Hosgeldin! (Welcome) and Goodbye – Field Research on Turkish Judicial Reform
By Leslie Esbrook
The following blog post details a series of interviews Leslie Esbrook (Yale University, Law School) conducted as part of a field mission for research into Turkish judicial reform and politics over the course of the 2014-2015 calendar year, in both the U.S. and Turkey. Leslie was a Fellow in the “Research-Lab Constitutional Politics in Turkey” at Humboldt-Universität zu Berlin in 2014-2015.
Over the course of the past several months, I have supplemented my primary research on Turkish judicial politics and legislative and executive changes with interviews from academics, judges, and third-party experts. This field research adds value to my desk research in several ways. It helped get views of practitioners in the field, while most academic and news articles that I read are written by those not engaged in the work of legislation, or adjudicating cases in the system, on a daily basis. Second, interviews helped to view disparate elements of reform in an integrated fashion. Most of the literature on recent reforms and legislation does not go into great depth, because it spends a majority of space cataloging reforms, and discussing each reform for its own advantages and disadvantages. In speaking with experts, I could ask follow-up questions and get answers that tie reforms together and bridge different time periods of reforms, to give a more nuanced and synthesized account of how certain changes mirror, supplement, or reverse others. Interviewees also helped brainstorm with me ways in which to frame my contribution to the literature, something that I could only get through a dialogue and through offering my ideas in a collaborative format not available in passive literature review. For example, one interviewee spent a long time discussing my use of the word “reform” to adequately describe the events of the past decade in Turkey. As that term was given to me as a suggested title by my granting institution, I hadn’t spent as much time thinking about the implications underlying that one word. My interviewee suggested I should. Lastly, interviews begat interviews. That is to say, each interviewee had several contacts within his or her network that I could then use as further subjects for my investigation, creating a self-perpetuating knowledge base.
In setting up interviews, I faced several hurdles. First, I needed to choose my ideal candidates to interview, and hope that they would be amenable to answering my questions. While all of the journalists and some higher level officials did not return email or phone solicitations, most others – administrative judges, military judges, academics, and members of Turkish executive agencies, were enthusiastic to help me in my endeavors. I generally found access not to be a major hurdle in my research. If anything, my own time and geographical limitations prevented me from interviewing all of the potential interviewees who offered their time to me. I was told by a former rapporteur to the Constitutional Court to be cautious in choosing whom to interview – speaking with party officials and others who worked for the Turkish government may not give me the most unbiased information. This advice was helpful, and led to the bulk of my interviews being conducted with non-government officials, save my visit to the Turkish Justice Academy. His advice was by and large confirmed in my course of dealing with government employees. One judge on leave to work in the foreign ministry told me that the research “would be very complicated for me,” almost as a warning not to go down that path. The same official said that judicial changes were “a delicate issue right now,” and that “there have been some struggles going on.” Of course, interviewing academics and non-Turks also did not provide an unbiased view, and I was cognizant of the need to focus on factually verifiable questions rather than opinion questions throughout the research.
