Turkey set to vote on reforms though top court exceeds authority

The court, which announced its decision late Wednesday night, rejected an opposition appeal to scrap the entire package and said the remaining elements would be put to referendum as planned. The court partially annulled two articles redefining the process of electing members to the Constitutional Court and the Supreme Council of Judges and Prosecutors (HSYK). The annulment came in spite of a report by the court's rapporteur, Ali Rıza Çoban, that any annulment would be equivalent to going into the substance of the package despite the fact that the Constitutional Court can only review constitutional amendments legislated by Parliament on procedural grounds. The government had wanted to broaden the selection of candidates and give Parliament and the president a bigger say in their selection.

The Republican People’s Party (CHP), which had challenged the package at the court, argued that this was a violation of the principle of separation of powers.

In initial remarks Justice and Development Party (AK Party) officials accused the top court of exceeding its authority. The CHP and other opposition parties as well as senior judges remain against the package, which they say would threaten the independence of the courts. It was also possible -- but unlikely -- for the court to have annulled the entire package. The package now will go to referendum on Sept. 12 as scheduled.

The court annulled a provision that would have kept members of HSYK and the Constitutional Court from voting for more than one candidate. The provision that would have allowed the president to assign political science academics or senior executives to the two judicial bodies was also canceled.

The court’s deliberations lasted nine-and-a-half hours. This is the second time the court has evaluated a constitutional amendment on substance. In 2009, the AK Party and the Nationalist Movement Party (MHP) together passed a law that would have allowed the wearing of the Islamic headscarf on university campuses via changes to Articles 10 and 42 of the Constitution. However, the Constitutional Court canceled this amendment, exceeding the authority granted to it in Article 148 of the Constitution, which states that the high court can only review constitutional amendments on procedural grounds. Constitutional Court President Haşim Kılıç also admitted that the court had done as such in his initial remarks after the announcement of the ruling.

Conflict inside the court

The Constitutional Court, in its reasoned opinion, said too much involvement of the executive in high judicial body appointments would be a violation of the basic principles of the rule of law, but there was disagreement among the judges themselves. The judges voted seven to four to go into the substance, or the content, of the package. The Constitutional Court, however, did not find increasing the number of Constitutional Court members to 17 from 11 and those of the HSYK to be in violation of the separation of powers.

In addition to Haşim Kılıç, members Serruh Kaleli, Engin Yıldırım, who was appointed by President Abdullah Gül from among Higher Education Board (YÖK) members, and Nuri Necipoğlu, appointed by Gül from the Military Supreme Court of Appeals, voted against going into substance. Deputy President Osman Paksüt and members Ahmet Akyalçın, Mehmet Erten, Serdar Özgüldür, Fulya Kantarcıoğlu, Zehra Ayla Perktaş and Şevket Apalak voted for review of the content. The media had earlier published a transcript of a phone conversation between Kantarcıoğlu and former Justice Minister Seyfi Oktay apparently discussing what could be done to annul the package.

What happens next

The Constitutional Court’s ruling means that court members can vote for three candidates in the election of candidates nominated from the Supreme Court of Appeals, the Council of State, the Military Supreme Court of Appeals, the Court of Accounts, the Military Supreme Administrative Court, YÖK and heads of bar associations. The ruling canceled the provision in the package that each member can only vote for a single candidate.

The new package allows the HSYK to elect 10 permanent and six alternate members. In these elections, every judge and prosecutor can vote for more than one candidate.

Despite the partial annulment of two of the package’s articles, the package will be sent to a national vote on Sept. 12. Kılıç said: “We see no problem in going to the referendum as long as those provisions are not there. The remaining 26 articles can easily be referred to a referendum.” With this ruling, the court found that the package is not against the principles of the rule of law and the principle of separation of powers.

The court also found that the package does not have any flaws that call for its annulment on procedural ground, as the CHP and the Democratic Left Party (DSP), which had appealed the package, had claimed. These two parties had called for the annulment of the entire package in their petition.

AK Party not satisfied

The AK Party is generally optimistic about the court’s ruling but was annoyed by the Constitutional Court’s decision to go into the substance of the package. Justice Minister Sadullah Ergin, Deputy Prime Minister Bülent Arınç and Prime Minister Recep Tayyip Erdoğan watched the announcement together in the new Prime Ministry building, after which they went to AK Party headquarters and ordered their deputies and members to start campaigning for the referendum process.

AK Party members with a background in law were also distressed by the review of the case on substance but pleased that the referendum is still on.

Justice Minister Ergin said: “The court has placed itself in the position of the legislative organ. The part of the process at the Constitutional Court has been completed now. The package as it is still remains an important reform.”

AK Party Deputy Chairman Hüseyin Çelik said: “The Constitutional Court has exceeded its authority for the second time. It has used an authority that wasn’t vested in it by the law or the Constitution. They don’t have the right to do such a review of the package. Parliament can pass a regulation and abolish the Constitutional Court. No matter how you look at it, it is a political decision. There is no way we can treat this as a legal decision.”

HSYK not happy about the ruling

HSYK President Kadir Özbek, who thinks the package itself is a violation of the constitutional principles of separation of power and the rule of law and had waged a major campaign for the annulment of the entire package, expressed his discontent about the outcome. “It is a shame. Our concerns have not been eradicated, but we respect the decision.”

Judges and Prosecutors Association (YARSAV) head Emine Ülker Tarhan, who had also spoken against the constitutional amendment package from the start, said their expectations were not met with the ruling. “What we think is clear. We think the change is against the Constitution, and we were hoping that it would be annulled.” However, she said they still had hopes that the package would be rejected in the referendum.

CHP upset by ruling

The CHP, which had appealed the package with the support of the DSP and independent deputies shortly after it was passed in May, was not happy with the decision at all. CHP deputy group chairman Muharrem İnce said: “The Constitutional Court has ruled in line with our appeals in 63 percent of our petitions and against our wishes in 37 percent. We are not satisfied by the decision. We respect the decision, but we trust that our nation will not place the judiciary in the hands of the executive in the referendum, we have confidence in that.” The CHP, the MHP and the Peace and Democracy Party (BDP) have announced they will be campaigning for “no” votes in the referendum.

CHP Afyon deputy Halil Ünlütepe claimed that according to a provision in the package which says that the package shall be voted as a whole in a referendum, the partial annulments in the two articles mean that the two articles must drop out of the package completely in the referendum.

MHP Secretary-General Cihan Paçacı said they would work for the annulment of the package. “We hope that the nation will annul it,” he said in his evaluation of the Constitutional Court’s ruling.

BDP deputy group chairman Ayla Akat Ata said her party was not satisfied with the ruling but criticized the high court for ignoring Parliament’s will.As it currently stands, all the opposition parties will be campaigning against the package in the referendum.