UPDATE: A Guide to Turkish Public Law and Legal Research
By Serap Yazici
The author of this article is Professor of Constitutional Law at İstanbul Bilgi University. Serap Yazici received her Ph.D. and LL.M. degrees from the University of Ankara. Her previous research deals with secularism; problems of transition and democratic consolidation; civil and military relations. Some of her works have been recognized by prominent institutions and foundations in Turkey. In 1986, she won the third prize in an academic competition on the topic of “Secularism from the Point of View of the Principles of Atatürk”. In 1987, she won the second prize in a competition on the topic of “Secularism and İnönü.” In 1991, she won the first prize in a competition organized by Aybay Foundation on the topic of “Secularism from the point of View of Human Rights.” In 1994, she won the first prize in a competition organized by the Cumhuriyet Newspaper on the topic of “Enlightenment Philosophy and the Turkish Revolution.” In 1998, she won the second prize in a competition organized by the Milliyet Newspaper on the topic of “The Evaluation of Presidential and Semi-Presidential Systems for Turkey.” Her book “Turkey in Democratization Process” received special mention by the Turkish Academy of Sciences (TUBA) in 2010 as one of the distinguished textbooks. She has published articles on constitutionalism, the rule of law and democracy, EU integration and democratic reforms. She is a member of the “Academic Committee” that is responsible for the preparation of the constitutional draft in 2007 upon the demand of the JDP government. She is also a member of the committee organized by TUSIAD and TESEV in 2010-2011, which prepared reports on the new constitution of Turkey.
Published May/June 2011
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Table of Contents
7.1. The Supreme Courts
8.1. Local Governments
10.5. The Amendments of 2008
The foundations of the Turkish legal system were laid in the early Republican period (1923-1930). These foundations were maintained after the transition to a multi-party system and following the constitutions adopted in 1961 and 1982.
The first constitutionalist movements were initiated in the 19th century during the reign of the Ottoman Empire. The Empire originally was based on principles of monarchy and theocracy. The adoption of Tanzimat (1839) and Islahat Edicts (1856) under the influence of Western liberalism slightly changed these principles by introducing certain rights and liberties for Ottoman subjects and allowing non-Muslims into the Empire. The adoption of the 1876 Constitution–Kanun-u Esasi—created more significant changes in the structure of the Empire by establishing a parliament. Although this innovation was significant in changing the absolutist nature of the Empire, it was insufficient to transform it into a Western-style parliamentary monarchy. This transformation was carried out by the amendment of Kanun-u Esasi in 1909. The results of this transformation, however, did not last long, for the Empire and its allies were defeated in the First World War. Efforts to establish a modern state were initiated in 1919 by a group of revolutionaries under the leadership of Mustafa Kemal Atatürk, who became the founder of the Turkish Republic.
The convening of the Turkish Grand National Assembly in Ankara in 1920, the adoption of the Constitution of 1921 (which granted sovereignty to the Turkish nation), the abolition of the Sultanate in 1922, the founding of the Republic in 1923, and the abolition of the Caliphate in 1924 were the crucial steps in the formation of modern Turkey.
The Turkish Grand National Assembly adopted a new constitution in 1924. This Constitution maintained the principle of national sovereignty, which had been adopted by the 1921 Constitution. It also established the principle of the supremacy of the constitution and granted several freedoms to Turkish citizens, such as the freedom of thought, freedom of conscience, freedom of speech, freedom of the press, freedom of contract, freedom of work, freedom of property, and freedom of association. The 1924 Constitution was amended in 1928 and 1937 to further secularize the system of government. The religious references in the Constitution were deleted and secularism was promoted in the Constitution as one of the basic characteristics of the Turkish Republic. The efforts to promote secularism were not limited to the constitutional changes. In fact, the reception of a Civil Code from Switzerland in 1926, a Penal Code from Italy, and a Commercial Code inspired by Germany, consolidated secularism in both private and public law domains. The adoption of other reforms furthered and deepened modernization and secularization. These reforms included the adoption of the Latin alphabet and international numerals; the unification of the educational system; the wearing of hats; the closing of the Dervish Convents and Tombs; the abolition of the Office of Keeper of Tombs; the prohibition of certain titles; and the banning of certain garments. Thus, the social and cultural life of Turkish society was entirely westernized.
The 1924 Constitution was maintained without change after the transition to a multi-party system in 1946. It came to an end with the military intervention of 27 May 1960. The revolutionary officers, with the help of the opposition parties, started to prepare a new constitution to establish a more pluralistic democracy while maintaining the modern, secular nature of the state.
The 1961 Constitution was prepared by a Constituent Assembly composed of military leaders and indirectly elected civilians. It was adopted by a referendum held on 9 July 1961. This Constitution strengthened the principle of the supremacy of the constitution via the establishment of the Constitutional Court, which effectively restricted the powers of elected branches and strengthened safeguards for fundamental rights and liberties. The Constitution was substantially amended in 1971 and 1973, under the influence of the military following the half coup of 12 March 1971, to strengthen the executive power, to restrict the scope of some rights and liberties, and to weaken the role of the judiciary. The purpose of these amendments was to strengthen the authority of the state, which had been eroded by terror and violence. However, these constitutional amendments failed to achieve the expected results. Turkey faced a more extreme polarization between the extreme left and the right. The country was also plagued by terrorist movements, which threatened the public order even more seriously than before, and economic crises. Turkish Armed Forces intervened on 12 September 1980 to resolve these problems. The intervention was carried out by the National Security Council, which was composed of the Chief of the General Staff and four Commanders. The basic aim of the military government was to restructure the constitutional and legal order of the country and to restore democracy. The National Security Council stayed in power longer than its predecessor did. It exercised extraordinary powers until November 1983, when general elections were held. During this period they not only prepared a new constitution but also adopted several hundred laws, which entirely restructured the constitutional and legal order of Turkey. Thus, Turkey inherited an authoritarian legacy, a legacy that proved difficult to eliminate.
The 1982 Constitution states in Article 1 that: “The Turkish State is a Republic.” Article 2 of this Constitution regulates the fundamental characteristics of the Republic. According to Article 2:
“Turkish Republic is a democratic, secular and, social state governed by the rule of law, in accordance with the concepts of social peace, national solidarity and justice; respectful of human rights, committed to Atatürk nationalism and based on the fundamental principles set forth in the Preamble.”
Article 3 of the Constitution states the indivisibility of the state with its territory. According to this Article:
“The Turkish state, with its territory and nation, is an indivisible entity. Its language is Turkish. Its flag, the form of which is prescribed by the relevant law, is composed of a white crescent and star on a red background. Its national anthem is the ‘Independence March’. Its capital is Ankara.”
Finally, Article 4 renders the first three articles irrevocable. Article 4 states that:
“The provision of Article 1 of the Constitution establishing the form of the state as a Republic, the provisions in Article 2 on the characteristics of the Republic, and the provisions of Article 3 can not be amended, nor can their amendment be proposed.”
Other articles of the Constitution can be amended in accordance with the procedure stated in Article 175. The 1982 Constitution maintains the principle of the separation of powers, which was adopted by the 1961 Constitution. Thus, three basic functions of the state are vested in different branches. According to Article 7 of the Constitution: “Legislative power is vested in the Grand National Assembly of Turkey on behalf of the Turkish Nation. This power cannot be delegated.” Article 8 states that: “Executive power and function shall be exercised and carried out by the President of the Republic and the Council of Ministers in conformity with the Constitution and the law.” Article 9 states that: “Judicial power is exercised by independent courts on behalf of the Turkish Nation.”
The Constitution of 1982 contains fundamental rights and liberties in its second, third, and fourth chapters, under the titles of “rights and duties of the individual”, “social and economic rights and duties”, and “political rights and duties”, respectively. Although the Constitution included all fundamental rights and liberties, which must be embodied in a contemporary democratic order, it also restricted these rights via related articles and a restrictive clause in Article 13. Thus, restrictions were a rule rather than an exception under the original text of the 1982 Constitution. The original Article 13 stated:
“All fundamental rights and liberties shall be restricted by law in accordance with the letter and the spirit of the Constitution for the purpose of the protection of national security, the indivisibility of the state with its nation and the territory, national sovereignty, the republic, public order, public interest, public moral, and health, and shall also be restricted by the specific reasons which are stated in the relevant articles of the Constitution. General and specific restrictions which are stated for the fundamental rights and liberties shall not be in conflict with the requirements of the democratic social order and they shall not be exercised except for their stated aim.”
Thus, all rights and liberties could be restricted for reasons mentioned in related articles, as well as for the reasons stated in Article 13. However, the Constitution contains an effective protective clause in Article 15, which deals with the restriction of rights and liberties in case of war, mobilization, martial law, or state of emergency. According to this provision:
“In times of war, mobilization, martial law, or state of emergency, the exercise of fundamental rights and freedoms can be partially or entirely suspended, or measures may be taken, to the extent required by the exigencies of the situation, which derogate the guarantees embodied in the Constitution, provided that obligations under international law are not violated.
