Chapter 2 Constitutional Law

Prof Dr. Ergun Orbudun *

I. HISTORICAL BACKGROUND

Turkey has a prominent place among today's developing countries by the length of its experience, albeit an interrupted one with constitutional government. 'Constitutional government' in this context should be understood to mean a system in which political power is shared and reciprocal controls are legally established among different branches of government, in other words, a system of 'checks and balances.' In this sense constitutional government is not necessarily identical with 'constitutional democracy,' since the latter must, by definition, be based on effective and widespread political participation by the people.

Historically speaking, constitutional government preceded constitutional democracy both in Turkey and in the West. Of all non-Western nations, the Ottoman Empire made one of the earliest efforts to establish a constitutional government. The various edicts (Jerman) of the Reform period (notably, the Edict of Tanzimat of 1839, and that of Islahat of 1856) are usually considered the beginnings of the constitutionalist movement in the Empire. Legally, these documents were no more than a unilateral declaration and recognition by the Sultan of certain basic human rights for his subjects, including security of life, honour, and property, the abolition of tax farming (iltizam), fair and public trial of persons accused of crimes, and the equality of all Ottoman subjects irrespective of religion. No effective legal mechanism was established to ensure the enforcement of such provisions, which remained only morally binding upon the Sultan. Yet, one should not minimize the significance of the Reform rescripts in the constitutional development of the Ottoman Empire. They signified the first important break with the autocratic and absolutist political traditions of the Empire, and they paved the way for a still more important step, the promulgation of the first Ottoman Constitution in 1876.

The Ottoman Corlstitution of 1876, promulgated by Sultan Abdiilhamid II acting under the pressure of a small group of reformist bureaucrats, provided, for the first time, some constitutional mechanisms to check the absolute powers of the Sultan. The most important novelty of the Constitution was the creation of a legislative assembly at least partially elected by the people. The Ottoman legislature, called the 'General Assembly' tMeclis-i Umumf), was composed of two chambers: the Senate (Heyet-i Ayan), and the Chamber of Deputies (Heyet-i Mebusan).

* Bilkent University, Ankara.

T. Ansay and D. Wallace (eds.), Introduction to Turkish Law, 19-46. © 2005 Kluwer Law International. Printed in the Netherlands.

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Introduction to Turkish Law

The members of the Senate were to be appointed for life by the Sultan, while the deputies were to be elected by the people through indirect elections and a system of limited suffrage in which only property owners were allowed to vote. 1

The General Assembly was granted certain powers to enact laws and to exercise control over the executive. On both accounts, however, the ultimate authority rested with the Sultan, who thus remained the cornerstone of the constitutional system.

The 1876 Constitution was far from having established a 'parliamentary monarchy,' in which the substance of political power rests with the parliament and the monarchy's role is restricted to ceremonial and symbolic matters. Nevertheless, even this limited experiment in constitutional government proved too much for Abdtilharnid II, who dissolved the Chamber of Deputies in 1878 and returned to absolute rule. The influence of Western liberalism, however, continued and expanded under his authoritarian rule. Increasing numbers of students, intellectuals, bureaucrats, and army officers joined the opposition. Eventually, the Sultan was forced to restore the Constitution in 1908.

This period is called the 'Second Constitutionalist period' tlkinci Mesrutiyet) in Ottoman history. The restored Constitution of 1876 was substantially amended in 1909 to increase the powers of the legislature and to restrict those of the Sultan. Thus, a constitutional system finally came into being, more or less similar to the parliamentary monarchies of Western Europe. This liberal era did not last long, however, and it was quickly transformed into the dictatorship of the dominant party, the Union and Progress (jttihat ve Terakki). With the defeat of the Ottoman Empire-in World War I, the Ottoman government collapsed in fact, if not in theory; while the Istanbul government maintained a shaky existence during the Armistice years (1918-1922) under the control of the occupying armies of the Allies, a new governmental structure was developed in Anatolia by the nationalists resisting the occupation.

This era of 'National Liberation' is a most interesting period in Turkey's constitutional history and is full of constitutional innovations. Following the arrest and deportation by the Allied occupation forces of many deputies with nationalist sympathies and the consequent prorogation of the Chamber of Deputies in Istanbul on 18 March 1920, Mustafa Kemal called for the election of a new assembly 'with extraordinary powers' to convene in Ankara. This body, called the Turkish Grand National Assembly, was different from the Ottoman Parliament in that it held both legislative and executive powers. It was, in a real sense, a constituent and revolutionary assembly, not bound by the Ottoman Constitution.

The Grand National Assembly enacted a Constitution in 1921. This was a short (it contained only 23 articles) but very important document. For the first time, it proclaimed the principle of 'national sovereignty,' calling itself the 'only and true representative of the nation.' Legislative and executive powers were vested in the Assembly, as they had been since the opening of the Assembly on 23 April 1920. This was, undoubtedly, a republican form of government, since neither the principle

1. Indirect elections mean that the representatives are chosen not directly by the whole electorate but by a much smaller group of 'second electors' who are elected by the 'first electors' (i.e., the entire electorate). It was not until 1946 that 'direct' elections were introduced in Turkey. The system of limited suffrage was the prevalent European practice at the time of the 1876 Constitution.

of national sovereigr with a monarchical s not officially abolisl Greek armies. The s was officially proclai

The Turkish Rep 1921 was not meant a document dealing moment. The new C retained most of the of national sovereigr the 1921 Constitutioi cises the rights of so powers were concen cise its executive aut Council of Ministers time control the Con to dissolve the Asset

In classical consti unity or concentratk mentary governmem other. In practice, ho formed into the dOD posed of party or fra but politically mud Turkey. But in the si the authoritarian le reduced the Assemb

The Constitution this was a 'majorita eral' democracy base ian concept of deJIl( (which, in practice, absolute, indivisible the legislature repn of the legislature we in turn, limit the SOl nei ther necessary nc general will is al~

Needless to say, t ical concepts as the I on the French deme Turkish revolutionar 1924 was the culmil therefore, that the (J come from the suItA there would be no

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for life by the Sultan, while the direct elections and a system of ~ allowed to vote.'

rs to enact laws and to exercise rer, the ultimate authority rested of the constitutional system. ihed a 'parliamentary monarchy,' I the parliament and the monarmatters. Nevertheless, even this .ed too much for Abdulhamid II, d returned to absolute rule. The and expanded under his authorlectuals, bureaucrats, and army iltan was forced to restore the

ist period' (ikinci Me§rutiyet) in 6 was substantially amended in I to restrict those of the Sultan. ~, more or less similar to the par)eral era did not last long, hownship of the dominant party, the efeat of the Ottoman Empire-in I fact, if not in theory; while the ce during the Armistice years nies of the Allies, a new governionalists resisting the occupation. esting period in Turkey's constiations. Following the arrest and ly deputies with nationalist symmber of Deputies in Istanbul on ection of a new assembly 'with body, called the Turkish Grand n Parliament in that it held both sense, a constituent and revoluitution.

itution in 1921. This was a short cument. For the first time, it proling itself the 'only and true reptive powers were vested in the the Assembly on 23 April 1920. nment, since neither the principle

~ chosen not directly by the whole :lectors' who are elected by the 'first 946 that 'direct' elections were introLS the prevalent European practice at

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of national sovereignty nor an all-powerful Assembly could, in fact, be reconciled with a monarchical system. However, for tactical political reasons, the Assembly did not officially abolish the sultanate until after the final victory over the invading Greek armies. The sultanate was abolished on 30 October 1922, and the Republic was officially proclaimed about a year later, on 29 October 1923.

The Turkish Republic clearly needed a new Constitution. The Constitution of 1921 was not meant to be a constitution in the full sense of the world; rather, it was a document dealing only with the most urgent constitutional problems of the moment. The new Constitution adopted by the Grand National Assembly in 1924 retained most of the basic principles of the 1921 Constitution, notably the principle of national sovereignty. The Grand National Assembly was considered, as it was in the 1921 Constitution, 'the sole representative of the nation, on whose behalf it exercises the rights of sovereignty' (Art. 4). Theoretically, both legislative and executive powers were concentrated in the Assembly (Art. 5), but the Assembly was to exercise its executive authority through the President of the Republic elected by it and a Council of Ministers appointed by the President (Art. 7). The Assembly could at any time control the Council of Ministers and dismiss it, while the Council had no power to dissolve the Assembly to hold new elections.

In classical constitutional theory, this was an 'assembly government' based on the unity or concentration of the legislative and executive powers, rather than a parliamentary government where such powers are, to some extent, separated from each other. In practice, however, the theoretical supremacy of the assembly is often transformed into the domination of the executive, since normally the executive is composed of party or fraction leaders, while the legislature includes a numerically larger, but politically much weaker, group of back-benchers. This was also the case in Turkey. But in the single-party (1924-1946) and the multi-party (1946-1960) years, the authoritarian leadership of the chief executives and strong party discipline reduced the Assembly to a secondary role.

The Constitution of 1924 was undoubtedly a democratic constitution in spirit. But this was a 'majoritarian' or 'Rousseauist' concept of democracy, rather than a 'liberal' democracy based on an intricate system of checks and balances. The majoritarian concept of democracy holds that sovereignty is the 'general will' of the nation (which, in practice, has to be interpreted as the majority's will), and it is, as such, absolute, indivisible, and infallible. Within a representative system, this means that the legislature represents the true will of the nation. Hence, limiting the powers of the legislature would be tantamount to restricting the national will, which would, in turn, limit the sovereignty of the nation. Furthermore, such limitations would be neither necessary nor useful, since under the Rousseauist concept of democracy the general will is always right.

Needless to say, modem democratic theory no longer depends on such metaphysical concepts as the general will. Nevertheless, Rousseauist ideas had a lasting impact on the French democratic thought, through which they influenced the thinking of the Turkish revolutionaries. Nor should one lose sight of the fact that the Constitution of 1924 was the culmination of a long struggle against the sultans. It is not surprising, therefore, that the only perceived threat to national interests was that which could come from the sultans; once this threat was removed, the revolutionaries thought, there would be no need to protect the nation against its own true representatives.

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Introduction to Turkish Law

Evidently, the framers of the 1924 Constitution were not sufficiently aware that the tyranny of a majority was just as possible, and as dangerous, as a personal tyranny.

This rather simplistic view of democracy was present in many aspects of the 1924 Constitution: its creation of an all-powerful Assembly; its somewhat emotional and unnecessary distrust of the executive; its insufficient safeguards for the independence of the judiciary; and its failure to institute formal restraints on the legislative power, notably the lack of a judicial mechanism for reviewing the constitutionality of laws. Although the Constitution declared and enumerated the basic rights of Turkish citizens, it often stated that such rights would be enjoyed only 'within the limits stipulated by law.' Hence, the Assembly would be constitutionally free of restrict basic rights almost at will.

Lack of constitutional checks and balances did not pose a major problem during the single-party years, since a single-party system itself implies a heavy concentration of governmental authority. Furthermore, it can reasonably be argued that the modernizing reforms of the Kemalist era could hardly have been carried out by a political system where such authority was divided and dispersed. But, with the transition to a multi-party system in 1946, the weakness of the Constitution became obvious. The. unrestrained nature of the legislative power, coupled with an electoral system which produced lopsided majorities in the legislature, made it tempting for the leaders of the majority party to use their vast powers to suppress, or at least harass, the opposition. Thus, in the late 1950s, tension increased greatly between the governing Democrats and the opposing Republicans. Some overly authoritarian measures taken by the government in the spring of 1960 created widespread unrest in the country. Finally, on 27 May 1960, units of the Turkish armed forces overthrew the Menderes government.

