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Courts and constitutional
transition: Lessons from the
Turkish case
Aslı Bâli*
Judicial independence is understood as a cornerstone of rule-of-law and, as such, an essential
component of democratic transitions. But in contexts of democratization, the definition of
judicial independence may require refinement to take account of the special challenges of
moving from the rule of the few to the rule of the many. In particular, an independent judiciary may stall legislative and constitutional reform by engaging in a form of constitutional
review designed to shield elite preferences from democratic reversal. This article explores this
problem through a detailed examination of a recent set of controversial constitutional cases
in Turkey to illustrate the risks of a narrow definition of judicial independence and explore
the appropriate balance between autonomy and accountability of the judiciary in periods of
democratic transition or democratic consolidation.
Turkey has been identified both locally and internationally as a potential paradigm
for democratizing political transition in the Arab world. In particular, the capacity of
the Turkish political system to conduct free and fair elections with the participation
of a moderately Islamist political party has occasioned interest in the country as a
local model for democratization and constitutional transition. Moreover, the relative
increase in the popularity of the country with Arab publics1 has rendered the Turkish
“model” more plausible as one that might be deemed influential by Arab reformists.
Unfortunately, invocations of the Turkish political system in the context of transitions
underway in the Arab world risk overlooking important aspects—and limitations—of
the model in question.
In what follows below, I focus on one particular lesson from the Turkish case—the
counterintuitive obstacles to constitutional transition sometimes posed by highly
*
Assistant Professor of Law, UCLA School of Law. Email: [email protected]. Hilal Temel provided excellent
research assistance.
1
For instance, Turkey’s prime minister was ranked among the most popular leaders in a public opinion poll of the Arab world conducted by Zogby International and the Brookings Institution. See 2010
Arab Public Opinion Poll, Brookings Institution, Aug. 5, 2010, available at http://www.brookings.edu/
reports/2010/0805_arab_opinion_poll_telhami.aspx.
I•CON (2013), Vol. 11 No. 3, 666–701doi:10.1093/icon/mot025
Courts and constitutional transition: Lessons from the Turkish case
667
autonomous, elite-aligned apex courts. On the one hand, as the work of such scholars as Ran Hirschl suggests, independent constitutional courts may be an important
mechanism by which elites threatened by democratic transition guard privileges and
distort political process. On the other hand, there is also good reason to deem judicial independence an important value in democratic systems. This article draws on
the Turkish case to suggest that the relationship between judicial accountability and
judicial autonomy during periods of transition deserves separate consideration precisely
because the general benefits of judicial independence may come with very particular costs at specific junctures in democratizing transitions. Countries like Turkey and
Egypt,2 that introduced apex courts in their constitutional systems and then undertook subsequent exercises in democratic consolidation, offer important lessons in thinking through these particular costs and benefits. This article seeks to unpack some of
those lessons through a detailed examination of the political origins of the Turkish
Constitutional Court (the TCC), its jurisprudential trajectory and three particularly
striking constitutional court cases and their aftermath. This detailed constitutional
ethnography3 of the TCC will then serve as the basis to draw some preliminary lessons
concerning the appropriate definition and scope of judicial independence in periods of
democratic transition.
In the following sections, this article will first discuss the political context for the
creation of the TCC during a period of constitutional reform and revision in the
1960s. Next, the article will consider the trajectory of decisions by the Court in cases
involving the vexed relationship between religion and state in the Turkish constitutional context. After a close reading of the TCC’s opinions in three recent controversial cases, the next section will turn to a consideration of the political aftermath of
the Court’s activism, particularly by examining a set of constitutional amendments
adopted by referendum that were designed to alter the composition of the Court. In the
final section, the paper will examine preliminary lessons in constitutional design concerning the balance between judicial autonomy and judicial accountability in periods
of democratic transition.
1. Origins of the Turkish Constitutional Court
Turkey began the process of democratization in the 1950s when it introduced multiparty elections. But alongside a record of regular, competitive elections, Turkey has
2
3
Egypt SCC has evidenced the potential challenges in its recent decision to annul the parliamentary elections and dissolve the first post-Mubarak parliament. See David Kirkpatrick, Blow to Transition as Court
Dissolves Egypt’s Parliament, N.Y. Times, June 14, 2012. The collusion between the high judiciary and the
military authorities in the dissolution of the Egyptian parliament seems consistent with Ran Hirschl’s
observation that constitutional courts may serve as mechanisms of elite preservation in the face of democratic, majoritarian change. See Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New
Constitutionalism (2004).
This term was usefully developed by Kim Scheppele to describe a qualitative, context-specific method of
case study as a basis for developing broader theoretical insights in comparative constitutionalism. See
Kim Scheppele, Constitutional Ethnography: An Introduction, 38 Law & Soc’y Rev. 389 (2004).
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I•CON 11 (2013), 666–701
also experienced punctuated interruptions to ordinary civilian governance in the
guise of military coups or softer forms of military intervention. Fraught military–
civilian relations led to breakdowns in democratic governance in 1960, 1971, 1980,
and 1997.4 In addition, underlying social cleavages that were present at the founding
of the republic—particularly over questions of religious and ethnic identity—have
erupted on a recursive basis in the ordinary politics of the country, frequently provoking an anti-democratic backlash. The most common form of this backlash has been
the closure, on constitutional grounds, of political parties that are deemed to pose a
threat to the republic because their platforms allegedly reflect commitment to either
political Islam or separatist Kurdish nationalism.
As a result of these and other factors, in the over 60 years since Turkish demo­
cratization was initiated, the country has not accomplished democratic consolidation.
Moreover, the TCC, often heralded as evidence of Turkey’s commitment to rule of law
and rights-based government, has been one of the principal mechanisms for effectuating the forms of political crackdown that have retarded democratic consolidation.
Particularly through its remarkably active docket of party closures, the Court has distinguished itself among peer institutions as a mechanism for narrowing the arena of
permissible political participation. In so doing, the TCC for decades held at bay persistent demands for political inclusion from Turkey’s religiously conservative rural
periphery and ethnic Kurdish communities. Turkey has now entered a new phase of
potential democratic consolidation with at least some of these communities successfully gaining admission to electoral politics. Unsurprisingly, the TCC has emerged as
4
In 1960 and 1980, the Turkish military overthrew elected governments and introduced a period of military rule while it put in place what it viewed were the structural prerequisites to ensure that the return
to civilian rule would respect the core ideological commitments of republican elites. To avoid the obvious
anti-democratic implications of direct intervention, the military also developed more indirect techniques
to disrupt or reset civilian governance. The coup of March 12, 1971 was known at the time as the “coup
by memorandum.” The military delivered an ultimatum to the prime minister to restore law and order in
accordance with Kemalist principles or face military intervention. The prime minister resigned and was
replaced by a military-selected civilian leader who was tasked with selecting a cabinet of technocrats from
outside of the political establishment to carry-out a military-backed program of reforms. For a detailed
discussion of these events, see Erik J. Zürcher, Turkey: A Modern History 258–263 (2005). Similarly, in
1997, the military intervened indirectly, in what was described in the Turkish media as a “postmodern
coup.” This time, the military used a press conference to issue an ultimatum to the governing coalition,
resulting once again in the resignation of the sitting prime minister. See Haldun Gülalp, Political Islam in
Turkey: The Rise and Fall of the Refah Party, 89 Muslim World 22, 39–40 (1999). Not included in the traditional list of military interventions is a less successful effort in 2007, which failed to unseat the targeted
prime minister. The attempted intervention this time was described as an “e-coup” because the military
posted a warning to the government on its website, prompting early elections. See Ömer Taşpınar, The Old
Turks’ Revolt, Foreign Aff., Nov.–Dec. 2007, at 114, 115 (2007). The early elections returned the targeted
party to power with an even stronger electoral mandate, a rebuke that signaled an unwillingness on the
part of Turkish society to countenance an ongoing role for the military in ordinary governance. The significance of the events of 2007 are discussed in Section 2 below. For the purposes of this article, the 2007
intervention is of greater interest than all prior military interventions precisely because it brought to an
end the period of direct or indirect military rule, forcing the Kemalist state elites to find a replacement
“guardian” of their ideological commitments. That substitute guardian of Kemalist republican commitments proved to be the Turkish Constitutional Court.
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Courts and constitutional transition: Lessons from the Turkish case
a key arena of contestation. The remainder of this section will canvass the development and trajectory of the TCC before turning, in Section 2, to a close reading of the
three decisions that triggered the current wave of constitutional transition underway
in Turkey.
The first constitution adopted by the Turkish republic was drafted in 1924 by the
Grand National Assembly (GNA), which was at the time dominated almost entirely
by the political party—Halk Firkasi or the People’s Party (PP) founded by the nation’s
leading statesman at the time Mustafa Kemal, known as “Atatürk.” The initial constitution included references to Islam that were stripped from the text by constitutional
amendment in 1928, since which time the republic has remained officially laïk (secular). By the early 1930s, Turkey entered into an official period of single-party rule and
Atatürk built on the amended constitution with reforms that consolidated secularism. Finally, in 1937 the principle of laïklik as one of the core characteristics of the
republic was enshrined in Article 2 of the Turkish Constitution. The secularism introduced under one-party rule in the late 1920s and 1930s has remained a hallmark of
Turkish constitutionalism since that time.5
Despite the fact that the 1924 Constitution was promulgated under semi-authoritarian conditions, it has stronger liberal credentials by virtue of civilian authorship
than the subsequent two constitutions, both promulgated by military elites following
coups against elected civilian governments. The 1961 Constitution was the product
of the May 27, 1960 military coup, which overthrew the elected government led by
the populist Democratic (Demokrat) Party (DP). The DP had previously come to power
by defeating the Republican People’s (Cumhuriyet Halk) Party (CHP, the successor to
Atatürk’s PP) and a decade of DP-dominated electoral politics had come at a significant cost to the state elites formed prior to the introduction of multi-party politics.6
The post-coup 1961 Constitution was drafted by a mixed constituent assembly
comprised of two wings: the military council in one and a group of civilian representatives, drawn primarily from the CHP and aligned with the military elite, in the
other. Representatives from the overthrown DP were completely excluded from the
process and while the two wings of the assembly were given equal voting powers,
their political alignment meant that the Constitution was the product of consensus
between military and state elites.7 The 1961 Constitution created, for the first time, a
constitutional court, and introduced judicial review together with a bill of rights and
measures to strengthen the independence of the judiciary. The goal of the constitutional exercise was to introduce checks on majoritarianism through effective judicial
guarantees.
The origin story of the TCC, which began hearing cases in 1962, is tied to an elite
strategy to entrench and defend privileges against democratic reversal through courts
and constitutional provisions. In other words, the TCC is a classic example of what
5
6
7
Ergun Özbudun & Ömer Faruk Gençkaya, Democratization and the Politics
10–26 (2009).
On the record of DP rule, see Zürcher, supra note 4, at 221–240.
Özbudun & Gençkaya, supra note 5, at 14–19.
of
Constitution-Making
in
Turkey
670
I•CON 11 (2013), 666–701
Ran Hirschl has described as elite hegemonic preservation through juristocracy.8 On
the other hand, the TCC was not conceived as a liberal instrument for the protection
of individual rights. Indeed, individuals did not have standing to bring cases before the
Court; the only parties able to bring challenges to legislative action were agencies of
the executive branch, state prosecutors, and political parties. In this sense, the powers of judicial review in the Turkish context were limited to protecting the interests of
state elites from the powers of democratically elected legislators.
The 1982 Constitution—which followed the September 12, 1980 military coup—
was drafted by an even less representative assembly comprised of the coup leaders and
a civilian consultative assembly entirely appointed by the National Security Council
(NSC). Moreover, unlike in the case of the 1960–1961 Constituent Assembly, the NSC
had final authority over the content of the draft. In the end, the 1982 Constitution
did little to alter the powers of the TCC save clarifying a limitation on the powers of
judicial review and modifying the appointments procedure to afford the executive
together with the military a larger role in selecting justices. The new Constitution
made clear that the TCC had no authority to hear substantive challenges to constitutional amendments—the Court’s power of judicial review of constitutional
amendments was limited to challenges alleging a flaw in the process by which the
amendment was adopted.9 In terms of appointments, under the 1961 Constitution,
a majority of the judges were selected by the other high courts, with some role also
accorded to both houses of parliament and to the presidency.10 The 1982 Constitution
all but severed the representative branches’ ties to the appointments procedure for
the TCC. The Senate was abolished and the unicameral parliament was accorded no
role in appointments. The President, by contrast, was empowered to choose all eleven
regular and four alternate judges from among the candidates nominated by the other
high courts, this time with a much larger role accorded to the high military courts.11
Hirschl, Juristocracy, supra note 2.
The change in the language of Art. 148 in the 1982 Constitution was a deliberate rebuke to earlier efforts
by the TCC to review constitutional amendments. In 1971, a constitutional amendment had established
that the TCC was only permitted to hear challenges to the form and not the substance of constitutional
amendments, but the Court had interpreted this provision liberally agreeing to hear substantive challenges to amendments on the grounds that they conflicted with core characteristics of the republic enumerated in Art. 2 (declaring the republic a national, democratic, secular, and social state government by
the rule of law). In 1982, the National Security Council clarified that it intended to narrow the grounds
of review of constitutional amendments to strictly procedural challenges.
10
The higher echelons of the judiciary that participated in TCC appointments were the Court of Cassation
(Yargıtay), the Council of State (Danıştay), and the Court of Accounts (Sayıştay) with an additional, indirect appointments role for the Military Court of Cassation (Askeri Yargıtay). Together, these courts selected
eight of the regular members of the TCC. In addition, the Grand National Assembly (lower house of
parliament) chose three appointees, and the Senate (upper house) and the President each chose two.
