: A Guide to the Turkish Public Law Order and Legal Research
By Serap Yazici
Serap Yazici is Associate Professor of Constitutional Law at İstanbul Bilgi University. She received her Ph.D. and LL. M. degrees at the University of Ankara. Her previous research is about secularism both in the West and Turkey, problems of transition and democratic consolidation, civil and military relations in the processes of transition and democratic consolidation and political consequences of governmental systems. Currently she is working on the freedom of expression and democracy. Some of her works have been awarded by prominent institutions and foundations of Turkey; in 1986 she won the third prize in the academic competition organized by Dündar Soyer for the memory of Şefik Soyer on the topic of “Secularism from the Point of View of the Principles of Atatürk”; in 1987 she won the second prize in the academic competition organized by the Foundation of İnönü on the topic of “Secularism and İnönü”; in 1991 she won the first prize in the academic competition organized by the Foundation of Aybay for Legal Studies on the topic of “Secularism from the point of View of Human Rights”; in 1994 she won the first prize in the academic competition organized by the Cumhuriyet Newspaper on the topic of “Enlightenment Philosophy and the Turkish Revolution”; in 1998 she won the second prize in the academic competition organized by the Milliyet Newspaper on the topic of “The Evaluation of Presidential and Semi-Presidential Systems for Turkey”. Her impressive bibliography contains articles on constitutionalism, military, the rule of law and democracy, EU integration, democracy and reforms.
Published September 2006
Table of Contents
Introduction to the Constitutional and Legal Order of the Republic of Turkey
The Structure of the Turkish State, and Its Basic Institutions Under The System of the 1982
Fundamental Rights and Liberties
Other Institutions of the Republic of Turkey
The Constitutional Amendments of 1987, 1993 and, 1995
The Constitutional Amendments of 2001 and 2004
The Constitutional Reforms of 2004
References on Turkish Political Constitutional and Legal Order
Information Concerning the Sources of Turkish Law
Electronic Addresses of Various Organizations, Institutions, and Journals Concerning Law
Electronic Addresses of all Law Faculties in Turkey
The foundations of the Turkish legal system were laid in the early Republican period (1923-1930). This structure was maintained in general after the transition to a multi-party system and following the constitutions adopted in 1961 and 1982. Its historical background and structural development shall briefly be examined below.
The first constitutionalist movements were initiated in the 19th century in the period of the Ottoman Empire. The Empire originally was based on monarchy and theocracy. The adoption of Tanzimat (1839) and Islahat Edicts (1856) under the influence of Western liberalism slightly changed this nature by introducing certain rights and liberties for Ottoman subjects and enlarging their scopes including non-Muslims. 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. This period however did not last long because of the defeat of the Empire and its allies in the First World War. The efforts to establish a modern state were initiated in 1919 by a group of revolutionaries under the leadership of Mustafa Kemal Atatürk who was 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, and the abolition of the Sultanate in 1922, the founding of the Republic in 1923, the abolition of the Caliphate in 1924 were 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, previously adopted by the 1921 Constitution. It also established the principle of the supremacy of the constitution and granted all classical rights of 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 included in the Constitution as one of the basic characteristics of Turkish Republic. The efforts to promote secularism were not limited to the constitutional changes. Indeed, the reception of the Civil Code from Switzerland in 1926, the Penal Code from Italy, the adoption of a Commercial Code inspired by the German model consolidated secularism in both private and public law domains. The adoption of other reform laws furthered and deepened modernization and secularization, such as the adoption of the Latin alphabet, of the international numerals, the unification of the educational system, wearing of hats, closing of the Dervish Convents and Tombs, the abolition of the Office of Keper of Tombs and the abolition and prohibition of certain titles, the prohibition of the wearing of certain garments. Thus, the social and cultural life of the 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 type of democracy, with all its proper safeguards, while maintaining the modern and secular nature of the state.
The 1961 Constitution was prepared 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 by the establishment of the Constitutional Court, effectively restricted the powers of elected branches, and strengthened the safeguards for fundamental rights and liberties through the principle of the rule of law and the system of checks and balances inspired by separation of powers. 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 of the rights and liberties, and to weaken the role of the judiciary. The purpose of these amendments was to strengthen and restore the authority of the state and public order 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, and terrorist movements which threatened the public order even more seriously than before, as well as economic crisis, and the instability in government during the second half of the 1970’s. Finally, Turkish Armed Forces intervened once again 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. It exercised extraordinary powers until November 1983 when general elections were held. During this period they did not only prepare a new constitution but also adopted several hundred laws and law amending ordinances entirely restructuring the constitutional and legal order of Turkey before they withdrew from government. Thus, Turkey inherited an authoritarian legacy which could not easily be eliminated.
