Constitutional Court of Turkey

The Constitutional Court of Turkey (Turkish: Anayasa Mahkemesi) is the highest legal body for constitutional review in Turkey. It "examines the constitutionality, in respect of both form and substance, of laws, decrees having the force of law, and the Rules of Procedure of the Turkish Grand National Assembly" (Article 148 of the Turkish Constitution). When necessary, it also functions as the Supreme Criminal Court (Turkish: Yüce Divan) to hear any cases raised about the President of the Republic, members of the Council of Ministers, or presidents and members of the high courts.

Overview

Part Four, Section Two of the Turkish Constitution has established the Constitutional Court of Turkey that statutes on the conformity of laws and decrees to the Constitution, and it can be seized by the President of the Republic, the government, the members of Parliament or any judge before whom an exception of unconstitutionality has been raised by a defendant or a plaintiff. The Constitutional Court has the right to both a priori and a posteriori review, and it can invalidate whole laws or governmental decrees and ban their application for all future cases. Challenges to a law must be made within the first two months of its promulgation.

Organization

In accordance with article 146 of the Constitution of Turkey, the Constitutional Court is composed of eleven regular and four substitute members. The President of the Republic appoints two regular and two substitute members from the Court of Cassation, two regular and one substitute member from the Council of State, and one member each from the Military Court of Cassation, the High Military Administrative Court of Appeals and the Court of Accounts, three candidates being nominated for each vacant office by the Plenary Assemblies of each court from among their respective presidents and members, by an absolute majority of the total number of members. The President of the Republic also appoints one member from a list of three candidates nominated by the Higher Education Council from among members of the teaching staff of institutions of higher education, who are not members of the Council, and three members and one substitute member from among senior administrative officers(usually from governors and ambassadors) and lawyers.

To qualify for appointments as regular or substitute members of the Constitutional Court, members of the teaching staff of institutions of higher education, senior administrative officers and lawyers are required to be over the age of forty and to have completed their higher education, or to have served at least fifteen years as a member of the teaching staff of institutions of higher education or to have actually worked at least fifteen years in public service or to have practiced as a lawyer for at least fifteen years.

The Constitutional Court elects a president and deputy president from among its regular members for a term of four years by secret ballot and by an absolute majority of the total number of members. They may be re-elected at the end of their term of office. The members of the Constitutional Court are not allowed to assume other official and private functions, apart from their main functions.

Composition

History

The Constitutional Court of Turkey was established on April 25, 1962, according to the provisions of the constitution of 1961. Prior to that date, absolute superiority of the parliament was adopted as a constitutional principle, with no judicial review. There existed no legal institution to review the constitutionality of laws passed by the parliament, and of acts and actions of governments. The social democratic opposition, intellectuals, and the military junta that came into power by military coup on May 27, 1960 supported limitation and control of the parliamentary power in the face of abuses of parliamentary majority by the Democratic Party governments (1950–60) under the premiership of Adnan Menderes. The Justice Party, a descendant of the Democratic Party; as well as Justice and Development Party have rejected the idea of judicial review, pushing for parliamentary superiority.

The first decision the court gave is dated September 5, 1962, which was published on the Official Gazette on October 3, 1962. It was about a direct petition by a certain İnaç Tureren for the annulment of an article of the Law of Criminal Procedure (Ceza Muhakemeleri Usûlü Kanunu - CMUK), which was claimed to be violating the provisions of Article 30 of the constitution. The court turned down the case, stating that individual application to the court was constitutionally impossible.^[1]

The first president of the court was Sünuhi Arsan, who served for two years (1962–64). Following the second (Ömer Lütfi Akadlı - 1964-66) and the third (İbrahim Senil - 1966-68) presidents, the court failed to elect a president for 29 months (until 1970) during which it was headed by an acting president.

The articles of the constitution regulating the structure of the court were slightly amended in 1971 and 1973.

Although the constitution of 1961 was annulled by the military regime that came into the power with the military coup of September 12, 1980, the court went on operating. It currently operates according to the constitution of 1982.

Key decisions

• Decision no. 1989/12, dated 07.03.1989: The Court, in response to then president Kenan Evren's application for annulment of a law passed by parliament, ruled that wearing headscarves in public universities violated the separation of religion and state.

• Decision no. 1994/2, dated 16.06.1994: The Court ruled to close the Democracy Party (Demokrasi Partisi - DEP), a pro-Kurdish party, on the grounds that it violated the principle of territorial/national integrity and indivisibility.

• Decision no. 1998/1, dated 16.01.1998: The Court ruled to close the Welfare Party (Refah Partisi - RP), an Islamist party, on the grounds that it was violating the principle of secularism.

• Decision no. 2001/2, dated 21.06.2001: The Court ruled to close the Virtue Party (Fazilet Partisi - FP), the successor to the Welfare Party. The decision, however, stated that the Court did not consider the FP to be the continuation of the RP, but cited the Islamist policies followed by the party as the main reasons behind the closure.

• Decision no. 2001/332, dated 18.07.2001: The Court, in response to applications made by regular courts, ruled that some parts of the Amnesty Law passed by the parliament were unconstitutional, which resulted in a minor expansion in the scope of the proposed amnesty.

• Decision dated 2008/7/30: In the 2008 Justice and Development Party closure trial, the court ruled that the Justice and Development Party did not violate the separation of religion and state and did not close it, but noted that it had become "a center for anti-secular activities" and cut the state's funding of the party's activities by 50%.^[2]

• Decision dated 2009/12/11: The court decided to ban the Democratic Society Party for its links to the Kurdistan Workers Party (PKK), considered a terrorist group by the United States and the European Union. DTP violated Articles 68 and 69 of the Constitution and the Political Parties Law.^[3] "The party became a focal point for terrorism against the indivisible integrity of the state.", stated Haşim Kılıç, president of the Court.^[3]

See also

• Republic of Turkey
• Legal System in the Republic of Turkey
• Constitution
• Constitutionalism
• Constitutional economics
• Jurisprudence
• Rule of law
• Judiciary
• Rule According to Higher Law

References

External links

• Constitutional Court of Turkey Web site (Turkish)
• Constitutional Court of Turkey old Web site (English)

Constitution of Turkey Text Constitution of the Republic of Turkey. History 1921 1924 1961 1982 Legislation Legal system Constitutional Court (Presidents) Supreme Courts Constitutional Court Court of Cassation Council of State Court of Accounts Military Court of Cassation Military High Court of Administration Court of Jurisdictional Conflict

Presidents of the Constitutional Court of Turkey Sünuhi Arsan Lütfi Akadlı İbrahim Senil Hakkı Ketenoğlu Muhittin Taylan Kani Vrana Şevket Müftügil Ahmet Hamdi Boyacıoğlu Semih Özmert Orhan Onar Mahmut Cuhruk Necdet Darıcıoğlu Yekta Güngör Özden Ahmet Necdet Sezer Mustafa Bumin Tülay Tuğcu Haşim Kılıç

Coordinates: 39°52′57.33″N 32°51′27.89″E / 39.8825917°N 32.8577472°E / 39.8825917; 32.8577472