Turkish Constitutional Court Research Articles

An Empirical Analysis of Judicial Transformation in Turkey†

Constitutional amendments in September 2010 restructured the Turkish Constitutional Court (TCC) by imposing term limits, adding six additional seats to the Court, and bolstering the role of the political branches in the appointments process. Numerous commentators have argued that the structural reforms amounted to court packing, influenced court decisions in substantive ways, and undermined the TCC’s ability to serve as an effective check on the political branches. But aside from speculation and normative analyses of isolated TCC decisions, there has been no systematic academic study on the consequences of the reforms. In this Article, we aim to fill this scholarly gap. By making use of an original dataset of 200 cases, randomly chosen for the period 2007–2014, we test the extent to which these reforms have changed judicial behavior. Our findings show a significant break in 2010 in the ideological position of the Court and detect a conservative ideological shift following the reforms that is increasing in magnitude over time. This shift, however, has not yet affected judicial outcomes in a statistically significant manner. We explain these results and discuss their implications.

The Hegemonic Preservation Thesis Revisited: The Example of Turkey

This paper offers a critical rereading of the history of judicial review of constitutional amendments in Turkey. We argue that, contrary to appearances, the claim to a power of amendment review on the part of the Turkish Constitutional Court does not fit Ran Hirschl’s model of hegemonic preservation, which aims to explain the genesis of strong constitutionalism and judicial review as the result of an anti-democratic elite consensus that tries to leverage the prestige of judicial institutions. Attempts to impose Hirschl’s model on the constitutional history of the Turkish Republic have been very popular in the jurisprudential literature on Turkey, but the model offers a misleading and incomplete diagnosis of what ails Turkish constitutionalism. It is not the supposed excessive strength of formal constitutionalism and judicial review in Turkey, but rather the normative weakness of the Turkish Constitution of 1982, that is responsible, at least in part, for Turkey’s repeated constitutional crises. We therefore suggest an alternative template for understanding Turkish constitutional history—the theory of sovereignty as the power to decide on the exception put forward by Carl Schmitt.

In This Issue

In This Issue

Individual application to the Turkish Constitutional Court as a case of constitutional transfer

Abstract:The article has sought to clarify the phenomenon of constitutional transfer through an analysis of the introduction and implementation of the individual complaint procedure in Turkey. Individual access to constitutional courts has recently attained prominence as an effective tool of human rights protection and it is viewed as an example of the broader phenomenon of transfer of constitutional ideas from a point of origin to a new host environment. Critically applying the IKEA theory of constitutional transfer to the Turkish experience of the individual application to the Constitutional Court, we argue that the transfer process involves more than a simple interaction between the promoter and the importer, both of whom have converging as well as diverging expectations. The Turkish experience has proved a useful case to demonstrate the dynamic and multifaceted nature of the process of constitutional transfers. The Venice Commission, the European Court of Human Rights, the Turkish Constitutional Court and the Turkish Government all have important stakes in the success of the transfer to realise their own policy objectives.

The Guardian of the Turkish Constitution: A Special Court

Court-based constitutional review as a way of controlling executive and legislative action is generally considered as one of the most significant developments in post Second World War liberal constitutionalism in the world. Constitutional courts can make a significant contribution to the preservation of the rule of law, the protection of the individual's fundamental rights and the strengthening of democracy as long as they remain independent. Constitutional courts are perceived as important factors of stabilization in many countries characterized by new or fragile democratic systems. Due to their potential role in the establishment and maintenance of constitutional democracies, constitutional courts have been comprehensively studied in the area of constitutional law and politics. In this study, the Turkish Constitutional Court, as one of the oldest and most active in Europe, will be examined in a comparative perspective by considering the interpretation of the historical origins and functions of the Constitutional Courts.

