INTL 301
GÜRAN
Introduction to Turkish Law
Edited
by
Tuğrul Ansay
Professor of Law, Dean of the Law School, Koç University, Istanbul
and
Don Wallace, Jr.
Professor of Law, Georgetown University, Washington, D.C.
Kluwer Law International
Chapter 1
Sources of Turkish Law
Prof. Dr. Adnan Güriz*
I. INTRODUCTION
The law has evolved and continues to evolve from different sources or beginnings. These
sources include historical and material sources such as religion, morality and old laws. The
source of a current legal rule may be found in Roman law, or practices or moral laws applied in
bygone ages. But `sources of law' also refers to the collection of contemporary legal rules, the
positive law, on which a judge bases a decision. The line between the different sources is
sometimes difficult to draw and the exact content of each source difficult to fix. After the
triumph of the movement for codification in Europe in the last quarter of the eighteenth and in
the beginning of the nineteenth century many continental countries codified much of their law,
both public and private. On the other hand, in the Anglo-Saxon countries the notion of
uncodified law prevailed and is still predominant, and the majority of legal rules are derived
from customary principles and judicial precedents. Turkey has followed the continental pattern
and with the reception and codification of many European laws, legislation has become the
most important source of law. To a lesser extent, customary law and case law or judicial
precedents are sources; finally books of authority or doctrine are a subsidiary source of Turkish
law.
We will examine custom first; although not as important as legislation it may give us some
insights into the development of law, as other rules have mainly developed from custom.
II. CUSTOMARY LAW (Örf ve Adet Hukuku)
A. Custom in Civil Law
In primitive communities customary observances supported by supernatural sanctions played an
immensely important role in regulating social life. Fishing, hunting, family relations, even the
waging of war, were all regulated by customary rules sometimes down to the smallest detail.
Custom constituted the generally and strictly observed course of conduct of the society.
With the evolution of primitive societies into modern societies and the development of
legislatures, the importance of custom as a source of law has increasingly diminished.1
In the modern world, the legislature may, by statute, deprive a customary rule of its legal
status and custom has become a subordinate source of law.2 This is especially true of Turkish
law where legislation is consciously designed to change or restrain trends in the community's
behaviour. In Turkey some laws are directly set against customs in order to develop and
westernize the country according to European patterns.
For a custom to have legal validity in the Turkish system the following requirements must be
satisfied:
*
Formerly Faculty of Law, University of Ankara.
1.
W.D. Smith, Handbook of Elementary Law, p. 5 (St. Paul, Minn. 1939).
2.
H.L.A. Hart, The Concept of Law, p. 44 (Oxford 1961).
1. Antiquity
As a rule, a custom must have existed for a long time and no living person should know the
beginning of it. This principle was stated in Article 166 of the Mecelle, the collection of Islamic
laws which was applied in Turkey between 1876 and 1925. However, it seems reasonable to
make an exception for customs more recently established as a result of new inventions or
patterns of trade. Thus, for example, it may not be possible to meet the condition of antiquity for
a custom related to transactions concerning air navigation.
2. Continuity
A custom must be continuously observed. If it is abandoned or its practice is interrupted in
favour of another custom, the requirement of continuity is not realized. Article 41 of the
Mecelle clearly stated that there must be continuity for a custom to be valid. So too, a law of
Süleyman the Magnificent asserted that in a certain district a custom with respect to cattle
breeding which had been continuously observed should be considered binding and valid.
Similarly, in laws passed during the XVth and XVIth centuries in Turkey customary principles
were clearly stated to be enforceable if continuously observed.3 The condition of continuity is
the material and objective factor applied to prove the validity of customary observance.
3. Popular Belief in the Rightness of a Custom
Custom must consciously or unconsciously be considered right by the members of the society.
Roman jurists called this spiritual and subjective condition opinio necessitatis or opinio juris.4
There should be a belief among the members of society about the rightness and binding force of
a custom. If a custom is maintained only by force, it cannot be considered as valid. Therefore, a
certain mode of conduct which is not voluntarily observed by the members of society but forced
upon them by an external or internal power is not to be deemed a custom.
4. State Sanction
Until the courts apply customs, giving them the sanction of state authority, they are not law. A
customary rule receives legal recognition when it is enforced by court order, unlike a statute
which is law even before it is enforced by a court.
Current Turkish statutes clearly state when customary rules are to be used by the courts. If no
clear reference is made by statutory law, judges refrain from resorting to customary rules. In the
first Article of the Turkish Civil Code the scope of the application of customary rules is stated:
`The law must be applied in all cases which come within the letter or spirit of any of its
provisions. Where no provisions are applicable, the judge should decide according to
existing customary law and in default thereof, according to the rules which he would lay
down if he had himself to act as legislator. In this he must be guided by approved legal
doctrine and case law.'
Thus in cases under the Civil Code or the Code of Obligations, judges are allowed to apply
3.
In the Law of Bozok, Articles 9 and 10 express the application of custom even in criminal matters. Ömer Lütfi Barkan, XV
ve XVI. Asırlarda Osmanlı İmparatorluğu'nda Zirai Ekonominin Hukuki ve Mali Esasları, p. 125 (İstanbul 1943).
4.
N. Bilge, Hukuk Başlangıcı, p. 43 (Ankara 1986).
customary principles when the statutes are silent. Examples of this are found in Article 686 of
the Civil Code which states that the term `non-essential parts' of a property is to be understood
according to the local customary practice, and in the second paragraph of Article 270 of the
Turkish Code of Obligations where it is provided that agricultural produce is to be divided
between the tenant and landlord according to local customs.
It should be noted that judges will usually consult experts to ascertain the content of
customary rules.
5. Agreement with Statutory Law
A custom contrary to statutory law will not be legally valid. It is axiomatic that statutory law is
superior to custom and that judges are bound by statutes passed by the legislature, so long as
they do not violate the Constitution. This is true even though the statute is not properly or
regularly applied by the courts. Thus when polygamy was abolished by law in Turkey, the
religious custom justifying polygamy became null and void, although it may still have been
followed by some at the time. Customs opposed to written law can never be considered as
legally valid though some continue to be observed in the society.
B. The Function of Customary Rules in Other Branches of the Law
1. Criminal Rule
The principle of `nullum crimen nulla poena sine lege' (there is neither crime nor punishment
without law) is stated both in the Turkish Constitution (Art. 38) and the Turkish Penal Code
(Art. 1). Crimes and punishments cannot be established by customary law. The principle of
written law for crimes and punishments is respected in Turkey as in other democratic countries
as a safeguard of personal liberties. It is only in the field of criminal law that judges are not
allowed to apply customary principles even when there is no provision in the code applicable to
the case. This is done to guaranty personal freedom against arbitrary action by the judiciary and
executive.
2. Commercial Law
Customs and usages relating to commerce are considered superior to the non-commercial
provisions of the Turkish Civil Code and the Code of Obligations which might otherwise be
applicable in the absence of an express provision in the Commercial Code (Art. 1 II). A
commercial custom, however, cannot alter the obligatory rules of the Commercial Code.
To be applied, a commercial custom or usage must be proven to be `notorious,' that is to say
widely known. This is essential, so that it can be reasonably believed that both parties
contracted in the light of the usage. A clearly and notoriously established commercial custom
may be accepted as law even though it is not very old.
A custom will not be enforced if it tends to nullify or vary the express terms of a contract.5
5.
Under Article 2 of the Commercial Code usages may be used to interpret the intentions of parties to a contract only where
the contract is not explicit on a point. Commercial usages prevail over non-commercial usages. Local usages have priority over general
usages. Usages are collected by the Chambers of Commerce and Industry.
3. International Law
Custom plays a more considerable role in public international law than in other branches of law.
However, it is difficult to determine whether an international custom is or will actually be
accepted as law or merely considered as part of the `comitas gentium'. The question as to which
customs are law in the sphere of public international law may be established by decisions of
international courts and by international treaties.
III.LEGISLATION
A. In General
In order to regulate the life of a society, general and legal rules are set down in written form by
the highest legislative authority of a country. The Constitution designates such highest
legislative authority, and possibly authorities subordinate to the highest authority which may
also lay down subordinate written rules.
Acts of legislation are generally called a code, law or statute and are enacted to give a
satisfactory answer, by means of a general rule, to the needs and requirements of society.
B. Legislation in the Turkish Legal System6
The Turkish Constitution provides that the Grand National Assembly has sole authority to enact
laws for application throughout Turkey. The 7th Article of the Turkish Constitution states that
`legislative power is vested in the Turkish Grand National Assembly. This power shall not be
delegated.' The Grand National Assembly can only delegate under certain terms the power of
legislation to the Council of Ministers.
C. The Main Characteristics of Legislation
Legislation permits both making new laws and abrogating old ones and is an essential
instrument for the regulation of modern social life and the carrying out of reforms. It should be
remembered that the reforms of Atatürk were introduced and realized through legislation.
Ideally, legislation is passed only after extensive consideration, examination by experts and long
parliamentary debate and therefore should be superior in quality to unwritten customary rules.
Legislation usually consists of rules of general application to many situations and cases and
may be easily referred to. Being explicit and general, legislation can in theory be more easily
understood than customary law even by laymen, justifying the proper enforcement of the
principle that `ignorance of law is no excuse' (Kanunu bilmemek mazeret sayılmaz, `ignorantia
legis neminem excusat', Art. 44 of the Penal Code).
D. The Hierarchy of Enacted or Written Laws
Written laws or rules may be classified into six categories of descending authority and
importance. These categories, and some of their characteristics, are as follows:
6.
For details see Chapter 2, III.
1. The Constitution (Anayasa)7
In the hierarchy of enacted laws the Constitution occupies the first place. The Constitution is a
kind of code defining the form and ideology of the state, the principle organs of government, the
rights and duties of the individual and of the state to the individual citizen and of the legal
relationship between the individual and the state. It contains the most general and abstract legal
rules of the country. As it is the supreme law of the country, no law can be contrary to it.
The supremacy of the Constitution is expressed clearly in the 11th Article of the Turkish
Constitution which states that `laws shall not be in conflict with the Constitution. The
provisions of the Constitution shall be fundamental legal principles binding the legislative,
executive and judicial organs, administrative authorities and individuals.' The Turkish
Constitution of 1961 introduced the judicial control of legislative acts under the Constitution
and a special Constitutional Court has been created to perform this function. The same principle
was included in the Constitution of 1982 (Articles 146--153).
2. Codes and Statutes (Kanunlar)
Different codes and statutes, many of which are the subject of extensive discussion in this book,
have different scopes and applications. The Civil Code and the Penal Code are applied in all
parts of Turkey and all Turkish citizens and residents are subject to them. On the other hand, the
labour law is drafted to regulate the economic relations of only certain classes of people, namely
employers and employees. In a rare case, a law may apply only to a certain citizen. The
surname Atatürk was given to the first president of Turkey by a special act of Parliament.
Similarly, laws passed after an earthquake or other disasters to relieve the stricken population
are exceptional, as they do not exhibit the main characteristics of written laws, namely
generality and abstractness.
A law is applied until it is abrogated or changed by a new law. But there are some laws
which are applied for a certain period of time. For example, budget laws are valid only for one
year (Cons., Art. 161).
