Should the Court Shape Politics?
From Saban Kardas’s column:
Turkish Parliament Speaker Köksal Toptan made a controversial proposal concerning the closure case against the Justice and Development Party (AK Party). In what he calls a “third way,” Toptan calls on the parties in the dispute to bridge their uncompromising positions by exploring “gray areas” that may provide a way out of the current deadlock. Toptan, in particular, highlights the critical role that the Constitutional Court could play at this juncture. He invites the court to be mindful of the political and economic consequences of a decision to shut down the governing AK Party and to try President Abdullah Gül. Rather than suggesting a concrete roadmap for the court, Toptan calls on experts, particularly legal scholars and political scientists, to come up with various alternatives to develop a formula in the gray zone.
Can and should the Constitutional Court play this indispensable role in shaping the nation’s future? … Toptan’s proposal empowers the court to shape the political realm, hence the future of the country… This suggestion contradicts the spirit of the institution Toptan [represents as] the speaker of Parliament.
Far from upholding basic rights, the Turkish judiciary has opted for the restriction of rights and liberties in order to “protect the state and the constitutional order.” Given its current structure and composition, does the Constitutional Court represent Turkey’s social and political reality, hence have legitimacy? Most reasonable observers agree that at the heart of the current crisis stands the undemocratic nature of Turkey’s Constitutional Court that isolates it from the changes in Turkish society and the highly politicized nature of the court and its advocating of parochial interests. It is the least equipped civilian institution to propose a social contract. The real challenge that needs to be addressed is how to reform the judiciary and enhance its democratic accountability, which will hopefully restore its credibility and turn it into a more representative institution. Granting the judiciary the authority to shape the nation’s future will only derail this goal, undermining further democratization and attempts to resolve the governance crisis.
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