Constitutional Court decision could disrupt all political balances

 Should the court decide to annul one or more of the articles -- or all of them -- then all of Turkey’s political parties will have to recalculate their positions and strategies. The Constitutional Court is face-to-face with a historic test, and its performance in this test may well increase expectations for early elections in the fall.

    The Constitutional Court agreed to hear a case filed by the opposition Republican People’s Party (CHP) to annul the amendment package ahead of it going to public referendum on Sept. 12, announcing that it would evaluate the amendment package on procedural grounds.

A few days before that announcement, Constitutional Court President Haşim Kılıç had stated that the court would be examining three or four of the package’s articles, creating worry amongst AK Party staffers that the Constitutional Court would, as it has in the past, sign off on a politically motivated ruling intended to scupper the party’s attempts at reform.

AK Party parliamentary group deputy chairman Bekir Bozdağ noted following Kılıç’s statement that in 2008 the Constitutional Court had exceeded its authority by annulling constitutional amendments that would have paved the way for women to be allowed to wear the Islamic headscarf at university; the court overturned the amendments even though they had passed through Parliament with the support of 411 out of 550 deputies through collaboration between the AK Party and the opposition Nationalist Movement Party (MHP). In his remarks, Bozdağ accused Kılıç of violating the Constitution with his words that the court would “examine” some of the amendments in terms of their content, an authority the top court does not possess according to the Constitution.

Under Article 148 of Turkey’s Constitution, the Constitutional Court is only empowered to examine proposed constitutional amendments in procedural terms -- it has no authority to rule on content, only form. Despite this, the court can still address content in its procedural evaluation, as was the case with the headscarf amendments. At present, despite the AK Party’s protests, the high court is set to announce its decision -- whatever it may be -- on July 7.

The reason for the tone of the AK Party’s reaction to the Constitutional Court, even though Kılıç said they would evaluate the amendments in form, is that in so doing the high court is opposing its own precedent as embodied in a ruling it issued in 2008. Ahead of a referendum held on Oct. 21, 2007, the court had rejected a petition by then-President Ahmet Necdet Sezer to annul the referendum itself. The court’s decision was published in the Official Gazette on Jan. 4, 2008. In its ruling, the court explained that the legislative process of a package still waiting to go to referendum was technically incomplete, reasoning that any annulment request would have to await completion of the referendum. By agreeing to deliberate the 28-article reform package and issue a ruling on it on July 7 -- ahead of the planned Sept. 12 referendum -- the court has walked into an open contradiction of its own 2008 precedent.

Speaking to Sunday’s Zaman, AK Party parliamentary Constitutional Commission Chairman Professor Burhan Kuzu noted that the Constitutional Court’s announcement that it planned to evaluate the amendment package in terms of its form did not rule out the possibility of the court also examining its content, cautioning that it is entirely possible another “411” decision will emerge from the court. “The court agreed to review the package ahead of the referendum, violating its own ruling in 2008. We are concerned that the Constitutional Court will transgress the Constitution in a manner even worse than that which occurred with the 411 case,” he said.

Sept. 12 could be a turning point

The strategies and next moves of political actors in Turkey are all hinging upon the decision the Constitutional Court will issue on July 7. Those calculating the conditions for a return to politics -- including former Prime Minister Tansu Çiller, Şişli District Mayor Mustafa Sarıgül and his Turkey Change Movement, the Democrat Party (DP) and the Felicity Party (SP) -- are all waiting with bated breath to see the outcome of the court’s deliberations and the upcoming referendum.

But most concerns are focused not on the referendum but on the July 7 court ruling that will precede it. And most concerned of all is the AK Party.

Opposition parties are calculating what their options are in terms of an opposition policy to counter the ruling AK Party’s stance that will develop in the aftermath of the court’s ruling. Some opposition parties hold that the court will annul the package, eliminating the referendum issue and forcing the ruling party to call early elections.

All Turkey’s political parties have their gaze fixed on the scene created when on June 5 the Constitutional Court agreed to hear the petition by the CHP and the Democratic Left Party (DSP) to cancel the amendment package. The decision was made with nine votes in favor and two opposing. The two no votes came from the two members of the court appointed in April by former AK Party member President Abdullah Gül, which has not increased the AK Party’s confidence in the court. The votes of nine members of the court in favor of agreeing to consider abolishing the amendment process means that the “411” mentality of the court has not changed.