3. International Treaties (Milletlerarası Andlaşmalar)
International treaties to which Turkey is a party are approved by the Turkish Grand National
Assembly by enactment of a law. Technically, therefore, treaties are statutes, which like all
other statutes become enforceable after their publication in the Official Gazette (Resmi Gazete).
However, the constitutionality of treaties, unlike other statutes, may not be challenged. This is
so that the other parties to the treaties may rely on their validity once they are passed into law
(Cons., Art. 90, para. 5).
Some treaties become binding without the official approval of the Turkish Parliament.
According to the Turkish Constitution, `treaties which regulate economic, commercial, and
technical relations and which are not effective for a period longer than one year, may be put into
effect through promulgation in the Official Gazette provided they do not entail a financial
commitment of the state and provided they do not infringe upon the status of individuals or
upon the right of ownership of Turkish citizens in foreign lands.' But such treaties are to be
7.
See Chapter 2 on the Constitutional Law.
brought to the attention of the Turkish Parliament within two months following their
promulgation. Similarly, economic, commercial and technical treaties concluded pursuant to the
authority of parliamentary acts are not subject to the approval of the Grand National Assembly.
However, such commercial and economic treaties or treaties affecting the rights of individuals
shall not be put into effect unless promulgated.
International treaties ratified in the form of an enactment by the Grand National Assembly
enjoy all the qualities of a law. In cases where a contradiction arises between a provision of an
existing statute and a statute ratifying an international treaty the judge shall solve the conflict
according to the general principles of law. In such cases the subsequently issued statute will
prevail over the earlier one and particular rule will prevail over the general rule, the assumed
intention of the Grand National Assembly being taken into consideration. Exceptionally, under
a new amendment brought to the Constitution, those treaties involving basic rights and
freedoms shall prevail against internal statutes (Cons., Art. 90, as it is amended on May 7,
2004).
4. Statutory Decrees (Kanun Hükmünde Kararnameler)
The Turkish Grand National Assembly can authorize the Council of Ministers, by special
statute, to issue statutory decrees (decrees having the effect of law) on certain topics. In these
special statutes the scope, principles, and duration of the power to issue statutory decrees are
clearly stated. Statutory decrees become enforceable on the day of their publication in the
Official Gazette, and they are submitted for the review and approval of the Grand National
Assembly on the day of their publication.8 The Council of Ministers cannot issue statutory
decrees concerning the fundamental liberties and political rights of individuals. The
Constitutional Court is empowered to exercise judicial control over the constitutionality of
statutory decrees, just as it is authorized to consider the constitutionality of the other statutes.9
However, in cases of emergency and martial law, the Council of Ministers meeting under the
chairmanship of the President of the Republic has the power to issue statutory decrees (Cons.,
Art.91). The constitutionality of statutory decrees issued in cases of emergency and martial law
cannot be controlled and annulled by the Constitutional Court. However, these statutory decrees
should be submitted to the Grand National Assembly on the day of their publication for
approval.
5. Regulations (Tüzükler = Nizamnameler)10
Regulations governing the mode of enforcement of statutes, provided that they do not conflict
with existing legislation, may be issued by the Council of Ministers. According to the Turkish
Constitution, such regulations must have been examined by the Council of State,11 signed by the
President of the Republic, and promulgated in the same manner as statutes.12
Every valid regulation is dependent upon a statute. Since they are issued to govern the
enforcement and application of statutes, they can only be issued if there is a clear reference in
the statute to the promulgation of regulations.
8.
Cons., Art. 91.
9.
Cons., Art. 148.
10.
See Chapter 3 on the Administrative Law.
11.
See the Law of the Council of State, No. 2575 dated 20 January 1982.
12.
Published in the Official Gazette (Cons., Art. 115). See also Chapter 3 on the Administrative Law.
Regulations cannot contain provisions contrary to statutes. In the hierarchy of laws,
therefore, regulations come after statutes and contain more concrete and specific rules than
statutes.13
Regulations containing provisions contrary to statutes will not be enforced by the courts. A
suit of annulment against such regulations may be brought before the Council of State.14 If the
meaning of a regulation or one of its articles is not clear, it is to be interpreted by the courts or
administrative authorities.
6. By-Laws (Yönetmelikler = Talimatnameler)
Article 124 of the Turkish Constitution provides that `the Prime Ministry, the ministries and
public corporate bodies may issue by-laws with the purpose of ensuring the enforcement of
statutes and regulations related to their particular fields of operation and in conformity with
such statutes and regulations. By-laws indicated by the special law shall be published in the
Official Gazette' (see Law No. 3011, dated 1 June 1984).
The Prime Ministry, ministries, and other public organizations such as universities and
municipalities may issue by-laws, in conformity with statutes and regulations, in order to
regulate their internal business or their relations with individuals. However, if this is provided
for by statute, a by-law may be issued by the Council of Ministers.15 By-laws may not contain
provisions contrary to statutes or regulations.
If a by-law is issued by a ministry and applied throughout the country, the Council of State is
empowered to declare it or any of its provisions null and void if it is contrary to a statute or
regulation. By-laws issued by other corporate bodies not applied throughout the country might
be invalidated by lower administrative courts.16
E. Codes in Turkey
After the proclamation of the Edict of Reorganization of 1839 (Tanzimat Fermanı), Ottoman
rulers aimed at renewing the social and the political structure of Turkey along western lines, and
some European codes of law were adopted. In 1856 another Edict confirmed the principles of
the Edict of 1839. The reforms introduced after 1839 were not radical in nature and old institutions were preserved while new ones were introduced. In the period between 1839 and 1923,
though some modern western statutes were adopted from Europe, the old Islamic laws and
institutions were also maintained.17
After the establishment of the Turkish Republic in 1923, radical reforms were introduced in
legal matters as in other spheres of social life. The adoption of the Swiss Civil Code of 1907
and Code of Obligations of 1911 which contain the law of persons, family law, succession,
property, contracts, torts and unjust enrichment, both of which were adopted in 1926 with some
minor alterations, represented a profound change in the social life of Turkey. The Swiss lawyer
and scholar Sauser Hall, referring to the adoption of the Swiss Civil Code by Turkey says that
13.
Some examples of regulations: Commercial Registry Regulation (Ticaret Sicili Nizamnamesi), Land Registry Regulation
(Tapu Sicili Nizamnamesi).
14.
See the Law of Council of State, Law No. 2575, dated 20 January 1982, Art. 24.
15.
The Law of State Personnel, No. 657, dated 23 July 1965.
16.
See the Law of Council of State, Art. 24.
17.
For the history of this period see Okandan, Amme Hukukumuzun Ana Hatları, Kitap I (İstanbul, 1957) and Chapter 2 on
the Constitutional Law.
`such a radical and rapid change is unknown to history.'18 Meanwhile the Turkish Civil Code
has been changed as of January 1, 2002. However, the fundamental principles of the previous
Code have been retained.
The Turkish Code of Execution and Bankruptcy was adopted in 1929, based on the Swiss
Federal Code of 1889. It was replaced in 1965 by a new Code to satisfy the changing
requirements of Turkish economic and commercial life.19
Not only in the field of private law but also in the sphere of public law western codes were
received. The Penal Code was adopted in 1926,20 based on the Italian Criminal Code of 1889.
Though it has been modified several times to adapt it to the conditions of the country, its
essence has been preserved. Codes of administrative law were mainly adopted from France as a
result of the strong French influence on the administrative system of Turkey which began just
after the reform of 1839.21
F. The Problem of Interpretation
1. In General
Statutes are usually framed in more or less general terms and in order to apply these general
terms to particular cases interpretation becomes necessary. Not only the famous Byzantine
Emperor Justinian, but also the framers of the Prussian and Napoleonic Codes attempted to take
away this power of interpretation from the judiciary. But these efforts and similar ones all failed
because interpretation is unavoidable whenever a written formula has to be applied to a
particular case.
When interpreting the meaning of a legal rule the judge has first to discover the true facts of
the case before him and secondly he has to find out what the legislator intended him to do under
the existing circumstances.
Before we examine the methods of interpretation it should be noted that interpretation of
laws by the legislature is forbidden by the Turkish Constitutions of 1961 and 1982. The
retroactive interpretation of laws by the Parliament was practised and sometimes abused
between 1924 and 1961. Today only judicial and administrative organs are allowed to interpret
laws.
2. Methods of Interpretation
a. Grammatical interpretation: in this method of interpretation the judge is bound by the very
words of the provisions which he interprets. In interpreting any provision, if the grammatical
meaning of the words is clear, the judge is bound to give effect to them and he cannot look
further. Whether the provision is ethically unsound or unreasonably is immaterial; he has to
construe and apply it word by word. This method gives expression to the formula `the statute
speaks for itself.'
18.
In Bilge, Hukuk Başlangıcı, p. 99 (Ankara, 1986).
19.
4 May 1929, Law No. 1424; subsequently Law of 9 June 1932, Law No. 2004 as amended on 6 March 1965. The Code of
Civil Procedure of 5 October 1927 is taken from the law of the Swiss Canton Neuchatel (see below Ch. 11, Part 2 on the Law of
Procedure). The Commercial Code of 1 January 1957 contains many provisions which are partly taken from German and Swiss law.
20.
Law of 9 March 1926 (see Chapter 10 on the Criminal Law). The Turkish Code of Criminal Procedure of 4 April 1929 is
taken from German law (see below Chapter 11, Part 3 on the Law of Procedure).
21.
See below Chapter 3 on the Administrative Law.
b. Logical interpretation: here the judge goes a step further in interpreting the law. In
construing a statute obvious grammatical and verbal errors are to be corrected. Similarly, if a
provision of the law is incomplete the gap is to be filled by way of logical interpretation.
Moreover, the judge has to take into consideration the spirit of the code when interpreting the
meaning of a particular article.
If grammatical interpretation points to ambiguous language the statute will be evaluated by the
method of logical interpretation.
If there is an inconsistency between two articles of a code, both applicable to the same case, the
judge will again determine which provision is to be applied to the case by the method of logical
interpretation.
In some cases there may not be any provision of customary rule directly applicable to the
question in hand. In this case the judge will decide by using the methods of analogy and
argument a contrario based on the logic of the legal system. However, both analogy and
argument a contrario are to be used only in exceptional situations. As a matter of principle, both
in criminal law and tax law logical interpretation is permissible only when favourable to the
accused or tax payer.
c. Historical interpretation: this method of interpretation essentially seeks to discover the
intention of the legislator when the words of the statute do not reveal it by the methods
discussed in a. and b. above. The judge takes into consideration all the circumstances
surrounding the passing of a statute. Drafts of the code, work of parliamentary commissions,
parliamentary debates, covering memorandums, are all examined to discover the real intention
of the law-maker. This method of interpretation gives a high value to the conscious intentions of
the law-makers. However, laws are usually passed by a crowded Parliament. Therefore it is
often quite difficult to understand what the real intention of the law-maker was. Moreover, it
should be born in mind that parliamentary documents and proceedings concerning a code relate
to the past and indicate circumstances prevailing in the past. But as law is made for the future
and its innumerable and unpredictable cases, the knowledge gained from the past may be
misleading. For construing recent legislation the historical method of interpretation may prove
useful. However, as time passes, it becomes less useful to apply the statute in the light of the
intent of the original legislator without reference to new needs and conditions.
d. Teleological interpretation: this method of interpretation aims at extending the application of
statutes to situations beyond the scope of legislative intention. This method is the opposite of
the historical interpretation. In historical interpretation a statute is construed according to its
original purpose. Teleological interpretation, on the other hand, implies the construing of a
statute only in view of its present purpose. When the judge applies this method, he considers the
realities of social life and interpretation is a creative activity. Of course the judge may benefit
from the notions of justice, social justice and social utility in this difficult task. The French Civil
Code dated 1804, which is still applied, owes its vitality to the unending efforts of the French
judges who have mainly preferred the method of teleological interpretation.
