Beginning in Spring 2007, the Constitutional
Court of Turkey (CCT) has made several decisions that played allegedly a highly
significant role in Turkey’s political-constitutional crisis. On May 1, 2007,
the CCT decided that the parliamentary election process of the new president
must be halted on the grounds that the initiation of the process has violated
the constitutional procedures. Justice and Development Party (Adalet ve Kalkınma Partisi-JDP) reacted
to this decision and called for early general elections while taking also the
initiative to amend the constitution by a referendum to endorse a new procedure
for the election of the president by popular vote, hence managed to overcome
the initial phase of the crisis. Aware of the impediments they are likely to
encounter in the near future, the JDP made simultaneously a bid for “a new
civilian and democratic constitution”. Almost all political parties, with the
single exception of Republican People’s Party (Cumhuriyet Halk Partisi-RPP), made equally explicit their will to
constitutional renewal. In spite of an unquestionably non-democratic national
threshold of ten percent, the elections produced a highly representative
legislature, unprecedented since 1983, in which more than 87 percent of the
votes were able to find a corresponding seat in parliament. In a moment so
conducive as such to pursue in a democratic participatory fashion a new
constitution, the JDP, in cooperation with the Nationalist Action Party (Milliyetçi Hareket Partisi-NAP) and
betraying somehow its initial promises for a constitutional renewal, attempted
to amend the constitution partially with the aim to lift the ban on headscarves
in higher education. In a case
filed by RPP deputies arguing that the amendments mentioned violated the
immutable principle of secularism, and therefore legally “null and void”, the
CCT accepted the claims, thus turned down the amendments passed by 411 votes in
a 550 member-parliament. Again in 2008, the CCT made a judgment that the
governing JDP has become the center for anti-secularist activities, but fined
the party instead of deciding for its closure. The case was filed by the Chief
Public Prosecutor of the Republic, who in fact had warned the JDP beforehand
not to amend the constitution to lift the ban on headscarves and if they so
acted he would have no other chance but to file a closure case. As Turkey’s
journey on the road to further democratization continues, the CCT decided very
recently to close another political party on the grounds that the pro-Kurdish
Democratic Society Party (Demokratik
Toplum Partisi-DScP) became the center of activities targeting the “unity
of the state together with its territory and the nation”.
All these
critical decisions of the CCT have been influenced by and have had important
implications in Turkey’s ongoing political-constitutional crisis. It is
certainly true to argue that what Turkey has been going through since the rise
of JDP to power in 2002 is a deep political crisis that cannot be reduced to a
mere crisis situation in the legal system. What I mean by “political-constitutional
crisis” in this context, thus, is a critical situation in which a
political-legal regime finds itself caught in between what it used to be
originally and a relatively uncertain future. In other words, the
political-constitutional identity of Turkey defined in the late 1920’s and
1930’s and entrenched firmly in the Constitution’s immutables as a “homogeneous
nation-state” is bound to change further as Turkey is experiencing “a
transition from ‘equality’ understood as ‘sameness’ to ‘equality’ understood as
‘equality in diversity’”.[1]
As this transition necessitates a shift from the original political decision to
establish a nationalist constitution, it becomes also a crisis-ridden situation
in which the CCT as one of the most powerful guardians of the status quo plays
a crucial role.
In what follows,
I would like to present an assessment of the role played by the CCT as put
forward by its above-mentioned decisions. By way of introduction, I wish to
begin by expanding on the political nature of Turkey’s constitutional crisis
and situating the CCT in that context. In the second and third sections I focus
on the positivistic and political-sociological interpretations of the recent
decisions of the CCT. These decisions that reflect in a way the societal polarization
between the supporters and the opponents of the JDP, have been extremely
controversial in the Turkish public sphere. Amid these fervent political
debates, however, it is still possible to discern at least two theoretically
meaningful approaches to the role of the CCT in the constitutional and political
process. I would like to call the first approach as “positivistic,” and the
second as a “sociological and political” perspective, and try to outline the
ways in which these approaches account for the CCT decisions and the
overlapping or diversifying conclusions they reach. The positivistic approach
gives us an opportunity to establish the contours of recent CCT rulings and the
debates therein, while the political sociology perspective attempts to evaluate
the role of the CCT within the Turkish political system. Finally, against the
background of the legal positivist and political sociology perspectives, I wish
to conclude the assessment of the role of the CCT in Turkey’s
political-constitutional crisis by presenting an alternative approach inspired
basically by the terms of debate in discourse theory of democracy.
I. Situating the CCT In
Context
An adequate
perspective that will enable us grasp fully the ongoing controversies over the
recent decisions of the CCT has to bring together (a) the existing competences
of the CCT as stipulated in the prevailing 1982 Constitution, and (b) the
differences between the idea of constitutional review in liberal-democracies in
general and the Turkish case in particular.
I.1. The CCT in the Turkish Constitutional System
The recent
decisions of the CCT have triggered intense debates in the Turkish political
public sphere because of their powerful impact on the political process in at
least three key issues, two of which relate to whether and to what extent the
CCT can review the constitutionality of parliamentary decisions on the one hand
and the constitutional amendments on the other whereas the third pertains to
the system of party closure.
According to the Article
148 of the Turkish Constitution, the CCT “shall
examine the constitutionality, in respect of both form and substance, of … the
Rules of Procedure of the Turkish Grand National Assembly [TGNA].” In view of
this stipulation, the powers of the CCT in reviewing parliamentary decisions
are restricted with the changes in “the Rules of Procedure,” i.e. the Bylaws of
the TGNA. Exceptions to this restriction are the decisions that either lift the
legislative immunity or have the effect of terminating parliamentary
membership. Be that as it may, however, the CCT jurisprudence has established a
strong tendency to review parliamentary decisions deemed as de facto changes in parliamentary
bylaws. This tendency of the CCT to broaden the scope of its jurisdiction is of
crucial importance for its direct impact on the democratic decision-making
processes. This impact may enhance or distort or hinder the advancement of
democratic politics. “Decision 367” discussed in detail below is a recent case
in point.
As for the case of
constitutional amendments, the CCT also tried to broaden the scope of its
competence to include a substantive review of constitutional amendments.
Article 148 again restricts the powers of the CCT in reviewing constitutional
amendments. The provision (Art. 148/1) reads “[c]onstitutional
amendments shall be examined and verified only with regard to their form.” Intended
to restrict further the CCT’s powers, the same article (Art. 148/2) also
defines what is meant by “form”: “the verification of constitutional amendments
shall be restricted to consideration of whether the requisite majorities were
obtained for the proposal and in the ballot, and whether the prohibition on
debates under urgent procedure was complied with.” Although the restrictions on the
powers of the CCT in reviewing the constitutional amendments seem quite
explicit, the CCT has continued, on certain occasions, to overcome these
limitations. The court has done this by interpreting the concept of republican
government not only as a legal form but also as a government inextricably
intertwined with certain substantive values and principles like secularism,
“Atatürkist nationalism”, as mentioned in the unchangeable articles of the
constitution. Taking this interpretation of republican government as a starting
point, the CCT relies on Article 4 which promulgates that “[t]he provision of Article 1 of the Constitution establishing the
form of the state as a Republic, the provisions in Article 2 on the
characteristics of the Republic, and the provision of Article 3 shall not be
amended, nor shall their amendment be proposed.” Thus, the CCT assumes that it
may strike down constitutional amendments conflicting with its vision of
republican government on the grounds that amendments as such “shall not be
proposed”.
