Paylaş | 25 April 2019

Constitutional Court of the Republic of Turkey Celebrates its 57th Anniversary

President of the Turkish Constitutional Court Mr. Arslan, stating that the independence of the judiciary is a sine qua non for the democratic state of law, noted “Our recent experiences have shown that the judiciary is to be independent not only of the legislature and the executive but also of any kind of parallel structure and organizations.”  

The Constitutional Court held an official ceremony in the Grand Hall on the occasion of its 57th anniversary.

Among those who attended the ceremony were President of the Republic of Turkey Mr. Recep Tayyip Erdoğan, Vice President Mr. Fuat Oktay, Turkish Parliamentary Speaker Mr. Mustafa Şentop, Chairperson of the Republican People’s Party (CHP) Mr. Kemal Kılıçdaroğlu, President of the Council of State Mrs. Zerrin Güngör, Minister of Justice Mr. Abdulhamit Gül, Minister of Industry and Technology Mr. Mustafa Varank, Minister of Health Mr. Fahrettin Koca,  Minister of National Defence Mr. Hulusi Akar, Deputy President of the Court of Cassation Mr. Mehmet Kürtül, Chairperson of the Felicity Party (Saadet Partisi) Mr. Temel Karamollaoğlu, Chairperson of the Grand Unity Party (BBP) Mr. Mustafa Destici and Presidents as well as Members of the high judicial bodies.

President of the Constitutional Court Mr. Zühtü Arslan and Deputy-Presidents Mr. Engin Yıldırım and Mr. Hasan Tahsin Gökcan welcomed the guests in the foyer.

3 important phases of the Court’s jurisdiction 

President Mr. Arslan, in his opening speech, pointed out that three important phases may be mentioned in terms of the Constitutional Court’s jurisdiction: 

“During the first phase that was until 2012, the Constitutional Court acted as a high judicial body which mainly reviewed the constitutionality of laws. The second phase of the Turkish constitutional jurisdiction started in 2012. With the constitutional amendment of 2010, the individual application mechanism has been introduced into our legal system, which has also changed the Constitutional Court’s structure, as well as the number of its justices. Thus, the jurisdiction of the Court has been extended by including the individual application. As a matter of fact, the individual application mechanism has not only extended the Court’s jurisdiction, but also changed its judicial paradigm. With the introduction of such a mechanism, the Court has turned into a high judicial body based on the individual and fundamental rights and freedoms. Such a change in the paradigm has also influenced the Court’s approach in other areas of its jurisdiction.”

Mr. Arslan, pointing out that the Constitutional Court has reflected its rights-based approach adopted in the individual application mechanism also in the constitutionality review, reiterated that one of the best examples of this interaction is the decision where the Constitutional Court annulled the relevant paragraph of Article 286 of the Code of Criminal Procedure no. 5271, which precludes recourse to appeal remedy against the initial conviction decisions rendered by the courts of appeal, for being in breach of Article 36 of the Constitution safeguarding the right to legal remedies.

The safeguard afforded by the European Convention on Human Rights has been overreached 

President Mr. Arslan, expressing that the Constitutional Court with this judgment has gone beyond the minimum safeguard provided by the European Convention on Human Rights, states “It is also satisfactory that shortly after the publication of the annulment decision in the Official Gazette, the legislator has made the necessary legislative amendments in order to eliminate the unconstitutionality.”

Mr. Arslan stated that the third phase of the Turkish constitutional jurisdiction has started with the constitutional amendment of 2017. Pointing out that with the constitutional amendment of 9 July 2018, the Constitutional Court has been granted the authority to review the constitutionality of the Presidential decrees, President Mr. Arslan expressed “Thus, the jurisdiction of the Constitutional Court has been extended to include, in addition to the legislative acts, the judicial review of the Presidential decrees which are the first-hand regulatory acts of the executive authority.”

 “Presidential decrees, the most important institution of the new system”

President Mr. Arslan, stressing that the most important aspect of the constitutional amendment of 2017 was the Presidential decrees, continued as follows:

“Therefore, the constitutionality review of the Presidential decrees is of vital importance for the supervision and balance mechanism on which the new system must be predicated upon. In fact, since the introduction of the constitutional amendments, it has been a period of intensive work during which relevant preparations have been made by the Court in collaboration with the academicians who elaborate and write on the subject. In this context, we have determined the theme of this year’s symposium as “Constitutional review and legal regime of Presidential decrees.”

“Our decisions will provide an insight into the nature of the relations among legislative, executive and judicial bodies in the new governmental system”   

Indicating that the task incumbent on the Constitutional Court is to carry out the constitutionality review of the contested Presidential decrees brought before it by means of implementing constitutional provisions, President Mr. Arslan stated “Such decisions rendered by the Court will clarify the legal regime of the Presidential decrees, on the one hand, and provide an insight into the nature of the relations among legislative, executive and judicial bodies in the new governmental system, on the other.”  

President Mr. Arslan, underlying that the new governmental system and certain changes in the administration method has an influence on the constitutional identity to a certain extent, but has not changed the basic principles of the constitutional identity, also noted “The aim of constitutionalism generally and of constitutional jurisdiction specifically is to ensure that the State be governed by law in order to secure fundamental rights and freedoms.”  

“Separation of powers is not a conflict of powers”  

Emphasizing that one of the principles making democracy “regime of freedoms” is separation of powers, President Mr. Arslan noted that the idea of separation of powers has been embraced since the final stage of the Ottoman Empire and added: 

“The separation of powers, a paramount element of the Turkish constitutional system also nowadays, is defined in the preamble of the Constitution as “a civilized cooperation and division of functions referring and limited solely to the exercising of certain state powers and discharging of duties.” In this definition, ‘division of functions’ explicitly means that each governmental body shall fulfil, by exercising its constitutional powers, the duties entrusted to it. According to the Court, the principle of separation of powers requires the bodies to operate not individually but in cooperation by way of exercising their constitutional powers.  In this sense, separation of powers is in no way a conflict of powers.”

“Judicial independence is a sine qua non for a democratic state governed by rule of law”

President Mr. Arslan underlined that state of law and separation of powers, two basic elements of the constitutional identity, require the judiciary to be independent of the two other branches, namely the legislature and the executive, and that judicial independence is therefore a sine qua non for a democratic state governed by rule of law.

He also noted “Essentially, this fact prevails in all legal systems and in every era. On the other hand, our recent experiences show that the judiciary is to be independent not only of the legislature and the executive but also of any kind of parallel structure and organization. Judge can, under no circumstance, entrust his mind and conscience to anyone else. For the very reason, judges, who are independent and impartial in performing their duties by virtue of the Constitution, make constitutional, legal and lawful decisions based solely on their personal convictions.”

“21 Presidential decrees under constitutionality review”

Indicating that the extension in the Court’s jurisdiction has automatically led to an increase in its workload, President Mr. Arslan informed that the number of individual applications pending before the Court as of today was nearly 42.000.

He noted that 95% of the pending applications has been lodged since 2017 and that the number of pending constitutionality review cases is 104 in total; out of which 76 are subject to abstract review and 28 to concrete review.    

President Mr. Arslan  also indicated that nearly 70% of the pending cases of abstract review was comprised of decree-laws enacted under the state of emergency as well as the Presidential decrees, and that the Court had before it 21 Presidential decrees to undergo constitutionality review.  

After Mr. Arslan’s speech was over, President Mr. Erdoğan and accompanying guests visited Mr. Arslan’s office.