How Courts Adapt: Lessons from the Constitutional Court of Turkey

Alexei Trochev

Nazarbayev University

The Constitutional Court of Turkey: Between Legal and Political Reasoning is a sophisticated, impressive, and comprehensive analysis of the Turkish Constitutional Court’s (CCT) operation since its founding in 1961. In addition to novel theoretical and empirical insights, this book offers several important lessons for our understanding of how constitutional courts can use, misuse, and abuse judicial power and constitutional law to operate in “political regimes that oscillate between unconsolidated democracy and more or less authoritarian regimes,” (p. 5) as the authors describe Turkish politics in the last six decades. These are the regimes (and their number is growing) in which constitutional review tribunals and other rights-protecting legal transplants are expected to offer pathways for democratic consolidation and rights revolutions. Yet the diverging trajectories of these regimes and varying fates of constitutional courts in these regimes show that constitutional experts, scholars, and rule-of-law promoters must adjust this expectation.

Indeed, the authors conclude their magisterial study of the CCT with the following lesson about the legitimacy of constitutional courts and their ability to have a say in unstable political regimes: the “argumentative and methodological quality” of the court's reasoning may be more important than the court’s motives – legal or political – behind its reasoning (p. 965). Indeed, this is what distinguishes judicial reasoning from the reasoning of other political and non-judicial actors. It creates a public image of the constitutional court as an autonomous, principled, consistent, and coherent decision-maker, not the typical political talk shop or unresponsive bureaucratic paper shuffler or façade for the ruling regime. These kinds of decision-makers endowed with broad formal prerogatives are in short supply in polities that waver between unconsolidated democracy and dictatorship.

To define the quality of CCT’s arguments and methodology, the authors follow the existing methodology of comparative constitutional reasoning, introduced by András Jakab, Arthur Dyevre and Giulio Itzcovich. They explore the discursive and rhetorical practices of the CCT’s Judges; the Judges’ use of analogy, non-legal arguments and jurisprudence of foreign and international courts; and the Judges’ balancing of constitutional values and framing of ideological and political conflicts as technical-legal issues (pp. 88-89; 207; 210). Drawing on a quantitative analysis of the CCT’s decisions in its first 50 years of operation and a qualitative content analysis of 50 key norm control decisions of the Court, the authors detect a wide and “almost random” variation of these decisions in terms of their quality of reasoning – from well-rounded precedent-following ones to those that “completely lack any form of constitutional reasoning” (pp. 218; 691). According to the authors, “all generations of Turkish constitutional justices were well aware of the classical methods of legal argumentation” (p. 205), which means that Justices had a choice whether to use these methods or not in deciding cases. In addition, the authors compellingly explain how the CCT arbitrarily chooses to prioritize one constitutional principle over another (pp. 691-692). The frequently used power of individual Justices to make their dissenting opinions public also showed various methods of constitutional reasoning that the CCT could choose. Having multiple and conflicting opinions about the meaning of constitutional rules may be healthy for democratic consolidation and for constitutional law in civil law systems, in which Judges are expected to strictly follow the will of the legislature or a highly popular President that is reflected in the single correct interpretation of the legal rule. Yet one role of the constitutional court is to develop arguments about clashing constitutional values, which expand and protect open politics against the whims of the most popular political actor and, hopefully, would be accepted by other actors outside the courthouse (p. 33).

The authors skillfully use a three-level model to build their explanation of why and how the CCT has been reaching its numerous decisions of varying argumentative quality: micro-level of individual Justices, meso-level of the CCT as a collective decision-making institution, and macro-level of the socio-political context in which the CCT functions (p. 26). The authors focus mainly on the meso- and macro-levels in explaining the Court’s decision-making. At the meso-level, they convincingly conclude that incoherent decision-making resulted from the constant disagreement within the CCT. This dissent, in turn, led to polarization on the bench and CCT decisions adopted by a compromise within the smallest possible majority of Justices. This compromise could be altered even by the retirement or appointment of one single Justice (p. 962). This is surprising given the extraordinary discretionary power of the CCT President, who sometimes writes dissents, in controlling the internal work of the court, assigning cases to rapporteurs (who are clerks, not Justices), deciding order and timing of decision-making, publishing the CCT’s decisions without having dissenting opinions in hand 10 days after the decision was taken, and authorizing Justices’ teaching or conference travel (pp. 55, 76, 82).

