Courts and constitutional transition: Lessons from the Turkish case

International Journal of Constitutional Law

Volumn 11, Issue 3, 2013, Pages 666-701

  Bâli, Asli ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 84884917977     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mot025     Document Type: Article

References (120)

1. For instance, Turkey's prime minister was ranked among the most popular leaders in a public opinion poll of the Arab world conducted by Zogby International and the Brookings Institution
2. 2010 Arab Public Opinion Poll, Brookings Institution, Aug. 5, 2010, available at http://www.brookings.edu/reports/2010/0805_arab_opinion_poll_telhami.aspx.
3. Egypt SCC has evidenced the potential challenges in its recent decision to annul the parliamentary elections and dissolve the first post-Mubarak parliament
4. David Kirkpatrick, Blow to Transition as Court Dissolves Egypt's Parliament, N.Y. Times, June 14, 2012.
5. The collusion between the high judiciary and the military authorities in the dissolution of the Egyptian parliament seems consistent with Ran Hirschl's observation that constitutional courts may serve as mechanisms of elite preservation in the face of democratic, majoritarian change
6. Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (2004)
7. This term was usefully developed by Kim Scheppele to describe a qualitative, context-specific method of case study as a basis for developing broader theoretical insights in comparative constitutionalism
8. Kim Scheppele, Constitutional Ethnography: An Introduction, 38 Law & Soc'y Rev. 389 (2004).
9. In 1960 and 1980, the Turkish military overthrew elected governments and introduced a period of military rule while it put in place what it viewed were the structural prerequisites to ensure that the return to civilian rule would respect the core ideological commitments of republican elites. To avoid the obvious anti-democratic implications of direct intervention, the military also developed more indirect techniques to disrupt or reset civilian governance. The coup of March 12, 1971 was known at the time as the "coup by memorandum." The military delivered an ultimatum to the prime minister to restore law and order in accordance with Kemalist principles or face military intervention. The prime minister resigned and was replaced by a military-selected civilian leader who was tasked with selecting a cabinet of technocrats from outside of the political establishment to carry-out a military-backed program of reforms.
10. Erik J. Zürcher, Turkey: A Modern History 258-263 (2005).
11. Similarly, in 1997, the military intervened indirectly, in what was described in the Turkish media as a "postmodern coup." This time, the military used a press conference to issue an ultimatum to the governing coalition, resulting once again in the resignation of the sitting prime minister.
12. Haldun Gülalp, Political Islam in Turkey: The Rise and Fall of the Refah Party, 89 Muslim World 22, 39-40 (1999)
13. Not included in the traditional list of military interventions is a less successful effort in 2007, which failed to unseat the targeted prime minister. The attempted intervention this time was described as an "e-coup" because the military posted a warning to the government on its website, prompting early elections.
14. Ömer Taşpi{dotless}nar, The Old Turks' Revolt, Foreign Aff., Nov.-Dec. 2007, at 114, 115 (2007).
15. The early elections returned the targeted party to power with an even stronger electoral mandate, a rebuke that signaled an unwillingness on the part of Turkish society to countenance an ongoing role for the military in ordinary governance. The significance of the events of 2007 are discussed in Section 2 below. For the purposes of this article, the 2007 intervention is of greater interest than all prior military interventions precisely because it brought to an end the period of direct or indirect military rule, forcing the Kemalist state elites to find a replacement "guardian" of their ideological commitments. That substitute guardian of Kemalist republican commitments proved to be the Turkish Constitutional Court.
16. Ergun Özbudun & Ömer Faruk Gençkaya, Democratization and the Politics of Constitution-Making in Turkey 10-26 (2009)
17. The change in the language of Art. 148 in the 1982 Constitution was a deliberate rebuke to earlier efforts by the TCC to review constitutional amendments. In 1971, a constitutional amendment had established that the TCC was only permitted to hear challenges to the form and not the substance of constitutional amendments, but the Court had interpreted this provision liberally agreeing to hear substantive challenges to amendments on the grounds that they conflicted with core characteristics of the republic enumerated in Art. 2 (declaring the republic a national, democratic, secular, and social state government by the rule of law). In 1982, the National Security Council clarified that it intended to narrow the grounds of review of constitutional amendments to strictly procedural challenges.
18. The higher echelons of the judiciary that participated in TCC appointments were the Court of Cassation (Yargi{dotless}tay), the Council of State (Dani{dotless}ştay), and the Court of Accounts (Sayi{dotless}ştay) with an additional, indirect appointments role for the Military Court of Cassation (Askeri Yargi{dotless}tay). Together, these courts selected eight of the regular members of the TCC. In addition, the Grand National Assembly (lower house of parliament) chose three appointees, and the Senate (upper house) and the President each chose two.
