VJIL Symposium: Dr. Hootan Shambayati Comments on “The Perils of Judicial Independence”

[Dr. Hootan Shambayati is an Assistant Professor, Division of Public Affairs, Florida Gulf Coast University.]

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.

In the wake of the so-called “Arab Spring” of 2011, many commentators from within and without the Arab world have pointed to Turkey as a possible model to guide democratizers in countries like Egypt and Tunisia. Professor Bali’s insightful Article takes this debate a step further by focusing attention on the illiberal nature of the Turkish democracy and raises important questions about judicial independence in a democratizing polity.

Professor Bali finds the roots of Turkey’s illiberalism in the institutionalization of the social engineering projects known as Kemalism that were adopted in the early days of the Republic and have continued until the present. The Turkish political system has relied on guardian institutions, particularly the military and the courts, and an illiberal conceptualization of rights to protect the state-centered civilizing mission against opposing societal forces. Professor Bali welcomes the recent AKP initiated judicial reforms as attempts to liberalize the judicial and the political system and dismisses the critiques as self-interested Kemalist elites trying to safeguard their entrenched privileges. More generally, she raises important questions about the balance between judicial independence and accountability and warns against the tendency to equate an independent judiciary with one that protects a liberal conceptualization of rights.

Most studies of the Turkish judiciary agree that independence in the Turkish context has created a judicial system that sees its primary role as defending the Kemalist state against the society. But, it is this “illiberalism” that makes the Turkish model attractive to Arab political activists. For the Egyptian or Tunisian political activists the promise of the Turkish model is not the immediate creation of a liberal representative democracy but its potential in transforming the society. For the secular forces, the Turkish model protects them against the Islamists and “tames” political Islam, while for the Islamists, the AKP provides an example of how an Islamist party can gain the reins of power and use the institutions of the state to reshape the society through “democratic” means. Whether this image fits the AKP or not is open to debate. For Professor Bali it does not. Nevertheless, the various shades of Islamism and secularism in the Middle East and their foreign supporters see democracy as a transformative project that aims to reshape the Arab/Muslim societies not represent them. It is this transformative goal of the Middle Eastern democracy that makes the Turkish model appealing.

The greatest shortcoming of the Turkish model, however, might not be illiberalism but weak democratic institutions. There might be little in the AKP initiated reforms that directly threatens secularism or indicates a power grab. The reforms of the constitutional court and judicial council are for the most part a return to the pre-1980 coup practices and bring Turkey in line with European democracies. However, we should not dismiss the critiques’ anxiety as “crying wolf” (my words). Prime Minister Erdogan who spent a few months in jail in the late 1990s on the ridiculous charge of threatening secularism by reciting a poem, has not been shy in using the judiciary to silence his critiques on equally ridiculous charges. The critiques’ anxieties points to the weak institutionalization of democratic organs like the constitutional court and the supreme judicial board and, more generally, the rule of law and civil liberties. For more than fifty years the judicial organs have ignored the rules of democracy and liberalism in pursuit of an ideologically defined ‘civilizing mission.’ The recent reforms might have changed the ideology but will they stop the practice?

Finally, I like to thank professor Bali for a very informative and insightful article that raises some very important issues.