In the interim period between the military takeover and the ratification of the 1961 Constitution, the country was ruled by the National Unity Committee (Milli Birlik Komitesi) composed of the 38 revolutionary officers. Under a Provisional Constitution adopted by the Committee, many provisions of the 1924 Constitution were amended or abrogated, and the Committee was vested with legislative and executive powers. However, most members of the National Unity Committee and of the armed forces generally, were intent on returning power to civilians once a new and democratic constitution was adopted. At first, the Committee charged a group of university professors with the preparation of a new constitution. When it was perceived that such a group would not be sufficiently representative of public opinion, the Committee decided, on 6 January 1961, to establish a Constituent Assembly (Kurucu Meclis) for the task.

The Constituent Assembly was composed of two chambers: the National Unity Committee and the House of Representatives. Some members of the latter were elected by the people through indirect elections, while others were chosen by various institutions, such as the Head of State, the National Unity Committee, the existing political parties (CHP and CKMP), the judiciary, universities, bar associations, labour unions, chambers of commerce and industry, farmers' associations, the press, etc. The Constitution of 1961 was prepared and adopted by this Assembly and finally came into force after being ratified by popular vote on 9 July 1961.

In many respects, the Constitution of 1961 represented a reaction to the severe problems observed in the functioning of the 1924 Constitution. Clearly, the new

Constitution was ins democracy. Instead ( assembly, a system 0 for minority rights w ter served by allowin all legitimate authori

The divergent phi trated by comparing Constitution of 1924 it exercised the right ject to no effectivec 1961 stated that 'th agencies in accordai This formula clearf legitimate authority, ernment also had a scribed to the philo: authority is legitima This is fundamental] will of the nation, d

Another good V81 of the 1924 and 19C As mentioned abovt sical civil liberties, i the limitations woul to restrict the pow~ pass laws which WOi Constitution of 196 effectively limitedt example, no law CQ pers and periodicall deposit, empower tl or provide for the s etc. (Arts. 22-25).) not infringe upon dI the Constitutional exercise of a right «

Such concepts .8 effective legal saf" also been introduce at greater length be; tant innovation of t Constitution woulcl could have passed ulated by the Cons

The 1961 Consl amended seven tin

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not sufficiently aware that the gerous, as a personal tyranny. ent in many aspects of the 1924 y; its somewhat emotional and t safeguards for the independnal restraints on the legislative reviewing the constitutionality numerated the basic rights of ld be enjoyed only 'within the ild be constitutionally free of

It pose a major problem during elf implies a heavy concentrareasonably be argued that the Ily have been carried out by a d dispersed. But, with the transs of the Constitution became iwer, coupled with an electoral gislature, made it tempting for ,owers to suppress, or at least 1 increased greatly between the lS. Some overly authoritarian 960 created widespread unrest urkish armed forces overthrew

ver and the ratification of the tional Unity Committee (Milli officers. Under a Provisional sions of the 1924 Constitution as vested with legislative and tional Unity Committee and of power to civilians once a new Committee charged a group of w constitution. When it was representative of public opin:ablish a Constituent Assembly

chambers: the National Unity e members of the latter were others were chosen by various Unity Committee, the existing universities, bar associations, mners' associations, the press, ~d by this Assembly and finally n 9 July 1961.

ented a reaction to the severe :onstitution. Clearly, the new

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Constitution was inspired by a pluralistic, rather than a majoritarian, concept of democracy. Instead of a constitutional structure based on an omnipotent legislative assembly, a system of checks and balances was introduced and powerful guarantees for minority rights were provided. It was thought that the public good would be better served by allowing for the free interplay of opposing forces than by concentrating all legitimate authority in a single branch of government.

The divergent philosophies of the 1924 and 1961 Constitutions can best be illustrated by comparing the different roles each assigned to the legislature. Under the Constitution of 1924, the Assembly was the sole representative of the national will; it exercised the rights of sovereignty on behalf of the nation, and, as such, was subject to no effective constitutional limitations. On the other hand, the Constitution of 1961 stated that 'the nation shall exercise its sovereignty through the authorized agencies in accordance with the principles laid down in the Constitution' (Art. 4). This formula clearly suggested that the legislature no longer had a monopoly on legitimate authority, in the exercise of which other branches and agencies of government also had a rightful share. It further suggested that the Constitution subscribed to the philosophy of limited government, which holds that the exercise of authority is legitimate only so long as it remains within the limits prescribed by law. This is fundamentally different from the idea of a legislature solely representing the will of the nation, defined as absolute, indivisible, and infallible.

Another good vantage point from which to compare the underlying philosophies of the 1924 and 1961 Constitutions are their different approaches to civil liberties. As mentioned above, the Constitution of 1924, while enumerating most of the classical civil liberties, gave the Assembly the exclusive right to define their limits. Since the limitations would be determined by law and there were few constitutional rules to restrict the powers of the Assembly, it was not impossible for the legislators to pass laws which would render civil liberties practically meaningless. By contrast, the Constitution of 1961 contained a much more detailed Bill of Rights. Its provisions effectively limited the scope of legislative action with respect to civil liberties. For example, no law could impose press censorship, subject the publication of newspapers and periodicals to the requirements of prior permission or to the payment of a deposit, empower the administrative authorities to close newspapers and periodicals, or provide for the seizure or confiscation of printing shops and printing equipment, etc. (Arts. 22-25). Furthermore, the 1961 Constitution stipulated that the law could not infringe upon the essence of any right or liberty (Art. 11). This was construed by the Constitutional Court as prohibiting any infringement which would make the exercise of a right or liberty impossible or particularly difficult.

Such concepts as limited government and liberal democracy would have had no effective legal safeguards had the judicial review of the constitutionality of laws not also been introduced by the 1961 Constitution. We shall dwell upon judicial review at greater length below. It suffices to note here that this was perhaps the most important innovation of the 1961 Constitution. Without such review, the supremacy of the Constitution would have lost much of its practical significance since the legislature could have passed unconstitutional laws without obtaining the special quorum stipulated by the Constitution for constitutional amendments.

The 1961 Constitution remained in effect for 19 years. During this period, it was amended seven times, one of which was found procedurally unconstitutional by the

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Introduction to Turkish Law

Constitutional Court (that by the Law No. 1188). Of the remaining six amendments, those of 1971 and 19732 were particularly important in their nature and scope. The 1971 amendment changed 35 articles and added nine transitional articles. Both the 1971 and 1973 amendments took place during the interim period of military intervention which forced the government to resign, and installed a technocratic or 'above-party' government. The intervention did not lead, however, to the repeal or suspension of the entire Constitution, or the dissolution of the Parliament.

Towards the end of the 1970s, the Turkish political system faced an increasingly serious crisis brought about by political polarization, violence, and terrorism. This instability led to the military takeover of 12 September 1980, which created a 'National Security Council' headed by General Kenan Evren, then the Chief of the General Staff. The five-member Council also included the Commanders of the Army, Navy, Air Force, and Gendarmerie. General Evren assumed the Presidency of the State, and the Council undertook the functions of the Turkish Grand National Assembly.' The Grand National Assembly and political parties were abolished by subsequent decrees of the Council. Although the 1961 Constitution was not abrogated in its entirety, the Law on the Constitutional Order (Art. 6) stipulated that the Council could amend the Constitution by its laws, declarations, and decisions. The same law also stated that no plea of unconstitutionality could be put forward with respect to the laws, declarations, and decisions made by the Council (Art. 4).

From the earliest days of its rule, the National Security Council publicly committed itself to the restoration of the democratic system. To this end, a law passed on 30 June 1981, Kurucu Meclis Hakkinda Kanun+ provided for a Constituent Assembly to prepare a new Constitution, electoral law, and political parties law, as well as to perform normal legislative functions such as making, amending, or repealing laws. The Constituent Assembly was to be composed of the National Security Council and a 160-member Consultative Assembly. All members of the Consultative Assembly were directly or indirectly chosen by the Council, which also retained the final say in the making of the Constitution and other legislation. Thus, the project of the Constitution passed by the Consultative Assembly could be amended at will by the Council. The Council could similarly amend or reject other legislative bills passed by the Consultative Assembly.

The Constituent Assembly also passed a law on the submission to popular referendum of its Constitutional Project' The referendum took place on 7 November 1982, and the Project was adopted by the affirmative votes of over 91 percent of the voting electorate." General Evren was elected the President of the Republic in the same referendum in accordance with the Transitional Article 1 of the Constitution. As a further crucial step towards the restoration of the civilian authority, elections for the Grand National Assembly took place on 6 November 1983. Simultaneously

2. Law No. 1488 of 22 Sept. 1971 and Law No. 1699 of 20 March 1973.

3. See Anayasa Duzeni Hakkinda Kanun-Law on the Constitutional Order, Law No. 2324, 28 Oct. 1980, R.G. No. 17145; and Milli Giivenlik Konseyi Hakkinda Kanun-Law on the National Security Council, Law No. 2356,12 Dec. 1980, R.G. No. 17188.

4. Law on the Constituent Assembly, Law No. 2845, R.G. No. 17386.

5. Law No. 2707.

6. R.G. 20 Nov. 1982, No. 17874.

with the convening of I cers, the legal existence transformed into a 'Pre! and 3 of the Constituti security Council perio Council Law, and the ( tive, thus started a new

II. GENERAL CH 1982 CONSTl

Just as the 1961 Const predecessor, so is the Council made it clear elected civilian author return to the status q democracy in such a afflicted the country il continued involvemen ties' law, and electors extent to which Turke its earlier democratic

The framers of the that the political crisis more specifically, to t uted to what was perc and its equally excess underlying objective ( and strong executive.' its predecessor can be accomplished will be

Another major fer long period of transit tioned for a period 0 solved. During the si Assembly, the Presid the Assembly, in whi by a three-fourths Iru

Other transitional some former politici deputy leaders, secre the two major parties ernment party and th the Constitution). Th on account of crimes ban, which, in effec

lW

e remaining six amendments, n their nature and scope. The transitional articles. Both the erim period of military inter:i installed a technocratic or ad, however, to the repeal or n of the Parliament.

system faced an increasingly violence, and terrorism. This mber 1980, which created a 1 Evren, then the Chief of the ded the Commanders of the ren assumed the Presidency of f the Turkish Grand National cal parties were abolished by il Constitution was not abroder (Art. 6) stipulated that the clarations, and decisions. The ity could be put forward with by the Council (Art. 4).

:curity Council publicly comn. To this end, a law passed on

provided for a Constituent w, and political parties law, as ; making, amending, or repealosed of the National Security 11 members of the Consultative ouncil, which also retained the egislation. Thus, the project of y could be amended at will by r reject other legislative bills

te submission to popular referm took place on 7 November votes of over 91 percent of the esident of the Republic in the 1 Article 1 of the Constitution. :he civilian authority, elections rvember 1983. Simultaneously

:0 March 1973.

nstitutional Order, Law No. 2324, iseyi Hakkinda Kanun-Law on the 0, RG. No. 17188.

No. 17386.

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with the convening of the newly elected Assembly and the election of its own officers, the legal existence of the National Security Council came to an end, and it was transformed into a 'Presidential Council' as provided for by the Transitional Articles 2 and 3 of the Constitution. At the same time, three important laws of the National Security Council period (the Law on the Constitutional Order, the National Security Council Law, and the Constituent Assembly Law) automatically ceased to be effective, thus started a new phase in the constitutional development of Thrkey.

