After deliberations which lasted almost 10 hours, Turkey’s Constitutional Court on Wednesday signed, sealed and delivered another historic decision which, although in part disputable, shines with its caution to not cause severe damage for the fragile democracy.
The reform package, as prepared by the Justice and Development Party (AKP), had become a subject for appeal to the top court by the main opposition party, the Republican People’s Party (CHP), which had two-part demand: rejection of the entire package (and the referendum) on grounds of procedural “wrongdoing,” or the rejection of seven articles which specifically had to do with the reform of the Supreme Board of Judges and Prosecutors (HSYK) and the Constitutional Court itself.
The verdict came as a surprise.
First, the top court disagreed -- in a unanimous vote -- with the CHP and rejected its demand on procedural wrongdoing, finding that holding the referendum was appropriate.
Second, in a majority vote, the court entered deliberations on the portion of the changes on reforming the bodies of the high judiciary (HSYK and Constitutional Court) on the “essence” of the changes. As a result, the wording in some articles about selecting justices for those bodies was changed, instead of rejecting them altogether. This means that the top court, despite claims that it violated the very Constitution (Article 148) it serves under, for the third time is behaving like a legislative body -- taking upon the duty that is given to Parliament -- and interfering with the “content” of a major constitutional amendment. Previously, it had seen itself as entitled to do so -- to protests by prominent experts and the Venice Commission -- by arguing that it is highly proper to judge amendments to the first four unchangeable articles of the Constitution: It happened when it found that a three-fifths quorum was necessary to convene Parliament for discussing and voting on constitutional changes and when it delivered its verdict on the closure case against the AKP.
Needless to say, this goes against the unchangeable tenets of democracy, where the roles of the three powers are separate and well defined. The top court acted again, to use a metaphor, as a driving course teacher, pulling brakes and grabbing the steering wheel, treating Parliament like a person without a license and reaffirming the tutelary regime.
That said, the question is: What about the current verdict? It is apparent that the top court, under strain, chose a “third path” which made no side entirely happy. The referendum will be held, but adjustments were designed by the court. It can be said that the package went through the appeals process with minimal damage. That the leadership of the AKP was very cautious in its reaction to the verdict means that it sees clearly that the reformist nature of the package is still intact. There is reason to agree: Seen as a whole, a “yes” to the referendum will bring Turkey several steps closer to a full-fledged democracy, help speed up further reform processes and make it more difficult to stage a return to the paradigms of “old Turkey” (unless by way of a coup d’état).
If the AKP is discontented with the repeated role of the top court in acting like a legislative body, the disappointment both by the CHP and representatives of the conservative high judiciary was much more vocal. CHP leaders did not think the verdict met their expectations (based on at least a partial rejection of the package) at all. Voices from the HSYK and the Judges and Prosecutors Association (YARSAV) were clearly bitter, with some declaring that the “battle is not over.”
Unless it changes its course radically, the AKP seems to think it can live with the way the package will go to the people’s vote. That it emerged from the top court’s scrutiny with slight bruises may mean that the AKP may postpone its intention to go to early elections in the autumn.
This will have to do with the awkward position Wednesday’s verdict puts the CHP in. Earlier, the top figures of the main opposition had declared that they would vote yes for the package if the disputed articles were rejected. How should they act now, given that the high court did not fully deliver what they had asked for? If the CHP decides to say “no” to the referendum, the AKP may emerge victorious with the claim that the entire “yes” segment belongs to it. Additionally, the CHP may look even more undemocratic than before, raising the speculation that nothing has changed in its post-Baykal period -- and perhaps nothing will.
The same dilemma will also apply to powerful organizations like the Turkish Industrialists and Businessmen’s Association (TÜSİAD), the Confederation of Revolutionary Workers’ Unions (DİSK), the Turkish Union of Chambers and Commodity Exchanges (TOBB) and some segments of academia, which had been critical of points in the package.
Now that they have been partially revised, what will these players do? Interesting, indeed.
It seems that the Constitutional Court refused to be part of further polarization, and with that it shuffled the civic responsibility over to political, social and economic actors. Politics in Turkey always have mysterious ways.