For years, military tutelage of the government has not hesitated to use judicial elements as a crutch or as a direct instrument of intervening in the political system. Elected politicians gave a clear answer to military intervention in the 2007 presidential election process, causing it to enter a period of regression. The judiciary was quick to fill this gap in a way that complemented the military's level of intelligence and morality. One of the best examples of this was the "367 plot" of the Constitutional Court (AYM), which entailed a quorum of 367 members of Parliament to elect the president during the 2007 presidential election.
Even though the 2010 Constitutional Referendum significantly disrupted Kemalist influence in the judiciary, it was unable to lead to normalization in the full sense of the word, as the Gülen Movement's parallel structure used such cases as the Kurdistan Communities Union (KCK), Sledgehammer and Ergenekon as a weapon against elected politicians, emerging as a new influential body. After the parallel structure's attempts of intervention failed on Feb. 7, 2012, when the Head of National Intelligence Organization (MİT) Hakan Fidan was interrogated by the court as a part of the KCK case, it led a banzai charge with the Dec.17 and Dec. 25 operations, going down in records as a tragic example of attempts at tutelage. Politics managed to ward off these attacks successfully, but a neo-tutelary system began appearing in the AYM with a reincarnation.
Now, we are faced with the speculation of a new tutelary attempt. The AYM announced that it has begun dealing with a violation notice, which it "coincidentally" chose from among 30,000 files. This is more about giving clues to what its verdict will be, rather than informing the press. There is no other explanation for the suggestions that the verdict, which has been taken to the agenda in an undue manner, will be put into force as soon as it is issued. It is obvious that this announcement is proclaimed in the same relaxed manner as was seen when former Supreme Court of Appeals prosecutors Sabih Kanadoğlu and Abdurrahman Yalçınkaya sued closure cases against the ruling Justice and Development Party (AK Party) in 2002 and 2008, respectively, despite receiving almost half of the vote in the 2002 general elections. It seems that they ignored the outcomes of this verdict. The main motivation behind the existence of the AYM and judicial tutelary system stems from this ground that caused them to mistake independency for irresponsibility while making decisions.
To understand how disconnected the AYM is from Turkey's political atmosphere, it is enough to take a simple look into its recent decisions. No need to mention its catastrophic decisions made prior to 2000. However, to make a basic comparison it can be said that considering the AYM's legislative power, it has a greater potential to undermine democracy today than before. The reason for this is not that the AYM was more reasonable, democratic and discreet before. Prior to 2000, the potential of civil politics was incomparable with today regardless of the AMY's interventions. With a simple reading, there is a huge difference between closing a political party that received around 20 percent of the popular vote in the late 1990s and closing a political party that received around 50 percent of the popular vote and won its second election. There is also a notable difference between the AYM's contributions in the late 1990s to Turkey's instability and the potential subversion that it can make today.
Exercising the independence of the judiciary as "making decisions independently of Turkey," the judiciary cannot desist from trying to share the legitimate function of politics for "establishing order." At a time when the government puts the election threshold on its agenda in its democracy package and tries to manage it politically by bringing forward three different proposals, the AYM signaled it would make a decision, which could upset the entire process. What is sad is that if Parliament enacts such a change, i.e., if it lowers the election threshold, this new arrangement would not go into effect in the upcoming elections as per Article 67 of the Constitution. But the AYM says if it annuls the election threshold, it would require immediate elimination of the threshold since it would be a verdict regarding the violation of a right, not "an alteration." This would be a downright usurpation of Parliament's authority. Similarly, many more laws that were passed or will be passed by Parliament under hundreds of headings may be annulled or amended unconstitutionally by the AYM anytime it chooses under the guise of a "violation of rights." From the point of legal interpretation, which benefits from politics, hierarchy, sovereignty and its verdicts, there would not be any area left that could not be interfered with through a "violation of right technique."
The AYM can always find an excuse for interfering with politics as long as it intends to act with the so-called "367 spirit." Of course, the election threshold can be completely eliminated. The current government has already brought forward this proposal. However, that such a decision that may directly shape the country's destiny can be thought or made, not by Parliament, but by a court. Moreover, doing this against the explicit will of the legislative and executive branches, and also just months before the elections, it might have consequences that would make us long for the 367 scandal. In the final analysis, the 367 decision has usurped Parliament's authority to elect. If the AYM's new decision comes out as speculative, it will bring the people's will for direct elections into chaos. One should be ill-intentioned to not see that political, social and economic cost of such a chaos would be irrecoverable. The desire to intervene in the 2015 elections as a freewheeling actor would make the AYM, which has already seen its prestige worn down, fully suspicious.