[NEWS ANALYSIS] Constitutional court faces question over legitimacy

Referring to Article 6 of the Constitution, which states that "the Turkish nation shall exercise its sovereignty through the authorized organs as prescribed by the principles laid down in the Constitution," the official Web site of the Turkish Constitutional Court says "the main objective of this article is to put an end to the supremacy of Parliament." The Web site also says, "With this understanding, Parliament is no longer the single institution that uses the sovereign authority in the name of the public." Therefore the supremacy of Parliament as enshrined in the 1924 Constitution, the republic's first Constitution, is over. As such, however, the top court has consistently been criticized for judicial activism, with its legitimacy coming under fire. More often than not, rulings the court adopted have led to its legitimacy being questioned.

Most pundits argue empowering a small group of unelected justices to overrule democratically elected representatives of the people raises serious questions of democratic legitimacy.

Constitutional law expert Mustafa Şentop said the court had undermined its own legitimacy with its latest decision. “As of today, the top court became the most important legal problem in this country,” he added. He pointed out that no authority exists that can supervise the court’s judicial activism and urged the legislature to disregard the decision as nonexistent and keep the amendment in effect.” He argued that, according to Article 148 of the Constitution, the court has no jurisdiction to overrule the amendment.

Many join Şentop in criticizing the Constitutional Court decision which annulled amendments that would have allowed women to wear a headscarf on university campuses. It has raised eyebrows among judicial circles and law professors, stirring quite a controversy on whether or not the top court had overstepped its authority by overruling a popular amendment, endorsed by 80 percent of deputies in Parliament.

Political parties have petitioned the court over 300 times since 1982, asking the court to rule on the constitutionality of various legislative acts and amendments. In three-quarters of the cases, the court found some form of breach of and conflict with the Constitution. Since its establishment in 1962, the court has shut down 24 political parties and ruled against 16 closure cases. Several closure cases remain pending before the court, the most prominent being against the ruling Justice and Development Party (AK Party). The court is expected to make a decision on that later this year.

Some analysts point out that the core problem of the top court’s judicial activism was created when the military leaders of the 1960 and 1980 coups felt the need to secure a system that favors an appointed rather than an elected government. The court’s track record seems to prove this argument. It appears that the court sees itself as the guardian of the state’s values against the encroachments of democratically elected institutions and the public. This creates a divided government wherein the opposition party or parties can petition the court to strike down any legislation they don’t like and were unable to stop in Parliament due to their lack of enough deputies.

What we have in Turkey is actually two governing structures perpetually competing with one another. One of the structures is called the “state” and is composed of appointed units such as the military, the bureaucracy and the judiciary, while the other structure is the “government” and is accountable to the public. Since democracy is based on governance by the public through free and fair elections, the government claims the upper hand in legitimacy rather than state institutions, established to serve the public in the first place.

A look at the history of the top court shows the Republican People’s Party (CHP) was the first party to call for the establishment of a constitutional court. The party proposed the idea in its 1954 campaign. Its reasoning was simple: Ruling the country unopposed during the single-party period, which stretched from the establishment of the republic until the 1950s, the CHP found itself in the opposition and unable to prevent reform packages passed by Parliament by the ruling Democrat Party (DP). After the military coup of 1960, leaders drafted a new constitution and established the Constitutional Court, modeled on its German counterpart. However, major differences exist between the German Constitutional Court and that of Turkey.

If you look at the continental law and common law legal systems, there are measures taken to protect the court from activism and interfering with the legislature’s law-making powers. Western democracies have thereby ensured the legitimacy of the court and of the government. For example, in the US, the president, with the approval of the Senate, has the power to appoint all federal judges. Some US states even allow judges to be elected. Moreover, Congress has the power to impeach and remove US Supreme Court justices. The continental European model, too, recognizes the problem of the legitimacy and accountability of constitutional tribunals and calls for the participation of elected bodies in appointing the justices of constitutional tribunals. Unlike Turkey, in most European democracies, elected officials, including the president and parliament, appoint the members of constitutional tribunals. The Turkish Parliament has no power to appoint a judge to the Constitutional Court nor does it have the power to impeach the top court’s justices.

Constitutional Court rapporteur Osman Can recommended last month in his 100-page report to the court that the case be thrown out, arguing that while the tribunal had the right to examine whether the passage of a constitutional amendment was procedurally flawed, it could not pass judgment on its substance. According to Article 148 of the 1982 Constitution, unlike laws, the top court has no authority to review constitutional amendments on substantive grounds, but may review on procedural grounds only. It states that the Constitutional Court shall examine constitutionality “in respect of both form and substance of laws, law-amending ordinances and the standing orders of Parliament.” The Constitutional Court also has the authority to review whether procedural rules concerning constitutional amendments are observed. However, the court disagreed nine to two with the rapporteur and decided to examine the case on substance, ruling against the amendment. Many argue today that it is time to review the Constitutional Court system in Turkey.