The Constitutional Court and the Americanization of Law

Since 2012, it has been possible to file individual applications to the Constitutional Court (AYM). The fact that the members of the AYM are distinguished jurists, that it is the final authority before the European Court of Human Rights, and that the Constitution is perceived as a fundamental norm makes its decisions closely watched by legal professionals.

In recent years, a habit of forming demands and establishing judgments by looking at high court decisions has taken root. However, the AYM is not a court of precedent like the Court of Cassation (Yargıtay) or the Council of State (Danıştay). By the nature of individual applications, AYM decisions are valid only under the specific circumstances of the person who filed the application. These decisions are not required to be applied directly in another case. Despite this, we see some colleagues on social media circulating AYM decisions as if they were precedents of the Court of Cassation. Yet, it is the precedents of the Court of Cassation that are binding for first-instance, appellate, or Court of Cassation judges. AYM decisions can only be effective at the level of doctrine. Although I may be mistaken about this; for the tendency of "precedent through interpretation" under the influence of Anglo-American law may have also affected Turkish judges.

Behind the trust placed in the AYM lies a naive and liberal approach. It is possible to see this approach in the founding idea of Constitutional Courts. According to liberal theory, a "safety net" was necessary against executive and legislative powers that had become corrupt or gone off track. This net was a judicial guardianship equipped with the principle of the rule of law, and the highest institution was the Constitutional Courts.

Today, the word "guardianship" sounds negative. Yet, in the literature, judicial guardianship is presented as an indispensable condition of democracy. It is claimed that thanks to the guardianship of judges, a lifeline of law is created against a tyrannical executive and legislature. However, it is delusional to think that national and global powers that design politics cannot influence this area of guardianship. Since this "sweet wish" of liberalism is compatible with the system's logic of producing consent, the independent and impartial image of the AYM can be preserved to some extent.

AYM President Kadir Özkaya says, "From September 23, 2012, to date, a total of 81 thousand 481 violation decisions have been issued, including the right to be tried within a reasonable time." He then adds the following statement: "Individual application has not only ensured the protection of individuals against public power; it has also served to consolidate the principles of the rule of law and democracy." (https://12punto.com.tr/adalet-hukuk/aym-baskani-bireysel-basvurudaki-yeni-donemi-duyurdu-1-ekimden-itibaren-basliyor-99214) 

Protecting individuals against public power is truly a great task. The contribution of the AYM in this respect is undeniable. However, the number and impact of violation decisions are far behind a root solution to the problem. If we realize that AYM decisions do not create precedent and that individual application is difficult in terms of form, we can bring our expectations to a more realistic level.

The real issue is for Turkish law to be able to function without needing the safety valve function of the ECHR or the AYM, and without giving rise to these violations. For this, relying solely on legal regulations is not enough; because for regulations to produce results, it is possible only through political and social power. Fleeing from social struggle and showering wishes upon an imaginary world of "supra-political law" is like opening one's hands to the sky and praying for rain.

Let us not forget: Behind the law are flesh-and-blood people, and the needs and demands of society. For now, even keeping this in mind is valuable.