TÜRKİYE ORTA ASYA HABER KKUORDİNATÖRÜ

LAW Q POLITIC DANWER UNIVERSITY USA Judicial Transformation in a Competitive Authoritarian Regime: Evidence from the Case of Turkey Abstract What causes the difference in the judiciary's ability to function as a democratic safeguard mechanism under populist rule? This article argues that populist governments use judicial activism against their political agendas, adopting a democratizing discourse to portray courts as institutions that restrict popular sovereignty and then mask their attacks on the judiciary. Based on the case of Turkey under AKP (Justice and Development Party) rule, it examines how the democratic shortcomings of the judiciary provide a legitimacy strategy for the ruling party's gradual takeover of the courts. The right-wing populist AKP government faced strong opposition from high courts aligned with the secular establishment in its first term. In response, it strategically used the anti-majority decisions of the Turkish Constitutional Court to legitimize its actions and paved the way for increasing the number of court members and other forms of judicial manipulation through a series of constitutional amendments. These changes set a dangerous precedent for future conflicts with the judiciary, accelerating the erosion of Turkish democracy and subsequently the transition to a competitive authoritarian regime. 1 INTRODUCTION The rise of populism in elections has contributed to the erosion of democratic regimes around the world, including some advanced industrial democracies (Diamond, 2015; Esen & Yardımcı-Geyikçi, 2019; Levitsky & Loxton, 2013). Unlike previous periods of autocratization (Boese et al., 2022), today democracies tend to collapse at the hands of popularly elected leaders who instrumentalize their electoral victories to colonize state bureaucracy, erode institutional checks and balances, and turn the playing field in their favor (Bermeo, 2016; Haggard & Kaufman, 2021; Waldner & Lust, 2018). Although elections are held regularly in these situations, opposition parties face an increasingly difficult struggle in elections due to the unequal access of those in power to public and private resources and their increasing control over national media and civil society (Levitsky & Way, 2002; Schedler, 2002). These hybrid regimes, often described as competitive authoritarians, exhibit authoritarian practices under the guise of democratic institutions (Diamond, 2002; Levitsky & Way, 2010). The efforts of populist leaders to consolidate these regimes have placed the courts at the center of this struggle between those aspiring to be autocrats and their rivals (Aguiar Aguilar, 2023; Landau & Dixon, 2019). Relying on a parliamentary majority, these leaders have gradually weakened democratic institutions and, rather than seizing power through sheer force, have expanded executive power within a formal constitutional framework (Corrales, 2015; Scheppele, 2018). Accordingly, they have adopted various strategies to erode horizontal accountability and seize control of judicial institutions (Huq & Ginsburg, 2018; Kosař & Šipulová, 2023; Landau, 2013). The courts have assumed various roles in the face of this populist assault. While current academic work has documented this assault on the judiciary, far less attention has been paid to the political context in which the executive and judicial branches clash and the differing outcomes of their interactions. In consolidated democracies with a strong tradition of the rule of law, independent and powerful judiciaries would likely constrain those in power before these assaults take effect (Ginsburg & Huq, 2018; Weyland, 2024). In contrast, populists who come to power in flawed democracies find it easier to adopt strategies of constraining the courts and filling them with their own people. In these situations, the judiciary may lack sufficient popular support, political allies, and institutional resources to defend itself against these populist attacks (Landau & Dixon, 2019). For example, in countries such as Venezuela, Hungary, and Turkey, populist autocrats have seized control of the judiciary and transformed the courts, albeit at different times, into partisan tools to expand executive powers and target critics (Corrales, 2015; Kadıoğlu, 2021; Scheppele, 2018; Soyaltin-Colella, 2022; Urribarri, 2011). In other countries, such as Colombia, the Czech Republic, Argentina, Brazil, and Israel, constitutional checks and balances within the high courts and judicial resistance have slowed democratic erosion (Gibler & Randazzo, 2011; Roznai & Cohen, 2023). So what is the reason for this striking difference? This article addresses this question by highlighting a legitimizing factor that facilitates the filling of courts under populist rule. In particular, populist leaders, upon first coming to power, exploit the democratic shortcomings of the judiciary, using pre-existing authoritarian zones within the high courts to their advantage.