G. Retroactivity of Laws (Kanunların Geçmişe Yürümesi)
In the Turkish legal system, as in other legal systems, the non-retroactivity of laws is accepted
as a general principle. If a statute can change rules applicable to past events, the confidence of
the citizen in the law can be shaken, as no one can know the content of laws which will be
passed in the future. The principle of non-retroactivity is a safeguard of democracy and personal
freedom against the arbitrary interference of the state. In the past, ex post facto laws were
condemned both by the Greeks and Romans. The corpus juris civilis strongly rejected the
retroactive application of laws. Later, retroactive legislation was forbidden by the Declaration of
Human Rights and by Constitutions put into force in the XVIIIth century.
In the Turkish Constitution the non-retroactivity of criminal codes is clearly expressed.
Article 38 says that `no person shall be punishable for an act which is not considered an offence
under the law in force at the time the act was committed.' The same principle is also stated in
the second Article of the Turkish Penal Code.22 Moreover, in the Statute Regulating the
Application of the Turkish Civil Code the non-retroactivity of the Civil Code is also stressed. A
similar provision was introduced in the first Article of the Statute Concerning the Application of
the Turkish Commercial Code of 1957.
However, the non-retroactivity of the laws is not an absolute principle applicable to all cases.
Certain types of retroactive laws are favoured, or at least tolerated, by the Turkish system of
law. Thus, the principal of non-retroactivity is usually not applied to laws of a procedural
character, whether civil or criminal, in the belief that the subsequent procedural rules will
govern the case better than the previous rules.
H. Enforcement of Statutes
Statutes are published in the Official Gazette23 after their promulgation by the President of the
Republic. Usually the effective date of a statute is specified in the statute itself, by some such
phrases as `this statute becomes effective on the date of its publication in the Official Gazette,'
or `this statute becomes effective six months after its publication date.' A special law has been
passed to solve problems concerning the publication and effectiveness of statutes where the
statute in question is not clear. According to this law,24 if there is no provision in the statute
itself governing the date of validity, it becomes effective 45 days after its publication in the
Official Gazette.
Generally, Turkish statutes are applied within the frontiers of Turkey to every individual,
Turk or foreigner. This principle is not absolute; in some cases, foreign laws may be applied to
foreigners living in Turkey. For example, in an action of divorce between a German wife and
German husband living in Turkey, German law will be applied to them if they accept the
jurisdiction of Turkish courts. To cases concerning personality and family matters of foreigners
their national laws are applied, provided that these laws are not contrary to Turkish public order
and morals. Similarly foreigners living in Turkey are not allowed to vote in political elections in
Turkey. On the other hand, Turkish statutes may be applied to some cases which take place in
foreign lands. Certain crimes are tried and punished in Turkey even if they are committed in
foreign lands and might be tried by the foreign court. Many of these problems are the subject of
that branch of the law called private international law, or the rules of conflicts of law, which is
beyond the scope of this book.
22.
`If the provisions of the law in force at the time of the commission of a felony or misdemeanour differ from the provisions
of a law enacted after its commission, the law in favour of the accused shall be applied and executed.'
23.
The Official Gazette (Resmi Gazete) which is published in Ankara daily, except on holidays, includes not only the statutes,
but also regulations, by-laws, decrees, some decisions of the courts and official announcements. The official texts of statutes may also be
found in a publication called Düstur, published by the Prime Ministry, which is issued annually. The statutes may be found under
http://rega.basbakanlik.gov.tr
24.
Law No. 1322, dated 28 May 1928.
I. Repeal of Statutes
It is not always easy to determine when a statute is annulled. Generally a new law contains an
article nullifying the previous law on the subject. For example, in the Statute Concerning the
Application of the Civil Code of 1926, in Article 43, it was clearly stated that the `Mecelle has
been repealed.' In this case one law has explicitly been annulled by another law. But in some
other cases such a clear reference to a previous law may not be found. Instead, a general
provision may state that `articles of other statutes contrary to this statute are repealed.' In this
case the judge has to decide which articles of the previous statutes are annulled by the new
statute. In some cases no article can be found in the new statute nullifying a previous statute.
In relating different statutes, inconsistencies should be settled by the judge according to
certain general principles of law. Thus, if there is a contradiction between the articles of two
laws of equal rank (e.g. both statutes) the later will prevail over the earlier. In some cases there
may be a conflict between the provisions of a general code and a particular code. In that case,
the judge will assume that an earlier general rule is replaced by the more recent particular rule.
If there is a conflict between a prior particular rule and a later general rule the conflict is to be
resolved by the judge according to the `assumed intention of the legislature.'
IV. COURT DECISIONS
A. General Considerations
In most countries the decisions of superior courts are treated with respect by inferior courts
which will follow them when they are called upon to decide similar cases. The question arises
whether such decisions can be considered precedents, that is `a judgment or decision of a court
of law cited as authority for deciding a similar set of facts.'25
In determining uncertain points of law judges will necessarily tend to decide in accordance
with the pattern of previously decided cases. The reasons for this development are several. From
the psychological point of view anyone who is going to decide a dispute likes to justify his
decision by referring to a past decision. Moreover it is highly desirable that court decisions
should be uniform. If there is no uniformity among court decisions, the principal aim of justice
to promote security in society may not be realized. Contrarily, if the decisions of courts in
similar cases are similar, the faith of the people in the system of justice is maintained.
Contrary to the Anglo-American legal system,26 in Continental countries judicial precedents
are not in theory regarded as a source of law, due to the view that the legislature is the sole
source of new law, and the only law-maker as such. According to this prevailing point of view,
although prior decisions may assist a judge in arriving at a conclusion, they are not binding
upon him and he must decide a case as he himself thinks right. Notwithstanding this theory, in
practice it is generally accepted on the Continent that to secure certainty and uniformity, as
suggested above, among court decisions the previous decisions of superior courts, especially of
a country's supreme court, are to be as binding as statutory law.
25.
James S. Philip, Introduction to English Law, p. 10 (London, 1955).
26.
The role of judicial decisions and precedents in Anglo-American law is discussed in the following works: Dias and
Hughes, Jurisprudence, pp. 52 ff. (London, 1957); A. Ross, On Law and Justice, pp. 84 ff. (London, 1958); W.D. Smith, Handbook of
Elementary Law, pp. 87 ff. (St. Paul, Minn., 1939).
B. Precedents in Turkey
Turkish courts are bound to make their decisions in conformity with the statutory law, the
function of the judiciary being to interpret and apply the law.
Where no statutory rule fits a civil law case before him, a Turkish judge is also authorized to
decide according to customary law as discussed above. If there is no applicable customary rule,
then the Turkish judge should act as a law-maker and lay down a new rule within the
framework of the general principles of law, benefiting from precedent and doctrine, i.e. books
of authority. By authorizing the judge to act as law-maker in these exceptional cases the first
Article of the Turkish Civil Code has set down an important and revolutionary principle.
In Turkey certain precedents are followed. Thus the decisions of the Constitutional Court,
which are officially published, are binding (Cons., Art. 153). Inferior civil and criminal courts
are bound by some decisions of the Court of Cassation and the Court of Cassation in turn is
bound by some of its own decisions. Similarly in administrative cases the decisions of the
Council of State are also authoritative and binding for inferior administrative courts, including
the Court of Accounts. Binding and authoritative decisions of the higher courts, i.e. the Court of
Cassation, the Council of State, the Military Court of Cassation and the High Military
Administrative Court27 are as binding and authoritative on the courts and agencies within their
jurisdictions as the rules of a statute.
Therefore, by interpreting and applying the law, superior courts enjoy the privilege of laying
down rules as effective as the rules of a statute.
C. Court of Cassation (Yargıtay, Temyiz Mahkemesi)28
Not all decisions of the Court of Cassation enjoy the prestige and authority of precedent. As a
principle the decisions of the General Assembly of all chambers of the Court of Cassation are
binding. If there is a contradiction between the decisions of a chamber of the Court of Cassation
or between two chambers or if it is necessary to alter established precedent, the General
Assembly on the Unification of Judgments makes a unifying decision (İçtihadı Birleştirme
Kurulu Kararı) which binds all other courts and the Court of Cassation itself.29 The other
decisions of the Court of Cassation, including the decisions made by the Assembly of Civil or
Criminal Chambers are not made legally binding upon the inferior courts. However, though
these decisions are not considered legally binding, inferior courts generally pay attention to
them. This is partly due to the fact that judges of inferior courts respect decisions made by the
Court of Cassation. Besides, the decisions of the judges of the inferior courts are evaluated by
the Court of Cassation in considering their professional advancement. The decisions of the
Court of Cassation are regularly published by the Directory of Publications of the Court of
Cassation and by some private institutions.
In conclusion, it should be borne in mind that, notwithstanding all these practical
developments, in Turkey there has never been an important body of judge-made law as exists in
the Anglo-American countries.
27.
See paragraphs D, E and F below. On the Constitutional Court see Chapter 2, para. V B on the Constitutional Law.
28.
On the structure of the Court of Cassation see below Chapter 11, Part 2, IV on the Law of Procedure.
29.
Law of the Court of Cassation, No. 2797, dated 8 Feb. 1983, Arts. 15, 16, 45.
D. The Council of State (Danıştay, Devlet Şurası)30
The Council of State settles administrative conflicts, expresses opinions on draft laws submitted
by the Council of Ministers, examines draft regulations and concession contracts, acts as the
court of appeal in administrative cases and discharges other duties prescribed by the law.
Three-fourths of its members are elected by the High Council of Judges and Public
Prosecutors, one-fourth of its members is appointed by the President of the Republic.
The Council of State is composed of twelve chambers, ten of which function as judicial
chambers and two of which function as administrative chambers. The duties of the
administrative chambers are to express opinions on draft laws, to examine draft regulations and
concession contracts, and to give opinions on other matters referred to them by the office of the
Prime Minister.
The judicial function of the Administrative Council of State is extremely important both as a
safeguard of the individual against the interference of the state and as an arbiter between the
state and the individual. Thus Article 125 of the Constitution states that no act or procedure of
the administration shall be immune from the review of law-enforcing courts. However, judicial
power cannot be used to limit the exercise of administrative (executive) power in accordance
with laws. No judicial decision can replace an administrative act or procedure. In court actions
instituted as a result of administrative acts, the statute of limitations shall start from the date of
written notification. The administration is liable for the damages resulting from its acts and
operations.
