Istanbul Bar Association Chair Mehmet Durakoğlu: The rule of law has ended in Turkey

CANAN ÇOŞKUN
 
I spoke to Istanbul Bar Association Chair Mehmet Durakoğlu about the notion of “justice” that has of late inspired marches and become a widely voiced demand. Durakoğlu, who combines chairship of the world’s largest bar association, the Istanbul Bar Association, with his duties as a lawyer, made important comments on many matters from the pacification of the legal profession to the Constitutional Court’s decisions that place its own existence in question.
-First the Ergenekon and Sledgehammer conspiracies, and nowadays the charging of unrelated people in FETO investigations, has reduced trust in the judiciary. What responsibility is entailed by chairing the Istanbul Bar Association in such a chaotic period?
A very serious responsibility. I think Turkey is undergoing the most serious judicial crisis in the history of the Republic. I am not just saying this by way of pronouncement because when citizens are asked, too, we see that trust in the judiciary in Turkey does not even make it into the thirty per cents. I think this had its inception in the 2010 referendum. The 2010 referendum was held to enable the political rulership to stuff the judiciary with its own people. Unfortunately, we were unable to get this across adequately in that period. We put up a great fight as the Istanbul Bar Association over that referendum period and tried to secure a “no” vote, but to no avail. Prior to the place we are now at, it led to the Ergenekon and Sledgehammer investigations whose aim was to rob the Turkish Armed Forces of its esteem; and then serious stuffing of the judiciary. Following 15 July, one-third of the existing judges and prosecutors were expelled from their posts and one-quarter of them were thrown in jail. This is the basic place the 2010 referendum has brought us to. If the Turkish people had not voted “yes” in the 2010 referendum, Turkey would not have experienced the 15 July coup.
The fight for justice is everyone’s duty
-What is incumbent on the Istanbul Bar Association and legal organisations in a period in which the law is disregarded to this extent?
They must fight. Everyone is up in arms. The matter of justice, which has been our perennial concern, has now become the concern of society. Bertolt Brecht said justice was as necessary as bread and water. Justice is indeed as necessary as bread and water. In our society, people want food, work, bread and water but do not want justice. We must change this attitude. The process that is unfolding is pulling society towards a point that will instil society with at least a degree of sensitivity about justice. We are also trying to contribute to this process. It is exceptionally important for us to be part of the process. Awareness must be cultivated in society over the notion of the independence of the judiciary. The independence of the judiciary is imagined to be a task for lawyers, judges and prosecutors. However, this is not so. The independence of the judiciary means living like a human and with honour, and it means legal certainty. Upright people with their heads held high being able to go around uprightly with their heads held high is what the independence of the judiciary amounts to. It means that when there is a knock at the door at six in the morning the milkman has come. Turkey has today lost its status as a state governed by the rule of law and the reason it has done so is the state of emergency in the process following on from 15 July, the decrees with the force of law issued in conjunction with this and Constitutional Court decisions in which it has relinquished the constitutional review of decrees with the force of law. I think that until these things are restored it is impossible for Turkey to reacquire the status of being a state that is governed by the rule of law and a democratic state. We are trying to wage a fight informed by this and to this end.
-What is it like to be a lawyer along with your duty as Istanbul Bar Association Chair at a time when the notion of justice is being voided through the actions of the political rulership and thus the courts?
From among judicial actors, the profession that the state of emergency and the exigencies of this period has hit the hardest is that of being a lawyer because we are limited as to the extent we can conduct our duty to defend thanks to certain restrictions introduced under decrees with the force of law. A restriction has even been imposed on lawyers obtaining file numbers in investigations. I know that absolutely no lawyer is embarking on the new legal year with hope. We are embarking on the new legal year with concerns over whether it will get even worse. While justice should be gushing from all rooms of judicial complexes, we face a situation in which great care has been taken to close and lock those rooms in their entirety and effort is made to stop justice from emerging. But, the call to fight constantly summons us.
-There is talk of imposing standard attire for detainees.
