Constitutional Court of Turkey: Decision Making between Legal and Political Reasoning and the Practice of Dissent

Oya Yeğen

Sabancı University.

The Constitutional Court of Turkey (Anayasa Mahkemesi, AYM) is going through difficult times. In the past couple of years, the lower courts have refused to comply with its decisions, resulting in the high court issuing a second ruling for rights violation – an instance of constitutional non-compliance that has been repeated in other cases as well. Non-compliance with AYM’s rulings is not only endorsed by government officials; those responsible for rule of law violations are rewarded with promotions and political positions. The President of the Court of Cassation, Turkey’s top appeal court, warned the AYM against exceeding its authority and criticized its judgments for individual applications to the Court as “judicial activism”. Since 2016, when President Erdoğan openly defied the AYM, saying “I neither obey nor respect Constitutional Court's ruling”, such open confrontation with the AYM and its rulings has become more common. Erdoğan’s ally, the chairman of the Nationalist Action Party (Milliyetçi Hareket Partisi, or MHP) Devlet Bahçeli, has verbally attacked the Court and its members on many occasions and has repeatedly called for the closure of the court. Considering that Erdoğan is intent on introducing a new Constitution, such overtures by government allies should not be dismissed as simple rhetoric. The most recent judicial crisis between the AYM and the Court of Cassation, in which the latter accused the former of being a “tutelage institution” and filed criminal investigations against the members of the Constitutional Court who supported the release of an imprisoned opposition politician, prompted fears that the governing coalition plans to weaken the AYM’s power in individual applications.

It is in this difficult political context that the book The Constitutional Court of Turkey: Between Legal and Political Reasoning offers a comprehensive account of the AYM’s institutional development and an analysis of its case law over five decades. As the book rightly points out, Turkey has gone back and forth between democratization and autocratization and the AYM has “mirrored the upheaval of Turkey’s repeatedly changing political landscape” (p. 688). The book is certainly an invaluable contribution for legal scholars interested in constitutional courts, judicial review, constitutional adjudication and constitutional jurisprudence. It offers a careful analysis of 50 judicial decisions (which have been systematically selected out of more than 15,000 rulings issued between 1962 and 2012) that allows its readers to assess various constitutional problems that the Court encountered and the judicial arguments it developed since it was established. For comparative constitutional law scholars, it is an all-encompassing reference to understand its institutional evolution with regards to the Court’s composition, competences, the effects of its decisions as well as aspects of its operation that are not neatly available even in the Turkish language such as its internal organization and decision-making process. The availability of the English translations of the 50 key decisions (English translations of the AYM rulings are available for 2015 onwards on its website) is an immense asset for researchers across the discipline.

For social scientists interested in judicial behavior, judicialization of politics, politicization of the judiciary, judicial independence and interbranch relations, a thorough examination of “an influential but under-researched institution” (p. 23), namely the AYM, offers rich insights on judicial politics. For students of Turkish politics, the book helps refute some of the widely repeated assertions about the country’s Constitutional Court such as the claim that it is an ideologically homogenous court or the claim that it has always been a staunch defender of state authority. For scholars studying processes of autocratization, by situating the AYM’s key decisions in the broader political context, the book provides crucial qualitative background to understand the strategic behavior of constitutional courts and develop new research questions.

In this short blog post, I will comment on the dissent behavior in the Turkish Constitutional Court. One of the conclusions that the authors reach is that contrary to what the literature on AYM has argued “it is misleading to conceptualise the AYM as a monolithic institution and/or a completely homogeneous group of justices at any phase of its existence” (p. 31). In fact, the authors through both a quantitative assessment (p. 103) of all published decisions (1962-2019) and a qualitative analysis of 50 key decisions (pp. 228-231) show that throughout the Court’s history, despite some ebbs and flows since the 1980s, dissenting opinions have been prevalent. The growing literature on judicial behavior has extensively studied the phenomenon of dissent, albeit not as much in contexts outside of the US Supreme Court and the constitutional courts of Europe and Latin America.

Scholars have focused on different explanations to explain why judges dissent. Dissent may arise from institutional structures, partisan differences, political/ideological disagreements, and policy preferences. Alternative explanations examine the costs and benefits of dissent at the level of the individual judge. Accordingly, dissent is costly for judges in terms of time spent in writing their opinion but also may bear judicial collegiality costs because a judge who frequently dissents may upset the rest of the bench, making it more difficult to persuade others on other occasions. A dissenting judge may have strategic concerns as they may be concerned about job security or may be tempted to signal loyalty to the authorities in order to secure a political job after the end of their term. Alternatively, by writing a dissenting opinion, judges may want to signal that their votes are sincere or that they have the intellectual capacity to formulate their own positions. But dissent may also indicate that there is no consensus among the judges, hence no single correct legal position - potentially weakening the court’s legitimacy and accordingly impeding enforcement of its decisions. In addition to these explanations, other scholars have taken into consideration institutional factors such as the court procedures including voting order.

