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Democracy and the Judiciary e UNION OF TURKISH BAR ASSOCIATIONS DEMOCRACY AND THE JUDICIARY .n r in ait kı pijLVp 4-6 JANUARY 2005 Union of Turkish Bar Associations Publicahons: 105 Democracy and Judicianj Editor: Ozan Ergül ISBN: 975-6037-40-7 © Türkiye Barolar Birliği © Union of the Turkish Bar Associations First Edition: June 2006 Türkiye Barolar Birliği Karanfil Sokağı 5/62 06650 Kızılay - ANKARA-TURKEY Tel: (312)4253011 Faks: 418 78 57 web: www.barobirlik.org.tr e-posta: admin©barobirlik.Org.tr yayin©barobilik.org.tr Page Design Düş Atelyesi (031221570 37) Printing Şen Matbaa (0312. 229 64 54 - 230 54 50) Özveren Sokağı, 25/B Demirtepe - ANKARA www.senmatbaa.com DEMOCRACY AND THE JUDICIARY Editor Dr. Ozan Ergü! ANKARA 4-6 JANUARY 2005 CONTENTS Introduction . IX Özdemir ÖZOK President of the Union of Turkish Bar Associations OpenningSpeech .........................................................................1 F İ RST DAY F İ RST SESS İ ON Constitutional Democracy and Limited Govemment Michel TROPER Limited Government, Rule of Law and Democracy ....................................................11 Chiristian STARCİC Constitutional Democracy and Limited Government..........25 Ulrich KARPEN Limited Government, Rule of Law .........................................35 Mithat SANCAR Constitutional Denıocracy: Obstacle to, or Safeguard Of Democracy' .............................45 F İ RST DAY SECOND SESS İ ON The Crisis of Representative Democracy and the New Rising Star: The Judiciary Pasquale PASQUINO .........................................................................61 Klaus Von BEYME The Cerman Constitutional Court - A Model For New Democracies2 .............................................................67 Fazıl SAĞLAM The Rising Star in an Democratic Rechtsstaat: TheJudiciary ............................................................................101 SECOND DAY Fİ RST SESSJON The Role of the Judiciaıy in Consolidating Democracy "Old Denıocracies" Pasquale PASQUINO Italian Constitutional Court ...................................................123 Corneli CLAYTON Courts, Democracy, And Constitutional Change In The United States: Reflections On The 2004 Election .............................................................................131 Christoph GÖRİSCH The Role of Judiciary in Consolidating Democracy under the German Basic Law.................................................155 Alain PARIENTE The Role of The Constitutional Council in The Consolidation of Democracy in France ........................171 SECOND DAY SECOND SESS İ ON The Role of the Judiciaıy in Consolidafing Democracy "New Denıocracies" ilanlar HAJIYEV The Role of The Jurisdiction in The Consalidation ofDemocracy............................................................................187 Ferdinand J. M. FELDBRUGCE The Conshtutional Court of Russia and The Consolidation Of Democracy 195 Renata UITZ Lessons On Limited Government, Constitutionalism and the Rule of Law: Post-Communist Democracies Trapped Between Constitutional Courts and Supreme Courts................................................................229 Radoslav PROCRAZKA Judicial Review of Legislation in Poland, Czech and Slovak Republics....................................267 THIRD DAY The Status of Judiciary in the Democratic Systems: A Democratic Power or A Bureaucratic Hegemony? Ergun ÖZBUDUN Politica! Origins of The Turkish Constitutional Court and The Problem of Democratic Legitimacy ......................279 AliULUSOY .......................................................................................295 Fatih Selami MAHMUTO ĞLU ...... 309 INDEX.................................................. 223 vi' JNTRODUCTION This book is a collection of the papers presented during the international Symposium "Denıocracy and the Judiciary" which was heid in Ankara on 4-6 January 2005 and organized by the Union of Turkish Bar Associations. The Turkish ver- sion of the book had been published at the end of the last year and had been found very inspiring by the Turkish readers. However, it took more time to publish its English version than expected, but as it had been something planned from the very begirıning of the orgariization of the Symposium, the editorial board never thought of dissuading from this aim. With this introduction 1 intend to shed light on the reasons which drove the Union of the Turkish Bar Associations for organizing such a symposium. 1 also would like to introduce the outstanding works of the participants, collected in this volume. First of ail, the motives that drove the Union for organ- izing such a symposium should be set forth. 