Judiciaries as Tools of Illiberalism – Approaching the Turkish Case in Comparative Perspective

La Trobe Law School Lecturer, Dr Ozlem Susler,will be presenting a paper,’Populism, Majoritarianism and Crises of Liberal Democracy: Modes of Illiberal Governance in Comparative Perspective’, co-written with Raul Sanchez Urribarri and David Tittensor at the University of Graz Symposium on 1-3 October 2015.

The Symposium seeks to identify and discuss, in a comparative perspective, the root causes, dynamics, effects and modes of “illiberal governance”. The paper written by Ozlem Susler, Raul Sanchez Urribarri and David Tittensor explores the use of a court as  a tool of illiberal governance in weakly institutionalized democracies and how they can be employed as mechanisms to influence trails and political opposition. They use the term “illiberal governance” in a heuristic fashion rather than as a normative claim. Such modes of governance are increasingly identifiable not only among those regimes classified as hybrid or authoritarian but also among established liberal democracies.

Abstract

Courts are assigned to be the bastions of liberalism in democratic regimes. Within a traditional liberal-democratic framework, the judicial system is expected to hold elected leaders accountable for significant breaches of the rule of law and to protect citizens’ rights against abuses of power by the executive. Yet, as a growing body of literature has shown, courts often fail to live up to these expectations. When governments start to systematically breach the rule of law for the sake of political gain, judicial institutions may choose to remain at the margins of political contestation, or even become effective mechanisms to achieve a series of illiberal goals, including the manipulation of elections, curtailing freedom of expression or limiting the right to demonstrate and stage political protest, amongst other features of a liberal democracy.

Under what conditions do courts become tools of illiberal governance in weakly institutionalized democracies? How, and to what extent, are they employed as mechanisms to control or manipulate political opposition? And, more importantly, how does this manifest in the manipulation of specific trials and obtaining favorable judicial outcomes, especially in courts of last resort? In this paper we explore these questions in the context of Turkey under the rule of the AKP party (2002-13). During this time, and in particular after 2008, the party has been accused of using the courts as a means of subduing opponents and changing the balance of power to its favor.

In order to explain how this process took place, this paper seeks to accomplish four goals: a) Identify the key political roles of the Turkish judiciary during the government’s slide towards authoritarianism; b) Offer a summary description of the different types of cases that reflect these roles, relying on examples from the Courts of Turkey; c) Explore the connections between political powers and the Turkish judiciary, with a view to understanding the informal dynamics that tie the courts to the regime, and; d) provide a comparison with the use of Venezuelan courts where the judiciary has also been employed by the regime as a key tool to enhance the current government’s rule and manage dissent.

Biography

Ozlem Susler received her B.A and Grad.Dip. Ed  from the University of Melbourne. Following the completion of her L.L.B with distinction,  she has also completed the Graduate Diploma of Legal Practice at Leo Cussen Institute. In 2004, she was successfully awarded the  Diploma in International Commercial Arbitration from the Chartered Institute of Arbitrators (London). She also graduated with the L.L.M. in Global Business Law from La Trobe University with high distinction and has been admitted as a Barrister and Solicitor to the Supreme Court of Victoria. This was followed by practice as a solicitor in commercial law which included advising on contractual disputes, civil litigation and other commercial law matters.In 2007, Dr Susler began lecturing at La Trobe University Law School, where she is the founding member for the law students participation in the Willem C. Vis International Commercial Arbitration Moot Competition and coached the LTU teams for the first few years. She has also graduated with a Doctor of Juridical Science. Her dissertation pertains to the approach adopted by State courts to jurisdictional disputes in arbitrations. In addition, she has acted as a judge at the Vis East Moot since 2007.

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