On June 5, 2008, the Turkish Constitutional Court annulled the Parliament’s amendments to Articles 10 and 42 of the Constitution.
The Turkish Constitutional Court’s verdict annulling the Parliament’s amendments to Articles 10 and 42 of the Constitution disregards popular will, legalises arbitrary restrictions on the right to equal access to education, and erodes the separation of powers by permitting itself to act outside of the legal order. The emergence of a new precedent of judicial activism is now the biggest threat to the future of Turkish democracy. The Parliament must reassert its authority and reconfigure the Court’s competences and composition to bring it into line with liberal-democratic principles as part of a comprehensive constitutional reform.
The amendments, which had been adopted with overwhelming support by 411 MPs from several parties, would have strengthened equality before the law and expanded the right to education by eliminating the unconstitutional denial of these fundamental rights to women wearing the headscarf. In reaching its verdict, the Court ruled that the amendments violated the unchangeable laws of the constitution that define the essential characteristics of the Republic. However, by reaching this verdict through an evaluation of the amendments on substantive grounds, the Court overstepped the competences laid down for it in the Article 48 of the 1982.
Threat to Democratic Polity
The Court’s decision shatters the balance between the branches of government, in particular the legislature and the judiciary. The Constitutional Court is the court of highest instance, tasked with reviewing the constitutionality of legislative and executive acts. Its breach of the letter and spirit of the Turkish Constitution has dragged Turkey into a new period of legal and political uncertainty. With its latest decision, the Court strengthens a precedent which was pronounced with its infamous 2007 decision regarding the presidential election quorum of 367. The Court has empowered itself to issue verdicts based on subjective evaluations that were in contravention of positive law as well as the basic rights protected by international conventions and the Turkish Constitution itself. The latest decision is a first in the history of 1982 Constitution in that the Court annulled amendments to the Constitution on substantive grounds although the Article 148 of the Constitution clearly prohibits it. Experts of constitutional law and the Court’s own rapporteur earlier had stated that it would be impossible for the Court to declare the amendments null and void. Now that the Court rendered this decision, what does it imply for the Turkish legal and political order?
Under this emerging precedent, the Court oversteps its competences by violating the jurisdiction of the executive and judicial branches. If this extralegal practice is not challenged, it threatens to develop into a new norm in constitutional law, destabilizing the political system. On the one hand, allowing the practice to proceed unchallenged will legitimize the judicialization of politics by tacitly condoning the Court’s deliberate attempt to act as a political body in shaping the direction of politics and society. On the other hand, it will render the Turkish Parliament dysfunctional and illegitimate; the possibility that the Court can eventually review and squash any legislative act will hold representative institutions hostage to the whims of unaccountable justices. Since no constitutional appeal mechanism exists to review the Court’s decisions, the Court in effect emerges as an institution exercising substantial governance powers above and beyond politics, and without the balancing force of democratic accountability. This is the end of democracy as we know it and the emergence of juristocracy in its place.
A related issue, therefore, is the Court’s betrayal of the purpose of judicial review in a system of democratic checks and balances. Even in a healthy democracy, a nation’s high court is granted the authority to oversee the actions of the executive and legislative branches, and thus runs contrary to the spirit of direct democracy. However, in doing so it serves an important function in pluralist societies, protecting basic rights by preventing the tyranny of the majority over individuals and dissenting groups. The judiciary’s ‘undemocratic’ constraint on the expression of popular will is intended to limit the excesses and abuses of popular sovereignty and state power. That is partly why the autonomy and independence of judges from the influence of political authority has emerged as an important principle in most countries. The corollary of this principle, however, is the disengagement of judicial organs from partisan politics.
Through its latest decision, the Turkish Constitutional Court has demonstrated once again that it does not respect fundamental human rights, particularly the right of equality before the law. The Court's expansionist interpretation of the rights of the state, and its corresponding restrictive position regarding the rights of the individual, has been one of the major impediments to the progress of Turkish democracy. Instead of upholding the basic rights of Turkey's citizens, the judiciary has opted instead to restrict their rights and liberties in order to protect the state and the status quo.
In addition to reaffirming its practice of undemocratic political intervention in violation of the purpose of judicial review, through its latest decision the Court empowers itself to deny equal access to public services outside the scrutiny of legal order and democratic accountability. Its self-empowering interpretation sets a dangerous precedent for any political-legal order in general and those of a democratic polity in particular. If a secularist cohort of high Court judges can breach the sanctity of the constitutional-legal order and endorse unequal access now, while further seeking to institutionalize their extra-juridical act as a new precedent, the Turkish polity is left with no neutral basis from which to object to other excesses. If a fascist, totalitarian or fundamentalist cohort of judges were to dominate the Court in the future and seek to impose their worldviews on society, they would have every right to do so under the emerging precedent. When the highest Court is granted the right to overstep the law, no institution will have the power to stop subsequent acts of judicial 'guardianship.' This dangerous imbalance of power in effect delegitimizes the entire political system.
The Court's constant abuses of the review power by violating positive law, as in the case of revoking the recent amendments without any material basis and on the basis of subjective evaluations, has undermined the legitimacy of the judicial branch as an institution vital to the functioning of a pluralist democracy. The Court is increasingly viewed as a player in partisan politics which, under the pretext of upholding the rule of law, occasionally disregards popular will and breaches the legal-constitutional order. Further, the precedent set by the Court's actions may undermine the stability of the country by eroding the rule of law and the judiciary's role as a neutral arbiter.
The Challenge Ahead: Bringing the Judiciary under Democratic Accountability
The solution to Turkey's governance crisis is contingent on the Turkish Parliament's reassertion of its authority as the representative body of democratic, popular will. Parliament must issue a declaration immediately announcing that the Court's decision is unconstitutional and it objects to the Court's assertion of a new precedent for judicial review. Parliament then must reconfigure the Court's competences and composition to bring it into line with liberal-democratic principles as part of a comprehensive constitutional reform. The only justification for constitutional review is the upholding of basic rights: protecting individuals and groups against arbitrary treatment not only by other individuals and groups but also by the state. Instead of the current system which serves to maintain state ideology against pro-democratic social trends, Turkey needs a system of constitutional review that guarantees basic rights and civil liberties without discriminating between societal preferences, as long as the latter operate within constitutional boundaries. Such a minimalist Court, devoid of an ideological mission, could act as the best guarantor that democratic control will prevail over other state organs.
Minimalist jurisdiction would also prevent the Court's own abuses of power. As a way to boost the Court's accountability, its composition should be democratized through greater involvement of Parliament in the selection of its members. In this way, the Court could turn into a more representative institution, reflective of the richness and diversity of Turkish society. Only then could the Court act as an institution of a pluralist democratic polity, rendering its decisions through public deliberation in accountable manner.
In the meantime, the democratic sectors of Turkish society should keep this issue on the agenda by expressing their opposition to the judiciary's breach of constitutional order and popular sovereignty, and pressuring their representatives to leave aside political differences and prioritize constitutional change as the most urgent issue facing Turkey today. Turkey's democratic partners in the international community likewise must condemn judicial attempts to overturn Turkey's democratic regime and restrict on the exercise of basic rights, and reaffirm their commitment to Turkish democracy.