In order to have a fuller
image of the status of the court in Turkey’s political and constitutional
system, the CCT’s powerful position in reviewing the parliamentary decisions
and constitutional amendments must be taken together with the court’s powers in
party closures. Article 68 of the 1982 Constitution establishes prohibitions on
party statutes and programmes as well as party actions, and Article 69 provides
for the standards, conditions, and procedures for party dissolutions. Based
upon the conditionality of EU membership, these articles were amended in 2001
to render CCT decisions for party dissolutions more difficult. In view of the
ECtHR rulings declaring almost all CCT decisions in party closure cases have
violated the ECHR, and in view of a further constitutional amendment of 2004 in
Article 90, it has been expected that the CCT would be more sensitive to the
ECtHR rulings, hence more open minded for the development of pluralist politics
in Turkey. Since the amendment mentioned reads “[i]n
the case of a conflict between international agreements in the area of
fundamental rights and freedoms duly put into effect and the domestic laws due
to differences in provisions on the same matter, the provisions of
international agreements shall prevail” , it was gathered that the CCT would
resort to party closure decisions only as a last resort and in really
exceptional cases of sheer violence. As discussed in detail below, however, the
CCT acted to the contrary and tried to sustain its powerful position in
Turkey’s political system.
I.2. The CCT vis-à-vis the Idea of Democratic Constitutionalism
The place of the
CCT in Turkish constitutional system, i.e. in Turkish positive law, may be put
in various perspectives. If one discussion, a rather popular one in recent
public debates, is to evaluate the CCT from within different interpretations of
Turkish positive law, the other is to situate the CCT in the general context of
the idea of constitutional review and constitutional court in
liberal-democratic politics. Although I provide an outline of the debate over
the recent decisions of the CCT within the framework of legal positivism in the
following section, I have to mention beforehand that legal positivism may reach
different and even contradictory results about the role of the CCT in Turkish
constitutional system, neglecting a highly significant dimension, that is the
discussion of the relationship between the legality and legitimacy of the CCT
rulings. Since the perspective of legal positivism identifies legality with
legitimacy, this negligence may be understandable. However, the central problem
about the CCT is inseparably connected not with the “legality” but rather with
the “legitimacy” of the existing political order. Let me expand further on this
point.
Students of legal
and political theory are well acquainted with the fact that it was Hans Kelsen
who developed the theory of constitutional review as an integral part of
“democratic constitutionalism”. In the eloquent interpretation of Lars Vinx,
“Kelsen believes that the pure theory undermines the
common assumption that the practice of constitutional adjudication is at least
potentially in tension with democratic politics. If understood in the light of
pure theory, democracy and the practice of judicial review of the
constitutionality of all acts of the highest organs of government as well as of
the legislature will be seen as mutually supporting institutions. Both
democracy and constitutionalism are needed to provide a full institutional
explication of the idea of legal objectivity and to realize the utopia of
legality. Democracy, insofar as it is
defined by its opposition to autocracy, is strengthened by constitutionalism
and constitutionalism, as serving the purpose of the protection of minority
interests, is meaningful only if we
accept the legitimacy of constitutional review.”[2]
Vinx argues further
that this connection between democracy and constitutionalism (and
constitutional review) gains meaning if we understand Kelsen’s pure theory of
law not only as a “science” but also as a liberal-democratic political theory
which puts forward a constitutional ideal called the “utopia of legality”. For
Vinx,
“The utopia of legality is a constitutional system in
which the legality, in the non-trivial sense of the term, of an act of state
that enacts of executes a legal norm is ordinarily sufficient to make that norm
(or act of execution) fully legitimate, to constitute a duty on the part of the
subjects of the law to defer to and obey it. The reason for this is that the
utopia of legality is a system in which people are subject, as far as this is
possible, only to the objective rule of laws, and not to the rule of men.”[3]
Viewed in the
light of the historical development of constitutional democracies in Europe and
North America, the above-mentioned interpretation of the Kelsenian idea of the
connection between democracy and constitutional review as a “utopia of
legality” provides certainly the standards of evaluating actually existing
constitutional systems. Thus, it becomes justified from within this perspective
to ask if an existing constitutional system and the institution of
constitutional review therein is in accord with the requisites of democratic
constitutionalism?
As for the
Turkish case, we have to take into account the meaning of constitutionalism in
Turkey first and evaluate the constitutional review as practiced by the CCT
later. There is certainly nothing novel in restating a well-established
historical fact that Turkey emerged as a republic out of the ashes of a
multi-ethnic and multi-religious Ottoman Empire. The fundamental concern of the
founders of the Turkish Republic was to establish a homogeneous nation-state.
Known best as Kemalism, this has been a very influential political ideology in
which nationalism and secularism are the main pillars of the new political
identity. Turkish constitutionalism, thus, has been determined by this
nationalist blueprint and developed accordingly not on liberal-democratic lines
as conceived by Kelsen, but has been “validated” by the “Turkish nation” whose
identity has been defined by the political decision of a military and civilian
bureaucratic (Kemalist/Atatürkist) elite. Accordingly, Turkish
constitutionalism is obsessed primarily with the protection of the “territorial
and national integrity” of the republican state against its “enemies”, external
as well as internal. This overtly Schmittian framework of Turkish
constitutionalism is now in a state of crisis since Turkey, with the “help” of
global resurgence of democracy and multiculturalism, has come to discover that
the Kemalist representation of society as a homogeneous entity is not true.[4]
Both as a member of Council of Europe, a signatory not only to the ECHR but
also to almost all international conventions on human rights and also as a
candidate to full membership in the EU, Turkey has to adjust its constitution
to the requisites both of supranationalism and multicultural democracy. As this
adjustment requires a drastic change in the political decision which has
determined hitherto the “Kemalist-nationalist constitutionalism” and rendered
“valid” the existing order of things, it is justified to argue that Turkey is
going through a political crisis. In view of the fact that the political
origins of the CCT[5] explicates
that the court was not envisaged as an instance of Kelsenian “utopia of
legality”, but rather a guardian of an “absolute constitution” in the
Schmittian sense[6], the recent
decisions of the CCT discussed below could be situated as a ramification of a
political crisis at the level of the Turkish constitutional system. In order to
assess the position and the role of the CCT in this crisis-ridden situation, we
may now go into the details of the debate over the recent decisions.
