Must law be creative?

With the decision the "Sincan judge" gave about the President, it also shows that the progress we have recorded on the "supremacy of law" has taken on a dazzling form.

It is very clear that the Sincan judge was able to deliver this ruling with an inference that the texts of the law in no way allow. What is involved is a will that pursues, in the full sense of the word, unconditional "sovereignty."

There is also no need to link the event, with long-winded commentary, to the initiative the President has taken in solving the Kurdish question. The very simple aspects of the matter are of a kind that does not leave it in need of such long-winded explanations.

We have repeated before on various occasions: the supremacy of law does not mean the supremacy of the jurist; on the contrary, it means that the objective principles of law operate equally and openly for everyone without being under any influence. When it turns into the supremacy of the jurist, this principle can become far more dangerous than law being under other influences. The independence of law, too, does not mean that the jurist can act willfully; on the contrary, it means being bound to the principles, texts and letter of law. The jurist's feeling for himself a share of power from the power, independence and autonomy of law means the loss of the spirit of law.

We live through so many events that lead us to make such comments often in Turkey. This means there is a serious problem in our legal culture. That the authority of legal adjudication can be so open to abuse, and that there is no mechanism that would instantly condemn these abuses in the public conscience, also constitutes a serious social weakness. The course of the 367 crisis in the judiciary; the paths followed in the amendment of Articles 10 and 42; the countless violations of rules and principles during the process of closing the AK Parti, all pointed to a basic problem stemming from the excessive independence of the judiciary, its almost willfulness.

As the jurist signs, in the cases that come before him, decisions that cannot be predicted in advance, that no one can foresee, with a very high degree of creativity, the field of law becomes an element that sets society back rather than developing it, that frightens and unsettles rather than providing trust. Yet, to repeat once more, the supremacy of law is above all the predictability, transparency and traceability of the legal process. In all these cases we have mentioned there was not even a problem that exceeded the mental capacity of the ordinary person, that is, that only jurists could solve. Nevertheless, the extremely complicated and creative approach the jurist brings to all these simple cases turns the legal system into a veritable minefield.

In this situation, however perfect the legal texts, constitutions and criminal codes you make, there is truly no measure you can take against the jurist's creativity, his arbitrariness. Turkey, which has recorded significant progress in every field, in no way deserves these jurist arbitrarinesses, a pattern of behavior belonging to past centuries, in the field of law. This shows that, more urgently than reaching a perfect text in terms of the constitution, we are in need of confronting the problem of the "good faith" of those who hold the office of interpreting these texts. As long as those in this office see their own authority of interpretation as a fiefdom bestowed on them (iqta'), law stoops to being a simple instrument of power.

A legal culture that can so comfortably produce the sentence "the 12th and 13th Courts are ours" is frightening whichever way you look at it. When one looks at the past of the judge who attempted to open the way for prosecuting the President, with regard to the cases he handled and concluded, he is seen to have steadily suggested a very clear and distinct inclination of opinion. According to the information that has emerged, this opinion of his also has a very clear relationship with the Ergenekonists. In all the decisions he gave, options conforming to his own ideological approach were looked to rather than the fundamental principles of law, and because of his inclination on this subject he has become the center of interest of those on the side of law with expectations and demands in this direction.

Such a thing cannot be. It is very clear that this shows not the supremacy of law but the jurist's excessive freedom and willfulness.

The matter also has the dimension of the affront to the president, of course. Within this excessive freedom, "those who exercise the authority to decide in the name of the Turkish nation" make this attempt against the person who represents the symbolic integrity of the Turkish nation. Moreover, Erbakan, who was tried earlier than the 11-year case and received the main sentence, had his sentence first converted to house arrest and then pardoned, and the political ban stemming from this sentence was lifted only two weeks ago.

So what do you think it means that, in a place where the jurist is so willful, jurists again complain so much about "the pressures of politicians"?