Turkish Constitutional Court
Encyclopedia
The Constitutional Court of Turkey 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 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.
s and decree
s 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.
, 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.
President:
Deputy president:
Members:
Substitutes:
. Prior to that date, absolute superiority of the parliament was adopted as a constitutional principle. There existed no legal institution to review the constitutionality of laws passed by the parliament, and of acts and actions of governments. Republican People's Party
opposition, RPP aligned intellectuals, and the military junta that came into power by military coup
on May 27, 1960 promoted the idea that the limitation and control of the parliamentary power was needed as Democratic Party governments (1950-60) under the premiership of Adnan Menderes
abused their parliamentary majority. Justice Party
, a descendant of the Democratic Party; as well as Justice and Development Party
have rejected this point of view pointing out to the fact that the Constitutional Court of Turkey is a by product of the 1960-Military Government that murdered former Prime Minister Adnan Menderes
and two of his ministers, as well as putting a large portion of Demokrat Parti MP's into jail.
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.
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
.
Turkey
Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...
. 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
Constitution of Turkey
This article relates to a current event. See also the Turkish constitutional referendum, 2010The Constitution of the Republic of Turkey is Turkey's fundamental law. It establishes the organization of the government and sets out the principles and rules of the state's conduct along with its...
). When necessary, it also functions as the Supreme Criminal Court to hear any cases raised about the President of the Republic
President of Turkey
The President of Turkey is the head of state of the Republic of Turkey. The presidency is largely a ceremonial office but has some important functions...
, 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 lawLaw
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
s and decree
Decree
A decree is a rule of law issued by a head of state , according to certain procedures . It has the force of law...
s to the Constitution, and it can be seized by the President of the Republic
President of Turkey
The President of Turkey is the head of state of the Republic of Turkey. The presidency is largely a ceremonial office but has some important functions...
, the government, the members of Parliament
Grand National Assembly of Turkey
The Grand National Assembly of Turkey , usually referred to simply as the Meclis , is the unicameral Turkish legislature. It is the sole body given the legislative prerogatives by the Turkish Constitution. It was founded in Ankara on 23 April 1920 in the midst of the Turkish War of Independence...
or any judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
before whom an exception of unconstitutionality has been raised by a defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
or a plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
. The Constitutional Court has the right to both a priori and a posteriori
A Posteriori
Apart from the album, some additional remixes were released exclusively through the iTunes Store. They are:*"Eppur si muove" – 6:39*"Dreaming of Andromeda" Apart from the album, some additional remixes were released exclusively through the iTunes Store. They are:*"Eppur si muove" (Tocadisco...
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 TurkeyConstitution of Turkey
This article relates to a current event. See also the Turkish constitutional referendum, 2010The Constitution of the Republic of Turkey is Turkey's fundamental law. It establishes the organization of the government and sets out the principles and rules of the state's conduct along with its...
, the Constitutional Court is composed of eleven regular and four substitute members. The President of the Republic
President of Turkey
The President of Turkey is the head of state of the Republic of Turkey. The presidency is largely a ceremonial office but has some important functions...
appoints two regular and two substitute members from the Court of Cassation, two regular and one substitute member from the Council of State
Turkish Council of State
The Turkish Council of State is the highest administrative court in the Republic of Turkey and is based in Ankara. Its role and tasks are prescribed by the Constitution of Turkey within the articles on the supreme courts....
, 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
Higher education
Higher, post-secondary, tertiary, or third level education refers to the stage of learning that occurs at universities, academies, colleges, seminaries, and institutes of technology...
, 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.
| Member composition of the Constitutional Court | ||
| Source | Regular | Substitute |
| High Court of Appeals | 2 | 2 |
| Council of State | 2 | 1 |
| Military High Court of Appeals | 1 | |
| High Military Administrative Court | 1 | |
| Audit Court | 1 | |
| Higher Education Council | 1 | |
| Senior administrative officers and lawyers | 3 | 1 |
| Total | 11 | 4 |
Composition
As of June 2008, the Constitutional Court members are:President:
- Haşim KılıçHasim KiliçHaşim Kılıç is a high-ranked judge and the President of the Constitutional Court of Turkey since October 22, 2007.-Biography:Kılıç was born in Hacı Hasanlı village of Çiçekdağı district of the Kırşehir Province in Turkey. In 1968 he attended Eskişehir Academy of Economics and Commerce and...
