Interview: İsmail Kulakçıoğlu
Can you introduce yourself to us?
Mr. İsmail, firstly, I would like to thank you for your kind invite. Let me introduce myself shortly.
I graduated from Law in Ankara. I was the founder and the head of various institutions that defend
human rights. I have many publications in the field of human rights. I am presently a lawyer in the
field of human rights.
Do you like your occupation? What connects you to being a lawyer?
Other than advocacy, I like to carry out my occupation within the boundaries I set for myself. I
pick and choose the cases that I want to work on. I do not select cases that are outside of my own
field. Certain specific beliefs and basic acceptances are what connect me to being a lawyer. People
cannot be free and democracy cannot take up root in countries where the law is not applied, where
there is no rule of law. This is why I see my work as important. Because I think that I help the law
to be carried out while doing my job well as a lawyer.
What are the difficulties of your occupation?
I think the difficulties of our occupation come to light when law regresses and arbitrariness
progresses. If the courts where we follow cases is respectful towards law and their own
occupations, then you do your job with great joy. However, if the mentioned judicial authorities
focus on the power focus rather than on the law, then both the occupation and the law is greatly
wounded.
What do you think comes to mind in our country when we say “the rule of law”? Is it possible
to draw a general picture?
In Turkey what is common is not the rule of law but the law of the rulers. So, whoever has the
power that day, wants to use the law to carry out their own aims, beliefs and want to conform the
world according to their own personal perception. In order to do this, they find judges and
prosecutors that do voluntary collaboration with them. So, judges can speak about protecting the
governments “vital interest”. I believe that no lawyer who respects their own occupation should
talk about their duty to protect the governments “vital interests”. Lawyers are responsible for
protecting the rule of the law, just jurisdiction, basic human rights and freedom. When we begin
to talk about the governments interests, you are in fact talking about protecting the positions of the
present political rulers and Powers and working in conjunction with them. If you ask me, by doing
this, you are betraying your occupation.
What is the rule of law?
The rule of law means a constitutional state. It means that no one can use an authority that has not
been sourced from the law, that there is no arbitrariness and that everyone has human safety and
freedom. So, it is where the government or those who put themselves in the place of the
government are limited by the law and that they must be accountable if they exceed these limits.
It also consists of individuals knowing that their rights and freedoms will not be restricted as long
as they do not go against the law. Before the Magna Carta dated 1215, the king’s authority was
absolute. People’s freedom could be taken away from them and their possessions could be seized
with just on sentence uttered by the king. We see that beginning from the Magna Carta, people
have increasing assurances in front of their ruling Powers. Of course, here we are talking about
democratic countries. It is not possible to speak about democracy in a country where there is no
rule of law and where arbitrariness rules.
What is a lawyer’s conscience? What must we understand from this term?
A lawyers conscience means that decisions must be made according to the dimensions of the law
and not be affected by unlawful interventions.
How does the rule of law effect the relationship between a government and its people?
The rule of law provides security for the people. Everyone can foresee the results of their actions.
They know that when they have dealings with the law, they will not be met with arbitrariness.
When people draw the wrath of the political rulers and Powers, they know that they will not be
mistreated by the law.
Can you give a few examples?
You know that in a country where the is a rule of the law, you will not be in trouble just because
you criticised the president. Judges and prosecutors do not fear being questioned or their place of
duty being changed as a result of making a decision that the ruling Powers do not like.
Does the rule of law in our country exceed the generally accepted standard approaches?
Other than a very limited amount of time, Turkey has always been under the mentality of a “state
of emergency”. Turkey has not managed to overcome the psychology of being a country whose
three sides are covered in sea and four sides are covered in enemies. Furthermore, these “enemies”
are not limited with those outside of the country. These enemies have “internal” extensions. When
people are judged with the claims of committing a crime within the country, if they observed to be
an “enemy” rather than a “suspect” then a form of “enemy criminal law” comes into play. When
they are seen as an “enemy” rather than a “suspect” before the judge, then rights and freedoms can
easily be limited. Because they see the person standing before them as not deserving those rights.
Then the present laws become easy to be neglected. Because you are faced with “enemies” and
you need to eliminate the danger caused by these enemies. Turkey has never been able to get rid
of this mentality. Nearly every phase, the definition of new enemies change, however the enemy
criminal law applications do not change.
What kind of opportunities does the rule of law provide for people to live in harmony?
In a place where there is the rule of law, be it the favourite person of the ruling powers or the least
favourite person, everyone knows this: The law will eliminate all injustice. In the same way, if
the ruling Powers themselves are carrying out injustice, then in front of the law they will also face
certain enforcements. In countries where the rule of the law is replaced by the rule of those in
power, then the person who is against the authorities know that they will face injustice in the court.
In the same way, those who are on the same side of the ruling powers know that they will be
favoured before the law even if they commit a crime. A country like this will not be a peaceful
country, it will not have public peace and cannot become wealthy because the investors will fear
being faced with arbitrariness in any given situation.
What is the duty of the supreme court?
The supreme court has two duties. One of them is to ensure that the laws are suitable for the
constitution. The other is to examine the personal applications that people make. It is sad to say
that they cannot carry out both these duties to the point that they should be carried out. Laws and
juridical changes can easily be made even if they do go against the constitution. We see that they
supreme court turns a blind eye to these. They can ignore decrees that are clearly against the
constitution and allow them to pass. We also see that in personal applications, the political powers
are considered and in an increasing manner, the decisions that will disturb the political powers are
being neglected.
Which theoretical problems occur when we speak about shutting down the supreme court?
Is it possible to present an approach?
Those who want the supreme court to be shut down, are people who want uncontrolled power.
They want to have a absolute ruling power and do not want to be accountable for anything. We
cannot speak about democracy in a country where transparency, accountability and lawful
inspection have been removed. Democracy does not only include the people voting. Democracy is
a regime where the powers in that country our separate; and where those who have done wrong
are accountable whatever their rank or position. When you say; “I have been elected, both the
legislative and judicial powers are mine; all powers are mine” then in whatever way you define
that regime, we see a fundamentally authoritarian and totalitarian regime that is not democratic
anymore.
Thank-you for your lovely answers.