19. Under the 1982 Constitution, candidates were nominated by the Court of Cassation, the Council of State, the Military Court of Cassation, and the Supreme Military Administrative Court (Askeri Yuksek Idare Mahkemesi). The Court of Accounts was removed from the appointments process and in addition to the supplementary military powers of appointment, the Supreme Board of Higher Education (Yuksek Ögretim Kurulu or YÖK) was also authorized to nominate candidates. Because the NSC was represented on the board of the YÖK in this period, the YÖK nominees were also perceived as candidates selected by the military.
20. At least four Kurdish parties have been banned on this basis since the resumption of civilian governance following the 1980 military coup. Those four parties are the People's Labor (Halki{dotless}n Emek) Party (closed in 1993), the Democracy Party (closed in 1994), the People's Democracy (Halki{dotless}n Demokrasi) Party (closed in 2003), and the Democratic Society (Demokratik Toplum) Party (closed in 2009).
21. The term "assertive secularism" was coined (at least for the Turkish context) by Ahmet Kuru
22. Ahmet Kuru, Secularism and State Policies Toward Religion: The United States, France and Turkey (2009)
23. Kuru's definition is that the state actively excludes religion from the public sphere, adopting a comprehensive doctrine of secularism that requires more than separation of religion and state; it is premised on the stronger requirement of subordination of religion to the state. This doctrine also conceives of secularism as a worldview to be inculcated in society by a pedagogical state that enlightens its citizenry and guides them away from views deemed threatening to the political project of the republic. This idea of a pedagogical state, in turn, lies at the heart of the unwillingness of Turkish civilian and military state elites to turn governance over entirely to the elected branches. Along these lines, the Venice Commission-the Council of Europe's "Commission for Democracy through Law"-has embraced the view that Turkey has a "tutelary" political system in which democratically elected institutions share power with unelected authorities such as military authorities, elites in the state bureaucracy and the high judiciary. For example, the President of the Venice Commission remarked in November 2010 that: "the 1982 Constitution established a very coherent system of what is called by political scientists a tutelary democracy. This means a system, which seems based on democratic principles but where the democratically elected organs are placed under a kind of guardianship of the military, the high bureaucracy and the highest courts. Such a system cannot be regarded as genuinely democratic."
24. Gianni Buquicchio, President of the Venice Commission of the Council of Europe, Democratisation Process in Turkey in the Light of a New Constitution, Nov. 2, 2010, available at http://humanrightseurope.blogspot.com/2010/11/venice-commission-president-turkey.html.
25. For instance, the Nation (Millet) Party was closed by the Ankara Criminal Court (Ankara Asliye Ceza Mahkemesi) on Jan. 27, 1954. The grounds for party closures prior to the creation of the TCC were very much consistent with subsequent TCC practice. The principal grounds for closure have been and remain allegations of advocacy for political Islam or separatist Kurdish nationalism.
26. Ödül Celep, The Political Causes of Party Closures in Turkey, Parliamentary Affairs 1 (2012)
27. The practice of party closure referenced here does not include the extra-constitutional closure of all political parties (some 18 parties) by the Turkish military following the 1980 military coup
28. Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, art. 24 (Turk.).
29. Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, art. 68 (Turk.).
30. The parties in question are: The National Order (Milli Nizam) Party (1971), the Peace (Huzur) Party (1983); the Freedom and Democracy (Özgürlük ve Demokrasi Partisi, or ÖZDEP) Party (1993); the Welfare (Refah) Party (1998); and the Virtue (Fazilet) Party (2001). In the case of ÖZDEP, in addition to anti-secular activities the party was also accused of adopting a platform that threatened the territorial integrity and national unity of the country.
31. At the time of dissolution, the Welfare Party was the largest party in parliament, having won over 20 percent of the vote in the 1995 general election and garnered nearly one-third of parliamentary seats forming the largest single bloc in the GNA. The Virtue Party, formed after the dissolution of Welfare, inherited that party's seats in parliament. In the next general election of 1999, the party won 21.3 % of the vote and 111 (of 550) seats in parliament, making it the third largest political party in the GNA at the time of its dissolution in 2001.
32. The AKP won 49.83 % of the popular vote, resulting in 327 seats in the GNA. The next most successful political party, the Republican People's Party (CHP) earned 25.98 % of the popular vote and 135 seats in the GNA.
33. The election results were posted by the Supreme Election Board (Yüksek Seçim Kurulu) on June 12, 2011 and are available at http://www.ysk.gov.tr/ysk/index.html.
34. Susan Sachs, Turkey Approves Revision of Penal Code, N.Y. Times, Sept. 26, 2004, available at http://www.nytimes.com/2004/09/26/international/europe/26CND-TURKEY.html?_r=0.
