Do those who invited the Constitutional Court to sin bear no blame at all?

First, let us be clear about this. That the AYM, in its present state and composition, did not carry out the expected destruction over the referendum package is only a coincidence. The court could have done much worse, and we have no legal or constitutional guarantee that could prevent this. Perhaps the only guarantee is that the members of the AYM are, after all, human beings and, like every human being, however contrary it is claimed they are, not closed to political influences. But there is a reality we face today: when the AYM violates the Constitution openly or covertly, there is no measure devised against it. It is clear that this situation places membership of the court under a very heavy responsibility.

Today we can take comfort in the fact that the AYM, having entered into the substantive review of constitutional amendments that are strictly prohibited by the constitution, came out without doing much damage. But our AYM problem continues in all its gravity.

In the field of intervention it invented for itself in its latest decision regarding "non-amendability," it has in fact effectively invalidated a very clear rule of the Constitution regulating its own area of authority. Because, if desired, there is no constitutional amendment that cannot be brought within this scope by way of interpretation, and in this case there is in fact no constitutional amendment that could not be reviewed on its substance.

The first three articles of the Constitution, whose amendment cannot even be proposed, are the provisions on the Republican character of the Turkish Republic and its being a "democratic, secular, social state governed by the rule of law." In the clauses that were annulled, the ground of contradiction with the principle of the "rule of law" was relied upon, and the "contradiction" assessment is in any case the key point of the matter. That all the members of the HSYK or AYM be jurists, or that some high-level bureaucrats be among them, is an option in all contemporary legal systems, and when one of these options is resorted to, the principle of the rule of law is "not changed." Ultimately, by what methods the principle of the rule of law will be realized more efficiently and successfully is always a subject of debate belonging to the politician, and the annulment of a decision taken in this direction through a "contradiction" assessment is precisely for this reason prohibited by the Constitution's peremptory provision "to the degree of not even being proposable."

That is why Article 4 of the Constitution said very clearly that the "provisions in the first three articles" cannot be changed; otherwise it left entirely to politics the question of by which means these provisions will be better realized. That is why it was wanted that the AYM not step in on the claim or thought of contradiction with the Constitution, because every constitutional amendment, if desired, can always be found contrary to the existing constitution. As the name suggests, it is an intervention on the existing constitution. And every intervention inevitably disrupts the old integrity anyway.

It was quite clear that the AYM had exceeded these limits of authority much earlier, on the headscarf issue in its decision 367, and later in the annulment of Articles 10 and 42. It is possible to attribute its not having intervened in this latest decision in a way that would render the essence of the package meaningless to the pressure, reflected on them, of Turkey's line of development that even they can no longer ignore. Truly, whatever the reason, even if it did not go further this time, we understand that it wanted it to be known that it could go much further if it wished.

In fact, by entering into the substance of the change it was obliged to approve, the AYM showed that it stands behind the clear violations it committed in the past, and, by presenting a fait accompli, wanted the field of authority it drew to be adopted as a norm.

On the other hand, when all criticisms up to this stage are always directed at the AYM or its members, the real major shareholder in this mistake is forgotten. Everyone says what a great constitutional import the AYM has made, yet no one questions the stance of the 111 signatories who tempted the AYM into such a great violation and encouraged it to enter this forbidden area.

These signatories are supposedly politicians, and by sending the AYM on its way, what they are in fact denying is their own very existence. Is it not a greater fault to confront the AYM with such an option, over an authority belonging to the TBMM, merely because it does not produce the result they want? In the application made to it, the AYM decides not according to law but according to the number of votes, and does not hesitate to try the paths that are possible, if not legally, then mathematically.

So does one have to be a member of the AYM to know that the AYM will not enter into the substantive review of constitutional amendments? Is there the slightest ambiguity in the text of the law on this?

Of course not.

So, when there is no ambiguity whatsoever, is it proper for these deputies to put the AYM in front of such an option, as though officially inviting it to sin? The intentions of those who announced, when not a single text on the constitutional amendment had yet emerged, that they would take it to the AYM, are from the outset not to do politics but to deliberately suffocate politics.

In this case, one must simplify the question and ask: in all of these scandalous decisions of the AYM, are the CHP members, the real tempting and instigating element, not at all at fault?