With its latest decision, the Constitutional Court usurped the legislative power of Parliament. This decision consists of a number of violations, including exercising powers not granted to them by the Constitution, acting as a lawmaker and the way they announce their decisions. The alarm bells are ringing for the parliamentary system. If we do not look at these as isolated, individual incidents, we should be able to find solutions to systematic faults. Extended discourse can be voiced on the amendments to Articles 10 and 42 of the Constitution, which have been annulled. But this is already what those who seek justification for the annulment have been doing. They expect us to puzzle over absurd and irrational possibilities, such as what if the majority party decides one day to hold parliamentary elections every 20 years? These what-ifs cannot be heard even in the UK, which does not have a written constitution. If we start to ponder such absurd propositions, we will pave the way for the ever-increasing pressure of the judiciary on Parliament. We must, instead, concentrate on the question "Can there be an uncontrolled power in a democracy?"Receiving "no" as answer, we can move on to the second question: "Then, what can be proposed as checks and balances for the judiciary?" The shortest answer is: law. Actually, if democratic conventions and written rules, i.e., law, were functioning, then there would be no problem. If the texts on which the judiciary bases their decisions were drafted by the legislature, there would be no problem. The system consists of the legislature that passes the laws, the executive that implements them and the judiciary that audits both of them. By sending Constitution booklets to 11 members of the Constitutional Court, the Foundation of Jurists' Union did the right thing. The solution was and is in the Constitution. When the Constitutional Court, acting as the maker of the Constitution, attempted to steal the powers of Parliament, the crisis started. Now what we must do is to try to find a safe way out of this situation.
The suggestion made by Ahmet İyimaya from the ruling Justice and Development Party (AK Party) and the head of the parliamentary Justice Commission, is a good one that might provide us with such a solution. Government spokesperson Cemil Çiçek was wrong to rule it out without much discussion. The government and the AK Party officials did not do anything more than reiterating the criticism voiced by journalists and academics. Everyone is aware of the problem, but we are losing time in finding a solution to it. Professor İyimaya has considerable experience in constitutional law. It would be useful to discuss his ideas from a renewed perspective. İyimaya suggested that the Constitutional Court's decision, which openly violates the Constitution, should be suspended by Parliament. The limits of constitutional judicial review and the alternatives to possible violations of these limits have been repeatedly discussed by the academics working on the theory of democracy.
From the perspective emphasized by İyimaya, we must discuss Parliament's right to resist the decisions of the court. Parliament has such a right with the president's veto as it can send the vetoed bills back to the president without making any changes. If the president stands firm, then the bill is referred to an arbitrator, which comes in the form of a referendum or judicial review. Why shouldn't such a procedure be implemented between the Constitutional Court and Parliament? If the Constitutional Court does not back down from its position in the face of Parliament's objection, then arbitration by the nation, which is the single source of sovereignty, can be invoked. If Parliament turns to an arbitrator when it fails to elect a president, it should be able to do the same when it fails to pass any laws. At the least, we should discuss alternatives and possibilities.
Although this deserves a separate essay, I must touch upon it here. The thesis on the constituent assembly is hurting democracy. The assembly set up by the masterminds of the military coup of Sept. 12 can draft a constitution, or more correctly, propose a constitution, and Kenan Evren and his colleagues can have the final say, but the Parliament that represents 90 percent of the nation is seen as counterfeit. This is truly regretful.
