Decision annulling certain provisions of the Rules of Procedure of the Grand National Assembly of Turkey

(E.2017/162, K.2018/100, 17 October 2018)

1.Phrase “…on condition of being fulfilled by a member of parliament (MP) from another political party group…” included in the fourth sentence of Article 37 § 2 of the Rules of Procedure amended by Article 3 of the Resolution

Grounds for the Request for Annulment

In the petition, it is maintained that the motions −whereby it is offered that legislative proposals submitted by independent MPs or MPs who have not formed a group yet, be directly put on the agenda of the General Assembly of the Parliament−   cannot be put into process, which is alleged to be in breach of Articles 2, 10, 87 and 88 of the Constitution.

Contested Provision

In the provision, it is set forth that the motions for putting the legislative proposals on the agenda of the General Assembly of the Parliament shall be put into process provided that proposals be submitted by one MP from a separate political party group every week.

The Court’s Assessment

One of the fundamental tenets of the state of law, which is set forth in Article 2 of the Constitution, is certainty.

Provisions of the Rules of Procedure must be certain but must not prevent MPs from participating in legislative and auditing activities as well as duly performing such activities.

In the said article of the Constitution, the principle of a democratic state is also enshrined as one of the requirements of the Republic. This principle entails fulfilment of conditions necessary for ensuring MPs to duly participate in legislative and auditing activities.

Regardless of being a member of a political party group, all MPs are entitled to submit a legislative proposal pursuant to Article 88 of the Constitution. The MP submitting the proposal may be independent or a member of a political party having no group. As a matter of fact, taking into consideration this probability, the Parliament sets forth in Article 37 that all MPs submitting a proposal may, without any exception, file a motion for ensuring their proposals that were not deliberated within due time to be directly put on the General Assembly’s agenda. 

Prescribing that every week, a proposal submitted by an MP from a separate political party group shall be put into process, the impugned provision has caused uncertainty in issues as to through which procedure and at which stage the motions, submitted by independent MPs or those member of a political party which has not formed a group yet, will be put into process, and even whether they will be put into process. 

In this respect, it has been concluded that although political party groups have no right to submit a legislative proposal and thereby file a motion for directly putting the proposals −that are not deliberated within the prescribed period− on the agenda of the General Assembly, the criterion of political party group is sought for the deliberation of such motions, which makes it difficult, to a significant degree, for MPs who are a member of a political party not having a group yet or independent MPs to take part in legislative activities. Therefore, the impugned provision was found incompatible with the principle of democratic state.

Besides, the condition of being a member of a political party group, which is sought for the deliberation of the motions given for putting an item on the agenda of the General Assembly, is also in breach of the equality principle. This is because there is no difference among MPs in terms of the authority to submit a legislative proposal, regardless of whether they are a member of political party group. Treating differently MPs of the same legal status, who are a member of a political party having no group yet or who are independent, during the proceedings whereby their motions for directly putting their proposals on the General Assembly’s agenda are put into operation is not also compatible with the equality principle.

For the reasons explained above, the Court found the provision in breach of Articles 2, 10 and 88 of the Constitution and annulled it. 

2.Phrases “…subject to deliberation” and “… of discussion of provisions of law and ….. all of them” included in Article 57 § 2 of the Rules of

Procedure, which was amended by Article 6 of the Resolution;

Grounds for the Request for Annulment

In the petition, it is maintained that the disputed provision is in breach of Articles 87 and 96 of the Constitution on the grounds that the authority to ask for a roll call during the voting, by show of hands, of provisions of law and resolutions not subject to deliberation has been removed, which thereby renders impossible determination of quorum.  

Contested Provision

In the impugned provision, it is set forth that during the voting of motions subject to deliberation and during the discussion of provisions of law and voting all of them, at least twenty MPs might ask for a roll call by standing up or tabling a motion during deliberations. 

The Court’s Assessment

Article 96 of the Constitution sets forth that the Parliament shall convene with at least one-third of the total number of members for all its affairs.

Prior to the impugned provisions, it was possible to ask for a roll call during all voting processes by show of hands without any exception. However, the provisions limit the circumstances when a roll call may be asked to motions subject to deliberation as well as discussion of provisions of laws and voting all of them by show of hands. Pursuant to these provisions, it is not possible to ask for a roll call during the voting process of motions not subject to deliberation as well as of provisions of law.

The only means for MPs to raise their objections to, and hesitations about, the question whether the quorum for meeting, the decisive factor for the constitution of the parliamentary will and properness of resolutions taken by the parliamentary, is to ask for a roll call. The limitation imposed on this means was not found compatible with the constitutional provision entailing the establishment of quorum for meeting.

Therefore, the Court found the contested provisions in breach of Article 96 of the Constitution and annulled them.

3.Paragraph, added by Article 16 of the Resolution, following Article 163 § 4 of the Rules of Procedure

Grounds for the Request for Annulment

In the petition, it is maintained that making MPs subject to risk of deduction of their appropriations and travel allowances prevents them from duly taking part in the legislative activity and pursuing their electors’ rights and demands; and that prescribing a fine as a disciplinary sanction is also contrary to legislative immunity. It is therefore claimed that the provision is in breach of Articles 2, 67, 83, 86 and 87 of the Constitution.

Contested Provision

In the impugned provision, it is set forth one-third of the one-month appropriation and travel expense of an MP receiving a reprimand and two-thirds of the one-month appropriation and travel expense of an MP temporarily suspended from the Parliament shall be deducted.

The Court’s Assessment

The impugned provision was also examined also in terms of Articles 13 and 26 of the Constitution.