35. These reforms were passed in 2001 and introduced comprehensive reforms to the legal status of women, including marital rights, reproductive rights, and protection from violence and predation. Though the reforms preceded the AKP's rise to power in 2002 the task of giving effect to the new laws and enforcing protections fell to the AKP and it developed a strong record of advancing implementation of these reforms in its first term.
36. Turkish Civil and Penal Code Reforms from a Gender Perspective: The Success of Two Nationwide Campaigns (Women for Women's Human Rights 2005), available at http://dl.dropbox.com/u/64736171/CivilandPenalCodeReforms.pdf.
37. Formal negotiations on Turkey's accession to European Union membership were initiated on Oct. 3, 2005 on the grounds that Turkey had fulfilled the Copenhagen political criteria on accession following civil and penal code reforms. The first negotiations were on six chapters of the 35 acquis communautaires with which Turkey would have to comply to be admitted as a member.
38. The framework for these initial negotiations is publicly available at http://ec.europa.eu/enlargement/pdf/st20002_05_tr_framedoc_en.pdf.
39. Negotiations have since stalled as a result of the reluctance of key constituencies in Europe to grant Turkey membership and a corollary decline in the rate of reforms undertaken by Turkey with a view to complying with EU criteria
40. Deniz Bingol McDonald, The AKP Story: Turkey's Bumpy Reform Path Towards the European Union, 33 Soc'y & Econ. 525 (2011).
41. The period from 2005 to 2007 had been marked by military-backed anti-AKP public demonstrations organized by ultranationalist groups claiming that the AKP harbored an anti-secular agenda that was threatening to Atatürk's legacy. For instance, one pro-secular rally attended by the Turkish generals, the then-sitting president and university rectors was in response to the shooting of a pro-secular judge that was attributed at the time to someone suspected of being pro-AKP.
42. Secular Worries, The Economist, May 25, 2006, available at http://www.economist.com/node/6980174.
43. The shooting was later claimed to have been a "false flag" operation by ultranationalists seeking to portray the AKP as fanatically anti-secular
44. Büşra Erdal, Ergenekon Suspect Arslan Contradicts Tekin Over Link, Today's Zaman, Oct. 21, 2009.
45. Ercan Yavuz, Former President Sezer's Vetoes Still Blocking Turkey, Today's Zaman, May 21, 2009, available at http://www.todayszaman.com/newsDetail_getNewsById.action?load=detay&link=175904 ("Sezer. .. was the president who issued the highest number of vetoes after the Sept. 12, 1980 military coup.").
46. Abdullah Gül's Presidential Ambitions Have Long Alarmed Turkey's Secular Establishment, BBC News, Aug. 28, 2007, 5:11 p.m. GMT, available at http://news.bbc.co.uk/2/hi/europe/6595511.stm ("[S]ecularists dislike the fact that Mr Gul's wife wears the Islamic headscarf.").
47. Huge Rally for Turkish Secularism, BBC News, Apr. 29, 2007, 3:33 p.m. GMT, available at http://news.bbc.co.uk/2/hi/6604643.stm.
48. The normal legislative quorum necessary for a vote to be valid is 184; the CHP argued that voting for presidential selection should require a super quorum of two-thirds of parliamentarians to be present (that is, 367 votes)
49. On the CHP's position concerning a super quorum, see Army "Concerned" by Turkey Vote, BBC News, Apr. 28, 2007, available at http://news.bbc.co.uk/2/hi/europe/6602375.stm.
50. Though the boycott of Özal's election as president remained sufficiently memorable to be included in his obituary, there was never a suggestion that his election by a simple majority was sufficient to earn him the presidency
51. Obituary: Turgut Özal, The Independent (UK), Apr. 19, 1993, available at http://www.independent.co.uk/news/people/obituary-turgut-ozal-1456191.html.
52. See, e.g., Ergun Özbudun, Anayasa Mahkemesi ve Demokrasi [Constitutional Court and Democracy], Zaman, Jan. 17, 2007 (Turk.).
53. Cengiz Çandar, Post-modern darbe [Post-Modern Coup], Sabah, June 27, 1997, available at http://www. webcitation.org/5uRjkSIYl (Turk.).
54. Specifically, the TCC found that: "The decision taken by the GNA on April 27, 2007 regarding the appropriate quorum required to move forward with the balloting in the first round of the selection process for the 11th President of the Republic represents a change in the rules of procedure, which we deem unconstitutional." Anayasa Mahkemesi [Constitutional Court], Esas No. 2007/45, Karar No. 2007/54 (Resmi Gazete, Jun. 27, 2007, No. 26565) (Turk.) (my translation). This view is based on a reading of Art. 102 of the Turkish Constitution, stipulating that "the President of the Republic shall be elected by a two-third majority of the total number of members of the Turkish Grand National Assembly and by secret ballot."
