The Rule of Law and the Security Sector

On 22 March 2011 CESS organised a high-level seminar on “The Rule of the Law and the Security Sector”, in the framework of the good governance programme in Turkey. This third seminar took place in Istanbul. The group of participants mainly consisted of civil society representatives, journalists and columnists and academics (MA students, PhD candidates and Professors from different Istanbul universities). We also welcomed a few representatives from Turkey’s largest private security company and the Istanbul Bar Association. This high-level event was followed, on 23 to 25 March, by an interactive seminar on the same topic. Practitioners and students took part during these three days. One of the central issues during both seminars was the independence of the judicial sector.

The objective of both seminars was to share experiences and lessons learned. That was the reason why we asked the US Embassy in Ankara to delegate a speaker from the judicial sector of the United States. Federal judge Nanette Laughrey delivered the speech in Istanbul and did an excellent job. By giving the example of Guantanamo Bay she illustrated how the president and Congress tried to bypass the Supreme Court by installing military commissions. These commissions gave the Executive the possibility to charge the detainees through court-martial, because they were treated as enemy combatants. The Supreme Court on its turn ruled that the constitution had to be changed to install military commissions and the US Congress does not have the authorisation to do that. Following this final verdict, Guantanamo detainees were sent to district courts to be tried and are entitled to the rights granted by the constitution of the United States. The Guantanamo example shows the importance of an impartial judicial sector. When, in democracies, the executive and the legislature try to expand their mandates and influence jurisprudence, an appeal will be made to the constitution, which defines the authority of state bodies.

The Rapporteur of the high-level seminar, Gareth Jenkins, concluded that Turkish society nowadays is deeply polarised and even deeply traumatised. Unfortunately the rift between the political factions is getting wider. One of the main reasons for this directly relates to a prevalent lack of faith in the impartiality of the Turkish legal system. The problem is not so much that the judiciary lacks independence from the government, but that Turkish citizens don’t believe there is an impartial legal system. Without a sound foundation of popular trust, the concept of the rule of law is an illusion.

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