Even under the circumstances indicated in the first paragraph, the individual’s right to life, and the integrity of his material and spiritual entity can be inviolable except where death occurs through lawful act of warfare and execution of death sentences; no one may be compelled to reveal his religion, conscience, thought or opinion nor be accused on account of them; offences and penalties may not be made retroactive, nor may anyone be held guilty until so proven by a court judgment.”
While this provision provides protection for the rights and liberties under the circumstances of martial law and state of emergency, its effects are weakened by Article 148, which exempts from judicial review the law amending ordinances adopted during martial law or state of emergency.
The legislative branch is regulated in the first chapter of the third part of the Constitution. According to Article 75: “The Grand National Assembly of Turkey is composed of five hundred and fifty deputies elected by universal suffrage.”
The legislative term of the Grand National assembly is five years. However, the Constitution allows the Assembly to anticipate the elections and authorizes the President to call elections under the circumstances stated in Article 77. According to Article 77:
“Elections for the Grand National Assembly of Turkey are held every five years. The Assembly may decide to hold a new election before the termination of this period, and new elections may also be held according to a decision, taken in accordance with the conditions set forth in the Constitution, by the President of the Republic. A deputy whose term of office expires may be eligible for re-election. In the event of a decision to hold new elections, the powers of the Assembly continue until the election of a new Assembly.”
Article 76 regulates the eligibility of deputies. It reads:
“Every Turk over the age of 30 is eligible to be a deputy.
Persons who have not completed their primary education, who have been deprived of legal capacity, who have failed to perform compulsory military service, who are banned from public service, who have been sentenced to a prison term totaling one year or more excluding involuntary offences, or to a heavy imprisonment; those who have been convicted for dishonorable offences such as embezzlement, corruption, bribery, theft, fraud, forgery, breach of trust, fraudulent bankruptcy; and persons convicted of smuggling, conspiracy in official bidding or purchasing, of offences related to the disclosure of State secrets, of involvement in terror action, or incitement and encouragement of such activities, cannot be elected deputies, even if they have been pardoned.
Judges and prosecutors, members of the higher judicial organs, members of the teaching staff at institutions of higher education, members of the Higher Education Council, employees of public institutions and agencies who have the status of civil servants, other public employees not regarded as laborers on account of the duties they perform, and members of the Armed Forces can not stand for election or be eligible to be a deputy unless they resign from office.”
The Constitution grants parliamentary immunity for deputies in its Article 83. According to this Article:
“Members of the Grand National Assembly of Turkey cannot be liable for their votes and statements concerning parliamentary functions, for the views they express before the Assembly, or unless the Assembly decides otherwise on the proposal of the Bureau for that sitting, for repeating or revealing these outside the Assembly.
A deputy, who is alleged to have committed an offence before or after election, cannot be arrested, interrogated, detained or tried unless the Assembly decides otherwise.
This provision not apply in cases where a member is caught in the act of committing an offence punishable by a heavy penalty and in cases subject to Article 14 of the Constitution if an investigation has been initiated before the election. However, in such situations the competent authority notifies the Grand National Assembly of Turkey immediately and directly.
The execution of a criminal sentence imposed on a member of the Grand National Assembly of Turkey either before or after his election is suspended until he ceases to be a member; the statute of limitations does not apply during the term of membership.
Investigation and prosecution of a re-elected deputy can be subject to whether or not the Assembly lifts immunity in the case of the individual involved.
Political party groups in the Grand National Assembly of Turkey not hold discussions or take decisions regarding parliamentary immunity.”
Thus, Article 83 grants two kinds of parliamentary immunities to deputies: freedom of speech and freedom from arrest. According to this Article, freedom of speech provides an absolute and permanent protection for deputies, since this immunity cannot be removed by the parliament and its protection continues after the loss of parliamentary status. Freedom from arrest, on the other hand, provides only a temporary protection for deputies, since this immunity can be removed by the decision of parliament and since its protection does not continue after the loss of parliamentary status.
Article 87 regulates the powers and duties of the Grand National Assembly. According to Article 87, these powers include the ability:
“…to make, amend, and repeal laws; to supervise the Council of Ministers and ministers; to authorize the Council of Ministers to make law amending ordinances on certain matters; to deliberate and adopt the budgetary laws and the draft laws on final accounts; to decide upon printing money and declaration of war; to approve the ratification of international agreements, to make decision on declaration of general and private amnesty law by three-fifths majority of its full membership, and to exercise powers, and carry out duties which are stated in other articles of the Constitutions.”
The Grand National Assembly is also granted powers to supervise the Council of Ministers. The Assembly exercises these powers through oral questions with debate or written questions (Article 98); general debates (Article 98); parliamentary investigations (Article 98); parliamentary inquiries (Article 100); and interpellations (Article 99).
The Constitution of 1982 adopts all the basic characteristics of parliamentarism (as its predecessor did) but strengthens the presidential office within the executive branch and the status of the Prime Minister within the Council of Ministers. Executive powers are exercised by the President and the Council of Ministers as stated in Article 8. The President is the impartial component of the executive branch. The Council of Ministers is politically responsible and accountable for executive matters before the parliament.
Article 101 of the Constitution states the eligibility conditions for the president and provides certain precautions to guarantee the impartiality of this office. According to this Article:
“The President of the Republic is elected for a term of office of seven years by the Grand National Assembly of Turkey from among its own members who are over 40 years of age and who have completed their higher education or from among Turkish citizens who fulfill these requirements and are eligible to be deputies.
The nomination of a candidate for the Presidency of the Republic from outside the Grand National Assembly of Turkey requires a written proposal by at least one-fifth of the total number of members of the Assembly.
The President of the Republic cannot be elected for a second time.
The President-elect, if a member of a party severs his relations with his party and his status as a member of the Grand National Assembly of Turkey ceases.”
Article 102 of the Constitution regulates the election of the President. According to this provision, the President can be elected by the Grand National Assembly by a qualified majority. In the first two ballots a two-thirds majority of the total membership of the Grand National Assembly is required. If this majority cannot be obtained in the first two ballots, in the third and fourth ballots the absolute majority of the total membership of the Grand National Assembly is sufficient. If this majority is not obtained in the fourth ballot, the elections of the Grand National Assembly are immediately renewed.
Article 104 of the Constitution defines the powers of the President. This Article broadened and strengthened the powers of the President, thereby departing from the spirit of classical parliamentarism. Article 105 makes the President non-liable in executive matters. According to this Article, all decisions of the President are subject to the counter-signature of the Prime Minister and the minister concerned (the responsibility for these decisions is therefore assumed by the Prime Minister and the minister concerned). Article 105 also regulates the criminal responsibility of the President. According to the last paragraph of this Article:
“The President of the Republic may be impeached for high treason on the proposal of at least one-third of the total number of members of the Grand National Assembly of Turkey, and by the decision of at least three-fourths of the total number of members.”
Under Article 109:
“The Council of Ministers consists of the Prime Minister and the ministers. The Prime Minister is appointed by the President of the Republic from among the members of the Grand National Assembly of Turkey. The ministers are nominated by the Prime Minister and appointed by the President of the Republic, or from among those eligible for election as deputies; and they can be dismissed by the President of the Republic, upon the proposal of the Prime Minister when deemed necessary.”
The Council of Ministers is legally formed by the approval of the President; then a vote of confidence in parliament is taken in accordance with the procedure stated in Article 110. According to Article 110:
“The complete list of members of the Council of Ministers is submitted to the Grand National Assembly of Turkey. If the Grand National Assembly of Turkey is in recess, it is summoned to meet. The Government Program of the Council of Ministers is read by the Prime Minister or by one of the ministers before the Grand National Assembly of Turkey within a week of the formation of the Council of Ministers at the latest and then a vote of confidence is taken. Debate on the vote of confidence begins two full days after the reading of the program and the vote is taken one full day after the end of debate.”
Although Article 110 does not clearly state what kind of majority shall be sufficient for the vote of confidence, under the Standing Orders of the Assembly, a simple majority suffices.
The Council of Ministers is collectively responsible before the parliament on account of its general policies. Each minister is also individually responsible before the parliament on account of matters within his/her jurisdiction. Both collective and individual responsibilities of ministers are invoked through interpellations according to Article 99 of the Constitution.
