Courts and Constitutional Transition: Lessons from the Turkish Case
11 International Journal of Constitutional Law 666-701 (2013)
Posted: 8 Oct 2013
Date Written: October 7, 2013
Judicial independence is understood as a cornerstone of rule-of-law and, as such, an essential component of democratic transitions. But in contexts of democratization, the definition of judicial independence may require refinement to take account of the special challenges of moving from the rule of the few to the rule of the many. In particular, an independent judiciary may stall legislative and constitutional reform by engaging in a form of constitutional review designed to shield elite preferences from democratic reversal. This article explores this problem through a detailed examination of a recent set of controversial constitutional cases in Turkey to illustrate the risks of a narrow definition of judicial independence and explore the appropriate balance between autonomy and accountability of the judiciary in periods of democratic transition or democratic consolidation.
Keywords: Turkish Constitutional Court (TCC), democratic transitions, judicial accountability, apex courts, judicial autonomy
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