On Founding Power and the Constitutional Court

From İlter Türkmen:

As underlined in the report prepared by the court's rapporteur, the court can examine changes in form only, not in content. But the court ruled to abolish the amendments even though irrevocable articles in the Constitution cannot be changed. The verdict although intended to prevent a potential political crisis, was certainly a violation of the law. The reasoned decision announced by the high court last week also reflects a troublesome attitude toward the constitutional system in Turkey, because the reasons given by the court do not recognize Parliament's authority to ratify a new constitution or amend the current one, although legislative bodies are elected in a democratic election process. The decision does not even recognize the fact that the foundation of power is the people and that Parliament is elected by the people.

The top court on the other hand, defined “founding power” as follows: “power which is produced by interruptions depending on various political factors and which emerges outside the legal framework.” Professor Ergun Özbudun in his article published in daily Zaman on Oct. 23 could not help himself and said, “The translation of the court's decision is that a new constitution could only be the product of interruptions such as coups d'etat or civil wars and that is against all logic.” Ironically the CHP agreed with the court's theory of founding power due to the fact that the seventh president and the mastermind of the military coup of Sept. 12, 1980, Kenan Evren, always said that the 1982 Constitution was prepared in accordance with the conditions of the period but that Parliament could change it. We have quite a number of people who are more royalist than the king. Didn't they play a role in having so many military coups?

The high court's decision in the AKP closure case is full of contradictions. The AKP's European Union-related policies are pointed at as the reason why the ruling party was not dissolved! It is nice to hear that the court supports the EU policies but why does the court not take into consideration the constitutional dictum in which the European Human Rights Court and the European Human Rights Convention practice? The only way out of today's legal and political dead-lock is to have a brand new constitution. But the Constitutional Court now claims veto power on constitutional amendments, either in part or in full. How will we overcome this obstacle?

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