VJIL Symposium: Introducing Aslı Ü. Bâli’s “The Perils of Judicial Independence”

[Aslı Ü. Bâli is Acting Professor of Law at UCLA School of Law.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

I am grateful to Opinio Juris for the opportunity to discuss my Article – “The Perils of Judicial Independence: Constitutional Transition and the Turkish Example.” Here I outline the critique I offer of the “Turkish model” of constitutionalism and the implications of my argument for democratizing transitions such as those currently underway in the Arab world.

Democratizing model or cautionary tale?

Turkey is sometimes invoked as a potential “model” for democratization in countries like Egypt and Tunisia. This article considers the features of the Turkish legal order that have impeded democratic consolidation. In particular, I analyze the role of the Turkish Constitutional Court and arguments about judicial independence in a series of constitutional crises from 2007 to the present. This focus on courts and constitutions is appropriate, I claim, because of the emphasis placed on “rule of law,” constitutionalism and an independent judiciary in the academic literature on democratizing transitions. In the context of the Arab Spring, such prescriptions have served an almost talismanic function – separating, in the eyes of external observers, legitimate calls for democratic change from troubling forms of political upheaval. In Egypt such observers view arguments for managed transition through constitutional reform as appropriate while political transformation through the ballot box is identified with the specter of political Islam. Yet, in the Turkish case, I argue that a strong and independent judiciary and the effort to insulate certain constitutional principles from democratic debate – particularly centered around the meaning of secularism in a Muslim majority country – has served to inhibit democratization and entrench legacies of authoritarianism. Indeed, as a result of the positions taken by traditional political elites through the courts, political Islamists in Turkey have emerged as democratizers and perhaps even (accidental) liberalizers.

Redefining judicial independence

Based on the Turkish case I argue that institutional design prescriptions for democratic transitions, including those related to judicial independence, should be revisited. In particular, the meaning of “judicial independence” should be understood differently in the context of a transition from minority rule to majority rule (through democratization). At present, judicial independence is conceived primarily in terms of separation of powers; while accompanied by the idea of “checks and balances,” the emphasis is on maintaining the autonomy of the courts rather than on subjecting them to political checks. Ran Hirschl has argued that this notion of judicial independence is particularly well suited to enabling authoritarian elites to manage transitional processes. The Turkish conceptions of constitutionalism and judicial independence exemplify the risk that constitutional provisions may serve to insulate elite privileges from democratic reversal through the courts. Through my analysis of recent Turkish constitutional crises – and their origins in institutional legacies from the founding of the republic – I argue that in cases of democratic transition, the best definition of judicial independence would be independence from elite capture rather than independence from the elected branches of government.

Democratic accountability and the unelected branch(es) of government

The question of the relationship between the elected and unelected branches of government is a particularly important one in democratizing contexts where transition is precisely away from the rule of unelected branches (often the military with the support of pliant courts). Accordingly, insulating the unelected branches – including the judiciary – from democratic accountability is an especially poor prescription for such transitions.

While the need for a democratically accountable military is clearly understood in transitional contexts, courts are seen in a distinctly different light. In the Turkish case – like many of the Latin American transitions of the 1980s, and maybe the current Egyptian transition –the military has historically been treated as its own unelected branch of government (with relatively little civilian control) and the battle to redress civilian-military relations has been central to most accounts of democratization. Yet the role of the courts as a parallel and often supportive unelected branch is under-analyzed. Once (soft) military coups were no longer viable as a check on civilian rule – as a result of a confrontation that the army lost to the elected government in 2007 – the Turkish judiciary stepped in with a call to order that set in motion the series of constitutional battles examined in the article. Through a context-specific analysis of the institutional role played by an independent and insulated judiciary in Turkey, I argue that mechanisms of democratic accountability should be extended to the courts, particularly in areas of judicial governance like appointments and promotions. In this sense, the 2010 Turkish constitutional referendum – which introduced such reforms – offers greater promise as a lesson for democratic transition than conventional invocations of judicial independence.