- Audit Court (since 1990 member, since October 22, 2007 president)
Deputy president:
- Osman Alifeyyaz Paksüt - Senior administrative officers and lawyers (since 2005 member, since October 23, 2007 deputy president)
Members:
- Sacit Adali - Higher Education Council (since March 9, 1993)
- Fulya Kantarcıoğlu - Council of State (since December 19, 1995)
- Ahmet Akyalçin - High Court of Appeals (since June 16, 2000)
- Mehmet Erten - High Court of Appeals (since July 2, 2002)
- Mustafa Yıldırım - Senior administrative officers and lawyers (since February 24, 2003)
- Cafer Şat - High Court of Appeals (since July 11, 2003)
- Abdullah Necmi Özler - Military High Court of Appeals (since February 11, 2004)
- Serdar Özgüldür - High Military Administrative Court (since June 21, 2004)
- Şevket Apalak - Council of State
- Serruh Kaleli - Senior administrative officers and lawyers (since 2005)
- Zehra Ayla Perktaş - Council of State (since June 27, 2007)
Substitutes:
- Ali Güzel - High Court of Appeals (since February 25, 2004)
- Fettah Oto - Council of State (since April 27, 2004)
History
The Constitutional Court of Turkey was established on April 25, 1962, according to the provisions of the constitution of 1961Turkish Constitution of 1961
The Constitution of 1961 was the fundamental law of Turkey from 1961 to 1982. It was introduced following the 1960 coup d'état, replacing the earlier Constitution of 1924. It was approved in a referendum held on 9 July 1961, with 61.7% of the nation voting in favor...
. Prior to that date, absolute superiority of the parliament was adopted as a constitutional principle. There existed no legal institution to review the constitutionality of laws passed by the parliament, and of acts and actions of governments. Republican People's Party
Republican People's Party
Republican People's Party may be:*Republican People's Party *Republican People's Party *Republican Popular Party See also:* Russian Republican People's Party...
opposition, RPP aligned intellectuals, and the military junta that came into power by military coup
Military coup in Turkey, 1960
The military coup in Turkey, 1960 was a coup d'état staged by a group of Turkish army officers, against the democratically elected government of the Democrat Party on 27 May 1960....
on May 27, 1960 promoted the idea that the limitation and control of the parliamentary power was needed as Democratic Party governments (1950-60) under the premiership of Adnan Menderes
Adnan Menderes
Adnan Menderes was the first democratically elected Turkish Prime Minister between 1950–1960. He was one of the founders of the Democratic Party in 1946, the fourth legal opposition party of Turkey. He was hanged by the military junta after the 1960 coup d'état, along with two other cabinet...
abused their parliamentary majority. Justice Party
Justice Party (Turkey)
The Justice Party was a Turkish political party prominent in the 1960s and 1970s. A descendant of the Democrat Party, the AP was dominated by Süleyman Demirel, who served six times as prime minister, and was in office at the time of the military coup on September 12, 1980...
, a descendant of the Democratic Party; as well as Justice and Development Party
Justice and Development Party (Turkey)
The Justice and Development Party , abbreviated JDP in English and AK PARTİ or AKP in Turkish, is a centre-right political party in Turkey. The party is the largest in Turkey, with 327 members of parliament...
have rejected this point of view pointing out to the fact that the Constitutional Court of Turkey is a by product of the 1960-Military Government that murdered former Prime Minister Adnan Menderes
Adnan Menderes
Adnan Menderes was the first democratically elected Turkish Prime Minister between 1950–1960. He was one of the founders of the Democratic Party in 1946, the fourth legal opposition party of Turkey. He was hanged by the military junta after the 1960 coup d'état, along with two other cabinet...
and two of his ministers, as well as putting a large portion of Demokrat Parti MP's into jail.
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.
The first president of the court was Sünuhi Arsan
Sünuhi Arsan
Sünuhi Arsan was a Turkish judge. He was the first president of the Constitutional Court of Turkey from June 22, 1962 until July 13, 1964.-External links:*...
