This decision, which will be recorded with shame in the history of both democracy and law, has many grave consequences. We will scrutinize only some of them here. Primarily, the Constitutional Court has openly violated the Constitution by inspecting the constitutional amendments made by Parliament in terms of substance, although it is very clearly emphasized in Article 148 of the Constitution that its legal power is limited to inspecting such legislation only in terms of form. Secondly, it has rendered Parliament unable to draft legislation and has thus rendered it functionless, although the parliaments in all genuine democracies are the sole legislative power. Unsatisfied with ending the legislative power of Parliament, the court has started acting like the legislative authority itself.
Through this decision, the Constitutional Court attempted to bring a de facto end to Turkish democracy by rendering Parliament functionless, completely disregarding the fact that it is the only place where the public will becomes manifest. The phrase "Sovereignty unconditionally rests with the nation," which is the essence of Turkish democracy, has ceased to have any meaning at all, because the ruling in question has proven that the sovereignty of the court's 11 judges is superior to that of the people. It is no longer possible to call the regime in Turkey either a democracy or a republic. At best, the regime we have could be an entirely politicized full-fledged juristocracy.
Briefly, even if this is a completely unacceptable situation in terms of individual rights and freedoms, the most far-reaching consequence of the court's ruling is not its reintroduction of the headscarf ban in universities. Unless this decision and the resulting errors are not urgently eliminated, the gravest consequence will be Turkey's gradual transformation into a dictatorship of judges.
This ruling of the Constitutional Court, which has become extremely politicized in the style of the Republican People's Party (CHP), is tantamount to an open coup and is not limited to violating Article 148 of the Constitution, which gives it the right to judge and inspect parliamentary amendments only in terms of form. The court has also established itself as a co-beneficiary of Parliament's power of legislation and has even outstripped Parliament in exercising this authority, thereby violating all the fundamental values of law and democracy and many articles of the Constitution.
This ruling is an open violation of a principle mentioned in the third paragraph of the Constitution: " The understanding of the absolute supremacy of the will of the nation and of the fact that sovereignty is vested fully and unconditionally in the Turkish nation and that no individual or body empowered to exercise this sovereignty in the name of the nation shall deviate from liberal democracy and the legal system instituted according to its requirements."
Another principle highlighted in the fourth paragraph has also been disregarded: "The principle of the separation of powers, which does not imply an order of precedence among the organs of state, but refers solely to the exercising of certain state powers and discharging of duties which are limited to cooperation and division of functions, and which accepts the supremacy of the Constitution and the law."
By deliberating solely from the perspective of secularism, the court has violated all other qualities of the regime -- justice, respect for human rights, democracy, rule of law -- mentioned in Article 2: "The Republic of Turkey is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble."
"The Constitutional Court shall examine the constitutionality, in respect of both form and substance, of laws, decrees having the force of law, and the Rules of Procedure of the Turkish Grand National Assembly. Constitutional amendments shall be examined and verified only with regard to their form." This is another principle in Article 148 violated by the court by deliberating the case in terms of content.
Article 6, which states: "Sovereignty is vested fully and unconditionally in the nation. The Turkish Nation shall exercise its sovereignty through the authorized organs as prescribed by the principles laid down in the Constitution. The right to exercise sovereignty shall not be delegated to any individual, group or class. No person or agency shall exercise any state authority which does not emanate from the Constitution," has also been ignored with this ruling.
The ruling also openly goes against Article 7, "Legislative power is vested in the Turkish Grand National Assembly [Parliament] on behalf of the Turkish Nation. This power cannot be delegated."
In addition, the principle of Article 11, "The provisions of the Constitution are fundamental legal rules binding upon legislative, executive and judicial organs, and administrative authorities and other institutions and individuals," has been rendered null and void by disregarding Article 148.
By also disregarding Article 24, which says, "Everyone has the right to freedom of conscience, religious belief and conviction," the court attempted to restrict the freedoms granted to every member of this nation.
Having disclosed its ruling in haste before even writing its legal argument, the court acted like a lawmaker and violated Article 153, which says: "The decisions of the Constitutional Court are final. Decisions of annulment cannot be made public without a written statement of reasons. In the course of annulling the whole, or a provision, of laws or decrees having the force of law, the Constitutional Court shall not act as a lawmaker and pass judgment leading to new implementation."
Considering all this, is it possible to describe this ruling as anything other than a "judicial coup" designed to create a regime change by suspending the Constitution?
