Why the Constitutional Court is right

Why the Constitutional Court is right

The hottest debate in Turkey these days is the tension between the government and the Constitutional Court — or, more precisely, between Prime Minister Erdoğan and top judge Haşim Kılıç. And I find the latter absolutely right.

The tension emerged when the Constitutional Court took decisions that upset the all-assertive prime minister. First, the top court opposed Erdoğan’s ban on Twitter and forced the government to reopen the popular website. Erdoğan slammed this decision as “unpatriotic” and he said that he does not “respect” it. Then, the court also annulled the new law that Erdoğan government passed and which made the top judiciary subservient to the justice ministry. This new law violated the constitutional principle of “separation of powers,” the court said, so it cannot pass. Again, the government responded with criticisms.

But the real break came last week, when Haşim Kılıç, gave a speech at the 52. anniversary of the Constitutional Court, where Erdoğan, along with President Abdullah Gül, were among the audience.

The speech was full of references to international law, the human rights criteria of European courts, and the need to contain power with universal principles. Plus, it included a veiled personal criticism towards Erdoğan, since Haşim Kılıç said, “we are not of a character that changes shirts.” This was widely interpreted as a take on Erdoğan’s famous sentence, “We have changed our shirts,” when he used during the founding days of this party, the AKP.

Since then, the pro-government media is slamming Haşim Kılıç, as the new juristocrat, the new enemy of democracy, and even an agent of “the parallel state.” All these are unfair, I believe. Moreover, it shows how little understanding the governing circles have regarding liberal democracy.

In fact, I too believe that the “shirt” reference was a mistake, for it initiated a personal polemic, overshadowing the much more important thing Haşim Kılıç said. But I also see that it was an understandable response to all the insults and attacks coming the government.

Besides that, the Constitutional Court is right on all its recent decisions, and Haşim Kılıç is absolutely right in the principles he defends. He also has an impeccable record of defending the same liberal principles, even at times when the Constitutional Court was dominated by hardcore Kemalist judges. It was Haşim Kılıç, who bravely stood against that old guard, by, for example, opposing the closure of the AKP in 2008.

This is what I had written about him then, in his very column, referring to another key speech he had delivered:

“Mr. Kılıç turned the basic logic of the Turkish state upside down. The fundamental duty of the Constitutional Court, he said, is to protect the rights and liberties of the individuals from institutions that exercise state power. This is the exact opposite of the orthodox Ankara mindset, which is all about protecting state institutions from the rights and liberties of the individuals.” (“A righteous judge among the unrighteous,” HDN, January 5, 2008)

Today, the problem is that “the orthodox Ankara mindset” has not disappeared; it only changed hands.

That is why we are hearing unbelievable comments arguing, “Politics cannot be limited.” It, of course, should be limited by law. And the Constitutional Court is our best hope now to do that.