Late last year, in September 2010, Turkish voters approved by 58% of the vote a set of constitutional amendments, which included a court-packing plan that expanded the size of the Turkish Constitutional Court from eleven to seventeen seats (which I discussed here). Further changes are now on the horizon for the Constitutional Court. Earlier this month, the governing Justice and Development Party proposed legislation to alter the hierarchy of the Turkish judiciary.
Currently, the Turkish judiciary consists of a two-level court system, with trial courts at the bottom and appellate courts at the top. The four primary appellate courts—the Constitutional Court (Anayasa Mahkemesi), the Council of State (Danistay), the High Court (Yargitay), and the Military High Court (Askeri Yargitay)—have jurisdiction over different subject matters. The Constitutional Court reviews the constitutionality of laws, the Council of State hears appeals from lower administrative courts, the High Court has jurisdiction over civil and criminal appeals, and the Military High Court hears appeals from lower military tribunals. Under the current system, each appellate court is the final arbiter of cases within its subject-matter jurisdiction and no right of appeal exists from one appellate court to the other (though, under Article 152 of the Constitution, courts may refer a case to the Constitutional Court where the court is “convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties”).
The proposed legislation would transform Turkey’s two-level judiciary into a three-level judiciary by placing the Turkish Constitutional Court at the top of the hierarchy. Under the proposed legislation, the Constitutional Court would become the highest court of appeal and would have jurisdiction to review, affirm, and overturn the decisions of the Council of State, the High Court, and the Military High Court, which would become intermediate courts of appeal.
Burhan Kuzu, the Chair of the Constitution Committee in the Turkish Parliament and a founding member of the governing party, explained that the proposed changes are intended to improve Turkey’s poor track record before the European Court of Human Rights (ECHR). According to Mr. Kuzu, if the Turkish Constitutional Court has jurisdiction to review the judgments of the other appellate courts, the Constitutional Court may correct an erroneous court ruling without the intervention of the ECHR, obviating any appeal to the ECHR.
But others believe ulterior motives lurk behind the proposed legislation. Notwithstanding any concerns about Turkey’s track record before the ECHR, why would the governing Justice and Development Party expand the jurisdiction and the authority of a court with which it has clashed repeatedly? After all, this same court was the target of a successful court-packing plan proposed by the governing party last September.
The secularists believe that the governing party, having successfully passed the court-packing plan, now wants to place the court at the top of the Turkish judiciary. Following the implementation of the court-packing plan, the once pro-secular Constitutional Court is expected to drift toward the pro-Islamist ideology of the governing party. And because the Court will likely start singing the governing party’s tune, the governing party has a powerful motive to expand the Court’s jurisdiction and ensure that the other appellate courts in the country fall in line with the Court’s newfound ideology.
The proposed legislation on the promotion of the Turkish Constitutional Court is still pending before the Constitution Committee in the Parliament.
— Ozan Varol, Chicago-Kent College of Law