Justice for all, one at a time

LESLIE ESBROOK

This year marks the 50th anniversary of “Gideon v Wainwright,” a landmark case in American jurisprudence that upheld the right to counsel in all criminal cases. By reading law books in his jail cell and handwriting letters asking for representation, Gideon successfully defended his 6th Amendment right to counsel. Since then, Gideon’s story of self-made success has come to symbolize the triumph of justice over the labyrinth of legal paperwork and arcane rules that sequester the judicial system from a layperson’s reach.

In light of Gideon, one may wonder whether Turkey’s recent judicial reform package that allows for individual application to the Constitutional Court for claims has the potential to create similar outcomes.
 
Will popular myth solidify an image of the benevolent court, defending the little guy against the forces that be? Will the world cease to view the European Court of Human Rights (ECHR) as the first defender of individual freedoms in Turkey? Or will the Court become one more step in an already lengthy process before final application to the ECHR is permitted?

It may be too early to tell. Already an overwhelming majority of applications filed have been incomplete; of those reviewed 100 percent have been dismissed for lack of standing, subject matter jurisdiction, or ratione temporis. But there is reason to believe that the individual application may prove to be one of the most beneficial reforms to date. Merging ultimate judicial review of civil, criminal, and military cases in one court raises the perception of the Court as a place of final arbitration and equalizes the hierarchical nature of claims. No more are individual questions of fundamental rights bottom-tier or externalized. The simple change that makes a Gideon-like case possible in the future is itself a legitimately positive shift.

 Second, Gideon’s ruling primarily affected the judicial system itself, acting as an internal check on the tyranny of the courts. It overruled previous cases that had not offered such expansive rights to a fair trial. Some 75 percent of the individual applications brought to the Constitutional Court involve this right. Like in Gideon, one may surmise that a sustained discussion over the course of time will produce a more nuanced discussion of the right and lead to a more favorable standard amenable to petitioners.
 
It took over 23 cases, between the “special circumstances” test that pre-dated Gideon, fully debated enough to be deemed unworkable.

Third, Gideon’s ruling in no small part came as a result of the particular composition of the U.S. Supreme Court in 1963. After the achievement of “Brown v Board of Education” (1954), the bench in the 1960’s upheld an unprecedented degree of civil rights. The Warren Court’s particularly liberal slant and willingness to use judicial power to refashion social norms for the better made Gideon possible.

Turkey’s reform package establishing a larger bench and the choice of Constitutional Court members by Parliament brings the possibility of a bench able to diverge from mere executive orders and widens the number of opinions voiced in debate. Along with the Justice Academy’s training programs to promote understanding of ECHR rights interpretation, these reforms lay the groundwork for a bench willing to expand rights in a dramatic fashion.

Finally, Gideon may have staying power in the imagination of the legal community not so much for its procedural implications but its substantive considerations that play into the larger discussion of ideas of social justice. Here we most clearly see the potential for a Gideon-like game changer in Turkey.

Current deliberation on a constitutional overhaul and the passage of statutes concurrent with the implementation of the Sept. 12th Amendments has already widened rights previously existent in name only and has inaugurated a conceptual tidal wave of the demand for more oversight, more reform and more compliance with international norms. By remembering Gideon, we fondly look back to the past in order to make concrete our wishes for the future.