The Constitutional Justice

1. The Constitutional Justice

2. The Constitutional Justice • The Constitutional Court:- was established by the Constitution of 1961. - as an effective check over thearbitrary power of parliamentary majority. • The Constitution of 1982; - maintained the essential features of the constitutional review system with some modifications.

3. The Structure of Constitutional Court

4. The Structure of Constitutional Court • With the constitutional changes in 2010:- Presidents appoints all the members of the Court, except 3 members appointing by the GNAT. - He also appoints the reporting judges with at least 5 years of service. • The President; - has a full discretion only for four members. - The other members he has to coose from three candidates nominated by the related bodies.

5. The Structure of Constitutional Court • The term of office for the judges; - 12 years, with no possibility of reelection. - Mandatory retirement age is 65. • Other reasons for dismissal; 1. To be convicted of an offense entailing dismissal from the judicial profession, 2. Health resons. (Court itself decides)

6. The Structure of Constitutional Court • The Constitutional Court; 1. Two-chamber structure. 2. Introduction of constitutional complaint.

7. The Powers of Constitutional Court 1. Review the constitutionality of laws. 2. Try the cases on prohibition of political parties. 3. Financial control over the legality of acquisitions, incomes and expenditures of political parties. 4. Decide appeals against parliamentary resolutions on the lifting of parliamentary inviolability. 5. Select one member to preside Court of Conflicts. 6. Try certain high level officials for crimes connected with their official duties.

8. The Powers of Constitutional Court • Trying certain high level officials; - President, PM, ministers, judges and chief prosecutors of high courts, Deputy Chief Public Prosecutor, members of HCJP and Court of Accounts. • With 2010 changes; - Speaker of GNAT, Chief of General Staff, Commanders of Army, Navy, Air, Gendarmerie Forces.

9. The Powers of Constitutional Court • Constitutional Court; - is also competent to review the constitutionality of the law amending ordinances and the Standing Orders of GNAT. - It has no review powers on law amending ordinanceissued during war, martial law or state of emergency. - It has no competence over parliamentary resolutions except those of removal of parliamentary inviolability. - Its competence on parliamentary resolutions can be possible if they change Standing Orders of GNAT or create new rules. • Its competence over constitutional amendments; - is limited to specific procedural defects.

10. The Powers of Constitutional Court • Constitutional Court; - is not competent to review the constitutionality on reform laws of Ataturk period; 1. Unity of education, 2. Wearing of hat, 3. Closing of dervish convents, 4. Civil marriage, 5. Adoption of international numerals, 6. Adoption of Latin Alphabet, 7. Abolition of certain traditional titles, 8. Banning of certain garments.

11. The Powers of Constitutional Court • Laws and decree-laws passed during NSC regime; - also had the immunity from constitutional review. - It was repealed in 2001. • Art. 90 of Constitution; - International agreements are not subject to constitutional review. • If constitution specifically refers to international law; - The court is competent to review the compatibility of domestic laws with relevant rules of international law.

12. The Jurisdiction of Constitutional Court • The jurisdiction of Court; 1. Procedural review. 2. Substantive review,

13. The Jurisdiction of Constitutional Court • Procedural review; - is limited to if the required majority was obtained on the final vote on the bill. - Other procedural defects are not subjected to constitutional review. • Substantive review; - involves the ascertainment of compatibility of the content of law with the letter and spirit of Constitution.

14. Jurisdiction of the Constitutional Court • If Constitutional Court; - dismisses the case on substantive grounds, no unconstitutionality claim for the same law can be put forward until a ten-year period. (Legal stability or limitation on defendant’s rights?)

15. Application to the Constitutional Court • Principal proceedings; - can be initiated by; 1. President, 2. Parliamentary groups of government party and main opposition party. 3. One-fifth of the full membership of Assembly. • Suits of unconstitutionality; - must be initiated within 60 days following the promulgation of law in Official Gazeta. • Appeals on procedural grounds; - may be initiated only within 10 days, - only by President and one-fifth of Assembly.

16. Application to the Constitutional Court • Incidental proceedings; - can be initiated by any individual, and are not subject to any time limitation. 1. A plea of unconstitutionality must be put forward in a pending trial. 2. The regular court must determine if access to the Constitutional Court is justified. • The trial court; - may also decide to refer the matter to the Constitutional Court by its own initiative.

17. Application to the Constitutional Court • If it does so; - The court adjourns the proceedings and refers the matter to the Constitutional Court. - The court must decide in 5 months. • If no decision is reached; - The court must render its judgement on the basis of existing law. - If the Constitutinal Courts makes a decision before judgement, the trial court must comply with this decision.

18. Application to the Constitutional Court • 2010 amendment to Art.148; -Everybody has the right to appeal to the Constitutional Court claiming that one of fundamental rights and freedoms guaranteed by the Constitution and covered by the ECHR is violated by a public authority. - For such an appeal, all regular ways of judicial appeal must be exhausted.

19. Meetings of the Constitutional Court • 2010 amendment to Art.149; - The court shall work in two chambers and a plenary. - Chambers convene with the presence of four members under the chairmanship of the Vice President. - The plenary convenes with the presence of at least twelve members under the chairmanship of the President or the Vice-President.

20. Decisions of the Constitutional Court • Constitutional complaints; - are examined by chambers. - Subcommissions may be established to examine their admissibility. - • Chambers and plenary; - make their decisions with absolute majority. • However; - Decisions to annul a constitutional amendment, to close a political party or to deprive it from state subsidies require a two-thirds majority of the participating judges.

21. Effects of Constitutional Court Decisions • The decisions of Constitutional Court; - are final. In case of annulment, the law becomes ineffective on the date of publication of annulment decision in the Official Gazeta. - The court can make it ineffective not later than one year, so that legislature can adopt anew law,if a legal vacuum is deemed dangerous for public order. • Its decisions; - are binding for everybody and not retroactive.

22. Effects of Constitutional Court Decisions • The Court; - cannot act as legislator and establish a new practice. • Negative legislator role of the Court; - With a decision in 1991, it did not annul a law abolishing the headscarf ban at universities, but interpreted it such a way, referring to a previous ruling that the ban persisted.

23. Effects of Constitutional Court Decisions • 2010 Constitutional amendment; - introduced an appeal procedure against the decisions of High Court. - They are examined by the same body. • To issue stay orders; - is to suspend the application of challenged law pending trial, to prevent irreparable damages and consequences. - Between 1993 and 2005, the court accepted 52 of 92 cases.

24. Judicial Activism of Constitutional Court • Against the extreme majoritarianism; - It is in favor of pluralist model of democracy. - Minorities must have legal guarantees protected by Constitution. • Ran Hirschl’s theory of hegemonic preservation; - Political elites do not wish to submit their fundamental values and interests to the uncertainties of the majoritarian democracy. - They trust an independent judiciary that they hope to influence more easily. • Military-bureaucratic elite dominated of Turkish politics from 19th century to 1950.

25. Judicial Activism of Constitutional Court • The Court; - accepted an ideology-based pradigm, instead of rights-based paradigm. - protected the supreme rights of the state, instead of individual rights and liberties, - in line with the founding principles of Repuplic.