Two critical articles could be cancelled

The chances appear slim that the Constitutional Court will rule to annul the package in its entirety. As it is, an article that would have required parliamentary permission to open court cases to force political party closures failed to gain the support of at least 330 deputies in Parliament, and so was eliminated from the package. Now, everyone is waiting to see what will become of two critical articles still in the package -- articles concerning structural changes to the Supreme Board of Judges and Prosecutors (HSYK) and the Constitutional Court itself.

In their petition to annul the amendment package, the CHP and the DSP had alleged that these two articles contravened the separation of powers enshrined in the Constitution’s first three articles, which are unchangeable. However, the first three articles of the Constitution don’t contain any principle of separation of powers. In its 411 case the Constitutional Court had said the amendment to allow the headscarf at universities indirectly violated the principle of secularism set forth in the Constitution. Now, observers are wondering whether the July 7 decision may somehow connect restructuring of the HSYK and Constitutional Court to a contradiction of the “secular, democratic social state of law” enshrined in the Constitution.

Kapusuz: elections will be held July 17, 2011

In the event of the package being completely cancelled, the AK Party will use the cancellation as campaign material in the upcoming 2011 elections. Even if the amendment package encounters a roadblock along the way due to the Constitutional Court, the AK Party says it has no plans to hold early elections. Even if the top court rules to cancel the two most critical articles in the package -- on the court itself and the HSYK -- the AK Party will not budge on holding a referendum. Opposition parties, however, maintain that the party will hold early elections in the fall if those articles are removed from the package.

Speaking with Sunday’s Zaman, AK Party deputy chief Salih Kapusuz said firmly: “Elections will be held on time, on July 17, 2011. We are not thinking of going to early elections under any conditions.”

Asserting that Turkey has a dire need for a new constitution, Kapusuz said that the cancellation of a number of articles in the package would only whet the nation’s appetite for a civilian and democratic new constitution.

In response to speculation that the AK Party will give up on its hopes of a referendum should a number of the package’s articles be removed, Kapusuz said: “We believe that all the articles in that package are important. We will not abandon the referendum if a number of them are cancelled.”

Opposition plans for the presidency

The CHP, MHP and Peace and Democracy Party (BDP) have all opposed the reform package from the start and are thinking ahead to the Sept. 12 referendum date with Prime Minister Recep Tayyip Erdoğan’s prospects of ascending to the presidency in mind. According to the opposition’s thinking, Erdoğan will bid for the 2012 presidential elections depending on the outcome of the referendum. Due to a legislative change in 2007, the president is due to be elected by the people for the first time -- and the opposition believes Erdoğan is viewing the referendum as a rehearsal for that presidential election.

The opposition says that Erdoğan will consider “yes” votes on the referendum as votes in his personal favor; however, they say that “yes” votes cast by non-AK Party voters cannot be seen in the same way. If the articles concerning the Constitutional Court and HSYK are removed from the package, then all of the parties might vote in favor of the referendum. The CHP, MHP and CHP have all announced that they will support the amendment if the articles in question are removed.

Should the Constitutional Court annul the two articles, the CHP and MHP will ask their voters during rallies ahead of the referendum to support the package -- the opposition is well aware that a wide swathe of the public will support the package in the referendum. For this reason, their strategy must be based on preventing votes in favor of the referendum from transforming later into votes for the AK Party.

If the Constitutional Court rules to remove the reform article concerning itself, then it will be essentially disowning itself as an institution, legal experts say. Speaking to Sunday’s Zaman, the AK Party’s Bozdağ noted that while preparing the package his party had consulted with former and current heads of the top court and shaped the changes accordingly. “The entirety of the article concerning the Constitutional Court was wrought according to the court’s own wishes. We wonder how it is precisely that they will explain it to the public should they decide now to annul the article,” he said.

AK Party’s referendum preparations complete

While the opposition is waiting to hear the Constitutional Court’s ruling on the package before setting forth preparations for a referendum, the AK Party has completed its plans for that process, right down to the slogans it will use in support of its package: “Supremacy of the law, not the law of the supreme” and “Tutelage or national will?” The AK Party gathered its provincial party heads in Ankara and wrote a 40-article list of the reasons they support the constitutional reform package. And in a further sign of the ruling party’s determination, Prime Minister Erdoğan has already set out on the campaign trail, holding rallies in support of the amendments in major cities.