Ever since the adoption of the 1924 Constitution, the judiciary has been regarded as an independent branch. However, its independence was sufficiently guaranteed only by the Constitution of 1961. The 1982 Constitution basically maintains the judiciary’s independence. According to Article 9 of the Constitution the judicial power is exercised by the independent courts on behalf of the Turkish Nation. Article 138 of the Constitution, which is almost identical with Article 132 of its predecessor, makes courts and judges independent vis-à-vis other branches and institutions of the state. According to this Article:
“Judges are independent in the discharge of their duties; they give judgment in accordance with the Constitution, law, and their conscientious opinions in conformity with the law.
No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circular, or make recommendations or suggestions.
No questions can be asked, debates held, or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial.
Legislative and executive organs and the administration are obliged to comply with court decisions; these organs and the administration neither alter them in any respect, nor delay their execution. ”
In addition, Article 139 provides tenure for judges and public prosecutors in personnel matters. According to Article 139:
“Judges and public prosecutors cannot be dismissed, or retired before the age prescribed by the Constitution; nor can they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of court or post.
Exceptions indicated in law relating to those convicted for an offence requiring dismissal from the profession, those who are definitely established as unable to perform their duties on account of ill-health, and those determined as unsuitable to remain in the profession, are reserved.”
Moreover, Article 159 authorizes the Supreme Council of Judges and Public Prosecutors to make decisions about matters concerning personnel matters of judges and public prosecutors, their appointment, promotion, and disciplinary affairs. According to Article 159:
“The Supreme Council of Judges and Public Prosecutors is established an exercises its functions in accordance with the principles of the independence of the courts and the security of tenure of judges.
The President of the Council is the Minister of Justice. The Undersecretary to the Minister of Justice is an ex-officio member of the Council. Three regular and three substitute members of the Council are appointed by the President of the Republic for a term of four years from a list of three candidates nominated for each vacant office by the Plenary Assembly of the Court of Cassation from among its own members and two regular and two substitute members are similarly appointed from a list of three candidates nominated for each vacant office by the Plenary Assembly of the Council of State. They may be re-elected at the end of their term of office. The Council elects a deputy president from among its elected regular members.
The Supreme Council of Judges and Public Prosecutors deals with the admission of judges and public prosecutors of courts of justice and of administrative courts into the profession, appointments, transfers to other posts, the delegation of temporary powers, promotion, and promotion to the first category, the allocation of posts, decisions concerning those whose continuation in the profession is found to be unsuitable, the imposition of disciplinary penalties and removal from office. It takes final decisions on proposals by the Ministry of Justice concerning the abolition of a court or an office of judge or public prosecutor, or changes in the jurisdiction of a court. It also exercises the other functions given to it by the Constitution and laws.”
Thus, personnel matters of judges and public prosecutors are removed from the influence of the legislative and executive branches. However, the ex-officio membership of Ministry of Justice and the Undersecretary to the Minister of Justice creates doubts about the full impartiality of the Council. Moreover, the fourth paragraph of Article 159 grants judicial immunity for the Council’s decisions. According to this Article: “There can be no appeal to any judicial instance against the decisions of the Council”. This provision not only weakens the personal safeguards of judges and public prosecutors but also creates a conflict with the principle of the rule of law stated in Article 2.
The Constitution regulates the supreme courts in its third part. The supreme courts include: the Constitutional Court; Court of Cassation/the Supreme Court; Council of State; Military Court of Cassation/Military Supreme Court; Supreme Military Administrative Court; Court of Conflict; Court of Account.
The Constitutional Court established by the 1961 Constitution is regulated by the 1982 Constitution in Articles 146-153. Article 148 of the Constitution defines the powers and duties of the Court:
“The Constitutional Court shall examine the constitutionality, in respect of both form and substance, of laws, decrees having the force of law, and the Rules of Procedure of the Turkish Grand National Assembly. Constitutional amendments shall be examined and verified only with regard to their form. However, no action shall be brought before the Constitutional Court alleging unconstitutionality as to the form or substance of decrees having the force of law issued during a state of emergency, martial law or in time of war.
The verification of laws as to form shall be restricted to consideration of whether the requisite majority was obtained in the last ballot; the verification of constitutional amendments shall be restricted to consideration of whether the requisite majorities were obtained for the proposal and in the ballot, and whether the prohibition on debates under urgent procedure was complied with. Verification as to form may be requested by the President of the Republic or by one-fifth of the members of the Turkish Grand National Assembly. Applications for annulment on the grounds of defect in form shall not be made more than ten days after the date on which the law was promulgated; nor shall objection be raised.
The President of the Republic, members of the Council of Ministers, presidents and members of the Constitutional Court, of the Court of Cassation, of the Council of State, of the Military High Court of Appeals, of the High Military Administrative Court of Appeals, their Chief Public Prosecutors, Deputy Public Prosecutors of the Republic, and the presidents and members of the Supreme Council of Judges and Public Prosecutors, and of the Audit Court shall be tried for offences relating to their functions by the Constitutional Court in its capacity as the Supreme Court.
The Chief Public Prosecutor of the Republic or Deputy Chief Public Prosecutor of the Republic shall act as public prosecutor in the Supreme Court.
The judgments of the Supreme Court shall be final.
The Constitutional Court shall also perform the other functions given to it by the Constitution.”
The Court of Cassation or The Supreme Court, regulated in Article 154, is empowered to make final decisions on conflicts concerning private and criminal laws. According to Article 154:
“The Court of Cassation is the last instance for reviewing decisions and judgments given by courts of justice and which are not referred by law to other judicial authority. It shall also be the first and last instance for dealing with specific cases prescribed by law.
Members of the Court of Cassation shall be appointed by the Supreme Council of Judges and Public Prosecutors from among first category judges and public prosecutors of the Republic, of the courts of justice, or those considered to be members of this profession, by secret ballot and by an absolute majority of the total number of members.
The first president, first deputy presidents and heads of division shall be elected by the Plenary Assembly of the Court of Cassation from among its own members, for a term of four years, by secret ballot and by an absolute majority of the total number of members; they may be re-elected at the end of their term of office.
The Chief Public Prosecutor of the Republic and the Deputy Chief Public Prosecutor of the Republic of the Court of Cassation shall be appointed by the President of the Republic for a term of four years from among five candidates nominated for each office by the Plenary Assembly of the Court of Cassation from among its own members by secret ballot. They may be re-elected at the end of their term of office.
The organization, the function, the qualifications and procedures of election of the president, deputy presidents, the heads of division and members and the Chief Public Prosecutor of the Republic and the Deputy Chief Public Prosecutor of the Republic of the Court of Cassation shall be regulated by law in accordance with the principles of the independence of courts and the security of tenure of judges.”
The Council of State is regulated in Article 155 of the Constitution. The Council is authorized to make final decisions concerning the decisions of lower-level administrative courts. It is also authorized to make first and final decision on particular matters. According to Article 155:
“The Council of State is the last instance for reviewing decisions and judgments given by administrative courts and which are not referred by law to other administrative courts. It shall also be the first and last instance for dealing with specific cases prescribed by law.
The Council of State shall try administrative cases, give its opinion within two months of time on draft legislation, the conditions and the contracts under which concessions are granted concerning public services which are submitted by the Prime Minister and the Council of Ministers, examine draft regulations, settle administrative disputes and discharge other duties as prescribed by law.
Three-fourths of the members of the Council of State shall be appointed by the Supreme Council of Judges and Public Prosecutors from among the first category administrative judges and public prosecutors, or those considered to be of this profession; and the remaining quarter by the President of the Republic from among officials meeting the requirements designated by law.
The president, chief public prosecutor, deputy president, and heads of division of the Council of State shall be elected by the Plenary Assembly of the Council of State from among its own members for a term of four years by secret ballot and by an absolute majority of the total number of members. They may be re-elected at the end of their term of office.
The organization, the functioning, the qualifications and procedures of election of the president, the chief public prosecutor, the deputy presidents and the heads of division and the members of the Council of State, shall be regulated by law in accordance with the principles of specific nature of the administrative jurisdiction, and of the independence of the Courts and the security of tenure of judges.”
The Military Court of Cassation or the Military Supreme Court is regulated in Article 156 of the Constitution and authorized to make final decisions concerning criminal matters, which are within the competence of the military penal courts. According to Article 156:
“The Military High Court of Appeals is the last instance for reviewing decisions and judgments given by military courts. It shall also be the first and last instance for dealing with specific cases designated by law concerning military personnel.
Members of the Military High Court of Appeals shall be appointed by the President of the Republic from among three candidates nominated for each vacant office by the Plenary Assembly of the Military High Court of Appeals from among military judges of the first category, by secret ballot and by an absolute majority of the total number of members.
The president, chief public prosecutor, second presidents and heads of division of the Military High Court of Appeals shall be appointed according to rank and seniority from among the members of the Military High Court of Appeals.
The organization, the functioning of the Military High Court of Appeals, and disciplinary and personnel matters relating to the status of its members shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of judges and with the requirements of military service.”
