Kılıç's statement "There is an ongoing need to establish a connection between the national will and the Constitutional Court, which shares the power of sovereignty, to eradicate distrust in the relations between the Constitutional Court and the legislature" confirms how vitally important my assessment that "the Turkish system is much closer to the system of 'fusion of powers,' which holds the legislative body to be superior to the executive and the judiciary" is for our law and democracy. Before delving into the details of this argument, let's first look at what Kılıç articulated at length. Kılıç pointed out that one of Turkey's problems in terms of democratic legitimacy of the Constitutional Court was the exclusion of Parliament in the formation of the organ that supervises people and institutions to ensure constitutional compliance. He emphasized that parliaments in modern democracies are involved -- in varying degrees -- in the process of appointing members to constitutional courts. Kılıç recalled that even the Constitution of 1961 had allowed for the election of one-third of the members of the Constitutional Court by Parliament. "As a reaction to the political institutions and under the conditions of the time, our current Constitution made it impossible for Parliament to elect members to the Constitutional Court. At the present stage to which we have arrived, there is an ongoing need to establish a connection between the national will and the Constitutional Court, which shares the power of sovereignty, to eradicate distrust in the relations between the Constitutional Court and the legislature," he said.
We should place great emphasis on his words because these sentences reveal the most conspicuous defaults of the system of "separation of powers," which is extremely misinterpreted in Turkey and is against the national will, which is the democratic system's fundamental source of legitimacy. Similarly, in the aforementioned article, I had pointed out that the system in Turkey was different from the "separation of powers," which makes it obligatory for any branch of the establishment to ground its legitimacy in the will of the people. I had also argued that the legislative body should be above all the rest of the official bodies and institutions since it is the only organ of the state that assumes power through popular vote, and that all the rest of the institutions had to derive their legitimacy from Parliament, the only organ that represents the people's will.
Kılıç's remarks point out -- implicitly -- that the legislative body should be above all state institutions, such as the executive and the judiciary. As a result, all constitutions on which the rulings of judiciaries are based are drafted by Parliaments, which also form governments and elect presidents. That the legislative body -- the only institution that represents the public will -- has to be above all other state institutions is quite obvious. Therefore, there could be nothing more natural than Parliament choosing a major part of the members of the Constitutional Court, which has a significant effect on the country's destiny, and all other high courts, such as the Council of State and the Supreme Court of Accounts.
However, the system in Turkey has been established based on a rationale that completely contradicts this. Since Parliament is completely left out of the formation of the court, all the decisions and, thus, the democratic legitimacy of the Constitutional Court, may become controversial, since the court operates on a very thin line between the judiciary and the political sphere. For this reason, the Constitutional Court, which shares sovereignty with the legislative body, should be connected with the national will. And the team assigned by the government to draft a new constitution under the leadership of Professor Ergun Özbudun must have taken this odd situation into account as they tried to address this subject in the drafting of a new civilian constitution. The draft includes a change to the structure of the Constitutional Court by increasing the number of its members from 11 to 17 and delegating the election of eight of these members to Parliament. Similarly, the Turkish Bar Association (TBB) demanded that seven of the top court's members be elected by Parliament in a study released in 2001.
In all countries but Turkey and Russia, the members of constitutional courts are elected by parliaments. In Germany, Belgium, Poland, Hungary and Mongolia, all members are elected by parliament. In France, Italy, Spain, Portugal and Romania, countries run by hybrid systems, a certain number of constitutional court members are elected by Parliament and a certain number are appointed by the president, the government and judicial institutions. Ten of the 13 members in Portugal, eight of 12 members in Spain and one-third of the members in Italy are elected by the parliaments of these countries. In the United States, the Supreme Court justices are appointed by the president upon the approval of the Senate.
Turkey's 1961 Constitution called for the election of five out of 15 members of the Constitutional Court by Parliament. In the Constitution of 1982, drafted after a military intervention, this system was changed, and Parliament's role was eradicated. It is necessary that this mistake be rectified in a way that secures democratic legitimacy and that Parliament is restored to its former position, in which it was the fundamental source of legitimacy for the high judiciary.
