All eyes on Constitutional Court as it rules on crucial reform package

All political parties' calculations will change based on whether the Constitutional Court cancels one or more articles in the package or all of it. The Constitutional Court is faced with a historic decision, and its final verdict might put into doubt the powers of the judiciary in Turkey, which are already part of a controversial debate. The ruling might also increase the possibility of early elections in the fall.

The Constitutional Court earlier said it would announce its final decision on the package on July 5. However, senior AK Party officials anticipate that the decision will be left to Friday. The AK Party has kept Parliament, which was supposed to go into recess on July 1, open to wait for the Constitutional Court's decision. The AK Party will decide on a roadmap to stick to this week regarding the constitutional reform package. Many in the AK Party believe that the package will come out of the court intact and be voted on in a public referendum in one piece. However, there are also those who will not be surprised if there are any annulments.

Prime Minister Recep Tayyip Erdoğan, who has spoken with members of his party who have a legal background, recently reiterated that the AK Party has no intention of calling early elections. However, backstage talk has it that a surprise decision from the Constitutional Court might increase the possibility of general elections earlier than scheduled.

If this is the case, sources from within the AK Party say the general elections scheduled for July 17, 2011 might be brought up to May 2011. It is, however, not likely that the elections will be held at an earlier date.

Prime Minister Erdoğan recently delayed a planned visit to Cuba because the Constitutional Court announced that it would announce its decision on July 5. The prime minister will stay in Ankara this week and next.

What the court might say

Past experience shows that there is a possibility the Constitutional Court might annul one or more amendments contained in the package. Many legal experts had said the package cannot be appealed before a referendum is held, but the court accepted the appeal the CHP filed. Past examples show that the Constitutional Court has no qualms about exceeding the boundaries of its legal authority. During the 2007 presidential election, the CHP succeeded in cancelling the results of a vote in Parliament based on the legal opinion of former Supreme Court of Appeals Chief Prosecutor Sabih Kanadoğlu, who said at least 367 deputies must be present in Parliament during presidential elections. That ruling came shortly after a military e-memorandum accused the government of spreading Islamism.

Secondly, on June 5, 2008, the Constitutional Court cancelled amendments to Article 10 and Article 42 of the Constitution, which lifted the ban on headscarves at universities. The court determined that the amendments, which had been passed in Parliament with the support of 411 deputies, indirectly violated the first three articles of the Constitution -- which are unchangeable and to which amendments cannot be proposed -- and were therefore cancelled.

However, in 2007, the Constitutional Court rejected an appeal from former President Ahmet Necdet Sezer to annul a constitutional change that would allow the people, as opposed to Parliament, to elect the president. 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 will certainly emerge.

In addition to the CHP’s 97 deputies, seven independents, six Democratic Left Party (DSP) deputies and one Democrat Party (DP) deputy support the appeal. The opposition wants amendments seeking a change to the structure of the Supreme Council of Judges and Prosecutors (HSYK) and the Constitutional Court out of the package. No political party has a problem with the rest of the package.

Stance of political parties

If the Constitutional Court rules that a part of or the whole package is in line with the Constitution, there will be a public vote on Sept. 12. The voter turnout will be directly related to whether the amendments that make the judiciary’s statement are taken out of the package or not. The CHP, the Nationalist Movement Party (MHP), the Peace and Democracy Party (BDP) and the DSP will start campaigning against the package. The AK Party, the Felicity Party (SP) and the Grand Unity Party (BBP) will be campaigning in favor of the package.

Constitutional Court rapporteur Ali Rıza Çoban in a report on June 8 wrote that the package can only be reviewed on procedural grounds. This report is not binding for the Constitutional Court judges. The headscarf ruling of 2009 had also been accepted for review on procedural grounds, but was rejected on substance. Parliament’s Constitutional Commission President Burhan Kuzu told Today’s Zaman that he is concerned about this previous ruling. “The court, by accepting to hear the appeal against the package before a referendum, has violated its own ruling from 2008. We are worried that the court will commit yet another constitutional violation, perhaps this time worse than the 411 [headscarf] ruling because courts say one thing today and something completely different the next.”

All political parties are now watching the Constitutional Court. AK Party Deputy Chairman Salih Kapusuz told Today’s Zaman that his party plans to hold elections as scheduled. “We are not planning early elections even if one or more of the articles are annulled,” he said. The two articles making changes to the judiciary are at the core of this battle. Their fate will decide what strategy all parties will follow in the period ahead.