11
Under the 1982 Constitution, candidates were nominated by the Court of Cassation, the Council of
State, the Military Court of Cassation, and the Supreme Military Administrative Court (Askeri Yuksek Idare
Mahkemesi). The Court of Accounts was removed from the appointments process and in addition to the
supplementary military powers of appointment, the Supreme Board of Higher Education (Yuksek Ögretim
Kurulu or YÖK) was also authorized to nominate candidates. Because the NSC was represented on the board
of the YÖK in this period, the YÖK nominees were also perceived as candidates selected by the military.
8
9
Courts and constitutional transition: Lessons from the Turkish case
671
Further, the President did not gain office by direct election but through a parliamentary selection process with an expectation that the National Security Council
would play a consultative role in the selection. Thus the role of the presidency in
the appointment of justices was expected to further enhance the military’s role in
the appointments process. Indeed, when the 1982 Constitution went into effect the
presidency was occupied by the leader of the military coup, Kenan Evren, who retired
from the military in order to be appointed the first president following the transition
to civilian government in 1983. Evren’s role in appointing TCC justices from 1983 to
1989 is an important factor in assessing the composition of the Court.
The political origins of the TCC and the substantive provisions of the two constitutions on which its powers were based help explain the trajectory that the Court has
taken, particularly under the military-authored 1982 Constitution. In the particular
area of the regulation of religion, the Court has been especially active in aligning itself
with state elites. The military and civilian bureaucracy of the state—together with the
social classes that supported them in the principal cities of the republic—demanded
strict adherence to the founding republican commitments of nationalism and secularism. The former principle gave rise to party dissolutions on the grounds of alleged
threats to national unity or territorial integrity associated with advocacy for the rights
of Kurdish communities in Turkey.12 The latter principle—of “assertive secularism”—
also translated into a basis for party closures by the TCC, enforcing strict restrictions
on invocations of religion by political actors.13
During the short period of multi-party politics preceding the creation of the TCC,
party closures on constitutional grounds were relatively rare and were handled
At least four Kurdish parties have been banned on this basis since the resumption of civilian governance
following the 1980 military coup. Those four parties are the People’s Labor (Halkın Emek) Party (closed in
1993), the Democracy Party (closed in 1994), the People’s Democracy (Halkın Demokrasi) Party (closed
in 2003), and the Democratic Society (Demokratik Toplum) Party (closed in 2009).
13
The term “assertive secularism” was coined (at least for the Turkish context) by Ahmet Kuru. See Ahmet
Kuru, Secularism and State Policies Toward Religion: The United States, France and Turkey (2009). Kuru’s
definition is that the state actively excludes religion from the public sphere, adopting a comprehensive
doctrine of secularism that requires more than separation of religion and state; it is premised on the
stronger requirement of subordination of religion to the state. This doctrine also conceives of secularism
as a worldview to be inculcated in society by a pedagogical state that enlightens its citizenry and guides
them away from views deemed threatening to the political project of the republic. This idea of a pedagogical state, in turn, lies at the heart of the unwillingness of Turkish civilian and military state elites to
turn governance over entirely to the elected branches. Along these lines, the Venice Commission—the
Council of Europe’s “Commission for Democracy through Law”—has embraced the view that Turkey
has a “tutelary” political system in which democratically elected institutions share power with unelected
authorities such as military authorities, elites in the state bureaucracy and the high judiciary. For ex­ample,
the President of the Venice Commission remarked in November 2010 that: “the 1982 Constitution established a very coherent system of what is called by political scientists a tutelary democracy. This means
a system, which seems based on democratic principles but where the democratically elected organs are
placed under a kind of guardianship of the military, the high bureaucracy and the highest courts. Such
a system cannot be regarded as genuinely democratic.” See Gianni Buquicchio, President of the Venice
Commission of the Council of Europe, Democratisation Process in Turkey in the Light of a New Constitution,
Nov. 2, 2010, available at http://humanrightseurope.blogspot.com/2010/11/venice-commission-president-turkey.html.
12
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by ordinary criminal courts.14 Once the TCC was established, the rate of party dissolutions accelerated.15 Article 24 of the 1982 Constitution, which reproduces the
language of Article 19 of the 1961 Constitution, specifies that no one may exploit religion or religious sentiment for political ends, and that all efforts to base social, political, economic, or legal order on religious rules are prohibited.16 In addition, Article
68 provides that political parties may be subjected to closure by reason of conducting
anti-secular activities.17 On the basis of these provisions, the TCC has subjected five
parties to dissolution on grounds of anti-secular activities.18 Two of these five parties
were among the parties that had garnered the highest proportion of electoral support
and seats in parliament in the election preceding their dissolution.19
The most recent instance of party closure on the grounds of anti-secular activities was the dissolution of the Virtue Party in 2001. Two successor political parties
emerged out of that dissolution: one is the Felicity (Saadet) Party, which was formed
by the more conservative wing of the banned Virtue Party and has remained a marginal party, never gaining a single parliamentary seat in the three general elections
since its founding. The second successor is the Justice and Development Party (Adalet
ve Kalkınma Partisi, known in both Turkish and English by its acronym, the AKP),
founded by representatives of the more reformist trend among Virtue Party adherents.
In contrast to the Felicity Party, the AKP has garnered major victories in all three
of the general elections since its formation in 2002. Most recently, the AKP became
the first party in the history of Turkish multi-party elections to earn close to an
outright majority of the popular vote.20 The success of the AKP in uniting multiple
For instance, the Nation (Millet) Party was closed by the Ankara Criminal Court (Ankara Asliye Ceza
Mahkemesi) on Jan. 27, 1954. The grounds for party closures prior to the creation of the TCC were very
much consistent with subsequent TCC practice. The principal grounds for closure have been and remain
allegations of advocacy for political Islam or separatist Kurdish nationalism. See Ödül Celep, The Political
Causes of Party Closures in Turkey, Parliamentary Affairs 1 (2012).
15
The practice of party closure referenced here does not include the extra-constitutional closure of all political parties (some 18 parties) by the Turkish military following the 1980 military coup. For the complete
list of parties closed by the military junta regime, see Celep, The Political Causes of Party Closures in Turkey,
supra note 14, at 9.
16
Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, art. 24 (Turk.).
17
Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, art. 68 (Turk.).
18
The parties in question are: The National Order (Milli Nizam) Party (1971), the Peace (Huzur) Party
(1983); the Freedom and Democracy (Özgürlük ve Demokrasi Partisi, or ÖZDEP) Party (1993); the Welfare
(Refah) Party (1998); and the Virtue (Fazilet) Party (2001). In the case of ÖZDEP, in addition to anti-secular activities the party was also accused of adopting a platform that threatened the territorial integrity
and national unity of the country.
19
At the time of dissolution, the Welfare Party was the largest party in parliament, having won over 20
percent of the vote in the 1995 general election and garnered nearly one-third of parliamentary seats
forming the largest single bloc in the GNA. The Virtue Party, formed after the dissolution of Welfare,
inherited that party’s seats in parliament. In the next general election of 1999, the party won 21.3 % of
the vote and 111 (of 550) seats in parliament, making it the third largest political party in the GNA at the
time of its dissolution in 2001.
20
The AKP won 49.83 % of the popular vote, resulting in 327 seats in the GNA. The next most successful
political party, the Republican People’s Party (CHP) earned 25.98 % of the popular vote and 135 seats in
the GNA. The election results were posted by the Supreme Election Board (Yüksek Seçim Kurulu) on June
12, 2011 and are available at http://www.ysk.gov.tr/ysk/index.html. 14
Courts and constitutional transition: Lessons from the Turkish case
673
constituencies of the center-right of the Turkish political spectrum, including followers of the earlier Virtue Party but also adherents of other conservative parties such
as the True Path (Doğru Yol) Party and the Motherland (Anavatan) Party, has made it
a more formidable political actor than those previously challenged by state elites or
the high judiciary. That being said, the several rounds of confrontation between the
AKP and the TCC, acting in coordination with the Turkish military, reveal that judicial independence defined as full autonomy from elected branches of government may
produce significant obstacles during periods of democratizing transition, regardless of
the strength of the electoral mandate underlying the reform agenda pursued by the
governing party. This is particularly the case if the “independent” judiciary is locked in
a set of strong alliances with elites and unelected branches of government that experience democratizing reforms as threats to their privileges.
2. Judicial activism versus democratic consolidation?
In the first general election following the formation of the AKP, the party won a
resounding plurality, giving it the majority of seats in the Turkish Grand National
Assembly (the GNA) and placing the party leader, Recep Tayyip Erdoğan, in office
as prime minister by 2003. The first term in which the AKP governed, from 2002
to 2007, represented a relatively smooth cohabitation between the elected branches
of government and the military, judiciary, and civilian bureaucratic elites. In the
meantime, the AKP oversaw a period of rapid political and economic transformation
leading to significant economic growth, urban renewal, penal code reform,21 consolidation of civil code reforms,22 and the initiation of official accession negotiations with
the European Union.23
The sustained economic growth and political stability of the AKP’s first five years
in office were a marked contrast to the economic turbulence and rapid succession of
coalition governments that had plagued the country in the five years prior. Further, the
Susan Sachs, Turkey Approves Revision of Penal Code, N.Y. Times, Sept. 26, 2004, available at http://www.
nytimes.com/2004/09/26/international/europe/26CND-TURKEY.html?_r=0.
22
These reforms were passed in 2001 and introduced comprehensive reforms to the legal status of women,
including marital rights, reproductive rights, and protection from violence and predation. Though the
reforms preceded the AKP’s rise to power in 2002 the task of giving effect to the new laws and enforcing protections fell to the AKP and it developed a strong record of advancing implementation of these
reforms in its first term. See, e.g., Turkish Civil and Penal Code Reforms from a Gender Perspective: The Success
of Two Nationwide Campaigns (Women for Women’s Human Rights 2005), available at http://dl.dropbox.
com/u/64736171/CivilandPenalCodeReforms.pdf.
23
Formal negotiations on Turkey’s accession to European Union membership were initiated on Oct. 3,
2005 on the grounds that Turkey had fulfilled the Copenhagen political criteria on accession following
civil and penal code reforms. The first negotiations were on six chapters of the 35 acquis communautaires
with which Turkey would have to comply to be admitted as a member. The framework for these initial
negotiations is publicly available at http://ec.europa.eu/enlargement/pdf/st20002_05_tr_framedoc_
en.pdf. Negotiations have since stalled as a result of the reluctance of key constituencies in Europe to
grant Turkey membership and a corollary decline in the rate of reforms undertaken by Turkey with a
view to complying with EU criteria.
21
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AKP’s ambitious reform agenda in the areas of fiscal responsibility, banking sector regulation, and political liberalization in line with European Union requirements garnered
widespread praise from Turkish business groups, liberal intellectuals, and external
observers.24 By contrast, the party’s second term in office witnessed a slowdown and,
in some instances, even a reversal of these trends. The dividing line that separated the
party’s first term from its second was a set of conflicts with the Turkish military and the
opposition CHP party, representing traditional state elites, staged through challenges to
AKP policies before the TCC. In particular, one TCC decision in 2007 and then a pair of
related decisions in 2008 represented significant domestic obstacles in the path of AKP
reforms. Though the AKP had been widely regarded as initiating a period of democratic
consolidation for a country long stalled in a process of democratizing transition, the
party never returned to a strong embrace of its original reform agenda after the turning point of the 2007–2008 TCC challenges to its activities.
2.1. Judicial intervention in presidential politics
The first of the challenges to the AKP emerged in 2007, when a crisis that had been
brewing between the AKP and the Turkish military since 2005 came to a head.25 In its
first term, the AKP held the premiership, under Erdoğan and a majority in parliament,
but not the presidency. The President of the Republic was retired TCC Chief Justice
Ahmet Necdet Sezer, an avowed secularist and a persistent critic of the AKP. President
Sezer had vetoed numerous AKP legislative proposals, participated in pro-secular rallies and thinly veiled protests against the AKP, and he had warned against the threat
of Islamization during his term in office.26 But with his second term expiring in 2007,
the AKP majority in parliament would be in a position to name his successor.
The AKP’s nomination of its candidate to accede to the presidency, Abdullah
Gül—a political moderate known to be religiously observant—resulted in the mobil­
ization of massive demonstrations against the threat allegedly posed by the AKP to
secularism in Turkey.27 The ensuing confrontation between the AKP and the military,
For a discussion of this record, see Deniz Bingol McDonald, The AKP Story: Turkey’s Bumpy Reform Path
Towards the European Union, 33 Soc’y & Econ. 525 (2011).
25
The period from 2005 to 2007 had been marked by military-backed anti-AKP public demonstrations
organized by ultranationalist groups claiming that the AKP harbored an anti-secular agenda that was
threatening to Atatürk’s legacy. For instance, one pro-secular rally attended by the Turkish generals, the
then-sitting president and university rectors was in response to the shooting of a pro-secular judge that
was attributed at the time to someone suspected of being pro-AKP. See Secular Worries, The Economist, May
25, 2006, available at http://www.economist.com/node/6980174. The shooting was later claimed to
have been a “false flag” operation by ultranationalists seeking to portray the AKP as fanatically anti-secular. See Büşra Erdal, Ergenekon Suspect Arslan Contradicts Tekin Over Link, Today’s Zaman, Oct. 21, 2009.
26
See, e.g., Ercan Yavuz, Former President Sezer’s Vetoes Still Blocking Turkey, Today’s Zaman, May 21, 2009, available at http://www.todayszaman.com/newsDetail_getNewsById.action?load=detay&link=175904 (“Sezer .
. . was the president who issued the highest number of vetoes after the Sept. 12, 1980 military coup.”).
27
Abdullah Gül’s Presidential Ambitions Have Long Alarmed Turkey’s Secular Establishment, BBC News, Aug.
