Constitutional Judges in Emerging Autocracies

Kriszta Kovács & Gábor Attila Tóth

ELTE Eötvös Loránd University & University of Debrecen and Semmelweis University

A much-needed, comprehensive analysis of Turkish constitutional case law has recently been published. Silvia von Steinsdorff, Ece Göztepe, Maria Abad Andrade and Felix Petersen have co-authored the book “The Constitutional Court of Turkey. Between Legal and Political Reasoning,” presenting and situating the Turkish Constitutional Court in the world of constitutional courts and analysing the judgments the authors consider to be the most important. One particularly important contribution is that the authors have also provided the English translations of these judgments. Hence, the book is unique in that it offers both primary and secondary research sources.

The authors start their introduction with the failed coup attempt of 15 July 2016 and explain that after this attempt, the Turkish Constitutional Court was unable to maintain its independence from the executive. The authors argue that the few existing scholarly approaches to analysing the Court mainly focus on the macro-level of judicial behaviour and stress the need for micro-level approaches. We concur with the authors that it is worth taking into account the wider context of decisions when analysing the output and function of constitutional courts. This includes examining whether they contribute to democratic progression or regression and alterations in the constitutional structure. It should also entail considering the reasoning of the court and individual judges.

As Dieter Grimm rightly points out in his preface to the book, the Turkish Constitutional Court has been “operating under frequently changing systems, oscillating between an unconsolidated democracy and more-or-less authoritarian regimes”, and this history may signal what other countries and constitutional courts are just now facing, the alteration of rises and crises. We see in the recent history of Turkish constitutionalism a clear record of autocratic transformation (even though there were already flaws in Turkey’s constitutional democracy before this transformation began). The Turkish Constitutional Court was transformed by the ruling AKP party, leading to the dismantling of a democracy that was not yet consolidated. In the same period, the Hungarian Constitutional Court was in a similar situation. Therefore, for the purpose of this blog post, we have chosen the Hungarian case as a comparison. (For full disclosure: before 2010, we both served as advisers to the Hungarian Constitutional Court for over a decade.)

Turkey and Hungary: Constitutional amendments relating to the competence and jurisdiction of constitutional courts

In 2010, both countries’ governing majorities passed constitutional amendments relating to the composition and jurisdiction of their respective Constitutional Courts. Later, the affected Constitutional Courts had to decide on the constitutionality of these amendments. First, we briefly discuss the adoption of the Hungarian constitutional amendment and then the passage of the Turkish amendment.

After the 1989 democratic transition, the Hungarian Constitutional Court was internationally regarded as one of the most respected courts. The Constitutional Court quickly became the main force driving constitutional consolidation in the country because it imported the standards of apex courts in mature liberal democracies and international human rights institutions. Following the initial landmark judgements on the rule of law, free speech and data protection, the Hungarian people started to trust this new institution and frequently turned to it. Therefore, public petitions by the electorate and its organisations (NGOs, watchdog institutions) and the interplay between the legislature and the Constitutional Court, shaped Hungary’s constitutional democratic order.

A radical shift happened in 2010 when the then-opposition party Fidesz won a landslide majority. Popular support, alongside an insufficiently proportional electoral structure, ensured the new government two-thirds of the seats in Parliament. This parliamentary majority was large enough to amend Hungary’s democratic Constitution. In the first few months of its term, Fidesz promoted several amendments to the Constitution pertaining to issues such as the representative bodies, the judiciary and civil liberties. The Constitutional Court was among the first targets of this rapid transformation. In 2010, the two-thirds parliamentary majority adopted a constitutional amendment that changed the nomination and confirmation process for Constitutional Court Judges so that this majority alone would choose candidates. It also enlarged the Court’s membership from 11 to 15 Justices, and limited the Constitutional Court’s jurisdiction by banning it from striking down unconstitutional financial and tax measures.

In Turkey, similar constitutional amendments were adopted in the same year. Recep Tayyip Erdoğan’s government submitted a comprehensive package of constitutional amendments to Parliament. One of the key elements of this package was to change the number of Constitutional Court Judges, as well as the method for selecting the Judges, and the jurisdiction of the Court. The amendment increased the number of members from 11 to 17. The new nomination rule limited the role of Parliament in the process of selecting judges. Another of the changes accepted by Parliament was the elimination of the position of the Vice President of the Constitutional Court, which at that time was held by a Judge who was less favourable to the ruling party. The package also amended one of the most important powers of the Constitutional Court, the power to review constitutional amendments, by empowering the Court to block an unconstitutional constitutional amendment with a two-thirds majority (instead of a three-fifths majority, as was the case before).

When discussing this amendment, the authors of the book speak of the “2010 reform,” and they list the positive changes that this reform brought (see, eg, on pp. 78 and 106). We disagree with this positive characterisation of the reform, and instead agree with Andrew Arato, who claims that even though the amendment package seemed highly attractive in many respects, as a whole it was problematic because its aim was to ensure that the Constitutional Court could not prevent autocratic transformation via constitutional amendments. As in Austria and Germany between the two World Wars, the broader context of constitutional law helps us to understand the conflict between the majority government and the court.

The initial reaction to the constitutional amendments

Once the constitutional amendments were passed in both countries many petitions were brought to the respective Constitutional Courts requesting the annulment of the constitutional amendments. These petitions emphasized that the amendments were aimed at curtailing judicial independence, taming the Constitutional Courts, and excluding the possibility that the Courts could find the government’s future constitutional amendments unconstitutional – and thereby generally indicating a move away from constitutionalism based on the separation of powers.