Pursuant to Article 95 of the Constitution, the Parliament is entitled to regulate its affairs; however, such an authority is to be enjoyed by introducing precise, fair and equitable regulations as required by Article 2 of the Constitution.

The aim pursued by the legislative immunity enshrined in the Constitution is to prevent MPs from being held liable for expressions and thoughts as well as for their votes that they have disseminated or they have casted while performing their tasks related to the parliamentary affairs. In this respect, legislative immunity is a parliamentary privilege which enables MPs to perform their legislative and auditing tasks freely and without any fear.

This immunity does not eliminate the requirements of the legislative order and exempt MPs from obeying the provisions of the Rules of Procedure. In this respect, holding MPs liable for disciplinary actions and making them subject to disciplinary penalties, with a view to ensuring proper conduct of the parliamentary affairs, are not contrary to the legislative immunity.

It must be separately determined whether the disciplinary action and penalty are in breach of the legislative immunity and freedom of expression underlying it.

Pursuant to the impugned provision, one of the reasons requiring deduction of two-thirds of the MP’s one-month appropriation is expressions that are contrary to the administrative structure of the Republic of Turkey set forth in the Constitution under the principle of the indivisible integrity with its territory and nation. This reason is defined in a vague, abstract and unpredictable manner which may be also irrelevant to the intent to ensure proper conduct of the parliamentary affairs. 

Due to the vague nature of the above-mentioned definition, the majority of the Parliament shall decide whether the expressions used during the parliamentary deliberations fall into this scope, which would cause particularly the opponent MPs to face the risk of being punished by the majority as well as prevent them from duly participating in legislative and auditing activities. Therefore, the provision, which may lead to silencing of opponent MPs facing the risk of being punished, is not compatible with the principle of a democratic state.

In addition, Articles 26 and 83 of the Constitution also safeguard that MPs are entitled to use expressions and make assessments which are contrary to or different from the ones concerning the administrative structure embraced by the majority. In a democratic state, everyone particularly MPs must have the freedom to defend any kind of disseminated thoughts and opinions on condition of being peaceful and to use any kind of expressions no matter how improper they are. Otherwise, it is impossible to mention of a pluralist democracy.

Freedom of expression is important especially for elected persons who represent electors, express their demands, worries and thoughts at the political arena and defend their interests. 

It is of course obvious that freedom of expression may be restricted if expressions include any content involving racism, hate speech, war propaganda, incites to or encourages violence, calls for riot or justifies terrorist acts which cannot be under protection in a democratic state.

It appears that pursuant to the provision, an MP’s such act, which is indefinite and unpredictable in nature, is considered a reason leading to a deduction in his appropriation and travel allowance. It has been accordingly concluded that the provision makes MPs subject to the risk of being punished at any time due to their expressions, and that it thereby renders useless and meaningless, in general terms, the freedom of expression and, in specific terms, the legislative immunity for MPs. It cannot be therefore said that the said provision is a restriction for meeting a pressing social need in a democratic society. 

Besides, it has been concluded that the provision impedes, to a certain extent, the MP’s freedom to perform legislative and auditing tasks freely and without any fear for breaching the freedom of expression and rendering dysfunctional the legislative immunity.

For the reasons explained above, the Court found the contested provision in breach of Articles 2, 13, 26, 83 and 87 of the Constitution and annulled it insofar as it concerned the phrase “…to perform acts that are contrary to administrative structure of the Republic of Turkey set forth in the Constitution under the principle of the indivisible integrity of the Republic of Turkey with its territory and nation…”, which is set out in Article 161 of the Rules of Procedure. However, it was not found unconstitutional insofar as it concerned other acts that will result in disciplinary sanctions of reprimand and temporary suspension from the Parliament.

4.Other Provisions

Finding the following phrases not unconstitutional, the Court dismissed the request for their annulment:

Second sentence of Article 3 § 5 of the Rules of Procedure, which was amended along with its heading by Article 1 of the Resolution;

The phrase “…five…” in the fourth sentence of Article 19 § 5 of the Rules of Procedure, which was amended by Article 2 of the Resolution, as well as the phrase “…three each…” in the fifth sentence of the same;

Fifth sentence of Article 37 § 2 of the Rules of Procedure, which was amended by Article 3 of the Resolution;

The phrase “…written…” in the first sentence of Article 58 of the Rules of Procedure, which was amended along with its heading by Article 7 of the Resolution;

The phrase “…three each …” in the first sentence of Article 63 § 2 of the Rules of Procedure, which was amended by Article 8 of the Resolution;

Of the paragraph which was added by Article 16 of the Resolution and would follow Article 163 § 4 of the Rules of Procedure:

1.the phrase “…two-thirds of the one-month appropriation and travel expense of an MP temporarily suspended from the Parliament…” under the remaining part of Article 161 of the Rules of Procedure,

2.The remaining part.

The Court also found no ground to adjudicate on the request for annulment of the following phrases:

The phrase “…amendment…” in the heading of Article 58 of the Rules of Procedure, which was amended along with its heading by Article 7 of the Resolution;

The phrase “…written…” in the last paragraph of Article 73 of the Rules of Procedure, which was amended by Article 9 of the Resolution, on the ground that the provision including the said phrase was abolished by Article 25 of the Resolution Amending the Rules of Procedures of the Grand National Assembly of Turkey dated 9 October 2018 and numbered 1200;

The phrase “…and deduction…” in the heading −which was amended by Article 16 of the Resolution− of Article 163 of the Rules of Procedure.