Friends of the Court: The Republican Alliance and Selective Activism of the Constitutional Court of Turkey

Abstract

During the past two decades, scholars have noted a global expansion of judicial power and court‐led rights revolutions. Far from leading a rights‐revolution, the Constitutional Court of Turkey became renowned for its restrictive take on civil liberties during this period. Why are some high courts more activist than others in protecting and expanding civil rights and liberties? I argue that judicial power and judicial independence offer incomplete explanations of judicial activism on questions of rights. Even powerful courts are activist only selectively, using their clout to protect some groups while suppressing the demands of others. Building on perspectives on legal mobilization and judicial entrenchment, I argue that the sociopolitical alliances in which high courts and judiciaries participate explain the selective nature of their activism. The initial parameters of these alliances are set during critical junctures when formerly dominant coalitions are displaced and new institutions entrench new alliances. Such alliances are not static, however, and struggles within alliances can transform high courts' orientations on rights questions.

In Pursuit of “Contemporary Civilization”: Judicial Empowerment in Turkey

“…However, while Belge (2006) and others see the revamping of the Turkish judiciary in the 1982 constitution as an attempt to preserve the hegemony of the RA by imposing severe limits on the powers of the parliament, we believe that the post-1982 TCC should be conceptualized as an administrative agent assisting the military in simultaneously regulating the political society and transforming the nation.…”

Turkey's Republican People's Party: Politics of Opposition under a Dominant Party System

“…Lacking parliamentary seats to prevent the passage of legislation by the AKP, the CHP relied heavily on extra-parliamentary forces to conduct political opposition. This involved maintaining close ties with Turkey's military, referral of legislation (deemed by the CHP as unconstitutional) to the constitutional court for annulment 18 and supporting or petitioning President Sezer to engage in similar behavior. Whilst the party's reliance on veto players was characterized by some circles as undemocratic, such tactics were rational, in that they allowed the CHP to wield greater political power than its parliamentary strength would have allowed.…”

The Hegemonic Preservation Thesis Revisited: The Example of Turkey

“…The confrontation between the AYM and a government backed by the military that played itself out in the struggle over amendment review could be regarded as one of the earliest signs of a crack within the Republican alliance, which Belge (2006) traces to the late 1970s (p. 653). While the CHP, under its leader Bülent Ecevit, who had objected to the 'coup by memorandum', was moving to the left of the political spectrum, the military was moving to the right.…”

“…Though Turkey can now look back on a considerable history of democratic multi-party politics, it is faring worse in securing its democratic consolidation than the third wave democracies of South Eastern, Central and Eastern Europe. The practice of strong constitutional entrenchment and of amendment review has often been held to be at least partly responsible for this lack of democratic consolidation (Arslan 2002(Arslan , 2007Belge 2006;Gülener 2012;Günter 2012;Kogacıoglu 2003Kogacıoglu , 2004Ö zbudun 2005, 2011a, 2011bRoznai and Yolcu 2012;Tezcür 2009;contra Arato 2016, chapter 5;Arato 2010;Caniklioglu 2010). This paper will offer a critical rereading of the history of strong entrenchment and amendment review in Turkey.…”