Can: Review of package’s content would prove top court’s pro-coup mindset

Can: Review of package’s content would prove top court’s pro-coup mindset

According to Osman Can, it would be a violation of the Constitution if the top court were to review the content of the constitutional package.

May 31, 2010, Monday/ 17:50:00/ TODAY'S ZAMAN
If the Constitutional Court deliberates on an appeal for the annulment of the government’s constitutional amendment package in content, it would be an open defense of its pro-coup mindset, Osman Can, co-chairman of the Judges and Prosecutors Association for Democracy and Freedom, has said.

“It would be a violation of the Constitution if the court were to review the package in content instead of examining it only on procedural grounds. The annulment of even an article by the court on the basis of the content of package would openly display the court’s stance that it will not let anyone touch the coup ideology and that it ignores democracy,” he told Today’s Zaman.

The ruling Justice and Development Party (AK Party) has recently passed a package to amend the existing Constitution, which was drafted under martial law after the bloody coup d’état of 1980. The Republican People’s Party (CHP) appealed the package shortly after it was approved by the president and seeks the annulment of the changes both in content and on procedural grounds, despite many legal experts’ opinions that the court can only review the package on procedural grounds.

“The Constitutional Court’s review of the package in content would mean impossibility of making politics in the country. All political actors, no matter from which party, and the public should consider its possible outcomes. So civil society, political parties and all individuals should demonstrate their reaction to this before the court attempts to do such a thing. They should tell the court: ‘Don’t ever take such a step. This is my problem and I should decide on it.’ If they don’t, all of us will lose,” he said.

Constitutional Court President Haşim Kılıç said on Friday that the court will meet on the package this week and signaled that the court may also deliberate on the package in content, heating up the debate over the high court’s authority to review the annulment appeal.

Noting that he does not think that the court will adopt such an “irrational” stance, Can said this stance would be against democracy. “I do not deem it likely that the court will engage in such an explicit opposition to democracy and the state of law. To be honest, I can’t even imagine it. The court should be aware of what it would face with if it takes such a step. As soon as it takes such a step and begins reviewing the content, even if it does not annul the changes, it would be faced with the accusation of being a ‘pro-coup’ court. But in fact this would not be an accusation but the expression of a fact,” Can said.

Constitution bans top court from reviewing content of changes

Underlining that the Constitutional Court is not authorized to review the content of constitutional amendments, Can said the Constitution in fact imposes clear limitations on the court, which has exceeded its authority many times, on this issue. “Article 148, in very clear language, bans the court’s review of constitutional changes in content. The Constitutional Court can only examine such changes on procedural grounds. What the court can do is just what a gateman does. He just checks the identities of visitors. If he sees that those coming are the owners of the building, he has to let them in. In a similar relationship, the court can only check who is making the changes. Otherwise, if it claims ownership of the building, it would mean a seizure of the nation’s will,” he said.

Scarf ruling cannot set precedent

According to Can, it is a big mistake to argue that a previous ruling by the court in 2008 can be seen as a precedent for further cases since it was in itself a violation of the Constitution. On June 5, 2008 the Constitutional Court cancelled amendments to Articles 10 and 42 of the Constitution that would have lifted the ban on headscarves at universities. The court reviewed the changes’ content and determined that the amendments.

“It is not possible for a precedent which is against the Constitution and which subverts the constitutional order to be valid. A precedent against the Constitution is not legitimate. If that precedent [on the headscarf] is legitimate, then so are the coups. You cannot say, ‘We staged a coup once, and we can do it again.’ It cannot be legitimate, regardless of how many times it is repeated,” he added.

Stating that the court can make incorrect decisions by engaging in interpretation, he said if the Constitutional Court examines the changes in content, it would be the fault of its 11 members, not the court itself. Noting that neither Parliament nor the government has to accept the decision of the court if it oversteps its authority, Can stressed that the court should remain within its constitutional limits.

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