THE ESTABLISHMENT OF THE INDIVIDUAL APPLICATION SYSTEM IN TURKEY: A PROMISING EXPERIENCE (Türkiye’de Bireysel Başvuru Sisteminin Kurulması: Başarı Vaad Eden Bir Tecrübe)

The establishment of individual application (constitutional complaint) system to the Constitutional Court has been a ground breaking development in Turkey in the field of protection of human rights. Although the institution has been discussed since 1960s, the most concrete and important steps were achieved by constitutional amendments of 2010 approved by public referendum. Two years of preparation period was foreseen by the Constitution for receiving individual applications by the Court.In this article, it is aimed to furnish information and shed light on the extensive preparations made in the main fields relating to the Turkish Constitutional Court’s structure, powers, functioning and administrative issues

The Effects of the ECtHR's Eko Elda Avee and Riener Decisions on Turkish Tax Law

This note discusses the impact of the European Court of Human Rights decisions in Eko Elda Avee (2006) and Riener (2006) on the case law of the Turkish Constitutional Court.

Non-use excluded from the grounds of invalidity

Non-use has been excluded from the grounds of invalidity following a decision of the Turkish Constitutional Court on the ground that its retroactive effect violated ‘property right’ guaranteed by the Turkish Constitution.

Understanding of the Turkish Constitutional Court Regarding Unitary State

Understanding of the Turkish Constitutional Court Regarding Unitary State

An unconstitutional constitutional amendment--The Turkish perspective: A comment on the Turkish Constitutional Court's headscarf decision

In June 2008, the Turkish Constitutional Court annulled amendments to the Constitution regarding the principle of equality and the right to education, which had been enacted by parliament in order to abolish the headscarf ban in universities. In an important and controversial decision, the Constitutional Court ruled that the amendments were unconstitutional because they infringed on the constitutional provision mandating a secular state. In this paper, the authors set forth the historical and legal background to the Turkish Constitutional Court headscarf case, review the facts and decision of the case, and analyze it. The authors accept the Constitutional Court's conclusion that parliament's amendment power is distinct from the original constituent power and therefore limited. However, the authors assert that the Constitutional Court's competence to review constitutional amendments is restricted to a procedural review. Lastly, the authors claim there was no justification for annulling the amendments because they did not infringe on the constitutionally enshrined principle of state's secularism.

The Turkish Constitutional Court and the Justice and Development Party (2002–09)

This article analyses the caseload of the Turkish Constitutional Court (TCC) during the Justice and Development Party's (JDP) tenure in office (2002–09). Contrary to expectations and public perception, TCC's caseload only showed a modest increase, reflecting increased legislative activity and the President's inability to influence parliamentary debates. As this article shows, judicialization of politics in Turkey preceded the emergence of JDP. Accordingly, it concludes that ‘controlled democratization' encourages judicial activism and can lead to ‘judicial tutelage’ over elected institutions, thus undermining the prospects for democratic deepening.

What is Behind the Headscarf Ruling of the Turkish Constitutional Court?

Modern constitutions foresee a constitutional judiciary body to serve as a limiting factor for the legislative body. The concrete users of this judiciary power have been the constitutional courts. The Turkish Constitutional Court takes Carl Schmitt as a reference, whether intentionally or not, while making the decisions in question. The Court did not use its factual review power, the power to review the content of constitutional amendments in general. In other words, during the 1982 Constitution's term the Constitutional Court remained within normative limits. However, when the issue at stake is related to the headscarf, the Court does not hesitate to use its factual review power in the court rulings. Perhaps paradoxically, the constitutional judiciary system is not seen only as a legal mechanism; apart from that, it has also been regarded as a possible intervener into politics through the courts. However, this intervention option is not designed in a way that will open the way for substitute‐opposition mission. The constitutional courts are increasingly assuming the co‐legislator position.

The Constitutional Reform Proposal of the Turkish Government: The Return of Majority Imposition

