INTRODUCTION
This book is a collection of the papers presented during the international Symposium "Democracy and the Judiciary" which was held in Ankara on 4-6 January 2005 and organized by the Union of Turkish Bar Associations. The Turkish version of the book had been published at the end of the last year and had been found very inspiring by the Turkish readers. However, it took more time to publish its English version than expected, but as it had been something planned from the very beginning of the organization of the Symposium, the editorial board never thought of dissuading from this aim. With this introduction I intend to shed light on the reasons which drove the Union of the Turkish Bar Associations for organizing such a symposium. I also would like to introduce the outstanding works of the participants, collected in this volume.
First of all, the motives that drove the Union for organizing such a symposium should be set forth. 'Why the topic ''Democracy and the Judiciary" was chosen for an international symposium?' The answer of the question can partially be found in the "Opening Speech of the President of the Union of Turkish Bar Associations", which appears in the very beginning of the book. I may add to those mentioned by the President as one of the members of the organization committee.
Undoubtedly, the choice of the Union of Turkish Bar Associations can not be abstracted neither from the problems of the Turkish democracy, nor from the issues concerning with the reform processes of the Turkish judiciary. Additionally, the uneasy relationship between the actors of these two institutions, i.e. the democratically elected actors and the judiciary, leads to complicated circumstances, where crisis is an occasional outcome. Indeed, it is not hard to estimate that this problematic relationship is underpinned by some deep political problems of the society as elaborated by Professor Ozbudun and Ulusoy in their papers in this book. While Ozbudun draws attention to the functions of the Turkish judiciary by utilizing Ran Hirschl's approach and assessing the position of the judiciary as being in a more hegemonic position ('hegemonic preservation thesis'), Professor Ulusoy focuses on the background of the rising tension between the judiciary and the political power caused by the fault lines inherent in the society. In this regard, the tension between the constitutional adjudication and the parliamentary democracy is apparent in the Turkish democracy. The approaches of the above mentioned participants best illustrate the reason of the organizers to hold such a symposium: a better understanding of the judiciary-democracy relations from a comparative perspective.
Coming to the problems of judiciary-politics relations in Turkey , we should also note that Turkey has a long tradition of constitutional review of legislation which was established by the 1961 Constitution. Although the Constitutional Court has exposed an outstanding performance, some problems of the political life have put the Court under extreme stress incomparable to that is put on its western counterparts. For instance, the jurisdiction of the Court in banning the political parties has been one of the main reasons, which made the Court as the main target of criticisms from several civil and political actors. However, this fact can neither be thought separately from the politics in general, nor from the constitutional framework drawn for the Court to work within. When the reform process started to transform the legal framework during the Turkey 's accession process to the EU, the Court also started to abandon the activist approach, which had been the main source of criticisms at that time. On the other hand, problems about the secularism, which has been symbolized by the head-scarf issue is to be dealt with by the Constitutional Court . This fact also puts the Court in a referee position in the midst of a controversy which is underscored by the deep cleavage inherent in the society. In this regard, the Court did not hesitate to act as a protector of the fundamental values of the Republic. This attitude, however, inevitably leads to the rising of the controversies between the political actors and the Court. For instance, in last April the Speaker of the Parliament even mentioned about the possibility of the abolishment of the Court by the Parliament which caused a new political crisis in Turkey. 1 However, one should not be worry about the future of the Turkish Constitutional Court by only taking into account these outrageous reactions of the politicians, as the legitimacy and the status of the Constitutional Court in Turkey is generally indisputable. On the other hand, the Constitutional Court itself explicitly emphasized the urging need for a reform in 2004, and interestingly, the other Supreme Courts, namely the Supreme Court of Appeals and the Council of State, were the ones reacting adamantly to this proposal. The main concerns of the other courts were that the Constitutional Court would become a supreme court replacing their positions and invalidating their jurisdictional authority. The organizers of the Symposium also aimed at shedding light on the organizations and authorities of the other Constitutional Courts from a comparative perspective in order to make a contribution to the controversy going on between the Constitutional Court and the other courts in Turkey . After reading the paper of Renata Uitz which focuses on the controversy concerning the relations between the Consti tutional Court and the other Courts in Hungary, as well as the papers of Professor von Beyme and Dr. Gorisch which eminently show the effective use of constitutional complaint in Germany, we can say that this particular aim of the organizers has been achieved.
As put forward above, although the main topic of this symposium book is the "constitutional courts" and the other judicial bodies with the jurisdiction to review the constitutionality of laws, the other courts which have decisive roles in the maintenance of constitutional rights and consolidation of democracy are not out of the scope in general. Indeed, the review of the constitutionality of laws by the courts has been a hot topic in the last three decades all around the world, not only because it creates a tension between the elected representatives of the people and the appointed judges with no or less democratic legitimacy, but also because it created a much powerful judiciary which is hardly envisaged in the notion of the judicial review process in advance.
