I’d be very interested to learn more from any readers in Turkey about the passage of the constitutional amendments in yesterday’s referendum.
My thumbnail view is that Turkey was ahead of the game in 1982 when it adopted a “post-political” constitution, in which democratic institutions were constrained by a series of guardian institutions, including the constitutional court, the national security council, the higher education council, and, until the accession of Abdullah Gul, the presidency. Many other countries, especially in the 1990s, adopted such institutions that reflected a distrust of majoritarian processes.
In Turkey, however, the pendulum is now swinging the other way. These constitutional amendments will increase the control of political institutions, including the president and parliament, over the judicial council and constitutional court. To some degree this is an inevitable reaction to a judiciary that has been heavily involved in policing the political process. As a co-author and I have argued in a paper on judicial councils, the judicialization of politics is followed by the politicization of the judiciary.
Less advisably, the amendments also repeal immunity for the military for the 1980 coup, which seems like an issue better left for the history books than for the courts. Reactions from those more informed than I are most welcome.
–Tom Ginsburg
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3 responses to “Turkey’s reforms”
“The judicialization of politics is followed by the politicization of the judiciary” –> As a general proposition I agree. However, it is interesting that this is not always the case (I can quickly think about examples in the Latin American context for and against the thesis). It would be interesting to see further cross-national analyses testing this proposition in different contexts (connecting the dots between the ‘judicial empowerment’ and ‘judicial power’ literatures)
Yes, you are certainly right that it is not inevitable. As far as I know, we have case studies, but no general theory or evidence as to the conditions in which this dynamic occurs. Good research topic!
Professor Ginsburg,
I offer an analysis of the relevance of the referendum for Turkish democratization in an op-ed published at openDemocracy: http://www.opendemocracy.net/gunes-murat-tezcur/turkey%E2%80%99s-referendum-power-democracy-nexus
The origins of the judicial guardianship actually go back to the 1961 constitution ratified in the aftermath of the 1960 coup. The main concern of the constitution makers at the time was to restrict the power of the executive by creating counter-majoritarian institutions such as the Constitutional Court. While the 1982 constitution ratified in the aftermath of the 1980 coup further entrenched these counter-majoritarian institutions, it also assigned significant powers to the president that used to be a symbolic post. The new constitutional ordered also instituted an electoral threshold of 10 percent. Both of these measures were reactions to political fragmentation and polarization of the 1970s.
As Dicle Kogacioglu, Ceren Belge, and my articles in various issues of Law & Society Review document, the Turkish high judiciary insulated from popular pressures have not contributed to the expansion of individual rights and liberties. Rather it has severely restricted the scope of political participation by dissolving parties. It also interfered in defense of security forces found guilty of violating human rights. In this sense, political autonomy of the Turkish high judiciary cannot be justified on liberal grounds. The current amendments increase the popular accountability of the military and high judiciary and considerably reduce the political autonomy of these institutions. I am not sure if they will necessarily result in the politicization of the judiciary. I think that primarily depends on the ability of the current government to maintain its parliamentary majority. This may not be that easy given the fact Turkish electoral politics historically exhibit high levels of competitiveness and volatility.
Finally, I agree with your observation that the responsibility of the 1980 coup should “better left for the history books than for the courts.” At the same time, the lifting of the immunity alongside with the trial of military personnel at civilian courts will be an important factor discouraging would-be conspirators.
Gunes Murat Tezcur