New Constitutional Court, new tutelage?

Published 16.04.2014 00:54

Rulings by the Constitutional Court regarding Twitter and the Supreme Board of Judges and Prosecutors, has opened up a debate on the "guardianship" of the court. Rather than going into whether or not this debate is right or wrong, let us focus on the changes the court is experiencing.

Originally, the Constitutional Court comprised 11 members chosen by the president.

Since the establishment of the court (which, let us not forget, was done by those who supported coups) in 1962, it has not produced a single juridical opinion that has protected democracy or freedoms.

The reason for this is the exclusionist policy and the ideological preferences of the members that were pre-prescribed by the high judiciary and similar institutions. The constitutional changes in 2010 changed the structure of the court. The number of members was increased to 17. Four were directly chosen, 10 were selected by the president from a list compiled by institutions, and the institution that is the greatest defender of constitutional democracy - the Parliament of the Turkish Republic (TBMM) - was only given three slots to nominate members.

While these changes were comparatively better than before, they did not address the actual problem of the potential politicization of the court.

Four years ago we highlighted this problem and recommended that all members be chosen by the TBMM. With this truth identified and the court canceling every controversial law, it is possible to consider this a matter of "guardianship" over the court itself.

One of the key functions of the Constitutional Court is to review laws. When one considers that a vast majority of the laws are drafted by the cabinet and passed by the Parliament, the cancellation of laws by the court are a direct objection toward the government. Around the world, where the courts decided to cancel a law, governments have a right to voice grievances and criticize.

This is natural.

Recently, a decision by the German Constitutional Court paved the way for a debate on whether or not the structure of the court ought to be changed. This is also natural.

One acts as the inspector and the other is inspected. When the inspected is drafting into law the legitimate desires of the people, the inspector insists that the constitution takes precedence. While one is dynamic, the other is static.

There is no clear manner to fix this problem.

If inspecting intuitions must remain within the constitutional framework and try to maintain from within the framework, an unabrasive manner, then perhaps this would be a solution to the problem. The path to such a mechanism would be through methodic rules and an open constitution that had government compliance. Let us emphasize the fact that without evidence that the proposed law is unconstitutional it cannot be cancelled.

If this formula is applied, even if the checks they do draw a large reaction, it will still evoke a sense of respect and contribute to the culture of rule of law in the country.

The trust embedded in courts is one that spirals upwards, whereas politics is rational.

It's only when constitutional boundaries are broken that the inspection process is called into question. Both the judiciary and politics suffer. And in the end the public suffers.

Even the ruling of the constitutional court regarding Twitter content wise is correct, because it did not apply methodic rules, it is problematic, as I had written before. As for the decision regarding the HSYK aside from the abnormality of convening meetings under a secret agenda and "the justification for rejecting a law must be written," it appears that the methodic rules have been complied with. As we do not know the justification for the rejection, we cannot provide any evaluation. As a result, in this context, concerning the HYSK it is hard to talk of any guardianship. However, it also creates a risk for democratic legitimacy.

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