28, 2007, 5:11 p.m. GMT, available at http://news.bbc.co.uk/2/hi/europe/6595511.stm (“[S]ecularists
dislike the fact that Mr Gul’s wife wears the Islamic headscarf.”); Huge Rally for Turkish Secularism, BBC
News, Apr. 29, 2007, 3:33 p.m. GMT, available at http://news.bbc.co.uk/2/hi/6604643.stm. 24
Courts and constitutional transition: Lessons from the Turkish case
675
which was determined to prevent what it viewed as an Islamist politician from becoming president, drew in the TCC. The Court was pressed into service to prevent the AKP
from translating its parliamentary majority into the selection of Gül as President. The
trouble, however, was the absence of constitutional grounds on which to oppose Gül’s
accession to the office.
As of 2007, the Turkish Constitution provided for election of the president
through multiple rounds of parliamentary voting rather than direct popular election. Every president of the republic following the transition to civilian government—that is, every president selected after Kenan Evren, the military coup leader
who served as the first “civilian” president of the republic from 1983 to 1989—was
selected by this indirect parliamentary selection process. The procedural requirements for the appointment of the president under the rules in place as of 2007
were as follows: Any candidate receiving the support of two-thirds of Parliament
in either the first or second round of voting is elected. If no candidate receives twothirds of the vote, then in the third and, if necessary, fourth rounds of voting, any
candidate that receives a simple majority of votes is elected.28 In light of the AKP’s
share of parliamentary seats following the 2002 election, the party clearly had sufficient support to have Gül elected by simple majority in the third round of voting
under these rules.
The opposition party in parliament, the CHP, faced with the reality that it could not
block Gül’s candidacy under the voting rules opted for a different strategy. The CHP
decided to boycott the first round of voting in parliament, claiming that absent their
participation the vote would be invalid on the basis that presidential selection required
a super quorum of at least two-thirds of deputies to participate in the vote.29 No such
super quorum rule had previously been recognized, and the 1982 Constitution contained no quorum provisions other than Article 96, specifying the requirements for an
ordinary quorum of one-third of the full membership of the parliament. Nor did the
CHP’s proposed interpretation have support in previous practice. For instance, Turgut
Özal succeeded Kenan Evren as president in 1989 despite the fact that 155 members
of the then 450-member parliament boycotted the vote, resulting in attendance by
The structure of the rules suggests that the expectation was that multi-party elections would yield a fractured parliament in which no party would control either a two-thirds majority or even a simple majority
of the seats. Accordingly, with coalition governments in mind, these rules would place the candidate
able to garner the most support from two or more parties in office. The presence of a 10 % electoral
threshold—requiring that parties seated in parliament garner a minimum of 10 % of the national vote—
coupled with the AKP’s remarkable political success at the polls produced the exceptional result that only
two parties earned seats in parliament in 2002, with all of the remaining parties capturing less than
10 % of the vote. As a result, the presidential selection rules made it possible for a single party to select
its preferred candidate. For more background on these procedural rules, see Özbudun & Gençkaya, supra
note 5, at 97–103.
29
The normal legislative quorum necessary for a vote to be valid is 184; the CHP argued that voting for
presidential selection should require a super quorum of two-thirds of parliamentarians to be present
(that is, 367 votes). On the ordinary quorum, see Özbudun & Gençkaya, supra note 5, at 97. On the CHP’s
position concerning a super quorum, see Army “Concerned” by Turkey Vote, BBC News, Apr. 28, 2007,
available at http://news.bbc.co.uk/2/hi/europe/6602375.stm.
28
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I•CON 11 (2013), 666–701
just under two-thirds of MPs.30 Indeed, the CHP’s interpretation would mean that
opposition groups unable to seat their own preferred candidate would be able to indefinitely postpone or derail the appointment of another candidate so long as they could
persuade one-third of MPs to boycott the vote. Most constitutional lawyers agreed
that the drafting history of the constitution was, to the contrary, designed to minimize
delays in the presidential selection process and would not support any argument suggesting that one-third of parliamentarians were accorded a veto power over majoritarian selection procedures.31
The CHP’s strategy to block Gül’s election was only one prong of a multi-pronged
effort to prevent the AKP from electing its candidate. The Turkish military voiced
its opposition to Gül’s candidacy more indirectly, by posting a statement on its website immediately following the first round of voting. The posting was designed as a
reminder that the military’s role as the guardian of the Republic’s fundamental values empowered the armed forces to prevent actions that might undermine secularism. The internet warning amounted to an official statement that the army deemed
Gül inadequately secular to assume the office of the presidency. As such, the military
statement was dubbed an “e-coup” by the Turkish media.32 Emboldened by the military, but seeking a civilian mechanism to block Gül from becoming president, the CHP
initiated a challenge to the first round of balloting before the TCC. Despite the absence
of grounding for the CHP’s argument in either constitutional text or past practice
under the 1982 Constitution, the TCC agreed to hear a challenge to the constitutionality of the first round of voting over Gül’s candidacy.
On May 1, 2007, the TCC issued its judgment finding 8 to 3 in favor of the CHP’s
argument and annulling the results of the first round of balloting. The TCC held
that the decision to proceed with the first round of balloting despite the CHP boycott
amounted to an unconstitutional change in the procedural rules governing the selection of presidential candidates.33 The decision was based on a reading of Article 102
of the Constitution as requiring not only that in the first two rounds of balloting a
successful candidate gain the vote of two-thirds of all members of parliament, but
also, implicitly, that a quorum of two-thirds of parliamentarians be present for the
Though the boycott of Özal’s election as president remained sufficiently memorable to be included in his
obituary, there was never a suggestion that his election by a simple majority was sufficient to earn him
the presidency. See Obituary: Turgut Özal, The Independent (UK), Apr. 19, 1993, available at http://www.
independent.co.uk/news/people/obituary-turgut-ozal-1456191.html.
31
See, e.g., Ergun Özbudun, Anayasa Mahkemesi ve Demokrasi [Constitutional Court and Democracy], Zaman,
Jan. 17, 2007 (Turk.).
32
Cengiz Çandar, Post-modern darbe [Post-Modern Coup], Sabah, June 27, 1997, available at http://www.
webcitation.org/5uRjkSIYl (Turk.).
33
Specifically, the TCC found that: “The decision taken by the GNA on April 27, 2007 regarding the appropriate quorum required to move forward with the balloting in the first round of the selection process for
the 11th President of the Republic represents a change in the rules of procedure, which we deem unconstitutional.” Anayasa Mahkemesi [Constitutional Court], Esas No. 2007/45, Karar No. 2007/54 (Resmi
Gazete, Jun. 27, 2007, No. 26565) (Turk.) (my translation). This view is based on a reading of Art. 102
of the Turkish Constitution, stipulating that “the President of the Republic shall be elected by a two-third
majority of the total number of members of the Turkish Grand National Assembly and by secret ballot.” 30
Courts and constitutional transition: Lessons from the Turkish case
677
balloting to be valid. The majority opinion neither addressed contrary practice in previous presidential elections conducted under the same provision nor did it ground its
departure from the ordinary meaning of the text of Article 102 by appeal to the drafting history of the provision or other supplementary materials that might support this
novel interpretation.
Among the three dissenting justices were both the President of the TCC, Tülay
Tuğcu—who retired shortly after the decision was published—and the then vice
president of the Court, Haşim Kılıç.34 In their unusually blunt, separate dissenting
opinions, both Tuğcu and Kılıç point out the inconsistency between the majority’s
position and the ordinary meaning and past interpretation of the content of Article
102. In addition, Kılıç offers a lengthy examination of the drafting history of the 1982
Constitution, pointing out that the ordinary quorum provisions of the Constitution
were deliberately adopted to put an end to opposition efforts to paralyze the legislature
through boycotts. Moreover, he notes that the drafters envisioned a presidential selection process that should last no longer than twenty days. By contrast, he argues, the
CHP’s interpretation of the rules—largely adopted by the majority—would produce
a stalemate of far longer duration and, by imposing a two-thirds quorum requirement, would exacerbate rather than alleviate the problems the drafters of the 1982
Constitution had sought to avoid.35
The TCC decision in 2007 marked the beginning of a series of judicial challenges
to the AKP’s electoral mandate. The TCC decision left the AKP at an impasse—they
would not be able to successfully nominate any candidate to the presidency despite
having a sufficient number of seats in parliament to elect a candidate under constitutional voting. So long as the CHP remained willing to boycott the first two rounds of
balloting there would be no way to proceed to the third and fourth rounds in which
the AKP’s majority would suffice to elect a candidate. On the other hand, an alternative CHP candidate would be unlikely to be elected even if the necessary super quorum
were present because the CHP could not muster a simple majority in favor of its candidate. In other words, the TCC decision produced a stalemate: for the first time since the
adoption of the 1982 Constitution, a party able to command a majority in parliament
would not be able to select a successor to an outgoing, term-limited president.
In the end, the AKP overcame this standoff by convening early elections. The party
would not ordinarily have chosen to go to elections since it had garnered such a high
Kılıç subsequently succeeded Tuğcu as President of the TCC in Oct. 2007. Sacit Adalı was the third dissenting justice. Each dissenting justice wrote a separate opinion underscoring their astonishment at the
majority’s interpretation of Art. 102.
35
The crux of the Kılıç dissent (summarized in the text above based on my translation) is found towards the
end of his opinion in the following passage:
Cumhurbaşkanlığı seçim sürecinin yirmi günde tamamlanmasını amaçlayan anayasakoyucunun
daha birinci turda 3/2 toplantı nisabı ile sistemi tıkayan bir modeli istemiş olması asla düşünülemez.
Toplantı nisabı (3/2) sağlanamadığı sürece 2., 3. ve 4. turların yapılması mümkün olmayacak, buna
ilişkin kurallar anlamsız, işlevsiz kalacak, seçimlerin derhal yapılmasının bağlı olduğu 4. tur hiçbir
şekilde gerçekleşmeyeceğinden fiili durumlarla sonuca gidilecektir….Daha seçimin başında üçte iki
toplantı nisabını aramak, 1961 Anayasası'nda sorun olmuş bir konuyu çözmek, kolaylaştırmak değil
daha da ağırlaştırmaktır. 1982 Anayasası'nı yapanların iradesi bu değildir.
34
678
I•CON 11 (2013), 666–701
proportion of the vote in 2002 that it had secured an unprecedented number of seats
in parliament. On the other hand, its parliamentary majority had been stifled by the
veto powers exercised by President Sezer and was now being entirely blocked by the
opposition party’s strategic boycott, supported by the TCC. When the “e-coup” issued
by the military to express its dissatisfaction with Gül’s candidacy is added to this
record, the AKP’s best strategy may have been to test its democratic mandate anew
in general elections.
Within two months of the TCC decision, the AKP convened early elections that
yielded over 80 percent voter turnout and a landslide victory for the party, dramat­
ically increasing its share of the national vote.36 Following its electoral victory, the
AKP not only renewed Abdullah Gül’s candidacy but also successfully passed (by referendum) a constitutional amendment providing for the direct election of presidential candidates by popular vote.37 The amendment did not affect Gül, however, who
was ultimately elected president in three rounds of parliamentary voting by a simple
majority on August 28, 2007.38
Though the outcome of the struggle over Gül’s presidential candidacy was ultimately resolved in favor of the AKP, the subsequent record of the party suggests that it
was shaken by the depth of resistance to its agenda from a coalition of actors including the Turkish armed forces, the high judiciary, and state bureaucratic elites exerting
their political power through CHP opposition politics. The role of the TCC was particularly troubling. A close examination of the majority opinion that annulled the parliamentary balloting over Gül’s nomination suggests that the Court adopted a weak and
implausible legal theory in an apparent effort to strengthen the position of those—
such as the CHP and the Turkish military—who opposed the AKP’s presidential candidate. Though the Court certainly enjoyed the autonomy from the elected government
to review its actions, there is reason to think that this level of judicial independence—
particularly in the context of strong alliances between the unelected branches of a
“tutelary” state—may serve to block rather than enable democratic consolidation in
a transitional context. In any case, the 2007 decision proved to be the precursor to an
Anayasa Mahkemesi [Constitutional Court], Esas No. 2007/45, Karar No. 2007/54 (Resmi Gazete, Jun.
27, 2007, No. 26565) (Turk.) (Kılıç, H. Karşıoy).
36
The AKP’s share of the national vote increased from 34.3 % in 2002 to 46.7 % in 2007. This translated
into a slight reduction in the number of seats the party held, however, because three parties cleared
the electoral threshold in 2007, leading to a three-way apportionment of seats instead of the two-way
proportionate distribution of seats between the AKP and the CHP in 2002. The AKP emerged from the
election with 341 of the 550 seats in the GNA, with the CHP and the National Action (Milliyetci Hareket)
Party (the MHP) gaining 112 and 71 seats respectively. For a discussion of the significance of the 2007
election, see Taşpınar, supra note 4, at 115. 37
Susan Frazer, Turks Vote “Yes” in Referendum on Electing Presidents by Popular Vote, Assoc. Press, Oct. 21,
2007.
38
In the end, Gül received one of the highest vote shares of any presidential candidate elected under Article
102 procedures, falling only 39 seats short of two-thirds support in the second round of balloting. See
Mavi Zambak, Tomorrow President Abdullah Gül Will be Elected, “Moderate” and “Islamic”, Asia News.it (Aug.
27, 2007), available at http://www.asianews.it/news-en/Tomorrow-president-Abdullah-Gul-will-beelected,-%E2%80%9Cmoderate%E2%80%9D-and-%E2%80%9CIslamic%E2%80%9D-10147.html. Courts and constitutional transition: Lessons from the Turkish case
679
even more fundamental challenge to the AKP subsequent to the reinforcement of its
electoral mandate in that year’s elections.