II. Recent Decisions of
the CCT in the Positivistic Perspectives
Before proceeding
further, let me explain briefly what I mean by the term “positivistic”. Without
going into the rather protracted debate between legal positivism and its
critics, my use of the term positivistic in this context is an approach to the
concept of law within the limits set out by what is known now as “exclusive
positivism”[7].
According to this approach, there is a strict separation of law and morality,
hence a corresponding separation between law and politics. Rejection of any
critical attitude towards “the law as it is” as a sign of “natural law”, the positivistic
approach claims to follow an allegedly scientific method in examining law and
legal problems.
Despite its
modifications into what is known today as “inclusive positivism,” this rather
crude version of “exclusive legal positivism” summarized best by the motto “a
law is a law, and an order is an order,” still prevails in Turkish
jurisprudence and legal scholarship. Be as it may, however, exclusive legal
positivism in Turkey in not monolithic in its approach to the CCT decisions. On
the one hand there are those scholars who regard the CCT decisions as
violations of Turkey’s constitution as it is, whereas there are others on the
other hand who applaud the decisions as they see legally valid.
II.1. The “367 Decision”
As for the
decision that stopped the parliamentary process of presidential elections known
as the “367 decision”, for instance, there is the argument that the CCT
breached the limits on its competences set by the Constitution and thus made a
legally invalid judgment. This interpretation of the “367 decision” as legally
invalid has two dimensions. The first in this regard is the interpretation of
the Constitution as promulgating that CCT is authorized to review only “the
constitutionality of laws, . . . decrees having the force of law, and the
Internal Bylaws of the Turkish Grand National Assembly”. Thus, it is argued
that CCT cannot examine the constitutionality of a parliamentary decision or
procedure unless it is a change it its Internal Bylaw. Like in every rule,
there are of course certain exceptions to this restriction like the
parliamentary decision to lift the parliamentary immunity.
Even if this is
the case, the CCT have made important decisions in the past in which it
interpreted certain parliamentary decisions as changes de facto in parliamentary Bylaw, and hence treated them as subject
to examination of constitutionality. Erdogan Teziç, a renowned professor of
constitutional law has made an interpretation that if a parliamentary decision
or a specific implementation of a parliamentary procedure endangers clearly and
seriously the democratic rule of law based on human rights and liberties, then
the CCT is justified to decide on its constitutionality, hence its annulment if
required[8].
So, it has been suggested to admit that the criticism of the court as having
breached the limits of its constitutional powers is not a criticism well
established in Turkish positive law.
The second
dimension, on the other hand, seems to have stronger grounds. Writing on this
“367 decision”, Özbudun and Gençkaya claim that,
“the Constitution of 1982 (Art. 102) clearly described
the procedures of the election of the president according to which a maximum
number of four parliamentary rounds are foreseen for the election. The
decisional quorum is two-thirds of the full membership of the Assembly on the
first two rounds, and the absolute majority of the full membership on the third
and fourth rounds, a minimum of 367 and 276 votes respectively. The
Constitution contains no special quorum rule for the meeting of the Assembly,
in which case the general rule in Article 96 should apply, that is, the quorum
should be one-third of the full membership (184 votes).”[9]
Özbudun and Gençkaya further argue
that the CCT judgment based on the interpretaion of the above mentioned
articles as if the Constitution required a minimum quorum of 367 votes to begin
the election process resulted not from a correct reading of the positive law
but some “maneuverings of dubious legal
validity started to ‘save the last citadel of the republic’ from the
occupation of an alleged ‘Islamist’.”[10]
In
contrast to the this argument implying that the CCT decision is not valid legally
but a result of political maneuvering, another scholar of Turkish Constitution,
Yüzbaşıoğlu has argued in a panel discussion organized in January 2007 by the
Union of Turkish Bar Associations, that the first clause in Article 102 of the
Constitution should be understood as an exception to the general rule (Art. 96)
that stipulates the minimum quorum required for the convention of the Assembly.[11]
According to the first clause (Art. 102), “the President shall be elected by at
least two-thirds majority of the full membership of the Turkish Grand National
Assembly and by secret ballot”. Yüzbaşıoğlu interprets this clause within its
interconnectedness with subsequent clauses as an exception to the general rule
set in Art. 96. It is this interpretation that the CCT adopted in making its
decision some five months after this talk delivered.
What
the forgoing examples suggest is that constitutional interpretations from
within almost identical positivistic approaches to law have reached two
opposite conclusions, each with its own claim to “legality”. This could be seen
also in other decisions, most remarkably in the case on the unconstitutionality
of the Constitutional amendments.
II.2. The Case of Constitutional Amendments
A second decision
of the CCT subject to widespread criticism has been on the constitutional
amendments of Articles 10 and 42. The amendment in Article 10 on the principle
of equality before the law was the addition of the phrase “in all activities
pertaining to the provision of public services” to the original wording “Organs
of the state and administrative authorities are obliged to act according to the
principle of equality before the law in all their transactions”. The new
version of Article 10 as “Organs of the state and administrative authorities
are obliged to act according to the principle of equality before the law in all
their transactions and in all activities pertaining to the provision of public
services” intended, as the justification of the law amending the constitution
has written, to lift the ban on women’s headscarves in institutions of higher
education. The parliament thought that endorsing a new clause, “No one can be
deprived of the right to education without a reason written explicitly in the
law” to Article 42 on the right to education would reinforce the amendment in
Article 10.
In a case filed
by the opposition in the parliament, the CCT first had to decide if and how it
had the competence to review the constitutionality of constitutional
amendments. This has been a hotly debated issue in Turkey since the inception
of the Constitutional Court in 1961 Constitution. Originally, in the 1924
Constitution, the first Constitution of the Republic, Article 102 prohibited
the amendment of the article defining the Turkish state as a republic. However,
the 1924 Constitution had institutionalized a political system based on the
notion of national sovereignty and the supremacy of the TGNA as its sole
representative. In the 1961 Constitution, on the other hand, a system of
separation of powers, most notably an independent judiciary was endorsed to
check and balance the potential threats of a majoritarian democracy. In its
original version there had been no limitations on the powers of the CCT, that
is no restrictions existed when the review of the constitutional amendments
were concerned. Shortly after the 1971 military intervention, however, the 1961
Constitution was amended in many respects, including a limitation on the CCT
powers in reviewing the constitutional amendments. According to the new rule,
the CCT could review the constitutionality of amendments only on formal grounds,
without considering its substance.