'Why the topic "Dernocracy and the Judiciary" was chosen for an international symposium?' The answer of the question can partialiy be found in the "Opening Speech of the President of the Union of Turkish Bar Associations", which appears in the very beginning of the book. 1 niay add to those mentioned by the Fresident as one of the members of the organization comnıittee. Ix Undoubtedly, the choice of the Union of Turkish Bar As- sociations can not be abstracted neither from the problems of the Turkish democracy, nor from the issues concerning with the reform processes of the Turkish judiciary. Additionally, the uneasy relationship between the actors of these two insti- tutions, i.e. the democraticaliy elected actors and the judici- ary, leads to complicated circumsiances, where crisis is an occasional outcome. Indeed, it is not hard to estimate that this problematic relationship is underpinned by some deep politi- cal problems of the society as elaborated by Professor Özbu- dun and Ulusoy in their papers in this book. While Özbudun draws attention to the functions of the Turkish judiciary by utilizing Ran Hirschl's approach and assessing the position of the Iudiciary as being in a more hegemonic position ('he- genıonic preservation thesis'), Professor Ulusoy focuses on the background of the rising tension between the judiciary and the political power caused by the fault lines inherent in the society. In this regard, the tension between the constitutional adjudication and the parliamentary democracy is apparent in the Turkish democracy. The approaches of the above men- tioned participants best illustrate the reason of the organizers to hold such a symposium: a better understanding of the judi- ciary-democracy relations from a comparative perspective. Coming to the problems of judiciary-politics relations in Turkey, we should also note that Turkey has a long tradition of constitutional review of legislation which was established by the 1961 Constitution. Although the Constitutional Court has exposed an outstanding performance, some problems of the political life have put the Court under extreme stress incomparable to that is put on its western counterparts. For instance, the jurisdiction of the Court in banning the politi- cal parties has been one of the main reasons, which made the Court as the main target of criticisms from several civil and political actors. However, this fact can neither be thought separateiy from the politics in general, nor from the constitu- tional framework drawn for the Court to work within. When the reform process started to transform the legal framework x during the Turkey's accession process to the EU, the Court also started to abandon the activist approach, which had been the main source of criticisms at that time. On the other hand, problems about the secularism, which has been symbolized by the head-scarf issue is to be dealt with by the Constitu- tional Court. This fact also puts the Court in a referee posi- tion in the midst of a controversy which is underscored by the deep cleavage inherent in the society. In this regard, the Court did not hesitate to act as a protector of the fundamen- taİ values of the Republic. This attitude, however, inevitabiy leads to the rising of the controversies between the political actors and the Court. For instance, in last April the Speaker of the Parliament even mentioned about the possibiity of the abolishment of the Court by the Parliament which caused a new political crisis in Turkey. 1 However, one should not be worry about the future of the Turkish Constitutional Court by oniy taking into account these outrageous reactions of the politicians, as the legitimacy and the status of the Constitu- tional Court in Turkey is generaily indisputable. On the other hand, the Constitutional Court itseif explicitly emphasized the urging need for a reform in 2004, and interestingiy, the other Supreme Courts, nameiy the Supreme Court of Appeals and the Coundil of State, were the ones reacting adamantiy to this proposal. The main concerns of the other courts were that the Constitutional Court would become e supreme court replacing their positions and invalidating their jurisdictiorıal authority. The organizers of the Symposium also aimed at shedding Iight on the organizations and authorities of the other Constitutional Courts from a comparative perspective in order to make a contribution to the controversy going on between the Constitutional Court and the other courts in Tur- key. Af ter reading the paper of Renata Uitz which focuses on the controversy concerning the relations between the Consti- 1 The Speaker of the National Assembiy, Bülent Arinç, said that "the par- Iiament is capable of everything, incİuding the abolishment of the Con- stitutional Court". See 'Constitutional Court Contreversy Intensifies', Turkish Daily News, 3 May 2005, <www.tdn.com.tr>. xı tutional Court and the other Courts
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