Abstract
Egypt and Turkey are undergoing regime transitions. Their transitions are vastly different, but they are similar in one respect: Exceptional courts are key sites for contesting their meaning. During the 2000s, Egyptian judges campaigned for the rule of law, but ultimately failed to end exceptional trials. When the 2011 uprising toppled Mubarak, many were hopeful that it spelled the end of such courts. Instead, the Army initiated an unprecedented wave of military trials which lumped activists together with state-sponsored thugs. In Turkey, a more gradual transition has taken place since the 2002 rise to power of the AK Party, whose government has led a push to adapt to EU membership criteria and uproot criminal networks within the security establishment. Yet there, too, the transition has taken an ambiguous turn: While the government has begun civilianizing the judiciary, it has retained “specially empowered” courts which have increasingly been used to try critical journalists and academics alongside purported deep-state strongmen.
Exceptional courts are thus not simply participants in these transitions; they also magnify their ambiguity. Leaders present them as necessary measures in the struggle for a more transparent, safe society, but simultaneously undermine those ideals by circumventing due process and prosecuting democracy activists. Are exceptional courts simply tools with which state leaders can shape citizens’ perception of the ongoing transitions, or do they also have an independent effect on the trajectory of state-society relations?
I argue that while recent trials exhibit continuities with pre-transition practices (and thus belie leaders’ rule-of-law rhetoric), their malleability at the hands of political elites depends on institutional heritage and on the capability of grassroots activists to bridge the state-society divide. Recent exceptional trials attempt to exploit the seemingly apolitical authority of legal discourse in order to criminalize political opposition in the public eye. Examining Egyptian and Turkish court documents as well as wider public debates concerning exceptional justice, I argue that lawyer-activist alliances can undermine these attempts by discrediting exceptional courts to the point that they lose their value as tools for de-politicizing the repression of dissent. The success and impact of these alliance-building efforts depend, in turn, on the degree to which exceptional courts were institutionally isolated from the ordinary judiciary and civilian legal professionals prior to the transition. The politics of exceptional justice therefore invites us to rethink “transitions” as contingent on specific combinations of continuities and changes in state-society relations.
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