In
the 1961 Constitution, like its predecessor, there was only one immutable
article and that was the first article stipulating “Turkish state is a
republic.” After the above-mentioned restriction has been set, the CCT
continued to consider the substance of constitutional amendments but justified
its decisions on formal, not substantial grounds. In a decision in 1975, for
instance, the CCT decided first that the immutability of Article 1 on the
definition of the state as a republic encompasses also the qualities of the
republic as mentioned in Article 2 that states that the republic is a secular,
democratic social welfare state based on human rights and rule of law. On the
basis of this initial decision, the court also decided that amendment that
violate the qualifications of the republic do violate also the rule of
immutability or even proposing any amendment to Article 1. What followed from
this line of reasoning was the CCT’s annulment of the amendment foreseeing a change
in the composition of a military court to enable at times of war the presence
of non-jurist members violates the principle of the rule of law, thus the
immutability of the definition of the state as a republic hence the proposition
to amend the constitution couldn’t have been made. [12]
Having
this past experience, the military junta of 1980, who in fact made the present
1982 Constitution, aimed to restrict further the competences of the CCT. Thus,
after having stated that “Constitutional amendments
shall be examined and verified only with regard to their form”, Article 148 stipulates that “the
verification of constitutional amendments shall be restricted to consideration
of whether the requisite majorities were obtained for the proposal and in the
ballot, and whether the prohibition on debates under urgent procedure was
complied with.” Although this was a restriction that curbed the powers of the
CCT, the 1982 Constitution extended the scope of immutable articles both in
numbers and in substance. Instead of one immutable article of the previous
constitutions, the 1982 Constitution (Art. 4) endorsed the immutability of
articles 1 (the Turkish state is a Republic) and 3 (and the qualifications of
the republic as stated in Article 2 and those mentioned in the Preamble by
Article 2. This extension of the scope of immutable articles helped
paradoxically the CCT in restoring its previous powerful position in reviewing
the constitutionality of amendments.
As for the case in 2008,
the CCT has taken into account not only the wording but also the justification
of the amendments. The court, then, established the fact that the amendments
had the intention to lift the ban on women’s headscarves in higher education.
On this factuality, the Court reiterated its earlier 1989 and 1991 decisions
that allowing women students to wear headscarves in higher education
institutions is against the principle of secularism for, (a) the headscarf is a
symbol of religious fundamentalism, (b) in a society with an overwhelming
Muslim majority, allowing to wear headscarves would become a source of social
pressure over those who do not wear it and thus threaten social peace
(mentioned also in Art. 2 of the Constitution), and (c) making law on religious
concerns is not permissible under the principle of secularism. The CCT thus
determined that the amendments violate the immutable principle of secularism,
so the amendment cannot be proposed. Since the amendments under consideration
cannot be proposed, the CCT decides that the amendments are “annulled”.[13]
Now, from within a positivistic perspective,
the inclination of the CCT to extend the scope of its jurisdiction causes some
serious problems so far as the decisions mentioned above, but most notably the
most recent one, invites criticism for two reasons. The first reason stems from
the fact that in the continental tradition of public law, it is a general
principle that institutions of government, especially the executive and the
judiciary are deemed incompetent unless they are so authorized by the
constitution or the statute law. What follows from this principle is that, the
rules that provide for governmental authority are exceptional thus cannot be
interpreted in ways that extend the scope of authority, rendering the general
principle meaningless. In the decisions mentioned above, it may be argued that
the CCT did this in a manner that contradicts the principle about the sources
of authority. The second reason for criticism points out that the court based
its judgment not on the wording and the meaning of the amendments thereof but
on their justifications that, in fact, had no binding force whatsoever.
A counter but still positivistic argument,
however, might be developed to defend the court. This time the argument would
be based on a Kelsenian understanding of legal positivism conceiving law as a
normative hierarchy in which every norm gets its validity from its superior. If
this conception of law is adopted, then, it may be argued that the constitution
is the supreme norm and it is the Constitutional Court who has the final
authority in establishing the meaning of the constitution so as to judge the
validity of laws in a legal system. In this specific case of the 2008
constitutional amendments, it should also be noted, the idea that constitutions
gain their validity from their compliance with international law doesn’t help
much because in the case of the headscarves, the European Court of Human Rights
(ECtHR) accepted the CCT’s interpretation as “law” and made a judgment that the
CCT’s decision which meant the endurance of the ban as not violating the
European Convention on Human Rights (ECHR).[14]
Here again, as in the previous case of the “367 decision”, we encounter another
instance of reaching contradictory conclusions on the legal value of the CCT
decisions from within the framework of legal positivism.
1I.3.
The Case of Party Closures
Turkey is a “heaven” of party closures. Ever
since the CCT is incepted, 26 parties have been have been closed and 19 of the
cases fall under the term of the authoritarian minded 1982 Constitution. It is
true certainly that the party closure cases are different in nature from the
other cases we have already referred to above. Mention must be made here of the
fact that both in the “367 decision” or in the constitutional amendments, the
CCT performed a judicial function well known universally as the “constitutional
review”, or more precisely, the judicial review of the constitutionality of the
legislature. Party closure is different in that it is not a function of “judicial
review” but bears more of a criminal law procedure. Performance of different
judicial functions like “constitutional review” and a “criminal court” reveals
that the CCT in the Turkish system has been so designed that it not only
safeguards the Constitution, but also conceived as one of the guardian
institutions of the Republic. Put differently, the CCT has a dual function, the
function of protecting the rights and liberties of the individuals on the one
hand and the function of protecting the Republic against the ills of the
political parties, on the other. These two functions of the CCT can be
contradictory at times for the Constitution has been the product of an
authoritarian mindset as reflected in the problematic case of party closure.
According to the 1982 Constitution (Art. 68/para.
4),
“The
bylaws and programmes, as well as the activities of political parties shall not
be in conflict with the independence of the state, its indivisible integrity
with its territory and nation, human rights, the principles of equality and
rule of law, sovereignty of the nation, the principles of the democratic and secular
republic; they shall not aim to protect or establish class or group
dictatorship or dictatorship of any kind, nor shall they incite citizens to
crime.”
In
addition to these restrictions on political parties, there are numerous other
prohibitions mentioned in Article 69 of the Constitution and in the Law on
Political Parties.
In the Turkish system of party closures, however,
Article 68/4 has played a central role in closure decisions.
