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Correspondents' Reports

JURIST's Turkey Correspondent is Virginia Brown Keyder, Lecturer in Law, Bilgi University, Istanbul.
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[Istanbul; Special to JURIST] However seriously Turkey is taking its desire to enter the EU (although what once resembled "hot pursuit" has recently come to look more like "the getaway"), its candidacy, as well as its participation in the contemporary world, behooves it to follow developments in EU integrative strategies. Recent events, spectacularly documented by this website's news service, would indicate that those in a position to move the country in this direction have lost the requisite interest. This is a pity, really, because the further down one goes on the socio-economic ladder (i.e. the further one gets from the source of power), the more realistic people are in their belief that the EU is really the only answer for a country mired in imperial self-image, yet steeped in the philosophy of own goal. Still, there are some integrative strategies that Turkey would do well to follow even if the EU were to disappear from its radar screen.

The January 19, 2001 issue of the Official Journal of the European Communities featured one such strategy in the form of an initiative to establish a European judicial training network. The network, to be made up of "national schools and institutions of the Member States responsible specifically for training professional judges and prosecutors who are members of the judiciary", will also be available to bodies responsible for legal training in states applying for membership of the European Union. In light of the increasingly central role national courts play in integrating states not only into the EU but into an increasingly law-based world order, the importance of training judges to international and transnational standards and approaches can hardly be overestimated. At the same time, given the (still overwhelmingly national) nature of the law beast, selection and training of judges probably represents the last bastion of the structural isolation that is the sovereign state. Who becomes a judge and why explain a lot about judicial product. How they are trained and the political arena in which they operate goes along way to explaining the rest. While the social and political environments of judges have received considerable scholarly attention in recent years, they are rarely examined in the context of predicting the success of programmed upheavals like the one theoretically about to befall Turkish judges in the context of integration into the EU and other transnational and international legal systems.

Peering inside the judiciary of a state usually amounts to a mind-numbing description of academic paths, flow charts and hierarchies. Through such a lens, a judge hailing from a poor provincial town, with no foreign language or technology skills, who became a judge not primarily as a result of a consuming interest in the law, but through a desire to attain local respectability and a steady if modest income as a state functionary, looks very much like his colleagues from a countries where judges represent societal elite, wafted into the judiciary straight off the top of a practicing Bar, with global connections, language skills, technical support systems and easy social access to the higher echelons of the political and economic structure. Similarly, even though the role of law, never mind the rule of law, might well vary dramatically in the minds of these diverse judges, this difference is itself rarely recognized in the construction of training programs.

It goes without saying that exceptions exist to this bipolar model. It is nevertheless, not unfair to say that for the most part, Turkey's judiciary falls into the first category. Two factors explain this: the education system and the legal system.

The Education System

Turkey's primary and secondary education system has always been mired in rote learning. Admittedly, and this is the case in most countries, Turkish children with access to good schools excel in math, especially when compared to their North American counterparts. For most of these children however, such skills are employed only to qualify for admission into elite secondary schools and universities. With the exception of engineering, which has always been important in Turkey, the economy has no use for such skills, no matter how much of a child's life their acquisition consumes. Much of the remaining school time is dedicated to memorization, and much of this to nationalist tracts which would make the major religions of the world seethe with envy. Development of self-expression or analytic skills is markedly absent and this continues into legal education. Anecdote: last week on a bus, I witnessed two law students testing each other in preparation for their upcoming constitutional law exam. One would recite, verbatim, and ad nauseum (it was rush hour) an entire page from the text on the topic of state sovereignty, while the other would correct him, inserting the exact words so as to help his fellow student perfect the oratory. Several of my own students have told me they believe their constitution, (the product of a military coup some twenty years ago), can never be changed. Given that, they cannot understand why anything beyond memorization of the text and its official exegesis could possibly be relevant, nay key, to success. So much for the material.

Students almost never choose their career paths according to interest or ability. University admissions (as in all Civil Law countries, law is an undergraduate course of study) proceed from the results of a single test, for which students prepare by attending years of crammers and tutors. Students must indicate their choices based on their estimate of where their points will suffice to gain them admission. A mistaken calculation can be fatal - students cannot subsequently change their preferences but must go where their points take them and cannot go to departments they have not specified unless space is available, which it rarely is. Everyone's first choice (ideally) is administrative science, or business, at what is considered to be the top state university in Turkey. Second on the list is any other department in that university, and then in a handful of others, all of which provide instruction in English. (Until the early 1970s, the favored field was engineering. This explains why today's political class (still) consists almost entirely of engineers, a fact which itself goes along way towards explaining the role of law in political life.) The most important thing is to go to a "good" university, and none of the "good" universities offer law. Upon graduation, job offers, depend not on what a student knows or has studied, but who they know, cogently expressed by where they went to university.

