by Ozan Ergül (ed.). Ankara: Union of Turkish Bar Associations, 2006. 328pp. Cloth. $35.00. ISBN: 9756037407.Reviewed by Hootan Shambayati, Department of Political Science, Bilkent University. Email: hootan [at] bilkent.edu.tr.
pp.188-190
This volume is the proceedings of a symposium held in Ankara in January 2005. A Turkish version of the proceedings appeared shortly after the meeting and was followed by an English version. The present review deals with the English version. As with many other edited volumes, this is an uneven work. Furthermore, as far as the present volume is concerned, many of the papers at the original conference were presented in different languages and then translated into the appropriate publication language. An additional problem with this volume is that some of the chapters included are transcripts of oral presentations while others are more developed essays.
The aims of the book are set in a short introduction by the editor, Ozan Ergül, and the transcript of the speech by Ozdemir Ozok, the president of the Union of Turkish Bar Associations, opening the conference. The aim of the symposium and hence the book is “to make a significant contribution to the consolidation of “Turkish” democracy and the independent judiciary” (p.8). Accordingly, the book is mainly addressed to a Turkish audience, particularly legal practitioners. As it is made clear in the introduction and in the chapters that specifically deal with the Turkish case, particularly those by Ergun Ozbudun and Ali Ulusoy, the Turkish judiciary’s relations with the country’s political branches have been uneasy over the years and despite forty years of experience with judicial review the courts, particularly the constitutional court, and the elected politicians often find themselves at loggerheads concerning the proper role of each institution in a democracy. The book, hence, tries to determine the proper role of the judiciary in the process of democratization by looking at the experiences of other countries.
The first section deals with general theoretical issues concerning “constitutional democracy and limited government.” The section includes brief essays by Michel Troper, Christian Starck, Ulrich Karpen, and Mithat Sancar. The second section includes the transcript of Professor Pasquale Pasquino’s brief introductory remarks and a chapter by Professor Klaus vov Beyme reviewing the history and activities of the German Constitutional Court. The last article in the section by Fazil Saglam, a justice of the Turkish Constitutional Court, is a brief and according to the author “optimistic” (p.118) review of some of the decisions of the Turkish Constitutional Court and other high courts considering protection of human rights and civil liberties. Nevertheless, even this optimistic review notes many of the problems with the structure of Turkey’s 1982 Constitution that impose severe limitations on individual rights (p.102). [*189]
The next two sections of the book deal with case studies of “old” and “new” democracies. The “old” democracies are Italy (Pasquale Pasquino), United States (Cornell Clayton), Germany (Christoph Gorisch), and France (Alain Pariente). The section on the new democracies begins with a brief introduction to the judicial system of Azerbaijan by Hanlar Hajiyev, that country’s justice on the European Court of Human rights, and continues with two comparative chapters on post-communist constitutional courts in Central and Eastern Europe (Renata Utiz and Radoslav Prochazka) followed by a chapter on the Russian Constitutional Court (Ferdinand Feldbrugge). What emerges from these chapters is that the courts in the new democracies enjoy a higher level of popular legitimacy and are still seen by many as “countermajoritarian” institutions protecting civil liberties and advancing the cause of democratic consolidation. The third section deals specifically with the Turkish case and includes articles by Ergun Ozbudun and Ali Ulusoy and the transcript of Professor Fatih Selami Mahmutoglu’s oral presentation.
The most valuable contribution of this volume is the insight it provides to the views of Turkish scholars and legal experts toward the judiciary and its role in the consolidation of democracy. The picture that emerges is one of despair. On the one hand, as the title of the volume suggests, most believe that the judiciary has an important role to play in deepening and consolidating democracy. At the same time, however, as many of the chapters suggest, Turkish courts have not always contributed to democratic consolidation. This negative evaluation has a lot to do with the nature of Turkish democracy. As Clayton’s contribution to the volume suggests, “the role of the courts in a democracy is always tied to broader political structures and developments” (p.132). Turkish democracy has a militant nature that frequently relies on courts to exclude alleged “anti-systemic” movements and ideologies, even if it is at the expense of pluralism and democracy. A militant democracy like Turkey, as Sancar notes, “can produce practices other than the one ordered by the constitution” (p.50).
Going beyond the constitution, particularly when it is democratically suspect as is the case with the 1982 Turkish Constitution, is not necessarily a bad thing as far as democratization is concerned. As Feldbrugge suggests in his discussion of the Russian case, “in a nascent and still very imperfect democratic system . . . a constitutional court that would resign itself to the fine tuning of constitutional relationships between the main agencies of the state would miss great opportunities to further democracy” (p.225). The problem arises, however, when the courts try to remove essentially political issues from the political arena, as has been the case in Turkey (see chapter by Ozbudun). As Ozbudun concludes, “a constitution, which should be an ideologically neutral instrument as far as possible, should not impose the same social and economic choices on all contesting parties. If it does, the essential meaning of multi-party politics and inter-party competition will be lost” (p.293). In the Turkish context, many decisions of the Constitutional Court, as Ozbudun [*190] argues, “reflect a distrust in the mechanisms of majoritarian democracy” (p.287). It is this aspect of judicial activism in Turkey that concerns most students of the Turkish judiciary and democracy, including those contributing to this volume.
© Copyright 2007 by the author, Hootan Shambayati.