The Supreme Military Administrative Court is regulated in Article 157 of the Constitution and authorized to make first and final decisions on matters concerning military personnel and military services. According to Article 157:
“The High Military Administrative Court of Appeals shall be the first and last instance for the judicial supervision of disputes arising from administrative acts and actions involving military personnel or relating to military service, even if such acts and actions have been carried out by civilian authorities. However, in disputes arising from the obligation to perform military service, there shall be no condition that the person concerned be a member of the military body.
Members of the High Military Administrative Court of Appeals who are military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the president and members of the Court, who are also military judges, by secret ballot and by an absolute majority of the total number of such members, from among military judges of the first category; members who are not military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the Chief of the General Staff from among officers holding the rank and qualifications prescribed by law.
The term of office of members who are not military judges shall not exceed four years.
The president, chief public prosecutor and head of division of the Court shall be appointed from among military judges according to rank and seniority.
The organization and functioning of the High Military Administrative Court, its procedure, disciplinary affairs and other matters relating to the status of its members shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of judges within the requirements of military service.”
The Court of Conflict is regulated in Article 158 of the Constitution and authorized to resolve conflicts between civil, administrative and military courts. According to Article 158:
“The Jurisdictional Court of Disputes shall be empowered to deliver final judgments in disputes between courts of justice, and administrative and military courts concerning their jurisdiction and decisions.
The organization of the Jurisdictional Court of Disputes the qualifications of its members and the procedure for their election, and its functioning shall be regulated by law. The office of president of this Court shall be held by a member delegated by the Constitutional Court from among its own members.
Decisions of the Constitutional Court shall take precedence in jurisdictional disputes between the Constitutional Court and other courts.”
The Court of Accounts is regulated in Article 160 of the Constitution. It is authorized to make supervise on all public expenditures on behalf of the Turkish Grand National Assembly. According to Article 160:
“The Audit Court shall be charged with auditing, on behalf of the Turkish Grand National Assembly, all accounts related to revenues, expenditures and properties of the government departments financed by general and subsidiary budgets, with taking final decisions on the acts and accounts of the responsible officials, and with exercising the functions required of it by law in matters of inquiry, auditing and judgment. Parties concerned may file a single request for reconsideration of a final decision of the Audit Court within fifteen days of the date of written notification of the decision. No applications for judicial review of such decisions shall be filed in administrative courts.
In the event of a dispute between the Council of State and the Audit Court concerning decisions on matters of taxation or similar financial obligations and duties, the decision of the Council of State shall take precedence.”
The administrative system of Turkey combines the principles of centralization and decentralization. The central administration is regulated by Article 126 of the Constitution.
The National Security Council is a constitutional institution, which was established by the 1961 Constitution. The Council was composed of civil and military members and authorized to make decisions concerning national security matters. The constitutional amendments of 1971, which were adopted under the influence of the Armed Forces following the 12 March intervention, reinforced the representation of the military within the Council. Despite these amendments, the Council maintained its consultative character. The 1982 Constitution maintained the Council as a constitutional institution but substantially amended its structure by increasing the number of its military members while reinforcing the binding effect of its decisions. According to the original text of the Constitution (Article 118):
“National Security Council is composed of the Prime Minister, the Chief of the General Staff, Minister of National Defense, Minister of Interior, Minister of Foreign Affairs, the Commanders of the Land Forces, Navy, Air Forces and the Gendarmerie, under the chairmanship of the President of the Republic.
According to the agenda, the ministers concerned and the persons may be invited to the Council’s meetings for consultations.”
The structure of the National Security Council and the effects of its decisions over the Council of Ministers were significantly amended by the 2001 constitutional reforms, which will be examined below.
The State Supervisory Council was established by the 1982 Constitution in Article 108, which states that:
“The State Supervisory Council which shall be attached to the Office of the Presidency of the Republic with the purpose of ensuring and improving of the regular and efficient functioning of the administration and its observance of law, will be empowered to conduct upon the request of the President of the Republic all inquiries, investigations and inspections of all public bodies and organizations, all enterprises in which those public bodies and organizations share more than half of the capital, public professional organizations, employers’ associations and labor unions at all levels, and public welfare associations and foundations.
The Armed Forces and all judicial bodies are outside the jurisdiction of the State Supervisory Council.
The members and the Chairman of the State Supervisory Council shall be appointed by the President of the Republic from among those with qualifications set forth in the law.
The functioning of the State Supervisory Council, the term of office of its members, and other matters relating to their status shall be regulated by law.”
The primary sources of Turkish law are the constitution, laws, law amending ordinances, international treaties, regulations, and by-laws.
The constitution is the highest source of Turkish legal order because of the principle of the supremacy of the constitution. This principle was adopted by the 1876 Constitution. It was maintained by the 1924, 1961, and 1982 Constitutions, and it was reinforced by the 1961 Constitution, which established the Constitutional Court. The 1982 Constitution maintained both this principle and the judicial review power of the Constitutional Court over laws and law amending ordinances. According to Article 11 of the Constitution:
“The provisions of the Constitution are fundamental legal rules binding upon legislative, executive and judicial organs, and administrative authorities and other institutions and individuals. Laws shall not be in conflict with the Constitution.”
Article 148 of the Constitution regulates the review of constitutionality by the Constitutional Court. According to this Article:
“The Constitutional Court shall review the constitutionality, in respect of both form and substance, of laws, law amending ordinances, and the Standing Orders of the Turkish Grand National Assembly. Constitutional amendments shall be reviewed and controlled only with regard to their form. However, no action shall be brought before the Constitutional Court alleging unconstitutionality as to the form or substance of law amending ordinances issued during a state of emergency, martial law or in time of war.
The review of laws as to form shall be restricted to consideration of whether the requisite majority was obtained in the last ballot; the review of constitutional amendments shall be restricted to consideration of whether the requisite majorities were obtained for the proposal and in the ballot, and whether the prohibition on debates under urgent procedure was complied with. Review as to form may be requested by the President of the Republic or by one-fifth of the members of the Turkish Grand National Assembly. Applications for annulment on the grounds of defect in form shall not be made more than ten days after the date on which the law was promulgated; nor shall not be put forward by way of objection.”
Under the original text of the 1982 Constitution, three categories of legal texts were excluded from the constitutionality review of the Constitutional Court. These were the Reform Laws stated in Article 174, legislative acts adopted by the National Security Council regime stated in the third paragraph of the transitional Article 15, and law-amending ordinances, which are adopted under a state of emergency or martial law as, stated in Article 148.
Granting judicial immunity to these texts may be considered incompatible with the principle of the rule of law and with the principle of the supremacy of the constitution. However, the Constitution grants judicial immunity to the Reform Laws in Article 174 because of the crucial importance of these laws for the secular republic. In fact, the fundamental aims of the Reform Laws were to eliminate religious elements from the constitutional and legal order of modern Turkey. Some of these Reform Laws aimed at establishing western norms to consolidate secularism. Granting judicial immunity to the legislative acts adopted by the National Security Council regime in the third paragraph of the transitional Article 15 is one of the exit-guarantees that the military government obtained during the transition to civilian government. This prerogative was eliminated from the Constitution in 2001. Finally, granting judicial immunity for law amending ordinances adopted under a state of emergency or martial law is not compatible with the principle of the rule of law and the supremacy of the constitution.
It must be added here that, like its predecessor, the Constitution of 1982 provides judicial immunity for international treaties in Article 90. However, this provision cannot be considered incompatible with the principle of the rule of law. Its purpose is to protect the state from responsibility under international law and international sanctions.
Article 87 of the Constitution authorized the Turkish Grand National Assembly to make, amend, and abrogate laws. Legislative bills are proposed by the Council of Ministers and individual deputies as stated in Article 88. Such bills are debated and adopted by the Parliament in its plenary session in accordance with the Constitution and the Standing Orders of the Grand National Assembly. The Constitution requires a simple majority for the adoption of ordinary laws in Article 96. According to this Article:
“Unless otherwise stipulated in the Constitution, the Turkish Grand National Assembly shall convene with at least, one-third of the total number of members and shall take decisions by an absolute majority of those present; however, the quorum for decisions can, under no circumstances, be less than a quarter plus one of the total number of members.
Members of the Council of Ministers may delegate a minister to vote on their behalf in sessions of the Turkish Grand National Assembly, which they are unable to attend. However, a minister shall not cast more than two votes including his or her own.”
Legislative bills adopted by the Grand National Assembly are submitted to the President of the Republic in accordance with Article 89 of the Constitution. The President shall either sign the bill within fifteen days or return it partially or entirely to the Grand National Assembly for reconsideration within the same period. However, budget laws are excluded from this power of the President due to time considerations. If the Grand National Assembly readopts the bill without a change the bill shall be promulgated by the President. Laws are only enacted by publication in the Official Gazette.