The main sections of the book reflects the organization of the Symposium and these are, ''Constitutional Democracy and Limited Government", "The Crisis of Representative Democracy and the New Rising Star: the Judiciary", "The Role of the Judiciary in Consolidating Democracy" and "The Status of the Judiciary in the Democratic Systems: A Democratic Power or a Bureaucratic Hegemony?" It should be noted that the part named as "The Role of the Judiciary in Consolidating Democracy" is divided into two parts where in one part the topic is considered from the perspective of "the old democracies" and in the other from the perspective of "the new democracies".
It should be noted that the first two parts are more theoretical. In the first part, titled as "Constitutional Democracy and Limited Government" Michel Troper, Christian Starck, Ulrich Karpen and Mithat Sancar take part. These papers all deal with the terms of "constitutional democracy" and "limited government" by elaborating the historical and institutional per spectives. While Professor Starck and Karpen investigate the issues from the German perspective, Professor Troper's paper reflects more on the French experience. Mithat Sancar, in turn, reviews the general theories related with the limited government and the judicial supervision of legislation, putting particular emphasis on the different models of democracy and their relations with the "limitedgovernment."
The second part is titled as "The Crisis of Representative Democracy and the New Rising Star: Judiciary", which is less theoretical in content. The first paper, submitted by Professor Klaus von Beyme, considers the topic in the light of the German experience. This paper of von Beyme is extremely illuminating for the students of German constitutional politics and the German Constitutional Court . On the other hand, Professor Fazil Saglam, who recently retired from the bench in the Turkish Constitutional Court , calls attention on the contribution of the Constitutional Court and other courts in the consolidation process of democracy in Turkey . Although there are also some negative attitudes of the courts with respect to the consolidation of Turkish democracy, he illustrates the effects of the courts from a quite optimistic perspective, as the author himself also underlines in his work. Professor Saglam's paper is an interesting work for those who want to learn more about the Turkish constitutional politics and the effect of the judiciary in this respect. In this part, the last participant is Professor Pasquino, who made an oral presentation, focusing particularly in the historical background of the institutions of "democracy" and "limited government".
The title of the third section is "The Role of the Judiciary in Consolidating Democracy" and as mentioned above composes of two parts. In the first part, the role of the judiciary in the so-called old democracies is taken into consideration, which signify those democratic regimes in Italy , USA , Germany and France . Professor Pasquino also made a presentation in this session telling about the Italian experience of constitutional review of legislation. The role of the Supreme Court of the USA is studied by Professor Cornell Clayton from the Washington State University , who is well known for his works on the Supreme Court and for his "political regimes approach". His approach is very helpful to understand and explain the role of the Supreme Court in the US constitutional politics, and also elaborates the understanding of the institutional standing of the courts in the representative democracies in general. In this part, there is also another contribution by a German scholar Christoph Gorisch, who underlines the significance of the German Constitutional Court in the the consolidation of the German democracy. The last contributor to this part is Alain Pariente, who highlights the main outlines of a rather unique example of France in the field of constitutional adjudication.
The second sub-title of this part is the "new democracies" and this part opens with the work of Khanlar Hajiyev, who is the former Chief Justice of the Azerbaijan Constitutional Court . His work not only tells about the difficulties, lived in entrenching the judiciary in a new democracy, which hardly had any kind of institutional infrastructure necessary for the aim of building a limited government, but also predicts the problems, which will occur probably in the near future. In this part, the second paper is by Professor Feldbrugge who has a vast experience and knowledge on the so-called "post-communist democracies". The paper of Professor Feldbrugge focuses on the Russian case, which is a unique work for those who are interested in the organizational structure of the Russian state and the Russian judiciary. Professor Feldbrugge sheds light on the constitutional politics of the Russian democracy and particularly considers the Constitutional Court-President relations, which have been very problematic since the beginning of the last decade. The work of Renata Uitz, which is about the Hungarian case, has at least two significant dimensions. First, it sheds light on the experience of post-communist Hungary with respect to the establishment and consolidation of the judicial review of legislation. Second, it examines the reasons and outcomes of the conflicts between the Constitutional Court and the other judicial bodies in the field of constitutional adjudication. Since this kind of jurisdictional dispute exists also in Turkey , which can be named as a "cold war" in the area of the judicial review of legislation, the paper of Uitz is very inspiring for the Turkish readers, which I believe would also be useful for the other countries encountering the same problem. The last participant to this part is Radoslav Prochazka who is known for his works on the "post-communist experience of the judicial review of legislation" and focuses on the three countries, namely Poland , Czech Republic and Slovakia . He not only considers the task of establishing and entrenching a judicial body, but also tells about the true political stories of these countries when accessing to the democratic era.
In the last part the participants focus more on the problems of the judiciary in Turkey particularly with the historical and structural dimensions. While Professor Ozbudun considers the role of the Turkish Constitutional Court , Professor Ulusoy focuses on the problems of administrative courts and the last participant Professor Mahmutoglu deals with the general problems of the Turkish judiciary. The paper of Professor Ozbudun is an invaluable source not only for those who are interested in the Turkish constitutional politics, but also for the students of the Turkish political history.
In conclusion, first I would like to thank to the participants to the symposium on behalf of the Union of Turkish Bar Associations. And last but not least, I also would like to thank to the General Editorship of the Union for their patience and collaboration.
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