Students who fail to enter these "top" universities (or at least the 20-25% of the one million who take the exam annually and actually get into any university) are distributed based on choices made by assessing the likelihood of entry according to the points ascribed to each department of each university. Such choices are usually made according to the result of the previous year's point distribution. Some students actually end up studying something called Hittitology - i.e. four years of Hittites (which is just fine if you have actually like the Hittites - in fact if this is your goal, the system actually works for you - but tantamount to a life sentence if you have won it in the lottery, which is how most students end up there). This is considered to be better than no university education at all, and given the alternatives, it probably is. Some students end up in law, and again though there are students who actually choose law, perhaps based on interest, but more likely based on family background, for many it has been a result of a calculation designed to get them in somewhere as opposed to nowhere.

By and large, though with obvious exceptions, the "best minds" do not normally find their way into law. Until very recently, law has, in fact, been a place the best minds decidedly eschew, unless it was "in the family". Traditionally, the practice of law much more closely resembled classic bureaucracy than law in any case. It was a low-paying, frustrating but secure job which many did because their parents had done it or because it represented white-collar, state-approved, often upwardly mobile, status. Though an undergraduate course, it still displays none of the interdisciplinary features characteristic of undergraduate education elsewhere. Law students rarely know foreign languages, for example, because they rarely come from the any of the small number of prestigious high schools schools where languages are properly taught.

This was not such a problem when Turkey was more isolated, as it was before the Ozal era of the early 1980s, and more to the point, when everyone was poor and a stable civil service or, as law was, a "civil service type" position was as good as anything available in the private sector. While private-sector economic development of the Ozal years did much to create a western-style middle class in Turkey, corruption and drug money have in more recent years created a nation of Mercedes jeeps whose drivers feel, with some justification, that the country belongs to them alone. Law graduates, like most other people, have for the most part been left in the dust.

As in many Civil Law jurisdictions, judges are not appointed, or elected from among the best and most experienced lawyers. Students choose to train for a judicial career early in the legal education process. Upon graduation from "judge school", they begin their practical training in the most eastern of four geographical regions of Turkey, moving westward region by region until at the pinnacle of their career, they hit the west coast, often totally unprepared for the kind cases they will see in the big commercial centers. This process of westward movement dates from a by-gone era of nation-building, when training judges was seen to be best achieved by acquainting them with the more economically, and some would say socially and politically, underdeveloped regions. This would both steep the judges in "the nation" and "the nation" in "the judges". It was a highly effective way to spread the word of both the centralized state and the new European codes (Replacing Ottoman with European law, Turkey received the Civil, Commercial and Penal codes from Switzerland, Germany and Italy respectively in the 1920s). This system was more than sufficient when lawsuits consisted mainly of basic civil or commercial disputes between relatively impecunious litigants. In contemporary terms, however, when you combine this brilliant but highly outmoded system with the penurious judicial salaries, it is not difficult to discover why students who choose to be judges are rarely the bright lights of this poor profession, but are rather those for whom the gruel of the Bench offers more than the grit of the Bar.

The Legal System

Over the past two decades the reality of legal life in Turkey has changed significantly. First came foreign capital and with it, the demise of a protected economy almost totally dominated by two state-favored companies, which had had little need of courts anyway. The stakes in many of today's lawsuits are huge, and while much is written about corruption in the judiciary, what is in fact amazing is not that it is corrupt, but that it is not much more corrupt. It is not more corrupt for two reasons. First, in spite of the state-sanctioned fiscal abuse to which judicial salaries amount, many judges still, remarkably and against all odds, believe in what they do. They want to believe in justice and they want believe in the state. They want to see these as a two-lane road to improvement of life in Turkey. Secondly, many judges, as many in the population in general, derive the personal moral principles that translate into professional moral principles from the only source there is, in a system based on blind loyalty to the state and increasingly rife with corruption. Maligned as backward bordering on criminal by the state, that source is religion. Finding moral strength in religion is of course not particular to Turkey. Many, if not most people, derive their moral bedrock from what are, or at least were at one time, religious principles. What is particular about Turkey is the vehemence with which religion is both denigrated in public life and supported in practice: financial support to the official Directorate of Religious Affairs has reportedly far outweighed that accorded to the judiciary and to education.

Such budgetary choices, designed to enforce secularism by exercising direct state control over religion, preclude support to another a sector crucial not only to contemporary law, but to the economy in general: information technology. To enter a Turkish courtroom is to go back in time. This applies not only to equipment and training of support staff, but also to the dearth of resources designed to enable judges to use technology in their work, evaluate evidence and understand the nature of a growing number of cases before them.

