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Law and Society Association: Courts, Bureaucracy and Politics in Eastern Europe, Eurasia, and Turkey
June 2, 2019 @ 10:00 - 11:45
This panel explores the changing nature of the judiciary and civil service bureaucracy in Eastern Europe, Eurasia, and Turkey in the face of political change, both historic and contemporary. Papers focus on constitutional courts in Hungary and Slovakia, the politicization of judges and accountability mechanisms for misconduct, the influence of Islamist groups and informal networks on the Turkish judiciary, and the reform of Poland’s civil service bureaucracy after the fall of Communism.
Melissa King, UMass
Olga Semukhina, Tarleton State University
Mihaela Serban, Ramapo College of New Jersey
Transformation of the Judiciary in Turkey: The Role of Islamic Groups and Informal Networks
Abdullah Erdem Demirtaş, Bogazici University
My paper focuses on Turkish Supreme Council of Judges and Prosecutors to understand the recent judicial transformation in Turkey. Hegemonic preservation thesis of Ran Hirschl (2000) has long been employed to understand the emergence of Turkish judiciary (Belge 2006; Özbudun, 2006; Shambayati 2008; Shambayati&Kirdiş 2009). It posits that Turkish high judiciary was designed to preserve the hegemony of traditional secular elite in state institutions after the transition to democracy. Starting from this premise, my paper aims to explain how the secular hegemony has been eradicated and replaced by the populist-Islamist alliance of the Justice and Development Party and Islamic networks in Turkey. On the other hand, the literature on judicial independence and court packing generally focuses on formal arrangements such as legislative acts, constitutional referendums or direct government interventions. However, the Turkish case illustrates that informal networks could be employed, together with formal arrangements, for packing courts and capturing judicial power. Finally, I conclude that the transformation of Turkish judiciary facilitated the transition of Turkey from a defective democracy to a competitive authoritarian regime. Turkey’s experience with autocratic legalism sheds light on the trajectory of many nascent democracies in the face of rising tide of authoritarian populism. My research is based on interviews with representatives of judge associations, analysis of constitutional amendments and systematic newspaper scan of new regarding Supreme Council of Judges and Prosecutors.
Guarding democracy depends on its understanding: Constitutional courts in Hungary and Slovakia and (anti-)democratic political change
Max Steuer, Comenius University in Bratislava
Several public law scholars believe in the capacity of constitutional courts (CCs) to protect liberal constitutional values. In contrast, Political Science, especially in its behaviorist strand, tends to highlight the dominance of ideological or material considerations that may at times result in CCs acting against democracy. This debate has gained relevance with the resurgence of authoritarian trends in several member states of the European Union. Building on new institutionalist theorizing that, bridging Law and Political Science, emphasizes the significance of ideas for triggering political change, this paper aims to advance our knowledge about the factors affecting CCs’ capacity to protect democracy. It argues that the understanding of democracy by the CCs is one prerequisite for their capacity to exert influence on the political regime and demonstrates this argument by examining the understandings of democracy in the case law of the CCs in Slovakia and Hungary that share similar developmental trajectories. The qualitative analysis paying attention to changes over time and majority as well as separate opinions uncovers how, contrary to CCs perceived as ‘countermajoritarian’ institutions, restrictive understandings of democracy characterized notably by separation between the rule of the people from other constitutional values, such as the rule of law or human dignity, prevailed at both CCs. Due to this separation, their potential to act as guardians of democracy has got diminished. These findings emphasize the need to look at CCs’ own ideas about fundamental constitutional principles as prerequisites of their capacity to trigger political change.
Who judges the judges?
Stefanie Lemke, Oxford University / Council of Europe (Programme Office Turkey) / European Commission
In this proposal, I analyse the increasing politicisation of judicial authorities in Europe, with an emphasis on Eastern Europe and Central Asia, and the lack of credible and transparent monitoring mechanisms to hold individual judges to account for severe misconduct at European and international levels – a topic that seems to have received only little scholarly attention. Drawing from various case studies, I look at the growing number of judicial authorities in countries, such as Azerbaijan, Hungary, the Russian Federation and Ukraine, and the way they use their powers to punish activists for their human rights work through political motivated investigations, charges and convictions. Although the international community criticized these countries for their actions; monitoring or audit procedures to impose sanctions on individual judges who do not face any disciplinary or criminal consequences for their wrongdoings in their home countries do currently not exist. In my proposal, I argue that judicial authorities however are bound by international professional integrity standards to comply with human rights standards including ensuring every individual’s right to a fair trial; furthermore, that the Council of Europe and other key stakeholders have a promising but yet underutilised potential to address such judicial violations.
Politics and Bureaucracy: Civil Service Reform in Poland in New Institutional Perspective
Kaja Gadowska, Jagiellonian University
The civil service is an important element of the public administration system and has a major impact on the state’s manner of functioning. The civil service in Poland was created with the intention to ensure that the public administration performed its duties in a professional and impartial manner, unhindered by political interests. The aim of the paper is to analyse the process of creating the civil service in Poland after 1989, and to show how the division between the political and administrative spheres was formed from the begin¬ning of the transformation and under the governments of succeeding political groups, and the extent to which the actual relations between politics and public administration reflect the formal regulations contained in successive civil service acts. The paper concentrates in particular on personnel policy with regard to senior civil service positions, because these appointments are connected with assuming control of decision making processes and human resources policy in administrative offices. Various complementary qualitative and quantitative methods were used in the research. Multidimensional analysis of the data leads to the conclusion that political parties in Poland strive to limit the autonomy of the government administration and to subordinate it to their interests. The legislation in the area of civil service has been largely subjugated to the political interest of the moment, and not to the long-term interest of the state. The use of the neo-institutional perspective allowed to identify the reasons behind the adoption of specific legal measures and to show their actual effects.