II. GENERAL CHARACTERISTICS OF THE 1982 CONSTITUTION

Just as the 1961 Constitution was a reaction to certain problems encountered by its predecessor, so is the 1982 Constitution. From the outset, the National Security Council made it clear that eventually it intended to return power to democratically elected civilian authorities. It made equally clear, however, that it did not intend a return to the status quo ante. Rather, the Council wished to restructure Turkish democracy in such a way so as to prevent the recurrence of the crisis that had afflicted the country in the late 1970s. It hoped that this would make the military's continued involvement in politics unnecessary. The new Constitution, political parties' law, and electoral law reflect these concerns of the military and indicate the extent to which Turkey's new attempt at democracy is intended to be different from its earlier democratic experiences.

The framers of the 1982 Constitution approached their task with the assumption that the political crisis of the 1970s was due to the erosion of the state authority and, more specifically, to the weakness of the executive branch. This, in turn, was attributed to what was perceived as the excessive permissiveness of the 1961 Constitution and its equally excessive limitations on the exercise of the executive authority. The underlying objective of the framers of the Constitution was, therefore, a 'strong state and strong executive.' Almost every single departure of the 1982 Constitution from its predecessor can be construed in these terms. The ways in which this objective was accomplished will be discussed in the sections below.

Another major feature of the 1982 Constitution is its provision for a relatively long period of transition to complete normalcy. The new Presidential Council functioned for a period of six years, at the end of which time it was automatically dissolved. During the six-year period following the convening of the Grand National Assembly, the President had the right to veto constitutional amendments passed by the Assembly, in which case the Assembly could override the presidential veto only by a three-fourths majority of its full membership (Transitional Art. 9).

Other transitional measures included various bans on the political activities of some former politicians. The Constitution imposed a ten-year ban on the leaders, deputy leaders, secretaries-general, and the members of the executive committees of the two major parties, the Justice Party and the Republican People's Party ('the government party and the main opposition party on 11 September 1980: as described by the Constitution). Those parties against which a criminal proceeding was established on account of crimes specified in the Constitution were also constrained by the same ban, which, in effect, disqualified the former leadership of the National Salvation

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Introduction to Turkish Law

Party and the Nationalist Action Party. This ten-year ban forbade the politicians concerned to form political parties, to become members in political parties, and to be nominated for the Turkish Grand National Assembly (TGNA) or local government bodies. A less severe ban disqualified the former members of Parliament belonging to those same parties from forming political parties or becoming members in their central executive bodies for five years. They were not disqualified, however, from running for the TGNA or election to that body (Transitional Art. 4). These bans were repealed by the constitutional referendum of 6 September 1987. The Electoral Law and the Law on Political Parties also contained many transitional provisions that were applicable only to the first TGNA elections held on 6 November 1983.

The 1982 Constitution has so far been amended several times. In the amendment dated 17 May 1987, four articles were changed, the most important of which was the change in the constitutional amendment procedure itself, as will be spelled out below. Other changes involved the lowering of the voting age from the completion of age 21 to the beginning of age 20 (Art. 67), increasing the number of the TGNA members from 400 to 450 (Art. 75), and submitting the repeal of the ban on the political activities of former politicians to a constitutional referendum (Transitional Art. 4). The second amendment took place on 8 July 1993, and repealed the state monopoly on radio and television broadcasting. Finally, the amendments adopted on 23 July 1995 repealed the bans on political activities of trade associations, foundations, cooperatives and public professional organizations, and allowed political cooperation between political parties and such civil society institutions. They lowered the voting age to 18, increased the number of the TGNA members to 550, gave the right to vote to Turkish citizens living abroad, recognized the right to unionize (but not the right to strike or the right of concluding collective agreements) for civil servants, allowed the instructors and students in the institutions of higher education to become members in political parties, lowered the age at which one can become a party member from 21 to 18, and permitted political parties to establish women's and youth branches, foundations, as well as organizations in foreign countries. The circumstances under which the TGNA membership is lost were also changed. Thus, changing one's political party is no longer a cause for the loss of the TGNA membership. Similarly, if a political party is outlawed by the Constitutional Court on account of its anticonstitutional activities, only those members of parliament who caused such a decision by their own words or deeds would lose their membership, but the status of other party deputies would remain unaffected.

The fourth amendment adopted on 18 June 1999 eliminated the military judges in the State Security Courts. The fifth amendment permitted the privatization of public economic enterprises and opened the way to international arbitration in disputes involving a foreign party. The sixth and the most far reaching amendments to the Constitution were adopted on 3 October 2001. The amendments involved 34 articles of the Constitution. While some of these amendments deal with matters of detail or are simply changes in language which did not create a significantly different legal situation, others are in the nature of genuine democratic reforms.

Under one of these amendments, Article 13 ceased to be the general restrictive clause and became a general protective clause. The old text stated that the 'exercise of the fundamental rights and liberties may be restricted by law, in conformity with the letter and spirit of the Constitution, with the aim of safeguarding the integrity of

the State comprisir national security, p lie health and alSI Constitution'. In tI been eliminated at restricted only in c of the Constitutior law shall be in COl fere with the esse Constitution), Togi not be in conflict v in the original texi of Human Rights)

Article 19 is an the article such Pl and maximum fif period for collecti days. 111us, confo has been assured.

Articles 26 anc language'. In fae audio-cassettes si a positive step to used languages.

Article 38 is a nent threat of wa with the Protocol gory of terror cri abolished by the no. 6 has been as

Article 69 is aJ original text of th anti constitutional concept of focus appreciation. The tutional activities explicitly or imp executive commi said party organs ble for the Const sidies instead 0: amendment to A prohibition judg

Article 118 Council, includi members. Thus, majority. The teo

:.aw

Ian forbade the politicians con: in political parties, and to be , (TGNA) or local government mbers of Parliament belonging or becoming members in their ot disqualified, however, from itionalArt. 4). These bans were mber 1987. The Electoral Law my transitional provisions that don 6 November 1983.

everal times. In the amendment lost important of which was the : itself, as will be spelled out .oting age from the completion asing the number of the TGNA ie repeal of the ban on the polit~ferendum (Transitional Art. 4). md repealed the state monopoly the amendments adopted on f trade associations, foundations, and allowed political cooperaI institutions. They lowered the . members to 550, gave the right the right to unionize (but not the

agreements) for civil servants, IS of higher education to become :h one can become a party mem:0 establish women's and youth foreign countries. The circumvere also changed. Thus, changloss of the TGNA membership. nstitutional Court on account of of parliament who caused such

their membership, but the status

9 eliminated the military judges ermitted the privatization of pubernational arbitration in disputes far reaching amendments to the amendments involved 34 articles nts deal with matters of detail or ite a significantly different legal :ratic reforms.

ised to be the general restrictive old text stated that the 'exercise icted by law, in conformity with

11 of safeguarding the integrity of

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the State comprising its territory and the nation, national sovereignty, the Republic, national security, public order, public safety, public interest, public morals and public health and also for special reasons designated in the relevant articles of the Constitution'. In the new text such references to general causes of restriction have been eliminated and it was stipulated that fundamental rights and liberties may be restricted only in conformity with special reasons designated in the relevant articles of the Constitution. It was also stated that such restrictions as may be imposed by law shall be in conformity with the principle of proportionality and shall not interfere with the essence of a right or liberty (a guarantee which existed in the 1961 Constitution). Together with such improvements, the guarantee that restrictions shall not be in conflict with the requirements of the democratic social order (which existed in the original text of the 1982 Constitution as well as in the European Convention of Human Rights) was also maintained.

Article 19 is amended to shorten pre-trial detention periods. In the original text of the article such periods were maximum forty eight hours for the individual crimes and maximum fifteen days for the collectively committed crimes. In the text, the period for collectively committed crimes has been shortened to a maximum of four days. Thus, conformity with the jurisprudence of European Court of Human Rights has been assured.

Articles 26 and 28 are amended to delete the phrase 'the use of legally prohibited language'. In fact, there has been no such restriction on the printed media and audio-cassettes since 1991. However, the deletion of such phrases can be considered a positive step toward the full legalization of the use of Kurdish and other locally used languages.

Article 38 is amended to limit the death penalty to situations of war or the imminent threat of war and to terror crimes. The first two exceptions are in conformity with the Protocol no. 6 to the European Convention of Human Rights, but the category of terror crimes is not. Death penalty for terror crimes has more recently been abolished by the law dated 3 August 2002. Thus, full conformity with the Protocol no. 6 has been assured.

Article 69 is amended to make the prohibition of political parties more difficult. The original text of the 1982 Constitution stipulated that parties which have become 'focus' anticonstitutional activities shall be prohibited by the Constitutional Court, but left the concept of focus undefined thus giving the Constitutional Court a large margin of appreciation. The amended text stipulates that a party becomes a focus of anticonstitutional activities if such acts are intensely committed by its members and if these are explicitly or implicitly endorsed by its general congress, or its leaders, or its central executive committee, or its parliamentary group, or if such acts are committed by the said party organs themselves. Another amendment to the same article makes it possible for the Constitutional Court to deprive the party totally or partially of the state subsidies instead of prohibiting it, depending on the gravity of violations. A related amendment to Article 149 stipulates that in party prohibition cases the quorum for a prohibition judgment shall be the three-fifths of the Court, instead of simple majority.

Article 118 is amended to change the composition of the National Security Council, including the deputy prime ministers and the minister of justice as ex-officio members. Thus, civilian members of the Council have obtained a clear numerical majority. The text of the article was also amended to underline the advisory character

27

28

Introduction to Turkish Law

of the Council decisions. As in the original text of the Constitution, the Council of Ministers remains responsible to the Grand National Assembly for ensuring national security and the preparation of the armed forces for the country's defence

Finally, the original text of the Constitution (provisional Art. 15, para. 3) had precluded the Constitutional Court from reviewing the constitutionality of laws passed during the National Security Council regime (1980-83). The amendment removed this restriction on the review powers of the Constitutional Court, thus opening the way for constitutional review over more than 600 laws passed by the Council.

The seventh amendment adopted on 27 December 2002 changed the eligibility conditions for membership in the TGNA. While the previous text barred eligibility for those sentenced for 'anarchic and ideological crimes' (a category too vague and difficult to define), the new text replaced it with 'terror crimes'. Another change involves by-elections for the TGNA, according to which if an electoral constituency loses all its members, by-elections are to be held in ninety days. The newest amendment of 7 May 2004, among others, confirms the equal rights of men and women and repeals the death penalty.

The principal characteristics of the state have been described in Articles 1 through 3 of the Constitution. Article 1 states that 'the State of Turkey is a Republic.' Article 2 describes the characteristics of the Republic as '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 Atatiirk nationalism, and based on the fundamental principles set forth in the Preamble.' Finally, according to Article 3, 'the Turkish State is an indivisible whole with its territory and nation. Its language is Turkish. Its flag is composed of a white crescent and star on a red background, in the manner prescribed by law. Its national anthem is the Independence March. Its capital is Ankara.'

