by M. Ulric Killion
Today’s Turkey referendum resulted in a significant boost to Prime Minister Recep Tayyip Erdogan’s ruling AKP party as voters approved 26 amendments to the country’s 1982 Constitution; Turkey referendum boosts Erdogan's Islam-rooted AKP party, CS Monitor, Sept 12, 2010, Osman Orsal/Reuters.
A recently written short essay by Emrullah Uslu and titled “Judicial Opposition Criticizes the AKP Government,” and appearing in the Eurasia Daily Monitor, should be of interesting to those following modern judicial reforms in the Republic of Turkey (Turkey). The AKP government represents what hails as the Justice and Development Party or White Party (i.e., Turkish: Adalet ve Kalkınma Partisi). The issue of reforming Turkey’s judiciary system transcends domestic borders. This is because even the Bretton Woods Institutions (BWIs), such as The World Bank, continue to follow Turkey’s modern judicial reforms.
A case in point is that during the December 10, 2004 – Program: Judicial Reform for Improving Governance in Turkey, several representatives of governments, international bodies, non-governmental organization and other institutions, including the World Bank, are in attendance as participants. The concluding remarks for the 2004-Program were actually delivered by Roberto Dañino, who was, then, the senior vice president and general counsel of the World Bank, before resigning in 2006.
Demonstrating the international interests in judicial reforms in Turkey, the 2004-Program was actually a World Bank-funded program, and is only one of several judicial reform programs that have been funded by sources outside Turkey.
Judicial Reform Projects in Turkey
The “Judicial Modernization and Penal Reform” program was sponsored by the Council of Europe, and entails a budget of 10 million Euros, with a duration period from 2003-2005.
For the period of 2006, there is the “EU/Phare Twinning Covenant Domstolsverket” program was sponsored by the SIDA (The SwedishInternational Development Cooperation Agency), which was implemented by the Domstolsverket - The Swedish National Courts Administration.
For the duration of 2006, there was the “Pre-study in Turkey on Development of the Judiciary” program sponsored by the SIDA and implemented by the Swedish National Courts Administration (SNCA), though in partnership with the Ministry of Justice of Turkey.
During the period from 2001- 2002, there was the “Judicial Sector Exchange Program” sponsored by the DRL (Bureau of Democracy, Human Rights and Labor, U.S. Department of State), with a budget of $400,000.
For the years 2005-2006, there is the “Support to the Establishment of Courts of Appeal” program sponsored by the EU Development Projects and implemented by the Brussels 5 - EC institutions, with a budget of EUR 800,000.
Then there is the Oct.-Dec. 2005 World Bank-sponsored “Judicial Reform Learning Program in Turkey” program that was implemented by the PREM and LEG.
Earlier in 2000, there is the “Strengthening of the Judiciary in Southeast Europe (Albania, Bosnia & Herzegovina, Bulgaria, Croatia, FYROM, Greece, Romania, Turkey and where possible Yugoslavia)” program sponsored by the SELDI (Southeast European Legal Development Initiative) and implemented by the “The International Development Law Institute.”
There is of course the earlier mentioned 2004- Judicial Reform for Improving Governance in Turkey program that was sponsored by the World Bank.
During the period 2003-2006, there is the “Strengthening Human Rights Capacity in Turkey” program sponsored by the SIDA and implemented by the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, with a budge of SEK 30 626 000.
Judicial reform programs of this variety generally premise on a democracy promotion approach, thus, entailing an expectation of enhancing the institutional capacity of governments and their institutions. In the specific context of judicial reform, this generally means an expectation of improving institution capacity in areas such as access to justice, building networks, improving access to information, and improving the quality of judicial and legal education. The earlier mentioned programs, likewise, intend to improve the capacity of Turkey’s judicial system; i.e. carry out much-needed reforms, develop and implement strategies designed to address obstacles to reform.
Notwithstanding judicial programs from the 1990s, the earlier mentioned judicial reform programs in the 2000s also intend to address gaps, as in comparison to developed countries and economies, in developmental goals. Notwithstanding good governance models or policy, these are the gaps (or lags) mostly occurring in the areas of agriculture, energy, finance, transportation, communication, health and education.
Majid Mohammadi writes, “After decades of failures of developmental projects in authoritarian states, international community reached to this point that development will not be sustainable without reform in the areas of law, justice and public administration. Compared to billions of dollars spent on security and defense and hundreds of millions of dollars spent on infrastructural development, mostly funded (granted or loaned) by the international donors, millions of dollars spent on good governance is not noticeable.”