I used a different set of questions for Turkish and non-Turkish interviewees, focusing mainly on recent legislative reforms, views of access to justice, thoughts on the individual application to the Constitutional Court, and prognostication the future reform efforts. I tried to do most interviews in person or over the phone, in order for the conversation to flow more freely and be able to ask questions based on answers that arose. Most of my conversations lasted around an hour or so. In the course of my research, an interesting dichotomy emerged between the content discussed in interviews with academics and judges within the Turkish system, and the content discussed in interviews with non-Turkish officials interested in the subject matter. The academics, largely Turkish, who worked on these issues on a daily basis, added to my knowledge of the general scope of changes to the judiciary and the burgeoning problems with the system that have been exacerbated by the parallel state and Gulenist rift controversies. While most of this information was not new to me, I found repeatedly that interviewees stressed the “PhD-level” amount of research that would need to be done to answer these questions. It seemed there was no explaining the current state of affairs without delving into a long and convoluted history of political gymnastics that nevertheless ended in the conclusion that “the Turkish system has undergone judicial reform, passing small amendments and the like, but it has yet to undergo a judicial transformation, or a change in the mindset of judges and policymakers.” These “small amendments” were described by another academic as “torba yaşalar,” or bag laws: bags of 200+ articles that change many laws, but really add up to a small number of practical changes to the practice of judges, many of which are contradictory to human rights standards. One Turkish academic questioned the use of the word “reform” at all to describe what has been going on in Turkey over the past decade. He stated that, “reform, since the Tanzimat, is like a magical word. But really, you need to examine it in three stages: 1) What is it, 2) How to introduce it, and 3) How to implement it. You will see that by and large the regulations, or the hidden ingredients, show that what has been going on in Turkey is not really reform at all.” In practice, one judge told me that the changes to the laws are “not always more fair. Some are not meant for the benefit of the accused, so judges will apply the old law even if it is abolished.” This, understandably, creates an inconsistent judicial power.
On the other hand, I interviewed a series of non-Turkish officials interested in the Turkish judiciary, and in the process I learned all about third-party reform efforts and twinning projects that are on the periphery of change, yet are the main avenue through which non-Turkish lawyers understand and interact with the Turkish system. These in themselves are quite fascinating. For example, the U.S., through a program called the Office of Overseas Prosecutorial Development, Assistance and Training (OPDAT), keeps a “Resident Legal Advisor” in the U.S. embassy in Ankara whose mission is to “assist the Ministry of Justice with its efforts to reform and modernize its judiciary.” These legal advisors discussed with me the difficulty in trying to implement their objectives, because generally Turkish “officials do not like being told what to do,” perhaps an understandable position. Even though rule of law issues are not the primary focus of the office, that being counter-terrorism prosecution and investigation, the office is able to address some rule of law issues by incorporating them into the “10 best practices on counter-terrorism as proposed by the Global Counter-Terrorism Fund (GCTF) Rabat Memorandum.” The office has traditionally been a large proponent of conferences to bring in U.S. judges and officials to discuss possible changes to the judicial system, such as plea-bargaining or better incorporation of judicial ethics’ programming. However, since the 2013 corruption scandal, the conferences have “sort of dried up,” “probably because there has been a shift in the Ministry of Justice” and their own priorities have changed now.
The other way that foreign lawyers interact with the Turkish system is through training programs with the Turkish Justice Academy (TJA), a quasi-governmental organization established in 2002 as the primary educational and in-service training body for future judges and prosecutors. The U.S. Resident Legal Advisor’s office coordinates with the TJA on its own conference programming. While the motivation behind such heavy focus on international relations at the TJA remains unclear, the office is serious about its work. One official in the international affairs program bragged that the office has relations with seventy-eight countries, and they are planning to reach their goal of 100 countries by the end of 2015. The official interviewed stated that the idea behind the international outreach programming was to “promote a sense of goodwill. We work with the United Nations Office on Drugs and Crime to train Yemeni and Somali judges about narcotics, and contribute funds to the UNODC for such programming.” The TJA, with a budget that has quadrupled in size since its founding, also prints publications of a human rights review and translates foreign scholars’ works into Turkish for its reading public. Its ambitions are seemingly endless. The international affairs department in the next five years would like to “award masters and doctoral degrees, have a permanent staff of trainers, send candidates abroad for training, incorporate their library into an e-library, add courses on alternative dispute resolution (ADR), labor law, and refugee law, and change legislation to reduce the ability of judges to postpone cases indefinitely.” The international programming by another interviewee was called into question for its motives or practical usefulness, as the training program is “not standardized, and judges come in and teach about whatever they want, students listen, and go away having absorbed nothing much of value.” But at least in theory, the five-year plan of the department sets out to tackle several of the critics’ issues, including the permanent staff and curriculum.
