By: Carolyn A. Dubay, Associate Editor, International Judicial Monitor

As part of the global rule of law movement, judicial reform has become a central component of overall democratic reform efforts in many countries.  Judicial reform initiatives, however, often require constitutional changes that may be politically impossible to achieve.  And where popular referenda may be required, the level of public interest and understanding of judicial reforms may be limited at best, and misinformed at worst.  These issues played out in Turkey in September 2010 after voters approved a constitutional referendum that included, among other things, reforms aimed at Turkey’s Constitutional Court.

The constitutional changes proposed in the Turkish constitutional referendum were not limited to judicial reform issues, and covered many provisions expanding the fundamental rights of Turkish citizens, including the right to privacy of personal data, an expanded right to travel, additional express rights of children and expanded rights for unions.  The changes also sought to revise many of the existing constitutional provisions giving military courts broad authority to hear cases against civilians and granting immunity to participants in Turkey’s 1980 military coup.   It is not surprising, therefore, that changes to the selection process for Constitutional Court members would be swept up in a broader popular approval of these other constitutional changes.

Notwithstanding the obvious benefits of expanded individual rights, opponents of the constitutional changes have honed in on reforms to Turkey’s Constitutional Court.  The role and composition of the Constitutional Court in Turkey, as in other countries, is extremely important to the development of constitutional doctrine that limits the exercise of government power.   Turkey's main opposition party, the secular Republican People's Party (CHP), along with the Nationalist Action Party (MHP), have openly opposed the changes to the Court, branding them an attempt by Prime Minister Recep Tayyip Erdogan and his ruling Justice and Development Party (AKP) to reshape the Court into a more friendly forum for the AKP’s purportedly Islamist political agenda.  Opponents of judicial reform initiatives under the AKP have reason to be suspicious of their motives.  In March 2008, the Constitutional Court came close to outlawing the AKP for alleged attempts to undermine Turkey’s strictly secular government, and later that same year, the Constitutional Court annulled an attempted amendment of the Turkish Constitution to lift Turkey’s ban on the wearing headscarves in public universities. 

Consequently, as would be expected in any democracy with a strong opposition party, there is great suspicion among opposition leaders and their supporters in Turkey that any changes to the Constitutional Court promoted by the ruling Islamist party are intended not to increase judicial independence and accountability, but to lay the groundwork for a Court that may be more receptive to the ruling party’s legislative agenda.  The Economist reported in September 2010 that secular opponents of the reforms fear that the ruling Islamist AK party will use the changes to pack the courts with Islamists, paving the way to religious rule.  This scenario is reminiscent of the American experience of the 1930s when the conservative Supreme Court, which had struck down a number of progressive legislative enactments, faced President Franklin D. Roosevelt’s infamous court-packing plan to increase the number of justices on the court and thus shift the balance of votes in his favor.  

Upon closer examination of the proposed reforms to the Constitutional Court, the debate about the underlying political motivations emerges as a bit of a political red herring.  In analyzing the proposed reforms, the focus must remain on whether the changes promote judicial independence, the separation of powers, and the proper functioning of a constitutional democracy that ensures the protection of individual rights through a competent and fair judiciary.  Both the European Union and the United States have voiced approval of the constitutional reforms as part of Turkey’s democratic process, and they mark an overall step towards Turkey’s membership in the European Union.  As noted by British Foreign Secretary William Hague following the vote, the "Turkish people have demonstrated their desire for reforms which, once implemented, will be an important milestone on the road to European Union accession.”

Despite the political rhetoric, therefore, a close look at the changes proposed to the Constitutional Court shows that, far from the allegations of court-packing, the revised articles would make the qualifications to serve on the Court more stringent and would continue to insulate judges from the political pressures of reappointment by limiting their tenure to non-renewable 12-year terms.  Importantly, the proposed changes would also allow for individual petitions to the Constitutional Court for judicial review of action taken that may violate either fundamental rights guaranteed under the Turkish Constitution or the European Convention on Human Rights.  And while there will always be critics of a purported “juristocracy” of unelected judges exercising judicial review, judicial enforcement of fundamental rights in a democratic society has emerged as the most successful, albeit imperfect, mechanism to empower individuals in the protection of their constitutional rights.

There are five significant areas of change to the Constitutional Court:  the composition of the Constitutional Court, the qualifications of its judges, the terms of its judges, expanded judicial review to consider individual petitions, and the creation of panels and en banc proceedings.  A discussion of each change follows.

Composition of the Constitutional Court:

Under Article 146 of Turkey’s existing Constitution, adopted in 1982 after a military coup, the Turkish Constitutional Court is to be comprised of fifteen members (eleven regular and four substitute) appointed by the President.  Unlike in the American constitution, however, the Turkish Parliament has no say in approving or assessing the President’s nominees.  Rather, the qualifications for service on the Constitutional Court are spelled out explicitly in Article 146.  Seven of the eleven regular members of the Court must be appointed from Turkey’s other top courts, based upon nominations from those courts, and one member must be appointed from a list of academics nominated by the Council of Higher Education.  For the final three regular members, however, the President may appoint any lawyer or public officer who otherwise meets the qualifications of judicial office.  Of the four substitute members, three must be members of existing courts, and one may be selected by the President from among qualified public officials and lawyers.
 
