Swoboda calls on gov't to show solid evidence of ‘parallel state'

The Turkish government's campaign against what it calls the “parallel state” through mass purges and demotions in the police and judiciary, and its accusations that the Hizmet movement has infiltrated the state and attempted a coup d'état, requires proof, Hannes Swoboda, the president of the Progressive Alliance of Socialists and Democrats of the European Parliament, has said.

In his keynote speech at the Justice and Rule of Law International Symposium in İstanbul on Thursday, Swoboda underlined that Turkish politicians have lost trust in each other. He brought up recent heated discussions that have occurred between politicians, as well as the government's discourse against non-political actors.

He said the EU's criticisms of Turkey are often perceived with animosity by Turks. “Once you start negotiations, your business becomes our business,” he asserted, calling on the Turkish public and the government to be more receptive of the EU's guidance.

Because of incidents the EU had encountered with candidate countries in the past, it decided accession talks regarding the rule of law and judicial independence, namely chapters 23 and 24, should be at the head of negotiations, not the end. Once a country becomes a member, it is very difficult for it to implement the necessary reforms on these crucial areas, which are of vital importance in terms of basic European values, he said. In this sense, how a government is dedicated to adopt and implement chapters 23 and 24 is important, before even the completion of the membership process, Swoboda said.

He criticized the government for taking excessive measures against the so-called parallel state and drew attention to the fact that the government only now seems to have noticed an “infiltration” after many years in power.

The government did a great job in 2010 in its attempts to reform the judicial system, he said, but added that it is “a strange situation” to see the government taking steps backward.

Organized under the auspices of Marmara University and the United Nations, the two-day symposium aims to deal with the rule of law from an array of different aspects, including its impact on the economy, relevance to fundamental rights and freedoms, press freedom and the importance of an independent judiciary.

Among the attendees, there are representatives from the UN, the EU, the European Commission, the World Bank, the Organization for Security and Cooperation in Europe (OSCE) and so on. Also, judges and prosecutors from Turkey, the US and Europe as well as academicians from top-notch universities including Harvard, Yale and New York University are at the symposium.

Professor Richard Fallon from Harvard University said during a panel discussion that political authorities must be highly aware of the basic principle of the rule of law obligating them to abide by certain principles, no matter the conditions under which they rose to power. He said there is no ideal paradigm to describe a “rule of law” but it is possible to gauge how distant or how close a state is from rule of law.

A political discussion often accompanies the notion of the rule of law, Fallon argued, averring that a set of certain cultural conditions kick in for the rule of law to settle in a nation. Looking at the international area, it is seen that the list of countries with a culture of an established rule of law is topped by North America and the liberal countries of the EU, Fallon noted. The bottom of the list is occupied, on the other hand, by those nations in which long-serving governments are abusing the power they have retained to the benefit of those groups close to them, as well as those countries struggling with poverty or with a history of dominion.

Fallon asserted that constitutional institutions are important for the rule of law to exist in a nation but cultural conditions are far more relevant. For instance, the problem in Turkey pertaining to the rule of law has more to do with its cultural background, he noted. No constitution is perfect as it may include deficiencies or weak points and therefore, what really matters is for people to grasp the spirit of the constitution rather than committing heavily to its wording, Fallon said. He said he did not know the debates surrounding the rule of law in Turkey in full detail but as far as he has seen, the source of the problem can be explained through the window of the existence of such a culture.

For Fallon, the way to possess a culture of rule of law depends on the “reasonableness” and the achievement of the “virtue of trust.” People should learn to empathize on the others; for example, a person in the majority in a society should consider how he would feel if he belonged to the minority, he argued, adding that governments must adopt such a perspective as well.

Furthermore, the virtue of trust is also imperative, especially for political actors, Fallon noted. He said this is what is needed the most in many countries around the world. Political actors may resort to interventions into the operation of the judiciary, like changing the legal system under certain circumstances, but this entails both a tragedy for the rule of law and ensues in a moral collapse in society, Fallon said.

Prof. Ergun Özbudun, an expert on constitutional law, warned in his speech about the threat that a ruling party with an absolute majority can pose to the rule of law. Such a political agent may try to control all state institutions, which ends up with the abolition of horizontal accountability. He said that this is what is happening in Turkey at present.

Özbudun went on to say that the government's recent attempts to reverse the reforms it had made to the judicial system through the 2010 referendum were ironic. With the constitutional amendments in 2010, the Supreme Board of Judges and Prosecutors (HSYK) in particular became more pluralistic and able to encompass almost the whole judiciary. Özbudun also said that the HSYK was changed at this time by the government alone -- without seeking popular support as it had done during the referendum -- to increase the influence of the justice minister and hence political influence on the judiciary. Such a comprehensive and radical overhaul of the system should have been performed through a constitutional amendment, he added.

Heather Gerken from Yale University made a distinction between the rule of law and rule by law. She described the former as a tool to protect citizens from the arbitrary rule of political authorities, whereas the latter is usually a tool of oppression and a sword against -- rather than a shield for -- the people.

For the rule of law to function well, institutions are important and necessary but they are by no means sufficient. What is imperative for the rule of law to exist in a country, Gerken said, is limits to the executive arm of government. “We don't call this a ‘parallel state',” she said.

Özbudun said that the Turkish people grasp the essence of the law, for the most part. He added that politicians may bypass the law in some instances, but a majority of the public seems to support the rule of law, which he said implies a strong tendency towards goodness.

He also argued that trust in Turkey among political actors and different groups in society has declined to almost zero. “For a strong democracy, trust is a must,” he said, adding that the main source of polarization in the country at present is psychological.

Manservisi: Turkish legal system still far away from EU standards

EU Ambassador to Turkey Stefano Manservisi, in his opening remarks during the inauguration of the symposium, said Turkey has not achieved the establishment of a judicial system in compliance with European standards and has failed to adhere to the rule of law.

Turkey and the EU have been working together on a comprehensive judicial reform, Manservisi noted, underlining that a justice system in full adherence to the EU system is of utmost importance.

Manservisi also asserted that the EU has been closely watching the developments since Dec. 17, when a corruption scandal erupted, implicating some members of the government. He said the Turkish government has rapidly been taking steps in the process, without due consultation with relevant bodies and this is having adverse effects on the law enforcers and prosecutors. There is a high level of polarization in Turkey and this is stalling the judicial independence as well as to the HSYK, the EU ambassador argued.

The demotions of prosecutors and the repositioning of police officers by the government after the corruption investigations became public and the ban on some social media platforms need to be carefully scrutinized, said Manservisi, calling on the government to find solutions to such problems in compliance with the rule of law at European standards.

Published on Today's Zaman, 08 May 2014, Friday