By Hendrik Müller (vol. 7, no. 8 of the Turkey Analyst)

The determination of Turkey’s Constitutional Court to fulfill its role of upholding the rule of law, in spite of this putting it at odds with the mercurial prime minister, has unexpectedly presented a check on Erdoğan’s ambitions. The recent rulings of the Court raise hopes that it can be a true bastion of the rule of law. But if the allegations that its president, Haşim Kılıç, harbors ambitions to become president of the Republic were revealed to be true, those who have called the integrity of the Court into question will appear to be vindicated. That would be regrettable.

BACKGROUND: On April 25, in commemoration of the Court’s 52nd anniversary, president Kılıç delivered a defiant speech against the Justice and Development Party (AKP) government.  Having made a forceful plea for the rule of law, he also sharply criticized the government’s purges in the judiciary as a “corruption of conscience” against justice.  This comment alone signifies that there is something greater at stake than solely a matter of law.  Indeed, it reveals that there are also wide-ranging political implications at the heart of recent tensions as the Court, and its president in particular, has taken a stance against the government.

Kılıç is a conservative and a pious Muslim who was appointed to the Court by President Turgut Özal in 1990. His voting record has never before displeased the Islamic conservatives, having consistently voted against the closure of Islamist parties in the past. Now, the AKP feels betrayed by his refusal to approve the recent actions of the government.  By doing so, he has jumped right into the clash between the AKP and the supporters of Fethullah Gülen. However, Kılıç’s speech also included remarks that suggest that he is worried about the influence that the Gülen “cemaat” wields over the judiciary. Nevertheless, the main thrust of his speech was his exhortation that the government produce evidence against those in the judiciary that it has accused of being in the service of a supposed “parallel structure.” Accordingly, his rumored presidential ambitions would certainly enjoy the support of the Gülenists, and possibly also that of the opposition parties, for such a bid.

Additionally, Kılıç’s stance re-directs the Court onto a path in line with its political history. Established in April 1962, the Constitutional Court was a product of Turkey’s 1960 military coup. The Court was intended to provide checks and balances on the political power, which was deemed urgent after the democratic transgressions that had taken place during the last years of the rule of the conservative Democratic Party (DP). Consequently, Article 148 of the Constitution instructs the Court to “examine the constitutionality” of laws, decrees and rules of procedure.  However, for most of its history, Turkey’s Constitutional Court has performed a less democratic role; it has shut down a string of Kurdish and Islamist parties that the state establishment did not tolerate.

In 1998, it ruled to close the Welfare Party and later, in 2001, its successor, the Virtue Party, citing Islamist policies as the main reason for its decisions.  But in a key decision in 2008, it decided not to shut down the AKP for conflicting with the principle of secularism. (See 24 October 2008 Turkey Analyst)  While it did find the AKP guilty of having become a source for anti-secular activity, it ruled to halve the state’s funding of the party’s activities.

Following this decision, a constitutional referendum held in 2010 brought changes to the procedure and composition of the Court. The former provided that, in line with European practice, citizens were given the right to apply to the Court individually. Concerning the latter, eleven judges sat at the Court prior to the referendum, six of which were selected from candidates proposed by the country’s higher courts.  Today, the number of members is 17, with the members from the higher courts now forming a minority rather than a majority. The president of the Republic appoints 14 of these members while three are elected by parliament.  Although this raises legitimate concern that the Court would no longer function as an independent institution, its recent adjudications have proven otherwise.

Earlier this month, on April 11, the Court ruled to partially overturn the bill that reorganized the High Council of Judges and Prosecutors (HSYK); the bill was enacted in response to the graft probe that was launched against AKP dignitaries last December. The Court demanded a redefinition of the justice minister’s increased competences.

The HSYK ruling followed on an earlier decision when the Court ruled to unblock Twitter on April 2.  The Court ruled that the government’s Twitter-ban violated the Constitutional guarantee on the freedom of speech.  In reaction thereto, Prime Minister Recep Tayyip Erdoğan stated that, despite having to implement it, he does not respect the Court’s decision.  He scolded the Court for undermining “national interests” and for supporting the business interests of an American company.  Kılıç, on the other hand, defended the Court’s position by stating that it does not act on behalf of national interests but seeks to uphold universal values.  Additionally, he argued that it merely determined an absence of a legal basis in an executive procedure.