In terms of modern judicial reforms in Turkey, International bodies funding various judicial reforms programs expect that Turkey will improve both the functionality and efficiency of its judiciary system. A problem, however, may be that these international bodies funding reforms also expect that improvements in functionality and efficiency should parallel Western standards, or more particularly, the EU (European Commission and the Council of Europe) model. In defense of international bodies funding these programs and urging judicial reforms in line with Western standards, it seems reasonably that closing the gap (lag) might necessitate that countries and economies, such as Turkey, should align the conditions of its judicial system with international standards, such as the United Nations and the EU models.
Turkey’s Judicial Opposition
Emrullah Uslu, in “Judicial Opposition Criticizes the AKP Government,” writes: The long standing dispute between Turkey's ruling Justice and Development Party (AKP) and the judiciary has once again resurfaced in recent weeks. Since 2007 the judiciary has led the opposition against the AKP. The constitutional court attempted to shut down the AKP and ban the prime minister from politics, while supreme court judges use every occasion to criticize the AKP government, and local courts file cases against President Abdullah Gul (EDM, January 13, May 20). Recently the Supreme Board of Judges and Prosecutors (HSYK) differed with the justice ministry's annual appointment lists.
In the Turkish judicial structure the HYSK, which consists of five elected members from the supreme court and the council of state and two from the justice ministry (Justice Minister Saadullah Ergin and his undersecretary), has undisputed power to appoint judges and prosecutors on an annual basis. Judges and prosecutors' appointments usually occur in late June. This year, however, due to the disagreement between the justice ministry and the HSYK to determine who should be appointed and to which particular court, this process has suffered delays. The Turkish press reported that the conflict between the two centered on whether the prosecutors should remain in place, investigating the Ergenekon criminal network and the prosecutors who investigated unsolved political murder cases in the Kurdish region in 1990's and arrested Colonel Cemal Temizoz for his alleged involvement (Radikal, July 21).
Justice ministry officials insist that the Ergenekon prosecutors and those who investigated the unsolved murder cases in the Kurdish region must remain in their posts to maintain their judicial independence. However, Ali Suat Ertoson a member of the HSYK, reportedly presented an alternative list to appoint new prosecutors to examine these issues (Star, July 24).
While the crisis continues a photograph was leaked to the press showing Ertosun in a meeting with an Ergenekon suspect standing trial in the case (Yeni Safak, July 18). In addition, Ertosun has reportedly spent two days with Brigadier-General Ali Aydin, the commander of the Kayseri Regional Gendarmerie, where the suspect Colonel Temizoz works (Bugun, July 27). Consequently, the AKP government has pressured the HSYK to fire Ertosun (Yeni Safak, July 18). In response, the Deputy Head of the HSYK, Kadir Ozbek, released a statement refuting the allegations against Ertosun, and stating that his meeting with the Ergenekon suspect was a "normal procedure" (Cihan News Agency, July 27). . .
After three weeks of deadlock, the HSYK suggested a possible compromise. The HSYK members agreed that the current Ergenekon judges and prosecutors would retain their positions on the condition that the ministry launches an inquiry into the complaints and charges against the Ergenekon prosecutors -if sufficient evidence exists. . . The HSYK, meanwhile, will be responsible for making a decision on the inquiry (Hurriyet Daily News, July 28). . . In the aftermath of this reconciliation, HSYK elected members issued a written statement criticizing the justice ministry, the AKP government and the media. . . The statement, however, did not mention whether the board has discussed replacements relating to Ergenekon and unsolved murder cases in the Kurdish region. The justice ministry responded to the HSYK's press statement by insisting that replacing the Ergenekon and unsolved murder case prosecutors violated the judicial independence of the prosecutors. It also accused the HSYK members of an unlawful attempt to use the authority of the justice ministry (Zaman, July 30).
Uslu’s essay, though insightful, speaks to on-going problems of Turkey’s judicial model and judiciary reforms, including a Western perceived need for greater independence of Turkey’s judiciary. His essay also presents issues of the efficient and effective delivery of foreign aid by Western donors intending to promote judicial reforms in other countries.
The Functional and Efficient Judiciary
During his closing remarks at the earlier mentioned 2004-Program, Roberto Dañino (2004), in a review of the program modules, described six modules; i.e. Module 1, Module 2, etc. He also stated that there are “four essential dimensions for the process of reforms” which are “institutions, the legal system, enforcement and social commitment.” Dañino then went on to summarize each of the program modules.
