordinamenti di Civil Law, bensì nella giurisprudenza."
Güvenlik ve demokrasi ilişkisi Türkiye için yeni bir konu. Türkiye'de yargının bir takım güvenlik operasyonları için kullanıldığını ilk Turgut Kazan ortaya atmıştı. Onun için kurulan 'Kumpas'larda gizemli kısım 'yargı'nın rolüydü. Üstelik Hanefi Avcı görevi bırakalı en az 20 sene, HSYK kanunu geçeli 5 sene olmuştu ama olsun, zaten araya Suriye savaşı girmişti, zaten gençler Gezi'de sonun başlangıcını başlatmıştı. Geç olsun güç olmasın. Ancak yargının bu "güvenlik operasyonları"ndaki rolünü pek de açıkça anlatmaya yanaşmadı. Ancak Yetmez ama Evet'in yargıyı "Hizmet hareketiyle ilintili savcı ve hakim"lere bırakacağını bilmiş ve hainleri, işbirlikçileri beraberinde getiren iç savaş "gündemine" katkıda bulunmuştu.
Hizmet hareketiyle ilintili savcıların açtığı davaların önemli kısmı kamu yararı ya da demokrasi derdiyle değil bu tip operasyonlar için oluşturulmuş davalardı. Mesele neydi beni ilgilendirmez. Hanefi Avcı'dan anladığımız bu onlardan önce de yapılıyordu. Ancak iktidar mücadelesi safasına geçilmiş miydi bilmiyorum. Hizmet hareketinin henüz iktidarda önemli bir paydaşlığı yoktu, Hanefi Avcı'nın kendisinin ise Hizmet hareketi ile ilgisi de ayrı bir konuydu. Türkiye'de birbirini iktidardan itekleyenlerin ağız dalaşı sürdü ancak gazetecilerin açısından tek konu Çetin Altan'ın deyimiyle Camii parfümlü siyasetle Kışla parfümlü siyasetti...
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Democracy and Security relation is a new topic in Turkey. It was first lawyer Turgut Kazan who provided the thesis (or analysis, either true or not) for the employment of the judiciary in security operations: emphasising it was (for his point of view) to enforce the power of the security operations' illegal "trapping action" providing fake claims to eliminate the opposition: which he meant, (or grammarised the problem under his title as lawyer) providing fake claims for the security operations to eliminate the opposition by a religious group against laicist, republican citizens was the issue but not the institutional downfall of the judicial body.
It was the power clash over the judiciary and other powers which were held in illegal ways, thus judiciary was employed to have power on judiciary (and later, maybe over the political body) between different groups, as it was the contemporary de facto The Rule of Law, if one can say so, of this period.
It swept away the necessary principle which the democracy had to pursue other than political contentions, the essential important notion for the sake of democracy: illegal violation of the non-mixing of powers principle and the political debate had been reframed to by the clashing groups to its political/ideological side(Islamist extremism / Political islamism vs. Laicism or Republicanism) but not the constitutional or legal side.
Venice commission's view on wether judges or prosecutors may have political or ideological sides, of which would not be possible institutionally or not violating the human rights to prevent this but the line between the professional work and political thoughts were also an important issue of evaluation in the publications.
For judicial authority need for surveillance had never been an issue in the debates of the lawyers and the Hizmet movement had defended their side for their handling of the judicial and security work of being in accordance with the international principles wether or not used over their opponents: but the democracy in Turkey and its relationship with the Europe had been frustrated heavily.
Hizmet movement affiliates and also AKP members asserted that the constitutional changes on the 12th September 2010 referendum and the changes on the Law on Judges and Prosecutors -HSYK Kanunu- was approved by the Venice Commission which was only a draft opinion. On the Venice Commission's side it was a good improvement that the government had asked for an opinion about their constitutional changes, which meant for the Venice Commission, Turkey was preparing to pursue the route of the Rule of Law and also Democracy through Law however, it was also emphasised that guidance of the Venice Commission ought to require more constant enthusiasms such as not being so sure of the encouraging passages in the opinions of the Venice Commission mean that AKP or Hizmet affiliates was law experts, democrats, strong supporter of the Rule of Law or the Democracy through Law.
CDL-AD(2010)042-e
Interim Opinion on the Draft Law on the High Council for judges and Prosecutors (of 27 September 2010) of Turkey - adopted by the Venice Commission at its 85th Plenary Session, Venice (17-18 December 2010)
http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2010)042-e
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Democracy and Security relation is a new topic in Turkey. It was first lawyer Turgut Kazan who provided the thesis (or analysis, either true or not) for the employment of the judiciary in security operations: emphasising it was (for his point of view) to enforce the power of the security operations' illegal "trapping action" providing fake claims to eliminate the opposition: which he meant, (or grammarised the problem under his title as lawyer) providing fake claims for the security operations to eliminate the opposition by a religious group against laicist, republican citizens was the issue but not the institutional downfall of the judicial body.
It was the power clash over the judiciary and other powers which were held in illegal ways, thus judiciary was employed to have power on judiciary (and later, maybe over the political body) between different groups, as it was the contemporary de facto The Rule of Law, if one can say so, of this period.