2.2. Democratic suppression by judicial coup
The increase in the AKP’s vote share in the 2007 elections was widely understood as
a direct measure of the loss of appetite for military interventionism in Turkish society.
This offered the AKP a unique opportunity to accelerate its reform agenda, particularly in the area of much-needed democratic reforms, including the promulgation of a
civilian constitution to replace the military-era 1982 Constitution.39 Shortly after the
election, the AKP appointed a five-member committee of Turkey’s leading constitutional law scholars to prepare an initial draft of a civilian constitution in line with the
EU’s “Venice Criteria” and conforming to Turkey’s international human rights treaty
obligations.40 By the fall of 2007, the committee submitted a draft to the government
that was a blueprint for a liberal and democratic political system, retaining the basic
commitments of Kemalism to secularism and territorial integrity but jettisoning the
authoritarian and state-centric elements of the 1982 Constitution.41 Unfortunately,
before this draft was ever submitted for parliamentary debate, it was shelved in the
midst of a controversy that erupted between the GNA and the TCC around a standalone constitutional amendment initiative undertaken by the AKP.
A broad spectrum of the AKP’s constituency was (and remains) deeply committed
to the lifting of the ban on the wearing of headscarves in universities and in public buildings. The very image of President Gül’s wife wearing a headscarf as the First
Lady seemed to signal that the time had come to reverse the long-standing ban and
afford religiously observant women the same rights to education and access to state
institutions as other citizens.42 Further, the fact that the National Action (Milliyetci
Hareket) Party (the MHP) had also gained parliamentary seats in the 2007 election
meant that the AKP was able to enter into a coalition on this one measure. Though
Support for a new constitution to replace the oft-amended but still illiberal 1982 Constitution predated
the AKP’s rise to power but was also strengthened by the AKP’s electoral victories. For a discussion of
the constitutional amendment packages that had liberalized the 1982 Constitution between 1987 and
2004, see Mehmet Fevzi Bilgin, Constitution, Legitimacy and Democracy in Turkey, in Constitutional Politics
in the Middle East 123, 123–146 (Saïd Amir Arjomand ed., 2008). On critiques of the illiberalism of the
1982 Constitution, see Özbudun & Gençkaya, supra note 5, at 31–96. 40
The mandate for the drafting committee included: expansion of individual freedoms, strengthening of
minority protections, removal of all remnants of the tutelary prerogatives of the military bureaucracy,
narrowing the powers of the presidency, expanding the powers of the legislature and liberalizing rules on
party closure. For a discussion of this mandate by the president of the committee, see Özbudun & Gençkaya,
supra note 5, at 103.
41
The complete text of the draft constitution was disseminated on the internet and is still available online in
Turkish. See Yeni Anayasa Taslağı (Tam metin 1) [New Constitution Draft (Complete Text 1)], NTV-MSNBC,
Sept. 13, 2007, 11:57 a.m. GMT, available at http://arsiv.ntvmsnbc.com/news/419856.asp?cp1=1 (Turk.).
42
Of course, the fact that Hayrünisa Gül wears a headscarf was symbolic of the reason Gül’s presidential candidacy was so hotly contested among civilian and military secular state elites. See Annette Grossbongardt, Turkey
Considers Candidate Gül: First Lady in a Headscarf?, Spiegel Online Int’l, Apr. 25, 2007, available at http://www.
spiegel.de/international/world/turkey-considers-candidate-guel-first-lady-in-a-headscarf-a-479380.html.
39
680
I•CON 11 (2013), 666–701
the MHP rejected most of the AKP’s reform agenda, it joined the AKP in opposing the
headscarf ban making it a tactical ally on this stand-alone question.43
Previous efforts at lifting the ban through legislation had been overturned by the
TCC; accordingly, the AKP sought to shift the terms of the debate through constitutional amendment. The headscarf ban at universities is not grounded in constitutional
text or legislative rule, but is rather based on administrative directives by the Supreme
Education Board acting in conjunction with university rectors. Historically, whenever
parliament sought to modify or lift this ban, the TCC annulled the legislation on the
basis of its strict interpretation of constitutional secularism, upholding the propriety
of the headscarf ban in key institutions such as government offices and universities.44
Because previous efforts grounded in ordinary legislation had failed, in February
2008, the AKP introduced two constitutional amendments, with the support of the
MHP. In addition to depriving the TCC of the argument that the headscarf ban was
inconsistent with the Constitution, the amendments would also be relatively immune
from judicial review since the TCC does not have the power of substantive review of
constitutional amendments. Under the proposal, Article 10 of the Constitution was
amended to extend the principle of equality before the law to the provision of all
Though it is beyond the scope of this article to offer a survey of the controversies over the headscarf
since the founding of the Republic, the following brief background offers important context. First, polls
consistently show that over 70 % of Turkish women and 65 % of Turkish men support the abolition
of the headscarf ban on university campuses. See Ali Çarkoğlu and Ersin Kalaycıoğlu, The Rising Tide of
Conservatism in Turkey 106 (2009) (citing survey results in table 6.4). Second, 2008 was not the first time
the Turkish judiciary upheld the headscarf ban against democratic reversal. The TCC had twice before
struck down parliamentary efforts to lift the ban: in 1988, the TCC held that a law explicitly permitting
headscarves on campuses was contrary to constitutional provisions on secularism (in addition to finding
that the exclusion of religious garments from the public sphere was essential to the protection of equality
before the law, freedom of religion and the constitutionally protected values of Kemalism). See Anayasa
Mahkemesi [Constitutional Court], Esas No. 1989/1, Karar No. 1989/12 (Mar. 7, 1989) (Turk.).
Subsequently, in 1990, the TCC upheld a facially neutral law on freedom of dress in institutions of higher
education, but specified that the law would have to be interpreted to be consistent with the Court’s prior
1989 ruling. In effect, the legislation might remain on the books but it would not effectuate the lifting of
the headscarf ban. See Anayasa Mahkemesi [Constitutional Court], Esas No. 1990/36, Karar No. 1001/8
(Mar. 9, 1991) (Turk.). These earlier legislative efforts had been undertaken by parties whose constituencies largely support the AKP in the contemporary period and the AKP was under pressure to use its
electoral mandate to return to the issue of lifting the headscarf ban. Having seen, however, that ordinary
legislation had proven ineffective in lifting the ban due to the TCC’s interpretation of constitutional secularism, the AKP opted for the passage of constitutional amendments, which would require the support of
a much larger proportion of parliament but would be relatively immune to TCC review.
44
In addition to the cases discussed supra note 43, the TCC reiterated its strict reading of constitutional
secularism as banning religious garments in its reasoning when it dissolved the Welfare Party, an earlier Islamist party that had faced constitutional challenge and ultimately closure in 1998. See Anayasa
Mahkemesi [Constitutional Court], Esas No. 2007/1 (SPK), Karar No. 1998/1 (AMKD, Jan. 1, 1998,
sayı 32, sayfa 762) [Const. Ct. J., June 19, 1987, No. 32, p. 762] (Jan. 1, 1998) (Turk.). Days after that
judgment, a briefing by a retired military officer to judges and university presidents encouraged them to
adopt a formal ban, leading to a declaration by an association of university presidents restricting certain
forms of clothing in institutions of higher education. See Hilal Elver, Lawfare and Wearfare in Turkey, Middle
E. Rep. Online, Apr. 15, 2008, available at http://www.merip.org/mero/interventions/lawfare-wearfareturkey; see generally Hilal Elver, The Headscarf Controversy: Secularism and Freedom of Religion (2012) (providing an excellent overview of the recent history of the headscarf ban in Turkey).
43
Courts and constitutional transition: Lessons from the Turkish case
681
public services; and Article 42 was amended to provide that deprivations of the right
to higher education must be based in explicit provisions written in law.45 The effect
of the amendments was to provide an indirect constitutional basis to lift the ban by
disallowing discrimination in institutions of higher education on the basis of dress.
The amendments were easily passed by the requisite super-majority of the GNA, comprised of AKP and MHP delegates.
The AKP complied with all of the legislative procedures and constitutional requirements for the adoption of the apparently neutral constitutional amendments, though
the parliamentary debate and the media discussion of the proposal made evident
that their purpose was to lift the headscarf ban. The amendments easily met the constitutional threshold for procedural validity, garnering support from more than 80
percent of all MPs.46 Given that the TCC’s power of judicial review is limited to procedural matters with respect to constitutional amendments, the passage of the amendments should have marked the end of the decades-long headscarf debates. Instead,
the amendments paved the way for two challenges to the AKP before the TCC: one
substantive challenge to the amendments as a violation of constitutional secularism;
and a second case seeking to dissolve the AKP on the grounds that it had become a
focal point for anti-secular activities based in part on its support for the amendments.
As in 2007, the TCC confounded constitutional scholars, by agreeing to hear both
challenges despite the absence of authority under the 1982 Constitution to entertain
substantive challenges to properly enacted constitutional amendments.47
a) The Headscarf case
In the first of the two momentous cases before it in 2008, the Court heard a challenge
brought by CHP delegates to the constitutional amendments adopted in February
2008. As noted above, the Court’s willingness to hear this challenge was especially
striking in light of the explicit constitutional restriction on the TCC’s powers of judicial
review in the case of constitutional amendments. The implications of the decision for
The amendment to Art. 10(4) expanded the prohibition on discrimination by state organs and administrative authorities to “all public services.” The amendment to Art. 42(1)—which provides that “no one
can be deprived of his/her right to higher education”—added a phrase stating that any deprivation of the
right would have to be specified by law. In effect, the amendments required the passage of a law explicitly regulating permissible restrictions on the right to an education. The clear parliamentary majority in
favor of the amendments indicated that the opposition and the secular establishment would be unable to
pass a law that would formalize the ban on headscarves following the amendments. See Turkish Parliament
Approves Constitutional Amendments to Lift Ban on Headscarf, Turkishpress.com, Feb. 9, 2008, available at
http://www.turkishpress.com/news.asp?id=214516.
46
For a constitutional amendment to be approved, it must either secure the support of two-thirds of the
Parliament or be put to a national referendum. See Türkiye Cumhuriyeti Anayasasi [Constitution of the
Republic of Turkey] Nov. 7, 1982, arts. 104(a), 175 (Turk.). The amendments passed by a vote of 411 in
favor and 103 opposed, well over the two-thirds required for parliamentary passage of amendments. See
Turkish Parliament Approves Constitutional Amendments to Lift Ban on Headscarf, above note 45.
47
The 1982 Constitution provides that the TCC may review regular laws enacted by the Parliament on both
substantive and procedural grounds, but may only hear procedural challenges to constitutional amendments. See Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, art. 148
(Turk.).
45
682
I•CON 11 (2013), 666–701
the balance between judicial and legislative authority—as opposed to the substantive
arguments about constitutional secularism—have been the most significant legacy
of the case. Under the 1982 Constitution, Article 148 provides that “constitutional
amendments shall be examined and verified only with regard to their form.”48 A further provision in the same Article specifies 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 consideration of the
proposal respected the prohibition on cursory debate”49 (emphasis added). Moreover,
these explicit restrictions on substantive review of constitutional amendments were
a result of the repudiation by the drafters of the TCC’s earlier assertions of authority
to review constitutional amendments on substance.50 In particular, the practice of
reviewing constitutional amendments for conformity with the substantive provisions
of Article 2 (on the characteristics of the Republic), which the TCC asserted under the
1961 Constitution as a form of “procedural review,” was deliberately excluded from
the authority of the Court by Article 148(2). As a result of the drafting history of the
Constitution and the debates that produced an explicit decision to restrict the TCC’s
authority to hear substantive challenges to constitutional amendments, the Court’s
willingness to hear the case exemplified a seemingly political assertion of judicial
authority over the elected branches of government.
For these reasons, the very decision to hear the challenge to the amendments
re­presented an accretion of the Court’s powers. The substance of the decision further
expanded the TCC’s assertion of jurisdiction, going so far as to accord itself authority
to serve as sole arbiter of the propriety of all democratically enacted constitutional
amendments. To understand how the Court came to its remarkable holding on the
appropriate balance between legislative and judicial constitutional authority, the
remainder of this section will turn to a detailed examination of the majority opinion
in the case.
Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, art. 148(1) (Turk.).
(my translation)
49
Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, art. 148(1) (Turk.)
(my translation)
50
The original text of 1961 Constitution did not restrict the TCC’s authority to review constitutional
amendments, but frustration over the annulment of a constitutional amendment by the TCC in 1970
had produced an amendment to the 1961 Constitution restricting the Court’s powers of review to procedural challenges. The TCC then found a new basis for its authority to review constitutional amendments
on the grounds that the provision stipulating that Turkey would have a republican form of government
(Art. 9) was unamendable and that the characteristics of republican government contained in Art. 2
were also, by extension, unamendable. Based on the immunity of these provisions from amendment, the
TCC asserted that “procedural review” encompassed review to ensure the compliance of all constitutional amendments with the substantive requirements of Arts. 2 and 9. This broad interpretation of the
Court’s powers of review were widely criticized among Turkish constitutional law scholars as a backdoor
form of proscribed substantive review of amendments. For a discussion of this background, see Özbudun
& Gençkaya, supra note 5, at 108–109. The text of the 1982 Constitution makes explicit the meaning of
“procedural review” precisely to exclude such exercises in creative interpretation and to clearly restrict
the TCC’s power of review to two issues only: compliance with quorum requirements and unrestricted
debate in the GNA before the passage of constitutional amendments.