55. Ki{dotless}li{dotless}ç subsequently succeeded Tuǧcu as President of the TCC in Oct. 2007. Sacit Adali{dotless} was the third dissenting justice. Each dissenting justice wrote a separate opinion underscoring their astonishment at the majority's interpretation of Art. 102.
56. The crux of the Ki{dotless}li{dotless}ç dissent (summarized in the text above based on my translation) is found towards the end of his opinion in the following passage: Cumhurbaşkanli{dotless}ǧi{dotless} seçim sürecinin yirmi günde tamamlanmasi{dotless}ni{dotless} amaçlayan anayasakoyucunun daha birinci turda 3/2 toplanti{dotless} nisabi{dotless} ile sistemi ti{dotless}kayan bir modeli istemiş olmasi{dotless} asla düşünülemez. Toplanti{dotless} nisabi{dotless} (3/2) saǧlanamadi{dotless}ǧi{dotless} sürece 2., 3. ve 4. turlari{dotless}n yapi{dotless}lmasi{dotless} mümkün olmayacak, buna ilişkin kurallar anlamsi{dotless}z, işlevsiz kalacak, seçimlerin derhal yapi{dotless}lmasi{dotless}ni{dotless}n baǧli{dotless} olduǧu 4. tur hiçbir şekilde gerçekleşmeyeceǧinden fiili durumlarla sonuca gidilecektir....Daha seçimin başi{dotless}nda üçte iki toplanti{dotless} nisabi{dotless}ni{dotless} aramak, 1961 Anayasasi{dotless}'nda sorun olmuş bir konuyu çözmek, kolaylaşti{dotless}rmak deǧil daha da aǧi{dotless}rlaşti{dotless}rmakti{dotless}r. 1982 Anayasasi{dotless}'ni{dotless} yapanlari{dotless}n iradesi bu deǧildir. Anayasa Mahkemesi [Constitutional Court], Esas No. 2007/45, Karar No. 2007/54 (Resmi Gazete, Jun. 27, 2007, No. 26565) (Turk.) (Ki{dotless}li{dotless}ç, H. Karşi{dotless}oy).
57. Susan Frazer, Turks Vote "Yes" in Referendum on Electing Presidents by Popular Vote, Assoc. Press, Oct. 21, 2007.
58. In the end, Gül received one of the highest vote shares of any presidential candidate elected under Article 102 procedures, falling only 39 seats short of two-thirds support in the second round of balloting
59. Mavi Zambak, Tomorrow President Abdullah Gül Will be Elected, "Moderate" and "Islamic", Asia News.it (Aug. 27, 2007), available at http://www.asianews.it/news-en/Tomorrow-president-Abdullah-Gul-will-beelected,-%E2%80%9Cmoderate%E2%80%9D-and-%E2%80%9CIslamic%E2%80%9D-10147.html.
60. Support for a new constitution to replace the oft-amended but still illiberal 1982 Constitution predated the AKP's rise to power but was also strengthened by the AKP's electoral victories
61. For a discussion of the constitutional amendment packages that had liberalized the 1982 Constitution between 1987 and 2004, see Mehmet Fevzi Bilgin, Constitution, Legitimacy and Democracy in Turkey, in Constitutional Politics in the Middle East 123, 123-146 (Saïd Amir Arjomand ed., 2008).
62. The complete text of the draft constitution was disseminated on the internet and is still available online in Turkish
63. Yeni Anayasa Taslaǧi{dotless} (Tam metin 1) [New Constitution Draft (Complete Text 1)], NTV-MSNBC, Sept. 13, 2007, 11:57 a.m. GMT, available at http://arsiv.ntvmsnbc.com/news/419856.asp?cp1=1 (Turk.).
64. Of course, the fact that Hayrünisa Gül wears a headscarf was symbolic of the reason Gül's presidential candidacy was so hotly contested among civilian and military secular state elites
65. Annette Grossbongardt, Turkey Considers Candidate Gül: First Lady in a Headscarf?, Spiegel Online Int'l, Apr. 25, 2007, available at http://www. spiegel.de/international/world/turkey-considers-candidate-guel-first-lady-in-a-headscarf-a-479380.html.