Such insights are helpful for us to appreciate the prevalence of dissent in the AYM. As the authors illustrate with their analysis of key decisions, the most significant cases on the constitutional aspects of democracy and protection of rights and freedoms are decided by “the smallest possible majority” (p. 227). Compared to other constitutional courts, the AYM lacks norms of consensus and has high dissent rates. By acknowledging how the political context impacts constitutional decision making and argumentation, the authors also show “how the weaknesses of constitutional reasoning are directly linked to degree of politicization in AYM case law”, prompting dissenting opinions to be more elaborate and constitutionally grounded (p. 144). Yet, dissenting opinions in AYM often foreshadow later decisions, and partly explain how the Justices in later decisions may change the Court’s doctrine.

Another key insight that is revealed from the quantitative analysis of the AYM decisions is that since the 1980s there has been a slight decline in dissenting opinions. The authors suggest that this may be related to the surge in the cases handled by the Court. In addition, the key decisions analyzed in the second part of the book allow readers to explore in-depth the dissenting opinions and – by situating cases in the political context in which they were decided – reveal crucial information about individual Justices’ agendas.

Perhaps the most important contributions of the book are its sections on the institutional structure of the Court over the decades, tracing its competences and composition, as well as internal decision making, which has not been explored in the AYM literature previously. These sections inform the reader about the powerful position of the Court President and the significant role played by the rapporteurs, who are not Judges but who get to independently prepare a draft report and present the case to the Court. By shedding light on these rather opaque decision-making processes, the authors pave the way for future research to investigate political and institutional determinants of dissent. For instance, according to the Court procedures, voting begins with the most junior member in the Court – i.e. a reverse seniority rule (p. 81). In case of a tie, the President has the decisive vote. This voting order is considered more sensible for polarized courts. Those Justices that vote following the formation of a majority may have different incentives to dissent compared to those that vote before. While the sequence of decision making and deliberations is not available to researchers, individual voting results and dissenting opinions are published – making it possible to trace the formation of the majority according to the Justices’ age. As the authors argue “empirical research is needed to better understand the Court Presidents, to trace the influence of the ‘great dissenters’ or to explain the importance of individual votes during different phases of collective decision-making” (p. 31).

The book is without a doubt the single most important monograph on the Turkish Constitutional Court, and promises to be the handbook for constitutional law and political science scholars for years to come, guiding their research agendas. For scholars interested in Turkish politics, the book – by offering a longitudinal qualitative study of the country’s constitutional problems and judicial arguments – offers new perspectives to study how Turkey has shifted between processes of democratization and autocratization and to investigate the role that the AYM has played in these processes. As the authors persuasively demonstrate, over its lifetime the Court has failed to build doctrinal consistency and has instead frequently opted for ambiguous reasoning–- this is the primary reason why it has not risen to the occasion of being “the guardian of the constitution in times of political crisis and democratic backlash” (p. 227). However, the analysis also shows that throughout its existence, there has always been a significant level of disagreement among its members “regardless of the political context”. Thus, future research should dismiss the oft-repeated claim that AYM is a homogeneous bench and further explore the drivers of judicial behavior and determinants of dissent. Considering the serious attacks that the Court is encountering in the current political climate, and the prospect that the AYM may get disempowered under a possible new Constitution, one should also acknowledge the significant role played by the AYM “as a noticeable counterbalance to the executive and legislative branches of government, and an (at least partially) effective protector of fundamental rights” before it experienced a serious set-back after the 2016 coup attempt (p. 687). The hope that the Court can avoid being a rubber-stamp institution and avoid being completely overhauled is tied to the public’s appreciation of the role it plays. The book reminds its readers of the fundamental but challenging role that the institution has played even though its argumentation practices constantly shifted between political and legal reasoning.

Oya Yeğen is an Assistant Professor in the Faculty of Arts and Social Sciences at Sabancı University.

Suggested citation: Oya Yeğen, ‘Constitutional Court of Turkey: Decision Making between Legal and Political Reasoning and the Practice of Dissent’ IACL-AIDC Blog (12 December 2023) Constitutional Court of Turkey: Decision Making between Legal and Political Reasoning and the Practice of Dissent — IACL-IADC Blog (blog-iacl-aidc.org)