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HomeHeadlineConstitutional Court's Crisis of Compliance: The Dilemma of Upholding Justice in Turkey

Constitutional Court’s Crisis of Compliance: The Dilemma of Upholding Justice in Turkey

Orhan Kaya/Bold Media

President of Turkish Constitutional Court, Zühtü Arslan, spoke yesterday at the swearing-in ceremony of the new Constitutional Court member Yılmaz Akçil about the Can Atalay decision, which was not implemented by the Court of Cassation and local courts without naming names.

In the ceremony attended by Erdoğan and the President of the Court of Cassation, Mehmet Akarca, Arslan emphasized that it is obligatory to comply with the Constitutional Court’s decisions according to the Constitution, stating, “Of course, we may not like the decisions and interpretations of the Constitutional Court related to constitutional provisions. However, in a state governed by the rule of law, it is a constitutional obligation to comply with these decisions, even if we disagree.”

Zühtü Arslan also recounted a parable from the time of Solomon. Telling the story of an injured bird whose wing was broken by a dervish, Arslan sent a message to the Court of Cassation members acting contrary to the Constitution. Arslan said, “As members of the judiciary, the lesson we should take from this parable is clear. The robes we wear are a symbol of society’s trust in justice. Avoiding behavior that would undermine this trust is the requirement of fidelity to the oaths we take when we start our duty. The bird came to Solomon, saying its wing was broken by a dervish.”

HAS THE CONSTITUTIONAL COURT CEASED TO BE AN EFFECTIVE DOMESTIC REMEDY?

With Zühtü Arslan at the helm, the Constitutional Court is now in the midst of discussions about no longer being considered an effective domestic remedy before the European Court of Human Rights. Some legal scholars say that the Constitutional Court has taken on the role of blocking the route to the ECHR in cases where sections of society targeted by Erdoğan and the state are victims.

THE CONSTITUTION HAS BEEN SUSPENDED SINCE JULY 15 Indeed, it is true that the legal and constitutional order in Turkey has been suspended for almost 8 years since July 15, 2016. During Zühtü Arslan’s tenure at the head of the Constitutional Court, known as the domestic court of human rights and freedoms, Turkey faced some of the heaviest violation rulings in the history of the ECHR. The ECHR underlined Turkey’s systematic human rights violations in the Yüksel Yalçınkaya ruling. While it was obligatory for Zühtü Arslan to comply with the Yalçınkaya ruling according to the Constitution, he declared, “We do not agree with the ECHR ruling.”

ZÜHTÜ ARSLAN AND THE CONSTITUTIONAL COURT COULD NOT STEP OUTSIDE THE LIMITS SET BY ERDOĞAN In cases against societal groups targeted by Erdoğan, including the Gülen Movement trials, the Constitutional Court was practically ineffective. It did not step outside the limits set by Erdoğan. Under Arslan’s presidency, the Constitutional Court played a role in establishing the Decree-Law regime by not making decisions. It essentially acted as a ladder in the creation of Erdoğan’s one-man regime.

QUESTIONS ZÜHTÜ ARSLAN MUST ANSWER It has become almost a duty to ask Zühtü Arslan the following questions:

“Why did you not uphold constitutional law during your presidency?

Why did you remain silent while Erdoğan took control of the Council of Judges and Prosecutors?

Nearly 3,000 judges were suspended and dismissed overnight. Thousands were arrested. Members of the Court of Cassation, Council of State, HSYK, and even Constitutional Court members Alparslan Altan and Erdal Tercan were arrested. Why did you remain silent while the constitutional guarantee of judges and prosecutors, judicial independence, was disregarded?

Why did you approve the one-man regime established by Decrees with the Force of Law?

Why did you not annul the Decrees issued by Erdoğan?

After July 15, nearly 130,000 public servants were dismissed. Why did you find the dismissals based on unfounded, lawless claims of connections and affiliations to be constitutional?

You did not speak out when the media was seized, remained silent when educational institutions were closed, and did nothing when holdings in Anatolia, which had reached billions of dollars in value with their own equity, were seized. Why didn’t you issue a single violation ruling when businessmen were arrested for not pledging allegiance to Erdoğan?

Thousands of women, along with their babies, were put in jails on terrorism charges, and babies grew up in prisons. Women were subjected to strip searches in prisons and police stations. Why did you not issue a single violation ruling? Did you fear Erdoğan’s reaction when making decisions in these cases?

Final word: Zühtü Arslan will be remembered in the eyes of the writer of these lines as a figure who bowed before Erdoğan.

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