Law amending ordinances have the same legal effects as laws. Law amending ordinances were first introduced by the amendment of 1971 to the 1961 Constitution and maintained by the 1982 Constitution. The 1982 Constitution distinguishes between the two categories of law amending ordinances: ordinances adopted under normal circumstances as stated in Article 91; and those adopted under circumstances of state of emergency and martial law.
According to Article 91:
“The Turkish Grand National Assembly may empower the Council of Ministers to issue law amending ordinances. However, the fundamental rights, individual rights and duties included in the First and Second Chapter of the Second Part of the Constitution and the political rights and duties listed in the Fourth Chapter, cannot be regulated by law amending ordinances except during periods of martial law and state of emergency.
The empowering law shall define the purpose, scope, principles, and operative period of the law amending ordinances, and whether more than one decree will be issued within the same period.
Resignation or fall of the Council of Ministers, or expiration of the legislative term shall not cause the termination of the power conferred for the given period.
When approving a law-amending ordinance before the end of the prescribed period, the Turkish Grand National Assembly shall also state whether the power has terminated or will continue until the expiry of the said period.
Provisions relating to law amending ordinances issued by the Council of Ministers meeting under the chairmanship of the President of the Republic in time of martial law or state of emergency, are reserved.
Law amending ordinances shall come into force on the day of their publication in the Official Gazette. However, a later date may be indicated in the ordinance as the date of entry into force.
Ordinances are submitted to the Turkish Grand National Assembly on the day of their publication in the Official Gazette.
Empowering laws and law amending ordinances, which are based on these, shall be discussed in the committees and in the plenary sessions of the Turkish Grand National Assembly with priority and urgency.
Ordinances not submitted to the Turkish Grand National Assembly on the day of their publication shall cease to have effect on that day and those rejected by the Turkish Grand National Assembly shall cease to have effect on the day of the publication of the decision in the Official Gazette. The amended provisions of the ordinances which are approved as amended shall go into force on the day of their publication in the Official Gazette.”
The last paragraph of Article 121 states that:
“During the state of emergency, the Council of Ministers convening under the chairmanship of the President of the Republic, may issue law amending ordinances on matters required by the state of emergency. These ordinances shall be published in the Official Gazette, and shall be submitted to the Turkish Grand National Assembly on the same day for approval; the time limit and procedure for their approval by the Assembly shall be indicated in the Standing Orders.”
The second paragraph of Article 122 notes that: “During the period of martial law, the Council of Ministers convening under the chairmanship of the President of the Republic may issue law amending ordinances on matters required by the state of martial law.”
International treaties are another source of Turkish law. According to Article 90:
“The ratification of treaties concluded with foreign states and international organizations on behalf of the Republic of Turkey, shall be subject to adoption by the Turkish Grand National Assembly by a law approving the ratification.
Agreements regulating economic, commercial and technical relations, and covering a period of no more than one year, may be put into effect through promulgation, provided they do not entail any financial commitment by the state, and provided they do not infringe upon the status of individuals or upon the property rights of Turkish citizens abroad. In such cases, these agreements shall be submitted to the Turkish Grand National Assembly for information within two months of their promulgation.
Agreements in connection with the implementation of an international treaty, and economic, commercial, technical, or administrative agreements, which are concluded depending on the authorization as stated in the law, shall not require the approval of the Turkish Grand National Assembly. However, agreements concluded under the provision of this paragraph and affecting economic or commercial relations and the private rights of individuals shall not be put into effect unless promulgated.
Agreements resulting in amendments to Turkish laws shall be subject to the provisions of the first paragraph.
International treaties, which are duly put into effect, have the same effect as domestic laws. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In case of conflicts between international agreements duly put into effect regarding basic rights and freedoms and domestic laws, due to different provisions on the same issue, the provisions of international treaties shall be prevail.”
The original text of Article 90 stated that international treaties, which were duly put into effect, have the same effect as domestic laws. Therefore, in case of a conflict between a domestic law and an international treaty, the principles of lex posteriori derogat legi anteriori, and lex specialis derogat legi generali, were to apply. The constitutional amendment of 2004 changed the status of international treaties concerning fundamental rights and liberties in the legal hierarchy. Thus, the status of such treaties was elevated to a place between the constitution and ordinary domestic laws.
In the hierarchical structure of Turkish legal order, regulations are ranked third in importance. Like its predecessors, the Constitution of 1982 authorizes the Council of Ministers to make regulations in accordance with the constitution and laws in its Article 115. According to this Article:
“The Council of Ministers may issue regulations governing the mode of implementation of laws or designating matters ordered by law, provided that they do not conflict with existing laws and are examined by the Council of State. Regulations shall be signed by the President of the Republic and promulgated in the same manner as laws.”
Regulations are subject to the legality review of the administrative courts as stated in the Article 125.
By-laws are regulated in the Article 124 of the Constitution. According to this Article:
“The Prime Ministry, the ministries, and public corporate bodies may issue by-laws in order to ensure the application of laws and regulations relating to their particular fields of operation, provided that they are not contrary to these laws and regulations. The law shall designate which by-laws are to be published in the Official Gazette.”
Contrary to Anglo-American law, in Turkey jurisprudence is not considered one of the main sources of law, since all Republican Constitutions made the Grand National Assembly the sole authority to make law and prohibited the delegation of legislative power to any governmental agency. However, judicial decisions are not entirely without a binding effect in Turkish law. Decisions of the supreme courts have a binding effect on the decisions of lower courts within their jurisdiction.
The Constitution of 1982 has so far been amended several times. These amendments broadened the scope of rights and liberties, eliminated some of their restrictions, and strengthened their constitutional safeguards. In addition, these amendments eliminated and weakened certain prerogatives of the military. Thus, the constitutional order of Turkey was democratized and the role of the military in politics was reduced to meet democratic requirements and in particular the European Union’s criteria for membership.
The original text of the Constitution included a prohibition on the political activities of ex-politicians in its transitional Article 4. This Article was abolished in 1987 and ex-politicians were allowed to pursue political activities.
The Constitution had originally established a state monopoly on radio and television broadcasting in its Article 133. According to the original text of Article 133 radio and television channels could only be established by the state. The state monopoly was eliminated by the 1993 amendment and the establishment of private radio and television channels was allowed.
The constitutional amendments of 1995 significantly eliminated restrictions on political rights and liberties (the original text of the Constitution contained significant restrictions concerning the activities of political parties and civil society organizations in Articles 68, 69, 52, 33, and 135). Thus, the scope of political and civil rights was substantially enlarged.
In addition, university staff and students were allowed to engage in political activities, and the voting age was lowered from 20 to 18 by the amendments of Articles 67 and 68 in 1995. Furthermore, the prohibition preventing a deputy from resigning from his or her political party for joining another party (Article 84) was eliminated. Finally, the provision providing that all deputies belonging to a political party banned by the Constitutional Court shall lose their seats was amended. Instead, the Constitution stated that the deputy who caused the prohibition of his party by his words and actions would automatically lose his seat following the publication of this decision in the Official Gazette, but the status of the other deputies of that political party will not be affected by the prohibition ruling.
Besides these constitutional amendments, the government had in 1987 adopted the right to individual application to the European Commission of Human Rights. In 1990, moreover, the government recognized the binding effects of decisions of the European Court of Human Rights. These changes have played a significant role in the liberalization and democratization of the Turkish legal system.
The 2001 constitutional amendments eliminated the restrictions on certain rights such as the freedom of expression, freedom of association, and freedom of the press; enlarged substantially the scope of these rights; and strengthened their constitutional safeguards. In addition, the 2001 amendments eliminated the judicial immunity, which was granted to the legislative acts passed under the National Security Council regime.
Article 26 of the Constitution was amended to remove certain restrictions over the freedom of expression, making this article almost identical with Article 10 of the European Convention of Human Rights. According to the amended Article 26:
“Everyone has the right to express and disseminate his thoughts and opinion by speech, in writing or in pictures or through other media, individually or collectively. This right includes the freedom to receive and impart information and ideas without interference from official authorities. This provision shall not preclude subjecting transmission by radio, television, cinema, and similar means to a system of licensing. The exercise of these freedoms may be restricted for the purposes of protecting national security, public order and public safety, the basic characteristics of the Republic and safeguarding the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation and rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary. The formalities, conditions and procedures to be applied in exercising the right to expression and dissemination of thought shall be prescribed by law.”
The 2001 reforms also eliminated certain restrictions from Article 28, which regulated the freedom of the press, and restrictions from Article 33, which regulated the freedom of association.
