Parliament should not be silent about the instrumentalization of the law
by
MUSTAFA ŞENTOP*

Other topics such as whether a referendum will be held or if early elections will be held will become clearer depending on the decision the Constitutional Court makes on the amendment package.

All of these uncertainties, and possibility calculations, stem from the Constitutional Court’s previous decisions and attitudes; the court does not interpret the law how everyone understands it in written texts. However, the most important conclusion of the principle of the rule of law is that the law has to be certain and predictable; by eliminating the predictability of written texts, the court has evolved into an institution that, instead of realizing the principle of the rule of law, it makes it meaningless. The law has been turned into an instrument.

Legal boundaries of the Constitutional Court’s review

I have expressed my opinions in previous writings on this matter. The Constitutional Court cannot audit a constitutional amendment that has not yet received approval in a referendum because there is actually no legal text that can be audited. No such text has legally been engendered.

The authority of the Constitutional Court in auditing constitutional amendments is precisely limited by the Constitution. By now everyone knows of Article 148 of the Constitution, which states that the review of constitutional amendments “shall be restricted to consideration of whether the requisite majority was obtained in the last ballot … and whether the prohibition on debates under urgent procedure was complied with.” In other words, the Constitution not only restricts the review of constitutional amendments to form but it also refuses to accept a review based on form unconditionally and restricts the form review to three form-related issues. These include the majority needed for the proposal, the majority needed in the ballot and the prohibition on urgent debate.

Acting on the word “proposal,” the Constitutional Court referred to the phrase “their amendment shall not be proposed,” which is written in Article 4 of the Constitution and in its decision dated June 6, 2008, and made a review based on substance under the name of conducting a review based on form. The text of the Constitution is clear. Taking into consideration the function of the word “and,” there is no doubt that the phrase “requisite majority … in the last ballot” means the “requisite majority for proposal” and “the requisite majority in the ballot.” Since the word “proposal” is expressed separately, the Constitutional Court cannot say that it strictly and solely means “proposal” and not “requisite majority for proposal” and attempt to audit every matter that is related to proposal. If it were to do so, it would contradict the grammar as well as the law. This is exactly what the Constitutional Court did on June 6, 2008. Neither the law nor the language can be interpreted arbitrarily.

Some lawyers point to decisions made by the Constitutional Court before 1982 as a basis to explain that the court has established practices. But this is completely misleading. Decisions made by the Constitutional Court before 1982 were made according to the regulations of the 1961 constitution. The 1961 constitution indicated that constitutional amendments could only be reviewed in terms of form but did not explain what a “review of form” meant or how its content would be determined. The Constitutional Court saw this as an opportunity to determine on its own the meaning of a “review of form” which had not been specified by the constitution. But it was these kinds of decisions by the Constitutional Court that were taken into consideration when in the 1982 Constitution the meaning and scope of a review of form was clearly defined. The Constitutional Court’s pre-1982 decisions cannot be seen as a precedent for the 1982 Constitution period. The only time there can be preceding case law is when the provisions are the same. If there are two different provisions, then there is no preceding case law.

What if the Constitutional Court reviews the substance?

What if the Constitutional Court reviews the constitutional amendment package and, as it did in its June 6, 2008, decision, conducts a review of substance under the name of a form review even though the legal status over the issue is clear? Different views on this matter have been debated. I had expressed the view that the court’s decision could have been considered “null and void” in June 2008 as well. There were also some lawyers who recommended not publishing this kind of decision in the Official Gazette. Theoretically, both of these views are valid.

A court decision does not become valid in law just because it is a court decision. Suppose one of the judges of the Constitutional Court had problems with his wife and filed a divorce suit. If the Constitutional Court decided to handle his case, saying: “Let’s not make our friend go to some other court. After all, we too are a court. Let us handle his case here,” and annulled their marriage, would this decision be valid legally just because it was a Constitutional Court decision? Would it have to be published in the Official Gazette? The only reason I give such an extreme example is to show that a decision cannot obtain legal validity just because it is issued by a court.

While I think both of the recommendations I mentioned are theoretically correct, I believe it would be hard to implement either one under the current circumstances. We are in the midst of a referendum process. The Supreme Election Board (YSK) is responsible for the administration and review of this process. Implementing these two recommendations may require considering not only the Constitutional Court’s but also the YSK’s decisions null and void as well. This kind of process is going to be a process of inextricable uncertainty.

Aside from these two publicly debated recommendations, I made another alternative recommendation, which the Constitutional Court accepts and which has a higher chance of being implemented. If the Constitutional Court decides to annul the constitutional amendment package, Parliament should immediately convene, replace the annulled provisions with new ones, patch up the package and put it up for a referendum. If this happens, additions to the constitutional amendment package would not require a separate procedure. The added items would be bound to the same process as the package heading to a referendum. While I think this formula is essentially not legally appropriate, the Constitutional Court approves it and believes it is feasible. In its decision dated Nov. 27, 2007, the Constitutional Court states that Parliament has the authority, a fortiori, to make changes to the text of a constitutional amendment that will be put up for a referendum. Indeed, just five days before the referendum was held on Oct. 21, 2007, in other words, on Oct. 16, 2007, Parliament made changes to the text of the constitutional amendment. The Constitutional Court had deemed that this process was legal.

The Constitutional Court accepts that Parliament has the authority to make changes to a constitutional amendment that is going to be put up for a referendum. If the court makes a decision to annul, taking this route would be indisputable and easily accepted. The extent to which this is politically appropriate is another topic.