Provisions contained in the first three articles are specially protected by Article 4 of the Constitution, according to which the provisions of Articles 1, 2, and 3 shall not be amended, nor shall their amendment be proposed. Previously, the only irrevocable constitutional norm was that on the republican form of the state. It thus appears that the scope of such norms has been substantially enlarged by the 1982 Constitution. The remaining provisions of the Constitution can be amended in accordance with the following procedure as set forth in the amended Article 175: Constitutional amendments shall be proposed in writing by at least one-third of the total number of members of the TGNA. Proposals for amendment shall be debated twice in the TGNA. As for the quorum required for the adoption of the proposal, the Constitution foresees two possibilities: If the proposal is adopted by at least three-fifths but less than two-thirds majority of the full membership of the TGNA, the President of the Republic may either return the bill to the TGNA for reconsideration, or submit it to a mandatory referendum. If the TGNA adopts the proposal by at least two-thirds majority during its first debate, the President may either ratify it, or send it back to the TGNA for reconsideration, or submit it to an optional referendum. If the TGNA readopts the bill by at least two-thirds majority upon reconsideration, the President still has the option of submitting it to a referendum. In constitutional referenda (mandatory or optional) more than half of the valid votes cast will suffice for the adoption of the amendment. Thus, the amendment made in 1987 facilitates, to a certain degree, constitutional change, and broadens the scope of constitutional referendum.

Now, a few wore merated in Article ~

A. Nationalism

The Constitution s nationalism.' Taken indivisible whole \'I the state is the Tw either with total inti human component visibility of the stl movements. Natioi Constitution which pride, national joy ings, and burdens, mation of the sub; not necessarily on and language, but particularly on the cant in this regard to differentiate it f racism, chauvinist

B. Democratic,

The democratic c other articles of specifically dealt principle of free Constitution (Art equal, secret, dire ballots shall be l beginning of age

A system of jl the Constitution empowered to ta elections, to revk toral matters, 8l Parliament. The: of the members I and five by the I own members. 1 in all provincia composed of lo

.aw

e Constitution, the Council of lssembly for ensuring national e country's defence

ionalArt. 15, para. 3) had preonstitutionality of laws passed 83). The amendment removed tional Court, thus opening the 's passed by the Council.

r 2002 changed the eligibility previous text barred eligibility nes' (a category too vague and error crimes'. Another change ich if an electoral constituency nety days. The newest amendpial rights of men and women

escribed in Articles 1 through 3 lurkey is a Republic.' Article 2 lemocratic, secular, and social 1 the concepts of social peace, I rights, committed to Atatiirk es set forth in the Preamble.' 1 indivisible whole with its tercomposed of a white crescent ed by law. Its national anthem

.pecially protected by Article 4 of Articles 1, 2, and 3 shall not Previously, the only irrevocable )f the state. It thus appears that rged by the 1982 Constitution. mended in accordance with the cle 175: Constitutional amende-third of the total number of shall be debated twice in the

• f the proposal, the Constitution by at least three-fifths but less he TGNA, the President of the econsideration, or submit it to a sal by at least two-thirds majorratify it, or send it back to the referendum. If the TGNA readonsideration, the President still onstitutional referenda (mandat will suffice for the adoption of

facilitates, to a certain degree, stitutional referendum.

Constitutional Law

Now, a few words are in order on the principle features of the Republic as enumerated in Article 2 of the Constitution.

A. Nationalism

The Constitution stipulates that the Republic of Turkey is 'committed to Atatiirk nationalism.' Taken together with Article 3 which states that the Turkish state is an indivisible whole with its territory and nation, this means that the human element of the state is the Turkish nation. As such, the idea of a nation-state is incompatible either with total integration with a supra-national entity or a theocratic state where the human component is a religious community, not a nation. At the same time, the indivisibility of the state with its territory and nation is a clear ban against separatist movements. Nationalism has been given a lengthy definition in the Preamble of the Constitution which states that 'all Turkish citizens are united in national honour and pride, national joy and grief, their rights and duties towards the national entity, blessings, and burdens, and in every manifestation of national life.' This is a clear confirmation of the subjective view of the nation which presupposes that a nation is based, not necessarily on such 'objective' shared characteristics as race, ethnicity, religion, and language, but on the shared sentiments and commitments of their members and particularly on their will to live together under a common government. Also significant in this regard is the fact that the Constitution uses the term 'Atatiirk nationalism' to differentiate it from some other versions of nationalism. This implies a rejection of racism, chauvinism, and irredentism, which have no room in Kemalist nationalism.

B. Democratic State

The democratic character of the Republic is stated not only in Article 2, but in many other articles of the Constitution. Two essential features of a democratic system, specifically dealt with by the Constitution, are worth mentioning here. One is the principle of free and competitive elections based on universal suffrage. The Constitution (Art. 67) provides that elections shall be conducted on the basis of free, equal, secret, direct, and universal suffrage and that the counting and sorting of the ballots shall be carried out in public. The Constitution sets the voting age as the beginning of age 18 .

A system of judicial control of the electoral process has also been established by the Constitution (Art. 79). A Supreme Board of Election (Yiiksek Secim Kurulu) is empowered to take all necessary measures to ensure the fair and orderly conduct of elections, to review and decide upon all complaints of illegal practices regarding electoral matters, and to ratify the election credentials of the elected members of Parliament. The Board is composed of seven regular members and four alternates. Six of the members are elected by the plenary session of the Court of Cassation (Yargztay) and five by the plenary session of the Council of State (Danz§tay) from among their own members. There are also electoral boards with similar, but more limited, powers in all provincial (il) and country (il~e) seats. The provincial electoral boards are composed of local judges and the country boards are presided over by such judges.

29

30

Introduction to Turkish Law

While the Constitution does not subscribe to any particular electoral system, the amendment adopted in 1995 requires that electoral laws reconcile the principles of fair representation and stability in government (Art. 67). The present electoral system under the Law on the Election of Deputies will be discussed below.

Another essential feature of a democratic system of government is the existence of more than one freely organized political party. Modern democracy is party democracy. Parties structure the vote and make political representation possible by aggregating the infinite variety of interests existing in modern societies into a few discernible policy alternatives. Yet, reference to political parties in constitutions is a relatively recent phenomenon. The Turkish Constitution of 1961 and 1982 follow the example of the post-World War II European constitutions by recognizing the right to organize political parties and by explicitly stating that political parties, whether in power or in opposition, are indispensable elements of democratic political life. Parties can be founded without prior permission and operate freely within the limits prescribed by the Constitution (Art. 68).

Freedom of political organization and activity is not without limits under the Constitution. Political parties have to conform to the principles of the territorial and national integrity of the State, human rights, national sovereignty, and the democratic and secular Republic. No party shall be formed with the aim of establishing the sovereignty of a particular class or group, or a dictatorship of any kind. Parties that fail to conform to these restrictions are to be permanently closed by the Constitutional Court (Art. 69).

C. Human Rights

The Constitution of 1982 recognizes all basic human rights commonly found in liberal democratic constitutions, such as freedoms of speech, press, religion, association, assembly, travel and communications; due process oflaw; right to privacy; freedom from unwarranted searches and seizures; freedom from arbitrary arrests; right to property, and so on. The manner in which such basic rights are regulated is somewhat more restrictive, however, than in the 1961 Constitution. Thus, restricting circumstances are more numerous and more explicitly stated. Although, as a rule, the exercise of a basic human right can be restricted only on the basis of a court decision, the Constitution generally allows administrative agencies to take such measures in urgent cases.

An important problem area for human rights derives from restrictions imposed on such rights during martial law and state of emergency. Articles 121 and 122 state that, in both cases, 'the manner in which freedoms are to be restricted or suspended ... shall be regulated by law.' Thus, the legislature is given broad discretionary powers to determine the nature and extent of restrictions during such periods. The only limitation on the legislature's discretion in this regard is provided by Article 15 of the Constitution, which states:

'In times of war, mobilization, martial law, or state of emergency, the exercise of fundamental rights and freedoms can be partially or entirely suspended to the extent required by the exigencies of the situation, or

measures may t provided for tIH national Jaw are the first paragra physical and sp occur through 11 no one shall be and opinions, D ments shall not] so proven by a (

Thus, even under maJ1 of human rights has·1)I bility, however, is c~ tially lead to excessra of emergency. Articl&t! periods are not subjecl

D. Secularism

Secularism has beetf>! Constitution of 1924,,_ as the state religion.~c~ introduced as one dttll

In the West, secuII The K.emalist concejJ state control over . and the state wo affairs, since Islam political ideology, 41 hands of communal 011 inevitably retain its hG.

The Constitution of secularism. While it clf! freedom of faith and t1 Affairs (Diyaneti§leriJ The Constitution (Art.. reform laws Unkilapj principles of Kemalist: and civil marriage, ad! introducing the hat, ek hibiting the wearing oj provision of the Consti tutional the enumerate Republic. In other WI Constitutional Court.

,aw

iarticular electoral system, the LWS reconcile the principles of 57). The present electoral syse discussed below.

)f government is the existence

Modern democracy is party ical representation possible by n modern societies into a few cal parties in constitutions is a m of 1961 and 1982 follow the ons by recognizing the right to at political parties, whether in ; of democratic political life. operate freely within the limits

. not without limits under the principles of the territorial and al sovereignty, and the demo:d with the aim of establishing ictatorship of any kind. Parties e permanently closed by the

ian rights commonly found in speech, press, religion, associass oflaw; right to privacy; freexn from arbitrary arrests; right iic rights are regulated is someConstitution. Thus, restricting r stated. Although, as a rule, the only on the basis of a court strative agencies to take such

es from restrictions imposed on Articles 121 and 122 state that, ) be restricted or suspended ... ven broad discretionary powers ing such periods. The only lims provided by Article 15 of the

r state of emergency, the an be partially or entirely ncies of the situation, or

Constitutional Law

31

measures may be taken in contradiction to the constitutional guarantees provided for them, on the condition that obligations derived from 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 physical and spiritual entity shall not be violated except where deaths occur through lawful acts of warfare and execution of death sentences; no one shall be compelled to reveal his religion, conscience, thoughts and opinions, nor be accused on account of them; crimes and punishments shall not be made retroactive, nor shall anyone be held guilty until so proven by a court judgment.'

Thus, even under martial law or state of emergency, the inviolability of a 'core area' of human rights has been guaranteed by the Constitution. This guarantee of inviolability, however, is complicated by another constitutional provision which may potentially lead to excessive restrictions on human rights in times of martial law or state of emergency. Article 148 states that law-amending ordinances issued during such periods are not subject to the review of constitutionality by the Constitutional Court.

D. Secularism

Secularism has been one of the pillars of the reforms of Atatiirk. In fact, the Constitution of 1924 was amended in 1928 to delete the provision declaring Islam as the state religion. In the 1937 amendment to the Constitution, secularism was introduced as one of the six basic principles of the Republic.

In the West, secularism has meant complete separation of religion and the state.

The Kemalist conception of secularism, however, has allowed for some measure of state control over religion. It was feared that total non-interference between religion and the state WOUld, in fact, result in the interference of religion in governmental affairs, since Islam is not only a system of faith but also a system of law, a social and political ideology, and a total way of life. If religious affairs were left entirely in the hands of communal organizations without any governmental supervision, Islam would inevitably retain its hold over the society, over its laws, politics, and economics.

The Constitution of 1982, like its predecessors, retained the Kemalist notion of secularism. While it clearly recognized the freedom of religion (which comprises the freedom of faith and the freedom of worship), it kept the Directorate of Religious Affairs (Diyanet Isleri Ba§kanlzgz) as part of the administrative apparatus (Art. 136). The Constitution (Art. 174) also accorded special protection to the eight principal reform laws tInkilap Kanunlarz) passed during the Atatiirk era and embodied the principles of Kemalist secularism. These are the laws establishing secular education and civil marriage, adopting the Turkish alphabet and the international numerals, introducing the hat, closing the dervish convents, abolishing certain titles, and prohibiting the wearing of certain garments. Under Article 174 of the Constitution, no provision of the Constitution shall be construed in such a way as to render unconstitutional the enumerated reform laws which safeguard the secular character of the Republic, In other words, such laws cannot be found unconstitutional by the Constitutional Court.