On several occasions, the ECtHR, deciding on
the compatibility of the closure decisions with the ECHR, made judgments that
the CCT decisions dissolving political parties has violated “the freedom of
assembly and association”. The jurisprudence of the ECtHR, thus, played an
important role in 2001 and 2004 amendments to the Turkish Constitution. Within
the context of the most comprehensive constitutional reform package of 2001,
the Constitution has been so modified that it became more liberal in its
stipulations regarding the fundamental rights and freedoms and the party
closure system has been changed also to render closure decisions more
difficult. As Özbudun and Gençkaya describe,
“The
constitutional provisions concerning political parties were amended again in
2001 to make the prohibition of parties more difficult. According to the
amended sixth paragraph of Article 69, the
dissolution of a political party on account of its activities contrary to
the provisions of the fourth paragraph of Article 68 may be decided only when the Constitutional Court determines that it
has become a focal point of such activities. A political party can be
deemed to have become the focal point of such activities when they are
undertaken intensively by the members of that party and when these actions are
implicitly or explicitly approved by the general convention, or the
chairperson, or the central decision-making or executive organs, or by the
plenary session of its parliamentary group or its executive committee, or when
these actions are directly carried out by the above-mentioned organs.”[15]
The
2001 amendments included further provisions with the purpose of rendering party
closures more difficult like providing for an alternative sanction of cutting
state funds in addition to the already existing permanent dissolution and
bringing the requirement of a qualified majority (at least 7 out of 11 judges)
for the Court’s decision on permanent dissolution. In addition to the 2001
amendments, a crucial amendment to the Article 90 of the Constitution has been
made in 2004 to clarify a protracted concern over the normative status of the
international agreements duly put into effect. In the earlier version, the
article provided that international agreements duly put into effect have the
force of law and, in a manner to distinguish the agreements from ordinary
status law, proscribed claims to their unconstitutionality. The 2004 amendment
added a new paragraph stipulating that in the case of a conflict between an
international human rights agreement duly put into effect and a statute law,
international agreements bear precedence over statutes. As Benhabib and Isiksel
has already noted, “[t]his means that Turkish courts will now have to apply
international law where it conflicts with domestic law, as national courts of
EU member states have had to do since the establishment of the supremacy of EC
law.” [16]
Have they done so, or more precisely has the CCT done so?
In a recent decision on Rights and Freedoms Party
(Hak ve Özgürlükler Partisi-RFP),
another party representing predominantly the demands of the Kurds in Turkey,
the court could not decide for its permanent closure for the number of judges
voted for its dissolution remained short of the qualified majority now
required. It seems, however, that the court in this case has been split into
two in their interpretation of the supreme normative status of international
human rights law. Six judges of the court who in fact decided to close the
party, argued that Article 90 as amended in 2004 can be applied only if there
is a conflict between a “domestic law” and an international human rights
agreement like the ECHR. In the case at hand, the judges so argued that the
conflict is not between domestic and international law but between the
Constitution (Art. 68/para.4) and the international law. They argued that, in
the concrete case at hand,
“the
‘domestic norm’ alleged to conflict with the article 11 of the European
Convention on Human Rights is not a rule of a statute but a Constitutional
provision. Thus, Article 90 has no relevance in this case. Moreover, according
to the Article 138 of the Constitution, ‘the judges shall give judgment in
accordance with the Constitution, law, and their personal conviction conforming
with the law’ . . . and for this reason, it cannot be discussed for the
Constitutional Court to leave aside these concrete Constitutional rules and
establish a verdict by way of interpretation based on a direct application of
the ECtHR jurisprudence.”[17]
The
judges holding the view quoted above have relied not only on the articles of
the Constitution, but also on the ECHR provisions that justify restrictions of
freedom of association. The line of reasoning pursued in this respect puts the
emphasis on the legitimate aim of protecting the territorial and national
integrity of the state against which the RFP have been deemed to act.
In contrast to the majority view, five judges
in the CCT have proposed that “political parties are under the protection of the
Constitutional provisions pertaining to this particular subject matter and
articles 10 and 11 of the European Convention on Human Rights regarding the
‘association’ and ‘freedom of thought and expression.”[18]
They argued further that political parties shall not be dissolved on purely
programmatic reasons without taking into account of seriousness of their
actions as a threat to the democratic order of the state.
This split among the CCT judges is interesting
extremely because this is the only case in which a considerable number of
judges make reference to the importance of international human rights law. This
portrays a striking divergence from the majority opinion which provides another
example of the accustomed attitude in which reference to international law has
been made either as mere lip-service or in justification for the restrictions
on fundamental rights and liberties.
In the case of JDP and in a very recent
decision on DScP, the court retained its already established jurisprudence in
party closures. As for the JDP case, the court sustained its interpretation
that lifting the ban on headscarves is a major act against secularism and
relied primarily on this in deciding that the JDP have become a center for
anti-secularist activities. Even if the CCT’s interpretation of secularism and
the support it might have received from the ECtHR have been criticized[19],
it is still a legally valid judgment. But, as in the previous cases discussed,
in the party closure cases as well, it is possible to arrive at diametrically
opposite conclusions within the framework of legal positivism on the legal
meaning of the CCT jurisprudence. Take for instance the majority opinion in the
RFP case. Here, the judges understand the positive Turkish law as a normative
system in which the Constitution is deemed to be the supreme norm that
validates all other norms in the system. Although this may contradict, yet
again, the notion of law as formulated by Kelsen who rejected the dualism
between domestic and international law, it nevertheless sustains its stronghold
in Turkish jurisprudence and legal scholarship[20].
On the other hand, we are also enabled to criticize the CCT party closure
decisions on the grounds still provided by legal positivism and argue that
since Turkish positive law gives priority to international human rights
agreements, the CCT must adapt its way of treating party closure cases to the
requisites of international law.
III.
Turkish Constitutional Court and the Turkish Political System
In view of the outline above of the recent CCT
jurisprudence and the legal debates therein, it seems not implausible to assert
that the contradictory conclusions regarding the “legality” of the CCT
judgments reflect in an interesting manner the polarization between JDP
supporters and opponents in society. At the risk of oversimplification of an
otherwise more complex social reality, it may be argued that the supporters of
the JDP see the CCT as a “politicized” institution acting as the bearer of
tutelary power over democratic processes, while the opponents praise the court
for defending the secularist Republic against its enemies.
This picture fits into a picture portrayed by
an incisive sociolegal analysis of the CCT. Questioning “the link between
judicial power and the expansion of rights,”[21]
Ceren Belge has argued that “[b]y most standards of court power or activism in
the literature, the CCT figures as a powerful court”[22].
Showing furthermore that the CCT’s activism was not affected negatively by the
military intervention of 1971-1973, Belge makes a very important argument
“that the
CCT’s failure to expand civil rights and liberties cannot be explained by its
weakness vis-à-vis the other branches. Indeed, the CCT was both independent and
powerful, I claim, but was activist only selectively. That is, the court used
its clout to protect some groups and values while suppressing the demands of
others.”[23]
In
her analysis, the CCT protects what she calls “the Republican Alliance,”
composed of civil servants, the judiciary and the universities, which means
that the CCT has been “selectively activist” in certain rulings pertaining, for
instance, to enhancing the autonomy of the judiciary while maintaining a
”conservative, nonactivist stance in civil liberties cases”[24].
Pointing out to the importance of societal
allies for court’s power, Belge has asserted that
“[h]ad the
CCT not had powerful allies, such as the military (at least initially), the
RPP, and to a lesser extent the bureaucracy, university professors, and
students, it would not have been able to overrule major policies of JP [Justice
Party-Adalet Partisi] governments or of the emergency cabinet of the martial
law era. Nor would the court get the opportunity to play a high-profile role in
Turkish politics if Republican groups did not actively use
the court
in their struggles against popular majorities.”[25]
In
view of the recent political-constitutional crisis, it seems possible still to
reiterate a similar argument. The military, in its role in the presidential
election process in 2007, the RPP, many university professors (including the
then presidents), etc. are still within “the Republican Alliance” supporting
the CCT activism in turning down not JP but JDP this time, and no doubt that
“the Republican groups”, which included then President Sezer as well, actively
used and still use the court, in their dealings with the “popular majorities”.
