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- Title
The Perils of Judicial Independence: Constitutional Transition and the Turkish Example.
- Authors
Bâli, Asli Ü.
- Abstract
The Turkish democratic experience is sometimes considered a potential model for transformations underway in the Arab world. In this context, it is worth considering how impediments to democratic consolidation took root in Turkey and analyzing possible mechanisms for resolving tensions that block reforms. This Article illustrates how institutions that might ordinarily be expected to secure democratic space, such as a strong and independent judiciary, may instead serve as a constraint on political liberalization. The role of the Turkish judiciary as the guardian of particular ideological precepts — a role that is, at times, in tension with democratic commitments — is grounded in the history of Turkey's transition from imperial collapse to republicanism. The constitutionalization of an illiberal conception of secularism insulated founding ideological precepts from reinterpretation through ordinary politics. The surprising outcome in Turkey has been pro-Islamic groups that serve as accidental liberalizers and secular elites that oppose democratization. The particulars of the Turkish case may be unique, but a study of elite strategies in Turkey to manage transition and institutionalize preferences yields broadly applicable lessons. While this study offers a cautionary note, it also identifies contemporary sources of optimism when the focus turns from conventional prescriptions for democratic transition to the relationships between democratic publics and state institutions in a particular context. By analyzing the constitutional amendments that were adopted in the 2010 Turkish referendum, the Article suggests that when judicial independence is combined with democratic checks, the risks of illiberal interventionism in defense of elite privilege may be mitigated in cases of transition.
- Subjects
TURKEY; ARAB countries; JUDICIAL independence (International law); DEMOCRACY; COURTS; CONSTITUTIONAL amendments; DEMOCRATIZATION
- Publication
Virginia Journal of International Law, 2012, Vol 52, Issue 2, p235
- ISSN
0042-6571
- Publication type
Article