32

Introduction to Turkish Law

Another constitutional provision protecting the secular character of the state is the ban on the use of religion for political purposes. The Constitution prohibits the exploitation of religion or religious feelings for the purpose of political or personal benefit, and forbids even partial establishment of the fundamental social, economic, political, and legal order of the state upon religious principles (Art. 24). Finally, Article 42 of the Constitution allows for government supervision of religious instruction by stating that no educational institutions shall be established that are incompatible with the principles of contemporary science and education.

E. Social State

The term 'social state' is used by the Constitution to denote what is more commonly known as 'welfare state' in the West; a term which comprises social rights, social

security, and social justice.

Among the principal social rights recognized by the Constitution are the right to

unionize, the right to strike, the right of collective bargaining, the right to vacation with pay, the right to social security, the right to medical care, and the right to education. The state is charged with the responsibility for establishing social security and social welfare organizations for all citizens (Arts. 41-65).

Social justice implies measures reducing inequalities in wealth and income. One group of such measures is progressive taxation on income and various taxes on wealth. A more specific measure is land reform mentioned in the Constitution (Art. 44). In the case of expropriations (kamulasnrma) carried out with the purpose of distributing land to landless peasants, payment for expropriated lands can be made in equal instalments over a period not exceeding five years. This period was twenty years in the 1961 Constitution as amended in 1971. Another measure that can be used for redistributing wealth is the nationalization of private enterprises under Article 47 of the Constitution.

A social welfare state requires a much greater degree of government intervention

in social and economic affairs than is generally required under a liberal economy. Such intervention, in turn, makes planning an imperative. The Constitution provides for economic, social and cultural planning and charges the state with the duty of establishing a planning organization (Art. 166).

F. The Rule of Law

The rule of law (hukuk devleti) or the supremacy of law signifies a system where governmental agencies must operate within the framework of law and their actions are subject to review by independent judicial authorities. To put it differently, it is a system where the legal security of the individual is assured. Implicit in this definition are three elements absolutely essential to the rule of law: (a) judicial control of the legality of administrative acts; (b) judicial control of the constitutionality of laws; and (c) the independence of the judiciary.

In Turkey, as in most Continental European countries, the judicial control of

the legality of administrative acts is performed not by the general courts but by a

hierarchy of administra as the administrative c general courts, such a c ple of the rule of law.

The fundamental sal Thrkish Constitution, VI subject to judicial revie istrative acts or actions adoption of the 1961 courts not to refuse to ( to 1961, the Turkish C stating that the acts inv the scope of judicial n are not allowed to eng: state' or 'political ques

Two categories of ac scope of judicial revie the Republic which do the ministers concerne

While judicial revie of law, the latter wouh tionality of laws, since the basic rights and lib imposed by law, admit It would even be pos: excluding certain categ ther destroy the basis ( the rule of law to the 11 all branches and agenc fields of activity. Just a the legislature is boun constitutionality of law rule of law as judicial r the constitutionality of

Another indispensa judiciary. if judges re the legislative and the administrative acts wo below.

The Constitution of the non-retroactivity ol ishable for an act not c was committed.' Simi] than that provided in tl:

Another safeguard is hdkim giivencesi) laid trial before a court othe

.aw

ilar character of the state is the be Constitution prohibits the urpose of political or personal fundamental social, economic, i principles (Art. 24). Finally, nent supervision of religious s shall be established that are ence and education.

lenote what is more commonly comprises social rights, social

he Constitution are the right to argaining, the right to vacation tical care, and the right to edufor establishing social security ;. 41-65).

ties in wealth and income. One nne and various taxes on wealth. the Constitution (Art. 44). In the zith the purpose of distributing d lands can be made in equal lhis period was twenty years in r measure that can be used for : enterprises under Article 47 of

~ee of government intervention [uired under a liberal economy. ative, The Constitution provides irges the state with the duty of

)f law signifies a system where nework of law and their actions ities. To put it differently, it is a assured. Implicit in this defini-

lie of law: (a) judicial control of I of the constitutionality of laws;

mntries, the judicial control of : by the general courts but by a

Constitutional Law

33

hierarchy of administrative courts, the apex of which is the Council of State. As long as the administrative courts are accorded the same degree of independence as the general courts, such a dual judicial structure does not, in any way, impair the principle of the rule of law.

The fundamental safeguards for the rule of law are embodied in Article 125 of the Turkish Constitution, which states that 'all acts and actions of the administration are subject to judicial review.' In other words, access to the courts on account of administrative acts or actions cannot be barred by law, as was sometimes done before the adoption of the 1961 Constitution. This article also instructs the administrative courts not to refuse to deal with cases involving administrative acts or actions. Prior to 1961, the Turkish Council of State did refuse to intervene on certain occasions, stating that the acts involved were of a highly political nature and, therefore, beyond the scope of judicial' review. Under the present Constitution, administrative courts are not allowed to engage in such self-limitation by creating a category of 'acts of state' or 'political questions' ihukianet tasarruflan) immune to judicial review.

Two categories of administrative acts are specifically excluded, however, from the scope of judicial review under Article 125. These are the acts of the President of the Republic which do not require the counter-signatures of the Prime Minister and the ministers concerned, and the decisions of the Supreme Military Council.

While judicial review of administrative acts is a sine qua non condition of the rule of law, the latter would be incomplete without the judicial review of the constitutionality of laws, since in such a case the legislature would be legally free to restrict the basic rights and liberties of the individual at will. As long as such restrictions are imposed by law, administrative courts can provide no protection for the individual. It would even be possible, as mentioned above, for the legislature to pass laws excluding certain categories of administrative acts from judicial review and thus further destroy the basis of the rule of law. There is no reason to limit the meaning of the rule of law to the legality of administrative acts. On the contrary, it implies that all branches and agencies of government have to conform to law in their respective fields of activity. Just as the administrative agencies are bound by legislative acts, so the legislature is bound by the Constitution. Consequently, judicial review of the constitutionality of laws is just as natural, and as indispensable, an ingredient of the rule of law as judicial review of the legality of administrative acts. Judicial review of the constitutionality of laws will be treated in detail below.

Another indispensable element of the rule of law is the independence of the judiciary. If judges remained under the influence of political departments (i.e., the legislative and the executive branches), judicial review of either legislative or administrative acts would lose much of its significance. This, too, will be discussed below.

The Constitution of 1982 provides further safeguards for the rule of law. One is the non-retroactivity of criminal laws. Article 38 states that 'no person shall be punishable for an act not considered an offence under the law in force at the time the act was committed.' Similarly, 'no person shall be punishable with a heavier penalty than that provided in the law for that offence at the time the offence was committed.' Another safeguard is the principle of 'legal (or natural) judicial process' (kanunf hakim giivencesi) laid down in Article 37, according to which no one can be put to trial before a court other than the one previously determined by law. No extraordinary

34

Introduction to Turkish Law

judicial bodies can be established which would lead to the violation of this principle. Finally, 'denial of justice' is specifically prohibited by the Constitution. Under Article 36, no court of law shall refuse to deal with a case within its jurisdiction. All these constitutional safeguards are essential to the maintenance of the legal security of the individual, the underlying principle of the rule of law.

III. THE LEGISLATURE

A. The Structure of the Turkish Grand National Assembly

The Constitution of 1982 vests the legislative authority in the Turkish Grand National Assembly (TGNA). Such authority cannot be delegated to any other branch of government (Art. 7). The TGNA is composed of 550 deputies, all elected by direct, universal suffrage (Art. 75). Thus, the Constitution of 1982 returned to the unicameralism of the 1924 Constitution as a reaction against stalemated government.

To be eligible to the TGNA, one must be a Turkish national 30 years of age or over and have. completed at least primary education. In addition, those who have been sentenced for offences enumerated in the Constitution are not eligible (Art. 76). The term of the: Assembly is five years. Yet, the Assembly may decide to hold new elections any time before the termination of its regular term (Art. 77). If new elections cannot be held in the prescribed time due to a state of war, they may be postponed for one year by law (Art. 78). Under certain circumstances to be discussed below, the President of the Republic may also call new elections for the TGNA (Art. 116).

Members of the TGNA enjoy the classical parliamentary privileges such as freedom of speech and freedom from arrest (Art. 83). Freedom of speech (yasama sorumsuzlugui means that members of the TGNA shall not be held responsible for votes cast, speeches made, and opinions expressed in the course of legislative activo ities or for repeating and disclosing those activities outside the legislature. Freedom from arrest (yasama dokunulmarligis protects legislators from what may be arbitrary or politically motivated detentions or arrests. The Constitution states that no memo bers of the TGNA can be detained, questioned, arrested, or tried without prior consent of the Assembly. If the Assembly decides to remove a member's freedom from arrest, the member concerned or any other member may request the Constitutional Court to review such decision. The Constitutional Court may invalidate the Assembly's decision if it is found inconsistent with the Constitution or the Standing Orders (ir;tiiziik) of the Assembly (Art. 85).

All legislative proceedings are to be conducted in accordance with the Rules or the Standing Orders made by the TGNA itself. Standing Orders must assure the participation of each parliamentary group in all legislative activities in proportion to its size. A parliamentary party group consists of at least twenty members (Art. 95). The principle of proportion representation also applies to the composition of the 'chairmanship council' tbaskanuk divanz) of the TGNA. The Constitution has taken further measures to assure the impartiality of the Speaker (Art. 94).

B. Elections for the

As has been pointed 0 tions to the TGNA. TI regulated by the law 0 sion of proportional 1 under the 1961 Cons mathematician who PI representation electior votes won by parties a so on, until the numl Figures thus obtained parties. This order del

The new Law on tl inodifications in the e its adoption of a nat obtain less than 10 pel any seats in the TON political parties and tl opinion of the Nations significantly to the po

Although the origii threshold, in addition unconstitutional by th amendment in 1995 1 reconcile justice in re

The 1995 Electoral provinces which will constituency. Provine, into two constituencf divided into three cor

C. The Legislative

Making, amending, a the TONA (Art. 87). by deputies. The legi bills is regulated by t

The laws passed b within fifteen days. T the Assembly for rec sion. If the Assembly amendments), the Pre to override the Presic

7. Law No. 2839, R.G.

.aw

to the violation of this princi.ed by the Constitution. Under case within its jurisdiction. All intenanceof the legal security of law.

Assembly

:hority in the Turkish Grand )t be delegated to any other mposed of 550 deputies, all us, the Constitution of 1982 on as a reaction against stale-

sh national 30 years of age or . In addition, those who have ntion are not eligible (Art. 76). unbly may decide to hold new :gular term (Art. 77). If new ~ to a state of war, they may ertain circumstances to be dislso call new elections for the

ientary privileges such as free-

Freedom of speech (yasama all not be held responsible for the course of legislative activutside the legislature. Freedom Drs from what may be arbitrary mstitution states that no memted, or tried without prior conlove a member's freedom from may request the Constitutional al Court may invalidate the ie Constitution or the Standing

I accordance with the Rules or ng Orders must assure the parre activities in proportion to its LSt twenty members (Art. 95). lies to the composition of the ~A. The Constitution has taken aker (Art. 94).