In Module 1, they (or participants) “examined the Principle Problem of the Judiciary establishing basic definitions, agreed on essential principles and also reviewed case load management, the practice of calling experts, and judicial personnel policy.”
In Module 2, they “discussed Ethical standards, their Enforcement for Judges and the Legal Professionals and Accountability of the Judiciary.”
In Module 3, they “reflected on the crucial role of Appointment, Promotion, Discipline and Removal of Judges and the complex nature of independence and accountability.” Module 3 also deserves further attention. This is because Dañino mentioned two important functions of judicial review.
According to Dañino, “The first is to limit government power, and the second is to protect the rights of individuals. When a judiciary is truly independent, then its decisions are respected and enforced and the institution is less subject to political influence. However, judicial independence must be balanced by accountability of the judiciary and the obligation to carry out its duties while following the highest ethical standards. Judicial corruption ultimately destroys judicial independence.”
In Module 4, they “focused on European Union Accession in relation to access to justice and continuing education.”
In Module 5, they “discussed access to justice in relations to alternative dispute resolution (ADR) given that such services also improve the ability of a legal system to offer and deliver justice.”
In Module 6, they reviewed they discussions, “noted points of fundamental agreement, and received” their “Action Plan which will become a useful guide for follow-up activities.”
Nonetheless, as earlier mentioned, Uslu’s essay speaks to on-going problems of Turkey’s judicial model and judiciary reforms, including a Western perceived need for greater independence of Turkey’s judiciary. This also presents issues of the delivery of efficient and effective foreign aid that intends to promote legal reforms.
The Issues of Legal Reform and Western Donors
The issues of legal reforms are critical to all models of development. In the context of Turkey, it presents a challenge to a final accession to the EU. On April 14, 1963, Turkey submitted its application to accede to the EU (then the European Communities). In 1963, Turkey became an associate member of the EU. In 1995, Turkey signed a Customs Union agreement with the EU in 1995 and, on December 12, 1999, at the Helsinki summit became an official candidate for full membership. A negotiation process addressing Turkey’s full membership actually commences on October 3, 2005 with most authorities perceiving that accession, and assuming resolution of pending issues (i.e., judicial reforms), predicts a process that may take as long as ten years from this date.
Although Turkey also became a member of the Council of Europe in 1949, the Organization for Economic Co-operation and Development (OECD) in 1961, the Organization for Security and Co-operation in Europe (OSCE) in 1973, and an associate member of the Western European Union in 1962, Turkey’s membership bid to the EU remains pending (Cendrowicz, Time, Sept. 8, 2009). Borrowing from the title of Cendrowicz’s article, “Fifty Years On, Turkey Still Pines to Become European.”
All of this, ultimately, presents issues of the efficient and effective delivery of foreign aid by Western donor countries intending to promote judicial reforms in other countries and economies, especially non-Western countries and economies. In this respect, the EU and other countries may be wise to take their lead from earlier suggestions of the Brookings Institution and the Center for Strategic and International Studies (CSIS).
This is because, “in June 2006, a joint task force convened by the Brookings Institution and the Center for Strategic and International Studies (CSIS) released recommendations for reorganizing and reprioritizing U.S. foreign aid programs. The Brookings-CSIS Task Force called for a comprehensive review of foreign aid, led by Congress but involving key non-governmental organizations (NGOs) and government agencies, with the Goldwater-Nichols Defense Reorganization Act of 1986 serving as its model. The Brookings-CSIS Task Force advocates a U.S. development mission that is on parity with U.S. defense and diplomacy, which could result in the creation of a Department for Global Development for bringing together more than fifty U.S. government units involved in aid delivery. The task force also noted that U.S. spending on foreign assistance has seen its greatest increase in forty years, an expansion that also produced a growing incoherence in policy and a fragmentation in organization. What was observed to be a critical problem was the threat to hard power assets, resulting in the United States needing to deploy its soft power more effectively and efficiently” (Killion, 2007; Brookings-CSIS Task Force Releases New Recommendations on Transforming Foreign Aid, Brookings Inst., June 22, 2006).
The 2006 report of the joint task force “centered on the United States failing to take fuller advantage of potential synergies, with these disparate efforts sometimes working at cross purposes. The task force essentially found that the United States punches well below its throw weight in the international community, which should be unmatched when measured in absolute aid dollars. For these reasons, U.S. foreign aid must move away from a one-size-fits-all approach and should be redirected by a unified framework fusing U.S. objectives supporting capable foreign powers and countering security, humanitarian and transnational threats with differentiation based on governance and economic capacities. As a result, U.S. aid programs must be customized to the capacity and need of beneficiary-countries, while also recognizing that beneficial-countries afflicted with poor governance routinely perform the worst in addressing human needs” (Killion, 2007).
