Mr. Nuri OK's 22.07.2005 Dated Speech
First of all I would
like to greet distinguished colleagues and distinguished members of the media
with a great respect.
It is, of course, a great pleasure and an exclusive event to be regarded
worthy for an award. The opinion of granting an award is also an example of a
subtle, elegant and noble behaviour.
I must confess that
whenever I am granted an award, I suffer from boredom rather than being glad.
The reason of this is that I have tried to put the fairness and justice before
myself in every single post I have held in the judiciary up to now. I declared
this approach when I started to work as the General Public Prosecutor. I feel
like as if I put myself before the justice and exclude my principle of being in
the back place by taking an award. However, I have considered the awards given to
me in the name of the justice as they have been given for the respect for
justice and the rule of law, and accordingly, I have tried to defeat the
boredom by means of declaring that I have accepted them on behalf of the all
distinguished, courageous, and successful jurists loyal to their principles.
However, the award of
the International Transparency was on a distinct field. They asked to me, with courtesy,
whether I would accept the award or not.
As you know, the award
was on integrity. At first, I hesitated, because, the ethic of character, which
also includes integrity, is the minimum value of the judges and public
prosecutors. However, this value is not adequate for us. The ethic of character
should be supported with ethic of justice. Therefore, at first glance, I
regarded accepting an award for the integrity, which a requisite of being a
jurist, as incongruous. None the less, I relieved when I was informed that this
award was on fight against corruption as well.
I perceive this award as
it has been granted for all those judges and public prosecutors that posses
ethic of character enriched with ethic of judge and I would like to point out
once more that I am accepting it on behalf of them.
I would like to thank to
International Transparency both on my own and on behalf of jurisdiction.
I wholeheartedly
congratulate Mr. Ömer Süha Aldan, public prosecutor, and Mr. Sefer Hakan Olgun,
the Goalkeeper of Akçaabat Sebatspor, who are deemed worthy for special thanks
in the same branch.
Distinguished Guests and distinguished Colleagues,
It is doubtless that, of
all the civil initiations that construe a meaning and give birth to the
democratic society, the NOGs are the prime ones. The common objective of the NGOs
that activates the internal dynamics and guides the society is to ensure the
respect for the law and the lawful behaviour. The respect for law is the
respect for human being and the rights and freedoms of him; indication of his
responsibilities. NGOs are the public and play a role as the community itself
and operate and display activities as such.
In the organization of this type of civil initiations- prioritizing
pluralism of and participation in the democracy; indicating the development
level of consciousness of social responsibility-, the reflection of the efficiency
of the will of the people put by the election, and alteration of it in the
course of time; and the application of the interest of the people; and the
leadership in safeguarding the democratic regime are all undertaken voluntarily
by them.
To ensure a proper
operation of democracy is impossible in the societies which are deprived from
efficient organization of NGOs. The
NGOs, the alternative attraction centres to the political parties, posses the
characteristics of being more vivid, dynamic,
influential and free; and contemporary, anti-centralist, excluding the
form of bureaucratic organization as well. The future of the democracy;
accordingly, the future of the human beings, depends on the progress and the
success of these organizations. In our country, although the elements known as
the assurance of the regime and given that mission; the justice is independent;
the opposition parties are powerful and the media is free, there is a need for
much more progress and becoming prevalent of the NGOs which will reinforce
these powers and fill the likely void fields, and actuate and guide the public;
the politics; and the governance.
In this context; I would
like to stress, once more and importantly, that the judges and public
prosecutors, for whom there exists no legal obstacle anymore, are late in
forming associations for defending their interests, improving their
professional training and protecting their independence.
I, wholeheartedly and
with the feelings of indebtedness and
gratitude, congratulate the founders of International Transparency, and the
members and the executive directors of it who strengthened and brought it to
these days by means of going into action in a transparent ambient in the domain
of integrity with a view to establishing a Turkey purified from corruption in
the State; in the politics; in the business world; in the civil society and the
daily life of the people, in the light of “fundamental principles” such as; safeguarding
the secular and democratic republic, values of contemporary societies,
integrity of the country, national unity, rule of law and the interests of the
people. We all hope that we have contributed to their objectives. We also know as a part of their activities,
that the opinion of awarding and award ceremony itself is a means to keep the
fight against corruption on the agenda which we share as a part of our duty.
