The argument related with the “political function” of the Constitutional Court had rekindled once again. The hurricane, which broke out around the individual applications of SP and BBP for the cancellation of the clause, saying that this clause related with the 10 percent election threshold is a violation of rights, seems to be as strong as the previous ones.
It is possible that the Constitutional Court (as well as having given a contrary decision in 1995) might see the 10 percent threshold is a violation of rights.
However, what’s important are the results of this…
What will happen when such a decision is released?
According to the law, the legislative power of the related authority should make a move in this case, and change the statutory provision that creates this violation. With its timing and context, this is a case that could be regulated in a way that it will not overshadow the 2015 elections. In the case of law amendment, again according to the constitution, the implementation can only take effect after 1 year, and will not affect the June 2015 elections.
The problematic and political side of the issue is not this.
The problematic part is originating from a comment, which is the Constitution Court welded and supported by the opposing party.
According to this comment, if a violation is identified in the court’s individual application case, and if the source of this violation is a statutory provision, then this statutory provision can be cancelled by the Plenary Committee of the Constitutional Court by means of concrete norm supervision.
Such a comment, without a doubt, will be carrying two meanings.
On one hand, the Constitutional Court will turn into both prosecutor and judge, and reach a political position that directly applies rules.
On the other hand, doing politics over the Constitutional Court and the mentality of creating a barrier on the political rulership field will be reaching an unacceptable point once again in the sense of logic.
Now let’s return back to the topic….
The issue of the 10 percent threshold is a versatile matter. It is necessary to completely separate the different aspects from each other.
1- The issue of the 10 percent threshold is an important matter from the sense of the representation justice-political stability and democracy. The high threshold is being identified as one of the obstacles in front of democracy for so long in Turkey, and especially in the Kurdish issue, it is stonewalling the full representation. In this sense, it is essential for this to be discussed and handled by the Parliament and the present ratio should be decreased and re-regulated.
2- However, this is not a judiciary, but rather a political argument. In what ratio will the election threshold be designated, which ratio will pave the way for violation of rights, is a political argument. In many Western countries, the threshold is being implemented in different ratios. Thus, the European Court of Human Rights had made the “there is no violation of human rights” in the case in 2006 regarding the 10 percent election threshold, which is being implemented in Turkey. In their justified decision, it was expressed that, “The inconsistency in Turkey during the 1970s had been taken into account”, and it was stated that this threshold is aimed at preventing the TBMM (Grand National Assembly of Turkey) from “disintegrating exceedingly and becoming functionless”. While finding the threshold high, the court had stated that a decision they will make in this direction will “cause critical confusions in domestic politics”, and emphasized that “their duty is not to make decisions that might cause such confusions”.
3- However, this is exactly the same path followed by the Constitutional Court today. The submitted application will be discussed in the Individual Application Plenary Committee of the Constitutional Court, and if a decision is made in this direction, then the cancellation of the rule will be asked from the Plenary Committee of the Constitutional Court. After this procedure, which can be completed within a month, this cancellation will be conducted. However, since according to the 67th Clause of the Constitution, no new judgments can be implemented because there is less than a year left before the elections, the congestion between the cancellation and judgment will be starting legitimacy arguments aimed at the elections. If this is an opposition party style, if the Constitutional Court agrees with this style or being used within this frame, the evaluation of this within the rules of the state of law is out of the question.