This penetrating “sociolegal” analysis of the
CCT acquires further significance if situated in the broader context of Turkish
history which suggest that what Belge calls “the Republic Alliance” has deeper
roots in history than it might be recognized at first sight. In the
pre-republican days of “national struggle”, for example, an analysis inspired
by the October Revolution of 1917 of the social and political structure of the
Ottoman-Turkish society proclaimed that the basic class cleavage in Turkish
society was not between the bourgeoisie and the proletariat, but between the
bureaucracy and the people. In his address to the First Grand national Assembly
of 1920, the spokesperson of the “Special Committee” who provided a draft
constitution came to be known as the 1921 Constitution argued that,
“the bureaucratic class in this country has believed
as if they were placed in power by God’s will and thus they deemed themselves
as having the right to command over the peasants and they have always uttered
that without their power it would be impossible to govern the country. . . .
[The Committee] has declared a war against this present form of bureaucratic government
and has sworn to tear apart even in the provinces the bureaucratic hierarchy
and the bureaucratic network. Accordingly, the Committee has adopted the
principle of election of the officials in provinces by the locals, hence the
principle of direct popular government.”[26]
This analysis had been put forward
to justify a new constitution that would enable “the people” to govern almost
directly within a highly decentralized system of government in which not only
the parliament but also the governors of provinces would be elected directly by
the people. Though constitutionalized, this decentralized democracy has never
been put into practice and replaced instead by another constitutional system
under which the RPP ruled over the society from 1923 until the popularly
elected Democrat Party (Demokrat Parti-DP)
took over government in May 1950. The DP rule between 1950 and 1960 marked the
first phase in Turkish democracy which ended with a military putsch in May
1960.
To make short
what might otherwise turn into a prolonged history lecture, the 1961 and 1982
constitutions endorsed some checks against popularly elected parliamentary
majorities to “protect” the Republican order. Among these checks over majority
rule has been the institutionalization of the role of the military in Turkish
political decision-making process through the National Security Council, the
Senate whose members are partly elected, partly appointed by the President, and
partly comprising the members of the 1960 military government, ant the CCT.
According to Mümtaz Soysal, a distinguished professor of constitutional law,
the nature of this constitutional system is summarized best by what he calls
“the fear from majority”. Beneath this fear, he explains, lies the assertion
that “the people are ignorant, unable to make choices for its good; open to
abuses”[27]
In his analysis, the “military and civilian bureaucracy transfers its societal
power to another, “tripartite power” made up of remnants of feudalism, local
notables and the ‘new bourgeoisie’, or ties itself to it.” 1960 coup d’état was
the result of bureaucracy’s discontent about the consequences of this transfer
of power. This discontentment is reflected itself in the form of putting
obstacles in front of a popularly elected majority power to “prevent it in
drifting away from the ideals that has been established by the bureaucracy over
a century.”[28]
What Belge calls
“the Republican Alliance protected by the CCT” overlaps, in fact with what
Soysal labels “military and civilian bureaucracy”, and both analyses somewhat
support the relatively well established idea that the Turkish political and
constitutional system is a mixture of democratic procedures with institutions
of guardianship among which the CCT has a powerful place.
This diagnosis
about the dualism of the Turkish political regime is reinforced further by the
1982 Constitution which strengthened the institutions of guardianship[29],
most of which have been removed or mitigated as a result of the reforms between
1998-2006 under EU conditionality.[30]
The CCT, however, seems to have not been affected from these reforms and
sustains its activism in protecting the “Republican Alliance”, whose
composition and societal bases might have been modified as the social fabric in
Turkey has changed drastically over the decades from overwhelmingly agrarian
and illiterate population of the 1920’s to a predominantly urbanized and
literate population of the present.
This overall
change in the social fabric and Turkey’s prospective membership in the EU
coincided with the global resurgence of democratic ideals and values making
things more difficult for the sustainability of the now outdated dualism of
democracy and guardianship. As the legitimacy of its present institutional
structure and competences has been under serious criticism, this difficulty is
to be experienced by the CCT. In an important interview he gave to the Turkish
daily Milliyet just after the CCT’s
“non-closure ruling” in the JDP case, Andrew Arato has made some very critical
remarks in this regard. According to Arato, it should be understood first that
the CCT, not unlike other constitutional courts, supervises the formation of
new constitutional rules, and the CCT itself is a major actor at least
partially in the making of a constitution.[31]
In his own words,
“given the unchangeable articles,
its Grand National Assembly is not a sovereign constituent assembly. It is
important, that the consensual approach may neutralize political actors with
standing who may appeal to the Constitutional Court to review the
constitutionality of amendments: according to article 148 only the president or 1/5 of the
deputies can do so, and the Court cannot initiate review on its own. Given the unlikely case of the
emergence of a consensual constitution, and the opposition of 1/5 of the
deputies, it will be also important to take the views and interests of the
Constitutional Court into account that would most likely concentrate on its own
institutional interests. In short, a Court would fight above all the diminution
of its own authority.”[32]
Arato’s second argument about the role of the CCT in Turkey’s
constitutional processes is based not on sociological and political but
“on
principled grounds. In a society where there are such a sharp divisions about
some culturally explosive symbolic issues, it may be a very good idea to leave
a way of taking those issues out of the political process where ultimately, if
one cannot agree, they lead to violent confrontations and the suppression of
the weak, minority or majority.”[33]
IV. Insights of Discourse Theory and Concluding Remarks
This assessment
of the constitution-making process in Turkey requires us to continue the
discussion of role of the CCT within the framework not of normative theory. As
regards Arato’s vision of Turkish society as sharply divided between
“culturally explosive symbols”, this is true perhaps all contemporary societies
across the globe in their experiences of cultural diversity. Perhaps not as
explosive as in Turkey, many contemporary societies have been divided between
cultural symbols and identities, making it all the more important to establish
a new democratic rule of law, and Arato is justified certainly in his emphasis
on the need of adding “some fundamental rights to what is unchangeable” in the Turkish
Constitution, “even if such a feature is inevitably court strengthening.”[34]
The
problem here is not with the power of the court, but with its selective
activism in protecting the still undemocratic establishment of the republic and
unyielding conservatism in enhancing rights and liberties. Acknowledging the
importance of the role of the court, for instance, Benhabib makes the following
assessment regarding the CCT’s annulment of the constitutional amendments of
articles 10 and 42:
“We could say that all this is now ancient history,
given that both amendments were rescinded and the status quo ante reestablished
by the Turkish Constitutional Court. But it is important to that between
February 2008, when the new legislation was passed, and June 2008, when it was
overturned, Turkey missed the chance to create a new demos and a new political
identity for a truly pluralistic society. It missed the chance to recognize the
cleavage between observant and nonobservant Muslims as only one, and by no means the principal one,
among the many differences and divisions in Turkish society.”[35]
Leaving aside the
divisions of gender and class, other differences and divisions include those
between Sunni and Alevi, between Hanafi and (mostly Kurdish) Shafii, ethnic
differences, most notably the presence of a Kurdish population of at least 15
million, the decreasing number of non-Muslims, etc. On account of all these
cleavages, we are compelled to reconsider problems faced by Turkey as problems
of democratic legitimacy which could be overcome by advancing its reform
process to create a new and inclusive political identity.
