Legal Practitioners Say The Court Exceeds Its Authority

Sami Selçuk, the former head of the Supreme Court, Prof. Dr. Ergun Özbudun and Doç. Dr. Serap Yazıcı think that the Constitutional Court exceeded its power with its decision to revoke the amendments that would allow women to wear the Muslim headscarf at Turkish universities and stop its implementation.

Asserting that the court has thus become a political actor, Prof. Dr. Ersin Kalaycıoğlu says, “This problem will not be solved with legal directions in this direction. But, since there will not be a compromise over this issue, it will be difficult to come up with a solution. The jurisdiction of the Parliament has become smaller not only because of this decision, but with other decisions as well.”

Sabih Kanadoğlu, the former Supreme Court Chief Prosecutor, thinks the decision is very clear, while Yekta Güngör Özden, the former head of the Constitutional Court, finds it “legitimate”. Prof. Dr. Yıldızhan Yayla of Galatasaray University says, “it is not the first time such a decision is taken.”

Kanadoğlu: I was not expecting such a clear decision

According to the newspaper Radikal, Kanadoğlu’s first reaction was “Personally I was not expecting such a clear decision; this was one of the possibilities.”

Özbudun: This is a jurisdiction extortion

“The Constitutional Court has taken the most controversial decision of its 46 year long history. The 1982 Constitution had only allowed procedural inspection. The Constitutional Court exceeded its constitutional powers and inspected the essence of the amendments. It used a power that the Constitution forbids to it. This is clearly a jurisdiction extortion. I am afraid that the respectability of the noble Court will be damaged in the long run. The power to change the Constitution is no more in the hands of the political power; this power has just passed to the Constitutional Court.

Kalaycıoğlu: The Court has become a political actor

“The Constitutional Court has become a political actor. It made a decision that connected the headscarf to secularism. We have arrived at the final point within the internal legal system. The headscarf discussion will continue. I do not know if there is anything left to do legally; the government will determine that. The people are seriously divided over this issue. This problem will not be solved with legal decisions in this direction. But, since there will not be a compromise over this issue, it will be difficult to come up with a solution. The jurisdiction of the Parliament has become smaller not only because of this decision, but with other decisions as well.”

Özden: The Court does not make its own decisions

“Some people present the Constitutional Court as an organ that makes its own decisions. The Court does not make its own decisions. It made its decision upon the application of 110 deputies.”

Selçuk: The Court does not have the power to make inspections regarding the essence of the matter

“The Constitutional Court does not have such powers; it does not have the power to make inspections regarding the essence of the matter. This is very clear; such a power cannot be even thought of. But the Court did it anyways. One can see a connection here with the closure case, but I do not make such a connection. The indictment needs to be considered as a whole, as two separate cases. These two cases are very different essentially: One of them is a case of annulment, the other one is a closure case.”

Prof. Yayla: It is a decision reflecting the expectations

“The Constitutional Court had rejected the headscarf before, both in 1960’s and in 1989, finding it in contradiction with the Constitution. Therefore this is not the first time. The Constitutional Court was emphasizing the democratic and secular state which defines the character of the Republic. The Constitution is used to making such decisions by considering the unchangeable articles of the Constitution and it did it again. This decision cannot affect the closure case.”

Yazıcı: It does not have this authority

According to the newspaper Milliyet,  Doç. Dr. Serap Yazıcı said that “The Constitutional Court made a decision in an area that is not in its jurisdiction. The Court may make a decision of cancellation or denial of cancellation. But today it has exceeded its jurisdiction and made a different kind of decision.” (EÖ/EZÖ/TB)