VJIL Symposium: Bâli Answers to Shambayati and Ginsburg

[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.

Many thanks to Tom Ginsburg and Hootan Shambayati for their thoughtful responses to my Article – “The Perils of Judicial Independence: Constitutional Transition and the Turkish Example.” I am in agreement with many of their core points.

In his comments, Professor Ginsburg argues that the role of the Turkish judiciary as guardians against democratic reversal of founding ideological commitments “made it inevitable that the courts would either have to soften their stance or suffer corrective political action.” I agree but would like to distinguish my argument about the requirements of judicial accountability in transitional contexts from the more general debate concerning the balance between independence and accountability for courts in democratic systems. In particular, I am not arguing that the elected branches of government should hold the judiciary directly accountable. Nor do I oppose insulating judicial self-governance from partisan politics. Rather, I argue, self-governance mechanisms that are representative of the judiciary as a whole – not exclusively judges from the highest courts – are an understudied but important feature of institutional design in post-authoritarian transitions. More specifically, I argue that the concept of judicial “independence” should include independence from elite capture when transitioning from the rule of the few to the rule of the many. When mechanisms of judicial self-governance – such as judicial councils that govern appointments, promotions and discipline of judges – are dominated by apex courts, they may entrench a self-perpetuating judicial oligarchy that opposes democratic transition. As an example, I trace how the Turkish judicial council was subject to elite capture, maintaining a hierarchical appointments and promotions system that blocked changes to the composition of the judiciary that might reflect the political, social and economic diversity of the underlying society. The result was consistent judicial opposition to reform initiatives introduced by the AKP government.

Professor Ginsburg refers to recent cases in which the courts have cracked down on government critics as reflecting a worrying trend. I share his concern about the wave of arrests over the last two years that have been directed against journalists, academics, publishers and graduate students for their political opinions, whether in opposition to the governing AKP party’s policies or in support of Kurdish rights. However, the capacity of the government to use the courts in this way reflects continuities between the AKP and prior Turkish governments rather than an embrace of the Iranian example. The use of counterterrorism powers to suppress freedom of speech and association are sadly a long-standing feature of the Turkish state tradition. The spectacle of a former Turkish Chief of the Army General Staff – Ilker Basbug – being prosecuted for terrorism-related charges is something new in Turkey. But the novelty derives neither from the charges nor the politicized use of the courts. Rather, what is new in the Basbug prosecution is that long-standing mechanisms of state repression once wielded to advance the interests of the Turkish military are now being used to prosecute former military officials.

I argue that the AKP may well be accidental liberalizers (and perhaps even accidental democrats) in undertaking salutary constitutional and legal reform as a result of self-interest rather than out of a deeper set of liberal (or democratic) commitments. Still, the mechanisms by which the AKP has advanced those interests have, in fact, included much needed judicial reform along with other liberalizing amendments. The reforms to the courts resulting from the 2010 constitutional referendum did not facilitate politicized prosecutions. To the contrary, the ongoing misuse of the courts for prosecuting government opponents is evidence that the much-needed reforms did not go far enough.

Finally, I agree with Professor Ginsburg that the dominant-party model is not a healthy one in Turkey (or elsewhere), particularly if that party has shallow commitments to democratization or liberalization. The AKP’s political success is driven by two key factors: successful management of the economy and the party’s capacity to unite the center-right of the Turkish political spectrum under a single tent. This “dominant-party model” may have reached its limits as a vehicle for reform, but it is grounded in astute political and electoral strategy by the AKP rather than constitutional design. Accordingly, challenges to the model will come from changes in the political context such as center-right fragmentation or (the far less likely scenario of) center-left coalescence. In other words, the conditions for undermining the dominant-party model lie in political rather than constitutional transformation.

I also agree with Professor Shambayati’s core argument that the Turkish model is attractive precisely as a result of its “transformative potential,” whether from the perspective of secular liberalizers (enamored with the Kemalist model) or Islamists (taken with the AKP’s reforms). I try to offer a cautionary note concerning the often overlooked short-term coercion and long-term illiberalism bred by the transformative social engineering projects of the Turkish republic. In particular, I argue that Turkey’s inability to address ethnic and religious pluralism is a result of the top-down Kemalist project. Turkification did not vanquish Kurdish identity and heavy-handed modernizing secularization did not banish religion from public life. Rather, large proportions of the population were alienated from the politics of the republic for decades, setting off extra-political confrontations over religious and ethnic identity that have been deeply divisive. There may be many who see democracy as a transformative project to reshape Muslim populations rather than to represent them. I argue that the costs of such transformative projects are underappreciated to dangerous effect.

I disagree with Professor Shambayati’s view that recent reforms have “changed the ideology of a civilizing mission” that has been the mainstay of Turkish republican constitutionalism. Rather, the reforms have altered the composition of the judiciary to better reflect the underlying population and have expanded judicial accountability mechanisms to be more inclusive of the lower echelon courts. These are institutional design features that render the judiciary more accountable without impairing independence. However, the underlying constitutional traditions of the Turkish republic remain in place after the 2010 amendments. For instance, the tendency to prioritize state above citizen continues to mark the courts, as evidenced in recent crackdowns. The hope is that over time the introduction of individual standing before the Turkish Constitutional Court ( as a result of the 2010 amendments) may shift the balance, transforming individual rights into a cognizable constraint on the state rather than discretionary privileges limited by state prerogatives. Unfortunately, it is too soon to tell whether a decade of constitutional reforms have been sufficient to occasion such a shift.