Erdoğan has since made an individual application to the Court, being the first prime minister to do so, demanding a reinstatement of the ban on the basis of a breach of his personal rights.  Furthermore, in response to Kılıç’s critical commemoration speech, he and other AKP officials responded with further rebuke.  Erdoğan accused the Chairman of either forming part of the so-called ‘parallel state’ or, at the very least, protecting it for his future personal ambitions.  Interior Minister Efkan Ala labeled Kılıç a tool of an anti-governmental coalition, while Justice Minister Bekir Bozdağ proclaimed that Kılıç’s statements have crafted the Constitutional Court as a new opposition in Turkey.

IMPLICATIONS: Needless to say, this tit-for-tat bashing from both sides has set a tense tone in the relationship between the Court and the AKP, and it lies with the upcoming verdicts and political developments to determine whether this bond will make or break.  In light of recent developments, two questions must be asked: who controls the Court and where does their allegiance lie? And, can the government be expected to try to circumvent the Court’s decisions?

On the first matter, while it is clear that the president of the Court is adamant in his legal stance, it must be asked where the members appointed by the president of the Republic, and those elected by parliament, stand.  Currently, of the 17-member body, two were elected by parliament and nine appointed by President Gül. The Court’s decisions concerning the Twitter-block and HSYK bill demonstrate that it is determined to fulfill its duties in defense of the constitutionality of the laws. Kılıç’s speech has further underlined that the Court will maintain its stance.

Thus, it is clear that the Prime Minister Erdoğan cannot sway the Court. Indeed, in 2012, it demonstrated its independence when it ruled that Abdullah Gül could stand for reelection as president, in defiance of what was known to be Erdoğan’s aspiration. That was the first time that the Court, which the AKP had redesigned after the 2010 referendum, defied the prime minister. Undeniably, the Court has become a check on Erdoğan’s ambitions.

Since Erdoğan does not possess the necessary pull within the Court, he can be expected to be increasingly tempted to bypass its findings.  In fact, in anticipation of facing opposition to the HSYK bill, the government voiced a pre-emptive consideration of circumventing the Court by means of a potential referendum on changes to the Constitution.  While such developments remain speculative, an elusive practice is already underway and is exemplified by the government’s reaction to the Court’s Twitter ruling.

At first, the AKP claimed that it would only have to unblock Twitter for the 3 complainants.  Then, Erdoğan argued that he accepts, but does not have to respect, the Court’s ruling.  Eventually, Erdoğan stated, on April 12, that the government would pursue Twitter on grounds of ‘tax evasion’.

Clearly, the AKP, or rather Erdoğan in particular, is not keen on backing down, and is likely to remain defiant towards any of the upcoming decisions that are deemed unsatisfactory.

CONCLUSIONS: The determination of Turkey’s Constitutional Court to fulfill its role in upholding the rule of law, in spite of this putting it at odds with the mercurial prime minister, has unexpectedly presented a check on Erdoğan’s ambitions; but it has also raised the question of how the AKP government is going to react. The reactions of government officials to Mr. Kılıç’s speech in defense of the rule of law are ominous; they show that the government is going to seek to circumvent and neuter the Court if it continues to maintain its independent stance.

What is problematic, however, is that the particularly politically charged speech of its president has sustained the impression that the rulings of the Court are somehow related to the power struggle between the AKP and the Gülenists, with the AKP government accusing the Court of having a political agenda, and to the alleged political ambitions that Kılıç might harbor.

These accusations resonate not least because the Constitutional Court of Turkey has always played a political role, but also because its rulings by definition have political implications. The recent rulings of the Court raise hopes that it can be a true bastion of the rule of law. But if Haşim Kılıç were to venture into the presidential race, those who have called the integrity of the Court into question will appear to be vindicated. That would be regrettable.

Hendrik Müller holds a Bachelor’s degree in European Law as well as a Master’s degree in International Law from Maastricht University.

Published by The Turkey Analist on 30 April 2014