The Turkish Constitutional Court’s verdict annulling the Parliament’s amendments to Articles 10 and 42 of the Constitution disregards popular will, legalizes arbitrary restrictions on the right to equal access to education, and erodes the separation of powers by permitting itself to act outside of the legal order.

The Turkish Constitutional Court’s verdict annulling the Parliament’s amendments to Articles 10 and 42 of the Constitution disregards popular will, legalizes arbitrary restrictions on the right to equal access to education, and erodes the separation of powers by permitting itself to act outside of the legal order. The emergence of a new precedent of judicial activism is now the biggest threat to the future of Turkish democracy. Turkey cannot afford an unaccountable judiciary exercising substantial powers of governance through judicialization of politics. The Parliament must reassert its authority and reconfigure the Court’s competences and composition to bring it into line with liberal-democratic principles as part of a comprehensive constitutional reform.

*** On June 5, 2008, the Turkish Constitutional Court annulled the Parliament’s amendments to Articles 10 and 42 of the Constitution. The amendments, which had been adopted with overwhelming support by 411 MPs from several parties, would have strengthened equality before the law and expanded the right to education by eliminating the unconstitutional denial of these fundamental rights to women wearing the headscarf. In reaching its verdict, the Court ruled that the amendments violated the unchangeable laws of the constitution that define the essential characteristics of the Republic. However, by reaching this verdict through an evaluation of the amendments on substantive grounds, the Court overstepped the competences laid down for it in the Article 48 of the 1982 Constitution which states that the Court can review constitutional amendments on procedural grounds alone. The Court’s verdict disregards popular will, enforces arbitrary restrictions on the right to equal access to education, and perhaps most importantly erodes the separation of powers by permitting itself – the figurehead of the judiciary branch – to act outside the legal order. The Turkish judiciary’s insistence on a new precedent of judicial activism is now the biggest threat to the future of Turkish democracy, for it undermines the democratic political system and with it the viability of a democratic political community. If the judicialization of politics continues unabated, it will not merely represent a coup attempt against the incumbent government; it will signify a fundamental overhaul of the whole Turkish political system, transmogrifying it from a popular democracy into an undemocratic juristocracy accountable to no one. Threat to Democratic Polity The Court’s decision shatters the balance between the branches of government, in particular the legislature and the judiciary. The Constitutional Court is the court of highest instance, tasked with reviewing the constitutionality of legislative and executive acts. Its breach of the letter and spirit of the Turkish Constitution has dragged Turkey into a new period of legal and political uncertainty. With its latest decision, the Court strengthens a precedent which was pronounced with its infamous 2007 decision regarding the presidential election quorum of 367. The Court has empowered itself to issue verdicts based on subjective evaluations that were in contravention of positive law as well as the basic rights protected by international conventions and the Turkish Constitution itself. The latest decision is a first in the history of 1982 Constitution in that the Court annulled amendments to the Constitution on substantive grounds although the Article 148 of the Constitution clearly prohibits it. Experts of constitutional law and the Court’s own rapporteur earlier had stated that it would be impossible for the Court to declare the amendment