Will the Constitutional Court seize political life?
It used to do it. The Constitutional Court most recently seized the presidential vote in Parliament in 2007, ruling that the quorum was 367, contrary to what had been assumed up to that day.
The reason for this ruling was that the ruling Justice and Development Party (AK Party) group in Parliament alone would not have been enough to elect Abdullah Gül.
This intervention was called the “367 strangeness,” and it has taken a unique place in our history of coups and memorandums. We experienced a period when this strangeness, rather than the military, seized the administration. Such chapters were supposed to be closed.
Now, a new strangeness is approaching. Rumor has it that the Constitutional Court is preparing to intervene in an area that is completely under the jurisdiction of politics and Parliament: To eliminate the 10 percent electoral threshold.
For this, it will use a power that it does not have. It will circumvent the individual application rule and opt to annul the law. In other words, it will bypass Parliament, inactivating the political institutions, exceeding its jurisdiction and changing the election regime as defined by law.
In fact, it will be up to Parliament's General Assembly whether or not to change the law - a law that it did not deem necessary to amend up until this day.
The architect of the “367 strangeness” was the chief prosecutor of the Supreme Court of Appeals, Salih Kanadoğlu. He had found a formula that nobody had thought of up to that day in order to block the election of Abdullah Gül.
In the strangeness of today, it does not look like Constitutional Court President Haşim Kılıç will have to cook up a brand new discovery. The Court will debate lifting the 10 percent threshold from the point of view of the individual’s rights to elect and be elected. Once it is decided that there is a violation, it will immediately be ruled that this violation should be eliminated. Politics and Parliament will be bypassed.
In the 2010 constitutional reform, such a power for the Court was considered. If the Constitutional Court reached the opinion that a violation was because of the law while reviewing individual processes, then the Court should be given the power to ask for an annulment. But this was only a draft; it was removed at the parliamentary constitutional commission. The justification for this was to not give the court extra power to annul laws in addition to existing ones, not to put it in the place of a judge and the prosecutor simultaneously.
This was the unanimous decision of all the political parties in the commission, not to grant this power to the Constitutional Court. Now, the court is about to use a power that has been denied from it by Parliament.
The year is almost 2015; those who are hopeful of interventions into politics are still waiting.
The power to make laws is only granted to the legislation body, Parliament. This body has made a law and several elections have been held according to that law. The Constitutional Court has not annulled it on the grounds that it was against the Constitution.
The same Constitutional Court, one morning, will say, “There is no such law; it has been annulled.” And we will call it “democracy"; we will not talk about “judicial tutelage.”
We will not say the powers of Parliament are being seized; we will not mention that political life is trying to be designed with an irregular, exceptional intervention.
Well, indeed. Sure.