28 September 2022

The Resistance-Deference Paradox

On strategies, survival, and partnership of the Turkish Constitutional Court

In early 2022, the public debate over the Turkish Constitutional Court has heated up again. The reason is not the Court’s 60th anniversary with its institutional design modelled on the post-war constitutional preferences of judicial review, but the new appointment to a vacant seat. Hopes were raised both for changing the gender imbalance at the all-male bench and the dispositional voting to support the rule of law. This time the bar associations known for their progressive stances were involved in the election process, as prescribed by the constitutional quota. The heads of 83 bar associations determined the three nominees for the Turkish Parliament to replace a long-serving constitutional judge after his retirement by 15 January 2022. Yet, they could not reach a consensus for a progressive leaning nominee. As a consequence, the pro-government candidate Kenan Yaşar was shortlisted among two other candidates and ultimately elected by the majority at the Parliament. Political commentators argue that the new appointment would have  a radical impact on the outcome of the ongoing dissolution case of the pro-Kurdish opposition party, HDP. The dissolution shall be provided by a two-thirds majority of the Court that requires 9 affirming votes out of 15 judges. The deferring block supporting the government can achieve this crucial threshold with the new appointment.

Indeed, the new appointment may change both the institutional dynamics and the relationship of the Court with political institutions and power structures in crucial cases. It may lead to different voting blocks, bargaining tactics, and strategies and have further consequences in the de-democratizing context of Turkey. However, these are not predictable yet. Unexpectedly and in contrast with the expectations of progressive circles, the newly appointed judge Kenan Yaşar has supported the liberalist approach against human rights violations in some politically sensitive cases. These include parliamentary immunity case of a Kurdish deputy, Figen Yüksekdağ, and a journalism case on revealing the state secrets as to Turkey’s military involvement in Libya.

The Constitutional Court has received record numbers of individual applications on the ground of alleged human rights violations in the last five years (335.324 as of September 2021). These have increased 221 percent in 8 years. In the last two years, the public trust in the Court is higher than in the opposition parties,as stated in an independent survey (53.5 % in 2021 and 49.1% in 2020). Notably, the Court has come to the forefront due to the massive backlash of the ruling elite in the last years at different occasions. The call for its abolishment has been voiced by the autocratic actors at times, particularly by the nationalist ally of the government, MHP. The lower criminal courts supporting repressive use of law undermined the authority of constitutional judgements and urged to comply by the Court via additional case law. The future steps of this backlash under current demise of the rule of law are not predictable. Yet, the empirical evidence as regards the distortion of the rule of law in Turkey is clear. The confidence in judiciary has declined 22 percent in the last ten years as the largest decrease among the OECD countries according to the report on the Government at a Glance 2021.

The Constitutional Court under autocratic pressure: contextual attributes

During years of political ruptures (e.g., military interventions in 1971 and 1980), fragmented power structures of coalition governments, and the secularist-Islamist divide, the Turkish Constitutional Court played a pivotal political role for shaping major policy preferences. Between 2007 and 2010, it was a fighting court to defend republican secularism and/or minoritarianism against the Erdoğan governments regarding major political issues that led to high profile cases such as the presidential election (2007), ban on headscarf (2008), or unconstitutional activities of the ruling AK Party (2008). After three years of tension (2007-2010), the Court lost its battle against the popularity of AK Party in 2010 that claimed once to democratize Turkey with reforms on judicial accountability and a reorganization of the justice system. Accordingly, the AK Party pushed for the constitutional amendments reshuffling the Court under the Europeanization packages accepted by the national referendum. The amendments retained the incumbent judges of the Constitutional Court but increased the number of the judges at the bench through new appointments controlled by the AK Party.

Yet, this institutional reform in 2010 alone cannot explain the current situation regarding the incremental disruption of the rule of law and its complexities in Turkey. In the last ten years, the regime has radically changed. The democratization project was replaced by a gradual deepening autocratization under the emergency regime between 2016-2018. In the meantime, the democratic gains of this project eroded, and the regime turned to a politics of exclusion, polarization, and deterrence. The core interests of the regime are defined through exclusionary, dissuasive, and polarizing policies. Besides the suppressive elements, there is a significant determinant having an ultimate impact on judicial outcomes: the transformation of Turkey’s parliamentary system into a heavily centralized presidential system. This shift has not only radically changed the institutional balance but resulted in democratic dysfunction through executive aggrandizement.

There is no power fragmentation, but a unified power structure between the parliament and executive branch at present. The presidential authority has further augmented, and institutions have become mostly dysfunctional in terms of checks and balances. Yet, the Court is politically significant, both as an ultimate place of contestation and autocratic legitimization. The Court still maintains this dual and dilemmatic role at changing levels. Yet, the unified power structures alongside dysfunctional political institutions and democratic backsliding put the Court under the risk of political attack. Under current constitutional arrangements, the Constitutional Court is legally independent, although it is politically interdependent. Its powers are secured through some institutional norms regarding the fixed tenure and retirement age that ensure its judicial authority and autonomy. Nonetheless, the comparative cases show that such institutional arrangements of judicial independence are subject to certain contextual attributes of the political landscape to fulfill their normative purposes. First, judicial interdependence is prevalent under unified political structures like Turkey, whereas political fragmentation between the executive branch and the parliament tends to support the ability of the courts to exercise judicial review. Second, the judiciaries under autocratizationmay strategically support the regime policies in order to ensure their own survival. This purports the interdependency of the judiciary and its partnership role for the regime. These findings can also be tested for the Turkish Constitutional Court under pressure of democratic erosion.