It should not be
forgotten that there are two main factors that cause the contamination in the
state and in society; the first one is the limitation of the ambient of free discussion,
free research, to inform and to be informed. The contemporary human being is
the creative person who reads, thinks, searches, writes, questions, and
analyses and finds solution and manage to get rid of the easiness of the
patterned opinions and ideological approaches. This type of person cannot
accept any field outside of search, discussion and questioning, including even
the holy believes and the values.
The second one is the
fact which was already experienced during the Ottoman Empire stage; the
determination of III. Selim which states “the fact of that the law has not been
applied is reason of the situation of the State” and the observation of
Vakanüvüs Abdurrahman Efendi which reads as follows: “There were the laws of
the State, but nobody obeyed them. They did not obey the rules they set.
However, in Europe, the laws are in domain. All people, from the monarch and
individuals have to obey the rules; otherwise, they are forced to do so” are
example of it. This is an indicator of the requisite of the rule of law which
forms the basis of State of law in the history.
We all suffer from the reflections of these two fundamental, but dirty
approaches, both as individuals; society and state.
The society, which does
not refer to or mention the law, is a society full of contamination.
The most important
contamination which erodes internally, putrefies, decomposes, corrodes the
reliance to the regime and the politicians, and leads to poverty and
deprivation is the organized corruption.
It cannot be alleged
that the required measures of the will and determination in fight against
corruption have been properly taken. The view of that much should be done in
this field both by the state and by the civil initiations is still valid. As
everybody knows, the politicians also know that there are still some fields
which have not been touched.
The democratic society can be formed in proportion to the realization of
a transparent society. It should be
noted that the politics which is in the aim of creating and providing profit
would mess the democracy.
It is known that transparent governance and clean politics are the first
and basic conditions of a clean society. It is not possible for the society to
be still kept clean where the politics is not clean.
The first measure which will lead to achieving a clean society is the
transparency and another one is the domain of the democratic principles in the
governance of the political parties. It is noticed that getting ahead in
democracy gives rise to a decrease in corruption. The reason is that the
transparency in the governance of the state immediately relieves the political
dirtiness.
The approach which
attaches much importance to the interests of the political parties and/or the
members and/or supporters of it than the interests of the state and the
society- the culture of looting which is beyond the partisanship- should be
regarded as the prime negativity. The politician, with the responsibility of
being a statesman, should prioritize the law, ethics and the common interests
of the people in a courageous manner when confronted with inappropriate and
unjust demands of interest or privilege that are contrary to the interests of
the state; and accordingly, to the people.
Today, it is apparent
that the most significant contamination in our country has been intensified on
the use of religion and its sacred values. It is made use of in politics; it is
made use of in trade. It is desired to be made use of in every field. What is
worst is that the religion also desires to make use of state and has being
intensified its activities and effectiveness towards this goal. This is, of
course, a very serious situation. It is impossible not to notice that the
fundamentalists who are determined in their goals of political Islam has raised
their tempo and increased the fields of efficiency. To notice this, I think, it is sufficient just to look around and
observe. It should not be supposed that there is no threat for secular
democratic republic, although it has strong roots, in an environment in which
every thing is assessed with regard to religion as well and there is an
increased tendency in explaining of and finding solution to the social facts
and problems under the justification of religion. Above all, where bigotry,
fanaticism, superstition, ignorance, old wife’s tale, brainwashing cannot be
prevented , just on the contrary, is supported secretly or evidently, it should
be deemed that obstacles have come to the surface in the path to the modernity.
There are two revolution
principles, which cannot be abandoned by our people and nation at any time and
in any case; modernity and secularism.