Unifying decisions made by the General Assembly on the Unification of Judgments bind all
inferior administrative courts and the Council of State itself. When there is a conflict between
the decisions of different judicial chambers or different decisions of the General Assembly of
Judicial Chambers, the First President of the Council of State, concerned judicial chambers, or
the Chief Prosecutor of the Council of State may require the General Assembly on the
Unification of Judgments to make a unifying decision.31
The High Military Administrative Court (Askeri Yüksek İdare Mahkemesi), established in
1972, is authorized to exercise judicial control over the acts and procedures of the
administration related to military personnel. A special law has been passed by the Grand
National Assembly establishing the composition and the rights and duties of this court. It is the
final decision-making body in administrative cases concerning military personnel and its
decisions cannot be examined or reversed by either the Council of State or the Military Court of
Cassation.
E. The Court of Accounts (Sayıştay)
This Court is in charge of auditing on behalf of the Turkish Grand National Assembly the
revenues, expenditures and property of the government and its agencies, deriving from general
and annexed budgets (Cons. Art. 160). The Court of Accounts also makes decisions regarding
the accounts and operations of responsible government officials. The decisions of the Court can
be either decisions of a chamber, decisions of the General Assembly of the Chambers, or
decisions of the General Assembly of Appeal. If there is a conflict between the decisions of the
Council of State and the Court of Accounts, the decisions of the Council of State are considered
superior (Cons., Art. 160 II).
30.
Law of the Council of State, No. 2575, dated 20 Jan. 1982. See Chapter 3 on the Administrative Law.
31.
See Law of the Council of State, Arts. 39, 40.
F. The Military Court of Cassation (Askeri Yargıtay)
The Military Court of Cassation (Cons. Art. 156) is the court of last instance in military cases. It
is composed of five chambers; each has a chairman and seven members. In addition to the five
chambers there is a first President, a second President and a Military Chief Public Prosecutor.
The members are selected by the President of the Republic from among candidates nominated
by the General Assembly of the Military Court of Cassation.
All decisions made by the General Assembly on the Unification of Judgments and the
General Assembly of the Chambers bind all inferior military courts and the Military Court of
Cassation itself.
G. Court of Conflicts (Uyuşmazlık Mahkemesi)
The Court of Conflicts is empowered to deliver final judgments on disputes between courts of
justice and administrative and military courts concerning their jurisdiction and decisions.
The organization of the Court of Conflicts, the qualification of its members and the
procedure for their election and its functioning is regulated by statute. The office of president of
this Court shall be held by a member assigned by the Constitutional Court from among its own
members.
V. DOCTRINE (BOOKS OF AUTHORITY)
The task of the legal writer, or jurist, is to discover by logical analysis the several possible
interpretations of laws and to indicate their practical consequences. However, it should be
remembered that the function of the jurist is not only to construe the existing positive law, but
also to make recommendations about changes in and additions to the existing law which ought
to be enacted in the future. Along with the dynamic evolution of the community its ideological
basis also changes. This development exercises a strong influence upon the legal system of the
community. Jurists not only guide the authorities administering the law, that is judges and
administrators, but also the legislator.
In accordance with the Roman law tradition on the Continent the writings of legal authors
form a source of law. The writings may not be binding on judges, but they are often highly
persuasive.
Juristic works are not an independent `source of law,' although in some cases juristic opinion
leads to the formation of law. Especially where the positive law is silent, juristic opinion may be
resorted to. Though the views of academicians are rarely quoted by the Turkish courts,
nevertheless, it may confidently be stated that professional opinion is going to play an
increasingly important role in the Turkish legal system.
Chapter 2
Constitutional Law
Prof. Dr. Ergun Özbudun*
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 (ferman) 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 Constitution of 1876, promulgated by Sultan Abdülhamid 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' (Meclis-i Umumî), was
composed of two chambers: the Senate (Heyet-i Âyan), and the Chamber of Deputies (Heyet-i
Mebusan).
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
*
Bilkent University, Ankara.
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.
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 Abdülhamid 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' (İkinci Meşrutiyet) 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 (İttihat 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 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, modern 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. 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 singleparty 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 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 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.3 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 Hakkında Kanun,4 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.5 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.6 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 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
2.
Law No. 1488 of 22 Sept. 1971 and Law No. 1699 of 20 March 1973.
3.
See Anayasa Düzeni Hakkında Kanun -- Law on the Constitutional Order, Law No. 2324, 28 Oct. 1980, R.G. No. 17145;
and Milli Güvenlik Konseyi Hakkında 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.
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 Turkey.
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, secretariesgeneral, 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 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 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 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 May 7, 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 Atatürk 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 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 Atatürk 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
`Atatürk 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 (Yüksek Seçim 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 (Yargıtay) and five by the plenary session of the Council of State
(Danıştay) from among their own members. There are also electoral boards with similar, but
more limited, powers in all provincial (il) and country (ilçe) seats. The provincial electoral
boards are composed of local judges and the country boards are presided over by such judges.
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 of law; 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 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 Atatürk. 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 İşleri Başkanlığı)
as part of the administrative apparatus (Art. 136). The Constitution (Art. 174) also accorded
special protection to the eight principal reform laws (İnkilâp Kanunları) passed during the
Atatürk 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.
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
(kamulaştırma) 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 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' (hükûmet tasarrufları) 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 nonretroactivity 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' (kanunî hâkim güvencesi) 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 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 sorumsuzluğu) means
that members of the TGNA shall not be held responsible for votes cast, speeches made, and
opinions expressed in the course of legislative activities or for repeating and disclosing those
activities outside the legislature. Freedom from arrest (yasama dokunulmazlığı) protects legislators from what may be arbitrary or politically motivated detentions or arrests. The Constitution
states that no members 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 (içtüzük) 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' (başkanlık divanı) of the TGNA.
The Constitution has taken further measures to assure the impartiality of the Speaker (Art. 94).
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.7 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.
7.
Law No. 2839, R.G. 13 June 1983.
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.
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
görüşme), parliamentary investigations (meclis araştırması), parliamentary inquiries (meclis
soruşturması), 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 noconfidence (güvensizlik önergesi). 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 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. 104). 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 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
hainliği), 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 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 counter-signature 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 coordination among
the ministries and supervises the implementation of the general policy of the government (Art.
112). As in other modern 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 modern 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-à-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 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' (yürütme organının düzenleme 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 (tüzük) and by-laws (yönetmelik) 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
hükmünde 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. 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 law-amending
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-à-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 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 1961 Constitution, of appointing the judges of the
Military Court of Cassation (Askeri Yargıtay) and of the High Military Administrative Court
(Askeri Yüksek İdare 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 post-World 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 (Sayıştay). 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).
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 davası) can be instituted by the President of the Republic,
parliamentary groups of the government party and the main opposition party, or at least onefifth 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
aykırılık itirazı) 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, lawamending 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. 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.
Chapter 3
Administrative Law
Prof. Dr. Sait Güran*
I. INTRODUCTION
A. Subject Matter of Administrative Law
Administrative law (idare hukuku) is the branch of law particularly concerned with the
administrative machinery of government, `the Administration' (idare cihazı / idare). However,
the composition and/or functioning of some agencies in the legislative and judicial branches of
government also fall within the domain of Administrative Law.39 On the other hand, there are
certain matters which are within the jurisdiction of the Administration, but which are subject to
the rules of private law, such as commercial law, labour law, and the law of obligations. In other
words, administrative law is the body of law dealing with matters which are not legislative,
judicial or political in nature and not governed by private law. Thus the content of Turkish
administrative law is different from that of Anglo-American administrative law but identical to
droit administratif: it comprises a wide range of topics such as public personnel administration,
police power, administrative acts, actions and contracts, rule-making power, liability of the state
and its civil servants, emergency powers, central and local administration, judicial control of the
Administration, administrative sanctions, public property (eminent domain), public economic
enterprises, privatization, regulation, public utilities, licensing, taxation, planning and natural
resources.
B. Background
Origins of administrative law and administrative machinery of Turkey go back to mostly French
oriented reforms put into effect by laws passed and institutions founded at Ottoman era, as a
westernization movement, from the end of 18th century onward. Examples could be given from
different areas. The most illustrative example, as a relic surviving also during the Republic, is the
Council of State (Şurayı Devlet; Danıştay), which has been founded in 1886, as a copy of the
French Conseil d'Etat. Court of Cassation (Yargıtay), Court of Accounts (Sayıştay), central, provincial and local administration, Military Academy, Schools of Engineering, Medicine,
Law and Administrative Sciences (Mülkiye), Agricultural Bank (Ziraat Bankası), foundations,
public service concessions, secular courts (Nizamiye) and laws, secular schools (idadi, rüştiye
ve sultani), even the civil service were taken over by the Republican Turkey, as a legacy
from the Ottoman Empire.
*
School of Law, Koç University. This text is the mainly rearranged, improved and rewritten version of the 1966 edition of Chapter 3
by late Professor Tahsin Bekir Balta.
1.
For example the Speaker of the Turkish Grand National Assembly (TGNA) or the Chief Justice of the Constitutional Court or of the
Council of State has the power to appoint civil servants for clerical positions. The organization, powers and acts of the Supreme Council
of Judges and Public Prosecutors are definitely administrative in nature.
C. Republican Era
With the opening of the Grand National Assembly of Turkey, being a constituent and
revolutionary assembly, not bound by the Ottoman Constitution, in Ankara, in April 23, 1920, a
new era started with the following declaration: "Sovereignty belongs to the People" which very
deeply influenced the governmental system. Further major steps in this regard were: Enactment of
a new Constitution in 1921, with republican character; abolishment of sultanate in 1922;
eradication of centuries old capitulations -including judicial ones- by Lausanne Treaty; official
proclamation of the Republican form of government by a Constitutional amendment in 1923;
enactment of the 1924 Constitution which designed the governmental system according to basic
principles and structure of a parliamentary model, providing a two-piece Executive branch
composed of unaccountable President, politically accountable Council of Ministers and
Ministers; and laid down basic principles of the Administration and administrative justice.
1924-1926 were ground breaking years for the Republican era, because of following additional
radical legislation: In March 1924 abolishment of caliphate; unification and secularization of
education by elimination of religious education and closure of religious schools; position and
office of Seyhulislam and the Ministry of Religious Foundations were also abolished; in April
1924 a new Law abolished religious courts, retired judges and transferred their jurisdiction to
secular courts; a new Village Law and Law on Municipal Fines, Law on Council of State.
Another point in this regard was the fact that the bureaucratic personnel and tradition remained as
another Ottoman legacy to the new State, which was inevitable. However, it was another fact that
the bureaucratic personnel, due to loss of limited educated and qualified human resources in
World War and War of Independence, inadequate in number, lacking professional and technical
merit, at this early days of the Republican Revolution, served with full trust, devotion and effort.
Especially the military and administrative classes, teachers, doctors and existing technical
civil servants, spent great energy and effort for the birth of the new State and also they were
highly successful.
Emergence and existence of the new State was primarily a revolution in area of values. Its aim
was to eradicate the cultural legacy of the Ottomans, which was the very foundation of political
and administrative concepts, institutions and practice as well. It attempted to replace the Islamic
culture and thought pattern with a rational-positivist and secular orientation. In this program, it
was incumbent upon the universities to train a new generation of bureaucrats, judges who would
promote and safeguard the goals of the Republican Revolution. With this end in mind, in
addition to new openings, Darülfünun, the Ottoman university in Istanbul, was closed and it was
reopened as Istanbul University with a different concept and faculty; some university's schools
-like Mülkiye- were transferred to Ankara, the capital of the new State. A statement of Atatürk,
when he inaugurated the new law school in Ankara in 1925, illustrates the picture in full. Atatürk
said that this new law school which will educate new administrators and judges was to be
instrumental in doing away with traditional institutions, and in replacing them with contemporary
ones, equipped with the values, knowledge and goals of the Republic.
