Judicial review and social construction: the case of the Turkish Constitutional Court

Abstract

The Turkish Constitutional Court is often described as an agent of the raison d’etat. Although a number of judgements confirm this assessment, by shifting the focus from result to process the article reveals that judicial decision-making processes in the Turkish Court are more than often contestatory and determined by slim majorities. Modelling judicial decision-making as a process of competitive social construction, the article analyses judgements on constitutionality of surname laws vis-a-vis women. The findings demonstrate that though the ultimate judicial ruling may be tainted by extra-judicial considerations, tight votes signal that today’s dissenters can easily become tomorrow’s majority.

Keywords:

• judicial review
• conflictive social construction
• Turkish Constitutional Court
• surname legislation
• constitutional authoritarianism

Notes

1. The first four articles of the 1982 constitution read as follows: “I. Form of the State ARTICLE 1 – The State of Turkey is a Republic. II. Characteristics of the Republic, ARTICLE 2 – The Republic of Turkey is a democratic, secular and social state governed by rule of law, within the notions of public peace, national solidarity and justice, respecting human rights, loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the preamble. III. Integrity, official language, flag, national anthem, and capital of the State ARTICLE 3 – The State of Turkey, with its territory and nation, is an indivisible entity. Its language is Turkish. Its flag, the form of which is prescribed by the relevant law, is composed of a white crescent and star on a red background. Its national anthem is the ‘Independence March’. Its capital is Ankara. IV. Irrevocable provisions ARTICLE 4 – The provision of Article 1 regarding the form of the State being a Republic, the characteristics of the Republic in Article 2, and the provisions of Article 3 shall not be amended, nor shall their amendment be proposed.”

2. For a discussion of the 2007 constitution draft, see Hale and Özbudun (2010); the most recent events in Turkish constitutional politics are discussed by Arato (2016).

3. On a broader note, one can argue that it is possible to assume such a perspective on every act of constitution-making. In this respect, although we might want to believe that the constitutional convention meeting in Philadelphia in 1787 deliberated and eventually drafted a basic law for the people of America, we cannot clearly confirm that ratification of the constitution was not the result of strong interests for a central state that agreed with strong interests wanting to keep plantation slavery intact. Bruce Ackermann and Neat Katyal argue that the founding moment has the characteristics of a momentum in which the people manifested their will. This, they argue, is so that the conventions to draft and ratify the constitution were based on a mix of direct democratic and representative democratic mechanisms: “On the one hand, debate and decisions in the electoral campaign pushed the convention in a definite direction. On the other, the delegates still had leeway to debate and refine the nature of the ‘mandate’ that their success at the polls represented. […] The aim, in short, was for a deliberative plebiscite” (Ackermann and Katyal 1995, 563; original emphasis). Eric Foner (1990, 65), on the other hand, argues with reference to slavery that this was a subject constituting one of the main sources of power of the Southern states (e.g. South Carolina and Georgia): “The Southern states had the advantage that they would not agree to a Constitution that threatened slavery, while abolition was a minor concern to most Northerners.” Focusing on this example, we cannot definitely distinguish if the narrative of the free people founding a state is the adequate historical account, or, whether the Constitution is a document that allowed two groups with overlapping interests to realize a political order that was catering for their very subjective intentions.

4. In this regard, in particular the decisions on the headscarf are relevant (E. 1989/1 – K. 1989/12, RG No. 20216, 5/7/1989; E. 1990/36 – K. 1991/8, RG No. 20946, 31/7/1991; E. 2008/16 – K. 2008/116, RG No. 27032, 22/10/2008; Application No. 2014/256, Decision of 25/6/2014, RG No. 29051, 5/6/2014). Whereas in the first three decisions between 1989 and 2008 the Court approved prohibitions to wear the headscarf in public institutes such as universities, an individual constitutional complaint lodged in 2014 eventually repealed the earlier decisions. However, the reasoning of the AYM concerning the laicism principle is not at all consistent. In two decisions on the disclosure of one’s religious affiliation in identity cards, the Court held in 1979, and upheld its decision in 1995, that this does not violate the laicism principle and neither does it infringe upon fundamental rights. This decision is based on the distinction between the mere indication of one’s religion and the expression of religious beliefs. The latter would be unconstitutional, whereas the former only serves to properly keep the civil registry (E. 1979/09 – K. 1979/44, RG No. 16928, 13/03/1980; E. 1995/17 – K. 1995/16; RG No. 22433, 14/10/1995).

