THE CONSTITUTIONAL COURT OF TURKEY
For the first time in Turkish history, the establishment of a Constitutional Court was foreseen in the Constitution of 1961. Relating to the Turkish system of government, the introduction of a legislative review controlling legislative acts and setting up a special court to perform this review was the most radical feature of the 1961 Constitution. This system was maintained, with certain modifications, by the 1982 Constitution.
After the introduction of a multi-party system in 1945 and after the opposition party came to power in 1950, it became clear that the intractable problems of Turkey could not be solved within a short period, and therefore the necessity of legal control of the legislative organs arose. For that reason, first the intellectuals and then the opposition parties tended to believe that judicial review would be the most effective guarantor of fundamental rights written down in the Constitution, and for the first time in our political history a Constitutional Court, following the post-World War II constitutions (notably the German and Italian constitutions), was established by the Constitution of 1961. After the Turkish armed forces overthrew the Menderes Government on May 27, 1960, the framers of the 1961 Constitution decided that such a constitutional system would be beneficial for Turkey. The type of court, its organisation and composition, the method of selecting the judges and access to the court were debated in the first instance, however, but there was virtual unanimity on the need for judicial review.
The 1961 Constituion brought a new concept of sovereignty which differed from the principle of "national sovereignty" of the 1924 Constitution. This different concept of sovereignty was also adopted by the 1982 Constitution. According to Article 4 of the Constitution of 1961 and Article 6 of that of 1982, sovereignty is vested in the nation without reservation or condition. This is a word-for-word repetition of Article 3 of the 1924 Constitution. However, the following sentence of Article 4 and Article 6 of the Constitutions of 1961 and 1982, respectively, defining how sovereignty is to be exercised by the nation depicts quite a different approach : "The Turkish nation shall exercise its sovereignty through the authorized organs according to the principles laid down in the Constitution." In the context of Turkish constitutional history, the clear intention of this provision could be interpreted as aiming at putting an end to the principle of the supremacy of Parliament. Supremacy of Parliament was the main characteristics of the 1924 Constitution. With the adoption of this new principle the Turkish Grand National Assembly ceased to be the sole organ empowered to exercise sovereignty on behalf of the nation. In the Constitutions of 1961 and 1982 the judiciary was given considerable powers in the exercise of sovereignty. The Constitutional Court in particular is competent to control the constitutional validity of statutes passed by Parliament. The Constitutional Court was expected to counterbalance political institutions and especially Parliament in order to avoid an abuse of powers.
I - ORGANISATION
According to the regulations laid down in the 1982 Constitution, the Constitutional Court is composed of eleven regular and four substitute members. The President of the Republic appoints two regular and two substitute members from the Court of Cassation, two regular members and one substitute from the Council of State, and one member each from the Military Court of Cassation, the High Military Administrative Court and the Court of Accounts. In each of these cases, the President makes a selection from among three candidates nominated for each vacant seat by the plenary session of the court concerned. The President also appoints one member from a list of three candidates nominated by the Council of Higher Education from among members of the teaching staff of institutions of higher education who are not members of the Council, and three members and one substitute from among senior civil servants and lawyers (Article 146 of the Constitution). Although not mentioned in the Constitution, there must be, according to the organic law concerning the functions of the Constitutional Court, enough reporters for assisting in the works done by the Court (Article 16 of the Law of Organisation and Trial Procedures of the Constitutional Court). A department being headed by a Secretary-General is attached to the Presidency of the Court (Article 17 of the above-mentioned law).
The Constitutional Court acts on a basis of complete independence from the legislative and executive branches of the state. All judges of the Court hold office until they reach retirement at the age of 65. Apart from reasons of age, their office may be terminated only upon conviction of an offense requiring dismissal from the judicial profession, and for reasons of health; but in such a case the Constitutional Court itself decides with the absolute majority of the total number of members on the termination of membership (Article 147 of the Constitution). In addition to these provisions, the members of the Constitutional Court cannot take up any other official or private function besides their main functions (Article 146/Constitution).
The Constitutional court elects a president and a deputy-president from among its regular members. However, no member may present his official candidacy for the presidency of the Court. Members may be re-elected at the end of their term of office.
II - FUNCTIONS AND COMPETENCES
The main function of the Constitutional Court is the judicial review of legislative acts. According to Article 148 of the 1982 Constitution, the Constitutional Court shall examine the constitutionality "in respect of both form and substance of laws, law-amending ordinances, and the Standing Orders of the Grand National Assembly of Turkey". The Constitutional Court also has the competence to review whether the procedural rules concerning constitutional amendments are observed. That means that the Constitutional Court has no competence to review constitutional amendments on substantive grounds. Decisions to invalidate a constitutional amendment as to the form have to be reached by a two-thirds majority of the Court (Articles 148,149/Constitution).