The 1982 Constitution states in Its Article 1 that: “The Turkish State is a Republic” Article 2 of this Constitution regulates fundamental characteristics of the Republic. According to this Article:
“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 and nation. 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 provides irrevocability for these three provisions. This Article 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 firstly 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 of the Constitution 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”. Although the Constitution included all fundamental rights and liberties which must be embodied in a contemporary democratic political order it also heavily restricted these rights and liberties by their related articles, and a general restrictive clause written in Article 13. Thus, contrary to the system of its predecessor, 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 by the reasons mentioned in their related articles, as well as by the reasons stated in Article 13. However, the Constitution contains an effective protective clause in its Article 15 concerning the restriction of rights and liberties under the circumstances of war, mobilization, martial law, and 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 under martial law or the state of emergency.
The legislative branch is regulated in the first chapter of the third part of the Constitution between the articles 75-100. 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 also 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 conditions of deputies. Thus,
“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 a permanent protection for deputies since this immunity shall not be removed by the parliament and its protection shall continue after the loss of parliamentary status. Freedom from arrest, on the other hand, provides a relative and a temporary protection for deputies since this immunity can be removed by the decision of parliament and its protection shall not continue after the loss of parliamentary status.
Article 87 regulates the powers and duties of the Grand National Assembly. According to Article 87 such powers include
“…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 shall exercise these powers through questions, -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 strengthened the presidential office within the executive branch and also 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 can not 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 would be sufficient. If this majority could not be obtained in the fourth ballot, the elections of the Grand National Assembly shall immediately be renewed.
Article 104 of the Constitution defines the powers of the President. This Article broadened and strengthened the powers of the President thus departing from the spirit of classical parliamentary. 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 shall suffice.
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 an independent branch. However, its independence was sufficiently guaranteed by the Constitution of 1961 for the first time. The 1982 Constitution basically maintains the same principle. 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 decision on 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 Council’s decisions. According to this paragraph: “There can be no appeal to any judicial instance against the decisions of the Council”. This provision does not only weaken 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 of the Constitution.
The Constitution regulates the supreme courts in its third part between the articles 146-160. These supreme courts are: 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 Its Articles 146-153. Article 148 of the Constitution defines the powers and duties of the Court. According to this Article:
“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 the 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. It 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 certain matters. According to Article 155:
“The Council of State is the last instance for reviewing decisions and judgements 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 firstly established by the 1961 Constitution. The Council was composed of civil and military members and authorized to make decisions concerning national security matters of the State. According to the original text of the 1961 Constitution civilian members of the Council had a majority and its decisions were not binding on the Council of Ministers. The constitutional amendments of the 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 and the binding effects of its decisions over the Council of Ministers. 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 it also reinforced 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 firstly established by the 1982 Constitution in its Article 108. According to this Article:
“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.”
Primary sources of Turkish law are the constitution, laws, law amending ordinances, international treaties, regulations, by-laws in a hierarchical structure. The procedures for their enactments, their legal effects, and the mechanism of judicial control over them shall briefly be examined below.
The constitution is the highest source of Turkish legal order because of the principle of the supremacy of the constitution. This principle was firstly adopted by the 1876 Constitution. It was maintained by the 1924, 1961 and 1982 Constitutions, and was reinforced by the 1961 Constitution by the establishment of 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 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 as stated in Article 2 of the Constitution, and the principle of the supremacy of the constitution as stated in Article 11 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 such as the adoption of the Latin alphabet, international numeral system, and the reception of the Civil Code. Therefore, Article 174 provides an effective protection for the secular characteristic of the Republic.
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 as stated in Article 148 is not compatible with the principle of the rule of law and the supremacy of the constitution.
It must be added here that just as its predecessor did, the Constitution of 1982 provides a judicial immunity for international treaties in its 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 shall be 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 Its 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 shall be submitted to the President of the Republic in accordance with the 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 because of time consideration. If the Grand National Assembly readopts the bill without a change the bill shall be promulgated by the President. Laws shall only be 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. Law amending ordinances adopted under normal circumstances as stated in Article 91, and law amending ordinances under circumstances of state of emergency and martial law as stated in the last paragraph of the Article 121 and second paragraph of Article 122.
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 regulates 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.”
As was mentioned above law amending ordinances are subject to constitutionality review of the Constitutional Court; however, law amending ordinances adopted under a state of emergency or martial law shall not be reviewed by the Court as stated in Article 148.
International treaties are another source of Turkish law stated in Article 90 of the Constitution. According to this Article:
“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.