5. On freedom of association and assembly (E. 1963/199 – K. 1965/16, RG No. 12108, 23/09/1965); E. 2004/90 – K. 2008/78, RG No. 26927, 05/07/2008). On freedom of speech and expression (E. 1963/193 – K. 1964/09, RG No. 11725, 11/06/1964).

6. Ceren Belge (2006, 670) argues: “From 1962 until 2000, the Law on the Trial of Civil Servants was referred 16 times to the CCT for annulment. Cases included public school teachers (K. 1970/44; K. 1992/12; K. 1992/46), village headmen (K. 1965/06; K. 1967/36), gendarmerie (K. 1963/88; K. 1968/35), and other public officials (K.1965/53) who engaged in abusive practices toward citizens (beating, threatening to use their guns in personal disputes, etc.) or caused harm to citizens by their negligence (K. 1991/10; K. 1992/13; K. 1992/ 31). Until a partial annulment in 1992 (K. 1992/11), which at least allowed citizens to appeal a decision not to prosecute, the CCT rejected all of these petitions, procedurally or in their substance. In these decisions, too, the court defended civil servants and provided them with security and permanence within positions of power, even when they had demonstrably abused that power.” For a critical discussion of Belgeʼs argument, see Arato (2010, 473).

7. To conclude that the Court is per se and only acting on behalf of the governing elite, the raison d’état, or the political system implies that it has no self-interest as an institution, or that its institutional interest is always identical to that of the elite. Following the idea of autopoiesis, which describes the quality of a system to reproduce and maintain itself, every institution aims to achieve certain institutional goals in order to maintain itself. This also applies to the Constitutional Court of Turkey (Luhmann [1987] 2004; Rogowski 2013).

8. Social constructionist theory draws on Antonio Gramsci’s theory of hegemony (Litowitz 2000). Likewise, we can identify strong resemblances to the work of Michel Foucault (1994) and Pierre Bourdieu (1998).

9. In terms of methodology, social constructionist theory is a method well-suited to research at the intersection of structure and agency. Checkel (1999, 557–558) holds that “[t]he real action, theoretically and empirically, is where norms, discourses, language and material capabilities interact with motivation, social learning and preferences”.

10. “Legitimation not only tells the individual why he should perform one action and not another; it also tells him why things are what they are. In other words, ‛knowledge’ precedes ‛values’ in the legitimation of society” (Berger and Luckmann 1967, 93f).

11. However, as Bourdieu (1987, 850) showed in his article on the juridical field, action in the legal context is restricted: “Given the determinant role it plays in social reproduction, the juridical field has a smaller degree of autonomy than other fields, like the artistic or literary or even the scientific fields, that also contribute to the maintenance of the symbolic order and, thereby, to that of the social order itself. External changes are more directly reflected in the juridical field, and internal conflicts within the field are more directly decided by external forces.”

12. Mark Graber (2005, 427) points to the construction of constitutional review according to competing paradigms: “The political science emphasis on judicial review as politically constructed has some affinity with the emphasis on popular constitutionalism in contemporary academic law.” But, in legal scholarship it is assumed that “official constitutional meanings are determined by dialogues between elected officials and justices. The new paradigm in political science rejects this view that constitutional politics is best understood as a struggle or conversation between courts and elected institutions. Constitutional politics involves alliances between some elected officials and some justices who share common constitutional visions against other elected officials and justices with rival constitutional agendas” (428).

13. See Stone Sweet (2007); elsewhere, he argues that “the judiciary’s share of total governmental authority and influence varies with the degree to which it possesses and exercises the power to review the lawfulness of activity, public and private” (Stone Sweet 1999, 163).

14. Obergefell vs. Hodges, 135 S.Ct. 2584 (2015).

15. Baker vs. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971).

16. Empirical studies have been carried out for the US Supreme Court, the German Constitutional Court and the French Conseil Constitutionnel: Dickson (2001) analyses conference notes of US Supreme Court justices; Kranenpohl (2010) draws on a number of interviews with judges of the German Federal Constitutional Court; and Schnapper (2010) gives an anthropological account of the decision-making process in the French Conseil Constitutionnel.

