Erdoğan's advisor targets the Constitutional Court, says it creates systemic crisis

Presidential Chief Advisor Mehmet Uçum targeted the Constitutional Court (AYM), which issued the second violation decision regarding Can Atalay, a member of the Turkey Workers' Party (TİP), who was elected as a Member of Parliament in the general elections on May 14, 2023, but has nevertheless not been released from the prison.

The local court, instead of releasing Atalay in accordance with the AYM's decision, had forwarded the case to the 3rd Criminal Chamber of the Court of Cassation which declared the Constitutional Court's decision as "unlawful" and declined to comply with it. 

"Constitutional Court is violating the Constitution"

Uçum has, in statements that he made on his social media posts today (December 4) claimed that the Constitutional Court has not respected the constitution since its establishment. He wrote that the 3rd Criminal Chamber of the Court of Cassation did the right thing, arguing that the Constitutional Court is the one violating the constitution.

Uçum, claiming that the Constitutional Court has harmed Turkey with its violation decisions, made a reference to the closure case against People's Democratic Party (HDP) without explicitly naming it. In his statement, he said, "In the past, the Constitutional Court closed parties it ideologically disagreed with and restricted their political participation rights. Today, it doesn't close a political party that is under the influence of terrorist elements, even acting in organic unity with a terrorist organization. Moreover, it enables financial support, including special election funds, to be provided to this party, which is evident not to participate in elections, thus opening the door to indirect financing of terrorism."

Facing the risk of closure, HDP had entered the elections under the Green and Left Party (YSP) which later changed its name to DEM Party. 

Uçum, in his social media account X, stated the following:

"The Constitutional Court (AYM) in Turkey has been a structure marked by reckless disregard for the Constitution and audacious legal violations since its establishment. Looking at the recent past, we can initially list the following: The AYM flagrantly violated constitutional provisions and subjected the constitutional jurisdiction to one of the most shameful decisions in history, the 367 scandal. It virtually eliminated the Parliament's authority to elect the President with a decision akin to a coup.

"Despite lacking the authority to substantively examine constitutional amendments, the AYM, influenced by those claiming that the constitutional amendment passed with 411 votes led to chaos, usurped the Parliament's power to amend the Constitution and annulled the regulation on freedom of dress."

"AYM obstructed democratic governments"

"The Constitutional Court (AYM), despite lacking the authority for substantive examination, caused the takeover of the Supreme Board of Judges and Prosecutors (HSYK) by the FETÖ (Fethullahist Terrorist Organization) gang by annulling the provision 'each voter votes for one candidate' in the 2010 constitutional amendment."

"For years, the AYM obstructed democratic governments by canceling laws that, despite being in line with the Constitution, it deemed inappropriate solely based on an ideological perspective unrelated to positive law. It supported illegitimate internal powers, and hampered the development of our country."

"By closing various political parties established as a requirement of the right to political participation for ideological reasons, the AYM inflicted severe damage to our democracy. The AYM examined the closure case against the ruling party (AKP) and applied sanctions against it based on flimsy evidence and false news on fake websites."

"Turned into a tool for creating legal chaos"

"After the individual application system was introduced, the Constitutional Court (AYM), positioning itself as if it were above the Court of Cassation and the Council of State in violation of the Constitution, committed numerous legal violations and continues to do so. AYM intervenes in court decisions in almost every domain and beyond constitutional limits, almost turning into a tool for creating legal chaos. All courts, including the Court of Cassation and the Council of State, have reached a point of rebellion against the AYM's both unconstitutional and legally ignorant violation decisions."

"AYM trying to narrow scope of Presidential Decrees"

"Despite its constitutional duty, the Constitutional Court (AYM) ignores applications claiming that the reasonable duration of the trial has been exceeded due to the high number of applications, even if this causes citizens to suffer."

"However, the same AYM occasionally prioritizes applications that contribute to legal chaos in both individual applications and norm controls, not hesitating to make unconstitutional decisions.

"In this context, the AYM does not refrain from doing its utmost to narrow the exclusive scope of Presidential Decrees, a necessity of the presidential system, and to create a systemic crisis. While the AYM occasionally makes accurate decisions, these decisions unfortunately seem to be the result of an effort to strike a balance influenced by public opinion and internal court dynamics."

"There are judges among the members of the Constitutional Court who take a stance in favor of the Constitution and law against unconstitutional practices, decisions violating the law, exceeding authorities, judicial activism, and the desire for a regime of constitutional judges (juristocracy). Their existence is indeed valuable. However, ultimately, the Constitutional Court establishes a record not with dissenting opinions of historical value, but with decisions made by the majority. The subject of criticism and objection is this track record of the Constitutional Court. To free the Constitutional Court from this state, there is a need for legal and, ultimately, constitutional amendments."

"Court of Cassation is fulfilling requirements of the Constitution"

"The 3rd Criminal Chamber of the Court of Cassation is fulfilling the requirements of the Constitution. It is the Constitutional Court (AYM) that is violating the Constitution! The Constitutional Court (AYM) continues to issue decisions that blatantly contradict both Article 14 of the Constitution and the provisions of the Code of Criminal Procedure (CMK) regarding the immunity of a convicted member of parliament, just as it did in the past."

"Not adhering to the arbitrary decisions of the Constitutional Court by the 3rd Criminal Chamber of the Court of Cassation is a defense of the Constitution and legal security. In other words, not complying with the decisions of the Constitutional Court is not a violation of the Constitution; on the contrary, it is fulfilling the requirements of the Constitution."

"The decision of the 3rd Criminal Chamber not to comply is an exposure of the unconstitutional and arbitrary decisions of the Constitutional Court (AYM), which does not recognize the constitution and the institution of retrial. If the arbitrariness of the Constitutional Court is not curbed, these problems will persist. With its two non-compliance decisions, the 3rd Criminal Chamber of the Court of Cassation has intervened against the arbitrariness of the Constitutional Court and defended the positive legal order. This is an extremely valuable legal stance."

"In general, it is an important goal to eliminate the Constitutional Court's structure, which has become impaired by reckless disregard for the Constitution and audacious legal violations since its establishment, and to restructure it within a new constitution. It is crucial for the Constitutional Court to function as one of our national judicial bodies in every aspect to strengthen our national judiciary, freeing itself entirely from Western and neo-liberal deviations." (RT/PE)