The package of constitutional reforms just recently offered to the Grand National Assembly1 by the Turkish government seems highly attractive in many respects. It is the whole that should be rejected by liberals and democrats in and outside of Turkey. After the 2008 decision of the Turkish Constitutional Court invalidating amendments to articles 10 and 42 of the Turkish constitutions, the so-called headscarf amendments, and the refusal of the same Court to dissolve the AKP (Justice and Development Party), the Government led by that party had three choices.2 The first, indicated by the Court’s return to the language of the original constituent power, was entirely unrealistic and to me and most Turks undesirable, namely to sponsor a program of revolutionary transformation where the constitutional regime of 1982 would be replaced outside its own rules of change. The point of the conservative Court even raising this idea was merely logical and rhetorical. When it was said that certain kinds of changes, as the alteration of the eternity clauses, namely articles 1–3 of Constitution, as entrenched by art .4, would require a return to the original constituent power, and thus by implication would be a revolution, the point was to indicate all the more strongly what could not be done through ordinary amendments. Yet, to tell the Turkish people that they must stage a revolution if they wish to make an entirely new constitution was, to say the least, unfortunate and in fact erroneous. Nevertheless, in a toned down version, the same type of rupture was actually recommended by the noted constitutional scholar Serap Yazici in a recent book3 where she claimed that a democratically elected assembly need not be bound by either the eternity clauses nor even the procedures indicated by article 175, the amendment rule of the Turkish Constitution. While she was very right in suggesting that the highly undemocratic 10% threshold in elections should be abandoned, we can still be grateful that the AKP has never imagined that it could take the road of explicit legal rupture in constitution making. As I told a meeting last December in Istanbul: I do not want to be in this country when anyone tries this method! The second option was to return to a consensual form of constitution making, a method, also hinted at by the Constitutional Court in the same 2008 decision, that could have led to the creation of a package that all Turkish political forces could identify with to some extent. Such a solution would also mean that perforce there could not be 110 deputies to apply to the Court for a review of the amendments or of the new constitution. This was the position I represented in the debates. My idea was to draw the non-parliamentary parties into a consultative assembly (a “convention”) elected by straight proportional representation without a cut-off, that would present an initial draft for a civilian constitution to a new Grand National Assembly still structured by the (otherwise undesirable) undemocratic 10% threshold. In any case, the AKP government never showed any interest in any consensual alternative, including a return to the parliamentary All Party Accord Commissions of yesterday (that is prior to 2002). What the AKP government has chosen instead is a return to the method of majority imposition, which has been its method in constitutional politics since the 2007 crisis over the presidency. Of course the Constitutional Court did allow (in spite of the leading narrative about the quorum affair) that imposition in 2007 by opening the way to a referendum that

The return of political theology

Increasingly in today’s world we are experiencing intensifying antagonisms around religious and ethno-cultural differences. The confrontation between political Islam and the so-called ‘West’ has replaced the rhetoric of the Cold War against communism. This new constellation has not only challenged the hypothesis that ‘secularization’ inevitably accompanied modernity but has also placed on the agenda political theology as a potent force in many societies. This article analyzes the contemporary revival of political theology by focusing on the headscarf debate in comparative constitutional perspective. It compares the well-known decision of the French Parliament banning the wearing of the headscarf in public schools (2004) with the decision of the German Constitutional Court concerning whether Fereshta Ludin, an Afghani-German teacher wearing the hijab, could teach in German schools (2003) and with the more recent judgment of the Turkish Constitutional Court (summer 2008) upholding the ban on the wearing of the scarf or the turban in institutions of higher learning. At stake in these debates is not only the meaning of fundamental human rights but also why women and their bodies become the object of disciplinary conflicts in culture, law and religion.

Party prohibition cases: different approaches by the Turkish constitutional court and the European Court of Human Rights

The article deals with the different approaches followed by the Turkish Constitutional Court and the European Court of Human Rights (ECtHR) in party prohibition cases. The Turkish Constitution and even more so the Law on Political Parties contain a long list of party bans, the violation of which leads to the closure of the party by the Constitutional Court. The Turkish Constitutional Court, both under the 1961 and the 1982 Constitutions, interpreted these provisions in an exceedingly illiberal manner, and has so far closed down a total of 24 political parties. Turkish rules and practices concerning the prohibition of political parties are among the most important ‘democracy deficits’ of the Turkish political system. In the article, the Turkish Court's illiberal approach to party prohibition cases, especially those involving the protection of the national and territorial integrity of the state and of the principle of secularism, is compared with the much more liberal criteria developed by the ECtHR and the Venice Commission.

