Bitter taste of victory in court decision

Although the Constitutional Court did not veto the amendments altogether and allowed the referendum to go forward, it was still disappointing to see that the justices overstepped their authority by taking up the constitutionally unauthorized task of reviewing the case on substance.

The Turkish Constitution is crystal clear on the mandate of the court when it comes to reviewing constitutional changes: It can only exercise the power of judicial review on procedural grounds, meaning it can ensure that the appropriate legal procedures and required number of votes are met in such cases. The decision demonstrated, once again, that the higher judiciary in Turkey is very much politicized and that justices are very much influenced by the ideology to which they subscribe.

The decision to go into the substance of the reform package was taken with a vote of 7 to 4 in the chamber. We are going to have to wait and see what kind of explanation the court will offer for this clear interference, which the Parliament speaker described as usurping the power of the legislative body. But we know from past rulings that the court, in a stretch of the imagination, can somehow find a connection to the principle of separation of powers as laid down in the first three articles of the Constitution, thereby creating a new legal precedent for their actions.

What is more, the court violated the universally accepted and constitutionally required condition that all judicial decisions of the high court must be reasoned so that the public is aware of its rationale. The court did not do that. The Turkish Constitution clearly states that the court cannot announce its ruling without a rationale, but this is what they did with this decision. So, this is another violation of the Constitution.

Thirdly, the court contradicted itself within a short period of time. In 2007 when the former president, Ahmet Necdet Sezer, petitioned the court to annul a referendum allowing the public to elect the president directly, rather than through Parliament, the court said no annulment ruling can be made regarding a constitutional amendment bill or a package that has not yet been fully enacted. Though it did not cancel the referendum process this time, it jumped right into ruling on the substance of reforms that have not yet been passed into law by a public vote.

Let’s be crystal clear here. The court’s decision was a political one and was made after long wrangling among justices. It is obvious that the pressure put on the court by the people in higher judicial bodies, especially by the Council of State and Supreme Court of Appeals, resulted in the cancellation of the election process in the Supreme Board of Judges and Prosecutors (HSYK) as well as in the selection of top court judges. In other words, the dominance of the status quo within the higher judiciary was kept intact and democratic and pluralistic structures have not been firmly established in these bodies.

The proposed changes on how to elect members to the HSYK and to the Constitutional Court envisioned that members of the judiciary would only cast a single vote on nominees for high judicial bodies. This would have ensured that a specific interest group, dominant in the higher judiciary, would not elect all their candidates in a broad sweep. For example, when you allow multiple voting for all candidates, as is the case now, then you ensure that only conservative or nationalist judges will be elected, leaving the minority group of liberal-minded judges out in the cold.

The principles of democratic and pluralistic representation in higher judicial bodies are being violated by such an election procedure. It goes against the core of the Council of Europe’s Venice Commission’s criteria, which specifically stipulate the need for more pluralistic and democratic structures in judicial bodies to warrant legitimacy and acceptance by the broader public.

Imagine if we had a similar election system in national elections, allowing the public to cast a vote multiple times unless a designated number of deputies were elected from a certain province. Then, we would have seen, for example, the ruling Justice and Development Party (AK Party) winning all the seats in, let’s say Ankara, the capital, denying all other parties representation in Parliament. This kind of a foolish election system would create uproar and outrage not only in Turkey, but abroad as well. I’m sure election observers from the Organization for Security and Cooperation in Europe (OSCE) would not agree with such undemocratic election results.

Despite this minor setback in the reform package, I find the court-modified version of the reform package an important step towards boosting democratic principles and upgrading fundamental rights in Turkey. Even if the election system in the higher judiciary was kept intact, the increase in the number of seats in the HSYK and the Constitutional Court, coupled with the broader participation of judges and prosecutors in the election, will result in a much more pluralistic structure than we have now. For that, we endorse these changes wholeheartedly in the upcoming referendum on Sept. 12. After all, this mini-reform may be a catalyst for sweeping constitutional changes in the next Parliament.

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