More importantly, this reform radically amended Article 13, transforming it from a restrictive clause into a protective one. According to the original text of Article 13:
“All fundamental rights and liberties shall be restricted by law in accordance with the letter and the spirit of the Constitution for the protection of national security, the indivisibility of the state with its nation and territory, national sovereignty, the republic, public order, public interest, public morals and health and shall also be restricted by the specific reasons which are stated in the relevant articles of the Constitution.
General and specific restrictions, which are stated for the fundamental rights and liberties, shall not be in conflict with the requirements of the democratic social order and they shall not be exercised except for their stated aim.
General restrictions which are stated in this article shall be valid for all fundamental rights and liberties.”
The amended Article 13 in 2001 states that:
“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be in conflict with the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular Republic and the principle of proportionality.”
In addition, the constitutional reforms of 2001 made the prohibition of political parties more difficult. Before the amendment, the Constitutional Court had the power to prohibit a political party if it had become a focus of anti-constitutional activities. Now, depending on the gravity of the case, the Court can deprive the party of access to state funds instead of closing it down permanently. Furthermore, the concept of becoming a focus of anti-constitutional activities has been more narrowly and explicitly defined. Finally, the Constitutional Court’s decisions on the prohibition of parties must be assented to by a three-fifths majority of the Court, instead of a simple majority, as was the case before the amendment.
Moreover, the pre-trial detention period for collectively committed crimes was shortened from fifteen to four days. The death penalty was restricted to crimes committed during war or the imminent threat thereof and to acts of terrorism. The latter exception was later eliminated by the democratization package of August 2002. The death penalty in cases of war was totally abolished by the 2004 constitutional amendment. In addition, three other references to the death penalty in Articles 15, 17 and 87 of the Constitution were deleted. Thus, Turkey has not only achieved conformity with the standards of the case law of the European Court of Human Rights, but also removed the constitutional obstacles to the ratification of the 13th Additional Protocol to the European Convention of Human Rights. Thus, after the adoption of 2001 reforms the protection of fundamental rights and liberties became the rule, and their restrictions became an exception.
Finally the 2001 constitutional amendments promoted the civilianization process by eliminating or reducing certain military prerogatives written in the last paragraph of the transitional Article 15 and Article 118.
The third paragraph of the transitional Article 15 states that: “No allegation of unconstitutionality can be made in respect of laws, law-amending ordinances and acts and decisions taken in accordance with the Law numbered 2324 on the Law on the Constitutional Order.” This paragraph was eliminated from the Article.
The amendments to Articles 10, 90, 143, and 131 have enlarged the scope of fundamental rights and liberties and strengthened their safeguards and furthered civilianization efforts by eliminating certain prerogatives of the military from the Constitution. The previous text of Article 10 stated that: “all individuals are equal before the law without any discrimination irrespective of language, race, color, sex, political opinion, philosophical belief, religion, sect or any such considerations.” The 2004 amendment added a provision to Article 10 stating that: “women and men have equal rights. The State obliged to put this equality into effect.”
The State Security Courts, which were established by the constitutional amendment of 1973, and totally civilianized by the 1999 reforms, were abolished by the 2004 constitutional reforms. Thus, one of the important institutions inherited by the military government was eliminated from the constitutional order.
The 2004 reforms also abolished one of the minor military prerogatives granted by the 1982 Constitution. The Higher Educational Board established by the 1982 Constitution included a representative of the Chief of the General Staff among other civilian members. The 2004 reforms eliminated the military member from the Higher Educational Board.
The constitutional and legal order of Turkey has largely conformed to the basic requirements of a consolidated democracy. The major problem facing Turkey today is to deepen her democracy and to consolidate democratic consensus among different ethnic, linguistic, religious and cultural groups.
Article 76 of the Constitution regulating the eligibility conditions to be a deputy was amended in 2002 and 2006. The 2002 amendment involved changing the phrase ''conviction for ideological and anarchistic crimes'' with the phrase ''conviction for terror crimes'' as one of the reasons barring eligibility. Certainly the new terminology is much more concrete and specific, and it is therefore a positive step in the democratization process. The 2006 amendment lowered the age of eligibility from 30 to 25. In 2007, various articles of the 1982 Constitution were amended by the Grand National Assembly. The amendment package was submitted to referendum in accordance with Article 175 of the Constitution and adopted by a 70% majority. As mentioned above, the original text of Article 101 authorized the Grand National Assembly to elect the president for a seven-year term from among its own membership or from among the Turkish citizens who are eligible to be deputies. According to the same article, one must be over 40 years of age and have a higher educational degree in order to be eligible. The original text of the Article 102 provided for a qualified majority for the presidential election and stipulated that elections shall be concluded at most in four ballots.
According to the amended Article 101:
“The President of the Republic shall be elected by the people from among the Turkish Grand National Assembly members who are over 40 years of age and have completed their higher education or from among Turkish citizens who fulfill these requirements and are eligible to be deputies.
The president's term of office shall be five years. The President of the Republic can be elected to two terms at most. Nomination of a candidate for the Presidency of the Republic from among the members of the Turkish Grand National Assembly or from outside of the Assembly shall require a written proposal by 20 members of the Assembly. Furthermore, political parties with more than ten percent of the eligible votes in sum in the latest parliamentary elections can nominate a joint candidate. The President-elect, if a member of a party, shall sever his relations with his party and his status as a member of the Turkish Grand National Assembly shall terminate.”
According to the amended Article 102:
“The election of the President of the Republic shall be concluded within sixty days before the term of office of the incumbent President of the Republic expires; or within sixty days after the Presidency falls vacant for any reasons. In presidential elections conducted by universal suffrage, the candidate who receives the absolute majority of the valid votes shall be elected President of the Republic. If this majority cannot be obtained in the first ballot, the second ballot shall be held on the second Sunday following this ballot. The two candidates who receive the greatest number of votes in first ballot can run for the second ballot, and the candidate who receives majority of valid votes shall be elected President of the Republic. If one of the candidates who gains the right to appear on the second ballot dies or loses his or her eligibility, the second ballot shall be conducted by substituting for the vacant candidacy in accordance with the ranking on the first ballot. If only one candidate remains on the second ballot, this ballot shall be conducted as a referendum. If the candidate receives the majority of the valid votes, he or she shall be elected the President of the Republic. The term of office of the incumbent President of the Republic shall continue until the President-elect takes office.The procedures and principles concerning Presidential elections shall be regulated by law.”
The 2007 package shortened the legislative term from five years to four years and made a minor change in the Article 96 regulating the quorums required for the opening of the sessions and decisions. The original text of the Article 96 states that: “The Turkish Grand National Assembly shall convene with at least, one-third of the total number of members unless otherwise stipulated in the Constitution, and shall take decisions by an absolute majority of those present; however, the quorum for decisions can, under no circumstances, be less than a quarter plus one of the total number of members.” The 2007 package added a phrase to the Article clarifying that these quorums shall be valid for all affairs of the TGNA including elections.
Turkey spent most of 2007 and 2008 engaged in constitutional debate. Before the general elections of 2007, three major parties committed themselves to prepare a new and more democratic constitution. Although the parties promised to make extensive democratic amendments, the governing party—JDP—committed itself to making an entirely new constitution. The JDP established a committee, composed of six constitutional law professors, for the task. The committee was dubbed 'Committee of scholars' by the press. The draft was completed and submitted to the government after the 2007 general elections. As opposed to the present Constitution, the draft is a liberal and democratic text providing strong safeguards for all fundamental rights and liberties, and effective restrictions on state authority. The document is strongly inspired by EU norms, and international agreements on human rights, including the European Convention of Human Rights and the jurisprudence of the European Court of Human Rights and the International Covenant on Civil and Political Rights. Faced with strongly opposition from the major opposition parties, however, the JDP could not submit the draft to the parliament.
Both amendments were annulled by the Constitutional Court on 5th of June 2008 on the grounds that they were incompatible with the principle of secularism referred to in the unamendable Article 2. This decision gave rise to heated debates among constitutional lawyers. In fact, Article 148 of the Constitution restricts the powers of the Constitutional Court over the constitutional amendments solely to a procedural review, barring the Court from a substantive review. Furthermore, Article 148 limits the scope at procedural review to three points, namely the required quorums for the submission and adoption of the amendment proposal and the requirement that it shall be debated twice. Despite the explicit provision of Article 148, however, the Court annulled the amendments, arguing that a proposal incompatible with the first three unamendable articles of the Constitution shall be null and void, and therefore a substantive review was justified. This reasoning, besides being in open conflict with Article 148, also raises serious questions concerning the democratic legitimacy of judicial review.
