Constitutional Court shouldn’t muzzle Parliament’s will, jurists say

Constitutional Court shouldn’t muzzle Parliament’s will, jurists say

Haşim Kılıç

June 03, 2010, Thursday/ 18:04:00
The Constitutional Court will discuss today whether to accept an appeal from the main opposition party for the annulment of the government’s constitutional amendment package in terms of its content.

Jurists say that the package, which is scheduled for a referendum on Sept. 12, should first be referred to the people, as any ruling handed down on the package before taking it to the people will override Parliament’s will.

The ruling Justice and Development Party (AK Party) last month passed a package to amend the existing Constitution, which was drafted under a state of martial law following a 1980 coup d’état. The package was accepted by Parliament after two rounds of voting on each of its articles. The Republican People’s Party (CHP) appealed the package shortly after it was approved by the president and is seeking annulment of the changes both in content and on procedural grounds, despite the prevailing opinion amongst legal experts that the court can only review the package on procedural grounds.

Constitutional Court President Haşim Kılıç said on Friday that the court would meet to discuss the package today and signaled that the court may also deliberate on the package’s content, heating up the debate over the high court’s authority to review the annulment case.

Deliberation based on the content of the amendments included in the package is a violation of not only the Constitution but also the basic principles of democracy and rule of law, said Reşat Petek, a retired chief public prosecutor, in evaluation of the developments.

Ahmet Gündel, a former prosecutor at the Supreme Court of Appeals, said cancelling the referendum would be tantamount to ignoring the will of the nation. “The constitutional package is not yet in a situation where it can be monitored by the high court. The court can review it only after it is approved by the people in a referendum. Any cancelation of the referendum would mean ignoring the nation’s will,” Gündel said.

Top CHP officials submitted a petition to the Constitutional Court last month demanding the annulment of the government’s reform package.

Faik Tarımcıoğlu, a retired military judge, said cancelling the referendum would be unlawful. He recalled that on June 5, 2008, the Constitutional Court cancelled amendments to Article 10 and Article 42 of the Constitution that lifted the ban on headscarves at universities. The court determined that the amendments, passed in Parliament with the support of 411 deputies, indirectly violated the first three articles of the Constitution -- which are unchangeable and to which amendment cannot be proposed -- and therefore annulled them. “The court at the time had placed itself in a tough position. The court can only review amendments on procedural grounds as per Article 148 of the Constitution,” Tarımcıoğlu said, noting that the court had then drew the ire of the nation with its political decision.

Gültekin Avcı, a former prosecutor, said: “If the court cancels the package, this would be tantamount to planting mines on the road leading to the [realization of the] nation’s will. There is also no legal norm that can serve as the basis for such cancellation or even review. The basis for that will emerge only after the package is voted on in a referendum.”

The meeting will be a historic test for the Constitutional Court, according to retired prosecutor Sacit Kayasu: “I think they will probably reject the appeal, because the court cannot issue a stay of execution on or annul a law that has not yet gone into force. The package should be referred to a referendum first.” Kayasu said that if the court makes the right decision, this would exonerate it from all the doubt cast over it in past incidents.

Unfortunately, past examples such as the abovementioned headscarf ruling show that the Constitutional Court has no qualms over exceeding the boundaries of its legal authority. During the 2007 presidential election, the CHP succeeded in annulling the results of a vote in Parliament based on the legal opinion of former Supreme Court of Appeals Chief Prosecutor Sabih Kanadoğlu, who had said at least 367 deputies must be present in Parliament during presidential elections. That ruling came shortly after a military e-memorandum surfaced, accusing the government of spreading Islamism.

However, also in 2007, the Constitutional Court rejected an appeal from former President Ahmet Necdet Sezer to annul a constitutional change that allowed the people to elect the president as opposed to Parliament. That change was on its way to a public referendum at the time. The court said the legislative process was ongoing and rejected Sezer’s appeal. If it makes a different ruling this time, a new political crisis is likely to emerge. Even if the court finds some of the changes to be unconstitutional, this might prompt the AK Party to call early elections.

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