Can, while demanding that the appeal for the cancellation of the constitutional amendment in question be rejected, one by one confuted the arguments cited in the cancellation appeal by the CHP. He recalled that the Constitutional Court does not have the authority to inspect constitutional amendments for their content and enumerated the clauses regarding the court's authority to inspect such amendments only in terms of form. As evidence, he cited previous rulings by the court. Rapporteur Can particularly emphasized that previous rulings according to which the court may deliberate amendments in terms of content when unchangeable articles of the Constitution, which cannot even be discussed, are in question could not be a reference point for deciding to cancel an amendment.
Can altogether rejected the view of some lawyers that the constitutional amendment that lifted the headscarf ban for university students could be disregarded by the court, emphasizing that there were no grounds on which the court could disregard the current amendments. It was emphasized that in order for any amendment to be declared null and void, at least one of the conditions -- such as the submittal of the bill for amendment with at least 184 signatures, its passage with 367 votes and the obligatory 48-hour waiting period before making it a part of the agenda -- must have been neglected. As was pointed out in previous court rulings, it is also noted in Can's report that in order for a constitutional amendment to be declared null and void there has to be a more significant contravention of law such as the lack of public will -- that is, if the law was not passed by Parliament itself and passed by the Cabinet, although it is not within their duty to make a constitutional amendment -- and that there is no legitimate legal grounds for cancellation as none of the abovementioned contraventions were committed in the constitutional amendment on the headscarf.
Can also responds in his report to a view asserted by some anti-democratic lawyers who hold no respect for the public will. He contends that a ruling in favor of the cancellation of the appeal with an annotated commentary would be tantamount to the infringement of a legislative body's right to act of its own free will.
One assessment of what underlies Can's views in this case -- as far as it has been covered by the press -- is that the Constitutional Court cannot supervise a government in terms of compatibility with the Constitution, that it doesn't have such a duty and that the constitution of 1982 shares this understanding, contrary to what an anti-democratic segment of society has been arguing. Can also makes other assessments, noting that the court cannot replace Parliament and explaining the duty and limits of power of the constitutional judiciary at length.
As noted by lawyers, the report doesn't have a quality that is binding on the members of the court. However, the report has seriously confuted the grounds for the CHP's appeal for cancellation and the legitimacy of the indictment of the chief prosecutor of the Supreme Court of Appeals, who opened a closure case against the Justice and Development Party (AK Party) based on this amendment. For this reason, in the event the members of the Constitutional Court reach a decision in line with this report, which has been drawn up from a purely legal perspective, the chances of them making a decision in favor of the AK Party's closure will have been greatly reduced. Such a decision will encourage the legislative body to make further amendments to the Constitution, which is rife with anti-democratic elements, in harmony with today's expectations on rights and freedoms.
However, if they render the amendment invalid by rejecting it with an "annotated commentary" or if they declare it null and void by acting contrary to this purely legal report -- in brief, if they cancel it -- there will be a great deal of suspicion surrounding the legality and legitimacy of this closure. Also, such a ruling will be taken as a sign showing that the possibility of the AK Party's closure is high.
The harm to be done to democracy and human rights with a decision to cancel the amendment will not be limited to that; in such a case the headscarf ban, which has been encroaching on the right to education of thousands of women -- one of their most fundamental human rights -- will be impossible to overcome either through a constitutional amendment or any other sort of legislation.
Still worse is that the cancellation of the amendment on the headscarf will completely block the way for making similar amendments to the coup constitution of 1982, which falls far short of meeting the expectations of a modern democracy and rights and freedoms. The repressive spirit of Sept. 12 will be far more difficult to change in every field in that case. In brief, the power of legislation will have been seized by the judiciary from the hands of Parliament and all the boundaries regulating the separation of powers will have been overstepped.
In short, the members of the Constitutional Court have two options before them. They will either act in line with the criteria of universal principles of law or will condone political calculations, thereby opening an irreparable wound in the principle of the supremacy of law. Of course, the consequences or the blessings of these possible decisions will be experienced not only by the members of the court, but also by the entire nation.
