From activism to resilience: the Turkish constitutional court in comparative perspective

ABSTRACT

This article discusses the behavior of the Constitutional Court in Turkey. As the highest court in the country, it is responsible for many decisions that have shaped the course of Turkish politics over the past six decades. It begins with a brief overview of the institutional features of the Turkish Constitutional Court. It then looks at major arguments on constitutional review, including judicial independence and court-curbing. Finally, it examines change and continuity in the attitudes of the Court based on the speeches of its presidents. One conclusion is that the Constitutional Court has transformed itself from that of the defender of the state principles to that of the defender of human rights while retaining its role with regard to the separation of powers. This transformation has been driven by both internal and external pressures: the domestic transition of tutelary democracy to competitive authoritarianism and the equivocation of domestic laws with international treaties.

KEYWORDS:

• Constitutional Court
• judicial politics
• Turkey
• constitutional review

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The application must be made on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights (ECHR), which are guaranteed by the Constitution, has been violated by public authorities. In order to make an application, ordinary legal remedies must be exhausted (TC Article 148).

2 We don’t discuss party closure in detail in this article, but it has been an important issue before the Turkish Constitutional Court. The permanent dissolution of a political party should be decided when it is established that the statutes and programs of the political party violate the requirements stated in the constitution (TC, Article 68). The dissolution of political parties is decided by the Constitutional Court after the filing of a lawsuit by the office of the Chief Public Prosecutor of the High Court of Appeals (TC, Article 69). Moral and Tokdemir demonstrated that the Constitutional Court disbanded political parties with anti-establishment ideology and strong public support, especially when the judges were activist and pro-status quo. See Moral and Tokdemir, ‘Justices "en Garde".’ Under the 1961 constitution, the Constitutional Court disbanded seven political parties. Under the 1982 constitution, it has disbanded 20 political parties. Since 2009, however, the Court has not disbanded any political parties. Party closure has also become more difficult because of constitutional amendments that increased the required votes for the dissolution decision from a simple majority to three-fifths in 2001 and to two-thirds in 2010. The incumbent Justice and Development Party (AKP) has also been opposed to party closure, a reflection of the frequent dissolutions of pro-Islamic parties from which it originated.

3 Scheppele, “Guardians of the Constitution,” 1763.

4 Rios-Figueroa, “Instiuttions for constitutional justice,” 43–4.

5 Ibid., 47.

6 Stockholm Center for Freedom, “Turkey’s Judicial Council,” and Tekin, “Yargı Vesayeti.”

7 A 2017 amendment consequently reduced the membership size to 15 because the two military courts from which two members could be chosen had been abolished.

8 Çalı and Durmuş, “Judicial Self-Government.”

9 Ibid., 1689.

10 Lijphart, Patterns of Democracy, 223.

11 Calleros, The Unfinished Transition, 87–113; Dodson and Jackson, “Horizontal Accountability”; Larkins, “The Judiciary and Delegative Democracy”; Magaloni, “Authoritarianism”; and Moreno et al., “The Accountability Deficit.”This is except for Costa Rica, Brazil, Chile, Columbia, and Uruguay. O'Donnell also argues that judicial activism in Latin America that began in the 1990s would enhance horizontal accountability. O'Donnell, “Afterword,” 296.

12 Schwartz, “Surprising Success,” 195–214, and Schwartz, The Struggle.

13 Ginsburg, Judicial Review; Ginsburg and Versteeg, “Why do countries adopt”; and Hirschl, Towards Juristocracy.

14 Ginsburg, Judicial Review.

15 Hirschl, Towards Juristocracy.

16 These generalizations, however, are faced with significant challenges because some of the constitutional courts with democratic records have recently been packed. See Boulanger, “Europeanization”; Espinosa, “The Judicialization of Politics”; Ginsburg, “The Constitutional Court”; Gloppen et al., Courts and Power; Nunes, “Ideational Origins”; Sadurski, Constitutional Justice; Scheppele, “Constitutional Negotiations”; Schwartz, “Surprising Success”; Schwartz, The Struggle; Sólyom, “The Role of Constitutiona Courts”; and Wilson, “Changing Dinamics.”

17 Aliefendioǧlu, Anayasa Yargısı, 73.

18 Özbudun, Contemporary Turkish Politics, 53.

19 Ibid.

20 Özbudun, Türk Anayasa Hukuku, 17–21.

21 Özbudun, “State elites,” and Heper, “Conclusion,” 140.

