Erdoğan's chief advisor Mehmet Uçum targets the Constitutional Court: 'It is the AYM that violates the Constitution!'

AKP Chairman and President Recep Tayyip Erdoğan’s chief advisor Mehmet Uçum has targeted the Constitutional Court (AYM), which issued two separate rulings of rights violations regarding Gezi prisoner and TIP Hatay MP Can Atalay.

ACCORDING TO UÇUM, THERE IS NO 'JUDICIAL CRISIS'

"The Constitutional Court is a flawed structure," said Uçum, claiming that the AYM has not recognized the constitution since the day it was founded and has committed legal violations. Arguing that there is no judicial crisis but rather a conflict created by the AYM, Uçum advocated that the structure of the high court must be changed.

'IT WANTS TO NARROW THE SCOPE OF PRESIDENTIAL DECREES'

Uçum's posts are as follows:

"If we look at the recent past, we can list the following first: By clearly violating the provisions of the constitution, the AYM caused the '367 scandal,' one of the most shameful decisions in the history of constitutional jurisdiction. It effectively abolished the Turkish Grand National Assembly's (TBMM) authority to elect the President with a decision akin to a coup.

Although the AYM did not have the authority to review constitutional amendments on their merits, it complied with those who said '411 hands were raised for chaos,' usurped the TBMM's authority to amend the constitution, and canceled the regulation on freedom of dress.

In the 2010 constitutional amendment, although it again did not have the authority to review on the merits, the AYM canceled the provision that 'each voter votes for one candidate,' causing the FETÖ gang to seize the HSYK.

For years, the AYM produced jurisprudence based solely on an ideological perspective that had nothing to do with positive law, and by canceling laws that were actually in accordance with the constitution, it hindered democratic governments, supported illegitimate internal powers, and stunted our country's development.

The AYM caused severe damage to our democracy by closing various political parties, which were established as a requirement of the right to political participation, based on ideological grounds. The AYM examined a closure case filed against the ruling party (AK Party), which had been the sole government in this country, based on flimsy evidence and false news on fake websites, and imposed sanctions.

After the individual application system was introduced, the AYM continued to commit countless legal violations by positioning itself as if it were above the Court of Cassation (Yargıtay) and the Council of State (Danıştay), again in violation of the Constitution. The AYM, which intervenes in court decisions made in almost every field by exceeding constitutional boundaries, has turned into a tool for creating legal chaos. All courts, the Court of Cassation, and the Council of State have reached the point of rebelling against the AYM's violation rulings, which are both unconstitutional and legally ignorant.

In some individual applications with political dimensions, the AYM did not hesitate to harm Turkey with its unlawful violation rulings.

The AYM, which in the past closed parties it did not ideologically approve of by restricting the right to political participation, does not close a political party today that is under the tutelage of terrorism and even acts in organic integrity with a terrorist organization. Moreover, it paved the way for the indirect financing of terrorism by ensuring that this party, which it is clear will not enter the election, receives treasury aid, including special aid related to the election.

The AYM, which does these things, does not examine applications made on the grounds that the reasonable time in a trial has been exceeded because the number of applications is high, even though it is its constitutional duty, at the expense of victimizing citizens.

But the same AYM does not refrain from making unconstitutional decisions by prioritizing applications that serve legal chaos, both in individual applications and in norm audits from time to time. In this context, the AYM does its best to narrow the exclusive scope of Presidential Decrees, which is a requirement of the presidential system, and to create a system crisis.

The AYM also makes accurate decisions from time to time, but unfortunately, these decisions seem to be the result of an effort to establish a balance under the influence of public opinion and internal court dynamics. Again, there are those among the AYM members who take a stance in favor of the constitution and the law against unconstitutional practices, decisions that are legal violations, overreach of authority, judicial activism, and the desire for a regime of constitutional judges (juristocracy), and their presence is very valuable. But ultimately, the AYM creates a record not with dissenting opinions that have historical value, but with the decisions made by the majority. It is this record of the AYM that is the subject of criticism and reaction.

"IT IS THE AYM THAT VIOLATES THE CONSTITUTION"

To save the AYM from this disability, it is necessary to make legal and, ultimately, constitutional regulations.

The 3rd Criminal Chamber of the Court of Cassation is doing what the Constitution requires. It is the AYM that violates the Constitution!

As in the past, the Constitutional Court (AYM) continues to make decisions regarding the immunity of a convicted MP that are clearly contrary to both Article 14 of the Constitution and the institution of retrial and the provisions of the Criminal Procedure Code (CMK) on this subject.

The non-compliance by the 3rd Criminal Chamber of the Court of Cassation with these arbitrary decisions of the AYM is a defense of the constitution and legal security. In other words, not complying with AYM decisions is not a violation of the constitution, but on the contrary, it is doing what the constitution requires.

Furthermore, the non-compliance decision of the 3rd Criminal Chamber of the Court of Cassation is an exposure of the unlawful and arbitrary decisions of the AYM, which does not recognize the constitution and the institution of retrial. If this arbitrariness of the AYM is not prevented, these problems will continue. With both non-compliance decisions it has issued, the 3rd Criminal Chamber of the Court of Cassation has put a stop to the AYM's arbitrariness and defended the positive legal order. This is an extremely valuable legal stance.

There is no “crisis.” There is a “conflict” produced by the AYM itself due to the decisions it made by exceeding its authority and contrary to the constitution and the retrial institution of the CMK.

It should be noted that since the provisions in the AYM's organization law that are contrary to the institution of retrial and restitution are impossible to apply alongside the regulations in the CMK, the Administrative Procedure Law (İYUK), and the Code of Civil Procedure (HMK), they have no legal value. Therefore, these provisions cannot be the basis for the AYM's unlawful decisions. The place to resolve the conflict caused by the AYM is the TBMM. The conflict will be resolved with a regulation to be made by the TBMM.

This regulation is to harmonize the procedures that courts will perform regarding the AYM's violation rulings in individual applications with the institutions of retrial (CMK and İYUK) and restitution (HMK) that exist in our positive law for all judicial authorities.

In general, it is an important goal to eliminate the structure of the AYM, which has become flawed with its reckless disregard for the constitution and daring legal violations since the day it was founded, and to restructure the AYM within a new constitution. To strengthen the national judiciary, it is extremely important that the AYM also operates as one of our national judicial authorities in every respect and is completely freed from Westernist and neo-liberal deviations."

News Source: 12punto