66. Though it is beyond the scope of this article to offer a survey of the controversies over the headscarf since the founding of the Republic, the following brief background offers important context. First, polls consistently show that over 70 % of Turkish women and 65 % of Turkish men support the abolition of the headscarf ban on university campuses. See Ali Çarkoǧlu and Ersin Kalayci{dotless}oǧlu, The Rising Tide of Conservatism in Turkey 106 (2009) (citing survey results in table 6.4). Second, 2008 was not the first time the Turkish judiciary upheld the headscarf ban against democratic reversal. The TCC had twice before struck down parliamentary efforts to lift the ban: in 1988, the TCC held that a law explicitly permitting headscarves on campuses was contrary to constitutional provisions on secularism (in addition to finding that the exclusion of religious garments from the public sphere was essential to the protection of equality before the law, freedom of religion and the constitutionally protected values of Kemalism). See Anayasa Mahkemesi [Constitutional Court], Esas No. 1989/1, Karar No. 1989/12 (Mar. 7, 1989) (Turk.). Subsequently, in 1990, the TCC upheld a facially neutral law on freedom of dress in institutions of higher education, but specified that the law would have to be interpreted to be consistent with the Court's prior 1989 ruling. In effect, the legislation might remain on the books but it would not effectuate the lifting of the headscarf ban. See Anayasa Mahkemesi [Constitutional Court], Esas No. 1990/36, Karar No. 1001/8 (Mar. 9, 1991) (Turk.). These earlier legislative efforts had been undertaken by parties whose constituencies largely support the AKP in the contemporary period and the AKP was under pressure to use its electoral mandate to return to the issue of lifting the headscarf ban. Having seen, however, that ordinary legislation had proven ineffective in lifting the ban due to the TCC's interpretation of constitutional secularism, the AKP opted for the passage of constitutional amendments, which would require the support of a much larger proportion of parliament but would be relatively immune to TCC review.
67. Hilal Elver, Lawfare and Wearfare in Turkey, Middle E. Rep. Online, Apr. 15, 2008, available at http://www.merip.org/mero/interventions/lawfare-wearfareturkey.
68. Generally Hilal Elver, The Headscarf Controversy: Secularism and Freedom of Religion (2012) (providing an excellent overview of the recent history of the headscarf ban in Turkey)
69. The amendment to Art. 10(4) expanded the prohibition on discrimination by state organs and administrative authorities to "all public services." The amendment to Art. 42(1)-which provides that "no one can be deprived of his/her right to higher education"-added a phrase stating that any deprivation of the right would have to be specified by law. In effect, the amendments required the passage of a law explicitly regulating permissible restrictions on the right to an education. The clear parliamentary majority in favor of the amendments indicated that the opposition and the secular establishment would be unable to pass a law that would formalize the ban on headscarves following the amendments.
70. Turkish Parliament Approves Constitutional Amendments to Lift Ban on Headscarf, Turkishpress.com, Feb. 9, 2008, available at http://www.turkishpress.com/news.asp?id=214516.
71. For a constitutional amendment to be approved, it must either secure the support of two-thirds of the Parliament or be put to a national referendum. See Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, arts. 104(a), 175 (Turk.). The amendments passed by a vote of 411 in favor and 103 opposed, well over the two-thirds required for parliamentary passage of amendments. See Turkish Parliament Approves Constitutional Amendments to Lift Ban on Headscarf, above note 45.
72. The 1982 Constitution provides that the TCC may review regular laws enacted by the Parliament on both substantive and procedural grounds, but may only hear procedural challenges to constitutional amendments. See Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, art. 148 (Turk.).
73. Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, art. 148(1) (Turk.). (my translation)
74. Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, art. 148(1) (Turk.) (my translation)
75. The principal arguments set forth in the complaint presented to the TCC are summarized in the TCC's own review of the facts provided by the majority in its opinion under the heading "Dava dilekçesinde."
76. Anayasa Mahkemesi [Constitutional Court], Esas No. 2008/16, Karar No. 2008/116 (Resmi Gazete, Oct. 22, 2008, No. 27032) (Turk.), available at http://www.anayasa.gov.tr/index.php?l=manage_karar&ref=show&action=karar&id=2608&content=.
77. The submissions specifically referenced the following two cases: Leyla Şahin v. Turkey, App. no. 44774/87, Eur. Ct. Hum. Rts., June 29, 2004; and Dahlab v. Switzerland, App. no. 42393/98, Eur. Ct. Hum. Rts., Jan. 15, 2001.
78. The aspects of the majority opinion that are of interest for purposes of this discussion are those touching on the powers of the GNA to pass constitutional amendments and the power of the TCC to review such amendments. But, of course, the majority's opinion also contain a number of substantive arguments about the content and scope of the Kemalist doctrine of secularism.
79. For a detailed discussion of the arguments presented by the Court on secularism, see Theresa Perkins, Unveiling Muslim Women: The Constitutionality of Hijab Restrictions in Turkey, Tunisia and Kosovo, 30 Boston Univ. Int'l L.J. 529, 552-557 (2012).
80. Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey] Nov. 7, 1982, art. 175 (Turk.) (my translation).
