The constitutional state

Constitutional Court head Zühtü Arslan focused on very important legal issues in a speech delivered the other day. What I regard as his most important sentence of that speech is: “As dangerous as an executive body which knows no boundaries, so is the ‘juristocratic’ state of the judiciary.”

A “juristocracy” is like a government of judges, where the judiciary has a tendency to act as the legislator, as well as a government. 

Turkey has experienced both of these threats: It is familiar with the authoritarianism of the executive and the guardian-like acts of the judiciary.  

During the Ecevit era, when a motion was prepared to make it more difficult to close political parties, the Constitutional Court issued a statement on Jan. 22, 2001, stating that “if closing political parties becomes difficult, then we cannot protect the regime,” causing the government to retreat from this motion.
   
The authoritarian stance of the justice in “crime of thought” matters and the ban on headscarves is a “juristocratic and guardian-like” example that should never occur in a state under the rule of law.

However, today, the guardianship or tutelage of both the judiciary and the military has been overcome. As the decisions of the Constitutional Court in the past couple of years have shown us, the pressure now comes from the elected government. 

Professor Arslan, as somebody with liberal sensitivities, has opposed both tutelage and juristocracy. Arslan’s article, which was published in 2007 in the international publication Fighting for Political Freedom, is also extremely important in terms of liberal democracy. In his article, titled “Reluctantly Sailing towards Political Liberalism: The Political Role of the Judiciary in Turkey,” he explained the authoritarian traditions of the state and how the guardian-like judiciary facilitates this. He pointed out that 62 percent of Turkish society believed that there was “state” pressure on the judiciary. 

He wrote that the independence of the judiciary was not able to adequately protect “freedoms, civil society and individual rights” in Turkey. In the accession to the EU, there have been some “reluctant” developments in this direction. The judiciary should be liberal as well as independent, he stressed.

‘New paradigm’ 

Much has changed since 2007, especially after the 2010 referendum, when the guardianship era came to a close. In his speech, Arslan was appreciative of former Constitutional Court head Haşim Kılıç for his pioneering role in the change of this paradigm and steering toward liberalism. 

This is an absolutely correct evaluation. 

Now, the head of the Constitutional Court is Arslan. The Constitutional Court is in the position to be the “voluntary” defender of freedoms, by protecting the separation of powers against tendencies restricting freedoms, erosion and the formation of, this time, a political tutelage over the judiciary. 

Today, the appointments made by the executive body to the Supreme Board of Prosecutors and Judges (HSYK) are still valid, based on a law the Constitutional Court annulled because it was contrary to the principle of the separation of powers. This is because the annulment is not retroactive.  

The government says, without consulting the Constitutional Court, that it will restrict individual application rights, but Arslan has objected to this. 

An Eskişehir Criminal Court of Peace judge applied to the Constitutional Court, stating that the formation of Criminal Courts of Peace, made in order to control legal investigations, was against the constitution.

However, unfortunately, the Constitutional Court has rejected this. I will write my criticism when a justified decision is released. 

There will, of course, be differences of opinion in justice. However, what suits our Constitutional Court and Professor Arslan best is to maintain with determination “the liberal role of justice” at the universal legal level.