In 1925 Council of State (Şurayı Devlet; Danıştay) was refounded; in 1926 a Civil Service Law was
passed which regulated the status of civil servants according to principles of merit-career
system; Municipal Law of 1930 (No. 1580, currently in force) was a translation of the French text;
Laws about organization of various ministries were also passed.
A novelty concerning administrative machinery at the beginning of the Republican era was state
economic enterprises. As a result and because of both etatism as a structural principle and
nationalization process and urgent need for economic development with lack of capital, knowhow and even expert personnel, among other factors -such as industrial planning- the State
undertook the duty to be directly involved in economic, industrial, fiscal life, as an enterpreneur
and service provider. This new mission, different from classical functions,
influenced the role, organization, personnel, methods of operation and legal regime of the
existing administrative machinery and also created a new branch in administrative law.
In sum, both during the Ottoman Empire and at the Republican era, in Turkey, in field of
administrative system it was mainly French institutions which have served as models. In contrast to
foreign codes of civil, penal and procedural law, which were adopted in toto, the Turkish
development of Administration demonstrates more selective approach in the adoption of
foreign institutions. Even in cases of total adoption from France, like Council of State or
provincial administration, the Turkish version differs somewhat from their French originals.
Because, throughout the adoption process, the legislatures have not confined themselves to
foreign patterns in establishing needed administrative institutions. Especially since the beginning
of the Republic, development of administrative machinery has followed the country's particular
needs and concepts. Certainly foreign experience has been taken into account in the reform
process, but more and more on the basis of a sound comparative method.
Accordingly, present Turkish administrative machinery can be described as a rather sui generis
home made system, with the contribution of foreign law.
In recent years, winds blowing from various directions have influenced administrative
machinery. Incorporation with worldwide globalization, demands and directives of institutions
such as International Monetary Fund (IMF) and World Bank, due to economic relations, on the
one hand, membership efforts together with harmonization process to European Union (EU) have
caused new changes and added new institutions to Turkish Administration. Most illustrating two
examples are privatization with various methods and creation of -so called- independent
regulatory agencies. The second are founded according to the USA model, which are a
unique feature of the US administrative system -which is the birth place- since one century,
but also being applied more and more in France as well, with some structural modifications.
D. Emergence and Development of Administrative Law
Parallel to the birth and development of modern administration in this country, as explained
above, "Administrative Law" emerged with penetration of Continental-French administrative
law legal thinking, institutions, concepts, codes and even doctrine, both during the
Empire and the Republic. The same trend is observed in studying and teaching of
administrative law and public administration as well, with the opening of Law School and School
of Political Science, in Istanbul, in 1880s. Even later, French impact, with doctrine and
jurisprudence, reserved its leading position as the source of origin of Turkish
Administrative Law; however, as a result of and parallel to the developments during the
Republican era, "Turkish Administrative Law" developed its own unique lines, without breaking
its century old touch with French administrative law, on the one hand, but by producing a
balanced blend of universal, modern concepts and institutions, with local realities, needs and
concepts, on the other.
Outside inputs mentioned above during last decade caused inclusion of some concepts and
areas of US Administrative Law, such as public service and public utilities and administrative
decision making procedure, in addition to independent regulatory agencies and regulation.
Probable developments in the predictable future, in this respect, are more important than present
changes. Turkey's decision and recent concrete steps for participation to EU, have made and for
the future will continue to make considerable impact on Turkish Administrative Law. Because, as
a would-be candidate and member to the EU, Turkey has started to harmonize her Constitution
and laws to EU Law; but more importantly than this, in case of becoming a member of the
Union, EU Law will become superior to Turkish law, which very simply and clearly means that
Turkey, first of all, must amend her Constitution, including the eighty-year-old principle on
sovereignty; secondly, Turkish Administrative Law will lose her "independent identity" and
will fall to a subordinate rank and EU Administrative Law will become the "superior" part of
the Turkish Administrative Law; because, EU Law will acquire the position to be the "Supreme
Law of the Land" for all branches of Turkish Law, including the Constitution, due to its
supranational legal nature and power.
Another recent development in Turkish Administrative Law has been the legal value given to
decisions of the European Court of Human Rights (Court), a supranational court, in spite of the
question whether it is constitutionally permissible under Article 6 and 90 of the Constitution.
Recently, the Grand National Assembly of Turkey, the Constitutional Court and the Council of
State and part of doctrinal writings have attributed binding nature to the decisions of this court,
as well as regarding them as a source of law that must be taken into consideration. This approach
to treat the decisions of the Court as superseding the Turkish law as a whole, has already
diminished and will continue to diminish in the future, the independent character and will
contract the scope of Turkish Administrative Law in various areas and aspects, in addition to the
future EU Law.
II. BASIC POLITICAL AND LEGAL PRINCIPLES
The Turkish administrative system is based upon certain fundamental principles stated in the
Constitution of 1982 and maxims inherent in the administrative system that Turkey has
accepted.
The fundamental legal and political cornerstones of the Turkish State are set forth in Articles
1-16 of the 1982 Constitution.
The Constitution starts with announcing that the political system is a republican democracy,
and outlines fundamental characteristics of the Republic such as the separation of powers,
secularism, the supremacy of law, and constitutional government. In Article 5, the Constitution
defines the fundamental aims and duties of the state, such as the duty to ensure welfare, peace
and happiness; the duty to remove political, social and economic obstacles which restrict the
fundamental rights and freedoms of the individual; to provide the conditions necessary for the
material and spiritual development of the individual; to safeguard the independence, integrity
and indivisibility of the country and the Turkish nation.
These political and legal principles apply to the organization and functioning of the
Administration as well. Some of these principles will be briefly explained as follows.
A. Legality of the Administration
Article 8 of the Constitution states that ‘the executive function shall be exercised and carried out
within the framework of law,’ which means that aside from directly applicable provisions of the
Constitution, in order to exercise any authority, the Administration must be empowered by a
law and cannot take upon itself a field of activity without legislative authorization.
The principle of legality -- expressed in Article 8 and in many other articles by the phrase
`regulated/prescribed by law' -- also means that all administrative agencies must act in
accordance with the statutes. This principle constitutes an effective limitation on the
administrative machinery, a real guarantee of the liberties of the individuals and a barrier to
possible arbitrary rule by the Administration. Both the Constitutional Court and Council of State
have repeatedly announced that the principle of legality (kanunilik ilkesi) is the number one
maxim of the Turkish governmental system.
As regards the extent of regulation by law, only a relatively small part of administrative
functions are connected with law enforcement. The far greater part of them are related to the
practical or technical demands of society, e.g. public order, education, health and other public
services. The nature of this work is essentially administrative. The law normally confines its
regulation, which is “first hand” regulation, to draw the basic and general frame of
administrative organizations and functions, unless more detailed regulation is required either as
a guarantee for the individual or for public interest. Cases of these are mainly related to
fundamental rights and liberties, public personnel administration and public finances.
These principles can be considered in line with Articles 115,123 and 124 of the Constitution,
which are the primary basis for determination of the extent of legislative competence. The point
to be emphasized is not the constitutional validity of such legislative practices, but their
convenience from the point of view of sound administrative needs and techniques. Indeed, the
Constitution does not exclude such comprehensive regulation of administrative matters. On the
contrary, the wording of the relevant constitutional provisions lends itself to a wider
construction, which should be avoided in view of sound administrative needs.
Administrative matters falling outside the scope of regulation by law constitute matters of
administrative `discretion,' more appropriately designated as `administrative appreciation' in
Turkish administrative law. The administration has to deal with these matters in a consistent and
not an arbitrary manner. In this connection the following should be noted:
-- Administrative orderliness: Discretionary power is not to be exercised merely in an
expedient manner but, as far as the needs of practical flexibility permit, by the establishment
of legal rules, pursuant to the administrative rule-making power. These are the requirements
of orderliness and objectivity in public administration.
-- Limits of appreciation: In the exercise of discretion, general tenets of public law applied by
the Council of State, such as the principles of equal treatment, non-abuse of power and
inexistence of discrimination or arbitrariness are to be followed, in addition to legal
restrictions in particular cases.40
B. The Rule of Law
The 1982 Constitution in Article 2 describes the Turkish Republic as a State of Law (Hukuk
Devleti), that is, as it is understood in Anglo-American jurisprudence, a state obedient to the
rule (or the supremacy) of law. This concept represents a common ideal of all free democratic
40.
The fundamental limitation on the discretionary (appreciation) power of the Administration is `public interest' (kamu yarar). All
acts and actions of the Administration must serve the public interest. But, when judicial review of the discretionary power is concerned,
`serving the public interest' becomes the determining test in order to decide the validity of the administrative acts and actions. This is
what Balta implicitly expressed with the term `non-abuse of power' (p. 55, first edition of this book).
societies and means a government which offers to the individual legal security and standards
inspired by justice. Views in different countries vary somewhat as to what constitutes rule of
law. Most agree on the following:
-- Guarantee of human rights. This requires that the fundamental rights of the individual, such
as liberties, the right of property, equality of treatment, the right to petition and the security
of rights, be protected.
There are other rights, such as the right to certain public services, including education,
health and social services, and the right to participate in the public life of the country. But
these relate more to particular political systems than to the legal concept of the rule of law.
The legal devices for safeguarding the fundamental human rights are threefold. Firstly,
their limitation is reserved to the legislature. This means that any restriction must take the
form of a law passed by a popularly elected parliament. Secondly, the authority of the
legislature is limited by a rigid Constitution, which excludes arbitrary action and safeguards
the essence of the human rights. Thirdly, respect for this constitutional limitation must be
ensured by judicial control.
Under the constitutions prior to the 1961 Constitution these requirements of the rule of
law were only partially implemented. Particularly, constitutional limitations on legislative
authority were both insufficient and inoperative, as judicial enforcement was lacking. These
shortcomings were solved by the present Constitution. It has limited the legislative power to
restrict fundamental rights, firstly by defining the purposes for which they may be restricted,
such as public interest, public morality, public order, social justice and national security, and
secondly by prohibiting any infringement which shall conflict with the requirements of the
democratic order of the society (Const., Art. 13 II). Moreover, it has established a
Constitutional Court to control the constitutionality of laws.
-- Legality of public administration. As suggested above administrative restrictions of rights
and liberties of the individual, e.g., by police actions, taxation or other impositions, licenses,
must be authorized and framed by law.
So, too, benefits, like educational or health services must meet legal standards such as
equality of access and of treatment.
--
Non retroactivity. As a principal, laws concerning administrative law matters and
administrative decisions, should not have retroactive effect, unless there is a ‘compelling’
public interest; and as the Constitutional Court said in 1989, ‘trust (confidence) to the State
and Law’ must exist.41
-- Judicial control of public administration. The rule of law requires judicial control of public
administration, as openly stated in Article 125 of the Constitution.
-- Separation of powers. The above two requirements are meaningful only where the judiciary
is independent and separate from the legislature and executive.