General Attitudes of Interviews
Although everyone who agreed to speak with me was generally friendly, helpful, and engaging, the general impression I got overall was that as a young foreigner, I was barking up the wrong tree of research. From the perspective of the well-trodden academics, I had years more research to do before I could truly understand the deep-seated divisions and internal politics attached to Turkish judicial affairs. I hadn’t even framed my argument correctly, as two professors who critiqued my casual use of the word “reform” shrewdly pointed out. From the perspective of the non-Turkish officials, who themselves had devoted a portion of their professional lives to the issues, judicial reform in Turkey was a hornet’s nest of intrigue and closed doors which it would be better for me to stay out of. There was a noticeable fatigue in attempts to implement reforms, push human rights, and lobby for global change. There wasn’t much interviewees could say on the positive front without an immediate caveat, “but…,” “except….,” and “on the other hand….” It was as if Turkey (the country, the people, and anyone who has spent a long enough time there to assume its cultural oddities)’s incredible level of hospitality towards visitors propelled any interviewee to say Welcome! with open arms, and say goodbye with equal strength of conviction once the interview had ended. They had things to do-perhaps futile, perhaps never-ending, perhaps unrelated, and by the end of an hour or so, the fascination of a U.S. law student researcher studying Turkish politics had worn off.
Select Findings and Analysis
1. The Capacity of the TJA to Change the Judicial System from the Inside
The TJA’s position as an entry point into the Turkish judicial system peaked my interest for its potential ability to change the mindset of future judges and prosecutors, and infuse the entire system with these changes. As one interviewee stated, in Turkish, there is a phrase, “Agaç yaşken eğilir.” As he explained, this means that “you must get to someone early on, when they are still malleable in their beliefs. After a certain time, the state-centric view cannot be changed.” Recent literature on the subject of judicial reform has sought not only to explain the changing trends in Turkish constitutional politics, but also to put pressure on reforms from the top-down levels. For example, articles published in 2014 by Firat Cengiz and Ergun Ozbudun honed in on the respective failures of creating a new Constitution, and the political wrangling on the Board of Judges and Prosecutors (HSYK), both of which focus on groups poised in the highest levels of power and their active change from above (Cengiz, The Future of Democratic Reform in Turkey: Constitutional Moment or Constitutional Process?, 49 Government & Opposition 682 (2014); Ozbudun, AKP at the Crossroads: Erdogan’s Majoritarian Drift, 19 South European Society and Politics 155 (2014)). Neither of these outlooks looks to the existing structure, or looks behind formalized structure into the types of attitude and mindset shifts that could be avenues for reform. Effectuating a uniform program of education for judges to focus on how to write, how to incorporate foreign law and various levels of domestic law, and how to act in an ethical and impartial manner, could be accomplished with the formalized structure already in place through the TJA. And as the old expression signals, this type of change could go far in empowering the actors in the system to individually bring impartiality and independence into the Turkish bench, absent the overarching changes touted as necessary in the literature but hard to find in practice.
2. The Advantages to a Long-Term, Small Steps Future Reform
Given the resistance to foundational changes equalizing the manners in which judges are selected or placed in certain geographical jurisdictions, my research in the course of the interviews evolved to look at newer programs and the new stated focuses of the judiciary, including ADR, mediation, and ethics training. For much of the current literature, these smaller changes have not been recognized or mentioned as any sort of lever for measured reform – in none of the recent publications I read, in fact, did these come up at all. Viewed from one dimension, these are mere “window-dressings,” that hide the underlying issues of a lack of independence and impartiality in the system that is being manipulated from a top-down reshuffling of judges. Viewed in a more positive light, however, these changes may be the only feasible current areas of change for the Turkish system, if, as one interviewee stated, “there is no hope for major reforms until there is a change in the executive leadership.” Consequently, interviewing shifted my research focus a little to look more at these additional avenues of change, given the current climate of hostility towards EU accession and judicial impartiality at the highest levels.