Under the new Article 146, the membership of the Constitutional Court would be expanded by two members for a total of seventeen members, and the distinction between regular and substitute members will be eliminated.  As per Provisional Article 18, the existing substitute members will be granted the status of regular, permanent members.  Appointment authority for the seventeen members will now be allocated between the President and the Turkish Grand National Assembly (TGNA).  Under new Article 146, the TGNA will appoint three members of the Constitutional Court:  two members elected from candidates supplied by the Court of Auditors, and one member from among candidates nominated by the heads of the Turkish bar associations.  To fill the two additional positions added to the Court, Provisional Article 18 permits the TGNA to immediately hold elections to select one member from the Court of Auditors and one member based on the nominations of the heads of the bar associations.  Article 146 also details the future voting procedures in the TGNA for the election of each of its three appointees to the Constitutional Court.
 
While new Article 146 gives the TGNA the power to appoint three members to the Court, the President will appoint the remaining 14 members.  Seven of these members must be selected from nominees supplied by other Turkish courts, and three members must be appointed from candidates provided by the Council of Higher Education.  The President has the discretion to appoint the remaining four members “from among high level executives, self-employed lawyers, first category judges and public prosecutors or rapporteurs of the Constitutional Court.”  Article 146 and Provisional Article 18 detail the procedures to be used in the courts and the Council of Higher Education for nominating candidates to the Constitutional Court for appointment by the President.

Qualifications: 

For the nominees to the Constitutional Court who are not already in judicial service, the existing Article 146 provides that academic appointees from the Council of Higher Education and the President’s discretionary appointees must be at least forty years old and have at least fifteen years of teaching, public service or legal experience.  Further provisions relating to the qualifications of the members are set forth in the Law of the Organization and Trial Procedures of the Constitutional Court, Law No. 2949 of 10 November 1983.   Under the revised Article 146, nominees from academia must have attained the title of associate professor or professor with no specific requirement for years of experience.  This provision gives the Council of Higher Education more flexibility in determining the best qualified candidates regardless of years in academia.
   
For the President’s discretionary appointees, however, the qualifications have become more stringent.  While the new Article 146 gives the President the power to appoint four members to the Constitutional Court “from among high level executives, self-employed lawyers, first category judges and public prosecutors or rapporteurs of the Constitutional Court,” lawyers must have at least twenty years of practice experience; administration officials must have completed higher education and have at least twenty years in public service; and first category judges and public prosecutors must have at least twenty years of work experience including their period of candidacy.  All of the President’s discretionary nominees must also be a minimum of forty-five years old, rather than the previous forty-year-old minimum age.
 
Terms and Removal of Constitutional Court Members: 

The constitutional reforms also affect the term of office for members of the Constitutional Court.  Under the current Constitution, as provided in Article 139 and Article 147, members of the Constitutional Court are entitled to tenure until reaching the retirement age of 65 and may not be deprived of their salaries while continuing to serve as members of the Court.  Further, under Article 147 of the Turkish Constitution, members of the Constitutional Court may only be removed upon conviction of a crime or a majority vote of the total members of the Court that the affected member “is unable to perform his duties on account of ill-health.”

While the amendments approved in the September 2010 referendum do not change Article 147’s provisions on removal of members of the Court, they do establish a 12-year non-renewable term limit for members of the Constitutional Court.  This term limit is coupled with the mandatory retirement age of 65.  Under Provisional Article 18, however, current members of the Constitutional Court may continue to serve until the statutory age limit.  The reforms have not called for the staggering of terms, as is the case in France, where three of its nine constitutional court members are appointed every three years.

Expanded Judicial Review: 

Under current law, the Constitutional Court has the power to review the constitutionality of the TGNA’s legislative enactments in both form and substance, while its review of constitutional amendments may only be reviewed for form through an action for annulment.  Under the revised Article 148, however, the Court would be empowered to exercise judicial review of the constitutionality of legislative enactments on individual petitions.  In particular, under the new language, “Everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities.”  The specific procedures concerning individual applications are to be set forth in later legislation and rules.

New Panels and Plenary Proceedings:  

Under the existing Constitution, Article 149 provides that the Constitutional Court “shall convene with its president and ten members, and shall take decisions by absolute majority,” except for decisions of annulment and closure of political parties, which require a three-fifths majority.  Under the proposed revision to Article 149, the Court will be divided into two chambers of four members and a chairman and a plenary assembly of at least twelve members under the chairmanship of the President of the Constitutional Court or a deputy president.  The sections and the plenary assembly will both operate on majority vote.  The work of the Court will be divided among the two chambers, which will decide individual petitions, and the plenary assembly, which will hear the cases involving political parties, actions for annulment, and appeals from trials where the Court sits as a Supreme Court hearing trials against public officials.  Moreover, annulment of constitutional amendments and dissolution of political parties must be decided by a two-thirds, rather than three-fifths, vote of members present at the hearing. 

Additional revisions to Article 149 require more transparency, accountability and predictability in Court proceedings through requirements that the organization of the Constitutional Court, trial procedures of the plenary assembly and the sections, and disciplinary rules “shall be laid down in law,” and its operating principles, the organization of the sections and commissions, and the division of the Court’s work “shall be set out by the Rules of Procedure drawn up by the Court.”

As set forth above, the changes to the Constitutional Court of Turkey hardly smack of a radical shift towards an Islamist Constitutional Court.  While the TGNA will have the power to appoint three members of the Court, it will continue to lack the discretionary appointments granted to the President and is restricted to consideration of recommendations of the Court of Auditors and the Turkish bar associations.  On the other hand, the proposals do pave the way for more transparency by continuing to support the secure tenure of judges through lengthy, non-renewable terms, enhancing the qualifications required to become a member of the Court, and even more profoundly, allowing for the consideration of individual applications for judicial review.  The test for the new Constitutional Court reforms may not be in the language of the constitution, therefore, but in the commitment of Turkey’s leaders to abiding by its terms and intent. 

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