Education, based on interest in law and the ability to develop the necessary analytical and technological skills, is not the only deficit facing the Turkish judiciary. As mentioned, judges they are grossly underpaid (which itself would lead to corruption under the best of circumstances, but even more so in a country where, until the IMF stepped in, upwards to 100% inflation was the norm). They are also egregiously overworked. Lawyers often complain, and often quite publicly, that judges do not even open crucial documents before rendering decisions. They don't have time. Many describe their files as just plain "too thick" to go through. To help deal with docket deluge, a system has arisen of what can only be called outsourcing. Turkish judges rely on a system of experts, not experts as in other countries, i.e. as a source of forensic or other technical expertise, but legal experts. Much to the surprise of foreign clients and locals alike, Turkish judges routinely call on university professors and even on lawyers to decide cases through the submission of "expert reports" . This practice is employed throughout the legal system - from criminal law to commercial law. While virtually everybody talks in private about the perversion of the system which this practice engenders, its entrenchment precludes anyone from doing anything about it. Law professors in state universities (law graduates from new "private" universities have yet to enter the labor market, either in practice or in academia) are themselves underpaid and if not independently wealthy can only sustain themselves professionally with the help of lucrative "opinions" they provide to the courts. Not only can they not therefore object, but by participating in this system, they too play a role holding back the legal system in so far as it might come to be composed of a forward-looking, independent judiciary. They have a vested interest freezing the system in time. Given the recyclable stock of opinions on the market (and judges both scrupulous and unscrupulous have been known to call for several expert opinions until they get one that feels right under the circumstances and then counter charges of misfeasance with claims that it was the expert's opinion and not theirs), no one has an interest in supporting legal reform, let alone encouraging the penetration of international law or transnational approaches into the system.

For the past five years, Turkey has been committed to setting up special courts to deal with matters of intellectual property law. As anyone involved in this field knows, this has become a highly technical and complex area of law under the best of circumstances. Combine this complexity with the twists and turns of EC law on the subject, to which Turkish law must be harmonized pursuant to the provisions of the Customs Union Decision of 1995, and the scope of the problem becomes clear. Established judges, products of the old school where you memorize the Civil Code and head east to begin your career cannot realistically be sufficiently up-graded to meet these needs, though efforts have been made to provide some training in the workings new laws. This would require more dedication to internationalism than almost any country could muster. Such professional expertise must realistically come from the new generation of law graduates. Thankfully, due to the opening of the entire economic system and a new awareness of the role of law in the world, lycee graduates (for here as in the rest of Europe, law is an undergraduate degree) from good schools have begun to enter law as a profession. (The qualitative difference between the generations in terms of awareness of the outside world is a topic for another day.) Virtually ignored (or worse) by Ankara, these bright young people know languages, follow developments in technology, and are truly committed to participation in 21st century life. Substantially more aware of the outside world than their elders, a trend which will no doubt expand with Turkey's participation in major EU educational programs slated for the coming years, they would be the perfect solution to the dearth of contemporary judges. Trained to deal with complex, multi-lingual, high-tech and increasingly transnational issues posed by contemporary IP cases, they will not, they need not, work for the peanuts strewn in the paths of 20th century judges, however.

In a country less dedicated to the notion that citizens exist for the state than to the reverse, the obvious solution would be to pay them what they're worth and let them get on with it. This solution poses two problems however. First, the kind of self-confidence that being paid what you're worth would engender, goes against all the norms of hierarchy, patronage and subservience that underlie the structure not only of the regime but the society in general. But secondly, it would be such a blow to the vested judges - both those who have honestly toiled for the good and right against all odds and those whose fortunes depend on the current situation continuing - that it is (genuinely) feared they would abandon the profession in droves. Many lawyers believe the new court simply will not materialize. Many more say, in private, that they hope they will not materialize, because the outrage that would be felt (and expressed through mass exodus) by the previous generation of exploited and abused judges would bankrupt the entire system.

Training judges for today's legal realities is not easy under the best of circumstances. The amount of material they are being asked to digest is massive and the analytical skills required prodigious. Further, the transnational approach they must adopt often goes against the grain of the statist and, its corollary, positivist traditions of their education. For this kind of achievement, the best minds must be encouraged to go into law. Turkey's inclusion in EU educational programs will no doubt go along way towards remedying the isolationism of Turkish legal education. Exposure will contribute enormously to bringing the judiciary up to contemporary standards, but more needs to be done. Practicing judges must be rewarded and they must be given the necessary elements of independence (financial and intellectual) and respect, not simply as one more branch of the civil service, but as the foundation of a society based on the rule of law. Finally, of course, judicial training is today an on-going process, not one that finishes when a judge climbs onto the Bench, as was the case for a long time in many jurisdictions. Boiling below the surface of the issue of retraining judges is a different view of the world, and of the role of citizens in that world. Until these issues are aired openly, understood and faced head-on, nothing can realistically be expected from what appears to be such an obvious and important project as judicial training and integration.

Virginia Brown Keyder
JURIST Turkey Correspondent

Lecturer in Law
Bilgi University
Istanbul, TURKEY

February 22, 2000

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