22 Isiksel, “Between Text and Context,” 723.

23 Ibid., 710.

24 The fact that the former president of the state prosecutor’s office, Sabih Kanadoğlu, suggested the boycott strategy indicates blatant elite entrenchment.

25 Arslan, “Anayasa Mahkemesinın 'Yorum Tekeli”; Bâli, “Constitutionalism in Turkey”; Belge, “Friends of the Court”; Özbudun, “Türk Anayasa Mahkemesinin”; Can, “Anayasayı Değiştirme”; Shambayati and Kirdiş, “In Pursuit'“; and Yazıcı, Yenı bir Anayasa Hazırlığı ve Türkiye.

26 Aydin-Cakir, “The Impact.”

27 Ibid.

28 Also, there were twice as many unconstitutionality claims that were based on the violation of the separation of powers as there were claims for either basic human rights or state principles. Hazama, “Hegemonic Preservation.”

29 Seven and Vinx, “Hegemonic Preservation.”

30 Ginsburg, Judicial Review, and Hirschl, Towards Juristocracy.

31 Belge, “Friends of the Court.”

32 Seven and Vinx, “Hegemonic Preservation.”

33 Grove, “The Origins (and Fragility),” 544.

34 Bugaric and Ginsburg, “Courts vs. Autocrats.”

35 Kovács and Scheppele, “The Fragility,” and Moliterno and Čuroš, “Recent Attacks.”

36 Clark, “Judicial Review.”

37 Clark, Constitutionalism.

38 Ginsburg and Moustafa, “Introduction,” 21.

39 Garoupa and Ginsburg, Judicial Reputation.

40 Dothan, Reputation and Judicial Tactics, 8–12.

41 Helmke, Courts Under Constraints.

42 Smekal et al., “Through Selective Activism.”

43 Bâli hints that drafts of the abortive constitution in 2007 may have been a watershed for Erdogan’s departure from liberal democracy to democratic backsliding. Bâli, “Constitutionalism.”

44 Özalp, Kuşatılan yargı; Ertekin, Yargı meselesi hallolundu; Özçelik, Hüküm giyen adalet; Saatçioğlu, “De-Europeanisation”; Özbudun, “AKP at the Crossroads,” 48; Taş, “A history”; and Özbudun, “Turkey’s Judiciary.”

45 Özbudun, “Turkey’s Judiciary.”

46 Bakiner, “Judges Discover Politics.”

47 Ibid.

48 Cumhuriyet, “Tutuklanan AYM Üyesi.”

49 Özbudun, “Turkey’s Judiciary.”

50 Öden and Esen, “Fundamental Rights.”

51 As Aslan (“The Role”) elaborates, the Court accepted the claim of the largest opposition party that a two-thirds majority was necessary, not only for the presidential election but also for the quorum of the meeting for the election, in spite of the fact that the meeting quorum was stipulated to be one-third of the members of the National Assembly. According to Aslan, this decision was probably the final example of the state-centered position.

52 Varol et al., “An Empirical Analysis.”

53 The speech texts were obtained from the web page of the Constitutional Court of Turkey. https://www.anayasa.gov.tr/tr/baskan/konusmalar/

54 Scheppele, “Guardians of the Constitution,” 1769.

55 In other words, out of the eighteen presidents, all the four re-elected presidents served after 1991.

56 Arslan, “The Role.”

57 In the court’s decision in the 2007 presidential election Tuğcu voted against proceeding in the first voting, but after the court majority decided to proceed she sided in the second voting with the majority decision that annulled the first round of the presidential election. Her earlier statements indicated that she was not willing to debate the issue in the court because she did not want to show that the court was politicized. See

58 See Twitter posting by Ozer Sencar, November 1, 2020, available at https://tinyurl.com/2p9fjame.

59 Report from Metropoll available at http://www.metropoll.com.tr/arastirmalar/siyasi-arastirma-9/1691

60 Oder, “Turkey's Democratic Erosion.”

61 He stated in November 2020 that the Constitutional Court’s decision binds all individuals and instritutions. See Kiliç and Açıl “Adalet Bakanı Gül.”

Additional information

Notes on contributors

Yasushi Hazama

Yasushi Hazama is a senior researcher at the Institute of Developing Economies, Japan External Trade Organization. He received his MA in Public Administration from Middle East Technical University and Ph.D. in Political Science from Bilkent University, both in Ankara, Turkey. His research interests include political behavior and public opinion in emerging democracies, including Turkey. His articles have appeared in Turkish Studies, International Political Science Review, Acta Politica, and Developing Economies.