In the context of the efficient and effective delivery of U.S. foreign aid and legal reforms, there is the parallel example of U.S. foreign aid intending to promote legal reforms in Mainland China. This is because “United States foreign operations appropriations for China primarily support democracy-related programs, such legal training, legal aid, criminal defense, labor rights, the development of NGOs in China, monitoring human rights conditions in China from outside China, and preserving Tibetan culture. United States funding has been substantive in the area of legal reforms. The U.S. Congress has approved substantive funding for such programs, reflecting a growth from $10 million in 2002, to $23 million in 2006. From 1999 to 2006, U.S. government funding for democracy-related programs in China was about $110 million. Although the major recipients are Temple University (rule of law project), the International Republican Institute (village elections project) and the Asia Foundation (civil society project), many experts and authority suggest that U.S. congressional funding for legal reform efforts in China have produced limited benefits due to the lack of judicial independence, weak enforcement of laws, constraints on lawyers and political corruption” (Killion, 2007; Thomas Lum, U.S.-Funded Assistance Programs in China, CRS Report for Congress, May 18, 2007. General Accounting Office, Foreign Assistance: U.S. Funding for Democracy-Related Programs, Feb. 2004).
For these reasons, the EU would be wise to follow the recommendations set forth in the 2006 report, especially concerning the delivery of foreign aid intending to effect legal reforms that align the conditions of Turkey’s judicial system with international standards, such as the EU models. As observed by the eminent Professor Stanley Lubman, in the context of China and legal reforms, “China’s difficult transition is reflected in its legal institutions” and “The United States can assist China to build its legal institutions without preaching” (Stanley Lubman: A letter to Obama, WSJ, Nov. 4, 2009). Nonetheless, Professor Lubman admittedly argued that the United States should increase its support for legal reforms. Professor Lubman writes: In recent years the U.S. government, including your predecessor’s administration, has increased the support that it has given to strengthen labor rights, legal aid, open government, and administrative law, augmenting the support for these and other institution-building efforts by multilateral and U.S. NGOs. The current administration ought to increase that support while restraining highly public calls that urge China to speed up its adherence to Western values. You might suggest creation of a modest program of U.S.-Chinese cooperation on legal issues” (Lubman, 2009).
Conclusion
It should now be understood, colloquially speaking, that Western donors should not simply throw vast sums of money at a problem without regard for issues such as efficiency and effectiveness, and even functionality. As previously mentioned, Western donors funding various judicial reforms programs expect that Turkey will improve both the functionality and efficiency of its judiciary system. A problem, however, are Western donors expecting that improvements in functionality and efficiency should parallel Western standards, or more particularly, the EU model. As the case of China and legal reforms arguably demonstrate, it may be unreasonable to expect that the closing of this gap necessitate that recipient-countries of donor aid will align the conditions of its judicial system with international standards, such as the EU models.
Additionally, Professor Lubman’s argument for continued support for legal reforms is not contra distinguishable from the thesis of this essay. This is because the essay does not intend to urge a denial of all foreign aid directed to or intending to promote legal reforms in other countries such as China and Turkey. Rather, what is being called for is the efficient and effective delivery of foreign aid, including foreign aid intending to promote legal reforms in other countries. It is for these reasons, the earlier report from the 2006 joint task force, which was convened by the Brookings Institution and the Center for Strategic and International Studies (CSIS), provides invaluable insights to this historical problem of Western donors. Moreover, in the event, Turkey ever accedes to the EU one reasonably suspects that it will largely be a political-based decision (e.g., China’s 2001 accession to the WTO despite a Western-perceived-need for reform of its judiciary).
Sources:
Majid Mohammadi, Judicial Reform Projects Sponsored by International Donors in Egypt and Turkey, USAID (http://www.usaid.gov), Oct. 17, 2006. Brookings-CSIS Task Force Releases New Recommendations on Transforming Foreign Aid, Brookings Inst., June 22, 2006.
Thomas Lum, U.S.-Funded Assistance Programs in China, CRS Report for Congress, May 18, 2007.
General Accounting Office, Foreign Assistance: U.S. Funding for Democracy-Related Programs, Feb. 2004.
Ulric Killion, Modern Chinese Rules of Order (2007), Chapter 8.
Copyright © Protected - All Rights Reserved M. Ulric Killion, 2009.