The fundamental
issue here is not whether to strengthen the court other institutions to check
and balance the excesses of majoritarianism, but to establish the procedures
conducive for a democratic legitimation. What Habermas has diagnosed for
contemporary complex societies holds true for Turkey as well:
“What grounds the legitimacy of rules that can be
changed at any time by the political lawgiver? This question question becomes
especially acute in pluralistic societies in which comprehensive worldviews and
collectively binding ethics have disintegrated, societies in which the
surviving posttraditional morality of conscience no longer supplies a substitute
for the natural law that was once grounded in religion and metaphysics. The democratic procedure for the production
of law evidently forms the only postmetaphysical source of legitimacy. But
what provides this procedure with its legitimating force? Discourse theory
answers this question with a simple, and at first glance unlikely answer:
democratic procedure makes it possible for issues and contributions,
information and reasons to float freely; it secures a discursive character for
political will-formation . . .”[36]
So
far as the “democratic procedure for the production of law” requires a
constitutional system of rights and liberties, and so far as a system as such
is need of courts to secure those rights, we encounter two types of problems,
one pertaining to the institutional and procedural characteristics of the
courts, the other what Ulrich Preuss calls the problem of indeterminacy.
As regards the
institutional and procedural characteristics, we may put the emphasis on the
idea that in a discourse theoretic understanding of democracy, courts must have
procedural democracy as well. This means that the courts must be established in
ways that connect them to the political public. In the case of constitutional
courts, this means that the justices should be elected by the citizens or their
representatives. This is certainly a requirement for the CCT for like all other
high courts in Turkey, the CCT is formed also through a process of co-optation.
The second
problem is more serious, because societies may find more democratic ways in
establishing courts and their procedures, but the problem of indeterminacy
stems from the structure of modern societies and undermines the “morality of
law” and impeding a full procedural legitimation. According to Preuss,
“The law is supposed to safeguard both justice and
certainty, i.e., the predictability of the parameters of individual and social
action. . . . The indeterminacy problem refers to the fact that legal certainty
has become problematic . . .
Aphorisms such as ‘On the high sea and before the courts we are in God’s
hand,’ or ‘There is justice, but there are also courts,’ clearly demonstrate
that the people’s trust in the predictability of court decisions has
considerably decreased.”[37]
Taken together with Lon Fuller’s account
of the morality of law in which one of the eight fundamental principles that
make up the morality of law is formulated as “congruence between the rules as
announced and their actual administration”[38],
the problem of indeterminacy is a serious threat to legitimacy.
Upon
these insights provided by discourse theory and non-positivist legal
perspective, it seems to draw the following conclusions: (1) The CCT is a
powerful institution in Turkey’s constitutional-political system. (2) The power
of the CCT derives not from its democratic legitimacy, but from its allegiances
with the power centers of the establishment, making it more of a guardian of
the state than a constitutional court of rights and liberties. (3) The court’s
decisions, as seen in the rather detailed examination provided in the first
section of this article suffer from the “problem of indeterminacy”, making it
less legitimate an institution than ever. (4) As the activism of the Court
increases, as it has been the case during the recent political-constitutional
crisis, its legitimacy erodes accordingly.
The
eroding legitimacy of the CCT within the wider frame of still unresolved
political-constitutional crisis calls for the urgency of setting up a totally
new constitution. This requires both a consensus as inclusive socially and
culturally as possible, a firm loyalty to the indispensability of fundamental
rights and liberties and an understanding of the moral necessity of transition
from a homogeneous idea of nation to a new political identity that acknowledges
diversity in the political public sphere. Even if a constitutional renewal as
such cannot take place, we may still be optimistic about the jurisgeneric potential in the still
vibrant civil society of Turkey, taking caution, however, against the jurispathic dangers of the courts.[39]
Levent Köker is Professor of Public Law
and Political Theory in Atılım University Faculty of Law, Ankara. Some of his
articles in English were published in Political
Theory and The Annals of the American
Academy of Political and Social Science.
* This article is made possible to a great extent through my
participation in a conference organized by Koç University on December 29, 2009
in Istanbul. I wish to thank my colleagues Fuat Keyman and Bertil Emrah Oder
who enabled me to develop further my arguments here. I would like to thank also
to my colleagues Çiğdem Sever and Abbas Kılıç in Atılım University, Ankara and
an anonymous reader for their comments and suggestions on an earlier version.
[1] Seyla Benhabib
and Türküler Isiksel, “Ancient Battles, New Prejudices, and the Future
Perspectives: Turkey and the EU,” Constellations,
13, No 2 (2006), p. 230.
[2] Lars Vinx, Hans Kelsen’s Pure Theory of Law, Legality
and Legitimacy (Oxford and New York, Oxford University Press, 2007), p. 145
(italics added.)
[3] Ibid., 25.
[4] Levent Köker,
“National Identity and State Legitimacy: Contradictions of Turkey’s democratic
Experience,” Elisabeth Özdalga and sune Persson, eds., Civil Society, Democracy, and the Muslim World (Istanbul, The
Swedish Research Institute, 2002), pp.63-72.
[5] Cf. Ergun
Özbudun, “Political Origins of the Turkish Constitutional Court and the Problem
of Democratic Legitimacy,” European
Public Law, 12 (2), 2006, pp. 213-225.
[6] Carl Schmitt, Constitutional Theory, trans. and ed.
Jeffrey Seitzer, (Durham and London, Duke University Press, 2008), esp. pp.
64-65.
[7] Here I refer
primarily to “the separability thesis” of legal positivism which “in its most
general form . . . asserts that law and morality are conceptually distinct. . .
. This [Klaus Füber’s]
interpretation implies that any reference to moral considerations in defining
the related notions of law, legal validity, and legal system is inconsistent
with the Separability Thesis.” Kenneth Einer Himma, “Inclusive Legal
Positivism,” in Jules Coleman and Scott Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford
and New York, Oxford University Press, 2002), p.135.
[8] Erdogan Tezic, Türk Parlamento Hukukunun Kaynakları ve İlgili Anayasa Mahkemesi Kararları
(Istanbul: Istanbul Universitesi Yay, 1980).