Additionally, the political hegemony of the AK Party and its allies has shaped the current composition of the Court. As of 2022, 7 out of 15 judges are appointed by President Erdoğan. All judges of the Court have been appointed either with the support of the AK Party deputies at the parliament or the state presidents affiliated to the AK Party. The AK Party affiliations or former bureaucratic careers of these judges under AK Party governments are striking in the recent appointments. This makes it more likely that the relationship between the judiciary and the government develops into a principal-agent relationship. Still, the Court’s judicial behavior is not fully obedient. Despite the decisive role of AK Party elite regarding the current composition of the Court, there are still differences between judges’ dispositions towards liberalist and autocratic tendencies. Additionally, the judges do not have fixed or only pro-government preferences that the external (domestic political context) and internal (intra-court) dynamics seem to shape the judicial outcomes significantly.

Empowerment and selective resistance

Against this backdrop, the Constitutional Court can neither be regarded as a protagonist nor a typical subservient institution. In some cases, it has disappointed victims and progressive circles in politically significant cases.  The Court’s interpretative shift towards more deference favors policies of autocratic consolidation such as the emergency decrees. In other cases, however, it has defended constitutional rights in different critical issues regarding some cases on journalism, academics, and civil society. The Court has become decisive for eliminating suppressive measures such as the ban on demonstrations or the imposition of security investigations. It endorsed the right to an effective remedy against the measures such as the withdrawal of passports of the dismissed of public servants after the coup attempt in 2016. These have triggered the backlash of governmental circles, systematically demonizing the Court.

Under the shadow of autocratization, the individual application procedure still empowers the Constitutional Court and maintains its role as a popular agent. The low commitment of public authorities to human rights places the Court at the epicenter of numerous rights-based demands. Significantly, this leads to a shift of power from the government to the Constitutional Court. The individual application procedure mitigates the severe consequences of the autocratic policies to a certain extent albeit selectively.

Until now, the majority rulings with narrow margins and cleavages among judges are striking in politically significant cases even though the current composition of the Court is shaped by the AK Party and its allies. The difference in opinions demonstrates that ideological decision making is alive at the Court. The judges build resisting or deferring alliances. Significantly, the recently retired judge acted in a resistant manner in some crucial files regarding civic society and journalism (such as Kavala II, İlker Deniz Yücel, Mehmet Murat Sabuncu and Akın Atalay cases). Furthermore, the interpretative legacies associated with the institutionalism of the Court are also reflected upon the resistant stances as observed in the decisions regarding parliamentary immunity of the opponent politicians such as Berberoğlu and Gergerlioğlu. These decisions were provided by a resistant consensus of judges.

Domestic dependencies and deference

In the case of Turkey, the abusive use of the judiciary for an autocratic agenda increases the dependencies of the Constitutional Court on the executive and legislature. Therefore, the Constitutional Court, more than ever, seems open to strategic interactions with them to approve or sometimes to mitigate crucial governmental policies. The cultural predispositions of the Turkish judiciary based on a corporatist, positivist, conservative and deferential tradition also contribute to judicial preferences that can be strategically or ideologically submissive. These factors may explain why the Constitutional Court follows the patterns of deference in cases in which it is confronted with core interests of the regime such as the libel suits against the president and the cases against some of the prominent dissents or journalists.

Similarly, the Court altered its own pro-journalism case law praising freedom of the press and the chilling effect doctrine in the cases of many Cumhuriyet journalists that were demonized by the government. The same quietist approach of the Court applies also to the politically impactful and timely issue of purporting a new legislative framework against the civic society or dissents. The Court has confirmed the legislation which intervenes in the bar associations through structural changes to create loyal associations. Similarly, it has approved the prison release legislation of 2020 that excludes jailed journalists and political dissents (although it covers approximately 90.000 prisoners in order to reduce overcrowding and the spread of the COVID-19 among inmates). Notably, the Constitutional Court delineated the limits of presidential power in its leading case law although this represents a delicate issue due to the risk of a direct confrontation with President Erdoğan. However, the Court used its judicial control in such cases in very a limited sense by applying to the deference strategy.

Interactions with the European Court of Human Rights

The dependencies of the Constitutional Court are not limited to domestic political institutions. The strategic decision-making of the Court also includes issues pertaining to the concerns raised by the Council of Europe. The Constitutional Court considered the European Court of Human Rights as an external institutional actor to follow in crucial matters, albeit selectively. The Constitutional Court served as a pressure valve under European supervision for maintaining its position as an effective remedy in some of the freedom of expression cases.

Notably, the ECtHR case law does not provide an external legitimization in all significant cases of political repression. The Constitutional Court has backed autocratic consolidation in some crucial cases against dissents. For instance, it has ultimately supported the oppressive practices and the misuse of criminal investigations against a prominent figure of civic society, Osman Kavala, in the Kavala I and Kavala II cases. Against the emblematic Kavala case law of the ECtHR on dissuasive effects on the civic society, the Kavala case law of the Constitutional Court shows the limited impact of European supervision for presumed enemies of the government. The Constitutional Court has helped to delegitimize and marginalize the critics of autocratization by its submissive stance through a strategic interaction with the utmost priorities of government.

Docket management strategies

The Court’s judicial behavior does not only include the use of resistant and deferential approaches at changing levels under autocratic pressure. The docket management represents another strategy. Belatedresponsiveness, prioritization strategies for assigning the cases on the trial docket or postponing the assigned cases are judicial tactics observed in politically significant cases.  The slow and tactical approach of the Constitutional Court also helped flagrant violations of the freedom of expression. The Constitutional Court approved the offending practices of prol