In fact, the principle of the rule of law requires that all branches of government and all public authorities can only exercise powers explicitly granted to them by the Constitution and laws. Substantive review over constitutional amendments is not among the powers of the Constitutional Court granted to it by the Constitution. In addition, Article 6 of the Constitution on sovereignty states that “Sovereignty is vested fully and unconditionally in the nation. No person or agency shall exercise any state authority which does not emanate from the Constitution.” Moreover, Article 11, which regulates the supremacy of the Constitution, explicitly forbids the three branches of government to exercise unconstitutional power. According to this Article, “The provisions of the Constitution are fundamental legal rules binding upon legislative, executive and judicial organs, and administrative authorities and other institutions and individuals. Laws shall not be in conflict with the Constitution.” Thus, the recent ruling of the Constitutional Court not only contradicts the explicit provisions of the Constitution, but also makes the Court the ultimate possessor of the constituent power.
The constitutional amendment of 2010 consists of 30 articles and three provisional articles, It recognizes new rights such as the protection of personal data, the rights of children, and collective bargaining for public servants. It also strengthens the safeguards supporting fundamental rights and liberties by introducing positive discrimination measures for women, children, the disabled, and the elderly, and it enlarges the scope of certain rights and liberties such as the freedom of settlement and travel, and the freedom of political parties. In addition, it strengthens the safeguards for the rule of law by abolishing judicial immunities for certain administrative decisions such as those of the Supreme Military Council and the Supreme Council of Judges and Public Prosecutors. Moreover, the amendment contains a provision empowering the Constitutional Court to try the Chief of the General Staff and four force commanders, as well as the Speaker of the Grand National Assembly. Indeed, the original text of the Constitution had no provision indicating a competent court to try these persons for crimes connected with their duties. Since the amendment eliminates this ambiguity it indirectly strengthens the principle of the rule of law.
Finally and most importantly, the amendment contains provisions to restructure the Constitutional Court and the Supreme Council of Judges and Public Prosecutors in accordance with the requirements of the rule of law and plural democracy.
A. Strengthening the Rule of Law
The Abolition of Certain Judicial Immunities: The amendment introduces two important changes in article 125 of the Constitution regulating judicial review of the administration. One of these changes is a partial abrogation of the judicial immunity provided for the decisions of the Supreme Military Council. The other is to add a provision to article 125 of the Constitution stating that: “the judicial power is restricted by the review of legality of the administrative actions and decisions, and this power shall never be exercised as a review of opportunity”. The amendment introduces judicial review of the decisions of Supreme Military Council only in cases of dismissal from the Turkish Armed Forces. Therefore, this change may play a limited role in strengthening the rule of law. Adding a provision to article 125 restricting judicial review to review of legality simply repeats a well-known principle of administrative law. Thus it may only have a declarative rather than a constructive effect on the system of administrative justice. However, considering Turkish judiciary’s strong tendency to exercise the review of opportunity concerning legislative and executive acts, this attempt may be understandable.
The amendment also abolishes judicial immunity concerning the disciplinary decisions stated in article 129, and abrogates judicial immunity recognized in article 159 concerning the decisions of Supreme Council of Judges and Public Prosecutors. However, it limits such review only to those decisions concerning dismissal from the judiciary.
The amendment also abolishes provisional article 15 of the Constitution. This provision provides judicial immunity for the members of National Security Council, members of the Council of Ministers who served during the military regime -between September 12, 1980, and December 1983- members of the Consultative Assembly -one of the chambers of the Constituent Assembly that prepared the 1982 Constitution- and all bureaucrats who acted under the orders and instructions of military leaders. This has meant that no human rights violations perpetrated during the military regime could so far be investigated or tried. However, since the abolition of article 15 does not contain any concomitant provision concerning the effects of the statute of limitations, contrary to certain expectations, no trial or investigation shall be rendered possible. Nevertheless, the abrogation of this article may have a symbolic and moral effect on deepening democratic culture.
The amendment also introduces the institution of Ombudsman. In point of fact, this institution had already been established by an ordinary law in 2007. However this law was annulled by the Constitutional Court on the grounds that the establishment of this institution would require a constitutional basis. Although the reasoning of the Court is debatable, it obliged the legislature to adopt a specific provision concerning the Ombudsman. The establishment of an office of Ombudsman is among the obligations that Turkey has to fulfill in its quest for EU membership.
Nonetheless, the amendment may be criticized on two grounds. It states that the office of Ombudsman shall be attached to the Speaker of the Grand National Assembly. This provision may weaken the autonomy of the Ombudsman vis-à-vis parliament. Indeed, the autonomy of this institution must be guaranteed vis-à-vis all branches of the government and public administration. Moreover, the amendment states that the Ombudsman shall be elected by a two-thirds majority of the full membership of the TGNA. If this majority cannot be obtained on the first two rounds, on the third round a majority of the full membership of the Assembly shall be required. If such majority cannot be obtained, the fourth and the last round shall be held between the two candidates who win the most votes on the third round and a simple majority shall be sufficient on this fourth round. Thus, the amendment allows the Ombudsman to be selected by a simple majority, or in effect by the majority party in the Assembly, which may likewise damage its impartiality.
B. The Constitutional Court
The amendment aims at restructuring the Constitutional Court by increasing the number of its members, changing the method of their selection, their terms of office, their eligibility conditions, and the working methods of the Court.
Composition of the Court: The former article 146 of the Constitution states that the Constitutional Court shall be composed of 11 regular and 4 substitute members. It requires that a majority of the members be appointed by the President of the Republic from among the candidates nominated by the Court of Cassation (2 regular, 2 substitutes), the Council of State (2 regular 1 substitute), the Military Court of Cassation (1 regular), the Supreme Military Administrative Court (1 regular), the Court of Accounts (1 regular), the Council of Higher Education (1 regular) from among their own members. Three regular members and 1 substitute member shall be appointed by the President from among senior administrative officers and practicing lawyers.
The amended article states that the Constitutional Court shall be composed of 17 members. Three of its members shall be elected by the TGNA from among candidates nominated by the Court of Accounts (2 members), and presidents of the bar associations (1 member). This provision provides a limited degree of democratic legitimacy for the Constitutional Court. However, this may be considered insufficient given the composition of its counterparts in Western democracies. In fact in Germany, Hungary and Poland all members of the constitutional courts are elected by parliament. In Italy and Spain a strong majority of their members are likewise elected by parliament and the government. It must also be noted here that one-third of the members of the Constitutional Court were elected by the TGNA under the 1961 Constitution.
The amended article stipulates that the three members elected by TGNA will need to win a two-thirds majority of the Assembly’s full membership. If this majority cannot be obtained on the first round, on the second round an absolute majority shall be required, and if such a majority cannot be obtained on the third round a simple majority shall be sufficient. A qualified majority would have been preferable to ensure the impartiality of the Constitutional Court judges.
The amended article involves the President of the Republic in the election of the remaining 14 members of Constitutional Court. It states that the President shall exercise this power indirectly in the election of 10 members from among the three candidates nominated by the Court of Cassation (3 members), the Council of State (2 members), the Military Court of Cassation (1 member), the Supreme Military Administrative Court (1 member), and the Council of Higher Education (3 members). Four members shall be directly elected by the President from among senior administrative officers, lawyers, judges and public prosecutors of the first degree, and reporting judges of the Constitutional Court. The former provision of the Constitution authorized the President in the election of three regular members and one substitute member on his own discretion. Hence the amendment does not increase the number of members to be directly elected by the President, but adds the reporting judges of the Constitutional Court and all judges and public prosecutors of the first degree to this category. Considering the former group’s experience in constitutional justice, this may positively affect the quality of the Constitutional Court decisions.
Term of membership: The amendment limits the term of the Constitutional Court members to 12 years and introduces the principle of no reelection. Article 147 of the former Constitution had set the minimum age for members at 40 and provided that membership will continue until the compulsory retirement age of 65. Thus, a person who is elected to the Court at the age of 40 would be able to remain on the Court for 25 years. This rule made it difficult for the Court to reflect social changes. The term for Constitutional Court members is limited to 9 or 12 years in most democratic countries, without the possibility of reelection. Nevertheless, article 25 of the amendment states that the present substitute members of the Court would become regular members, and all present members would maintain their position until they reach the age of 65. In other words, the 12-year rule will not apply to them. This means that the composition of the Constitutional Court would change only gradually in the long term. It would have been preferable to apply the 12-year term to the present members as well, since it is generally accepted that no acquired rights can be claimed in connection with continuing public statues.