There is a widespread principle of not tarnishing people who have not been sentenced with finality and people who are subject to detention as a precaution. I am on trial and in detention and you dress me in an attire and tell me to attend the trial in it, moreover in a period in which detention is easily imposed. Maybe I will be acquitted. What is to become of the principle of non-tarnishment? What am I supposed to say over this process, and to whom? Human rights are for honourable living. Trials cannot be conducted with human rights breached.
We are supporters of the Justice Watch
-Talking of the demand for justice, there is the Justice Watch that lawyers have launched at the Istanbul Judicial Complex with this very demand. How do you view this watch?
It appears by its nature to be a watch prompted by what was done to Cumhuriyet newspaper. But, when you look into it, this is an example in which tangible expression has been given by lawyers to the effort to demonstrate the need and sensitivity for justice in Turkey.
-The Justice Watch arose spontaneously following the appearance of the Cumhuriyet indictment. The police and security staff attacked the first watch and one lawyer’s leg and another’s nose were broken. What was the reason you attended the watch in the tenth week?
The decisions pertaining to the launching of the Justice Watch were not taken by the bar association. It was a decision taken by one section of lawyers. There was a curious development on that day. There was the Berkin Elvan trial on the day the first watch was held. I was in contact here with the security forces as of the moment that the Justice Watch started. I tried to talk. They were alleging that there was a connection between the Berkin Elvan trial and the Justice Watch. I tried to explain that this wasn’t true. I said, “This is not what’s on the lawyers’ minds. There’s no connection between the trial going on above and the watch going on below.” This was something that had coincided on the same day purely by coincidence. With the security forces on the one hand thinking that certain things might break out at the Berkin Elvan trial and taking stock of this, they were thinking on the other hand that this protest would gradually shift its focus in that direction. So, the way things were playing out there also caused us concern. I in particular expended a great deal of effort so that the incident that broke out that day would not end as it did, but in truth was unable to do so. The Justice Watch is not a bar association action. It is an action that lawyers have put together by themselves. But it is also an action that the bar association supports. We are up there and part of the fight. There is absolutely nothing acceptable about the intervention in that manner made that day against the lawyers from the judicial complex.
Recipe for exiting the judicial crisis
-There should be no stuffing. The political rulership must quit stuffing the judiciary. FETO is not the only brotherhood that considers its own sheikh to be the messiah. If they try to conduct stuffing by pulling out the FETO brotherhood and bringing in another brotherhood, this will have grave consequences.
-The principle of merit must return. The idea of merit must be developed. Organisation within the civil service must to a marked degree be conducted on a merit basis.
Why does the Constitutional Court exist?
Durakoğlu raised the issue of the reason for the existence of the Constitutional Court in light of its decision to point those wronged under decrees with the force of law in the direction of the State of Emergency Investigation Commission, and said the following: “The State of Emergency Investigation Commission was set up for those wronged under decrees with the force of law. The Constitutional Court, having kept those cases waiting for one and a half years, has pointed them in that direction. When forecasts were made that under the most optimistic forecast the first ruling may be passed five years later, we began to see that the process we call access to justice had essentially been blocked in Turkey. Access to justice is one of the principles on which universal law has reached general agreement. Especially the Constitutional Court decision pointing to the State of Emergency Investigation Commission lends itself to the conclusion that this commission was set up as part of an agreement by the government with the Venice Commission. This brings home the truth to us that neither the Constitutional Court nor the Venice Commission are thus acting sufficiently justly in the matter of access to justice. I think that the Constitutional Court’s place in this matter is exceptionally important. The Constitutional Court’s decision that it passed most recently pointing to the State of Emergency Investigation Commission and its decision not to conduct constitutional review of decrees with the force of law is tantamount to the disappearance of all mechanisms that might prevent the administration from seriously deviating from the law in Turkey. As of now, the question ‘Why does the Constitutional Court exist?’ is exceptionally important. I want to ask from here ‘Why does the Constitutional Court exist?’ If citizens can remain bereft of the constitutional guarantees that ensure a state is governed by the rule of law and the Constitutional Court does not raise its voice over this, why does it exist?”