If the law is instrumentalized

If the Constitutional Court ignores the limits set out in the Constitution, interprets the law arbitrarily to meet its own interests and turns the law into a tool, it will open the door of instrumentalizing the law not only for itself but for everyone else as well. This would or could have grave consequences for both the court and the legal system. Let me try to explain this using an assumption.

The Constitutional Court accepts that Parliament has the authority to make changes to a constitutional amendment that is heading to a referendum. The court expressed this very clearly in its decision dated Nov. 27, 2007. Is there a limit to the changes Parliament can make to constitutional amendments heading to a referendum? No. It can make any change it wants; it can remove any article from the constitutional amendment package it wants; it can include any provision into the text of the amendments and it can change the content of any article it pleases.

Let’s assume that the Constitutional Court is going to annul some articles or some provisions of the constitutional amendment package that is going to be put up for referendum on Sept. 12, 2010. Upon the court’s decision, Parliament can convene, accept new provisions and use them to replace the provisions annulled by the Constitutional Court. It is for this reason that there is no need to wait for the Constitutional Court’s decision to be published in the Official Gazette. In fact, not waiting for it would be better because there are no restrictions on the time or reason for Parliament’s authority to make such changes. Parliament can make changes upon the Constitutional Court’s decision or independently of it. A delay in the Constitutional Court’s reasoned decision does not prevent Parliament from making changes.

Parliament could even add a single-sentence provision to the temporary article in the constitutional amendment package that is going to be put up for referendum. If the article which introduces changes to the composition of the Constitutional Court is annulled, Parliament could adjust it with a new provision and still ensure that the composition of the court is restructured. To ensure the reorganization of the Constitutional Court, Parliament could incorporate into the provisional article a provision that states “the duties of the current Constitutional Court members shall expire on the date this amendment goes into force. Within one week the court shall comprise members to be elected according to the specified procedures and shall start its functions.” In other words, once the constitutional amendments, including these additions, are accepted at the end of a referendum on Sept. 12, 2010, the terms of the current Constitutional Court members will end. Then, in one week new members will be elected by the higher courts, Parliament and the president as expressed in the amendments and they will start their term. As a result, the Constitutional Court will be completely restructured. There is no obstacle to doing this. The Constitutional Court accepted that this is possible and correct in its Nov. 27, 2007, decision.

Related to this recommendation, people may ask, “Won’t the Constitutional Court audit these amendments and then annul them?” There’s an answer to this question as well. Since instead of respecting the rule of law, the law is being seen as a tool and as an area of deception, it is always possible to find a solution to every problem. If the law is instrumentalized, the Constitutional Court will not be the only one using that road. Parliament could also use it as well.

The constitutional amendment package could be patched up and a provisional article that would cause the term of the existing constitutional court members to expire on the night of the referendum could be added if the timing is kept right. Parliament could convene in the last two weeks of August and include the suggested changes to the constitutional amendment package. Let me point out once again that Parliament made changes to the referendum package on Oct. 16, 2007, just five days before the referendum on Oct. 21. The president could review Parliament’s changes within 15 days. The referendum is going to be held on Sept. 12. The three-day Ramadan Holiday starts on Sept. 9, which means that Sept. 9, 10 and 11 will be official holidays. Therefore, the additions to the constitutional amendment package could be published in the Official Gazette towards the evening on Sept. 8. Of course a lawsuit can be filed against these changes, but due to the holiday, it can only be filed on Sept. 13. However, if the majority of the votes in the referendum on Sept. 12 are in the affirmative and the constitutional amendment package is approved, the terms of the current Constitutional Court members would expire due to the added temporary provision. As a result, the suit to be filed would be handled by the newly elected members. In this way, the respectable and critical job of reviewing the constitutional amendments would not be neglected and the new members of the Constitutional Court would handle the filed case. Even if the court decided to annul the package, the decision would not be retroactive, so the current Constitutional Court members would still not be able to return to their posts.

This kind of formula came out of the legal system. There is nothing in this formula that contradicts the law or the decisions of the Constitutional Court. With this formula, the membership of the current Constitutional Court members would be taken away. Is this a formula that fits well the understanding of a state of law? Of course not. Decisions the Constitutional Court has made and will make by contradicting clearly expressed provisions and violating constitutional limits also do not fit well with the principle of a state of law. Yet the formula that is being offered is a much more “legal” formula compared to the gravity of the Constitutional Court’s audit and annulment of the constitutional amendments. If the Constitutional Court opens the door to using the law as a tool to achieve a certain purpose, in other words the door to instrumentalization, then everyone will pass through that door; everyone can start using the law as a tool to achieve their goals. The Constitutional Court is not the only one that holds the magical formula to doing this. There are many formulas so long as that door is open.

The assumption I tried to show is that Turkey’s fate is not up to the Constitutional Court members. If Parliament wanted, it could use this or another formula to overcome the Constitutional Court without breaking any laws and no one could stop it. There is no limit to arbitrariness. It is not reserved for certain people. It is for this reason that we need to do what is right. Everyone needs to respect the law, strictly abide by the limits drawn out by the law and not see the law as a tool. Turning the law into an instrument opens it up to exploitation by everyone and causes it to lose its status as the law. The Constitutional Court needs to take this reality into account more than anyone else because according to the Constitution, the Constitutional Court is a “court” that reviews compliance with the law.