48
Courts and constitutional transition: Lessons from the Turkish case
683
The CHP’s challenge asserted that the constitutional amendments had been
adopted as a tacit means of lifting the headscarf ban and thus should not be assessed
in terms of the prima facie constitutionality of the amended text but rather the anticipated effect of the amendment in practice. The CHP pointed, in its submissions,51 to
the explicit reference to the headscarf ban in public debates concerning the amendments; the failure of the AKP and the MHP to seek constitutional conciliation with
those in the parliamentary minority opposing the amendments; the conformity of the
headscarf ban itself with the requirements of constitutional Kemalism; and sociological claims that the wearing of headscarves in universities would lead to social pressure on non-headscarved women posing a threat to the constitutional values of public
order and national solidarity. The CHP’s submissions also referred to the decisions of
the European Court of Human Rights that upheld headscarf bans in educational
institutions.52
In annulling the amendments, the majority opinion endorsed almost all of the arguments submitted by the CHP.53 But the Court went considerably further, announcing a
new doctrine governing parliamentary powers to propose constitutional amendments
generally. The Court’s reasoning in this portion of the opinion relies on its reading of
Article 175 of the Constitution. That article provides that:
Constitutional amendments shall be proposed in writing by at least one-third of the total number of members of the Turkish Grand National Assembly. Proposals to amend the constitution
shall be debated twice in plenary sessions. The adoption of a proposal for an amendment shall
require a three-fifths majority of the total number of members of the TGNA.54
The Court reads into the text of this provision a distinction between what it calls the
primary and secondary powers of the legislature in the constitutional arena.55 Under
this novel distinction, the Court argues that in times of ordinary politics in which
The principal arguments set forth in the complaint presented to the TCC are summarized in the TCC’s
own review of the facts provided by the majority in its opinion under the heading “Dava dilekçesinde.” See
Anayasa Mahkemesi [Constitutional Court], Esas No. 2008/16, Karar No. 2008/116 (Resmi Gazete, Oct.
22, 2008, No. 27032) (Turk.), available at http://www.anayasa.gov.tr/index.php?l=manage_karar&ref=
show&action=karar&id=2608&content=.
52
The submissions specifically referenced the following two cases: Leyla Şahin v. Turkey, App. no. 44774/87,
Eur. Ct. Hum. Rts., June 29, 2004; and Dahlab v. Switzerland, App. no. 42393/98, Eur. Ct. Hum. Rts., Jan.
15, 2001.
53
The aspects of the majority opinion that are of interest for purposes of this discussion are those touching on the powers of the GNA to pass constitutional amendments and the power of the TCC to review
such amendments. But, of course, the majority’s opinion also contain a number of substantive arguments about the content and scope of the Kemalist doctrine of secularism. For a detailed discussion of
the arguments presented by the Court on secularism, see Theresa Perkins, Unveiling Muslim Women: The
Constitutionality of Hijab Restrictions in Turkey, Tunisia and Kosovo, 30 Boston Univ. Int’l L.J. 529, 552–557
(2012).
54
Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, art. 175 (Turk.) (my
translation).
55
The language of the opinion states that the legislature may sometimes be endowed with the primary
power (asli kurucu iktidar) to draft or amend a constitution based on convening as a constituent assembly following a period during which ordinary legislative functions or the ordinary operation of the
Constitution may have experienced an interruption. In other words, these are extraordinary powers
accorded to legislatures at critical junctures of constitutional transformation. In the Turkish context,
51
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the previously promulgated constitution remains in operation —without a period of
significant disruption to governance or the convening of a new constituent assembly—the powers of the legislature to propose constitutional amendments are limited
to those that are in keeping with the original framework and meaning of the extant
Constitution. The Court also makes clear that it is within its powers of “procedural
review” over constitutional amendments to make the determination as to whether
proposed amendments fall within these constraints.
The doctrine announced by the Court in the Headscarf case inverts the relationship between the judiciary and the parliament specified by the Constitution. Whereas
the Constitution endows parliament with the authority to promulgate constitutional
amendments and limits the Court’s power to engage in substantive review of such
amendments, under the TCC’s new doctrine, the Court is the arbiter of permissible
constitutional amendments and the GNA’s authority to propose constitutional reforms
is limited to those consistent with the Court’s interpretation of the spirit of the constitutional framework. Needless to say, the TCC’s doctrine has troubling implications for
a political party that won a substantial electoral mandate on a platform of far-reaching constitutional reforms intended precisely to undo much of the original framework
of the military-era constitution.
In addition to having no basis in the plain language of Article 175, the doctrine
announced by the TCC was also inconsistent with past practice, both by the GNA and
by the Court itself. Indeed, the first Turkish constitution since the founding of the
Republic was drafted not by a constituent assembly but by the Parliament elected in
1923 using its ordinary legislative powers.56 Further, the TCC made no reference in its
decision to the multiple packages of constitutional amendments passed by ordinary
legislatures between 1987 and 2005 that had been deemed constitutionally valid. In
fact, most of those amendments were explicitly designed to strip the 1982 Constitution
of problematic aspects of its original framework such as excessive concentration
of power in the executive, excessive powers for the National Security Council, and
the overly broad jurisdiction of military courts. Taken together, those amendments
resulted in substantial alteration—not fidelity—to the original constitutional framework, with as much as one-third of the provisions of the original 1982 Constitution
amended.57 Yet at no time did the TCC previously articulate a restriction on the scope
of permissible constitutional reform under the GNA’s legislative powers. Moreover, the
such junctures have only occurred in the aftermath of military coups. At all other times, the legislature is
merely endowed with subsequent (or secondary) authority (tali kurucu iktidar) in the constitutional arena
and may not initiate constitutional amendments that depart substantially from the original consensus in
place at the time that the extant constitution was promulgated. The most coherent description of this distinction is a form of strict originalism that goes so far as to constrain the ability of democratically elected
governments to propose amendments to the original Constitution. Yet the argument has the odd quality
of marrying strict originalism with the announcement of a judicially created doctrine that finds no basis
in the text of the Constitution in question.
56
See Ergun Özbudun, New Constitution is Now a Must, Today’s Zaman, Oct. 26, 2008.
57
Mehmet Fevzi Bilgin, Constitution, Legitimacy and Democracy in Turkey, in Constitutional Politics in the
Middle East 123, 123–46 (Saïd Amir Arjomand ed., 2008).
Courts and constitutional transition: Lessons from the Turkish case
685
Court had three times rejected requests to review constitutional amendments on the
grounds that it did not have the authority to do so under the 1982 Constitution.58
A review of the plain language of the constitutional text, prior parliamentary practice, and the Court’s own previous practice in recognizing a broad legislative authority
to promulgate amendments to the Constitution offers little to support the TCC’s decision in the Headscarf case.
To complete consideration of the implications of the Headscarf case for the relationship between the legislative and judicial functions in the Turkish context, the
Court’s interpretation of the combined effect of Articles 2, 4, 148, and 175 of the
Constitution is also worth examining.59 In essence, the Court argues that, so long as
Article 4 specifies the irrevocability of the first three articles of the Constitution—on
the republican form of the state, its characteristics as a secular democracy and its territorial integrity—Article 175 cannot purport to bestow on the Parliament the power
to enact amendments that would affect those provisions. Further, the Court argues,
Article 148—ordinarily understood to confine the TCC to no more than procedural
review of constitutional amendments—cannot require the TCC to affirm the constitutional validity of amendments that contain the fatal defect of a conflict with any of the
first four articles of the Constitution regardless of their procedural validity. Combined
with its separate argument concerning primary and subsequent legislative powers in
the constitutional arena, this reasoning enables the Court to conclude that any constitutional amendment inconsistent with its own strict interpretation of constitutional
secularism is beyond the authority of the Parliament to promulgate.
Having narrowed parliament’s authority to amend the Constitution, the Court
turns to elaborating an interpretation of its own powers of review that radically
expands its jurisdiction. First, the Court holds that it has the sole authority to determine the precise limitations of parliament’s substantive amendment powers under
Article 175. Second, the Court finds that it is endowed with the implied authority under Article 148 to substantively review all constitutional amendments on the
grounds that procedural validity is necessarily vitiated where an amendment does not
conform to the TCC’s interpretation of the requirements of the first four provisions of
the Constitution.60
Such requests were submitted and rejected once in 1987 and twice in 2007. See Özbudun & Gençkaya,
supra note 5, at 109.
59
The relevant passage from the majority opinion is the following:
Anayasa'nın 4. maddesinde Anayasanın 1 inci maddesindeki Devletin şeklinin Cumhuriyet olduğu
hakkındaki hüküm ile, 2inci maddesindeki Cumhuriyetin nitelikleri ve 3 üncü maddesi hükümleri
değiştirilemez ve değiştirilmesi teklif edilemez denilmek suretiyle, 175. maddede belirlenen yetkinin
kullanılamayacağı, kullanılsa dahi hukuken geçerli olamayacağı alanlar açıkça belirlenmiştir.
Anayasa'nın 148. maddesinde öngörülen teklif ve oylama çoğunluğuna uyulmaksızın gerçekleştirilecek
bir Anayasa değişikliği hukuken geçerli olamayacağı gibi, değiştirilmesi teklif edilemeyecek bir Anayasa
kuralına yönelik değişiklik teklifi yasama organının yetkisi kapsamında bulunmadığından, yetkisiz
olduğu bir alanda yasama faaliyetine hukuksal geçerlilik tanımak da mümkün değildir.
58
The Court found support for this argument in the work of a constitutional law scholar whose views were
relied upon in the petition for review of the constitutional amendments. Comments by the professor,
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The Court’s position that the structure of the Constitution dictates some constraints
on permissible constitutional amendments has merit. Because the Constitution provides for the irrevocability of its first three articles, the question of how to resolve conflicts between proposed amendments and these irrevocable provisions is raised. One
immediate question is whether irrevocability also implies that these provisions may not
be amended. Because most Turkish constitutional law scholars believe that these provisions are also un-amendable, rather than analyzing the possibilities inherent in the
distinction between the irrevocable and the un-amendable it may be more productive
to pass to a second set of questions. In the event that these provisions are un-amendable, beyond direct proposals to amend the specific text of the first four articles of the
Constitution, what else may be deemed impermissible? After all, the GNA had proposed
amendments to provisions of the Constitution that are not irrevocable. Second, what
organ of government is endowed with the authority to pass on this question in light of
the explicit constraint on the TCC’s power to review constitutional amendments?
In a majority opinion, the TCC finds that amendments to other provisions of the
Constitution—such as the proposed amendments to Articles 10 and 42—may impact
the powers of the state in a way that conflicts with the principle of constitutional secularism and would thus constitute an impermissible amendment (though neither the language on secularism in Article 2 nor its entrenchment by Article 4 is directly affected).
Of course, determining whether an impermissible conflict with the principle of constitutional secularism is implicit in amendments that provide for equal access to public
services is a matter of interpretation. The TCC makes clear in its majority decision that
the authority to engage in that interpretive exercise belongs to the Court. In a sense,
the Court is announcing that Article 4 does not merely provide for the irrevocability (or un-amendability) of the principle of constitutional secularism provided for in
Article 2, but that it also entrenches the particular understanding of that principle
held by the Court. As a result, democratically elected governments are proscribed from
advancing alternative conceptions of the requirements of constitutional secularism
regardless of electoral mandate.
The difficulty with this position is two-fold. First, according one branch of government sole authority to determine and entrench the meaning of constitutional provisions without any possibility of democratic revision produces rigidity in constitutional
interpretation and an excessive concentration of power in the judiciary. Particularly
when compared to the explicit limitations on its powers of review under Article 148
of the Constitution, this assertion of expanded authority is remarkable.61 Second, the
Erdoğan Teziç, in an interview with the newspaper Millitet, are cited for the proposition that any amendment that alters the secular character of the public sphere—such as one that enables the removal of
the headscarf ban—is necessarily in violation of constitutional secularism under Art. 2 and the irre­
vocability provisions of Art. 4. Because, on this reading, the abolition of the headscarf ban through such
an amendment would permit indicia of religious observance in government buildings, effectively altering Art. 2, it would be a form of tacit repeal of an irrevocable provision, tantamount to “cheating the
Constitution” (Anayasaya karşı hile).
61
Indeed, Ergun Özbudun has referred to the Court’s position as a “usurpation of power” in direct violation
of the Constitution. See Özbudun & Gençkaya, supra note 5, at 97–109.
Courts and constitutional transition: Lessons from the Turkish case
687
breadth of the principles articulated in the first three articles of the Constitution produce few constraints on the ability of the TCC to exercise arbitrary power, using narrow interpretations of vague concepts, such as social peace and national solidarity, or
broad principles like secularism, as grounds to annul legislation. In addition to the difficulties of reconciling the majority’s position with the explicit text of the Constitution,
the argument runs the risk of inviting challenges to the Court’s legitimacy should it be
seen as exercising arbitrary power by blocking democratizing reforms in the name of
its preferred interpretation of republican values. The dissenting opinions in the case
point precisely to these risks.
The dissenting opinions in the Headscarf case focus primarily on the constraints
imposed by Article 148 on the capacity of the Court to exercise review over the amendments. The two dissenting justices in the Headscarf case were also dissenters in the earlier case concerning presidential balloting in 2007 and, as with that case, they offer
separate dissenting opinions.62 The President of the Court, Haşim Kılıç, notes that the
majority’s opinion runs counter to the explicit text of Article 148, to the drafting history of that provision—which was a deliberate attempt to cabin the ability of the TCC
to redefine procedural review as admitting of substantive matters—and its own prior
jurisprudence in the three cases where the Court declined to consider a substantive
challenge to constitutional amendments on the grounds that it would be ultra vires to
do so. Further, Kılıç dismisses the argument about primary and secondary powers of
the legislature, noting that the Constitution affords the power of amendment explicitly and exclusively to the GNA. Finally, Kılıç argues that because Article 13 of the
Constitution provides that fundamental rights may not be limited by any branch of
government other than the GNA, the parliament necessarily has the power to amend
Article 42, which regulates the fundamental right to education.