The opposite of
modernity is reaction. This is the situation which has recently been seen on
the spot of Çankaya and it is absolutely grave. In coming to this point, which
made us feel chilly and anxious, the
influence of some certain centres which hided their strategy of taking up a
position against the philosophy of establishment of republic and revolutions;
the opinions of Atatürk and democratic system but rather evaluated the matter
just from the perspective of the freedoms cannot be denied. As pointed out by
an esteemed columnist, “how Pakistan has come to these days should be
instructive for us.”
Neither should we be
against religion or religions nor secularism. Neither let us make use of
religion nor let the religion make use of the state.
Besides the democratic
and political maturity, the internalization of rule of law by the political
power and the government will ensure to pass over the social and institutional
tensions in a short time.
In order to ensure the
future of the democratic system and functioning of it without suffering an
accident, the balancing borders of the field of duty and competence of powers,
that is to say; legislation, governance and jurisdiction should be defined
decisively.
it should be bear in
mind that totalitarian tendencies and way of searching for it can not find a
room for themselves in a social and political ambient in which the democratic
principles, customs and culture and the constitutional principles that are also
universal ones such as “it cannot be digressed from order of law defined with
the democracy advocate of freedom and its requisites”; that “the separation of powers does not mean that
there is a hierarchal order among the powers”; that “the supremacy only belongs
to the constitution and the laws” are internalized, and it should also be noted
that there are lots of obstacles in this way.
The source of legitimacy of all the organs and institutions of the state
is the Constitution approved by the votes of the people. Nobody or no organ can
use a power of state which does not derive from the constitution.
The views, tendencies and declaration of political party or parties and
the approaches held by them claiming the discourse of representing the national
will cannot be explained in a modern democracy.
Our Constitution, democratic system, the fundamental organs of state deny
despotism; our nation absolutely object to it both today and will do so in future, as it did in the past.
In a democratic system, no power or organ can solely be everything. Opinions
contrary to this or the expressions evoking it indicate totalitarian approach,
a dirty one, which should never find a room for itself in the thoughts of
mankind.
Once again, a similar
contamination is seen in the intentions and attempts which aim to destroy
democracy by making use of the environment of freedoms of democracy. It is an
absolute necessity for the democracy to establish a safeguarding and protection
system and ensure its functioning effectively to defend itself. One should not forget that the defects and
weaknesses in the system and in its operation will impair the democracy and
lead to totalitarism in due course.
In this context; I would
like to point out the necessity of protection of young brains from any kind of
ideological obsession, ethnical discrimination and fundamentalists poisoning
which foster global and local violence.
It is experienced in the past that the negligence and weakness in this
field results in serious tensions, grave events and clashes. Apart from dirtiness, one should not forget
that rancour, hostility and violence are rooted in by this way. One should not
be late for revising administrative measures and legal sanctions for their
being efficient.
We would like to remind,
once more, the organized armed terrorists desiring to keep the ethnical
discrimination and violence by means of massacres on the agenda nowadays; the
people sponsoring them from inside or outside; and those favouring them; those
expecting benefit and profit from terrorism, that they have been committing a
grave and unforgivable crime against humanity.
The mankind has experienced various identities up to now; after trying
the feudal identity, religious identity, ethnic identity, it has decided to
abide by national identity. However, it has not stopped at this point and still
tries to find out common values and identity.
Today, the common value and identity is a pluralist democracy advocating
freedom and participation, human rights and freedoms, rule of law, and as a
reflection to the state and economic life of these values; liberal market and competition,
fair sharing, social security and transparency in every field.
In our era, the process of acquiring content and meaning of national
identity with these common values has been progressing speedily.
In an environment in which universal common values and democratic principles
are shared, the fact that clashes among ethnic, religious and social groups
cannot come to an end or at least decrease to the minimum level is an indicator
of the darkness of the intentions in minds.
The humankind desires no more clashes; no more discrimination; no more
exploitation and no more extravagance.
The humankind looks for peace and tranquillity; the establishment and
sustention of minimum political, economic, social and cultural conditions of an
environment in which rights and freedoms can be exercised. It longs for a fair
and stabile world order in which the interests are rasped and balanced.