The ability to write publicly available dissenting opinions is usually viewed as a sign of individual judicial autonomy and a capacity for reputation-building of the authors of these dissents. In line with this argument, the authors found one dissenting opinion in their set of selected key decisions, which the dissenting Justice explicitly characterized as his only option to document the internal conflict at the Court and the external interference “for the historical record” (p. 232). Yet some Justices may also use dissenting opinions to signal their loyalty to and build relationships with key political actors. These actors, then, may accuse divided courts of paralysis or sabotage and even attempt to dissolve them, thus using the constitutional law as a weapon against opponents on the bench, as has happened in Belarus, Kazakhstan, Russia, and Ukraine.

To further strengthen their argument about the CCT’s agency in Turkish politics, the authors examine the macro-level dynamics of the socio-political context that surrounds the Court. They identify the adaptation of the CCT to external pressures and opportunities which results in cycles of court activity varying between passivity and assertiveness. The CCT was established in 1961 following the military coup as a counter-majoritarian institution that reflected the army’s distrust in popularly elected political structures (pp. 39-40). The CCT survived a series of military coups and constitutional changes affecting access to the Court, its jurisdiction, and the procedure of judicial appointments. Following political passivity after military coups, the CCT Justices gradually regained substantial autonomy in the 1990s and reined in the executive (p. 692). In the meantime, the CCT managed to grab the power “to issue interim measures and the right to review constitutional amendments based on their substance” (pp. 237-240). The 2010 constitutional reform expanded the discretionary powers of the CCT’s President (p.76). It also introduced a constitutional complaint mechanism, which the CCT’s Justices had long lobbied for, but which Turkish leaders saw as a money-saving device against the skyrocketing cost of Turkey’s losses in the European Court of Human Rights (p. 46).

A year later, in 2011, when the ruling political party was firmly entrenched, the deeply divided CCT abruptly abandoned its assertive stance toward reviewing executive decrees (p. 236). Consequently, the Court refused to scrutinize the constitutionality of emergency decrees in 2015 and state-of-emergency decrees in 2016, approved the arrest of two of its Justices in the wake of the 2016 coup attempt, and avoided defining the limits of the powers of the State President under the 2017 constitutional amendments. Hence, the Court entered yet another phase of passivity or even self-abandonment, but this time under civilian rule (pp. 22, 142, 693). The authors are unsure if and when this contraction of CCT’s power within the Turkish Republic will give way to expansion again. However, this heightened attention of the Court to the preferences of a popular political leader, coupled with the Justices’ capacity for abrupt reversal of its doctrines, resembles the legal dualism described for judicial systems in authoritarian regimes, characterized by Kathryn Hendley as judges sticking consistently “to the law in some cases while following political orders in others.” One could also think about the patron-client-type exchange between a ruler, who gains desirable constitutional court rulings, and the constitutional court, which gains broader powers, larger budgets, and assurance of its non-abolition.

The authors correctly point out the importance of public support for any constitutional court’s ability to protect the liberal constitutional order from the rules written specifically with the interests of key political actors in mind (p. 688). There must be a social demand for well-reasoned, constitution-based decisions, and generating this demand is a formidable task for any constitutional court that aspires to shore up its legitimacy. Since the introduction of the constitutional complaint in 2012, citizens flooded the Turkish Constitutional Court with their constitutional complaints, which is significant for the Court’s internal operations and for its legitimacy in the eyes of the public (pp. 46, 99-100). Still, the authors mention the lack of public support for the CCT. Moreover, they discuss the lack of interest in the CCT’s decisions among Turkish legal scholars, who could potentially critically review “the outcome and the implementation” of these decisions and help educate citizens about the role and importance of the Constitutional Court (p.688). What are the CCT’s audiences, then? Could this mean that today, the key audience for the 60-year-old Court is a ruling party and that the legitimacy of the CCT rests entirely in the hands of the ruling elites?

Alexei Trochev is an Associate Professor at Nazarbayev University, Kazakhstan.

Suggested Citation: Alexei Trochev, 'How Courts Adapt: Lessons from the Constitutional Court of Turkey' IACL-AIDC Blog (14 December 2023) How Courts Adapt: Lessons from the Constitutional Court of Turkey — IACL-IADC Blog (blog-iacl-aidc.org)