Constitutional Law

35

B. Elections for the Turkish Grand National Assembly

As has been pointed out above, the Constitution does not specify the system of elections to the TGNA. The electoral system and the details of the electoral process are regulated by the law on the Election of Deputies." The law retained the d'Hondt version of proportional representation which was practised in most of the elections under the 1961 Constitution. This system, which got its name from the Belgian mathematician who proposed it, simplifies the distribution of seats in a proportional representation election. According to this method of calculation, the number of valid votes won by parties and independent candidates are divided by one, two, three, and so on, until the number of deputies to be elected in that constituency is reached. Figures thus obtained are then ordered from the highest to the lowest regardless of parties. This order determines the allocation of seats to various parties.

The new Law on the Election of Deputies introduced, however, certain important modifications in the electoral system. The most consequential novelty of the law is its adoption of a national quotient (threshold) under which political parties that obtain less than 10 percent of the total valid votes cast nationally cannot be assigned any seats in the TGNA. This provision is designed to prevent the proliferation of political parties and the excessive fragmentation of the party system, which, in the opinion of the National Security Council and the Consultative Assembly, contributed significantly to the political crisis in the 1970s.

Although the original version of the 1983 Electoral Law contained a constituency threshold, in addition to the national threshold, the constituency threshold was found unconstitutional by the Constitutional Court in 1995 in the light of the constitutional amendment in 1995 which stipulated that election laws shall be made in a way to reconcile justice in representation and stability in government.

The 1995 Electoral Law also enlarged electoral constituencies according to which provinces which will elect up to 18 deputies would be considered a single electoral constituency. Provinces which will elect between 19 and 35 deputies will be divided into two constituencies, and provinces which will elect 36 or more deputies will be divided into three constituencies.

C. The Legislative Process

Making, amending, and repealing laws are among the most important functions of the TGNA (Art. 87). Bills may be introduced either by the Council of Ministers or by deputies. The legislative procedure regarding Assembly debates on the proposed bills is regulated by the Standing Orders of the Assembly (Art. 88).

The laws passed by the TGNA are promulgated by the President of the Republic within fifteen days. The President may, within the same period, refer the law back to the Assembly for reconsideration. Budget laws are outside the scope of this provision. If the Assembly again passes the law in its original version (i.e., without new amendments), the President has to promulgate it. Thus, no special majority is needed to override the President's objection to a law.

7. Law No. 2839, R.G. 13 June 1983.

36

Introduction to Turkish Law

D. Control over the Executive

The Turkish Constitution has adopted a parliamentary system of government, where the cabinet, or the Council of Ministers, can stay in office only so long as it enjoys the confidence of the legislature. In other words, the legislature can force a cabinet to resign by withholding such confidence. This is called the 'political responsibility' of the cabinet.

The means of parliamentary oversight are questions (soru), oral questions with debate (genel goriqme), parliamentary investigations (meclis arasttrmasu, parliamentary inquiries (meclis sorusturmasii, and interpellations (gensoru) (Art. 98).

Questions can be put to the Prime Minister or to other ministers by any member.

Depending upon the type of answer expected of the minister, questions can be oral or written. However, even oral questions do not generate a debate in the Assembly, because only the questioner can speak after the answer of the minister concerned.

Oral question with debate, or general debate, is a more effective means of control introduced by the Constitution of 1961 and retained by the Constitution of 1982. In contrast to questions, here the minister's answer is followed by a general debate. At the end of the debate, however, no vote is taken involving the question of confidence in the minister or the cabinet. This method of oversight does not, therefore, endanger the life of a cabinet or an individual minister's tenure in office.

Among all means of legislative control over the executive, interpellation is the most powerful. It is the only procedure by which the legislature can vote a cabinet or an individual minister out of office; consequently, it is regulated in great detail by the Constitution (Art. 99). Motions for interpellation may be put by the political party groups in the Assembly, or by at least twenty deputies. Whether the motion is to be debated is determined at the end of a preliminary debate in which one of the deputies who put the motion, the Prime Minister or a minister, and a representative of each parliamentary party group can speak. If the Assembly decides to debate the interpellation, it also determines the date on which the debate will take place. At the end of the debate, members may put forward motions of censure or of no-confidence tgiivensizlik onergesiy. Such motions are voted upon after the lapse of one full day, which may be called the 'cooling-off period.' An absolute majority of the full membership of the Assembly is required for a vote of censure, and only the votes of no-confidence are counted. This provision aims at increasing the stability of government by preventing votes of censure by very small or accidental majorities.

Parliamentary investigations can be initiated to secure information on or to expose certain aspects of the conduct of the cabinet. They do not, however, directly involve the political responsibility of the cabinet or of individual ministers since no vote of confidence is taken at the end of such investigations. Parliamentary investigations may also aim at gathering information necessary for drafting new legislations.

Finally, parliamentary inquiries may be initiated by a decision of the Assembly to ascertain criminal responsibility of the Prime Minister or individual ministers in matters connected with their office. The inquiry is carried out by a parliamentary committee composed of fifteen members. At the end of the inquiry, the Assembly decides whether or not to impeach the minister concerned. In the event a minister is impeached by the Assembly, he is tried by the Constitutional Court (Art. 100).

E. Budgetary PI

Consenting to ne blies, dating back of approving the Council of Minisi The budget bill is 25 of whom must the budget comm of the fiscal year indirect vote of c

IV. THE EXl

In Turkey, as in structure. It is co sibility, and a po

A. The Preside

Probably the mo: 1982 concerns tJ hand, the 1982 ( tiality of the Pre office of the Pre of the Turkish n the Presidency j 1961 Constitutn appointive funct tial or even a se tially parliamen and the Council

The Presider from among its of age and have Constitution of ship of the TGfI President is noi member of a P' TGNA is termi

The Preside TGNA. If this majority of the does not produ didates who re

III of government, where mly so long as it enjoys iture can force a cabinet 'political responsibility'

ru), oral questions with Iis arastirmasu, parlia(gensoru) (Art. 98). inisters by any member. :r, questions can be oral debate in the Assembly, ie minister concerned. fective means of control Constitution of 1982. In . by a general debate. At e question of confidence :s not, therefore, endan. office.

ive, interpellation is the ature can vote a cabinet nilated in great detail by put by the political party :ther the motion is to be rhich one of the deputies a representative of each es to debate the interpelI take place. At the end lire or of no-confidence ie lapse of one full day, ite majority of the full sure, and orily the votes :reasing the stability of Jr accidental majorities. ~ information on or to 10 not, however, directly Iividual ministers since tigations. Parliamentary essary for drafting new

ision of the Assembly to individual ministers in out by a parliamentary e inquiry, the Assembly n the event a minister is II Court (Art. 100).

]1:

Ii

Constitutional Law

37

E. Budgetary Powers

Consenting to new taxes is one of the oldest prerogatives of representative assemblies, dating back to the Middle Ages. In the present times, this has taken the form of approving the budget. An annual budget bill is submitted to the TGNA by the Council of Ministers at least 75 days before the beginning of every new fiscal year. The budget bill is reviewed by a parliamentary committee composed of 40 deputies, 25 of whom must belong to the government party (or parties). The text approved by the budget committee is debated in the Assembly and voted on before the beginning of the fiscal year. A rejection of the budget bill by the Assembly is considered an indirect vote of censure of the Council of Ministers (Arts. 161-163).

IV. THE EXECUTIVE

In Turkey, as in all other parliamentary systems, the executive branch has a dual structure. It is composed of a President of the Republic who has no political responsibility, and a politically responsible Council of Ministers.

A. The President of the Republic

Probably the most important single difference between the Constitutions of 1961 and 1982 concerns the status and powers of the President of the Republic. On the one hand, the 1982 Constitution, like its predecessor, seeks to ensure the political impartiality of the Presidency: it keeps him politically irresponsible and it maintains the office of the Presidency as the 'representative of the Turkish Republic and the unity of the Turkish nation' (Art. 1(4). On other hand, the 1982 Constitution transformed the Presidency from a largely symbolic and ceremonial office, as it was under the 1961 Constitution, into an active and powerful one, with important political and appointive functions. It did not go, however, to the extreme of adopting a presidential or even a semi-presidential system. The system of government remains essentially parliamentary, in the sense that the executive still maintains a dual structure and the Council of Ministers is politically responsible before the legislature.

The President of the Republic is elected for a term of seven years by the TGNA from among its own members. To be eligible, a candidate must be at least 40 years of age and have received higher education (i.e., university level). In contrast to the Constitution of 1961, a group of deputies not less than one-fifth of the full membership of the TGNA may nominate a person for President from outside the TGNA. The President is not eligible for re-election for a second term. The President-elect, if a member of a political party, must resign from his party, and his membership in the TGNA is terminated upon his election (Art. 101).

The President is elected by a two-thirds majority of the full membership of the TGNA. If this majority cannot be obtained on the first two ballots, an absolute majority of the full membership will suffice on the third ballot. If the third ballot does not produce such a majority, a fourth ballot will be held between the two candidates who received the highest number of votes on the third ballot. If the fourth

38

Introduction to Turkish Law

ballot does not produce an absolute majority of the full membership, the TGNA will dissolve automatically and new general elections will be held immediately (Art. 102). This procedure for the selection of the President is essentially similar to that in the 1961 Constitution, with the exception of the provisions on the fourth ballot and automatic dissolution of the Assembly. This exception is intended to prevent a deadlock similar to the one witnessed in 1980.

The provisions summarized above are designed to ensure the impartiality of the President of the Republic by severing his ties with his political party, terminating his membership in the TGNA, establishing the no re-election principle, and requiring absolute majority for his election. The difference in the terms of office of the President (seven years) and the TGNA (five years) also helps to accomplish the same objective. The possibility that the President may have to work with more than one Assembly composed of different party majorities increases the electoral changes of an independent figure or at least a moderate party member acceptable to other major parties.

As a cardinal principle of parliamentary government system, the President is not, as a rule, authorized to act alone in executive matters. All presidential decrees must be counter-signed by the Prime Minister and the ministers concerned who bear political responsibility for such decrees (Art. 105). The President is not politically responsible for his actions connected with his office. The absence of such presidential political responsibility and the constitutional requirement that all presidential decrees must be signed by the Prime Minister and the ministers concerned demonstrate that the executive function, is in reality, exercised by the politically responsible component of the executive branch, i.e., the Council of Ministers.

The President's freedom from responsibility is also extended to criminal matters connected with his office. Here too, the responsibility is assumed by the Prime Minister and the ministers concerned. The President can be held criminally responsible only for high treason (vatan hainligi), in which case he may be impeached by a vote of at least three-fourths of the full membership of the TGNA on the proposal of at least one-third of such membership. Upon impeachment, the President is tried by the Constitutional Court (Arts. 105, 148).

The Constitution of 1982 differs from its predecessor chiefly in the scope of presidential powers, which it expanded substantially. The Constitution contains a long list of such powers and classifies them according to their legislative, executive, or judicial nature (Art. 104). Among his powers related to legislative function are: delivering, if he deems it necessary, the inaugural address at the beginning of each legislative year; summoning the TGNA into extraordinary session when he deems it necessary; promulgating laws; returning laws to the TGNA for reconsideration; submitting proposed constitutional amendments to popular referenda; appealing to the Constitutional Court for the annulment of laws, law-amending ordinances, and the Standing Orders of the TGNA; dissolving the TGNA and calling for new elections.