Constitutional Complaint: The amendment introduces a provision for lodging a constitutional complaint by adding a new paragraph to Article 148 of the Constitution on the competences of the Constitutional Court. The aim of constitutional complaint, as practiced in such countries as Austria, Germany, Spain, Switzerland, Belgium and Hungary, is to provide constitutional review over acts performed by a public authority. Thus, it expands the scope of constitutional justice by including in it all public acts, other than laws and decree-laws. Precisely for this reason, the introduction of constitutional complaint is opposed by the Court of Cassation and the Council of State in Turkey. They have argued that such a procedure would put the Constitutional Court above all other high courts. Nevertheless, the view shared by many circles in Turkey is that the introduction of constitutional complaint would assure the exercise of all public powers in accordance with the Constitution. The constitutional projects prepared by the TOBB (Union of Turkish Chambers of Commerce and Industry) in 2000, and the TBB (Union of Turkish Bar Associations) in 2001, and 2007 all advocated granting such competence to the Constitutional Court. In all these projects, the procedure remained limited to the rights recognized by the European Convention of Human Rights (ECHR).
It may be argued that the paragraph added to Article 90 of the Constitution in 2004 serves essentially the same purpose as the constitutional complaint clause in the new amendment. According to this paragraph: “in cases of conflict between laws and international agreements on fundamental rights and liberties that were duly put into effect, on the same question, provisions of international agreement shall have priority”. In view of this provision, all courts must apply this norm in all cases before them. Therefore, granting the Constitutional Court the competence to review constitutional complaints would not create a novel situation, but would only add to the workload of the Constitutional Court. It would certainly delay applications to the ECHR, since such applications are possible only after the exhaustion of all domestic legal remedies. However, since there is a strong feeling for constitutional complaint in parts of Turkish public opinion, the amendment will probably satisfy the public’s expectations.
Finally, the amendment aims at restructuring the Constitutional Court to be composed of a plenary and two chambers. Given the fact that the introduction of constitutional complaint will greatly increase the workload of the Court, such a change is clearly necessary. Indeed, a similar proposal was made in the TBB project.
The Closure of Political Parties: Article 8 of the proposal introduces some provisions intended to make the closure of political parties more difficult, thus enlarging the area of political party freedom, albeit rather timidly. However, the proposed change in Article 69 did not receive a sufficient majority in the plenary and was dropped out of the amendment package. Nevertheless, the last paragraph of Article 84 which had stated that “the status of a deputy who caused the permanent closure of his/her party by his/her own words and deeds would terminate with the publication of the closure ruling of the Constitutional Court in the Official Gazette” was repealed, thus modestly improving the right to organize political parties.
Moreover, the amendment changed the decisional quorum of the Constitutional Court for closure rulings from the three-fifths to the two-thirds of its full membership, thus making the closure of political parties more difficult.
The main deficiency of the amendment is that paragraph 4 of Article 68 of the Constitution, which contains a long and vague list of party bans, is preserved verbatim. No doubt, this provision gives the Constitutional Court a very wide latitude in party closure cases. It would have been much more preferable if the amendment had limited bans to those parties using or advocating violent methods as proposed by the Venice Commission in its 1999 report on the guidelines for the prohibition of political parties.
C. The Restructuring of the Supreme Council of Judges and Public Prosecutors (HSYK)
Under the original text of Article 159 of the Constitution, the HSYK is currently composed of the Minister of Justice, the Undersecretary of the Ministry of Justice, and the five regular and five substitute members appointed by the President of the Republic from among candidates nominated by the Court of Cassation and the Council of State. Thus, the composition of the Council and the method of election of its members were radically different from their counterparts in Western democracies where such bodies have a mixed composition of judges and non-judges. Judicial members of the councils are normally elected by their peers, representing all levels of the judiciary. Non-judicial members are normally elected by a qualified majority of parliamentary assemblies. Election by parliaments provide democratic legitimacy and accountability for the council. Such a mixed structure is also suggested by the reports prepared by the Council of Europe bodies such as the Venice Commission and the Consultative Council of European Judges (CCJE).
Article 19 of the amendment aims at restructuring the HSYK in accordance with these reports and Western models. According to this provision, the HSYK would be composed of 22 regular and 12 substitute members, and would function in three chambers. The Minister of Justice would be the chairman of the Council, and the Undersecretary of the Ministry of Justice an ex-officio member. The proposal authorizes the Court of Cassation, the Council of State, the Justice Academy, regular and administrative judges and public prosecutors of the first degree to elect 16 regular and 10 substitute members. Four members would be elected by the President of the Republic from among practicing lawyers, and university professors in the fields of law. Thus, the amendment restructures the Council by increasing the number of its members and providing representation of the entire judiciary rather than only of the two high courts. It also limits the powers of the Minister of Justice and the Undersecretary of the Ministry of Justice essentially to symbolic matters. In addition, it provides a separate budget and an autonomous secretariat and puts judicial inspectors under the control of the Council instead of the Ministry of Justice.
Despite these improvements, the amendment can be criticized on the grounds that it grants no role to the Turkish Grand National Assembly (TGNA) in the selection of the non-judicial members of the HSYK. Such a system would have been more in line with the widespread European practice, and would have bestowed greater democratic legitimacy upon the HSYK. The proposed model may also be criticized on the grounds that it increases the powers of the President of the Republic, already too broad for a parliamentary head of the state.
In general, it may be concluded that the proposal contains provisions that will strengthen fundamental rights and the rule of law. Furthermore, its provisions regarding the restructuring of the Constitutional Court and the HSYK may be expected to change, albeit to some extent, the present tutelary character of the higher judiciary. The amendment package is a significant step forward in the democratization process of Turkey. It should not, however, obviate the need for a totally new and truly democratic constitution.
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The texts of the constitution, laws, regulations and by-laws are available in the Official Gazette. The Official Gazette has been published in Turkey since 1927.
Legal sources are also available in Düstur, which includes laws. There are five editions of Düstur. The first edition includes the laws promulgated between 1863-1908. The second edition includes the laws promulgated between 1908-1920. Third edition includes the laws promulgated between 1923-1960. Fourth edition includes the laws promulgated between 1960-1961. The fifth edition includes the laws promulgated 1961-present.
Texts of all laws are also available in Başbakanlık Külliyatı in 6 volumes including an index.
TBMM Tutanak Dergisi includes proposals of all legislative bills including those for constitutional amendments. It also includes all debates made in the plenary session of the Assembly and Commissions concerning each bill.
Temsilciler Meclisi Tutanak Dergisi is a document including all debates made in the Constituent Assembly that prepared the 1961 Constitution. Similarly Danışma Meclisi Tutanak Dergisi includes all debates made in the Constituent Assembly that prepared the 1982 Constitution.
Constitutional texts and related legal documents are also available in published form:
l Atay Cevdet, Karşılaştırmalı Türk Anayasaları, Ekin Kitabevi Yayınları, Bursa, 1996.
l Batum Süheyl, Necmi Yüzbaşıoğlu, Anayasa Hukukunun Temel Metinleri, Beta Yayınları, İstanbul, 1997.
l Gözler Kemal, Türk Anayasaları, Ekin Kitabevi, Bursa, 1999.
l Karamustafaoğlu Tunçer, Mehmet Turhan, 1961-1982 T.C. Anayasaları: Karşılıklı Metinler, Savaş Yayınları, Ankara, 1993.
l Kili Suna, Şeref Gözübüyük, Türk Anayasa Metinleri, Türkiye İş Bankası Kültür Yayınları, Ankara, 1985.
l Kocahanoğlu Osman Selim, Gerekçeli ve Açıklamalı Anayasa, Temel Yayınları, İstanbul, 1993.
l Öztürk Kazım, Türkiye Cumhuriyeti Anayasası, Ajans Türk Matbaası, Ankara, 1966.
l Tanilli Server, Anayasalar ve Siyasal Belgeler, Cem Yayınevi, İstanbul, 1976.
Constitutional texts are also available at the following web addresses:
The decisions of the Constitutional Court are available in the Official Gazette, Anayasa Mahkemesi Kararlar Dergisi (which includes Constitutional Court decisions and published periodically) and at the official website of the Constitutional Court.
The decisions of the Court of Cassation/ The Supreme Court are available in Yargıtay Kararlar Dergisi and also available at the official website of the Court.
The decisions of the Council of State are available in Danıştay Dergisi and also available at the official website of the Council of State.
International treaties that Turkey is a party to are available online.
Other information concerning international relations of Turkey is available here.
Turkish Human Rights NGOs
Civil Society Development Center (Turkish and English)
Flying Broom (Turkish and English)
Helsinki Citizens Assembly (Turkish and English)
Human Rights Association (Turkish and English)
Initiative for Freedom of Expression (Turkish and English)
Women for Women’s Human Rights – New Ways (Turkish and English)
Prime Ministry Presidency of Human Rights
Human Rights Conventions
l Guncel Hukuk (In print since 2004)
l Hukuk Dunyasi
l Hukuk ve Adalet
l Humanite (Imprint since 2003)
l Insan Haklari Arastirmalari (Imprint since 2003)
l Legal Hukuk Dergisi (Imprint since 2003)
Text of the Constitution of Republic of Turkey (in English)