17. For a definition and discussion of the concept of Kurdistan, see Galip (2015).

18. “The state had other concerns besides assimilation and Westernization, including breaking down the tribal structure, settling nomadic tribes, weakening the prestige of religious authorities, preventing illegal border crossings, and disarming the population. These led it to initiate even more drastic measures to control and shape the Kurdish areas” (Aslan 2011, 80).

19. Law No. 743 (Türk Medeni Kanunu, Turkish Civil Code, RG No. 339, 4/4/1926).

20. Law No. 2525 (Soyadi Kanunu, Surname Law, RG No. 2741, 2/7/1934).

21. Law No. 2590 (Efendi, bey, paşa, gibi lakab ve ünvanların kaldırıldıĝına dair kanun, Law abolishing certain honorary titles such as efendi, bey, pasa, RG No. 2867, 29/11/1934).

22. Decree of the Council of Ministers No. 2/1759 (Soyadi Nizamnamesi, Surname Statute, RG No. 2891, 27/12/1934).

23. Law No. 2622 (24/11/1934 tarih ve 2587 sayılı kanunla Kemal Öz adlı Türkiye Cümhur Reisine verilen “ATATÜRK” adının veya bunun başına ve sonuna söz konarak yapılan adların hiç bir kimse tarafından alınamayacaĝını buyuran kanun, Law to prohibit the use of the name “ATATÜRK” that was given to our president Kemal Öz with Law No. 2587 of 24/11/1934, and of other names formed by adding in front or behind his name, RG No. 2888, 24/12/1934).

24. E. 1997/61 – K. 1998/59 (RG No. 24937, 15/11/2002); E. 2009/85 – K. 2011/49 (RG No. 28091, 21/10/2011).

25. Application No. 2013/4439, Decision of 6/3/2014 (RG No. 28982, 25/4/2014; translation available at: http://tinyurl.com/zjtldyg). The AYM had already ruled in a case with similar merits in December 2013 (Application No. 2013/2187, Decision of 19/12/2013, RG No. 28875, 7/1/2014). Although the 2013 decision came first and established the reasoning, the decisions are almost identical. Since the 2014 judgment is translated into English, I refer to this decision in the following discussion. For a discussion of the judgment of December 2013, see Çalı (2014). Finally, the AYM ruled on the subject once again in April 2015. This last decision also followed the reasoning established earlier (Application No. 2014–5836, Decision of 16/4/2015, RG No. 29413, 11/7/2015).

26. Today, Article 10 of the Turkish constitution states: “Everyone is equal before the law without distinction as to language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such grounds. (para. added on May 7, 2004; Act No. 5170) Men and women have equal rights. The State has the obligation to ensure that this equality exists in practice. (Sentence added on September 12, 2010; Act No. 5982) Measures taken for this purpose shall not be interpreted as contrary to the principle of equality. (Paragraph added on September 12, 2010; Act No. 5982) Measures to be taken for children, the elderly, disabled people, widows and orphans of martyrs as well as for the invalid and veterans shall not be considered as violation of the principle of equality. No privilege shall be granted to any individual, family, group or class. State organs and administrative authorities are obliged to act in compliance with the principle of equality before the law in all their proceedings”.

27. This is a translation of the official text of the first decision on the surname of spouses (E. 1997/61 – K. 1998/59; see Steinsdorff et al. forthcoming). Article 153 of the Turkish Civil Code was amended by Law No. 4248 (RG No. 22996, 22/5/1997) in May 1997, adding that a woman could request to keep her maiden name in front of the name of her husband.

28. Law No. 4721 (Türk Medeni Kanunu, Turkish Civil Code, RG No. 24607, 8/12/2001).

29. Ünal Tekeli vs. Turkey (Application No. 29865/96, 16/11/2004). In 1994, the ECtHR had already ruled in Burghartz vs. Switzerland (Application No. 16213/90, 22/2/1994) and determined that prioritizing one spouse over the other was indeed a violation of the rights protected under the Convention. Given that the origin of the Turkish Civil Code of 1926 is the Civil Code of Switzerland, one would assume that this is reflected in the decision. However, Burghartz vs. Switzerland is only mentioned on the side in the dissenting opinion. For an overview of the case law of the ECtHR on surnames, see Tirosh (2010, 247).

30. This is a translation of the official text of the second decision on the surname of spouses (E. 2009/85 – K. 2011/49; see Steinsdorff et al. forthcoming).