81. The language of the opinion states that the legislature may sometimes be endowed with the primary power (asli kurucu iktidar) to draft or amend a constitution based on convening as a constituent assembly following a period during which ordinary legislative functions or the ordinary operation of the Constitution may have experienced an interruption. In other words, these are extraordinary powers accorded to legislatures at critical junctures of constitutional transformation. In the Turkish context, such junctures have only occurred in the aftermath of military coups. At all other times, the legislature is merely endowed with subsequent (or secondary) authority (tali kurucu iktidar) in the constitutional arena and may not initiate constitutional amendments that depart substantially from the original consensus in place at the time that the extant constitution was promulgated. The most coherent description of this distinction is a form of strict originalism that goes so far as to constrain the ability of democratically elected governments to propose amendments to the original Constitution. Yet the argument has the odd quality of marrying strict originalism with the announcement of a judicially created doctrine that finds no basis in the text of the Constitution in question.
82. See Ergun Özbudun, New Constitution is Now a Must, Today's Zaman, Oct. 26, 2008.
83. Mehmet Fevzi Bilgin, Constitution, Legitimacy and Democracy in Turkey, in Constitutional Politics in the Middle East 123, 123-46 (Saïd Amir Arjomand ed., 2008).
84. The relevant passage from the majority opinion is the following: Anayasa'ni{dotless}n 4. maddesinde Anayasani{dotless}n 1 inci maddesindeki Devletin şeklinin Cumhuriyet olduǧu hakki{dotless}ndaki hüküm ile, 2inci maddesindeki Cumhuriyetin nitelikleri ve 3 üncü maddesi hükümleri deǧiştirilemez ve deǧiştirilmesi teklif edilemez denilmek suretiyle, 175. maddede belirlenen yetkinin kullani{dotless}lamayacaǧi{dotless}, kullani{dotless}lsa dahi hukuken geçerli olamayacaǧi{dotless} alanlar açi{dotless}kça belirlenmiştir. Anayasa'ni{dotless}n 148. maddesinde öngörülen teklif ve oylama çoǧunluǧuna uyulmaksi{dotless}zi{dotless}n gerçekleştirilecek bir Anayasa deǧişikliǧi hukuken geçerli olamayacaǧi{dotless} gibi, deǧiştirilmesi teklif edilemeyecek bir Anayasa kurali{dotless}na yönelik deǧişiklik teklifi yasama organi{dotless}ni{dotless}n yetkisi kapsami{dotless}nda bulunmadi{dotless}ǧi{dotless}ndan, yetkisiz olduǧu bir alanda yasama faaliyetine hukuksal geçerlilik tani{dotless}mak da mümkün deǧildir.
85. The Court found support for this argument in the work of a constitutional law scholar whose views were relied upon in the petition for review of the constitutional amendments. Comments by the professor, Erdoǧan Teziç, in an interview with the newspaper Millitet, are cited for the proposition that any amendment that alters the secular character of the public sphere-such as one that enables the removal of the headscarf ban-is necessarily in violation of constitutional secularism under Art. 2 and the irrevocability provisions of Art. 4. Because, on this reading, the abolition of the headscarf ban through such an amendment would permit indicia of religious observance in government buildings, effectively altering Art. 2, it would be a form of tacit repeal of an irrevocable provision, tantamount to "cheating the Constitution" (Anayasaya karşi{dotless} hile).
86. In the intervening year since the balloting case the third dissenter, Justice Tuǧcu, had retired and she was replaced as President of the Court by Justice Ki{dotless}li{dotless}ç. As in 2007, Ki{dotless}li{dotless}ç was joined by Justice Adali{dotless} in dissenting from the majority opinion in the Headscarf case, though once again they issued separate dissenting opinions.
87. The dissenting opinions follow immediately after the majority opinion in the official version of the Headscarf case decision, under the heading "Karşi{dotless}oylar" (meaning dissenting opinions). Anayasa Mahkemesi [Constitutional Court], Esas No. 2008/16, Karar No. 2008/116 (Resmi Gazete, Oct. 22, 2008, No. 27032) (Turk.), http://www.anayasa.gov.tr/index.php?l=manage_karar&ref=show&action=karar&id=2608&content=.
88. See Anayasa Mahkemesi [Constitutional Court], Esas No. 2008/1 (SPK), Karar No. 2008/2 (Resmi Gazete, Oct. 24, 2008, No. 27034) (Turk.), available at http://www.anayasa.gov.tr/index.php?l=manage_karar&ref=show&action=karar&id=2611&content=.
89. The full text of the 1982 Constitution (as amended in 2010) is available in Turkish at http://www.anayasa.gen.tr/1982ay.htm.
90. A majority of judges-six out of eleven-voted in favor of closing the AKP, but the dissolution of a party requires the support of two-thirds of the TCC-in other words, seven judges. See Anayasa Mahkemesi [Constitutional Court], Esas No. 2008/1 (SPK), Karar No. 2008/2 (Resmi Gazete, Oct. 24, 2008, No. 27034) (Turk.). Further, ten of the eleven judges (all but Chief Justice Haşim Ki{dotless}li{dotless}ç) found the AKP guilty of involvement in anti-secular activities, but opted for the lesser penalty of reducing the party's support from the Treasury, as provided for under Art. 69(8).
