Constitutional Court of Turkey

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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.

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 Kılıç - 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

See also: constitutional history of Turkey

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. 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.

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 made by the parliament, decided that wearing headscarves in universities is unconstitutional.

• Decision no. 1994/2, dated 16.06.1994: The Court decided to close the Democracy Party (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 Party (Refah Partisi - RP), a pro-Islamic party, on the grounds that it was violating the principle of secularism.

• Decision no. 2001/2, dated 21.06.2001: The Court decided to close the Virtue Party (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 Party for its links to the Kurdistan Workers Party (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 Kılıç, president of the Court.

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

External links

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