BY TAHA AKYOL
MILLIYET- The closure case ruling Justice and Development Party (AKP) will probably come to a conclusion in a few days. Of course the verdict will be scrutinized closely. The following two legal points are very important:
How will the Supreme Court use its authority? Will it be limited to its authority to judicial review under the Constitution and the law? Or will it make a decision based on political expedience? This is called discretionary authority in legal circles, but the judiciary has no such authority. Political parties decide what is discretionary and what's not.
The other issue is how the Supreme Court will interpret such basic issues as secularism and democracy. Will it say that secularism is the basis of the entire constitutional system, or view the issue through the lens of 'a healthy reflection of the democratic regime,' as it has in recent decisions? Besides these two issues, the Constitutional Court can't make a decision meant to regulate politics!
Professor Ibrahim Kaboglu, a constitutional law expert, told journalist Devrim Sevimay that he wants a decision which penalizes the AKP but doesn't actually close it. In other words, a decision which sanctions the AKP on the grounds that it has become the focus of anti-secular actions but which doesn't close it, but instead only cuts off its Treasury aid.
Kaboglu said that with such a decision, the Constitutional Court would be fulfilling its role of making political peace through the law. He also wants the court to issue a legal justification for its ruling which draws Turkey's future political and legal roadmap. Although I've read a lot about this issue, I've never seen another academic arguing that the Constitutional judiciary should make political peace through the law or draw Turkey's future political and legal roadmap, nor have I seen anything like this in the Constitution. Giving the judiciary the 'role' of political arrangement shows a typical desire for discretionary control. Under liberal constitutional thinking, this is unacceptable.
By now the members of the court must have looked at the case closely and come up with provisional decisions. What's more, we know how each member interprets basic concepts through previous precedent-setting rulings. All over the world, all such precedents are the same. Moreover, nowhere in the world is the absolute sovereignty of a single view to provide an unbiased judiciary possible, but pluralism is ensured. For this reason, members of such top courts are normally elected by parliaments. The only constitutional judiciary whose members aren't elected by Parliament, at least since the 1980 coup, is Turkey! Of course constitutional law isn't like criminal law. It's open to varying interpretations. So both the political and legal ripples of this case will be important for Turkey.