[9] Ergun Özbudun
and Ömer Faruk Genckaya, Democratization
and the Politics of Constitution-Making in Turkey (Budapest and New York:
Central European University Press, 2009), p. 97.
[10] Ibid. (italics
added.)
[11] Necmi
Yüzbasioglu, “Cumhurbaşkanının Nitelikleri ve Yetkileri,” in Cumhurbaşkanı
Seçimi Öncesi Cumhurbaşkanlığı (Ankara, 12-13 OCAK 2007), (Ankara, Türkiye
Barolar Birliği Yayınları, 2007), pp. 259-276.
[12] TCC decision
dated April 15, 1975 (E. 1973/19, K. 1975/86).
http://www.anayasa.gov.tr/eskisite/KARARLAR/IPTALITIRAZ/K1975/k1975-087.htm
(01.05.2010).
[13] TCC decision
dated June 5, 2008 (E. 2008/16, K. 2008/116).
[14] ECtHR Grand
Chamber Judgment in the “Case of Leyla Sahin v. Turkey”, Strasbourg
(11/10/2005) http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Sahin%20|%20Turkey&sessionid=42981261&skin=hudoc-en
[15] Özbudun and
Gençkaya, p. 58 (italics added).
[16] Benhabib and
Isiksel, p. 224.
[17] TCC decision
dated 01.29.2008 (E. 2002/1, K. 2008/1)
[18] Ibid.
[19] E.g. Carolyn
Evans, "The 'Islamic Scarf' in
the European Court of Human Rights,"
Melbourne Journal of International Law 4; (2006) 7(1), 52,
[20] It is worth
emphasizing at this point that Kelsen’s understanding of the relationship
between the international law and the constitution has changed from the first
to the later versions of his seminal work Pure
Theory of Law. In the words of Danilo Zolo, “Kelsen’s position on this
crucial point nonetheless fluctuates. In Reine Rechtslehre. Einleitung in
die rechtswissenschaftliche Problematik (1934) [. . .], the primacy of
international law and the dissolution of the ‘dogma of sovereignty’ are
presented as a technical outcome of the pure theory of law (English trans. Introduction
to the Problems of Legal Theory (1992), at 124-125). In the second edition
of Reine Rechtslehre (1960), at 343-345, Kelsen maintains that only the
monist conception is laid down by theoretical requirement, whereas the choice between the primacy of international law and the
primacy of domestic law can be based only on preferences of an ideological or
political nature.” (Danilo Zolo, “Hans Kelsen: International Peace through
International Law,” [italics added]
note 7. 01/05/2010).
[21] Ceren Belge,
“Friends of the Court: The Republican alliance and Selective Activism of the
Constitutional Court of Turkey,” Law and
Society Review, Volume 40, No. 3 (2006), p. 685. Although this important
analysis of the CCT is a survey of court decisions between 1962-1982, its conclusions
are extended to cover also the turbulent days of Turkish democracy in the
1990’s, providing us with a highly reliable scholarly analysis for the present.
[22] Ibid., p. 665.
[23] Ibid., p. 654.
[24] Ibid., 674.
[25] Ibid., 686-687.
[26] Cited
in Levent Köker, Modernleşme, Kemalizm ve
Demokrasi, (Istanbul: İletişim, 2007), p. 141-142.
[27] Mümtaz Soysal, Anayasaya Giriş (Ankara, AÜSBF, 1968),
p. 220.
[28] Ibid., 220-221.
[29] On the “tutelary
character” of the 1982 Constitution see Özbudun and Gençkaya, p. 22-23. At this
point, I think I have to explain why I choose the term “guardianship” instead
of “tutelage,” a term with more common academic usage to describe contemporary
Turkish politics. The term tutelage refers in a highly apologetic manner to the
single party period of 1923-1945 and argues that Kemalist authoritarianism has
been a historical necessity. Based on the theoretical assumptions of the
modernization paradigm, the term puts an emphasis on the idea that the Kemalist
single party period has had the idea of preparing the economic and cultural
conditions for an eventual democratization of the political structure (For an
eloquent exposition of this idea see Ergun Özbudun, “The Nature of the Kemalist
political regime,” in Ergun Özbudun and Ali Kazancıgil, eds., Atatürk, the Founder of a Modern State,
London: C. Hurst, 1981, p. 79-102). In contrast to this notion of political
tutelage, guardianship emphasizes the endurance of an intrinsically
authoritarian system of rule which conceives of the “Kemalist Republic” as the
“ideal order” that needs to be protected not only against the external enemies,
but also against the “wrongs” of the popular masses. The reaction of the
military and civilian bureaucratic elites to the democratic reform process
reflect not a “tutelary” mentality with the aim of eventual democratization,
but rather a Platonic guardianship with the ultimate aim of protecting the
existing order (i.e. the Turkish nation-state) against its “foreign and
domestic enemies”. (Here I rely on Robert Dahl’s understanding of
“guardianship” as an anti-democratic idea or a perennial alternative to
democracy in his Democracy and Its
Critics, New Haven, Conn.: Yale University Press, 1989.)
[30] For these
reforms and “harmonization packages” see Özbudun and Gençkaya, pp.43-79.
[31] Andrew Arato,
“The Decision of the Turkish Constitutional Court: the Way Ahead,” Frankfurt,
August 9, 2008 (http://www.milliyet.com.tr/akp-ye-onemli
uyarilar/siyaset/haberdetayarsiv/17.01.2010/982363/?ver=93, 01/05/2010).
For an earlier account on the constitution-making process, see his “Forms of
Constitution Making and Democracy,” Cardozo
Law Review, Vol. 17 (1995), pp. 191-231.
[32] Arato, “The
decision,”.
[33] Ibid.
[34] Ibid.
[35] Seyla Benhabib,
“Turkey’s Constitutional Zigzags,” Dissent
(Winter 2009). (http://www.dissentmagazine.org/article/?article=1321,
01/07/2010).
[36] Jürgen habermas,
“Postscript,” in J. Habermas, Between
Facts and Norms, Contributions to a Discourse Theory of Law and Democracy
(Cambridge, Mass., the MIT Press, 1996), p. 448 (italics added).
[37] Ulrich Preuss,
“Communicative Power and the Concept of Law,” in Andrew Arato and Michel
rosenfeld, eds., Habermas on Law and
Democracy: Critical Exchanges (Berkeley, Los Angeles, London: University of
California Press, 1998), p. 327.
[38] Lon Fuller, The Morality of Law (new Haven and
London: Yale University Press, 1964), p. 39.
[39] Seyla Benhabib,
“Democratic Exclusions and democratic Iterations: Dilemmas of ‘Just Membership’
and Prospects of Cosmopolitan Federalism,” European
Journal of Political Theory (2007), 6(4), p. 445-462. http://ept.sagepub.com/cgi/content/abstract/6/4/445
(01/12/2010).
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