Moving Away from the Rule of Law

Dear friends, in my previous article, I mentioned that the rule of law represents a certain and important stage of social development. The regulation of impersonal relations in developed societies and the ability of everyone to see the limits of their own behavior patterns have become possible only with the rule of law. However, if the written rules, especially the constitution, are not adhered to in state administration, and if laws are formally embodied outside the framework of the law, it will never be possible to talk about the rule of law in such a country. In such a country, it becomes very difficult to organize or maintain relations in the social sphere in a way that does not harm the rights and interests of individuals. This is because personal convictions and the social perception formed on their basis can always override the law. For this reason, it is imperative that the rule of law, which is a stage of social development, is internalized and accepted as a principle by the mechanisms governing the state and all cadres of the state. In this regard, senior executives who have a say in the administration of the state must be very careful about everything from the language they use to their behavior. Otherwise, the level of social development may be perceived very differently from the outside.

What are the general requirements of the rule of law?

When we say the general requirements of the rule of law, we understand that each of the legislative, executive and judicial organs must act in accordance with the law in the areas granted to them by law. It is possible to explain these one by one with examples. The legislative body is elected for a certain period of time in line with the principles set out in the constitution. Political parties are indispensable elements of democracy. In parliamentary systems, one or more of the parties that make up the legislature within the framework of the rate of votes they receive as a result of the elections constitute the parliamentary majority and obtain executive power. Perhaps the most important problem that the rule of law has to solve is the problem of controlling the fact that the parties forming the government, i.e. the executive, are also in a strong position in the legislature. In other words, the rule of law is not realized when you put that principle in the constitution. It starts with the design of the system. Such a structure should be envisaged so that the executive should never see itself as having the power to pass laws without question and not be accountable to anyone. I find it more appropriate to leave this as a topic for another article, rather than getting away from the subject by going into the subject of design here. Therefore, in terms of "sovereignty that unconditionally belongs to the nation", the legislature is about the exercise of this sovereignty through deputies elected by the votes of the people. However, as I have emphasized before, the legislature, the executive and the judiciary can never exercise the sovereignty that belongs to the people alone. At every stage, in order to ensure the public interest in the exercise of sovereignty, each power is checked and balanced from within and by other powers in its field of activity. The political parties that make up the legislature may adopt various principles and may prefer to stay away from views, approaches and attitudes that are incompatible with their principles. So far, there is no problem. However, no political party can declare another party illegal or associate it with any crime. Because this is a control that can only be done through the legislature's own control mechanisms and the judiciary. Even no minister on behalf of the executive can come out and make such an accusation in rhetoric and attitude. The problem here is not the innocence of the political party associated with the crime, it is the problem of being a rule of law or not. The necessary mechanisms work in accordance with the law, the discourse and actions that constitute an element of crime are dealt with and the problem is solved. Otherwise, the existence of a constitution or laws is of no importance. Any office holder who believes that he or she has the power can bend or disregard the law according to his or her own needs. What matters is whether the supervisory mechanisms are helpless in the face of this situation. 

The executive is perhaps the most important power for the rule of law to exist. Because it is a structure that can take executive decisions while governing the state. Within this structure, no one has or should have the right to speak as a representative of a political party. Because the executive is one of the elements that exercise sovereignty on behalf of the whole nation. For this reason, a political party voted for by only a certain segment of the population should be very careful when exercising executive power. However, this distinction may be overlooked during all periods of government and the person who leads the government may speak almost like a party spokesperson. However, the place and environment for discussing issues related to his/her party is determined. In fact, a fundamental constitutional mistake is being made here. If the "rule of law" is enshrined in the constitution as a fundamental principle, no one who is bound to the country by citizenship ties should/can go beyond the framework required by this principle. From what I have written so far, one may ask "so what is the difference between the political party that forms the government?". At this point, I will suffice to state that political parties should not have any difference in terms of executive power, except for implementing public policies in line with their own views on public service. In other words, the political party that obtains executive power may defend its own views in its legislative activities, but if it goes beyond the public policy dimension while exercising executive power, it not only violates the rule of law, but also creates a criminalized structure. 