-- Democracy. Finally, the rule of law is a concept intimately connected with a democratic
political life. It is possible that a non-democratic regime will try to shape its legal institutions
to conform to the requirements of the rule of law. In fact the rule of law has often started
under a non-democratic system. This was the case with the beginning of human rights
protection in England and in Turkey, the judicial control of public administration in France
and in Turkey and, particularly, the independence of the judiciary in almost every country.
But the rule of law can definitely and comprehensively be achieved and preserved only in a
body politic under the control of those who are its beneficiaries (namely under popular
control).
41
Anayasa Mahkemesi Kararlar Dergisi (AMKD), No.25, p.433 (1991).
In 1963 the core of rule of law was defined by the Turkish Constitutional Court as:
A State that respects human rights and establishes a just order of law whereby these
rights are protected and maintained.
All acts, actions and functions of such a State must be in conformity with law and the
Constitution and are subject to judicial review. In a State bound by the principle of the rule
of law, the law absolutely prevails over all institutions of the State, including the
Legislature.42
C. The Concept of the Social State
The Constitution (Art. 2) describes the Turkish Republic not simply as a `state of law,' that is, a
`state under rule of law' but as a `social state of law' (sosyal hukuk devleti). Like the rule of law,
the concept of the social state is difficult to define. According to the preamble of the
Constitution, one of the guiding ideas and principles of the Constitution is the understanding
that it is the birthright of every Turkish citizen to lead an honourable life and develop his
material and spiritual resources. Besides, in Article 5 it is openly stated that it is one of the
fundamental aims and duties of the state to ensure the welfare, peace and happiness of the
individual and the society, to remove social and economic obstacles, and to provide conditions
required for the development of the individual's material and spiritual existence.
Unlike the German and French Constitutions the Turkish Constitution does not merely
characterize the Republic as a social state. Like the Italian Constitution, it devotes an entire
chapter -- under the heading of `Social and Economic Rights and Duties' -- to the rights and
duties connected with the concept of the social state (Arts. 41-65).
Some social rights and duties enumerated by the Constitution are: protection of the family,
the mother and the child; housing measures; education of the people and assistance for those
able to attain `the highest level of learning'; land reform; improvement of labour conditions,
equity in wages, paid week-ends and holidays; medical care and social security; prevention of
unemployment; protection of youth, veterans, the disabled, aged people and development of
sports; the provision of social measures for Turkish citizens working abroad; protection of arts
and artists.
The realization of these social rights is a governmental duty (Art. 65), although not the
exclusive responsibility of the government. The freedom of organizations and actions
recognized by the Constitution and legislation leave duties to private initiative as well.
However, the main task remains with the government.
Social measures, of course, are contingent upon the degree of economic development, as the
financial burden has to be met out of the national income. For this obvious reason, the
Constitution expressly makes the fulfilment of the social and economic duties of the state
subject to `the capacity of its financial resources, considering the priorities appropriate with
aims of these duties’ (Art. 65). This gives the government a wide range of discretion which is to
be exercised, not in a delaying manner, but in a dynamic and rational way to promote rapid
progress compatible with the pledge in Article 5.
42.
AMKD, No. 4, p. 343 (1967) and AMKD, No.14, p.189 (1977).
D. State Intervention in the Economic Field
The Turkish economic system is based on a combination of the freedom of private enterprise
and state intervention aimed at economic development. This policy has been evolved since the
beginning of the Republic with the view that Turkey can achieve economic development with
state intervention. The economic provisions of the present Turkish Constitution are based on
this view. Besides, as experience shows, even the governments of advanced countries cannot
always limit their economic policy simply to police actions to preserve the orderliness of
economic process or to hinder excesses and exploitation. They too are not spared the need of
regulatory, supervisory and interventionist action by the state designated at least to protect and
ensure competition in the market, in order to maintain economic progress at a satisfactory level.
State intervention takes two forms: promoting private enterprise and establishing public
enterprise. The policy of promoting private enterprise was more generally practised. The
Republic at first concentrated on such measures. But as this policy alone did not prove
promising, the Republic has, in addition, since the early 1930s pursued a policy of establishing
public enterprises, the real implementation of which began in 1933. In sum, in Turkey, the
economic system is in fact a mixed one. This means an economic system based on coexistence
of private and public enterprises, the latter being the result of a policy of economic development
or of social improvement or of both and constituting an integral and important part of the
national economy.
Major constitutional provisions concerning state intervention both in form of promoting
private enterprises and establishing public enterprises are:
-- The planning of economic, social and cultural development, in particular the speedy,
balanced and harmonious development of industry, agriculture and services throughout the
country, and the efficient use of national resources on the basis of detailed analysis and
assessment and the establishment of the necessary organization for this purpose (State
Planning Organization) are the duties of the state (Art. 166 I).
-- The Plan shall comprise measures to increase national savings and production, ensure
stability in prices and a sound balance of payments and develop investment and employment;
it shall also ensure that investments take into account the interests and requirements of the
society and shall aim to achieve the productive use of resources (Art. 166 II). Development
activities shall be realized according to the Plan.
-- The state shall take measures to ensure that private enterprises operate in accordance with
national economic requirements and social objectives and in conditions of security and
stability (Art. 48 II).
-- The state shall take facilitating and protecting measures in order to secure labour peace in
worker-employer relations (Art. 49 III).
-- The state shall take measures to ensure and promote the sound, orderly functioning of the
money, credit, capital, goods and services markets and shall prevent the formation, in
practice or by agreement, of monopolies and cartels in the markets (Art. 167).
The Constitution directs the state to take protective measures and assist farmers, livestock
breeders and inhabitants of forest villages (Arts. 44, 45, 170), small traders, craftsmen,
consumers, cooperatives (Arts. 171-173).
Like its predecessor, the 1982 Constitution rearranged organization of labour unions and the
right to conclude collective agreements, to strike and added right to lockout and provided that
their exercise shall not be in conflict with public interest and shall not damage the national
wealth (Arts. 51-54).
Finally, the Constitution permits nationalization of private enterprises having the
characteristics of a public service, only on real value, and when it is required by public interest.
Since nationalization shall be realized by a law it is subject to judicial review by the
Constitutional Court.
Equality, naturally, is another principle which applies to the economic field, especially when
direct, indirect, affirmative or negative interventions by various agencies of state are concerned
(Art. 10).
During last decade economic movements and some legal conflicts and their legal impact on
existing law ended up with liberal changes both in State’s role in economy, by opening and
leaving more room for private sector, by withdrawal of the State, even in construction,
operation and performance of
basic public services such as electricity, energy,
telecommunication; and with emergence of new administrative entities with both former and
new functions, such as independent regulatory agencies, and substantial changes in the
Constitution or in relevant laws.43
E. Secularism
One of the most important and unique principles of the Turkish constitutional system is
secularism, which has been regarded as a fundamental achievement of the reform program
introduced under the leadership of Atatürk.
This principle, very briefly, requires a neutral position before any religious denomination on
the part of the Administration; elimination of religious rules, considerations and influences from
the organization and functioning of the legislative, executive and judicial branches of the state;
and prohibition of the establishment of a social, economic, political or legal order of the state
based on religious rules. However, the General Directorate of Religious Affairs, which as an
agency in the Central Administration deals only with Islam, is another unique aspect of Turkish
constitutional system (Art. 136), whose existence is based upon the peculiarities of our society,
emerging from social, economic, cultural and even political considerations and facts. These
have been influential in the inclusion and preservation of this principle and the Reform Laws in
the Constitutions of 1961 and 1982, as well.
Two provisions of the 1982 Constitution are worth mentioning. In Article 136 there is a
constitutional directive stating that the General Directorate of Religious Affairs shall exercise its
duties in accordance with the principles of secularism, removed from all political views and
aiming at national solidarity and integrity. Article 24, after guaranteeing that everyone has the
freedom of conscience, religious belief and conviction, provides that instruction in religious
culture and moral education shall be compulsory in the curricula of primary and secondary
schools; it however prohibits foundation of the fundamental social, economic, political and legal
order of the state on religion and religious tenets.
According to the Constitutional Court, as expressed in its decision on secularism,
‘secularism’ means: To acknowledge that religion should not effect and be influential on State
affairs; separation of religion and State means State affairs and religion are separated from each
other; to put religion under constitutional guarantee, by allowing unlimited freedom, without
making any discrimination between people on their religious beliefs, as a part of their moral
life; to impose limitations on and prohibit exploitation of religion in order to protect public
5. ‘Which of the investments and services carried out by the State, State Economic Enterprises and other public corporate
bodies could be performed or turned over to real persons or corporate bodies through private law contracts shall be prescribed by
Law.’ (Cons. Art. 47); `National or international arbitration may be provided to settle disputes which arise from contracts under
which concessions are granted concerning public services. Only those disputes involving foreign elements can be solved by
international arbitration’ (Cons. Art. 125), Law on International Arbitration, No.4686 (May 21, 2001) and Law on Applicable
Principles in Recourse to Arbitration in Disputes Arising From Public Service Concession Contracts, No.4501 (Jan.21, 2000).
order and security involving actions and behaviors of the people that extends the personal moral
sphere of the individuals and effects social life; to equip the State, as the guarantor of public
rights and public order, with the power to supervise exercise of religious rights and liberties.44 It
is clearly seen that Constitutional Court makes a distinction between ‘right to belief’ and ‘right
to practice’ in the field of religious freedom. It recognizes that right to moral or religious belief
is limitless; but on the other hand, declares that actions -including religious ceremonies and
practices- that cross the boundaries of personal moral life of the individuals and affect the public
life may be limited in order to protect public order, public security, health and public interest.
F. Indivisibility of Administration
The Turkish Administration is built upon the principles of both centralization and
decentralization. Two separate branches of the same unit constitute a single piece, the
Administration. This is a result of the unitary character of the Turkish state which means that in
terms of organization and functions, the central agencies and geographically or functionally
decentralized agencies form a whole (Art. 123) and integrity with harmony and cooperation
between various parts of the Administration shall be regulated by laws. Unity and indivisibility
shall be secured through the central government and its power of administrative tutelage over
the acts and organs of the decentralized agencies. Therefore, at the apex, the President and the
Prime Minister, ministers and the Council of Ministers carry the power, duty and responsibility
of providing the unity and indivisibility of Turkish administration.
G. Unilateral Acts
Administrative law deals with the acts, actions and contracts of administrative agencies in the
exercise of public power (kamu gücü). This category of acts, actions and contracts are defined
as ‘administrative’ acts, actions and contracts, which are different from private law transactions.
The characteristic of administrative acts is unilateral. This simply means that administrative
agencies, through their unilateral decision-making power, can directly make changes in the legal
status of individuals, in their absence and without their consent or approval. Even in contractual
relations, if a contract is an administrative contract, it is still bilateral; but the agency is in a
dominating position equipped with the power of taking unilateral decisions and applying
unilateral sanctions.
Besides, administrative agencies, by exercising their rule-making power as a part of
unilateral action, can lay down general rules which regulate the rights, duties, privileges and
obligations, briefly the legal status, of individuals.
Unilateral administrative acts, as a result of their `executory' (icraî) character, even in case of
their invalidity, have legally binding force upon individuals, until a stay order or decision of
annulment is obtained.
