Constitutional courts during political upheavals :|the case of the Turkish Constitutional Court

Abstract

Constitutional courts operate at the intersection of law and politics. Their task is to defend the normative superiority of the constitution by reviewing the constitutionality of laws. In doing so, they engage with other political institutions such as political parties, legislatures and executives. In times of political upheaval, the nature of the relationship between constitutional courts and other governmental organs is contested. This provides an ideal situation to observe the political dynamics of constitutional judicial review. This study aims to understand how constitutional courts fare during political upheavals by examining the Turkish Constitutional Court over an extended period of time. The Turkish Constitutional Court is a crucial case because Turkey has undergone episodic political upheavals where constitutional norms have been contested by different governmental institutions. The methodology of this study can be described as constitutional ethnography, which involves a close examination of the socio-political context that underlies legal institutions and relations. To this end, I examined politically salient court cases, interviewed judges, reviewed newspaper articles; I also used various secondary sources. My research has determined that the Turkish Constitutional Court has adopted one of three strategies during episodes of political crises: judicial activism, deference and avoidance. Furthermore, I contend that the court strategy depends on the degree of fragmentation of political power, the profiles of sitting justices, and extra-judicial alliances that the court can leverage against challengers.