The President's powers pertaining to executive function are as follows: appointing the prime Minister and accepting his resignation; appointing or dismissing other ministers on the proposal of the Prime Minister; presiding over the Council of Ministers whenever he deems it necessary; accrediting Turkish diplomatic representatives to foreign states and receiving the diplomatic representatives of foreign states; ratifying and promulgating international treaties: representing the office of

the Commander-in-Chief of ing the use of the Turkish a calling the National Securit martial law or a state of err which meets under his chai sentences of certain indivir chairman and members of t out investigations and inspe Education; and appointing l

Finally, his powers pertai the Constitutional Court, 0 Chief Public Prosecutor of the Military Court of ( Administrative Court, and Public Prosecutors.

Impressive though the li stantive, in the sense that the prior action by another bod and the ministers concern! decisions. In some others, signature of the Prime Mil of presidential acts are e Constitutional Court (Art. 1

B. The Council oj Minist

The Council of Ministers (li ignated by the President of 1 various ministers nominate of the Republic (Art. 109). mences from the moment receives the vote of confide the Constitution of 1982 do members of the TGNA. In between the two Constituti missed by the President of 1

The list of the Council 0 the government program is of the Council of Ministers reading of the program, and mination of the debate (An vided by the Constitution. 1- an ordinary majority (i.e., a sufficient.

As the chairman of the ( nation among the ministries

membership, the TGNA vill be held immediately nt is essentially similar to rvisions on the fourth baltion is intended to prevent

lire the impartiality of the tical party, terminating his n principle, and requiring te terms of office of the ps to accomplish the same work with more than one s the electoral changes of . acceptable to other major

'stem, the President is not, presidential decrees must concerned who bear polit'esident is not politically absence of such presiden:ment that all presidential nisters concerned demonIy the politically res pons iIf Ministers.

tended to criminal matters is assumed by the Prime oe held criminally respon: he may be impeached by he TGNA on the proposal nent, the President is tried

hiefly in the scope of presInstitution contains a long r legislative, executive, or ) legislative function are: s at the beginning of each , session when he deems it \. for reconsideration; subeferenda; appealing to the nding ordinances, and the calling for new elections. III are as follows: appointiinting or dismissing other ding over the Council of rkish diplomatic represenrepresentatives of foreign representing the office of

Constitutional Law

39

the Commander-in-Chief of the Turkish armed forces on behalf of the TGNA; ordering the use of the Turkish armed forces; appointing the Chief of the General Staff; calling the National Security Council to meeting and presiding over it; proclaiming martial law or a state of emergency in collaboration with the Council of Ministers which meets under his chairmanship; signing governmental decrees; pardoning the sentences of certain individuals on account of illness or old age; appointing the chairman and members of the State Supervisory Council and instructing it to carry out investigations and inspections; appointing the members of the Board of Higher Education; and appointing university rectors.

Finally, his powers pertaining to judicial function are: appointing the members of the Constitutional Court, one-fourth of the members of the Council of State, the Chief Public Prosecutor of the Court of Cassation and his deputy, the members of the Military Court of Cassation, the members of the Supreme Military Administrative Court, and the members of the Supreme Council of Judges and Public Prosecutors.

Impressive though the list is, some of these powers are more formal than substantive, in the sense that the President may exercise them only upon the proposal or prior action by another body. Many require the participation of the Prime Minister and the ministers concerned who thus assume political responsibility for those decisions. In some others, the President may act alone, i.e., without the countersignature of the Prime Minister and the ministers concerned. The latter category of presidential acts are excluded from judicial review, including review by Constitutional Court (Art. 105).

B. The Council of Ministers

The Council of Ministers (Bakanlar Kurulu) is composed of the Prime Minister designated by the President of the Republic from among the members of the TGNA and various ministers nominated by the Prime Minister and appointed by the President of the Republic (Art. 109). The legal existence of the Council of Ministers commences from the moment of such appointment, not from the date the Council receives the vote of confidence in the Assembly. Similar to the 1961 Constitution, the Constitution of 1982 does not require the ministers to be chosen from among the members of the TGNA. In practice, however, most of them are. A major difference between the two Constitutions is that, under the present one, ministers can be dismissed by the President of the Republic on the proposal of the Prime Minister.

The list of the Council of Ministers thus appointed is submitted to the TGNA and the government program is read before the Assembly within a week of the formation of the Council of Ministers. Debate on the program begins two full days after the reading of the program, and the vote of confidence is taken one full day after the termination of the debate (Art. 110). These are instances of 'cooling-off' periods provided by the Constitution. No special majority is required for the vote of confidence; an ordinary majority (i.e., a majority of those present and voting in the Assembly) is

sufficient.

As the chairman of the Council of Ministers, the Prime Minister ensures coordi-

nation among the ministries and supervises the implementation of the general policy

40

Introduction to Turkish Law

of the government (Art. 112). As in other modem parliamentary systems, the Prime Minister is the effective head of the executive branch. The fact that he is normally the leader of the majority party in the Assembly confers upon him a degree of political influence far greater than that of his colleagues in the Council of Ministers. He also enjoys certain constitutional privileges not shared by the other ministers. For example, he alone may request a vote of confidence in the Assembly after consultation with the Council of Ministers (Art. 111). In addition to these privileges - which also existed under the 1961 Constitution - the Constitution of 1982 introduced certain other privileges designed to further strengthen the position of the Prime Minister within the Council of Ministers. Thus the Constitution states that 'the Prime Minister shall ensure that the ministers exercise their functions in accordance with the Constitution and laws, and shall take corrective measures to this end' (Art. 112). Another innovation of the present Constitution is that the Prime Minister may propose to the President the dismissal of a minister. It appears that the Prime Minister has become a more powerful figure than the characterization 'first among equals' implies in some other parliamentary systems.

In a parliamentary system, the ministers assume two kinds of political responsibility. One is the 'collective responsibility' for the general policy of the government, shared jointly and equally by all ministers. If the Council of Ministers falls as a result of a vote of censure, no individual minister can stay in office claiming that he has not personally approved of, or participated in, the government policy censured by the Assembly. In addition, each minister is individually responsible for matters within the jurisdiction of his own ministry and for the acts of his subordinates (Art. 112). Thus, the Assembly may choose to declare, through an interpellation, its lack of confidence in an individual minister rather than unseat the entire Council of Ministers. In such a case, only the minister concerned loses his position, without any legal obligation for the rest of the Council of Ministers to do the same. However, this is a very rare occurrence in modem parliamentary systems. Apart from this political responsibility, the ministers are also held criminally responsible for offences connected with their office. As we have seen above, such responsibility is ascertained through a parliamentary inquiry, and in the case of impeachment the minister is tried by the Constitutional Court.

The Constitution has taken certain measures to increase governmental stability by strengthening the Council of Ministers vis-a-vis the Assembly. For example, while the vote of confidence taken following the formation of a new Council of Ministers does not require more than an ordinary majority, a vote of censure (either at the end of interpellation debates or as a result of a request of confidence by the Prime Minister) requires an absolute majority of the full membership of the TGNA. 'Cooling-off' periods mentioned above are other examples, designed to prevent hasty and emotional decisions by the Assembly and to provide some time for backstage negotiations and manoeuvring which may save the life of a cabinet. Another innovation of the 1982 Constitution aimed at strengthening the position of the cabinet is that in a vote of confidence only negative (meaning no-confidence) votes are counted (Arts. 99,111).

A much more consequential novelty of the 1982 Constitution designed to increase governmental stability concerns the scope of the power of dissolution. The 1961 Constitution (Art. 108) had permitted the executive branch to call new

elections for the Natioi limited right of dissolt crises when no majo empowers the Presidei cases where the COUll( pelled to resign by a v not be formed within j a vote of confidence; forty-five days of the r by a vote of no-confid officers of a newly ek tions in consultation v decision to hold new and the President of t Council of Ministers. members of the polith ship; ministers of Just independents within c

C. Law-making POl

The fact that the legis not mean that all obje islature itself. In all n function in the form legislation. This is ca duzenleme yetkisi). S Turkish Constitutions regulations (tilzilk) ar legal force to amend without a prior law \1 lar area of social life original (i.e., derive derived from the pric

This rule was me Constitution, which. decrees that can am nances' (statutory de monly called in A Constitution, in line further expanded the of the Constitution, 1 amending ordinance such ordinances, ar contrast to the 1961 provisions of the e)

tary systems, the Prime fact that he is normally n him a degree of politouncil of Ministers. He he other ministers. For ssembly after consultahese privileges - which on of 1982 introduced

position of the Prime m states that 'the Prime ons in accordance with : to this end' (Art. 112). .ime Minister may prothat the Prime Minister m 'first among equals'

Is of political responsi!icy of the government, finisters falls as a result :e claiming that he has t policy censured by the able for matters within ubordinates (Art. 112). ellation, its lack of cone Council of Ministers. without any legal obliHowever, this is a very m this political responfor offences connected , is ascertained through minister is tried by the

vemmental stability by .ly. For example, while w Council of Ministers nsure (either at the end nfidence by the Prime iership of the TGNA. s, designed to prevent de some time for back~ of a cabinet. Another he position of the cabi)-confidence) votes are

nstitution designed to power of dissolution. ive branch to call new

41

Constitutional Law

elections for the National Assembly only under very exceptional circumstances. This limited right of dissolution did not offer any help in cases of protracted government crises when no majority coalition could be formed. The Constitution of 1982 empowers the President to call new elections under two set of circumstances: (a) in cases where the Council of Ministers fails to receive a vote of confidence or is compelled to resign by a vote of no-confidence, and if a new Council of Ministers cannot be formed within forty-five days or the new Council of Ministers fails to receive a vote of confidence; (b) if a new Council of Ministers cannot be formed within forty-five days of the resignation of the Prime Minister without having been defeated by a vote of no-confidence, or within forty-five days of the election of the presiding officers of a newly elected TGNA. In either case, the President may call new elections in consultation with the Speaker of the Assembly (Art. 116). In the event of a decision to hold new elections under Article 116, the Council of Ministers resigns and the President of the Republic appoints a Prime Minister to form a Provisional Council of Ministers. The provisional Council of Ministers will be composed of members of the political party groups in proportion to their parliamentary membership; ministers of Justice, Interior, and Transportation will be appointed from among independents within or outside the TGNA (Art. 114).

C. Law-making Powers of the Executive

The fact that the legislative function is to be exercised by a legislative assembly does not mean that all objective and impersonal rules of law have to be made by the legislature itself. In all modern states, the executive also participates in the law-making function in the form of regulations, by-laws, and various other rules to supplement legislation. This is called the 'regulative power of the executive' (yiiriltme organinin dilzenlerne yetkisi). Such power was granted to the executive by the 1924 and 1961 Turkish Constitutions, but only in a strictly supplementary sense. In other words, the regulations (tii.zii.k) and by-laws (yonetmelik) issued by the executive did not have the legal force to amend existing legislation. Nor could such a regulative act be issued without a prior law which has already regulated, at least in its outlines, that particular area of social life. In this sense, the regulative power of the executive was not original (i.e., derived directly from the Constitution), but only derivative (i.e., derived from the prior legislation regulating that area).

This rule was modified for the first time by the 1971 amendment of the 1961 Constitution, which gave the Council of Ministers the power to issue ordinances or decrees that can amend existing laws. These acts are called 'law-amending ordinances' (statutory decree, kanun hiikmiinde kararname), or as they are more commonly called in Anglo-American countries, 'delegated legislation.' The 1982 Constitution, in line with its principle aim of strengthening the executive authority, further expanded the executive's power to issue such ordinances. Under Article 91 of the Constitution, the TGNA may empower the Council of Ministers to issue lawamending ordinances. The enabling act defines the purpose, scope and principles of such ordinances, and prescribes the period during which they can be issued. In contrast to the 1961 Constitution, the enabling act does not have to specify which provisions of the existing legislation can be amended or repealed by ordinances.

