The meaning of the rule of law

Is it healthy for judicial proceedings to be open to debate by the media, or by the public through the media? Can there be a healthy trial in an environment where some cases are carried into the media from the interrogation stage onward, before they have even reached a court?

We now note this question frequently, though with the caveat that, until the Ergenekon case, we had never witnessed this question being asked so often. First of all, it must be stated that in the world we live in, one of the most important things that secures the concept of the rule of law is precisely that trial procedures can be conducted very transparently. Otherwise, as some suppose, conducting legal proceedings behind a closure in which only judges are involved is not a sufficient guarantee of the rule of law.

It may be difficult to explain this to those who understand the supremacy of judges by the rule of law, but the rule of law is, above all, the possibility for the principle of law to operate within its own objective rules, far from the arbitrariness even of the jurist. Here, the autonomy of law does not mean only that law is free and independent from some politicians and some powers.

It may sound strange, but the autonomy of law also means that law can be independent of the arbitrary decisions of judges. A law whose independence from the government, the bureaucracy, the military, capital, or all other powers has been secured may be subject to yet another pressure: the arbitrariness of the judges themselves. That is why the principle of the rule of law takes care that the judge, too, does not remain unsupervised. Perhaps one way of ensuring this is the institution of appeal that forms within the legal bureaucracy, but the other channel is the transparency of law and, through it, its openness to public scrutiny and criticism.

Although it often causes discomfort, the positive result of some cases being so high-profile is that it brings public scrutiny and criticism into the judiciary as well. A referee officiating a football match cannot hand down whatever rulings he pleases, because everyone watching the match from the stands or on the screen actually knows the rules well enough to judge the appropriateness of all the decisions he will make. In the same way, the fact that judges hearing legal cases increasingly feel public pressure in the decisions they give is likely to have an effect that greatly reduces the arbitrariness of those decisions.

In the end, since it is very difficult for a decision other than what positive law requires to come out of cases on which all media attention is focused, the principle of the rule of law can work more efficiently. Because the rule of law, to repeat, means not the supremacy of the jurist but the supremacy of the principle of law itself, and this is possible only thanks to the transparency and predictability of the legal process. To the extent that law produces unpredictable results, it has moved away from transparency and autonomy. For such a law, it hardly matters whether it is under the pressure of the military, the government, capital, or the jurist himself.

Admittedly, the pressures of public scrutiny on some cases can also push the law into making mistakes out of panic. For the public gaze and its “cheering” does not always work in favour of the legal mind; it can also bring into play certain well-founded or unfounded emotions as a factor, and in the meantime cause irreparable injustices. Even so, it is hoped that the institution of appeal will, on the whole and in the end, be able to remedy this malfunction.

Many mistakes may be being made in the Ergenekon case, but media and public scrutiny of this case, as in no other case, is urging the case to be much more careful. The police are being more careful than in any other investigation about respecting the rights of detainees and arrestees.

Other cases are also taking place in this country, and unfortunately the mistakes made in these cases cannot be subject to public scrutiny to the same degree.

Does anyone remember, for instance, Prof. Süleyman Okudan, the Rector of Selçuk University? As I noted in this column 5.5 months ago, Prof. Okudan, who was subjected to extrajudicial execution at the moment he was detained, accompanied by a major media operation, was released at the first hearing on the prosecutor’s own opinion.

The release of Prof. Okudan, who was accused of every crime imaginable when he was arrested, hardly attracted any media interest. The fact that the interest shown especially in favour of the suspects in other cases was shown, on the contrary, against the suspect in this case also shows how selective the media’s interest is.

Thank God, the development of a pluralistic structure, from which even the media can no longer stay away, holds a potential solution to this problem too.