, 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
Constitution of Turkey
This article relates to a current event. See also the Turkish constitutional referendum, 2010The Constitution of the Republic of Turkey is Turkey's fundamental law. It establishes the organization of the government and sets out the principles and rules of the state's conduct along with its...
.
Key decisions
- Decision no. 1989/12, dated 07.03.1989: The Court, in response to then president Kenan EvrenKenan EvrenAhmet Kenan Evren was the seventh President of Turkey; a post he assumed by leading the 1980 military coup. He was also the last president to be born in the Ottoman Empire.- Biography :...
's application for annulment of a law made by the parliament, decided that wearing headscarvesHeadscarfHeadscarves or head scarves are scarves covering most or all of the top of a woman's hair and her head. Headscarves may be worn for a variety of purposes, such as for warmth, for sanitation, for fashion or social distinction; with religious significance, to hide baldness, out of modesty, or other...
in universities is unconstitutional.
- Decision no. 1994/2, dated 16.06.1994: The Court decided to close the Democracy PartyDemocracy PartyDemocracy Party was a pro-Kurdish political party in Turkey. It was founded in May 1993 by several prominent members of the People's Labor Party . The party became divided over the issue of the PKK, two factions - moderate and radical - appeared. Due to the promotion of Kurdish nationalism the...
(Demokrasi Partisi - DEP), a pro-Kurdish party, on the grounds that is was violating the principle of territorial/national integrity and indivisibility.
- Decision no. 1998/1, dated 16.01.1998: The Court decided to close the Welfare PartyWelfare PartyThe Welfare Party was an Islamist political party in Turkey. It was founded by Ali Türkmen, Ahmet Tekdal and Necmettin Erbakan in Ankara in 1983 as heir to two earlier parties, Milli Nizam Partisi and Milli Selamet Partisi , which were banned from politics...
(Refah Partisi - RP), a pro-Islamic party, on the grounds that it was violating the principle of secularismSecularismSecularism is the principle of separation between government institutions and the persons mandated to represent the State from religious institutions and religious dignitaries...
.
- Decision no. 2001/2, dated 21.06.2001: The Court decided to close the Virtue PartyVirtue PartyVirtue Party was an Islamist political party established in December 1998 in Turkey. It was found unconstitutional by the Constitutional Court and then banned in June 2001, for violating the secularist articles of the Constitution...
(Fazilet Partisi - FP). The decision stated that the Court does not consider the FP to be the continuation of the RP. Anti-secularist policies followed by the party were the main reasons behind the closure.
- Decision no. 2001/332, dated 18.07.2001: The Court, in response to applications made by regular courts, decided that some parts of the Amnesty Law passed by the parliament are unconstitutional, which resulted with a minor expansion in the scope of the proposed amnesty.
- Decision dated 2009/12/11 : The court decided to ban the Democratic Society PartyDemocratic Society PartyThe Democratic Society Party was a Kurdish Kurdish nationalist political party in Turkey. The party considered itself social democratic, and had observer status in the Socialist International. It was considered to be the successor of the Democratic People's Party...
for its links to the Kurdistan Workers PartyKurdistan Workers PartyThe Kurdistan Workers' Party , commonly known as PKK, also known as KGK and formerly known as KADEK or KONGRA-GEL , is a Kurdish organization which has since 1984 been fighting an armed struggle against the Turkish state for an autonomous Kurdistan and greater cultural and political rights...
(PKK). DTP violated Articles 68 and 69 of the Constitution and the Political Parties Law. "The party became a focal point for terrorism against the indivisible integrity of the state.", stated Haşim KılıçHasim KiliçHaşim Kılıç is a high-ranked judge and the President of the Constitutional Court of Turkey since October 22, 2007.-Biography:Kılıç was born in Hacı Hasanlı village of Çiçekdağı district of the Kırşehir Province in Turkey. In 1968 he attended Eskişehir Academy of Economics and Commerce and...
, president of the Court.
See also
- Republic of Turkey
- Legal System in the Republic of TurkeyLegal System in the Republic of TurkeyThe basics of the legal system in the Republic of Turkey are laid out in Articles 138 to 160 of the 1982 Constitution. Civilian and military jurisdiction is separated...
- ConstitutionConstitutionA constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- JurisprudenceJurisprudenceJurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
- Rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
- JudiciaryJudiciaryThe judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
- Rule According to Higher LawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...