In his separate dissent, Justice Adalı concurs in the reasoning offered by Kılıç but
adds a separate line of argumentation concerning the necessary balance between legislative and judicial powers in a democracy. He argues that in order to protect the legitimacy (real and perceived) of its ordinary powers of judicial review, the TCC should
be careful to respect the constitutional limitations on that power. In particular, Adalı
objects to the majority’s inquiry as to the motivations of legislators who proposed
the amendments when there is nothing facially unconstitutional in the text of the
amended provisions and the GNA is constitutionally authorized to pass such amendments. Borrowing from the language of CHP critics of the amendments, Adalı argues
that the expansion of the Court’s powers of review and its annulment of procedurally
valid amendments amount to “cheating the Constitution.”63
In the intervening year since the balloting case the third dissenter, Justice Tuğcu, had retired and she was
replaced as President of the Court by Justice Kılıç. As in 2007, Kılıç was joined by Justice Adalı in dissenting
from the majority opinion in the Headscarf case, though once again they issued separate dissenting opinions.
63
The dissenting opinions follow immediately after the majority opinion in the official version of the
Headscarf case decision, under the heading “Karşıoylar” (meaning dissenting opinions). Anayasa
Mahkemesi [Constitutional Court], Esas No. 2008/16, Karar No. 2008/116 (Resmi Gazete, Oct. 22, 2008,
No. 27032) (Turk.), http://www.anayasa.gov.tr/index.php?l=manage_karar&ref=show&action=karar&
id=2608&content=.
62
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I•CON 11 (2013), 666–701
The focus of much of the commentary on the TCC’s decision concerned the actual
impact on the ability of headscarved women to enroll as university students, yet the
more far-reaching impact of the case results not from the specific decision as regards the
particular amendments, but from the doctrine announced by the Court of judicial review
of constitutional amendments and the concomitant limitations on legislative powers in
the constitutional arena. While judicial review is often a matter of controversy across
jurisdictions, the starkness with which the TCC disregards the constraints imposed on its
authority—by finding an implied power that is in direct conflict with explicit text of the
Constitution—sets the Headscarf case apart from concerns about judicial review in other
contexts. Further, even as it expands its own authority, the Court also finds new, implied
constraints on the powers of the legislature under the Constitution.
The combination of the Court’s unilateral accretion of its own powers and contraction of those of the legislature exemplify the concerns raised by an unqualified
embrace of judicial independence, particularly during times of democratic transition.
When opposition groups—in this instance the traditional Turkish state elites, including the military and civilian bureaucracy and delegates from the CHP—face a demo­
cratizing transition in which they are unable to win at the polls, there is every reason
to expect that they will seek an extra-political veto power. In the Turkish context, once
military coups ceased to be a viable means for state elites to reassert their policy preferences, the TCC became the next best mechanism to serve as a permanent check on the
ability of democratic majorities to translate their electoral power into effective reforms.
In asserting a kind of originalism to undergird its review of constitutional amendments, the Court sought to entrench its preferred interpretation of the irrevocable art­
icles of the Constitution, immunizing them from reinterpretation rather than repeal.
Further, because the Court’s doctrine of originalism demands fidelity to the meaning intended (as opposed to explicitly written) by constitutional drafters—in this case,
drafters who were selected by a military junta—the Court refers not to the constitutional text in wielding its authority to overturn legislation and constitutional amendments but to a particular interpretation of fundamental republican commitments.
The threat to democratization and democratic consolidation emanating from a judiciary that is neither accountable to elected branches of government nor limited in its
authority by constitutional text is substantial. Moreover, where the Court is policing
a kind of constitutional orthodoxy located not in the text of the Constitution but in
the hegemonic ideology the text purportedly reflects, the very possibility of a democratic revision to that ideology is thwarted. The confrontation between democratically
elected authorities and the high judiciary that is likely to result from the stymieing of
reforms through legislation and constitutional amendment runs the risk of taking an
extra-political or extra-constitutional turn that is all the more dangerous to the fate of
democratic transition.
b) The AKP Closure case
The Headscarf case proved to be the more important, doctrinally, of the twin challenges to the AKP and its legislative agenda that the Court agreed to hear in 2008.
Courts and constitutional transition: Lessons from the Turkish case
689
The second case though represented the greater immediate political threat insofar as
it threatened with constitutional dissolution the governing party, which had just won
a large electoral mandate not six months earlier. The chief prosecutor’s case for closing the AKP turned on the argument that the party had become a “focal point” for
anti-secular political activities in Turkey.64 The basis for this allegation, in turn, was
principally the party’s activities—and individual statements by AKP delegates and
politicians—advocating for the passage of the constitutional amendments that were
the subject of the Headscarf case.
The written submissions of the parties, summarized in the majority opinion, were
entirely focused on arguments concerning the definition of secularism. The chief prosecutor organized his argument in four categories: secularism as separation of religious
and political affairs; secularism as individual religious freedom; secularism as a restriction on the exploitation of religion for political purposes; and secularism as a form of state
regulatory power to protect religion. In each of these categories, he adduced evidence—
through a compilation of public statements—that the AKP was engaging in activities
and advocacy that would violate secularism. The use of religious expressions in public
speeches, reference to the interests of religiously observant women, and arguments in
favor of greater freedom from state regulation for religious institutions were all cited as
evidence of anti-secular activities. In its defense, the AKP argued that the activities referenced in the prosecutor’s case should be understood not as a threat to secularism, but
as an equally valid interpretation of the requirements of secularism. For instance, they
argued that the interests of religiously observant women should fall under the category
of secularism as individual religious freedom; or that calls for reduced regulation of religion by the state is consistent with secularism as separation of religion from the state.
At base, the AKP argued that a commitment to the constitutional principle of secularism need not take the form of a substantive commitment to a particular metaphysical conception of secularity. In the end, a majority of justices found that the AKP
did indeed serve as a focal point for anti-secular activities, but they were not able to
secure the super-majority (three-fifths) required to close the party. Instead, the AKP
was penalized with the loss of half of the Treasury funds to which it was entitled.65
Though the AKP survived the threat of closure by a thin margin, like the Headscarf
See Anayasa Mahkemesi [Constitutional Court], Esas No. 2008/1 (SPK), Karar No. 2008/2 (Resmi Gazete,
Oct. 24, 2008, No. 27034) (Turk.), available at http://www.anayasa.gov.tr/index.php?l=manage_karar&ref=
show&action=karar&id=2611&content=. The charge of becoming a “focal point for anti-secular activities”
is derived from the rules concerning party dissolution set forth in Arts. 68 and 69 of the 1982 Constitution.
See Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, arts. 68, 69 (Turk.).
According to Art. 69(7), party dissolution requires a determination by the TCC that the party has become the
“focal point” for proscribed activities; the list of proscribed activities, set forth in Art. 68(4), includes activities in conflict with the secular character of the republic. See Id. arts. 68(4), 69(7). The full text of the 1982
Constitution (as amended in 2010) is available in Turkish at http://www.anayasa.gen.tr/1982ay.htm.
65
A majority of judges—six out of eleven—voted in favor of closing the AKP, but the dissolution of a party
requires the support of two-thirds of the TCC—in other words, seven judges. See Anayasa Mahkemesi
[Constitutional Court], Esas No. 2008/1 (SPK), Karar No. 2008/2 (Resmi Gazete, Oct. 24, 2008, No.
27034) (Turk.). Further, ten of the eleven judges (all but Chief Justice Haşim Kılıç) found the AKP guilty
of involvement in anti-secular activities, but opted for the lesser penalty of reducing the party’s support
from the Treasury, as provided for under Art. 69(8).
64
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I•CON 11 (2013), 666–701
case, this case also exemplified the potential risks that judicial independence without
checks and balances may pose in periods of democratic transition. The idea that the
government which had just won an overwhelming electoral mandate might be closed
outright—and the sitting President and Prime Minister might be banned from politics (together with 69 other elected MPs)—not because they opposed a fundamental
constitutional doctrine but because they embraced an alternative interpretation of
that doctrine illustrates the challenge. If elites from the ancien régime can continue
to impose their preferred interpretation of constitutional provisions long after they
lose the capacity to wield popular support for their views, an autonomous and activist constitutional court may prove a detriment to the institutional requirements for
democratic consolidation.
2.3 Judicial versus legislative activism
The Court’s willingness to hear these two cases and particularly its decision in the
Headscarf case was interpreted by AKP circles as an attempt to close democratic channels for constitutional reform in Turkey. The decision of the TCC to annul properly
enacted constitutional amendments was explicitly framed in terms of the protection
of one interpretation of the constitutional value of secularism from reinterpretation
through the vicissitudes of electoral preferences. Under this doctrine of constitutional review, the Court announced that it had the authority to nullify the actions of
the majoritarian branches when deemed to impermissibly interfere with the state’s
preferred definition of its founding ideological precepts. Moreover, the Court’s novel
doctrine of the primary powers of constitutional amendment (as opposed to ordinary
legislative powers) suggested that it might develop an active docket in blocking AKP
efforts at constitutional amendment, let alone the introduction of a new civilian constitution along the lines that had been contemplated in 2007.
At a time when democratic consolidation required reinterpretation of the state’s
founding precepts to enable greater political participation, the Court’s position represented a significant challenge to the AKP’s reform agenda. One reason that the Court
was willing to serve as an enforcer of the founding (Kemalist) commitments of the
state elites was that its composition was drawn from among those elites. Accordingly,
the AKP’s strategy for tackling the challenge posed by the TCC’s new doctrine of review
was to alter the composition of the Court by revising its appointments procedures.
Since judicial reform had long been among the democratizing measures required by
the European Union and embraced by the AKP, the party moved to introduce a new
package of constitutional amendments, embedding judicial reform within a broader
package. Indeed, the Venice Commission issued a report in March 2009 specifically
noting that “the composition of the Turkish Constitutional Court does not sufficiently
reflect the various tendencies of Turkish society.”66 The criticism leveled by the Venice
European Commission for Democracy Through Law (Venice Commission), Opinion on the Constitutional and
Legal Provisions Relevant to the Prohibition of Political Parties in Turkey, Doc. No. CDL-AD(2009)006 (Mar. 13–14,
2009), at ¶ 87, available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2009)006-e.
66
Courts and constitutional transition: Lessons from the Turkish case
691
Commission pointed to the need for precisely the sort of reform that would ensure that
the judicial branch better reflect the composition of the underlying society. Following
its experiences before the TCC in 2007–2008, the AKP surely realized that such
reform would have the additional benefit of removing the judicial trump card enjoyed
by groups with limited electoral support but disproportionate repres­entation in the
high courts.
3. Democratization by referendum: Packing or unpacking
the TCC?
The apparent lesson drawn by the AKP in its encounters with the TCC between 2007
and 2008 was that judicial reform would have to be a priority for the rest of its legislative agenda to proceed. Although the CHP, and the state elites it represented, were not
able to gain sufficient electoral support to block AKP reforms in the GNA, they had
successfully used the Court as an unelected veto player. One reason that the TCC was a
reliable obstacle to AKP initiatives was the judicial appointments and promotions process. To understand why this was so, it is important to revisit the rules governing selection of TCC justices under the 1982 Constitution. As we saw above, the power to select
justices was accorded to the presidency, with the proviso that the pool of nominees be
determined by the appellate courts. Though the AKP’s candidate, Gül, now held the
presidency, his ability to appoint justices more friendly to the AKP’s reform agenda
remained constrained by the fact that the pool from which he might select candidates
was designed by the appellate courts to exclude all those deemed insufficiently committed to Kemalist orthodoxy. To overcome this impasse, the AKP proposed a package
of constitutional amendments that would, inter alia, introduce a greater measure of
democratic accountability in the appointments procedure. The amendments package was then put to the public to vote up or down in a constitutional referendum in
September 2010.
Many analysts interpreted the 2010 referendum as the final showdown between
the country’s secular establishment and Islamist forces, with the result definitively
displacing the former. In fact, the bulk of the package of constitutional amendments
proposed in 2010 reprised provisions first proposed in the guise of the draft civilian
constitution commissioned from the Özbudun committee in 2007. The 26 constitutional amendments at issue in the referendum included provisions that: empower
civilian courts while reducing the jurisdiction of military courts; strengthen gender
equality and protections for children, the elderly, veterans, and the disabled; improve
privacy rights and access to government records; expand collective bargaining rights;
afford individuals standing to bring constitutional challenges; and remove immunities long afforded to those responsible for the 1980 military coup.67 The overwhelming effect of these provisions was civilianizing the military coup-era constitution,
The official English translation of the amendments package (which reflects the minor changes mandated
by the TCC ruling) is available at http://www.abgs.gov.tr/files/Bas%C4%B1nMusavirlik/haberler/constituional_amendments.pdf.
67
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strengthening individual freedoms and political rights, and undertaking muchneeded judicial reform.
To the extent that the amendments encompassed liberalizing political reforms, critics contended that such provisions were merely a tactical choice by the AKP designed
to shift the focus away from its underlying goal of court-packing. The main objections centered on two elements. Procedurally, the amendments were offered as a single
package rather than allowing the electorate to vote on each provision individually.
More importantly, opponents saw changes to the composition and selection process of
the constitutional court and a board overseeing judicial appointments as an obvious
effort to blunt the ability of the high judiciary to challenge the elected branches of
government.
The procedural objection to the single-package submission of the amendments had
merit. The AKP presented a package with elements to attract a wide spectrum of the
electorate, but had each amendment been put up for an individual vote, some might
have been more vulnerable to rejection. That being said, the amendments were voted
on singly by Parliament before being put to referendum. Indeed, a key liberalizing
amendment that would have made it more difficult to ban political parties was dropped
from the final package because it did not garner the requisite votes in Parliament. In
fact, while it would have been preferable to have allowed each amendment to be voted
on individually, the provisions related to judicial composition that caused the greatest
alarm to state elites would likely have fared better—due to widespread negative perceptions of the TCC as anti-democratic among Kurdish and conservative voters—than
those improving individual freedoms and political rights.
