Court justification on '367 decision' angers experts

Angry responses to the justification for the Constitutional Court decision that canceled the first round of the presidential election continued.

Court justification on '367 decision' angers experts
Angry responses to the justification for the Constitutional Court decision that canceled the first round of the presidential election continued on Thursday.

The Constitutional Court's reasoning, publicized after 58 days of foot dragging, attempts to explain why the court believes the text of the Constitution sets the quorum for all rounds of the presidential election at 367 -- a two-thirds majority. The justification included a neologism -- "qualified consensus" -- to be sought during presidential elections.

The decision clarified that the quorum for the election of the speaker of parliament does not need this qualified consensus and that 184 deputies are enough to start the voting for the speaker’s election. The justification endorses the position of the opposition Republican People’s Party (CHP), which applied to the court after the first round of the April 27 election. The CHP claimed the two-thirds majority stipulated in Article 102 of the Constitution applies to both the quorum and the necessary number of votes needed for a decision. “It is obvious that the Constitution aims to provide for the largest possible qualified consensus in Parliament,” reads the text of the decision.

Constitutional law professor Mustafa Kamalak, commenting on the justification, challenged the decision, saying, “If a qualified consensus is required for the first round, then why doesn’t the same requirement hold for the second and third rounds?”

Kamalak expressed his opinion that he didn’t think the Constitutional Court decision was legal but stressed that it was binding. However, Kamalak said he didn’t expect a similar crisis over the next presidential elections. Stressing that Turkey was supposed to be a state of law, Kamalak said: “The rules of the state of law were made earlier. A quorum of 367 is not one of them.” Abbas Gökçe, one of the authors of the 1982 Constitution, warned that the people who rendered this unlawful decision would not have the right to complain when they fall victim to a similar injustice. “The supremacy of law was ignored,” Gökçe said, emphasizing that the decision was a major legal mistake.

Deputy Chairman of the Justice and Development Party (AK Party) Dengir Mir Fırat said the decision was a violation on the part of the Constitutional Court. Speaking to members of the press in the southern province of Adana, where he is campaigning for election, Fırat said: “As a lawyer, I’ve been praying that God would help the person writing the justification of the decision since the day it was made. After all, it was not possible to write down a legal justification for the decision. Today, I read that rationale. It openly says, ‘I can violate the existing constitution’.”

Urgent reform of court needed

Reform of the Constitutional Court has been called for on grounds that it has alienated the Turkish Constitution. It is reported that the Constitutional Court widened its jurisdiction while narrowing the political sphere. Ahmet İyimaya, the former chairman of the parliamentary Constitutional Commission, underscoring that Turkish constitutional science must concentrate on the reformation of the Constitutional Court, said: “The Constitutional Court, which has transgressed the borders of the judiciary, must be salvaged from the rule of judges, and consensus must be made on the basis of the reformation of the court. At this point the option of suspending its legislative veto must be evaluated by Turkish constitutional science and politics.”

İyimaya stated that the Constitutional Court has adopted an interventionist approach not specified under the Constitution. “The Constitutional Court has failed to produce a persuasive constitutional reasoning for its decision, which has fueled crises in the system, democracy and politics. The dissident opinion makes reference to the effects of the environment in which the decision was given and of certain people and organizations on the court. But the court should have attempted to eliminate the distrust created by the environment emphasized in the reasoned decision. The court has created fault lines in the face of the decisions given by great jurist Recai Seçkin, one of the founding pioneers of the Constitutional Court, and its reasoned decision has distanced itself from the construing methods, the constitution and the rule’s intention of facilitating [the presidential election]. With this decision the Constitutional Court has alienated the constitution. This decision will be subject to more controversies. Turkey must reform the court as it has assumed an interventionist position which is not allowed by the Constitution,” he said.

Drawing attention to the harmony of powers on the legal axis, İyimaya added: “The crisis between the Constitutional Court and the legislature, which dates back to older times and still occasionally rears its ugly head, has dealt the greatest of damage to law and our development. The harmony of powers along the axis of law will add to social peace, and the transformation of our civilization. Turkey will establish this golden balance sooner or later.”

When asked about the fact that the Constitutional Court had given its reasoned decision dependent of conjecture, he said: “With this decision, the Constitutional Court has assumed the role of constitutional lawmaker and removed the clear meaning of the rule. Through the heavy pressure of the conjecture it has narrowed down the political sphere and distorted the constitutional reflex of politics within the problematic arena of the presidential election. The crisis character of the solution will recur in future elections. I don’t think that any of the distinguished members who back this decision are happy and will be happy in the distant future. The effects of the psychology of the environment will grow more pronounced within their inner consciences over time.”
Last Mod: 29 Haziran 2007, 09:46
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