Press Release No: Plenary Assembly 28/20
Press Release concerning the Decision Dismissing the Request for Annulment of the Allegedly Unconstitutional Provisions Allowing for the Establishment of Several Bar Associations in the Same Province
The Constitutional Court, at its session dated 1 October 2020, dismissed the request for annulment of the contested provisions laid down in Law no. 7249 on Making Amendments to the Attorneys Act and Certain Laws, as not being unconstitutional (file no. E.2020/60).
The contested provisions allow for the establishment of a bar association, with the presence of a minimum of two thousand lawyers, in the provinces with more than five thousand lawyers exercising the legal profession and accordingly set forth the relevant principles and procedures.
Ground for the Request for Annulment
It is maintained that Article 135 of the Constitution cannot be interpreted in a way that would allow for the establishment of several public legal entities in a region so as to exercise the same profession; that despite the constitutional provision envisaging that the professional organisations in the form of public institutions may be established only by law, the contested provisions leave the establishment of a bar association completely to the initiative of lawyers, which is in breach of the principle that the professional organisations are to be established by law; and that the establishment of more than one bar association in the same province would lead to an impression that the lawyers from the bar associations having a close relationship with the ruling party would be in a more advantageous position vis-à-vis the others before the judiciary, which would impair the impartiality of the judiciary. It is accordingly maintained that the contested provisions are unconstitutional.
The Court’s Assessment
Bar associations are professional organisations that are in the form of a public institution within the meaning of Article 135 of the Constitution. The professional organisations are also subject to the State’s control and scrutiny as all other institutions and establishments under the administrative organisation.
As noted in a previous judgment (E. 2012/95), there is no constitutional restriction to the effect that there cannot be several professional organisations in the form of a public institution in the same region. Therefore, there is no constitutional obstacle to the establishment of several bar associations in the same province.
In the contested provisions, the minimum number of lawyers sought for the establishment of several bar associations in the same province is specified, and the basic issues with respect thereto are set forth, along with a detailed explanation as to the principles and procedures of the establishment of a bar association. Therefore, several bar associations may be established in the same province only when the conditions specified in the relevant law are satisfied, and it cannot be said under such circumstances that the initiative to establish a bar association is given to the lawyers, as alleged. Accordingly, the relevant provisions cannot be considered to fall foul of the constitutional province envisaging that the professional organisations may be established only by law.
Pursuant to the principle of a State governed by the rule of law, laws must be in pursuance of the public interest. The Court has confined its examination to the question whether the relevant law was enacted in pursuance of the public interest.
No provision of law may be introduced for merely private interests or for the sake of certain persons, in the absence of any public interest. Such a situation, if manifestly and definitely present, renders the relevant provision of law incompatible with Article 2 of the Constitution. Save for this exceptional situation, it is within the law-maker’s discretion that a given provision of law complies with the necessary conditions and through which means and methods the public interest pursued may be achieved. It does not therefore fall within the scope of the constitutional jurisdiction to make an assessment as to public interest in this respect.
It was maintained during the discussions, before the commission, of the bill of law containing the contested provisions that the contested provisions were intended to establish a new bar association for the purposes of solving the problems resulting from the excessive number of lawyers registered with the bar associations operating in metropolitans, eliminating the delays occurred in the conduct of the acts and processes related to the law governing the scope of the professional activities of lawyers, as well as of conducting the bar association services in a more efficient manner. It cannot be therefore concluded that the contested provisions pursue any aim other than that of the public interest.
As regards the allegations that the establishment and operation of several bar associations in the same province would cause the bar associations to disintegrate on ideological, ethical and political basis, which may give rise to different conflicts; and that it would also render dysfunctional the bar associations’ duty to protect and maintain the rule of law and human rights, the Court has observed that these allegations are a matter of opportuneness and therefore fall outside the scope of constitutionality review.
The disciplinary acts and penalties to be imposed on lawyers are regulated in Articles 134-162 of Law no. 1136, which are common provisions required to be applied, by all bar associations, during the disciplinary processes to be conducted with respect to lawyers. Article 157 of the same Law also provides the public prosecutors and those concerned with the opportunity to challenge a decision that has been issued by the disciplinary board, before the Disciplinary Board of the Turkish Bar Association (“the Board”) within 30 days following the notification date of that decision. In this sense, the final competent authority to decide on the disciplinary penalties imposed on lawyers is the Board. Therefore, the establishment of several bar associations in the same province cannot be considered to lead to different practices in practice.
Besides, the contested provisions allow merely for the establishment of several bar associations and does not embody any regulation to the effect that the bar associations may engage in political activities. All the bar associations are entitled to the rights and subject to the obligations laid down in the Constitution and Law no. 1136. Accordingly, there are legal measures taken so as to prevent the bar associations from engaging in any activity that serve any aim other than those specified in the Constitution and Law. The establishment and operation of one or several bar associations does not change this situation. The alleged politicisation of the legal profession of lawyers by virtue of the contested provisions is outside the scope of the constitutionality review for being a matter of practice.
Consequently, the Court has found the contested provisions constitutional and accordingly dismissed the request for annulment.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.