In the decade up to 2010, the Turkish Constitutional Court had adopted the doctrine of unconstitutional constitutional amendments and developed its case law on this doctrine. In Hungary, the Constitutional Court had recognised its authority to determine the constitutionality of a constitutional amendment from a procedural point of view and it remained an open question whether the Constitutional Court could review the constitutionality of the content of a constitutional amendment and, if so, what the scope of this substantial review could be.

In line with its previous case law, in 2010, the not-yet-captured Turkish Constitutional Court reviewed the content of the constitutional amendment on judicial reorganisation. This decision, which did not find its way onto the authors’ list of the Court’s most important decisions, found that the new procedural rule for the nomination of constitutional Judges contained in the government’s constitutional amendment package violated an immutable constitutional provision. According to the Court, the new nomination rule (more specifically, the rule that the electors participating in the nomination have only one vote each, although they can nominate several judges at the same time) infringed the requirement of the rule of law.

By contrast, in its decision 61/2011, the Hungarian Constitutional Court denied itself the authority to perform a substantial review of the constitutional amendment. A key question in the decision was whether there were superior standards that could have primacy over constitutional provisions. The Court held that such primacy might only be attributed to those standards that had been explicitly determined by the constitution-making power in the constitutional text, as superior to other constitutional norms. At that time, the Court interpreted the text as not containing such standards for the purposes of review. Consequently, there was no obstacle to transforming the constitutional system. The governing majority then swiftly implemented numerous constitutional amendments and eventually replaced the democratic Constitution entirely and introduced an autocratic regime.

The role of the Constitutional Courts today, in the context of a modern form of autocracy

Despite the initial different decisions in the two Courts, today neither the Hungarian nor the Turkish Constitutional Court can serve as a check and balance and fulfil the task of a guardian of fundamental rights in an increasingly monolithic system. Instead, both institutions play a power-legitimizing role. As Steinsdorff et al rightly put it in relation to Turkey, there is no need for inter-party agreement on the judicial candidates (p. 45) and the ruling majority can directly determine the composition of the Court. Moreover, the decisions of the constitutional Judges, selected according to the will of the autocratic leader, have contributed to the reinforcement of the regime. In the most extreme example, the Turkish Constitutional Court unanimously approved the imprisonment of two of its own Judges, who had previously repeatedly dissented, on the grounds that they were allegedly involved in the 2016 coup.

Today, researchers face a difficult task because autocrats occasionally tolerate inconvenient judgments and constitutional judges still at times issue dissenting opinions. This tolerance contributes to constructing a façade of constitutionalism. In this respect, Hungary has followed the example of Russia, Belarus and Turkey, where leaders have deployed constitutional review to help centralize and consolidate autocratic power.

A particular characteristic of modern autocrats is that they do not abolish institutions of the constitutional judiciary, as those in previous eras would have done, but they neutralize the institutions in an ostensibly democratic way. An autocratic transformation of the constitutional judiciary, supported by much new scholarship, hijacks constitutional conceptions. These hijacked theoretical conceptions include, on the one hand, Richard Bellamy’s idea of “political constitutionalism”, Ran Hirschl’s view on “juristocracy”, and Mark Tushnet’s view on the elitist constitutional judiciary; and, on the other, Jeremy Waldron’s conception of majoritarianism as an egalitarian concept. The “background theory” for capturing constitutional judiciaries suggests that Parliament as an elected, representative body—and, tentatively, some direct participatory forms of democracy—provides a superior kind of democratic deliberation to constitutional review by unelected judges. This modern form of autocracy purportedly introduces “political constitutionalism” instead of “legal constitutionalism” and ostensibly replaces “juristocracy” with “parliamentary sovereignty”. It also invokes “we the people” to transform the role of the constitutional judiciary. In its understanding, the people exist in their ethnic, religious, and cultural “oneness” in a society with a certain degree of internal homogeneity that is present prior to any constitutional order and has existed since time immemorial. It is the will of “the people” that autocrats invoke to undercut the role of the constitutional judiciary and other democratic institutions such as the representative institutions and public deliberation. Thus, autocracy emerges at the expense of both constitutional review and democratic participation.

Yet constitutional Judges always have a choice. They can contribute to an autocratic transformation through a narrow understanding of their powers or a restrictive interpretation of the Constitution. And they can tacitly or explicitly approve the undemocratic seizure of power by the executive, like the Hungarian Constitutional Court has in the recent past. Alternatively, Judges can resist the autocratic government, as the Turkish Constitutional Court partially did in 2010 and over the next few years. There is much empirical evidence to suggest that in a conflict between the executive and the court, the former is the stronger. Yet, much depends on the commitment of the court and its members to democracy and the rule of law, as well as the public support for the court. In Belarus, Hungary, Turkey and Poland, the conflict is over: there is a Constitutional Court but no constitutional adjudication. In Israel, the outcome of the conflict between the Supreme Court and the government is still uncertain. At the same time, it seems clear that defending the integrity of a theoretically debatable constitutional judiciary means defending democracy in a time of de-democratisation. The book by Silvia von Steinsdorff, Ece Göztepe, Maria Abad Andrade and Felix Petersen does much to help us understand this through its rich analysis and primary judicial sources.

Kriszta Kovács is a Research Fellow at WZB Berlin (Germany) and Associate Professor at ELTE Eötvös Loránd University, Budapest (Hungary).

Gábor Attila Tóth is Associate Professor at the University of Debrecen and Semmelweis University, Budapest (Hungary).

Suggested Citation: Kriszta Kovács and Gábor Attila Tóth, ‘Constitutional Judges in Emerging Autocracies’ IACL-AIDC Blog (7 December 2023) https://blog-iacl-aidc.org/2023-posts/2023/12/7/constitutional-judges-in-emerging-autocracies