42

Introduction to Turkish Law

The law-amending ordinances become effective as of the day are published in the Official Gazette. They are also submitted to the TGNA on the day of their publication. The Assembly may repeal or amend an ordinance, in which case such repeal or amendment becomes effective as of the date on which the Assembly's decision is published in the Official Gazette. Thus, all administrative acts made between the publication of the ordinance and the publication of the repealing or amending resolution of the Assembly remain valid.

The 1982 Constitution also empowers the executive to issue a special kind of lawamending ordinance during periods of martial law or state of emergency. They differ from ordinary ordinances in the following ways: (a) they do not require a prior enabling act; (b) they are issued by the Council of Ministers presided over by the President of the Republic; (c) they can also regulate, unlike ordinary ordinances, such areas as basic rights, individual rights, and political rights; (d) most important of all, they are outside the scope of the review of constitutionality by the Constitutional Court (Arts. 91, 121, 122, 148). Thus, the only control over such emergency ordinances is that by the TGNA.

V. THE JUDICIARY

A. The Independence of the Judiciary

The Constitution of 1961 had taken special care to protect and safeguard the independence of the judiciary vis-a-vis the legislature and the executive. The 1982 Constitution broadly maintained the same principle with some modifications. The basic principle on the independence of the judiciary has been stated in Article 138, which is identical with Article 132 of the 1961 Constitution. Thus judges are independent in the discharge of their duties; they render judgment in accordance with the Constitution, law, and their conscientious opinions in conformity with law. No authority or individual may give orders or instructions to courts or judges relating to the exercise of judicial power. No questions can be asked, debates held, or statements made in the legislative Assembly in relation to the exercise of judicial power in a case under trial. Legislative and executive authorities must comply with court decisions. They cannot alter them or delay their execution. Security of tenure for judges and public prosecutors has also been recognized by the Constitution (Art. 139) in identical terms with the Constitution of 1961 (Art. 133), according to which 'judges and public prosecutors shall not be dismissed, or retired before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances, or other personnel rights, even as a result of the abolition of a court or a post.'

Personnel matters for judges and public prosecutors, such as appointments, promotions, transfers, disciplinary actions, and dismissals are within the exclusive jurisdiction of the 'Supreme Council of Judges and Public Prosecutors,' itself composed of judges. The method of selection of its members differs, however, from that of its predecessor under the 1961 Constitution (the Supreme Council of Judges). While the entire membership of the latter was elected by the plenary session of the Court of Cassation, now three regular and three alternate members are appointed by the President of the Republic from among three times as many candidates nominated by

the plenary session nate members are a didates nominated Justice is the chair Justice is an ex-off

Another innovai the members of the from among offici: three-fourths are c 155). Previously, tI dates nominated, ir sion of the Council as he had under the of Cassation (Askel Yiiksek Mare Mah~ nated by the plenar

B. The Constitut.

Constitutiona

The Turkish Consti World War II Euro of judicial contro Constitution there took place, howevi the method of sel reached on most 0

This system ' Constitution. The judicial control OVI the general courts were also empowe ality of a particuls however, to genen

The Constitutic bers. All member: them, however, at President appoint Cassation, two reg member each fron Court, and the Cc chooses from amo session of the COl three candidates appoints three re~ officials and lawy

w

the day are published in the on the day of their publicain which case such repeal or 1 the Assembly's decision is uive acts made between the repealing or amending reso-

:0 issue a special kind of lawate of emergency. They differ they do not require a prior inisters presided over by the ike ordinary ordinances, such hts; (d) most important of all, ty by the Constitutional Court :uch emergency ordinances is

otect and safeguard the indemd the executive. The 1982 vith some modifications. The .as been stated in Article 138, itution. Thus judges are indelgment in accordance with the in conformity with law. No to courts or judges relating to asked, debates held, or statethe exercise of judicial power rities must comply with court cution, Security of tenure for ognized by the Constitution 1961 (Art. 133), according to ussed, or retired before the age ed of their salaries, allowances, on of a court or a post.'

IS, such as appointments, pro: are within the exclusive juris: Prosecutors,' itself composed fers, however, from that of its

• Council of Judges). While the lenary session of the Court of embers are appointed by the nany candidates nominated by

Constitutional Law

43

the plenary session of the Court of Cassation. Similarly, two regular and two alternate members are appointed by the President from among three times as many candidates nominated by the plenary session of the Council of State. The Minister of Justice is the chairman of the Council, and the undersecretary of the Ministry of Justice is an ex-officio member (Art. 159).

Another innovation of the 1982 Constitution in this regard is that one-fourth of the members of the Council of State are appointed by the President of the Republic from among officials meeting the requirements designated by law; the remaining three-fourths are chosen by the Supreme Council of Judges and Prosecutors (Art. 155). Previously, they were chosen by the Constitutional Court from among candidates nominated, in equal numbers, by the Council of Ministers and the plenary session of the Council of State itself. The President of the Republic also has the power, as he had under the] 961 Constitution, of appointing the judges of the Military Court of Cassation (Askeri Yargaay) and of the High Military Administrative Court (Askeri Yuksek Mare Mahkemesi) from among three candidates for each vacant seat nominated by the plenary sessions of those courts (Arts. 156, 157).

B. The Constitutional Court and Judicial Review of the Constitutionality of Laws

The Turkish Constitution of 1961 established, following the example of certain postWorld War II European constitutions (notably, the German and the Italian) a system of judicial control of the constitutionality of laws. Among the framers of the Constitution there was virtual unanimity on the need for such a system. Some debate took place, however, regarding the type of court, its organization and composition, the method of selecting the judges, and access to the court; compromises were reached on most of these points.

This system was maintained, with certain modifications, by the 1982 Constitution. The new Constitution opted for a special court designed to exercise judicial control over the constitutionality of laws, rather than granting such power to the general courts as in the United States. Under the 1961 system, general courts were also empowered, in exceptional cases, to render a decision on the constitutionality of a particular law applicable in a pending trial. No such power was granted, however, to general courts by the 1982 Constitution.

The Constitutional Court is composed of eleven regular and four alternate members. All members are appointed by the President of the Republic; a majority of them, however, are nominated by the other high courts in the country. Thus, the President appoints two regular and two alternate members from the Court of Cassation, two regular and one alternate member from the Council of State, and one member each from the Military Court of Cassation, the High Military Administrative Court, and the Court of Accounts (Saytstay). In each of these cases, the President chooses from among three candidates nominated for each vacant seat by the plenary session of the court concerned. The President appoints one member from among three candidates nominated by the Board of Higher Education, and he directly appoints three regular and one alternate member from among senior civil service officials and lawyers (Art. 146).

44

Introduction to Turkish Law

The Constitutional Court is accorded complete independence from the legislative and executive branch. All judges of the Constitutional Court hold office until they retire at the age of sixty-five. Apart from age, their office may be terminated only upon conviction of an offence entailing dismissal from the judicial profession or for reasons of health. In the latter case, the Constitutional Court itself decides on the termination of membership (Art. 147).

Access to the Constitutional Court can be secured in two ways: principal proceedings, i.e., those instituted by a government organ; and incidental proceedings, arising out of a pending trial. Principal proceedings (iptal davasu can be instituted by the President of the Republic, parliamentary groups of the government party and the main opposition party, or at least one-fifth of the full membership of the Assembly (Art. 150). Suits of unconstitutionality must be initiated within sixty days following the promulgation of the law in question in the Official Gazette (Art. 151).

In contrast to principal proceedings, incidental proceedings can be initiated by any individual and are not subject to any time limitation. In other words, an individual may, during proceedings in a regular court, secure judicial review of legislation which is applicable to the case and allegedly infringes upon his rights. Access to the Court by way of incidental proceedings is dependent on two conditions. First, a plea of unconstitutionality (anayasaya aykinhk itiraZl) must be put forward in the course of a pending trial. Secondly, the regular court trying the case must determine whether access to the Constitutional Court is justified (i.e., whether the plea seems serious). In the event that it does so, the court adjourns the proceedings and refers the matter to the Constitutional Court, which must decide the matter within five months. If no decision is reached by the Constitutional Court within this period, the regular court has to render its judgment on the basis of the existing law. If the Constitutional Court reaches a decision before the judgment of the trial court becomes final (i.e., upheld by the Court of Cassation in case of an appeal), the trial court must comply with this decision. This is one of the points where the present Constitution departed from its predecessor, which permitted the trial court to decide upon the question of constitutionality if the Constitutional Court did not reach a decision within six months. Another such departure is that, in the event the Constitutional Court dismisses the case on substantive (not procedural) grounds, no plea of unconstitutionality for the same law can be put forward until a ten-year period elapses (Art. 152). Although the framers of the Constitution defended this innovation as contributing to 'legal stability,' it is, in fact, a serious limitation upon defendants' rights.

The jurisdiction of the Constitutional Court encompasses the constitutionality of laws, law-amending ordinances, and the standing orders of the TGNA. The Constitutional Court is also empowered to review and decide whether the procedural rules are complied with in constitutional amendments. To put it differently, the Constitutional Court cannot review a constitutional amendment on substantive grounds. Decisions to invalidate a constitutional amendment on procedural grounds must be made by a three-fifths majority of the Court (Arts. 148, 149).

When a law is invalidated by the Constitutional Court, it becomes ineffective as of the date of publication of the Court's decision in the Official Gazette. If the Court deems it necessary, it may set some later date as the effective date of its decision. This date, however, cannot be more than one year from the date of publication of the

original decision. Decis invalidated laws are Cl Court's decision. The le to modify or postpone j

In addition to its n Constitutional Court • Constitution, such as u activities of political p

aw

~pendence from the legislative 1 Court hold office until they ffice may be terminated only 1 the judicial profession or for Court itself decides on the ter-

i in two ways: principal pro- 1; and incidental proceedings, iptal davasu can be instituted s of the government party and

the full membership of the t be initiated within sixty days he Official Gazette (Art. 151). oceedings can be initiated by on, In other words, an individ! judicial review of legislation : upon his rights. Access to the )D two conditions. First, a plea st be put forward in the course ing the case must determine i (i.e., whether the plea seems ms the proceedings and refers decide the matter within five u Court within this period, the lis of the existing law. If the ~ judgment of the trial court in case of an appeal), the trial f the points where the present mitted the trial court to decide utional Court did not reach a Ire is that, in the event the e (not procedural) grounds, no : put forward until a ten-year the Constitution defended this fact, a serious limitation upon

npasses the constitutionality of ~ orders of the TGNA. The . decide whether the procedural mts. To put it differently, the al amendment on substantive ndment on procedural grounds (Arts. 148, 149).

urt, it becomes ineffective as of ! Official Gazette. If the Court fective date of its decision. This the date of publication of the

Constitutional Law

45

original decision. Decisions involving invalidation are not retroactive, meaning that the invalidated laws are considered valid until the date of the implementation of the Court's decision. The legislative and the executive branches have no power whatsoever to modify or postpone the decisions rendered by the Constitutional Court (Art. 153).

In addition to its main function of reviewing the constitutionality of laws, the Constitutional Court also performs functions specifically accorded to it by the Constitution, such as trying impeachment cases and deciding on the unconstitutional activities of political parties.