The review of laws on procedural grounds is restricted to a consideration of whether the requisite majority was obtained in the last ballot, and the review of constitutional amendments is restricted to consideration of whether the reqisite majorities were obtained for the proposal in the ballot, and whether the prohibition on debates under urgent procedure was complied with. The review of laws as to form can only be requested by the President of State or by one-fifth of the deputies of the Grand National Assembly.
The review of law-amending ordinances issued during a state of emergency, martial law or in time of war is severely restricted. In these situations no action can be brought before the Constitutional Court alleging the unconstitutionality on substantive and procedural grounds (Article 148/Constitution). However, such law-amending ordinances can be examined by the Constitutional Court in respect to their conformity to constitutional conditions and qualities; if they are found to be inconsistent with the conditions laid down in the Constitution they may be reviewed.
Although international agreements duly put into effect carry the force of law, no appeal can be made with regard to these agreements on grounds of their being unconstitutional (Article 90/Constitution).
In addition to its main function of judicial review of legislative acts, the Constitutional Court also performs other functions which the Constitution prescribes. These functions can be enumerated in the following way :
1. The Constitutional Court in its capacity as the Supreme Court tries the President of the Republic, members of the Council of Ministers, the President and members of the Constitutional Court, of the Court of Cassation, of the Military Court of Cassation, of the High Military Administrative Court, the Chief Public Prosecutors and Deputy Public Prosecutors of the Republic, members of the Supreme Council of Judges and Public Prosecutors, and members of the Court of Accounts for offenses relating to their functions (Article 148/Constitution). The Chief Public Prosecutor of the Republic or hiis/her deputy serves as public prosecutor in the Supreme Court. Judgements rendered by the Supreme Court are final.
2. The dissolution of political parties is decided by the Constitutional Court after the filing of a suit by the office of the Chief Public Prosecutor of the Republic (Article 69/Constitution).
3. The auditing of political parties is carried out by the Constitutional Court (Article 69/Constitution).
4. A decision of Parliament to waive the parliamentary immunity of a member or disqualify him/her from membership can be appealed before the Constitutional Court within one week on grounds of being contrary to the Constitution or to the Standing Orders of the Assembly. The Constitutional Court must decide on the appeal within fifteen days (Article 85/Constitution).
The Constitutional Court examines cases on the basis of files, except when it acts in its quality as Supreme Court. If the Court should deem it necessary, however, it may call on those concerned and those having knowledge relevant to the case to present oral explanations.
III - ACCESS TO THE CONSTITUTIONAL COURT
The 1982 Constitution foresees access to the Constitutional Court in two ways :
1. Abstract control of norms (action for annulment, principal proceedings)
2. Concrete control of norms (constitutional objection, incidental proceedings)
A. Abstract control of norms :
The action for annulment is abstracted from any particular case; for that reason this possibility was named abstract control of norms in the Turkish law system. The constitutional validity of an enacted statute, of law-amending ordinances, or of Standing Orders of the Assembly may be challenged directly before the Constitutional Court by way of an annulment action. But standing as plaintiff in such an annulment action is restricted. Only those persons and groups enumerated in the Constitution have the right of application.
In the 1961 Constitution those being competent to bring an action for annulment directly before the Constitutional Court were divided into two categories : (i) the High Council of Judges, the Court of Cassation, the Council of State, the Military Court of Cassation and the universities were competent to initiate annulment suits only in matters pertaining to their existence and functions (Article 146 of the 1961 Constitution); (ii) the President of the Republic, political parties represented in the legislative chambers of the Grand National Assembly of Turkey, political parties which have obtained at least 10 % of the total valid votes cast in the last parliamentary elections, and at least one-sixth of the total number of members of each legislative chamber were competent to initiate annulment suits without any limitation as to the subject matter of the statute.
In the 1982 Constitution, however, the number of persons or groups having the right to bring an annulment action is restricted, and the paragraph relating to those being competent to initiate annulment suits only "in matters pertaining to their existence and functions" was abolished as well. Now only the President of the Republic, parliamentary groups of the party in power and of the main opposition party, and a minimum of one-fifth of the total number of members of Parliament are competent to apply for annulment action to the Constitutional Court. If a coalition government is formed, the right of the parties in power to apply for annulment can be exercised only by that party having the greatest number of members.
Concerning the time limit, actions for annulment must be initiated within 60 days after the publication of the contested statute, the law-amending ordinance or the Standing Orders of the Assembly in the Official Gazette (Article 151/Constitution). In the 1961 Constitution the time limit was 90 days.
B. Concrete control of norms :
In contrast to annulment actions, incidental proceedings can be initiated by any individual and are not subject to any time limitation.
Article 152 of the 1982 Constitution stipulates that if a court trying a case should be of the opinion that the law or the law-amending ordinance to be applied is unconstitutional, or if the court should be convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties to the case, it has to adjourn the proceedings and refer the issue to the Constitutional Court. If the court should not be convinced of the seriousness of the claim of unconstitutionality, then this claim together with the main judgement will be decided by the competent authority of appeal.