Although the provisions included in the package were not arbitrarily assembled, the
limitations of what was proposed doubtless represented a degree of opportunism on
the part of the government. In particular, the failure to address the 10 percent electoral threshold, demonstrated that the AKP was unwilling to forgo the advantages of
the anti-democratic measures for its own electoral performance in the 2011 legislative
elections.68 Legitimate criticism of the shortcomings of the package, however, should
As discussed above, the electoral threshold applied in Turkey is such that only parties able to garner more
than 10 % of the vote nationwide are awarded seats in parliament in proportion to their vote share.
Assume, for instance, that there are six parties (A, B, C, D, E, and F) competing in the elections, each
garnering the following percentage of the vote: A: 9.9%; B: 38%; C: 8.6%; D: 9.5%; E: 23%, and F: 11%.
A, C, and D will not gain any parliamentary seats. All of the 550 seats in the GNA are then distributed
among B, E, and F. Thus, for instance, with only 11 % of the vote (that is, only slightly more than the
share earned by parties that get no seats at all), party F will be allocated at least 84 seats in parliament, a
full 24 seats more than would correspond to 11 % of total seats. In other words, the exclusion of parties
that do not meet the 10 % electoral threshold increases the number of seats allocated to those that do.
Further, votes for parties that do not meet the threshold requirement are wasted. Hypothetically, 28 %
of all votes went to parties that did not gain a single seat in parliament. The distortion produced by the
threshold—especially a threshold as unusually high as the one in Turkey—offers a significant advantage
to parties that regularly exceed the threshold, augmenting their share of seats in parliament (as compared to their share of the underlying vote). The constitutional amendment package would certainly
have been improved had it been accompanied by measures lowering the electoral threshold. Having said
that, lowering the electoral threshold would require amendment of the Political Parties Law, rather than
the constitution, as the current threshold is statutory, not constitutional.
68
Courts and constitutional transition: Lessons from the Turkish case
693
be distinguished from substantive attacks on those provisions that were included. By
reducing the role of the military in ordinary governance, undertaking judicial reform
in the area of both military and civilian courts, and enhancing individual and political associational rights, the amendments that received substantial support in the
September 12 referendum represent an important step toward liberalizing the Turkish
political order. The substantive concerns about the contents of the package at the
heart of the heated debates that preceded the referendum were less about procedural
questions or what was missing from the package than about one central feature of the
amendments: reform to the composition, appointment and promotions procedures of
the TCC.
3.1. Judicial independence and court packing
The allegations of threats to the independence of the judiciary and control over the
appointments procedure would be incoherent but for the deep-seated skepticism about
a fully participatory political order among the opponents of the reforms. Much of
the concern stemmed from fear of what might happen if the judiciary and the state
prosecutors became more representative of Turkish society as a whole, and not of the
particular elites from which these groups have heretofore been selected. Two sets of
amendments were at the center of the controversy—one concerned the composition
of the Turkish Constitutional Court (TCC), the other the composition of the Supreme
Board of Judges and Prosecutors (Hakimler ve Savcılar Yüksek Kurulu, or HSYK).
With respect to the TCC, the amendments in question increased the size of the
Court from eleven permanent and four alternate justices to seventeen permanent justices (and no alternates). Two related objections were raised to this expansion. The
first regarded the institutions from which the pool of candidates may be drawn. The
second regarded the role accorded to the political branches in appointing the candidates. Both objections were driven by an additional layer of concerns. In Turkey, the
elected branches of government (or hükümet) are understood to be separate from the
unelected branches, which are more commonly referred to as the “state” (or devlet).
The unelected branches are comprised of the senior judiciary and prosecutors, the
military, and certain parts of the intelligence, national security, and policing apparatus. The idea of separation of powers is understood not as the separation of the three
branches of government, as would be the common American understanding, but
as the separation of the elected and unelected branches of government. In particular, the subjection of the unelected branches of government to forms of democratic
accountability is deemed to represent a direct threat to the autonomy of the state.
Thus, the civilianization of the constitution—the subjection of the military to civilian
authority—and the reform of the judiciary—greater democratic accountability in the
appointments process—are both understood to undermine separation of powers by
subjecting the state to majoritarian pressures. One can only assess concerns about the
expansion of the TCC in light of the norm that the unelected branches of government
are expected to serve as the guardians of official state ideology and elite interests while
insulated from democratic pressures.
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Prior to the amendment, the eleven-member TCC was drawn primarily from among
the five next highest courts in the country: the Court of Cassation, the Council of
State, the Military Court of Cassation, the Military High Court of Administration,
and the Court of Accounts. Appointees from these courts accounted for seven of the
eleven judges on the court, with the remaining four drawn from among senior administrative officers and lawyers and the Council of Higher Education (YÖK). Promotions
to appellate courts and the higher judiciary were controlled by the seven-member
Supreme Board, itself comprised entirely of judges from the same courts and personnel from the Ministry of Justice. The narrow composition of the HSYK facilitated the
imposition of an ideological litmus test on judicial promotions, ensuring that the high
judiciary was a relatively politically homogeneous group. The selection procedure for
the TCC was then much less important. So long as the pool of eligible candidates could
be restricted primarily to the high courts, the promotion system producing the high
judiciary would ensure relative ideological conformity.
Following the amendment, the Court is larger and more broadly representative. In
the seventeen-member TCC, nine of the judges continue to be drawn from the five next
highest courts. The remaining eight members of the Court are drawn from among:
senior administrative officers and lawyers; judges and prosecutors from lower courts;
YÖK; and one candidate chosen from a pool nominated by Turkish bar association
presidents. Thus, whereas the TCC’s composition previously reflected a ratio of seven
appellate court appointees to four appointees from other parts of the legal and judicial profession, after the amendment that ratio is now 9:8. This institutional change
brings greater representation of the judicial and legal profession onto the Court in line
with democratic judicial appointments procedures in Europe and beyond.
With respect to the appointment of particular candidates, claims that the amendment package expanded executive power were disingenuous. Prior to the amendment,
all appointments were made by the president from among nominees selected by the
high judiciary and other unelected state organs. Under the amendment, the president
continues to make the majority of appointments in the same manner, from among a
small set of nominees chosen primarily by the judiciary. A larger proportion of eventual seats on the Court are now drawn from a wider spectrum of the judiciary than was
previously the case, but the pool of candidates remain restricted primarily to those chosen by the judicial branch. While the role of the executive may be worryingly large in
making appointments to the TCC, that role is not a consequence of these amendments.
In fact, the democratically elected parliament is now accorded a role in the appointments procedure for the first time, enabling them to fill three of the seventeen seats
on the expanded Court. In other words, the amendment reduced, if marginally, the
president’s sole authority to select justices from among the pool of judicial nominees.
These changes hardly amount to court packing, even if the AKP were to be guaranteed a durable parliamentary majority. The Venice Commission has noted that a
parliamentary role in the selection of members of constitutional courts is the prevalent practice in Europe. In the words of the secretary of the Venice Commission,
Thomas Markert, constitutional courts “can annul legislation adopted by parliament and therefore need some democratic legitimacy as well as sensitivity to political
Courts and constitutional transition: Lessons from the Turkish case
695
issues.”69 The transition to an expanded TCC occurred by awarding the four alternate
justices—chosen under the pre-amendment procedures favored by the opposition—
permanent seats. That left only two new seats to be filled on the expanded Court in
the immediate aftermath of the September referendum. In the event, the Turkish
parliament filled the two vacancies with one candidate from among three chosen by
the Court of Accounts and one from three candidates nominated by the presidents
of Turkish bar associations. Thus, although the expansion from eleven to seventeen
judges was a significant increase, only two new members were initially added to the
Court under the new appointments procedure.
3.2. Judicial independence and accountability in appointments and
promotions
The second set of controversial amendments concern the composition of the Supreme
Board of Judges and Prosecutors. Here the amendments significantly alter the body’s
makeup, but not in a way that enhances the role of either the parliament or the president in the appointments procedure. Prior to amendment, the constitution provided for
the HSYK to be comprised of seven regular and five substitute members, with the minister of justice and the undersecretary to the minister of justice both serving as regular members (the latter ex officio). The remaining five regular members were all drawn
from the senior judiciary. Under the amendments, the HSYK is dramatically expanded
to include twenty-two regular members and twelve substitutes. While the minister of
justice and the undersecretary continue to be members of the Board, their authorities
are reduced, addressing concerns of undue executive influence. In particular, whereas
the undersecretary’s presence was previously required to convene a meeting—giving
the Ministry an effective veto over HSYK activities if it chose to boycott—HSYK decisions may now be taken in the absence of the members from the Ministry. More importantly, while the president, the Court of Cassation and the Council of State continue
to select some members of the Board, the majority of the expansion draws on a completely new pool of candidates to be selected by judges and prosecutors across the country at lower-level administrative and judicial institutions. In other words, the HSYK will
become more representative of the profession at all levels.70
Given that the HSYK decides on promotions to the courts of appeal in the country, the prior arrangement had produced a self-perpetuating oligarchy of judges that
Abdullah Bozkurt, Venice Commission Lauds Broad Representation in Judiciary, Today’s Zaman, Mar. 25, 2010,
available at http://www.todayszaman.com/newsDetail_getNewsById.action?load=detay&link=205332.
70
Reform along these lines was long sought by the European Union, which found the HSYK too narrow
and insulated to offer a democratic standard of accountability in judicial affairs. For instance, the most
recent pre-referendum European Commission report on Turkey’s progress on reforms toward accession
noted that the HSYK “is not representative of the judiciary as a whole; only senior members of the Court
of Cassation and of the Council of State are members of this Council,” and raised concerns about the
“independence, impartiality and efficiency of the judiciary.” The Commission specifically noted that the
HSYK was involved in what appeared to be politicized dismissals of prosecutors involved in high profile
cases. European Union Commission, Turkey 2009 Progress Report 11, 69–70 (Oct. 14, 2009), available at
http://ec.europa.eu/enlargement/pdf/key_documents/2010/package/tr_rapport_2010_en.pdf.
69
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I•CON 11 (2013), 666–701
applied ideological and other criteria to ensure that only like-minded members of the
judiciary were promoted to senior positions. The expansion of the HSYK to enable
junior judges and prosecutors to participate in the election process enables broader
judicial self-regulation, reducing the cliquishness that has characterized the promotions process for three decades. In fact, the amendments vest control over judicial
appointments and promotions in the judicial branch as a whole. Claims that the
AKP will necessarily benefit from such an expansion rest on the premise that a Board
that better represents the demographic makeup of the judiciary will be more closely
aligned with the AKP. On this account, HSYK expansion inures to the benefit of the
AKP because the party enjoys broader popularity in the judicial branch as a whole
than it did among the senior judges that previously dominated the Board. The fact that
the reform corrects a prior bias among the senior judges by producing a more representative Board hardly amounts to a packing of the courts. The elections that were
held following the referendum to fill the ten directly elected slots on the HSYK were
predictably decried by the opposition for creating a Board stacked with AKP-favored
candidates.71 Critics of such accusations countered that it was difficult to see how the
AKP could have unduly influenced a secret ballot involving 12,000 judges and prosecutors, while EU officials deemed the elections for the Board legitimate.72 3.3. The end of guardianship, military and judicial
The concerns voiced by critics of the amendments reflect the view, at base, that the
elected branches of government must be kept in check by unelected guardians of the
Turkish regime. One lesson of the 1980 military coup, despite its brutal excesses, was
that when civilian governments err, the Turkish military serves as the backstop for the
political order. Since 1980, this guardianship role has been shared between the army
and other parts of the state bureaucracy, including the high judiciary. Any attempt
to subject these guardians to democratic accountability is met with genuine alarm
by elites who fear the democratic reversal of their preferences. The fear is not that
demo­cracy itself is under threat but rather that democracy represents a threat to a
particular configuration of political power and prestige in Turkey.
The results of the 2010 referendum—which met with record high voter turnout
and passed with the support of 58 percent of voters—reflected the commitment of the
Turkish electorate to continuing the recent trajectory of democratizing reform, even
in the face of increasing elite polarization.73 In characterizing the referendum results
immediately following the vote, Prime Minister Erdogan said that the message from
Supreme Court Prosecutor Demands Cancellation of Judge, Prosecutor Board Elections, Cumhuriyet, Oct. 22,
2010, available at http://en.cumhuriyet.com/?hn=184490.
72
New HSYK Has Poor Image, Turkish Experts Say, Hürriyet Daily News and Economic Review, Oct. 22, 2010
(citing leading Turkish constitutional law expert, Ergun Özbudun, as viewing the allegations baseless); EU
Official “Pleased” with Turkey’s HSYK Election, Hürriyet Daily News and Economic Review, Oct. 27, 2010.
73
For the complete official results of the referendum, see Yüksek Seçim Kurulu [Supreme Election Board],
Referandum Seçim Sonuçlari [Results of Constitutional Referendum] (Turk.), available at http://secim.
haberler.com/2010/ (complete results), and http://www.ysk.gov.tr/ysk/Referandum2010Il.html (official breakdown by province).
