Jurists call on controversial high court member to resign

The transcript of Constitutional Court member Fulya Kantarcıoğlu’s phone conversation with former Justice Minister Seyfi Oktay on May 5 was printed in most Turkish dailies on Monday. Oktay, who was briefly detained two weeks ago as part of the investigation into Ergenekon, a clandestine gang charged with plotting to overthrow the government, called Kantarcıoğlu after a phone conversation with former Republican People’s Party (CHP) leader Deniz Baykal, who told him to “do something about” the reform package. The package was passed in Parliament in May and was subsequently challenged by the CHP, which filed for its annulment at the Constitutional Court although a referendum on the package is due to take place on Sept. 12. Oktay’s conversations were being monitored legally as he is an Ergenekon suspect.

Constitutional law Professor Burhan Kuzu, who currently heads the Parliamentary Constitution Commission, said the communication between Baykal, Oktay and Kantarcıoğlu is highly questionable. “This is obviously an attempt to intervene in the judiciary. In the transcript, they admit that they have no legal right to issue a stay of execution on the package. The Constitutional Court should do what is necessary.”

Gültekin Avcı, a retired public prosecutor, said: “She [Kantarcıoğlu] has lost her impartiality. She should not take part in the current case.” He also noted that the person Kantarcıoğlu was talking to is a suspect in the Ergenekon trial, adding that her comments certainly violate the principle of judicial impartiality.

Mustafa Şentop, an associate professor of law, said if Kantarcıoğlu refuses to withdraw from the case on her own, the president, the prime minister or the parliament speaker can file a request of judge dismissal.

Lawyer Sinan Kılıçkaya, head of the Jurists’ Union, said: “A Constitutional Court member should not have talked about a case that stands or potentially might stand before her with the former justice minister, just as she wouldn’t have talked about it with me. The language overall indicates bias about the case. She should withdraw from the case and not participate in any sessions on the constitutional amendment package.” Kılıçkaya said Kantarcıoğlu should resign from the court because in her conversation with the former minister she classified Constitutional Court members by their perceived ideological stances.

Retired Prosecutor Ahmet Gündel said: “Fulya Kantarcıoğlu should withdraw from the case, as necessitated by the principle of a fair trial. It is obvious that in the conversation they weren’t talking about the substance of the case but rather on the possibility of the court issuing a stay of execution. It is not right for a member to talk about a case that the court is hearing or might potentially hear with a politician from the political party that applied to the court in the first place. If that conversation really took place, Kantarcıoğlu should announce publicly that she has withdrawn from the case.”

It was not clear whether Kantarcıoğlu was the only member that Oktay or Baykal spoke to about the case. In the conversation Baykal had with Oktay, he told the ex-minister to call up “the members” and find out what they were thinking, indicating that it is possible that Oktay or other individuals trying to influence the Constitutional Court decision on the package might have talked to other members of the court.

Meanwhile, Kantarcıoğlu released a statement yesterday afternoon saying she had no intention of withdrawing from the case. She said, in defense of her conversation with the former justice minister: “I did not state any personal views. I only gave him information about the rules outlined in the Constitution.”

She said that she has been a jurist for 40 years and a member of the Constitutional Court for 15 years. “Do you think I cannot evaluate what comprises an appearance of impropriety?” She said there was not a single word in the conversation uttered by her that reflected her personal opinion. She said she’d only described earlier precedents, a situation that can be explained by anyone.

Content of the conversation

In the conversation after Oktay’s talk with Baykal, Oktay asks Kantarcıoğlu, “Does the Constitutional Court need a two-thirds majority to cancel a constitutional article?” She replies: “Yes, seven votes are needed. Well, you know, we do this on procedural grounds first. You know, we made this earlier decision about the headscarf,” referring to the Constitutional Court’s annulment of a law that would have lifted a headscarf ban on university campuses -- the court had said it would review the amendment on procedural grounds but the cancellation ruling was made on substance. Then Oktay says he is confused about the majority needed for issuing a stay of execution. Kantarcıoğlu clarifies that in some cases, such as voting on evidence in political party closure cases, the qualified majority method is used.