But, first and foremost, it desires that terrorism comes to an end. It
desires that terrorism should not be supported; that one should not be indifferent
to it; that the same approach should be shown towards all global, regional or
local terrorism and that double standards should not be applied against it. The
mankind, besides taking common measures, co-operation and operating mutually,
where necessary, and the determination in fight against terrorism, expects to
get rid of the global environment and grounds that lay the groundwork for
terrorism. But, any justification should not be deemed to be legitimate for
terrorism.
One should never forget that the most concentrated, the most violent form
of dirtiness, is the terrorism.
Distinguished Colleagues, distinguished Guests,
I would like to share my opinion with you on the amendment made to the
Law of Judges and Public Prosecutors which was countered with reaction among
the jurisdiction and in the public opinion.
Law cannot pursue the
goal of continuation of the unjust order. The law which is formed in this
direction cannot be permanent and cannot be respected and obeyed since it does
not contain justice in it. Moreover, it would be encountered with reaction and
resistance.
Law can neither watch
for the unjust benefits nor be the basis of unjust status.
Law, including equality
besides justice, requires equal application.
Equality means that
every single rule, including the law, shall be applied to anyone without
privilege and discrimination.
At this point, the
particular characteristics sought for the members of the judiciary who apply
the law and the codes; and specific status and guarantees provided to them are
of significance.
Failure cannot be
experienced in a system which is based on worthiness, competence and carrier.
Therefore, these characteristics should be sought at first rank. If they cannot
be found, they should be acquired with patience.
The judge, in a very
specific and unique position, should posses an impartial and strong character
that can resist against any power –including the political one- other than the
power and the authority of law without any concession and ruling fairly according
to the conviction of his conscience.
The prerequisite of impartiality of the judge is ensuring his
independence.
Judges should never be considered as bureaucrats and should not be put in
such a position. It should be noted that “bureaucrat of judiciary” is an
extremely false phrase and conflicts with the concept of rule of law and
consciousness. Bureaucracy necessitates hierarchy. However, judge is the
judicial power himself.
The most significant threats to the independence of the judiciary; accordingly,
to the impartiality of the judges are the attempts to politicization of the
judiciary, that is to clarify; the attempts to empower the governance over the
judiciary and to establish a sphere of control over it. The opinion of that the
judiciary is politicized is the most important negativity diminishing the
reliance on justice.
Various guarantees are embodied in our Constitution for the independence
of judiciary. However, no one can deny that there are some arrangements which
impair this principle and provide a role and sphere of control to the politic
power over judiciary. It is known that this
is the result of a constitutional approach in which the power of judiciary is
not decisively regulated against other powers in accordance with strict separation
of powers, rather it is arranged within the concept of a moderate separation of
powers putting emphasis on the division of labour and co-operation.
Nobody left who did not hear about the tedious and wearisome, and obvious
and clear wishes demanding the lift of the arrangements providing opportunity
to the political power to control over the judiciary which impair the principle
of independence of judiciary embodied in Article 140,144 and 159 of the
Constitution. However, the insensitivity of the executive power, possessing the
legislative power as well, could not be passed over. In every period, the will
of the persons possessing the political power on not abandoning the position of
guardianship of the judiciary; accordingly, influencing it, is the apparent
reason of this insensitivity. This is also an indicator of that the sense of
rule of law has not yet been properly established.
In a phase, in which every attempt is being made for the realization of
the legal and constitutional amendments that would complete and strengthen the
independence of judiciary and every way is being tried in order to keep these
efforts on the agenda, codification of a law allowing and making it possible to
appoint staff sharing the same political opinion to some positions, which
cannot have any other purpose than this, has given rise to providing the opportunity
of political interference to the judiciary at the beginning when appointing the
lawyers as the judge trainees.
