The Constitutional Court of Turkey between Legal and Political Reasoning: Perspectives From Outside and From Within

Ece Göztepe & Silvia von Steinsdorff

Bilkent University & Humboldt University

Constitutional courts have been regarded as effective protectors of the newly established constitutional order in emerging democracies in many European countries since the 1950s. The German and Italian constitutional courts are the first and most prominent examples of a long list, which grew significantly in the 1990s when several constitutional courts came into being in Central and Eastern Europe after the end of communist rule. The Constitutional Court of Turkey (CCT), founded after the military coup d’état of 27 May 1960, is the third oldest case on this list, but is often overlooked. Despite its longevity and political importance, the CCT has been mostly neglected in research on constitutional politics, let alone on comparative constitutionalism. Against this backdrop, we decided to finally dedicate to the CCT the analytical attention it deserves. The outcome of this endeavor is our book “The Constitutional Court of Turkey between Legal and Political Reasoning”, published in December 2022. The research process, which required several years of meticulous work “on the ground”, was guided by three main objectives.

First of all, we retraced the institutional development of the court during the over 60 years of its existence. Starting with an overview of the comprehensive competencies of the Court, part I of the book documents the consecutive phases of external and internal institutionalization, including the opaque and repeatedly adapted appointment procedures or the incoherent internal decision-making process. Portraying the CCT in this comprehensive way proved to be more challenging than we had anticipated. The institution knows astonishingly little about itself, and even less reliable information was available from Turkish academic literature and other public sources.

In contrast to most other European constitutional courts, the CCT had to operate within a highly volatile and often-times unfriendly political and constitutional context: Turkey’s modern history is marked by repeated military coups, followed by fundamental constitutional changes, autocratic episodes, and even phases of outright de-democratization. Therefore, we studied the CCT – second – as a “model case” of constitutional courts in “grey-zone regimes”, oscillating between phases of democratization and (re-)autocratization. Whereas the Turkish case was quite unique for many years, this pattern is currently becoming more frequent by the day.

The third objective of the book concerns its genuinely interdisciplinary approach. As we wanted to make sure that our findings would be relevant for lawyers and political scientists alike, we went beyond ‘classical’ social science approaches, which mostly perceive constitutional courts as one political actor among others and mainly concentrate on their political positioning “in favor” or “against” the government it is supposed to control. Instead, we retraced the “constitutional reasoning” of the CCT, assuming that legal interpretation and doctrinal argumentation displayed in the rulings are decisive to understand the (political) impact of the Court within the constitutional system. Also in this regard, we had to do pioneering work, because we found very limited guidance regarding the analysis of case law beyond the narrow doctrinal interpretation usually applied in legal work.

The sampling of key decisions on which to base this in-depth analysis of the CCT’s adjudication proved most challenging. There is not one single Turkish textbook available with a systematic selection of the most important rulings to be used in legal education. And, even more surprising, a thorough review of the existing literature on the CCT revealed that less than 50 decisions are repeatedly quoted, but often relying only on secondary sources and heavily focusing on some exceptionally politicized issues, such as party ban proceedings and the headscarf ban decisions. In order to break this vicious circle of a very sketchy and biased reception of the abundant CCT’s adjudication on a broad range of topics, we selected 50 landmark rulings from among 3652 norm control decisions published between 1962 and 2012, deliberately focusing not on the most famous, but on the most representative decisions in terms of substance and range of constitutional issues.

The in-depth content analysis of these landmark decisions, complemented by a systematic documentation of all 52 party ban decisions (26 of which led to prohibition of the party in question) since 1962, and some additional findings from recent individual complaint cases, produced the nuanced picture of an overall reasonably autonomous constitutional court, rather successfully adapting to the constantly changing political and societal context. While external pressure, political ruptures and constitutional discontinuity certainly impacted the adjudication, this is not the CCT’s only difficulty. Its slow and incomplete institutionalization in general and the resulting incoherent internal decision-making process in particular proved equally problematic. It results – among other defaults – in an extremely high number of dissenting votes and in sometimes openly contradictory outcomes: Many important decisions were taken by the smallest possible majority of Judges, and abrupt changes in doctrinal positions occur, sometimes without any legal explanation. Overall, we were amazed by the extreme heterogeneity of the bench across all periods of the CCT’s existence, which clearly disproves the dominant narrative of the Court as a unanimous defender of a so-called “Kemalist” political elite.

What also stands out is a striking mixture of high-quality legal argumentation and poor or altogether missing constitutional reasoning in various rulings. While these inconsistencies are sometimes hardly explainable in detail, one broad trend is obvious: most key decisions from all decades reveal an (over-)emphasis of selected general constitutional principles such as public order, nationalism, laicism, or traditional family values. Other principles like social justice or democracy, equally enshrined in the Turkish Constitution, are much less present in the CCT decisions.

As a result, we came up with a mixed bag of findings: overall, the CCT significantly contributed to the establishment of rule of law principles and an independent judiciary in Turkey, it effectively controlled the executive during several phases of its existence, and it – if only selectively – fostered a progressive fundamental rights’ interpretation. At the same time, however, the many internal deficiencies as well as the external political and constitutional restrictions impeded the Court’s ability to sustainably establish itself as an uncontested, broadly legitimized guardian of the constitutional order.

What we understood from our analysis of the Turkish case is that constitutional courts in unstable regimes, permanently threatened by re-autocratization, walk a fine line between flexible adaptation to the changing and often adverse political environment, and mere opportunism. Hence, constitutional courts in the “grey zone” can definitively make a difference, but their scope of autonomy and self-empowerment is limited. In this difficult situation, high-quality constitutional reasoning can help to fend off external pressure. The less “politicized” the decisions, the better the chances to keep (a certain amount of) autonomy towards the government, a hegemonic party or even an openly authoritarian state president.

As it is one of the declared aims of our study to reflect on the institution and the adjudication of the CCT in the broader context of comparative constitutional research, this IACL Blog Symposium offers an excellent opportunity to collect the thoughts of some very distinguished experts in the field: In which way do the findings of the book relate to their research? What are possible lessons and/or future research questions to be further investigated from their respective perspectives? And, of course, what critical thoughts do they want to share in regard to our research results?

We are very grateful to the IACL Blog for hosting this symposium which brings together four esteemed colleagues who consented not only to read the voluminous book, but also to share their reflections with the IACL community:

• Kriszta Kovác (Research Fellow, Wissenschaftszentrum Berlin WZB, Germany / Associate Professor, ELTE University, Hungary)

• Gábor Attila Tóth (Associate Professor, University of Debrecen / Semmelweis University, Hungary)

• Oya Yeğen (Assistant Professor, Sabanci University, Turkey)

• Alexei Trochev (Associate Professor, Nazarbayev University, Kazachstan)

Ece Göztepe is Professor of Constitutional Law, Dean of the Law Faculty and Director of the Center for Human Rights Studies and Research at Bilkent University in Ankara

Silvia von Steinsdorff is Professor of Comparative Democracy Studies and the Political Systems of Eastern Europe, Vice-Dean of the Faculty of Humanities and Social Sciences and Co-Director of the Integrated Research Institute Law&Society at Humboldt University in Berlin

Suggested citation: Ece Göztepe and Silvia von Steinsdorff, ‘The Constitutional Court of Turkey between Legal and Political Reasoning: Perspectives From Outside and From Within’ IACL-AIDC Blog (5 December 2023) https://blog-iacl-aidc.org/2023-posts/2023/12/5/the-constitutional-court-of-turkey-between-legal-and-political-reasoning-perspectives-from-outside-and-from-within