H. Judicial Review by Administrative Courts
The rule of law requires judicial review of the activities of the Administration (Arts. 125, 155,
157). Cases arising between the administrative agencies and individuals are, to the extent that
they are governed by administrative law, reviewed by administrative courts, specialized in
administrative law. Basic differences between the rules, concepts, maxims and origins of private
6. AMKD, No.22, p.312 (1987) and No.25, p.146 (1991).
and public law require a separate court system, procedure, principles of review and
understanding.
Judicial review in administrative law is not only a matter of resolving conflicts between
parties, but also an effective preventive and corrective means in order to keep administrative
agencies within legal boundaries.
The principle that judicial review of ‘administrative’ (idari) matters will be done by courts
within the administrative justice system (idari yargi düzeni) has been subject to a change in
recent years. Jurisdiction of Council of State on public service concession contracts has partially
been transferred both to ordinary courts and to national and international arbitration (Cons. ,
Arts. 47 and 125).
Another novelty is the possibility of bringing unconstitutionality of laws of the National
Security Council period to the Constitutional Court. As a result of elimination of the last
paragraph of the Provisional Article 15 by a constitutional amendment (Law No. 4709) laws or
decrees having the force of law enacted during this period and administrative acts done for
enforcement of them have become reviewable by the Constitutional Court and they will, if
found unconstitutional, be annuled by the Court and then by the competent administrative court.
VII. CONTROL OF ADMINISTRATION
A. Non-judicial Control
According to the structure of the Constitution and the principles of Turkish Administrative Law,
the `Administration' is not a satellite of the executive; it is within the executive branch, but a
separate entity. It operates, however, in close relation with the executive (yürütme organı) and
under the supervision of the legislative, executive and judicial branches. The explanations
below demonstrate the massive degree of nonjudicial controls upon the acts, actions and
agencies of the Administration.
1. Control by Parliament
In practice, whether it functions effectively or not, Parliament has vast and efficient means of
control over the Administration. Some of this control is exercised directly by its members, and
some with the assistance of expert agencies, such as the Court of Accounts and the High
Control Board.
Those controls that are exercised directly by members of Parliament include the collection of
information about the activities of the Administration by asking questions, parliamentary
inquiry and general debate (Cons., Art. 98).
The control mechanism with concrete sanctions include interpellation (gensoru) with the
political accountability of the Cabinet or the minister concerned, and parliamentary
investigation about the penal accountability of the Prime Minister or ministers arising from the
non-fulfilment of their duties.
By refusing to pass legislation introduced or supported by the Council of Ministers, the
Parliament exercises a very important control; similarly, a more efficient weapon against the
Prime Minister and his team is the discussions and the vote on the budget. If the budget
prepared, submitted and supported by the government is not approved by the GNAT, the
Administration collapses; therefore rejection of the budget is a very meaningful and concrete
control over the past and future activities of the Administration and the Council of Ministers.
Voting on the budget, in practice, is a mostly political control in nature; but, at the same time
it is a financial control concerning both taxation and spending for public services.
A functionally similar financial control carried out by the Parliament is the review of the
reports prepared by the High Control Board about the operations of Public Economic
Enterprises. The Parliament eventually decides whether the Executive Committee and the
Director General of each PEE should be acquitted or held accountable.
Another financial control, which is completely technical, is implemented by the Court of
Accounts (Sayıştay) on behalf of the Parliament. The Grand National Assembly of Turkey,
through the Court of Accounts, audits all the accounts relating to the revenues, expenditures and
property of departments financed by the budget and annexed budgets. Law 4963 (dated July
2003), has brought a new and additional instrument of control. According to Article 7, Court of
Accounts, upon the request of the GNAT and limited with the scope of this request, may
exercise control on Administration -except the Presidency- and report the results to the GNAT.
The Parliament gathers information and exercises control over the daily functioning of the
Administration by receiving petitions from citizens and foreigners residing in Turkey, containing requests and complaints (Cons., Art. 74). The GNAT, according to the laws in effect,45
examines valid petitions and decides upon the merits and informs the applicants and the
administrative agencies concerned for proper action. It should be noted that these decisions are
not legally binding upon the administrative agencies, and Parliament intervenes after the
exhaustion of administrative recourses and in cases where judicial remedy is not available.
2. Presidential Control
The President of the Republic is authorized and charged with the duty of ensuring the
implementation of the Constitution and the regular and harmonious functioning of the organs of
the state (Cons. Art. 104). As one of the effective instruments for the fulfilment of this duty the
Constitution provides a special agency, the State Supervisory Council (SSC, Devlet Denetleme
Kurulu), attached directly to the President and whose members and chairman are appointed by
him.46
The President, by means of the SSC, is empowered to control public corporate bodies and
organizations -- for example, ministries, municipalities, state economic organizations, the
Directorate of Religious Affairs, and the Council of Higher Education -- as well as all
enterprises in which the state holds more than half of the capital, public professional
organizations, employers' associations, labour unions and public benefit associations and
foundations. The Armed Forces and all judicial organs are excluded.
The content of this control goes so far as to conduct enquiries, investigations and inspections,
which shall be commenced upon the request of the President and shall be carried out with the
purpose to ensure that the Administration complies with law and functions and develops in an
orderly and efficient manner.
The President has also acquired the power to sign decrees, chair meetings, appoint and
dismiss ministers and appoint senior administrators, which should be considered as a form of
indirect and joint control over the Administration.
45.
Law Concerning the Exercise of the Right of Petition (1 Nov. 1984, Law No. 3071); Law Concerning the Right of Petition of
Turkish Citizens to the GNAT and the Study and Conclusion Thereof (26 Dec. 1962, Law No. 140). As a novelty, 2001 amendment
(Law No. 4709) to Article 40 of the Constitution provides: Every person whose constitutional rights and freedoms have been violated
has the right to request prompt access to the competent authorities. – The State is obliged to indicate in its decisions legal remedies and
authorities the persons concerned should apply and their time limits.
46.
Cons.., Art. 108; Law on Organization of the State Supervisory Council (1 April 1981, Law No. 2443).
3. Intra-Administration Control
Administrative control of administrative agencies consists of a vast network of various checks,
supervision, approvals, repeals, and suspensions, exercised in different forms with different
content.
Within the Central Administration the head of each agency -- ministers, governors, subgovernors -- enjoy hierarchical supervision, including disciplinary authority over the acts,
actions and persons of subordinates, from the point of view of expediency (opportunity:
yerindelik) and legality (hukuka uygunluk). The same control exists in municipalities and
functionally decentralized agencies, and is exercised by the hierarchical head of each agency,
e.g. by mayors, general directors, rectors and deans.
The organs, decisions, contracts, budgets, and by-laws of local and functionally decentralized
agencies are controlled a posteriori by central authorities such as ministers, the Council of
Ministers, the Council of State, governors and sub-governors, as explicitly designated by laws
and in a manner which is known as `administrative tutelage' (idari vesayet).
In addition to the above-mentioned basic controls, the Prime Minister, by means of the Board
of Inspectors, may inspect `all public organizations, public economic enterprises, public
professional organizations, associations, foundations, cooperatives, unions.'47 The High Control
Board, which is attached to the Prime Ministry, examines Public Economic Enterprises and
social security agencies and others falling within its jurisdiction upon the directive of the Prime
Minister.48
Intra-administration control over certain institutions is conducted by specialized entities such
as the Council of Higher Education and the Supervisory Board of Higher Education49 over the
universities, and the Radio and Television Supreme Board over the Turkish Radio and
Television Administration.50
B. Judicial Control of Administration
Turkish governmental system is based upon separation of powers, as expressed in the Preamble
of the Constitution as follows: ‘… which does not imply an order of precedence among the
organs of State, but it refers solely to the exercising of certain state powers and discharging
duties, which are limited to cooperation on and division of functions, and which accepts the
supremacy of the Constitution and the law.’ This simply and clearly means that the whole
balance of the Turkish constitutional system is built upon the maxim of judicial review.
Effective judicial control is therefore not only a matter of distribution of justice, it is also a
matter of supremacy of law, constitutional government, legality of the Administration and
sound protection of rights and freedoms of the people.
Since the acts, actions and contracts of administrative authorities are exceptionally within the
scope of ordinary courts (adliye mahkemeleri), judicial control of the Administration is the
function of administrative courts. These courts of special competence carry out their duty
according to the principles and organization set forth below.
47.
48.
Law on the Organization of the Department of Prime Ministry (Oct.10, 1984, Law No. 3056) Art. 20.
Law-amending Decree in Force of Law on the High Control Board (June 24, 1983, Law No. 2); the Ministry of Finance is
authorized to financial control within its scope.
49.
50.
Cons.., Arts. 130, 131; Higher Education Law (Nov.6, 1981, Law No. 2547) Articles 6-9.
Turkish Radio and Television Act (Nov.11, 1983, Law No. 2954); Law on Establishment and Broadcasting of Radio and
Television Stations.
1. Basic Principles
The 1982 Constitution in Article 125 I laid down the rule that `all acts and actions of the
Administration shall be subject to judicial review.' The last paragraph of the same Article
completed the system of judicial control of the Administration by stating the second rule: `The
Administration shall be liable for damages caused by its own acts and actions.' These two rules,
which compose a single fundamental rule, should always be borne in mind, especially in the
interpretation of the following exceptions related to the extent of judicial review.
Following acts and actions, which are definitely `administrative' in nature, are taken by the
Constitution out of the scope of administrative justice (idari yargı) and the judiciary (Arts. 125,
129, 159 and 160): Acts of the President in his own competence, such as appointment of
members of the State Supervisory Council; and decisions of the Supreme Military Council, for
example promotion and retirement of generals, dismissal of officers from Armed Forces;
likewise, there shall be no recourse against the decisions of the Supreme Council of Judges and
Public Prosecutors regarding the appointment, transfer, promotion of judges; or against
decisions of the Court of Accounts concerning acts and accounts of the responsible officials.
However, a new Law (Law on the Right to Access to Information, dated October 9, 2003, No.
4982), Art. 159) provides that the agency has to give information to person interested, if the
decision shall have any impact on his/her work life or professional reputation. This information
does not provide judicial review of the decision.
Another exception is recently written in Article 125 I which states that even being a special
category of ‘administrative’ contracts, ‘controversies arising from public service concession
contracts may be resolved through national or international arbitration’, which means that in
public service concession contracts jurisdiction of Council of State as an administrative court,
might be eliminated by the parties if an arbitration clause is written in the contract.
Article 125 (para.6) authorizes the Parliament to pass laws restricting the issuance of stay
orders (yürütmenin durdurulması) in cases of state of emergency, martial law, mobilization,
state of war, and for reasons of national security, public order and public health.51
Article 125 comprises three more principles, the first one of which is, ‘in suits filed against
administrative acts, the time limit runs from the written notice’ (yazılı bildirim); the second,
`judicial power is limited to the control of the legality of administrative acts and actions'; and
the third, `no judicial ruling shall be passed which restricts the exercise of the executive
function in conformity with the forms and principles prescribed by law or in nature of administrative act and action or in a way which eliminates discretionary power.'
Other principles of judicial review of administrative acts and actions include the retroactive
effect of a decision of annulment (iptal hükmü); the reviewable character of discretionary
power; written, simple, inexpensive review procedure; the inquisitorial nature of administrative
adjudication and the active role of the administrative law judge; a two-tier judicial review;
suspension of the enforcement and binding force of the administrative act in question before
final ruling; and liability with or without fault.