91. European Commission for Democracy Through Law (Venice Commission), Opinion on the Constitutional and Legal Provisions Relevant to the Prohibition of Political Parties in Turkey, Doc. No. CDL-AD(2009)006 (Mar. 13-14, 2009), at ¶ 87, available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2009)006-e.
92. The official English translation of the amendments package (which reflects the minor changes mandated by the TCC ruling) is available at http://www.abgs.gov.tr/files/Bas%C4%B1nMusavirlik/haberler/constituional_amendments.pdf.
93. As discussed above, the electoral threshold applied in Turkey is such that only parties able to garner more than 10 % of the vote nationwide are awarded seats in parliament in proportion to their vote share. Assume, for instance, that there are six parties (A, B, C, D, E, and F) competing in the elections, each garnering the following percentage of the vote: A: 9.9%; B: 38%; C: 8.6%; D: 9.5%; E: 23%, and F: 11%. A, C, and D will not gain any parliamentary seats. All of the 550 seats in the GNA are then distributed among B, E, and F. Thus, for instance, with only 11 % of the vote (that is, only slightly more than the share earned by parties that get no seats at all), party F will be allocated at least 84 seats in parliament, a full 24 seats more than would correspond to 11 % of total seats. In other words, the exclusion of parties that do not meet the 10 % electoral threshold increases the number of seats allocated to those that do. Further, votes for parties that do not meet the threshold requirement are wasted. Hypothetically, 28 % of all votes went to parties that did not gain a single seat in parliament. The distortion produced by the threshold-especially a threshold as unusually high as the one in Turkey-offers a significant advantage to parties that regularly exceed the threshold, augmenting their share of seats in parliament (as compared to their share of the underlying vote). The constitutional amendment package would certainly have been improved had it been accompanied by measures lowering the electoral threshold. Having said that, lowering the electoral threshold would require amendment of the Political Parties Law, rather than the constitution, as the current threshold is statutory, not constitutional.
94. Abdullah Bozkurt, Venice Commission Lauds Broad Representation in Judiciary, Today's Zaman, Mar. 25, 2010, available at http://www.todayszaman.com/newsDetail_getNewsById.action?load=detay&link=205332.
95. Reform along these lines was long sought by the European Union, which found the HSYK too narrow and insulated to offer a democratic standard of accountability in judicial affairs. For instance, the most recent pre-referendum European Commission report on Turkey's progress on reforms toward accession noted that the HSYK "is not representative of the judiciary as a whole; only senior members of the Court of Cassation and of the Council of State are members of this Council," and raised concerns about the "independence, impartiality and efficiency of the judiciary." The Commission specifically noted that the HSYK was involved in what appeared to be politicized dismissals of prosecutors involved in high profile cases.
96. European Union Commission, Turkey 2009 Progress Report 11, 69-70 (Oct. 14, 2009), available at http://ec.europa.eu/enlargement/pdf/key_documents/2010/package/tr_rapport_2010_en.pdf.
97. Supreme Court Prosecutor Demands Cancellation of Judge, Prosecutor Board Elections, Cumhuriyet, Oct. 22, 2010, available at http://en.cumhuriyet.com/?hn=184490.
98. New HSYK Has Poor Image, Turkish Experts Say, Hürr iyet Daily News and Economic Review, Oct. 22, 2010 (citing leading Turkish constitutional law expert, Ergun Özbudun, as viewing the allegations baseless); EU Official "Pleased" with Turkey's HSYK Election, Hürr iyet Daily News and Economic Review, Oct. 27, 2010.
99. For the complete official results of the referendum, see Yüksek Seçim Kurulu [Supreme Election Board], Referandum Seçim Sonuçlari [Results of Constitutional Referendum] (Turk.), available at http://secim.haberler.com/2010/ (complete results).
100. http://www.ysk.gov.tr/ysk/Referandum2010Il.html (official breakdown by province).
101. Ben Birnbaum, Erdogan Scores Victory in Turkish Statute Vote, Wash. Times, Sept. 12, 2010, available at http://www.washingtontimes.com/news/2010/sep/12/constitution-reform-moves-turkey-moretoward-islam/.
102. In a recent consideration of the relationship between regime type and judicial independence, the authors find that while democracy is better able to produce independent courts there is a general international push "for the establishment of powerful independent courts as part of a broader effort to shore up the rule of law" in the developing world, with the World Bank imposing conditions on its lending designed to promote judicial autonomy. In their conclusion, the authors note that "[i]f there is any concept of modern governance that enjoys more widespread admiration even than democracy, it is judicial independence."
