The request for a retrospectively abolishing a law carries no other meaning than to force the Constitutional Court to “violate the Constitution” for political reasons
The constitutional court has been at the center of Turkish politics for the past 52 years.
The military-capital-bureaucracy-university-CHP coalition behind the May 27 military coup, established the Constitutional Court to protect a tutelary constitutional order from the society and its democratic representatives. Its members were chosen from among people who had actively supported the coup, and whom in fact had served at the Yassıada court that violated all judicial principles.
From that day on, the Constitutional Court has rightfully fulfilled its duties. It functioned as an institution executing judicial legitimacy in issues such as the extinction of social opposition, official ideology, anti-democratic interpretations of secularism and assimilation, rather than providing court practices such as protection of basic rights or democracy.
To accomplish this, they rendered the Parliament unable to introduce laws or make changes to the Constitution by violating written Constitutional Law if they had to. It is yet to be forgotten how the judicial activism of the 70s eased the process towards the 1980 coup.
Although fairly insufficient, the constitutional changes made in 2010 created the anticipation of democratic legitimacy in the court. There is a general impression that the court since then has conducted itself in accordance with those anticipations.
However, the Dec. 17 process clearly indicates that the same political elite, with the support of the Gülen Movement, aims for a return to the old mission of the Constitutional Court and forces it towards a new confrontation. For instance, they want the law amendment to the Supreme Board of Prosecutors and Judges (HSYK) to be declared void, and if that doesn't work, they demand a retrospective suspension of the law. Whereas the Turkish Constitutional order requires the presumption of constitutional compliance of laws. Any law contradicting the constitution, regardless of the degree of contradiction, can only be subject to abolishment.
According to the explicit provision in article 153 of the constitution, decisions to abolish laws can never be retrospective. In fact, where necessary, the enforcement of an abolishment may even be postponed. Despite pressures in the previous period, the court did not validate the "inexistence theory."
The other suggestion is to retrospectively stop the effect of a law. Yet, since the decision to stop the effect of a law is not an authority recognized in the Constitution, this becomes another case of strangeness.
This authority was evaluated under the scope of an abolishment case and has been conveniently implemented since 1994. The court thus approved ideological requests and prevented privatization. Even if this were the case, since this measure is the sub-implementation of an abolishment case, it cannot have a broader range of enforcement. It is highly likely that the "new" Constitutional Court will not be used for "old" games. At least, that is what the law says.
About the author
Osman Can is a Law Professor and Reporting Judge at the Turkish Constitutional Court. He holds a PhD from the University of Cologne, Germany.