It swept away the necessary principle which the democracy had to pursue other than political contentions, the essential important notion for the sake of democracy: illegal violation of the non-mixing of powers principle and the political debate had been reframed to by the clashing groups to its political/ideological side(Islamist extremism / Political islamism vs. Laicism or Republicanism) but not the constitutional or legal side.
Venice commission's view on wether judges or prosecutors may have political or ideological sides, of which would not be possible institutionally or not violating the human rights to prevent this but the line between the professional work and political thoughts were also an important issue of evaluation in the publications.
For judicial authority need for surveillance had never been an issue in the debates of the lawyers and the Hizmet movement had defended their side for their handling of the judicial and security work of being in accordance with the international principles wether or not used over their opponents: but the democracy in Turkey and its relationship with the Europe had been frustrated heavily.
Hizmet movement affiliates and also AKP members asserted that the constitutional changes on the 12th September 2010 referendum and the changes on the Law on Judges and Prosecutors -HSYK Kanunu- was approved by the Venice Commission which was only a draft opinion. On the Venice Commission's side it was a good improvement that the government had asked for an opinion about their constitutional changes, which meant for the Venice Commission, Turkey was preparing to pursue the route of the Rule of Law and also Democracy through Law however, it was also emphasised that guidance of the Venice Commission ought to require more constant enthusiasms such as not being so sure of the encouraging passages in the opinions of the Venice Commission mean that AKP or Hizmet affiliates was law experts, democrats, strong supporter of the Rule of Law or the Democracy through Law.
CDL-AD(2010)042-e
Interim Opinion on the Draft Law on the High Council for judges and Prosecutors (of 27 September 2010) of Turkey - adopted by the Venice Commission at its 85th Plenary Session, Venice (17-18 December 2010)
http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2010)042-e
Opinion on the Draft Law on Judges and Prosecutors of Turkey adopted by the Venice Commission at its 86th Plenary Session (Venice, 25-26 March 2011)
http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2011)004-e
Hanefi Avcı's book, before Turgut Kazan, were already containing clues for such abuses. And it was already 20 years since Hanefi Avcı had retired. Kazan's references was more close to the political discourse as there had been a clash among the AKP and the Hizmet movement he signified the Hizmet associated prosecutors and judges but not the misuse and abuse of judicial authority or non-mixing of powers which was may also be all the country had been trapped by the fear of the AKP to lose the power and their fears' aftermaths in the poltical discourse and actions which was also resembling to a civil war.
Hizmet associated prosecutors had also maintained surveillance operations which were then seen in the press after the break-up of AKP-Hizmet cooperation in the political and judicial body. But for Turgut Kazan, it was not the problem the collection of data and the problem of its protection and handling but the "political adversary" and what they possess in the political and judicial body, themselves.
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A. DEMOCRACY AGAINST TOTALITARIANISM
28. In a sense, democracy is the system in which, in the absence of unanimity, collective decisions fall to the majority.
But as many authors have observed, this function of the majority implies a consensus on the coexistence of the majority and the minority. Those in the minority in a democracy disagree with the majority, except on one point: that all must continue to live together, with the risk for one camp, and the chance for the other, that the minority will become the majority.
In addition, the minority, as a group or as individuals, have "reserves" defined principally by human rights.
Democracy is therefore at once a system in which the majority decides and an "anti-totalitarianism", opposed to the totality of the rules applicable to social life being monopolised by the same man or group of men.
In the context of the revolutions of the XVII or XVIII centuries (Great Britain, the United States, France), marked by the dominance of the monarch, this struggle against totalitarianism focused on a struggle for the sharing of political decision-making between the executive, legislative and judicial branches, according to the precepts (not absolutely in agreement) of LOCKE, MONTESQUIEU and the Fathers of the American Constitution.
But if the separation of powers is an essential aspect of democratic constitutional theory, it must not be forgotten that it is simply one factor in this rejection of totalitarianism.
Firstly, because political reality has sometimes given the legal formulations of the separation of powers an unexpected content. Although, in theory, in Great Britain the Government and the House of Commons have distinct powers and the means of influencing each other (political accountability of the Government, right of dissolution) are balanced, it has been argued that in fact the majority party, because of the sovereignty of the majority in Commons and party discipline, controls both the legislature and the executive. But it is here that such powerful anti-totalitarian factors come into play that no one has ever suggested that Great Britain was a totalitarian, dictatorial or simply authoritarian State. These factors are: the prerogatives of the Opposition; political pluralism; rights and freedoms, particularly of expression; local self-government; the independence of the judiciary. Similarly, in the United States, which is legally very attached to a strict separation of powers, presidential power is limited not only by the prerogatives of Congress but also by the federal structure.
Furthermore, totalitarianism does not consist only in the concentration of all political power (directly or indirectly) in the same hands (man or party), but also in the fact that the political authorities claim to control all aspects of the individual's life: his upbringing, his intellectual training, his beliefs, his work, his leisure, his private life, etc.
The struggle against totalitarianism therefore implies another series of "separations": separation of State and private life; separation of State and religion or beliefs in the broadest sense; separation of State and work.
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