The military tutelage relied on judicial tutelage.
It was to the extent that whenever the soldiers decided to shut down a political party, the top levels of the judiciary would immediately spring into action.
The attorney general of the Court of Appeals and the legal counsel of the Chief of General Staff would file a party closure case after a few days of research.
It was claimed that Vural Savaş had conducted research for a week at General Staff headquarters before filing his case to shut down the Refah Parti (Welfare Party).
It was said that a pre-prepared dossier had been handed to Abdurrahman Yalçınkaya, who filed the case to shut down the AK Parti (Justice and Development Party). A colleague who had spoken to Yalçınkaya on that day told me, “He had broken out in a sweat. He knew nothing of the contents of the dossier through which he had filed a closure case.”
Judicial tutelage was also curbed alongside military tutelage. Or at least that is what we thought. We were wrong. There has been a resurgence in the tutelage of the Supreme Board of Prosecutors and Judges (HSYK), the tutelage of the Court of Appeals, and finally the tutelage of the Constitutional Court. The struggle to fend off the HSYK tutelage is out in the open for all to see. It is impossible not to mention Elif Çakır, who is now unemployed, after her tough struggle in regard to the HSYK.
Previously, heads of the Court of Appeals would deliver speeches during the inauguration ceremonies following the summer break for the judiciary. Now the head of the Court of Appeals speaks every day. He is asked for his opinion on the law pertaining to the Court of Appeals. He delivers an opinion that is 63-pages long. Members representing the Court of Appeals join workshops conducted by the Justice Commission and its sub committees. Despite this situation being on the official minutes of the Justice Commission, Ali Alkan, the head of the Court of Appeals, says, “We were not asked for an opinion.”
The Constitutional Court, on the other hand, has, for a while now, taken on the role of the “main opposition party.” It has done everything short of sticking up a party sign and placing its emblem on voting slips.
I tried to put the statements by Haşim Kılıç, the head of the Constitutional Court, down to choosing an option due to his stance on party closures. He has until now conducted his struggle by resorting to time-sensitive decisions whenever he thought the leadership was in the wrong. That is if we exclude his polemic about “swapping shirts” during a speech at a ceremony marking the anniversary of the founding of the Constitutional Court. However, even that was not enough and he is now resisting decisions that have not been made yet.
His latest ingenuity is the election threshold. There used to be a rule that courts made themselves heard via their decisions. This rule now has to be changed to “courts make themselves heard via decisions yet to be made.” Deliberations have not started on the topic of the election threshold. It is unclear what decision will be reached. Or, perhaps it is clear what decision will be reached. It means that the Constitutional Court reaches its decisions in this manner. The head of the Constitutional Court speaks as if a decision has already been reached.
Does this not enter the sphere of reflecting bias? If the court’s decision is announced without deliberations having being made in a case as critical as the election threshold case, how can we be sure of the court’s decision in this case and all cases it decides on in the future?
We always objected that “the Constitutional Court cannot determine legitimacy” in regard to its rulings related to the wearing of headscarves. Forget rulings on legitimacy, it is now openly engaging in political engineering. It is time to remove the sign that says Constitutional Court and replace it with one that says Haşim Kılıç Court.
I first started reporting on the Constitutional Court when Ahmet Boyacıoğlu was its head. It was during the period when İsmail Özdağlar was being tried in the Supreme State Council. During all this time I have never seen any head make such comments with the exception of Yekta Güngör Özden.
The head of the Constitutional Court, whose term expires next February, will set the fuse on the bomb and place it at the gates of the ruling party. This should not be the finale of Haşim Kılıç’s term, who has a special place in our hearts due to his honorable stance in the face of party closures and headscarf bans.
The head of the Constitutional Court knows very well that as long as a ruling exists with regard to Article 45 of the constitution, which regulates the rights for filing individual claims, it cannot conduct an examination on the topic of the election threshold within the context of an individual application.
If, despite this, a decision is reached to cancel the threshold; this decision cannot be implemented without amending the constitution as long as Article 67 of the constitution is in force, and which states that “any changes made one year before an election cannot be implemented.”
Haşim Kılıç, who tried to trip up the AK Parti through this move of his, has brought his command of the constitution into question.
They are quite aware that this subject was sent to the European Court of Human Rights (ECHR) and was rejected by the ECHR. Based on an appeal launched by Mehmet Yumak and Resul Sadak, parliamentary candidates to represent Şırnak during the elections held on Nov. 3, 2002, the ECHR in a ruling issued on July 8, 2008, voted 13-4 that “no infringements” had occurred.
The ECHR ruling also contained decisions made by the Constitutional Court that approved the election threshold in its reasoning documents.
Let us come to the rulings made by the Constitutional Court.
There are two rulings by the Constitutional Court in regard to the constitution of 1961.
One is a ruling issued on Jan. 13, 1996 based on an application by the Senate of the Republic group regarding the Adalet Parti (Justice Party). The second is a ruling on May 6, 1968 based on an application by the Workers Party of Turkey.
Three rulings were issued on the basis of the constitution of 1982.
A ruling dated March 1, 1984 was issued based on an application by Necdet Calp, secretary general of the Populist Party. Another ruling dated Nov. 18, 1995 was issued based on an application by Mümtaz Soysal and Bülent Ecevit. A third ruling was issued on Dec. 1, 1995 based on an application by former president, Süleyman Demirel.
In the application made by Ecevit and Soysal, they requested the nullification of the regional threshold and the proposed regulation known as Turkey parliamentarianism that envisaged 100 parliamentarians. The court agreed with the application and ruled in its favor. Haşim Kılıç, however, was opposed to the ruling.
In his reasoning for voting against the proposal he defended stability.
“With the element of stability in mind, the law makers presented the election region thresholds, which I don’t find to be incompatible with the Constitution, and thus did not share the view of the majority,” he had said.
In the application made by Süleyman Demirel regarding the 10 percent election threshold, Haşim Kılıç and Sacit Adalı again defended stability and the election thresholds in the reasoning for their not-in-favor votes.
The Haşim Kılıç, who, let alone the 10 percent threshold, was also against the cancellation of the regional threshold back then, is now Haşim Kılıç the freedom fighter who is opposed to the 10 percent threshold…
As someone who has always been opposed to the 10 percent threshold I have the right to ask this. Which Haşim Kılıç is the real Haşim Kılıç…?