31. Law No. 4709 (Türkiye Cumhuriyeti Anayasanının Bazı Maddelerinin Deĝiştirilmesi Hakkında Kanun, Law on amendments to some articles of the constitution of the Republic of Turkey, RG No. 24556, 17/10/2001). For a discussion of gender equality under the 1982 constitution see Elver (2006, 282f).

32. This is a translation of the official text of the second decision on the surname of spouses (E. 2009/85 – K. 2011/49; see Steinsdorff et al, forthcoming).

33. Added by Law No. 5170 (Türkiye Cumhuriyeti Anayasanının Bazı Maddelerinin Deĝiştirilmesi Hakkında Kanun, Law on amendments to some articles of the constitution of the Republic of Turkey, RG No. 25469, 22/5/2004).

34. Added by Law No. 5982 (Türkiye Cumhuriyeti Anayasanının Bazı Maddelerinin Deĝiştirilmesi Hakkında Kanun, Law on amendments to some articles of the constitution of the Republic of Turkey, RG No. 27580, 13/5/2010).

35. This is a translation of the official text of the second decision on the surname of spouses (E. 2009/85 – K. 2011/49; see Steinsdorff et al. forthcoming). In this part of the dissenting opinion the judges furthermore mention that the Ministry of Justice presented a law to amend Article 187. However, to date this amendment has not passed Parliament.

36. Lucy Stone was the first American woman to keep her surname upon marriage in 1855. She lost her right to vote (in a school election) because she insisted on using her maiden name (Goldin and Shim 2004, 143).

37. This is a translation of the official text of the second decision on the surname of spouses (E. 2009/85 – K. 2011/49; see Steinsdorff et al. forthcoming).

38. The respective ECtHR cases are: Burghartz vs. Switzerland (Application No. 16213/90, 22/2/1994), Stjerna vs. Finland (Application No. 18131/91, 25/11/1994) and Niemietz vs. Germany (Application No. 13710/88, 16/12/1992).

39. Application No. 2013/4439 (2. Exam. on Merits, para. 13).

40. Application No. 2013/4439 (2. Exam. on Merits, para. 23).

41. The cases to which the judges also refer in the individual complaint decision are: Ünal Tekeli vs. Turkey (Application No. 29865/96, 16/11/2004), Leventoğlu Abdulkadiroğlu vs. Turkey (Application No. 7971/07, 28/8/2013), Tuncer Güneş vs. Turkey (Application No. 26268/08, 3/10/2013) and Tanbay Tüten vs. Turkey (Application No. 38249/09, 10/3/2014). Three of these four decisions were handed down in 2013.

42. Çalı (2014) argues in relation to the ruling handed down in December 2013: “[T]he need to cultivate a Strasbourg-compliant reputation and repetitive cases allowing for no wiggle room for interpretation increased the cost of ignoring international law for the Turkish Constitutional Court in such a short span of time. Women rejected in Ankara would doubtlessly win in Strasbourg. By following its own case law and defending the legislative apathy to women, therefore, risked two things – being seen as an ineffective remedy for what is a very straightforward ECtHR case and thus failing to decrease the number of applicants to Strasbourg. If there was a battle to be fought on rights interpretation with Strasbourg, a woman’s right to her surname was not the one to fight. It is this combination that best explains the Turkish Constitutional Court’s volte face.”

43. Hürriyet Daily News, “Top court allows married women to use only maiden surname”, http://tinyurl.com/z833jbn (last accessed January 25, 2017).

44. E. 2009/47 – K. 2011/51 (RG No. 27992, 12/7/2011); for a discussion of the ruling, see Bayir (2013).

45. This is a translation of the official text of the decision on non-Turkish surnames (E. 2009/47 – K. 2011/51; see Steinsdorff et al. forthcoming).

46. E. 2009/47 – K. 2011/51; see Steinsdorff et al. (forthcoming)

47. E. 2009/47 – K. 2011/51; see Steinsdorff et al. (forthcoming)

48. Moreover, it is stated that “[a]part from the requirement that the surname has to be written, read and understood in the official Turkish language and in Turkish alphabet, there is nothing else that could be of interest for public order”.

49. For the respective statements of Bülent Arınç and Recep Tayyip Erdoĝan, see Hürriyet Daily News, “Women should not laugh in public, Turkish deputy PM says”, http://tinyurl.com/lp73qj5 (last accessed January 25, 2016); “Turkish President Erdoğan says gender equality ‘against nature’”, http://tinyurl.com/p595mx4 (last accessed January 25, 2016).