The judiciary is the most important power in terms of effective oversight mechanisms required by the rule of law. On the wall of the "Supreme Court", the highest court of the American judiciary, is the inscription "Where law ends, tyranny begins". Therefore, for the judiciary to be independent, it must be outside the executive's sphere of interference. The fact that one person, even if he or she represents the executive, has the power to determine the judicial organs is an indication that the rule of law is over by design from the very beginning. The expression "judges decide with their conscience" is very misunderstood. What is meant there cannot and should not be the judge's personal sense of conscience. This is entirely subjective. What is meant can only be the "public conscience". Any decision that is not in the public interest will be unlawful, even if it complies with the law. Because the basis of law is the public interest. Therefore, a public conscience that considers the public interest is important. A system in which the judiciary is under the yoke of the executive cannot be democratic, nor can it have anything remotely close to the rule of law. Everyone should know very well that in an environment where there is no security of judges, it will be very difficult to protect the public interest and the public conscience that guards it. In other words, if a judge, whose decision is not liked by the executive, is subjected to a change of position at jet speed, the most fundamental principle of the rule of law, the security of judges, has been violated here. The fact that the rule of law is included as a principle in the constitution after that would at most indicate that a constitutional offense has been committed by someone. 

What does the rule of law entail in state-civil society relations?

So far, we have talked about the internal functioning of the state, but perhaps the most important stage of the issue is whether the relations between all organs of the state and its citizens operate within the framework of law. Here, it would be more useful for us to take the autonomy of organized civil society vis-à-vis the state as data, rather than individual decisions. Organized civil society is one of the most democratic and effective elements in terms of controlling politics and its determinant executive. For this reason, political powers that hold executive power want civil society organizations to support their policies. Sometimes they do this by creating their own civil society organizations. Associations are usually the form of organization that face greater financial problems. But the situation is different for trade unions. Unions are financially stronger civil society organizations because their membership fees are deducted at source. 

Civil society organizations, with the ideas they advocate in their respective fields, act as a compound force in the formation of public policy and ensure that public policy is formed in line with the public interest. However, for the political power, this means a change in its own policies. In order to ensure this, they either encourage the establishment of manipulative civil society organizations in line with their own ideology, or they benefit from them by supporting established organizations in unethical ways. The degree of freedom in civil society organizing is also an indicator of the degree to which a society is a democratic state of law. If the principles of the rule of law do not apply to organizing, those in power may try to prevent different organizations by resorting to all kinds of unethical means. For example, the attempt to criminalize a trade union that comes to a hospital for organizing work by saying "who are you, who do you serve" is, to put it mildly, a usurpation of the law. It is not possible to have a democratic rule of law from a mentality that cannot even tolerate people exercising their rights under the law in the absence of any judicial decision. Every obstacle to organizing should be seen as a step away from the rule of law, unless those who prohibit it can explain for what public interest they are doing so. In the rule of law, laws are applied equally to all civil society organizations. The undermining of organizing efforts by someone who is "more royalist than the king" should not be justified by using values such as patriotism or loyalty to one's profession. The state cannot take a legal stance against legal entities based on the ideas they advocate. This is a clear disregard for the rule of law. 

Conclusion

As we can see, we all need law and justice in all areas of life. Whatever the power, it must be aware that the public interest is the basis of every transaction and action. Otherwise, those who believe that they have seized every power may defend different things and try to benefit from them. This applies at the micro and macro levels. For example, a union that is close to the government may ensure that its members are appointed to positions they do not deserve and may have to submit to the government's impositions on the rights of its members, as opposed to a government that is generous in determining member dues. This is often a win-win equation for union leaders at the expense of the majority of members. Or, at the macro level, power can use institutions for political influence and rent. Examples can be multiplied. As a final word, we can say that in order for tyranny not to begin, the law must not end. In order for the law not to end, a whole system must be built on the basis of law. If we are the public, we are all closely concerned with the public interest. The further we move away from the rule of law, the more difficult it becomes to go back with every step.