The Constitutional Court must decide on the matter within five months. If no decision is reached by the Constitutional Court within this period, the lower court has to render its judgement on the basis of existing law regulations. In the Constitution of 1961 however, it was determined that if no decision should have been reached by the Constitutional Court within a period of six months, the court which had referred the matter must itself settle the question of constitutional validity and then decide on the case under consideration. The lower courts' decisions about the unconstitutionality of a statute were restricted in scope with the case and could only bind the parties involved. Although the lower courts were entrusted with the authority of deciding upon the unconstitutionality of laws, they seemed to be very reluctant in exercising this power. In the 1982 Constitution the lower courts have no such power.
Another important difference in regard to the 1961 Constitution lies in the fact that in the event the Constitutional Court should dismiss the case on substantive grounds, no allegation of unconstitutionality can be made with regard to the same legal provision until 10 years have elapsed after the publication of the decision of the Constitutional Court in the Official Gazette. The framers of the Constitution defended this provision as contributing to legal stability.
IV - DECISIONS OF THE CONSTITUTIONAL COURT
Laws, law-amending ordinances and the Standing Orders of the Assembly or certain provisions of them cease to have effect from the date of publication of the annulment decision in the Official Gazette. That means that when a law is invalidated by a decision of the Constitutional Court, it becomes ineffective from the date of publication of the Court's decision. If the Court deems it necessary it may also decide on some later date as being the effective date of its decision. That date, however, may not be later than one year after the date of publication of the decision in the Official Gazette.
According to Article 153 of the Constitution the annulment decision has no retroactive effect. This system is completely different from the American system where the judge in the exercise of his competence to review does not annul a law, but merely delares the pre-existing nullity of unconstitutional law.
If the date on which an annulment decision is to come into effect should be postponed, the Grand National Assembly of Turkey must debate and decide with priority on the draft bill or a law proposal designed to fill the legal void arising from the invalidation.
Decisions of the Constitutional Court are final. Annulment decisions will not be published before a statement of reasons for the decision has been written (Article 153/Constitution). That means that annulment decisions will be effective only after a statement of reasons for the decision has been laid down in written form.
According to Article 11 of the Constitution, the provisions laid down in the Constitution are fundamental legal rules binding the legislative, executive and judicial organs, administrative authorities and other institutions and individuals. Laws may not be in conflict with the Constitution. Only the Constitutional Court has the competence to interpret the Constitution; for this reason its decisions have a binding effect on everybody (Article 153/Constitution). That also means that legislative and executive organs have no power to modify or postpone the decisions given by the Constitutional Court.
According to Article 153 of the Constitution, the Constitutional Court has no competence to act as law-maker and pass judgement leading to new implementation in the course of annulment of laws. That provision, however, is quite difficult to interprete.
V - CONCLUSIONS
After the sad experiences of the first half of this century the need arose first in European, then in other countries of the world to put a check on legislature itself. It had become evident that even legislation could be a source of great abuse being sanctioned by statute. For this reason first Europeans started to walk the path taken by the Americans, and soon others followed. Now almost all contemporary democratic countries are expressing their fundamental rights in constitutions that are difficult to amend; the judiciary or at least part of it has become an instrument for ensuring conformity to the constitution.
The same is also valid for Turkey where no "constitutional jury" other than the Constitutional Court, being part of the judiciary, will be sufficiently neutral and detached to exercise effectively the functions of a guardian of the constitution. One of the great constitutional scholars of this century, Carl J. Friedrich, said more than 40 years ago that "... We must conclude, therefore, that in the absence of a constitution deeply rooted in tradition, such as exists in England, Switzerland, or Sweden, a judiciary capable of exercising judicial review will be required if a constitution in the political sense of a set of techniques for restraining the actions of government is to be established".
Here it has to be emphasized, too, that the concept of human rights has gained contemporary and universal dimensions in the world and became an important subject within the frame of the Constitutions of 1961 and 1982. In the preamble of the 1982 Constitution, e.g., stress has been laid on the fact that the Turkish nation "as a full and honourable member of the world family of nations" must safeguard the everlasting existence, prosperity and material as well as spiritual well-being of the Turkish Republic. According to Article 2 of the 1982 Constitution, one of the main characteristics of the Republic of Turkey is to respect human rights. In the same article the fundamental qualities of the Republic of Turkey are enumerated, e.g. "the Republic of Turkey is a democratic, secular and social state governed by the rule of law". In this regard, the most important event is the establishment of the Constitutional Court on april 25, 1962, providing a judicial and juridical security mechanism for fundamental rights and other very important features of the Republic. The Constitutional Court as a national guarantor, applying universal principles of law and the concept of human rights in its decisions, is gradually gaining strenght and going to be accepted.