Headscarves, Judicial Activism, and Democracy: The 2007–8 Constitutional Crisis in Turkey

How are we to understand and analyse the constitutional tension in Turkey between the judiciary and the political sphere? In this article the issue is mirrored in the political crisis which started in April 2007 with the nomination of Abdullah Gül as presidential candidate by the moderate Islamist Justice and Development Party (AKP). The more detailed empirical background consists primarily of the dress code problematics including the matter of party closure. Theoretically, the “hegemonic preservation” thesis elaborated by Ran Hirschl turned out to be a useful instrument when it comes to explaining this political crisis as well as the origin of the so-called new constitutionalism. This is illustrated by the judicial activism in the headscarf affair as well as by the eagerness of the Republican People's Party (CHP), as the political representative of the secular establishment, to play the ‘Atatürk card’ and to submit the protection of their interest to an independent judiciary and not to the uncertainties of the mechanisms of majoritarian democracy. However, with regard to the current Turkish case my analysis also shows that Hirschl's thesis is too static and should be complemented with a more dynamic perspective of constitutional politics as a repeated game. One example of this is that even if the Turkish Constitutional Court (TCC) had declared the constitutional amendment on the headscarf invalid and voted for economic sanctions against the AKP, it did not close the party down.

LEGISLATION

Much has been written on the increasing significance of domestic courts in the international realm. However, the role of the Turkish constitutional judges in determining and orienting the relationship between international law and Turkish domestic law has rarely been subject to legal analysis. Literature on the involvement of the Turkish judges in transnational judicial dialogue is also almost non-existent. As far as the existing Turkish literature is concerned, much of the contemporary writing on the subject tends to focus on the hierarchical position of international agreements in the Turkish legal order. This paper intends to fill an important gap in the scholarship by providing an analysis of the decisions of the Turkish Constitutional Court (TCC) and by illuminating the TCC’s role as implementers or non-implementers of international law, and the scope of their participation in transnational judicial dialogue. Relevant sub-questions concern the extent to which the stance of the TCC’s judges may or may not alleviate concerns of the international community on the rule of law in Turkey, and whether their engagement in international law is substantial enough to limit and moderate the excesses of different political forces, including those in power, engaged in the domestic power struggle.

Religious Information on Identity Cards: A Turkish Debate

In 2006, the Turkish Grand National Assembly (TGNA) made a notable departure from historical precedent when it replaced the Population Register Law of 1972. The 1972 law, in Article 43, required that the national registry records on all households in Turkey contain the religion of all family members unless, under Article 46, an individual or family went to court to make a revision in these records. This was the legal basis of the inclusion of religious information on Turkish identity cards, issued in accordance with the information in family registers. Article 35 of The Population Services Law of 2006 now provides: “Requests about the religious information in household registers shall be approved, modified, left blank or deleted, in accordance with the written application of the concerned person.”We shall argue, in this paper that Article 35 of the Population Services Law of 2006 is unconstitutional just like Article 43 of the Population Register Law of 1972 was, and that information about individuals' religions should be deleted from both the national register and individuals' identity (ID) cards. The inclusion of religious information in the identity cards of citizens or resident aliens, who apply for Turkish citizenship, violates the religious liberty in Turkey, particularly under a “neutrality” conception of that right. We shall review the jurisprudence of the Turkish Constitutional Court concerning ID cards in the light of the negative and positive aspects of religious liberty, focus on the different meanings of neutrality such as “formal neutrality,” “substantive neutrality,” “aim neutrality,” “justification neutrality” and “consequences neutrality.” Before we evaluate this practice under neutrality theory, however, it would be appropriate to begin with a historical narrative about the origin of religious notations on Turkish identity cards, and explain the content and the meaning of the new law.

Notes on theShari'a: Human Rights, Democracy, and the European Court of Human Rights

The Turkish Constitutional Court in 1998 questioned whether values such as human rights and democracy are consistent with values raised and supported by the Shari'a. The Court's implicit assumption is that it is impossible to find a concept in Islamic law that respects human rights. With regard to the Shari'a, there are different positions concerning democracy and human rights depending on the legal corpus included in the definition of the Shari'a. The thesis of incompatibility is based on the classical definition of the Shari'a as invariable and unchanging. But once other perceptions of the Shari'a are incorporated, some of these conceptions are compatible with human rights and democracy.

Political Origins of the Turkish Constitutional Court and the Problem of Democratic Legitimacy

Political Origins of the Turkish Constitutional Court and the Problem of Democratic Legitimacy