3. Taking EU Admission Out of the Equation for Good
I was struck by the definitiveness of a turn away from the EU that was expressed through Turkish and non-Turkish government officials alike. One official said that one of the main things that happened to stall true judicial reform was the failure to open the chapters on the judiciary with the EU in the accession talks, but then said that now, even if they are opened as rumored in December, the expectations that the chapter would cause sustained structural reform are no longer apparent. The Turkish Justice Academy itself maintains a huge external affairs division, whose focus in many ways demonstrates this turn away from the EU and towards Africa and the Middle East. A TJA official proudly stated that the TJA runs training programs for judges in Northern Africa and the Middle East, and has been asked by the UN to do training programs in newly developing states like Somalia as well. This seemed to almost confirm the trend from talking about where the judiciary needed to go to talking about how the judiciary could be a model for states with less developed legal systems.
4. The Value of Historical Perspective
The interviews, particularly with non-Turkish officials, made it clear that certain natural comparisons to foreign legal systems are hard to make, especially without a long-term historical perspective. For example, the certain U.S. judges who traveled on the exchange programs to meet with Turkish judges advanced the merits and necessities of plea-bargaining. However, as many academics have written, the advent of plea-bargaining, particularly in civil law systems, is a much more recent phenomenon – Germany did not develop plea bargaining as a tool of judicial efficiency until late in the 20th century. Similarly, many reports and those I interviewed criticized the tracking of prosecutors and judges in the same education and training programs, arguing that the relative exclusion of the defense bar and private attorneys gives judges a natural affinity in personal and professional matters for the government’s side. Although this argument may indeed have merit, it is important to remember that the original common law and civil law systems both had this same duality with respect to prosecutors and judges, and that the concept of District Attorney’s or elected prosecutors, as we have in the U.S., was never a foregone conclusion. Lastly, I found it important to put the entire Turkish system in historical context relative to its age. In the U.S., the vast majority of federal district and appellate courts were not created until after the Civil War, almost a century after the birth of the nation. Questions of jurisdiction and expansive rights of individual applicants to bring cases were not figured out until well after that, throughout the early 20th century. Not to mention the fact that for the formative years of the U.S., English, and European legal systems, there were no international courts of adjudication or rights conventions to incorporate into domestic law, a fact that researchers on the incorporation of ECHR rulings and human rights law at times conveniently leave out. Learning more about the U.S. legal system in particular has put a valuable contextual element to the story of Turkish development, and reminded me of just how evolutionary most developed legal systems are relative to their structures and protections from years past.
The process of interviewing experts in the field of Turkish political and judicial affairs has been an enlightening one, for all of the reasons above-listed. It has also been a challenging process. Many times, I did not get answers to the level of specificity that I had wanted. This could have been because I was asking overly broad questions. I realized by the fifteenth interview that I could keep interviewing academics and judges for many more months, and still have an infinite amount of unanswered questions about recent legislative and judicial changes to Turkish law – at some point, it became less about interviewing and more about crafting an argument, a thesis that I could defend and put forth incorporating the ideas I had gleaned from my interviews. I realized that it was nearly impossible to maintain a discussion with anyone – in the government or outside of it – without turning to a discussion of electoral politics and the problems with the current President and Prime Minister. A pure discussion of judicial affairs was simply not possible – case and statutory law only went so far towards explaining changes to the judicial landscape in Turkey over the past decade – because the nominations to the HSYK, Constitutional Court, and the executive’s hand in reshuffling judges and prosecutors explained as much if not more. The interviews were an integral part to my methodological study, and helped me not only in this project but also in my general understanding of how to go about conducting long-term scholarly research. That said, they left me with many questions, and, ironically, the opposite feeling of what everyone was telling me. For every time a judge told me I would never understand the complexity of the issues, I realized that that was not my task at all – my task would be add a few points of conversation to the already well-trodden field of opinion on how to reform the Turkish judiciary. And that, I believe, is something I am more than capable of doing.