71
Courts and constitutional transition: Lessons from the Turkish case
697
the electorate is: “Yes to freedom. Yes to rule of law. No to the law of the rulers. The
tutelage of the coup regime is over.”74 The reference to the end of the guardianship
system was one that the Turkish audience understood readily. Further, the referendum results show that commitment to ending the “tutelage of the coup regime” was
broader than the AKP’s electoral base. As the 2011 legislative elections demonstrated,
while the AKP commands a plurality of the Turkish electorate it cannot muster the
near 60-percent majority enjoyed by the referendum. The depth of support for the
referendum reflects a generational shift in favor of democratization and away from
guardianship. Further, by removing an elite trump card, the new features of Turkey’s
post-referendum constitutional design may incentivize greater elite convergence and
consensus-building without the option of recourse to extra-political measures. Of
course, such consensus would require genuine outreach by the AKP to opposition
parties to build elite convergence and avoid the polarization that preceded the referendum. In the end, the 2010 amendments adopted by a clear majority of the Turkish
electorate focused on core elements of constitutional design necessary for a transition
away from an authoritarian (or quasi-authoritarian) political system and towards
political liberalization. Key among these was imposing mechanisms of democratic
accountability and civilian control over the unelected branches of government.
4. Broader lessons for constitutional transition
As Kim Scheppele argues, the value of studying a particular case in depth is to “identify the mechanisms through which governance is accomplished . . . noting complex
relationships in one setting and then seeing how far other settings can be understood
in those same terms.”75 Having considered recent Turkish experience with the potential risks presented by a strong and independent apex court during a period of democratic consolidation, the question is what lessons, if any, are more broadly ap­plicable.
To the extent that the Turkish case offers “lessons” for transition, the analysis presented herein suggests that conventional institutional design prescriptions related to
judicial independence should be revisited. In particular, the meaning of “judicial independence” should be understood differently in the context of a democratizing transition from minority rule to majority rule. Rather than focusing exclusively on the
expected rule-of-law benefits associated with strong and autonomous constitutional
courts once transition has occurred, the composition and potential commitments of
the judiciary to the pre-transition order during periods of democratic consolidation
should also be taken into account.
At present, judicial independence is conceived primarily in terms of separation of
powers. Though the doctrine of institutional separation is always accompanied, at least
implicitly, by the idea of “checks and balances,” the emphasis tends to be on maintaining
Ben Birnbaum, Erdogan Scores Victory in Turkish Statute Vote, Wash. Times, Sept. 12, 2010, available at
http://www.washingtontimes.com/news/2010/sep/12/constitution-reform-moves-turkey-moretoward-islam/.
75
Scheppele, supra note 3, at 390–391.
74
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the autonomy of the courts rather than on subjecting them to political checks. Indeed,
judicial independence is often discussed as a good in itself, regardless of the nature of the
regime to which it is attached.76 In some ways, this emphasis makes sense in circumstances where constitutions are understood as rights-protecting documents and thus
constitutional courts (and judicial review) as constraints on the arbitrary power of the
state, even in non-democracies. To the extent, however, that the importance of judicial independence is conceived in terms of protections for the rights of minorities from
majoritarianism, this emphasis may be misplaced in times of democratic transition away
from the rule of the few towards greater inclusion and participation. This is all the more the
case when constitutions are not conceived as rights-protecting instruments—and hence
offer little protection to individual or minority rights—but rather serve to protect state
prerogatives against social pressure. As Nathan Brown has shown in his work on constitutions in the Arab world,77 constitutional texts may be deemed useful by some regimes
not as liberal constraints on the excesses of representative government but rather instruments to augment the authority of the executive or to proclaim and entrench an ideological conception of the state. In the Turkish context—where the Constitution and the
Court were both created to protect a hegemonic constitutional ideology (and its particular interpretations of such principles as nationalism and secularism)—the insulation
of the high judiciary from accountability to elected branches of government impeded
democrat­ization. Further, unlike the cases ordinarily contemplated in debates about
judicial review—that is, appellate courts exercising powers of constitutional review
over legislation—the Turkish case also presents the extreme counter-majoritarian difficulty of an unelected body overturning properly ratified amendments to the constitution
itself.78 To the extent that such extreme measures become more commonplace among
In a recent consideration of the relationship between regime type and judicial independence, the authors
find that while democracy is better able to produce independent courts there is a general international
push “for the establishment of powerful independent courts as part of a broader effort to shore up the
rule of law” in the developing world, with the World Bank imposing conditions on its lending designed
to promote judicial autonomy. In their conclusion, the authors note that “[i]f there is any concept of
modern governance that enjoys more widespread admiration even than democracy, it is judicial independence.” See Gretchen Helmke & Frances Rosenbluth, Regimes and the Rule of Law: Judicial Independence in
Comparative Perspective, 12 Ann. Rev. Pol. Sci. 345, 346, 361 (2009).
77
Nathan Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for
Accountable Government (2002).
78
For instance, the long-running debate between the constitutional and political theorists Jeremy Waldron
and Ronald Dworkin over the democratic legitimacy (or lack thereof) of judicial review concerns review
of legislation, not constitutional amendment. For an example of Dworkin’s defense of judicial review,
see Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (2002) (see esp. ch. 4, “Political
Equality”). For an example of Waldron’s critique of judicial review as anti-democratic, see Jeremy
Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346 (2006). The present article
advances the view that judicial independence should not require complete insulation of the judiciary
from democratic accountability. Given that the 1982 Constitution was promulgated under military rule
and contained severe restrictions on individual rights and liberties, review that enforces constitutional
orthodoxy against reform raises legitimacy concerns that both Dworkin and Waldron would embrace.
Indeed, Dworkin’s defense of judicial review is predicated on a democratic and rights-based paradigm
of constitutionalism. The role of the courts in his account is protecting fundamental individual rights
against assault by the state. See Ronald Dworkin, Taking Rights Seriously (1977). The 1982 Constitution—
which reserved significant domains of power for the military, advocated a statist version of republicanism,
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699
apex courts confronted with rapid transition—as, for instance, with the dissolution of
the Egyptian parliament by that country’s apex court—reformers may require a more
nuanced and variegated account of the appropriate role for judicial review in periods of
democratization.
The Turkish definition of judicial independence highlights the risk that constitutional review may serve to insulate elite privileges from democratic reversal. Of course,
even in less stark cases an adequate definition of judicial independence should include
more than the classic inventory of characteristics intrinsic to separation of powers.
Separation of powers is generally understood to require, at a minimum, the following three characteristics: a constitutional basis for the separation of judicial authority from the legislative and executive functions of the state; insulation from direct
political interventions in the conduct of judicial proceedings; and sufficient control
over appointments, promotions, and salaries that judges may exercise judicial power
without fear of jeopardizing their employment or the funds allocated to the judicial
branch more generally.79 This third component touches indirectly on the composition
of the judiciary, but protects only against direct control by the elected branches. What
is absent from this definition is an appreciation that risks to the meaningful autonomy
of the judiciary may also emanate from beyond the elected branches, particularly in
nondemocratic or partially democratic contexts. In such contexts, the crucial import­
ance of another, less well-studied component of judicial independence becomes more
apparent: to be fully independent of undue influence, the composition of the judicial
branch should also fairly reflect the underlying society. Indeed, in cases of democratic
transition, independence from elite capture may be a more important characteristic of
judicial independence than the relationship of the courts to the elected branches of
government.
During periods of democratic transition, the elected branches of government may
be less significant threats to a well-functioning judiciary than other organs of the
state. Indeed, in Turkey, the Constitutional Court was so aligned with other unelected
branches prone to intervening against representative government—notably the
military, which even had an outsized role in the appointments process for the apex
court—that invocations of judicial independence were popularly understood as the
next best equivalent to direct calls for military intervention. In this sense, democratization should be understood as a transition away from the rule of unelected institutions.
and contained individual rights restrictions justified in terms of “public reasons” associated with the safeguarding of the state—bears little resemblance to a constitutional order in which judicial review would
be democracy-enhancing in keeping with Dworkin’s requirements. As a result, the argument herein does
not advance a general critique of judicial review as such, since the defenders of such review typically
limit their defense to rights-based paradigms of constitutionalism.
79
These characteristics include such matters as: constitutional basis for judicial autonomy; freedom from
undue executive and legislative political influence and pressure; and control over appointments, promotions, and salaries. See generally Symposium, Judicial Independence and Accountability 61 Law & Contemp.
Problems (Summer 1998).
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But if this is the case, then judicial independence without judicial accountability is a
remarkably poor prescription for democratic transition.80
While the need for a democratically accountable military is clearly understood
in transitional contexts81—making for an easy talking point in assessing the role of
the Supreme Council of the Armed Forces (SCAF) in Egypt, for instance—courts are
understandably seen in a distinctly different light. In the Turkish case—like many of
the Latin American transitions of the 1980s, and maybe the current Egyptian transition—the military has historically been treated as its own unelected branch of government (with relatively little civilian control) and the battle to redress civil–military
relations has been central to accounts of democratization. Yet the role of the courts as
a parallel and often supportive unelected branch is under-analyzed. Once (soft) military coups were no longer viable as a check on civilian rule—due to erosion of public
confidence in the role of the military as a guardian—the Turkish judiciary stepped in
with a call to order that set in motion the cases discussed in the previous sections. The
TCC’s decision to entertain these cases might have resulted in the closure of a party
that won the largest share of electoral support in the history of multi-party elections
in Turkey. The imbalance between the judiciary and the representative branches of
civilian government in this case was almost comparable to the risk posed by an overweening military.82 The fact that the events of 2008 were described as a judicial coup
in the Turkish media reflects a public awareness of this parallel.
In enforcing fidelity to a military-authored constitution, the TCC threatened the
recently re-elected prime minister and the sitting president of the country with removal
from office—put otherwise, the representative institutions of the country were subjected to something akin to a military-endorsed judicially-managed extra-political
confirmation process. Yet, when the judicial reform initiatives of 2010 were proposed
they were perceived by critics as threatening the rule of law rather than correcting
The crucial idea that judicial independence and judicial accountability should be understood as complementary elements of the necessary institutional design for a well-functioning constitutional order
was recently underscored in a major interdisciplinary study of the doctrine of judicial independence. See
Stephen B. Burbank & Barry Friedman, Reconsidering Judicial Independence, in Judicial Independence at the
Crossroads: An Interdisciplinary Approach 10 (Stephen B. Burbank & Barry Friedman eds., 2002) (noting
that “discussions of judicial independence often proceed on the erroneous premise, stated or unstated,
that judicial independence and judicial accountability are discrete concepts at war with each other, when
in fact they are complementary concepts”).
81
See, e.g., Thomas C. Bruneau & Florina Cristiana (Cris) Matei, Towards a New Conceptualization of
Democratization and Civil-Military Relations, 15 Democratization 909 (2008) (noting the emphasis on
the role of the armed forces and the imperative of democratic accountability and civilian control in the
democratization literature).
82
Should a military intervention have risked overturning the electoral mandate earned by the AKP in 2007,
the perception that something was amiss would undoubtedly have been more pervasive internationally.
But it may not be a stretch to speak of the importance of democratizing civil–judicial relations in the same
vein as the literature on civil–military relations. A recent article captures this point in the Pakistani context, arguing that in some ways “maximal autonomy” for the judiciary poses a similar threat to the comparatively weak post-Musharraf civilian government as the military does, namely the threat of a return
to authoritarianism. Anil Kalhan, “Gray Zone” Constitutionalism and the Dilemma of Judicial Independence in
Pakistan, 46 Vanderbilt J. Transnat’l L. 1, 3–4 (2013). Kalhan describes this dilemma as a form of “enduring disequilibrium” between the judiciary and representative institutions in Pakistan.
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Courts and constitutional transition: Lessons from the Turkish case
701
for entrenched resistance to democratization at the heart of the constitutional order.
This misreading of the context results in part from an unduly constrained definition
of judicial independence—focused on autonomy from the representative branches. By
emphasizing autonomy free from accountability, invocation of judicial independence
served to empower the courts to entrench elite preferences against ­democratic reversal. Far from decrying the judicial reforms as court-packing, the reading of the 2010
amendments offered herein suggests that they served to unpack a judiciary comprised
of—and disproportionately supporting the interests of—state elites. Amendments
that alter the composition of the judiciary by enlarging the pool from which qualified judicial candidates are drawn should be deemed desirable at a time of democratic
transition.83
The coda to the story of Turkish constitutional crises was a set of reforms that
served to redress an imbalance of constitutional authority between the legislative and
judicial branches by reintroducing checks and balances in the Turkish institutional
embodiment of separation of powers. The most significant lesson to be drawn from
this experience is the importance of extending mechanisms of democratic accountability to the courts in areas of judicial governance like appointments and promotions, especially during transitions. The counter-majoritarian difficulty posed by an
apex court at such times is not an argument against judicial independence. Rather,
periods of democratic transition require careful thought to the appropriate balance
between autonomy and accountability captured by the concept of judicial independ­
ence. A doctrine of separation of powers that includes the institutional prerequisites
for producing a judiciary reflective of the underlying society is particularly important.
Ensuring that the judiciary is not dominated by any single group—whether a minority or a majority—not representative of the whole is critical to avoiding one of the
pitfalls of Turkey’s halting transition. In short, the best concept of judicial autonomy
during democratization is one that centers on preserving impartiality while preventing institutional capture.
In some ways this argument may be more intuitive when democratic transition from the rule of the few to the
rule of the many is more apparent. For instance, few would have considered it democratically suspect for the
post-apartheid democratization period to include judicial reform altering the composition of the judiciary
to ensure that it better reflect the makeup of the underlying society. Though the form of minority rule associated with the dominance of Kemalist state elites since the 1950s is not comparable to apartheid generally,
its institutional implications for the composition of the higher echelons of the civilian bureaucracy and the
judiciary were similar. The transformation of the South African judiciary in terms of race and gender diversity did not imperil judicial independence. And while concerns always exist in cases of government intervention in judicial administration, the South African case counsels that such concerns can be addressed.
See Amy Gordon & David Bruce, Transformation and the Independence of the Judiciary in South Africa (Center
for Study of Violence and Reconciliation, Johannesburg, 2007), available at http://www.ssrnetwork.net/
document_library/detail/4047/transformation-and-the-independence-of-the-judiciary-in-south-africa.
83