Judicial tutelage hinders smooth governance

Although a number of legislative and executive powers and authorities have been intruded upon by the judiciary, it is the judiciary that complains the most about an imbalance among the three basic powers. The judiciary claims at every opportunity that the executive branch is trying to repress it; however, the decisions made by the judiciary during the last 20 years have truncated many authorities and powers of the executive.

Despite the fact that some groups, mainly led by judicial circles, claim that there is a “civilian tutelage” in power in Turkey, many of the bills passed by the government have been blocked by the judiciary.

Critical of the judicial impediment, Prime Minister Recep Tayyip Erdoğan recently said, “There is no civilian tutelage in Turkey, but there is certainly a judicial tutelage.” Many constitutional amendments and bills passed by Parliament were annulled by the Constitutional Court.

The Republican People’s Party (CHP), which seems to have extremely good relations with the judiciary, is the party that has applied to the Constitutional Court the most during the history of the Turkish Republic. The CHP filed 150 applications to the Constitutional Court between 2002 and 2010. The Constitutional Court accepted 62 of these petitions either completely or partially, thereby annulling the bills passed by the government. The court denied 33 applications, while 55 are still pending at the court.

Professor Burhan Kuzu, the chairman of the parliamentary Constitution Commission, stressed that many decisions handed down by the Constitutional Court were influenced by an agenda. “It made decisions that infringed upon the authority of Parliament. Turkey needs judicial impartiality more than it needs judicial independence. The image of the judiciary acting upon instruction from certain forces does not befit Turkey,” he said.

Two unique decisions

Two of the Constitutional Court’s recent decisions are proof that the Turkish judiciary has been politicized to a great extent, making decisions based on the agenda of that time.

During the presidential election of 2007, inspired by an opinion written by former Supreme Court of Appeals Chief Prosecutor Sabih Kanadoğlu, the CHP applied to the Constitutional Court demanding that the election be canceled, claiming that at least 367 deputies must be present during the parliamentary session to constitute a quorum for the election to be valid. The court agreed with the CHP’s demand.

The second hard-to-reconcile decision from the Constitutional Court concerned a constitutional amendment lifting the ban on headscarves on university campuses that was passed on June 5, 2008. Claiming that lifting the headscarf ban constituted an indirect attempt to change the first three articles of the Constitution, which are considered sacrosanct and inviolable, the court deemed the amendments null and void, thereby giving itself the power to make a constitutional ruling. With this decision, the court overstepped its powers and authority, usurping those of Parliament.

In issuing this decision, the Constitutional Court acted in line with the regime’s concerns about secularism. However, the court’s aggressive actions were not restricted to acting according to these concerns, as it also rendered decisions that had severe consequences on matters not relevant to these concerns about secularism.

Another hard-to-interpret decision from the Constitutional Court was the cancellation of the law allowing military personnel to be tried in civilian courts for non-military offenses. This law was regarded as a major boost to Turkish democracy, and its abrogation effectively paralyzed a number of investigations into members of the military, particularly the Ergenekon probe.

The Constitutional Court involved itself not only with the concerns of the legislative branch but also the executive branch. In this regard, acting upon another application by the CHP, it annulled a constitutional amendment that would have allowed formerly forested areas to be sold to the people who were using the land, in order to prevent illegal construction and provide extra revenue for the country. The government had expected to raise $20 billion from this amendment.

Bekir Bozdağ, the deputy chairman of the ruling Justice and Development Party’s (AK Party) parliamentary group, noted that the court made politically motivated decisions in many cases. “The court’s cancellation of the constitutional amendment lifting the headscarf ban is a decision that violated Parliament’s powers and authority. All over the world, constitutional courts or their equivalents tend to issue decisions that extend and promote human rights and freedoms and reinforce democracy, democratic standards and the rule of law. But here in our country, it acts in the opposite manner,” he said.

Also, the attempt to transfer $10 billion from the Unemployment Insurance Fund to the Southeastern Anatolia Project (GAP) as part of the government’s democratic initiative was halted. With this transfer, the government was planning to provide job opportunities to about 3.8 million people.

Legislation foreseeing oversight of military expenditures by the Court of Accounts is among legislative problems that haven’t been solved since it was annulled by the Constitutional Court. Another law that was reversed by the court concerned clearing land mines in regions along the Turkish-Syrian border and leasing out the cleared area for agricultural purposes. Other court-annulled laws include legislation on amending the Judges and Prosecutors Law, various laws with the purpose of harmonizing basic penal laws with EU legislation, the Associations Law, laws on establishing districts within the borders of a metropolitan municipality, the TRT Law and the Radio and Television Broadcasting Law.

Turkey has turned into a  cemetery for political parties

The Constitutional Court has become known not only for revoking constitutional and legal amendments, but also for closing down political parties. After the Constitutional Court was established in 1963, as a product of the May 27, 1960 coup, it made several rulings to close down political parties, turning Turkey into a cemetery for political parties. It closed six parties before the coup of Sept. 12, 1980, when all political parties were dissolved. To date, the court has shut down 19 parties with the most recent being the Democratic Society Party (DTP), which was shuttered in December. Sixteen other parties faced a closure case at the Constitutional Court, but the court ruled not to shut them down.

Council of State also annulled many decisions

Aside from the Constitutional Court, the Council of State has also taken measures to prevent the implementation of laws introduced by Parliament and the government. Most recently, the Council of State issued a ruling halting the enforcement of a Higher Education Board (YÖK) decision to abolish the coefficient system that is used to calculate university entrance exam scores.

When announcing its government and election program, the AK Party initiated a comprehensive bureaucratic overhaul, removing many bureaucrats from office and replacing them with officials chosen by the party administration. Despite the government’s decision, the administrative courts reinstated every bureaucrat who was removed from office, pitting the government against its bureaucrats for a very long time.

The Supreme Court of Appeals’ stance over the last eight years has shown that Turkey is quickly moving towards becoming a juristocracy. Many Ergenekon terror organization suspects are known to have met frequently with the president of the Supreme Court of Appeals and its members. When reacting to the illegal monitoring of phone conversations, the president and members of the high court acted in a way that suggested they were in favor of coups. While they continued their close contacts with the main opposition party, they also vehemently opposed restructuring the Supreme Board of Judges and Prosecutors (HSYK) or making comprehensive changes to the Constitution.

As a result of decisions made by judicial organs, their independence and objectivity has become subject to intense debate over the last eight years. The tensions between the judiciary and the AK Party, which came to power in 2002, was confirmed by the closure case that was brought against the party in 2008. Former Supreme Court of Appeals Chief Prosecutor Sabih Kanadoğlu, who is the mastermind of the “quorum of 367 thesis,” filed a lawsuit 15 days before the 2002 elections claiming that AK Party leader Recep Tayyip Erdoğan was not eligible to become prime minister. Supreme Court of Appeals Chief Prosecutor Abdurrahman Yalçınkaya became known as the first prosecutor in Turkey to file a closure case against a party in power. While the case was thrown out by the Constitutional Court, many other parties have suffered in the grip of the Supreme Court of Appeals and the Constitutional Court.

Members of the judiciary who tried to prevent Abdullah Gül from becoming president by promoting the 367 quorum thesis filed a lawsuit against President Gül in 2008 claiming he should be eligible to stand trial for an old fraud case, the “lost trillion case,” which concerned the now-defunct Welfare Party (RP). According to the Constitution, the president cannot be tried for any crime other than high treason; yet, the judiciary still attempted to try the president over the fraud case, revealing how far the judiciary is prepared to go.