Turkey’s Constitutional Court overturns controversial judicial bill

ANKARA

The main opposition Republican People's Party (CHP) had filed an appeal to the Court March 2.

The Constitutional Court partly overturned a controversial judicial bill on April 11, demanding a redefinition of the justice minister’s increased competences.

The bill on the Supreme Board of Judges and Prosecutors (HSYK), drafted by the government as a response to graft allegations, had sparked weeks of debate over concerns on the independence of the judiciary.

The court has overturned the articles in the law regarding new competences conferred to the justice minister.

The main opposition Republican People’s Party (CHP) had filed an appeal to the Court March 2, arguing that the law gave extraordinary and unconstitutional authority to the justice minister.

The ruling paves the way to some uncertainties, as a number of HSYK members were automatically dismissed after the law entered into force in February. New members were subsequently appointed with the final approval of Justice Minister Bekir Bozdağ, one of the controversial extraordinary competences introduced with the new law.

CHP Deputy Chair Sezgin Tanrıkulu called on the new members of the HSYK “to ethically resign” over the Constitutional Court’s ruling.

“They should resign as soon as the decision is published in the Official Gazette. The independence of the judiciary is very important and no shadow should be cast over it,” Tanrıkulu told daily Hürriyet.

Justice minister questions timing of ruling

The key figure involved in the Constitutional Court’s ruling, Justice Minister Bozdağ, questioned why the Court moved the review of the bill to an earlier date, while also maintaining that the bill was not unconstitutional.

“It is apparent that until today there was nothing that forced the President of the Constitutional Court [Haşim Kılıç] and the Court to take this issue on the agenda. However, as far as it is understood, other things required our honorable president to urgently take this issue onto the agenda,” Bozdağ said, in remarks reflecting his uneasiness over critical rulings recently delivered by the top court.

“I don’t approve of the fact that the Court is found at the center of political debates. I hope we can keep the Court far from the country’s agenda,” he added.

Bozdağ’s comments were backed by Deputy Prime Minister Emrullah İşler, who described the timing and speed of the decision as “meaningful.”

“We will make an assessment after examining the detailed ruling,” İşler said. “The decisions of the Constitutional Court are binding. There is no hesitation about it.”

Bozdağ, meanwhile, suggested that the ruling would not have a retrospective effect, indicating that the recently appointed HSYK members would not be replaced.

Sword of Damocles

The Constitutional Court’s April 2 ruling to unblock Twitter came as a result of the opportunity for individual access to the Court, which began in the autumn of 2012. The government had aimed to decrease the huge number of applications lodged against Turkey at the European Court of Human Rights (ECHR) through this mechanism.

 “I hope that the Constitutional Court will from now on deliver its ruling on Twitter in individual appeals by our citizens too. We are waiting for the result,” Bozdağ said, in an apparent reference to an April 10 appeal by ruling Justice and Development Party (AKP) deputy and Parliament Constitution Commission head Burhan Kuzu to block access to Twitter or remove the content that allegedly insulted him.

Earlier this week, Bozdağ also warned that Supreme Election Board (YSK) decisions could not be taken to the Constitutional Court either by individual access or other means. His warning referred to main opposition Republican People’s Party’s (CHP) nominee for the Ankara Metropolitan Municipality, Mansur Yavaş, as Yavaş had already announced that he would appeal to the top court if his appeal to the YSK to cancel the results of the contested local election in the capital city of Ankara was rejected. The YSK rejected the CHP’s appeal earlier this week and Yavaş has yet to file to the Constitutional Court.

The remarks from governmental figures on both cases - Kuzu’s appeal and Yavaş’s prospective appeal - hang like a Sword of Damocles over the Constitutional Court, having led to widespread speculation that the government may attempt to restructure the court according to the results in these cases.
The disputed bill was first passed by Parliament on Feb. 15 in a tense session marked by brawls and fistfights between lawmakers.

Frustrating calls to veto the bill, President Abdullah Gül approved the law on Feb. 25, stating that he had warned the government over 15 elements in 12 articles that were incompatible with the Constitution. Gül said the bill had been reworked after his warnings, but added that he “deemed it more suitable” that the other articles of the bill be assessed by the Constitutional Court.

In the subsequent process, the Venice Commission, which is an advisory board of the Council of Europe on constitutional law, voiced its expectation that the bill would be overturned after the Constitutional Court’s review.

The law drafted at the beginning of January had also further strained relations between Brussels and Ankara, and the EU Enlargement Commission wrote two letters asking the government to suspend it. During a visit to Brussels at the end of the same month, Prime Minister Erdoğan assured European Union officials that the government would not compromise the independence of the judiciary.

On his return, Erdoğan announced that the government would freeze the judicial bill if the opposition accepted a constitutional change restricting the HSYK.

However, after talks mediated by President Gül failed to bear fruit, the government submitted the bill to the Parliament agenda once again amid renewed criticism.

Gül proud of ruling unblocking Twitter

As recently as April 3, President Gül expressed his pleasure over the top court’s Twitter ruling in strongly-worded remarks.

“What matters is the ruling that was unanimously made by the Constitutional Court. The rule of law is eventually proven in this country. Once upon a time, the Constitutional Court used to make political decisions. I see with pleasure that the 17 members whose political views are different are making significant decisions with unanimity,” Gül said, while noting that he had appointed 10 of those members.

“They are making decisions by relying on universal law. This increases confidence in the court. It is a matter of which I feel very proud. They made decisions concerning deputies under arrest and [Ergenekon coup plot suspect, former Chief of General Staff, İlker] Başbuğ. When you solely think about justice, such decisions come. Confidence in an institution is important,” he said.

New Constitution, or new Constitutional Court?

Science, Industry and Technology Minister Fikri Işık said the latest decision showed the necessity of drafting a new Constitution. “A new Constitution is absolutely needed for Turkey to pass to an advanced democracy,” Işık said.

The Constitutional Court also recently drew harsh reactions from the government after ordering for the block on Twitter to be lifted.

Erdoğan told reporters that he “did not respect” the decision, hinting that the top court had abused its authority with a ruling that “contradicted national values” and was taken before all legal paths were exhausted.

The head of the court, Kılıç, described the statement as “emotional,” adding that the court could review some cases swiftly depending on their importance.

‘Ruling clears Turkey’s path’

Union of Turkish Bar Associations (TBB) head Metin Feyzioğlu praised the ruling, but added that it did not surprise him.

“The Constitutional Court has cleared Turkey’s path. It is one of the decisions that shows how important the Constitutional Court is. It says that, according to the Constitution, there can be no law that contradicts the independence and neutrality of judges and prosecutors,” Feyzioğlu said.

Regarding the question of the newly appointed members of the HSYK, Feyzioğlu said he expected the Council of State to rule on the matter.

He noted that although the body had ruled for the reinstating of the previous members in a similar situation after a Constitutional Court decision, the decision did not become jurisprudence.

“The Council of State will decide whether or not to refer to that decision,” Feyzioğlu added.

Court rules on privacy on the web

The court also overturned a related law that gave authority for the treatment and protection of private information to the Communication Technologies Institution (BTK).

The opposition had criticized the law on the protection of privacy on the web, arguing that neither the BTK nor Turkey’s telecommunications authority, TİB, could be trusted to ensure the protection of users’ information.

“Both are unaccountable. Morevoer, there is no law [giving them authority], they are entitled by decree laws. All public institutions in Turkey are under the control of the government and what they do is between the lips of the [prime minister],” CHP lawmaker Erdal Aksünger said.

The rulings mark the latest moves by the Constitutional Court that counter steps taken by the government after the draft accusations and the critical leaked voice recordings.