2. Organization of Administrative Courts
The Turkish system of administrative courts stems from the French. As a general principle, all
governmental cases governed by administrative law fall within the competence of the
51.
The Martial Rule Law states that decisions of the Martial Law Commander are not reviewable.
administrative courts, except for a very limited number of cases referred by the law to the
ordinary courts.
The administrative courts (idarî mahkemeler) include the Council of State, subordinate
courts at the levels below the Council of State, and the Supreme Military Administrative Court.
a. Council of State
The Council of State (Danıştay) is, in its judicial capacity, the highest administrative court,
mainly with appellate jurisdiction. It does review administrative cases as a court of first
instance, however, when it is required to do so by law. It also functions as a court of conflicts
charged with the solution of disputes concerning competence (görev), venue (yetki) and
conjunction (bağlantı). Finally, the Council of State has the duty to eliminate the conflicts
among the judgments of its Chambers and to unify the opinions.
The judicial branch of Council of State now consists of ten judicial chambers (dava
daireleri); one plenary session of the members of the chambers is held for administrative cases
(İdari Dava Daireleri Genel Kurulu), another is held for tax cases (Vergi Dava Daireleri Genel
Kurulu) and the General Assembly meets for the unification of judgments with conflicting or
contradictory opinions. (İçtihadı Birleştirme Kurulu).
Each Chamber convenes with five justices and renders its judgments by majority. The
plenary sessions review cases involving the validity of regulatory acts, such as regulations of
the Council of Ministers or ministries, and cases in which the trial court has insisted on its
previous judgment after initial reversal by a chamber.
As a court of appeals, the Council of State either affirms or reverses and returns the cases to
lower courts, but does not decide on the merits.
Justices of the Council of State are appointed by the Supreme Council of Judges and Public
Prosecutors, and the President of the Republic; the Chief Justice and his deputies, the Chief
Public Prosecutor, and the heads of chambers are elected by the General Assembly for four
years. Membership for judicial chambers is confined to those having some legal training.
The personnel of the Council of State also include prosecutors (savcılar), similar to the
French `commissaire de gouvernement,' and reporter judges (tetkik hakimi).
b. Supreme Military Administrative Court
Members of the Supreme Military Administrative Court are all military personnel, either
military judges or high ranking officers of the Armed Forces. The jurisdiction of the Court
comprises cases arising from administrative acts and actions including those made by military
or civilian authorities, but involving military personnel and relating to military services.52
Members of the court are appointed by the President of the Republic. The Chief Justice, the
Chief Public Prosecutor and heads of Chambers shall be appointed from among military judges
sitting at the court according to rank and seniority.
The judicial function is carried out by two Chambers, the General Assembly and the Plenary
Session of Chambers composed of certain members. Each Chamber has eight members, but
convenes with five, provided that the majority of the members be judges, and decides by
majority.
Judgments rendered by the Court shall not be reviewed by the Council of State; however the
losing party may move for reconsideration by the same chamber.
52.
In disputes arising from the duty to perform military service, the litigant need not necessarily be a member of the Armed Forces
(Cons., Art. 157).
c. Subordinate administrative courts
In 1982 three Laws53 established the first tier of administrative courts in Turkey on a regional
basis. Each judicial region comprises one or more provinces.
The courts founded at the regions are: Administrative Courts (idare mahkemeleri) and Tax
Courts (vergi mahkemeleri), both of which are courts of first instance with general jurisdiction;
and the Regional Administrative Court (bölge idare mahkemesi). The Administrative Courts
review all administrative cases (action for annulment/ iptal davası; full remedy action /tam
yargı davası) which are not within the jurisdiction of the Council of State as a court of first
instance or the Supreme Military Administrative Court. The same principle applies to Tax
Courts which review only tax cases. Both courts are composed of three judges and decide by
majority. Some minor cases prescribed in the organic law (No. 2576), however, are reviewed by
a single judge. Judgments of three-judge courts may be appealed before the Council of State,
but judgments rendered by one-judge court are only reviewed by the Regional Administrative
Court.
Regional Administrative Courts, in addition to their role as mentioned above, function as
courts of conflicts at the regional level and solve problems of competence, venue and matters of
conjunction. These courts are composed of one Chief Judge and two judges and they decide by
majority.
All subordinate court judges are appointed, supervised, and promoted by the Supreme
Council of Judges and Public Prosecutors.
3. Judicial Remedies
a. Action for annulment
An action for annulment (iptal davası) is the principal remedy against illegal administrative
acts, regulations, and by-laws.
Here the complainant seeks the annulment of the administrative act retroactively on the
ground of its illegality.
In order to commence an action of annulment the plaintiff should have standing to sue,
which means the existence of an adverse effect of the decision on his personal interests (kişisel
menfaatleri ihlâl edilenler), which means existence of a considerable link between the plaintiff
and the decision brought before the court for review. The decision of the Administration must
be of an executory nature and final, all administrative remedies must be exhausted, and a sixtyday time limit should not have expired.
Since the commencement of this type of action does not automatically suspend the legal
effect of the act reviewed -- except in tax cases -- the plaintiff should request a stay order
(yürütmenin durdurulması kararı). The Constitution, in Article 125, has expressly stated the
requirements for the issuance of a stay order by the administrative court. If the implementation
of an administrative act “would result in damages which are difficult or impossible to compensate, and at the same time this act is clearly unlawful, then a stay order may be decided upon, by
stating the reasons thereof.” Stay order is a temporary remedy which has binding and restoring
effect until the final decision is rendered.54
53.
The Council of State Act (dated 6 Jan. 1982, Law No. 2575); Law on the Organization and Duties of the Regional Administrative
Courts, Administrative Courts and Tax Courts (dated 6 Jan. 1982, Law No. 2576); Administrative Courts Procedure Act (dated 6 Jan.
1982, Law No. 2577).
54.
The Constitutional Court, on 21 October 1993, for the first time ruled that in addition to its power to annul acts which are
reviewable, it is also inherently authorized to issue ‘stay orders’ to make its final decisions meaningful and operative; and it is an
indivisible component, effective instrument and a protective measure of judicial process, which provides for the safeguarding of the
supremacy of law, the enforceability of final decisions, public interest and public order.
Injunction and mandamus do not exist in Turkish Administrative Law; however,
Administration must comply with court decisions and make all necessary and proper acts within
thirty days. Otherwise both the agency -- and in a case of deliberate inexecution the official
concerned -- will be liable for damages given to the plaintiff and the official will also be subject
to criminal prosecution.
b. Full remedy action
A full remedy action (tam yargı davası) may be brought by a complainant who alleges that the
Administration has infringed some right of his thereby entitling him to compensation. This
action is available not only for administrative acts (işlemler), but for actions (eylemler) as well.
In order to commence a full remedy action the plaintiff should have standing to sue, which
now means the existence of concrete, personal, actual and ‘direct’ damage (kişisel hakları
doğrudan muhtel olanlar) arising from the act or action of the Administration. The beginning of
the sixty-day time limit for bringing the action differs according to the origin of the damage,
depending whether it is an act or action.
Full remedy action is a suit where the `liability' of the Administration is reviewed; to decide
in favour of the plaintiff, the court should either find a service fault (hizmet kusuru) committed
by the Administration, or should base its judgment on the theory of liability without fault
(kusursuz sorumluluk).
Cases of service fault involve some defect, delay or failure in the establishment or operation
of the public service in question. In other words, there is either non-feasance, late-feasance or
mal-feasance. Service fault also appears when mishandling of public affairs has expressed itself
in an illegal decision.
Liability without fault is a rapidly expanding ground for recovering damages in certain
circumstances. According to this principle, what is done in the general interest, even if done
lawfully, may give rise to a right to compensation when an exceptional burden falls on one
particular person, the plaintiff. Besides, the activities of the state, even when conducted without
fault, may in certain circumstances constitute a risk. The fundamental principle of equality in
bearing public burdens and the principle of equity or social risk have been grounds for holding
the Administration liable for damages caused by its acts or actions without fault.
In case of combination of ‘service fault’ with the fault of the official based on his/her
willful misconduct, gross negligence, imprudence and ‘personal, but not severable from
service’ (görev kusuru), Administration and the official are ‘jointly’ liable (cumul). The person
aggrieved, however, must sue the Administration and collect damages. Then, the
Administration, in turn, should sue the official before ordinary courts, for the ultimate division
of responsibility.
c. Plea of Unconstitutionality
If administrative decision is in conformity with the Law or Decree Having the Force of Law
that is based upon, but the legislation is repugnant to the Constitution, in this case, in order to
get a judgement for the annulment of the administrative act reviewed or for compensation, the
plaintiff, has the opportunity to recourse to the Constitutional Court, by raising plea of
unconstitutionality, before the administrative court where the action for annulment or full
remedy action is pending and upon the decision of referral. As a result of this recourse if the
Constitutional Court annuls the legislation under review, then the administrative court will
proceed and solve the dispute before it according to the judgement of the Constitutional Court.
d. Recourse to the European Court of Human Rights
After Turkey has recognized the right to apply to the European Court of Human Rights ( Court)
to her citizens at individual capacity, in 1987, this Court has been functioning as an “upper
court”, within its jurisdiction, by ruling upon the validity of final judgements rendered by the
Constitutional Court, Council of State or Supreme Military Administrative Court or Court of
Cassation, through deciding whether the reviewed act of the Administration and the judgement
of these courts constitute breach of human rights, in matters of administrative law, such as
expropriation, just compensation, dismissal from civil service or the armed forces, denial of
admission to universities or dismissal there from due to wearing scarfs, police brutality, delay
in administrative justice or compensation for damages or actions of and remedies taken by
martial rule authorities.
Aside from the controversial, fundamental and technical legal problem that the Court does not
occupy an upper court position over Turkish courts and its judgements do not have legally
binding force upon them55 both Turkish citizens continue taking their cases to the Court, after
final judgements of the Council of State and even sometimes without first exhausting domestic
channels of judicial review; and Turkish Governments enforcing rulings of the Court.
As a result of this development, on the one hand, The Grand National Assembly of Turkey,
made revisions in the Laws in order to provide incorporation of the Court’s superior position
with the Turkish Judiciary, on the other hand, Turkish high courts referred in their opinions to
decisions of the Court as authorities which have to be followed.
As a final step, as a result of changes made in two Laws in August 2002 (Law No. 4771/
Art.6,7) upon to the “judgement of violation” of the Court, Turkish Constitutional Court and
Court of Cassation should then “re-try” (yargılamanın yenilenmesi) civil and criminal cases
already tried, reviewed, concluded and finally decided, according to the “judgement of
violation” of the Court. This fact, simply and clearly means that courts defined and qualified in
the Constitution as “high courts” (Section 3/II/Art.146,154), have become “lower” courts placed
under the jurisdiction of the European Court of Human Rights, a supranational authority, in
spite of Constitutional provisions a contrario (Art.5 and 90).56 In July 2003, Law 4928
amended Article 53 of Law 257757 and added the Council of State among the “high-lower
courts” as explained in this paragraph.
Sait GÜRAN : Egemenlik Ulus’undur Üstünlük Anayasa’dadır (ANAYASA YARGISI, No.17, Pp. 43-61, 118-122, 441-445)
İbid.
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İdarî Yargılama Usulü Kanunu
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