103. Gretchen Helmke & Frances Rosenbluth, Regimes and the Rule of Law: Judicial Independence in Comparative Perspective, 12 Ann. Rev. Pol. Sci. 345, 346, 361 (2009).
104. Nathan Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (2002)
105. For instance, the long-running debate between the constitutional and political theorists Jeremy Waldron and Ronald Dworkin over the democratic legitimacy (or lack thereof) of judicial review concerns review of legislation, not constitutional amendment
106. For an example of Dworkin's defense of judicial review, see Ronald Dworkin, Sovereign Virt ue: The Theory and Practice of Equality (2002) (see esp. ch. 4, "Political Equality").
107. For an example of Waldron's critique of judicial review as anti-democratic, see Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346 (2006).
108. The present article advances the view that judicial independence should not require complete insulation of the judiciary from democratic accountability. Given that the 1982 Constitution was promulgated under military rule and contained severe restrictions on individual rights and liberties, review that enforces constitutional orthodoxy against reform raises legitimacy concerns that both Dworkin and Waldron would embrace. Indeed, Dworkin's defense of judicial review is predicated on a democratic and rights-based paradigm of constitutionalism. The role of the courts in his account is protecting fundamental individual rights against assault by the state.
109. Ronald Dworkin, Taking Rights Seriously (1977)
110. The 1982 Constitution- which reserved significant domains of power for the military, advocated a statist version of republicanism, and contained individual rights restrictions justified in terms of "public reasons" associated with the safeguarding of the state-bears little resemblance to a constitutional order in which judicial review would be democracy-enhancing in keeping with Dworkin's requirements. As a result, the argument herein does not advance a general critique of judicial review as such, since the defenders of such review typically limit their defense to rights-based paradigms of constitutionalism.
111. These characteristics include such matters as: constitutional basis for judicial autonomy; freedom from undue executive and legislative political influence and pressure; and control over appointments, promotions, and salaries
112. Symposium, Judicial Independence and Accountability 61 Law & Contemp. Problems (Summer 1998).
113. The crucial idea that judicial independence and judicial accountability should be understood as complementary elements of the necessary institutional design for a well-functioning constitutional order was recently underscored in a major interdisciplinary study of the doctrine of judicial independence
114. Stephen B. Burbank & Barry Friedman, Reconsidering Judicial Independence, in Judicial Independence at the Crossroads: An Interdisciplinary Approach 10 (Stephen B. Burbank & Barry Friedman eds., 2002) (noting that "discussions of judicial independence often proceed on the erroneous premise, stated or unstated, that judicial independence and judicial accountability are discrete concepts at war with each other, when in fact they are complementary concepts").
115. Thomas C. Bruneau & Florina Cristiana (Cris) Matei, Towards a New Conceptualization of Democratization and Civil-Military Relations, 15 Democratization 909 (2008) (noting the emphasis on the role of the armed forces and the imperative of democratic accountability and civilian control in the democratization literature).
116. Should a military intervention have risked overturning the electoral mandate earned by the AKP in 2007, the perception that something was amiss would undoubtedly have been more pervasive internationally. But it may not be a stretch to speak of the importance of democratizing civil-judicial relations in the same vein as the literature on civil-military relations. A recent article captures this point in the Pakistani context, arguing that in some ways "maximal autonomy" for the judiciary poses a similar threat to the comparatively weak post-Musharraf civilian government as the military does, namely the threat of a return to authoritarianism.
117. Anil Kalhan, "Gray Zone" Constitutionalism and the Dilemma of Judicial Independence in Pakistan, 46 Vanderbilt J. Transnat'l L. 1, 3-4 (2013).
118. Kalhan describes this dilemma as a form of "enduring disequilibrium" between the judiciary and representative institutions in Pakistan
119. In some ways this argument may be more intuitive when democratic transition from the rule of the few to the rule of the many is more apparent. For instance, few would have considered it democratically suspect for the post-apartheid democratization period to include judicial reform altering the composition of the judiciary to ensure that it better reflect the makeup of the underlying society. Though the form of minority rule associated with the dominance of Kemalist state elites since the 1950s is not comparable to apartheid generally, its institutional implications for the composition of the higher echelons of the civilian bureaucracy and the judiciary were similar. The transformation of the South African judiciary in terms of race and gender diversity did not imperil judicial independence. And while concerns always exist in cases of government intervention in judicial administration, the South African case counsels that such concerns can be addressed.
120. Amy Gordon & David Bruce, Transformation and the Independence of the Judiciary in South Africa (Center for Study of Violence and Reconciliation, Johannesburg, 2007), available at http://www.ssrnetwork.net/document_library/detail/4047/transformation-and-the-independence-of-the-judiciary-in-south-africa.