The opposition and some members of the court have a forced interpretation of what counts as “essence” and what as “formal aspects.” Earlier, the court claimed that any constitutional amendment that relates to the unchangeable articles of the Constitution is in fact a change in the form of the Constitution. That is an interpretation and we know that there is no bottom of the well of interpretation. Forcing it a bit more, one may even claim that not pushing for a constitutional change is against the form of the Constitution, because both the Preamble and the first three unchangeable articles of the Constitution refer to the Atatürkist principles, which include revolutionaryism, and to republicanism, secularism and democracy -- all of which regard change as a desired thing.
This is not the whole story. Even the court rapporteur suggested that the opposition party’s petition should have been rejected because there is no law to be reviewed yet. The amendment has been sent to a referendum and, as the referendum has not yet taken place, there is no real law that can be cancelled or accepted. The public may well reject the amendment at the ballot box. The end result of the lawmaking process has not yet crystallized. The court is intervening in the law-making process and, if it decides to cancel the amendment, it will actually prevent the electoral process from working.
The ballot box is the highest judge in a modern democracy. The accessibility of the ballot box is a supreme value for the democratic tradition. If judges regard themselves as powerful enough to prevent the public from having its say in the constitutional process, what we have at hand is a juristocracy and not a democracy.
This is not the end of the story either. At least one member of the court has already insinuated how she will vote in the case. The universal principle about disclosing one’s judicial position is clear: It automatically disqualifies the judge from the case.
It is hard to be a member of the Constitutional Court in this atmosphere, knowing that their decision will shape the views of the public about them and about the whole justice system. We have already heard judges in small towns complaining that they no longer receive the respect they used to from the general public. “We are no longer able to go shopping,” a judge from a small city complained recently. This is not a “respect for the judge” issue. This is about the whole superstructure of a state.
Justice is the cement of the entity called a country. Through the sense of justice provided by the rulers, citizens feel they belong to a country. For that sense of justice, people give up some of their freedoms and sign a social contract with the rest of society. If respect for the judge is lost, the whole system collapses. If the Constitutional Court decides to play the role of lawmaker, respect for judges will certainly be lost.
Jurists say it is not enough for a judge to be just; s/he also needs to appear just. Decisions handed down by judges should be convincing to the general public, but the public seems to have already decided that no decision other than the court’s complete and clear rejection of the petition will ever be able to convince it.
