World Bulletin / News Desk
The Constitutional Court, which will now have the power to overturn appeals decisions by the Supreme Court of Appeals and the Council of State with changes made to the Constitution in a referendum held in September of last year, is bound to have “super appeals” powers, which will lead to chaos within the judiciary.
Speaking to the press in front of the Supreme Court of Appeals, Hasan Gerçeker, the court's president, said "when the Constitutional Court is given the authority to hear cases from individual applicants -- as opposed to its current structure where only political parties represented in Parliament, the president, chief prosecutors of high courts, the parliament speaker and the chief of General Staff and state officials of similar rank can apply to the court -- the court will turn into a new appeals court with super powers."
He said they were currently reviewing a bill on the structure of the Constitutional Court, but noted that the government had not yet formally asked for an opinion on the matter.
Gerçeker said they had shared with the public and the relevant public offices a report on the possible consequences of allowing applications from individuals to the Constitutional Court earlier.
He said he wished the outcome would be positive, but noted that he was not sure of how strongly such an arrangement would conform to the principle of the unity of the judiciary.
Gerçeker said even the European Court of Human Rights (ECtHR) did not have such high powers as an appeals court as he claimed the Constitutional Court will have once the bill harmonizing its structure with the constitutional amendments is passed.
“In the case of ECtHR cases, if the court rules that there has been a violation of fundamental rights of freedoms as pert the relevant conventions, then it either rules for compensation to be paid to the victim or tells the litigant state to change its domestic legislation accordingly. Apart from that, no court has the power to overturn a ruling made by a high court.”
"Right of individual application"
Gerçeker also said that the bill, if passed, ran the risk of creating a disparity in terms of the financial state between the high courts. He did not elaborate, however, saying they had to finish reviewing the bill before making a detailed and healthy analysis.
He claimed that a possible negative consequence would be chaos within the judiciary.
“If tomorrow appellate courts are set up, then you will have local courts, regional courts of justice, the Supreme Court of Appeals, the Constitutional Court and the ECtHR. So you will have a judicial system with multiple levels. Let alone the trials going on for long periods of time, there will be no end to them. You will have no way of knowing when a trial might be completed.”
In response to a question on whether he thought that the right to apply to the Constitutional Court as an individual would lax the ban on the headscarf at universities and public offices -- a claim put forth by Prime Minister Recep Tayyip Erdoğan on Tuesday -- Gerçeker declined to comment, saying he did not want to talk on “these matters.”
He said the Constitutional Court would not only have the authority to overturn judicial decisions, but also rulings on administrative processes.
“In other words, the Constitutional Court will have to issue rulings that will replace those by the Supreme Court of Appeals and the Council of State. Currently, there are about seven or eight million litigation cases in Turkey, and about that many administrative cases. I don't know how such a workload can be dealt with. I think those who are trying to pass this bill must have figured that out.”
He said he would be happy to share his views with the government if his opinion is requested.
The first response from the government to Gerçeker's remarks came from State Minister and Deputy Prime Minister Cemil Çiçek, who noted that the Supreme Court of Appeals had been opposed to the idea of giving the right to individuals to apply to the Constitutional Court. Çiçek said he did not agree with Gerçeker's “Super Appeals Court” opinion.
“We respect this view, but we do not agree with it. The Supreme Court of Appeals and the Council of State have been opposed to the right of individual application from the start. They do not think it is right. But we do not think that way,” he said.
The head of the Council of State also spoke to the press. In remarks made to the Anatolia news agency, Council of State President Mustafa Birden said if the bill that seeks to restructure the Constitutional Court passes, it will “maim in many ways” the country's legal system. “This bill will not solve any questions. To the contrary, it will create more problems,” he said.
Birden said overruling ultimate judicial rulings from high courts would run contrary to the established judicial principles everywhere. He criticized the government for drawing on the practices seen in European countries, saying: “But do people in Europe and Turkey show the same respect to the law? In this country, the Supreme Court of Appeals and the Council of State solved cases regarding human rights violations even before the Constitutional Court was created. You can't draft a bill behind closed doors. Behaving as if the two high courts do not exist is unfair to them. This bill, drafted by ignoring the Supreme Court of Appeals and the Council of State, is really upsetting us,” he said.
He said no one had consulted them concerning the bill, adding that they were able to obtain a text of the draft only through personal efforts.
In related developments, Republican People's Party's (CHP) Mersin deputy İsa Gök announced that his party was planning to file and appeal with the Constitutional Court regarding the bill that seeks to restructure its functions. “This bill will be reviewed. We will engage in the necessary battle in Parliament. We will work to get it canceled, if necessary,” Gök said.
Last Mod: 13 Ocak 2011, 17:17