The system which has been being applied up to now; that is to say; the
selection process of the judge trainees by the staff of the Ministry of Justice
with an oral exam, has been criticized taking into account that this method
would have a potential influence on the independence of the judiciary. In a
decision, dated 14.12.1995 and numbered 1995/19-64, the Constitutional Court
stated “… It should be admitted that the principle of that the courts shall be
administered in accordance with the independence and guarantees of judges also
covers the period of acceptance as a trainee… The examination on the competence
of those who wish to become a judge, (regardless of their serving before either
as a judge trainee or as a lawyer) should be done by a Board of Examination set
up by the High Council of Judges and Public Prosecutors with a method based on
an objective criteria without being subject to the influence of the
administration. In my speech I made on April 29th on account of the
14th Honour Day of the Chief Public Prosecution Office of Court of
Appeals, I tried to draw the attention, by means of reading it twice, to the
principle embodied in the general principles of the Recommendation of the
Committee of Ministers of the Council of Europe on “Independence, Efficiency
and the Role of the Judges”, numbered R (94)12, which reads as follows: ”The
authority taking the decision on the selection and career of judges should be
independent of the government and the administration. In order to safeguard its
independence, rules should ensure that, for instance, its members are selected
by the judiciary and that the authority decides itself on its procedural
rules.” The report of advisory visit, prepared by the
EU Commission, which took part in the website of the Ministry of Justice as
well, it is rightly pointed out that “having observed that the requisite of examination
of the candidates of the profession of judiciary by the staff of the Ministry of Justice composed a potency with
an effective influence in favour of the Ministry of Justice on deciding whether
to select or not to select the candidate concerned, they reached the conclusion
of that the administration of the Turkish judiciary was subjected to the
influence of the political will of the Ministry of Justice to an unacceptable
extent.”
The esteemed Head of Confederation of Bar Associations, in the speech he
made on 10th May on account of the 137th Anniversary of
the establishment of the Council of State and the Day of Administrative
Judiciary, followed the same approach and insistently emphasized that the
entrance exam of profession of judiciary shall undoubtedly be done by the High
Council of Judges and Public Prosecutors.
It is also known that it is applied to the Constitutional Court with a
view to demanding the cancellation of the current oral exam system claiming that
it destroys the independence of judiciary.
Despite all these criticisms and developments, pursuing an approach just
on the contrary, second paragraph of Article 39 of the Law of Judges and Public
Prosecutors, which exclusively give the competence of accepting and appointing
lawyers as judges to the High Council of Judges and Public Prosecutors has been
lifted; and in passing from the profession of law to the profession of
judiciary, the competence has been transferred to the Ministry of Justice with
a specific arrangement, which even excludes the central examination system by means of adding a paragraph to Article 8
of the law mentioned.
This arrangement is contrary both to the independence of judiciary and
principle of equality.
The interference of the politics to the judiciary can never be welcomed.
A judiciary open to the political influence will lose its impartiality, respect
towards it, reliance on it, even its self-assurance; the capacity and power of
defending the democratic and secular regime, human rights and fundamental
freedoms and its other core duties.
The shadow of political or other powers on the judiciary shall absolutely
form a dirty field in justice. The duty of the members of the judiciary, even,
of all institutions and citizens, is to continue to the combat of annihilating
this dirty field until a result is achieved; and the duty of the political
power is to adopt the principles of
the state of law and rule of law, and to refrain from and give up any kind of attempts which will cause
a danger of politicization of the judiciary. We hope and expect that, during
the reconsidering process of the said Article, taking into account our views,
which are shared by the public opinion, the competence to accept to the judge
trainee status and to the judge status will be given to the High Council of
Judges and Public Prosecutors.
Distinguished Guests, distinguished Colleagues,
I would like wish all the success for International Transparency that
aims to find a solution to a very significant and chronic problem of our
country, which carries out its works, in an intensified manner, on the path to
a clean society and transparent administration, but, on the other hand,
absolutely needs the assistance and support of every sector.
In the days we leave the judicial year behind, I would like to thank
wholeheartedly to my distinguished colleagues working with enthusiasm,
excitement, and self-sacrifice for the realization of justice and rule of law,
in the framework of the roof of the Chief Public Prosecution Office of Court of
Appeals; increasing continually their professional and humane quality and
output and wish a pleasant holiday for them which will start next week.
I would like to present respects to all of you. 22.07.2005
Nuri OK
Chief Public Prosecutor of Court of Appeals