Could the Constitutional Court’s likely decision to annul be considered invalid?
by
Levent Köker*

The stance of the Justice and Development Party (AK Party), which has the support of 47 percent of all voters to make amendments to the Constitution on the condition that they be put to a referendum, was and still is the decisive component. Instead of drafting a new constitution that would embrace every segment of society and every Turkish citizen, and that would have the highest democratic standards, the AK Party attempted to make partial amendments to the Constitution two times.

The first was annulled by the Constitutional Court even though it was ratified by wide consensus, one which included more than just the AK Party deputies. As for the fate of the amendment package that is expected to be put to a referendum on Sept. 12, it remains unclear. The uncertainty is two-dimensional: Among the possible outcomes are: not holding a referendum if the Constitutional Court decides to annul all of the amendments in the package or holding a referendum for part of the package if the court annuls a portion of the amendments.

Since these possibilities are obvious, the notion of rejecting the Constitutional Court's decision -- acting on the belief that a Constitutional Court decision to annul will be invalid -- and holding a referendum despite the court decision has been put forward. While some people support this idea, there are some who argue that doing so would mean disregarding the Constitutional Court's decision, which would be a cause of political crisis or chaos.

An impartial judicial process

I must note that because this trial is in progress, it is best to try and avoid intervening in it. The Constitutional Court is obliged to conclude the judicial process impartially and independently of public assessments and this is what we should expect it to do. However, since the Constitutional Court's previous decision on the "367 quorum," which lacked a legal basis, and its decision to annul constitutional amendments in 2008 strengthens the possibility that the court will rule the same way, people are already making assessments to this end even though the court has yet to issue its decision. Even though this is an understandable concern about the Constitutional Court, which is a critical actor in the deepening of the constitutional crisis we have been experiencing, we have to wait until the judicial process is concluded.

The second point that needs to be pointed out is that the view considering the Constitutional Court's probable decision to annul as "invalid" does not rest on a strong foundation. There are two problems with this view. The first has to do with deciding whether the Constitutional Court is authorized to make a decision to annul and the other has to do with which institution or authority would be responsible for determining if the "nullity" claim is valid.

First, let's look at the first problem: There isn't a single person left who doesn't know that when the Constitutional Court evaluates constitutional amendments to see if they are compatible with the Constitution, its authority is limited to three method-related conditions. Despite this restriction, however, it is likely that the Constitutional Court will annul the amendments on the grounds that they violate the articles of the Constitution that cannot be amended and that cannot even be offered for amendment.

In order to defend that the Constitutional Court's decision to annul should be considered null and void, the Constitutional Court would have to be accused of usurping the authority and function of another institution. By usurping authority, the Constitutional Court would have to make a ruling on a subject that does not fall under its jurisdiction and by usurping functions the Constitutional Court would have to, for example, act like a lawmaker.

Certainly, the 1982 Constitution gave the Constitutional Court the right to audit constitutional amendments to confirm that they do no violate the Constitution. However, this auditing right has defined limits. If the court makes the expected decision to annul, the argument that can be put forward is that the Constitutional Court exceeded the limits set forth in the Constitution -- in other words, it did not usurp authority but rather abused its powers. It is for this reason that it seems difficult to justify the claim that the decision to annul would be invalid.

It is important to remember that Turkey's Constitutional Court is not the only one that does this. In many countries, courts that have constitutional jurisdiction occasionally take up "judicial activism" and make rulings that are beyond their authority. The problem in Turkey is that Article 2 of the Constitution, and by implication the introductory part, contains ambiguous concepts that are interpreted differently according to political views, enabling the Constitutional Court to make rulings about constitutional amendments that constitute an "abuse of power." After all, the Constitutional Court interpreted the concept of secularism in a way that does not reconcile with freedom of religion and conscience and brought the headscarf ban, which is now one of the deficiencies of Turkish democracy, to its agenda. It also annulled amendments in 2008 on the same grounds.

A serious sanction

“Nullity” is a serious sanction. In fact, it is the harshest sanction that makes any kind of legal procedure absolutely null. To impose this kind of sanction, the legal procedure -- in this situation the Constitutional Court's likely decision to annul -- needs to be so incompatible with Turkey's constitutional order -- and this incompatibility must be proven -- that it calls for "nullity." I must note that the duty to issue a final decision on the incompatibility between a legal procedure and the current legal order belongs to the judiciary. In this situation, evidence is needed to prove that the Constitutional Court's decision is null and void. If the executive or legislative branches were to be responsible for finding evidence, wouldn't that mean the executive or legislative bodies are functioning like the judiciary? In that case, wouldn't we also have to consider null and void a potential Cabinet or parliamentary decision that considers the Constitutional Court's potential decision to annul null and void on the grounds that it is usurping the functions of another institution? A more basic question is whether final judicial decisions such as Constitutional Court decisions can be considered null and void. "Nullity," a concept more common with respect to administrative law, in the area of public law seems like a concept that can be extended to operations of the legislative and judicial bodies as well.

The main point here that deserves to be highlighted one more time is that the state philosophy laid down in Article 2 of the 1982 Constitution and the political preferences behind this philosophy that also reflect onto the Constitutional Court's controversial activist decisions need to be completely renewed according to contemporary democratic standards. In return, this shows once more that what we need to do is draft a new civilian democratic constitution that will obtain the broadest social consensus.