Introduction

Two relatively recent judgments of the Turkish Constitutional Court (TCC),^[1231] in which the Court invalidated two constitutional amendments on the grounds that they violated the unamendable clauses of the Turkish constitution, marked the revival of Turkey’s long-simmering constitutional amendment saga.

The text of the Turkish constitution explicitly limits the TCC’s authority over constitutional amendments. Article 148 of the constitution restricts the Court’s authority to review constitutional amendments only to procedural grounds, speci­fying in detail the criteria for procedural review. Consequently, commentators have regarded the TCC’s expansive interpretation of its authority as ultra vires, and they accused the Court of trying to act as the constituent power.^[1235]

Prima facie accounts of these cases indeed indicate a usurpation of authority by the TCC, when one takes into consideration the detailed provision of the consti­tution regarding the Court’s authority to review constitutional amendments. Still, it remains unclear whether the Court’s judgments can be justified by adopting a certain understanding of constitutional theory that would create a hierarchy among constitutional norms and appoint the constitutional court as the arbiter of disputes stemming from this stratification. In other words, it is worth seeking an answer to the question whether it is possible to identify a theoretical framework in which the reasoning of the Turkish Constitutional Court can be reasonably accommodated.

In this chapter, I attempt to demonstrate how Carl Schmitt’s constitutional theory, which argues for unamendability, eventually does not serve to justify the TCC’s oversight of the limits on constitutional amendment. First, I discuss how Schmitt’s theory explains the value of constitutional norms and a hierarchy within the constitution, along with his understanding of the positive concept of constitution, constituent power and the guardian of the constitution. Then, I sum­marise the TCC’s interpretation of the unamendability clauses and its authority to review the constitutionality of constitutional amendments in 15 cases under three different constitutional settings. Lastly, I look at the TCC’s reasoning in terms of Schmitt’s constitutional theory and discuss to what extent the TCC’s interpretation can be explained with it. I conclude that while the application of Schmitt’s con­stitutional theory conveniently creates a constitutional core and a hierarchy between the unamendable and amendable provisions, casting the TCC as the arbiter of constitutionality of constitutional amendments still cannot be justified when the political nature of Schmitt’s concept of constitution and Schmitt’s concept of the guardian of the constitution are taken into account. This reading is in conformity with the view that the unamendability clause can be provided in a constitution to create political accountability, rather than a legal one, especially when the judicial review of constitutional amendments is strictly limited to procedural review or prohibited altogether.

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