Constitutional Law

Branches of the Public Law

Public Law;- can be divided into five main branches;

1. Constitutional Law,2. Administrative Law,3. Criminal Law,4. Procedural Law,5. Public International Law.

Constitutional Law

Constitutional Law;- regulates the social relations directly connected to the exercise of state power.- and defines the structure of the state and constitutional functions and practices.

Constitutional Law

It is concerned with complex questions, such as;a. Distribution of governmental powers,(legislative, executive and judicial)

b. Functions and responsibilities in the exercise of this powers,

c. Defining and safeguarding fundamental rights and freedoms.

Constitutional Law

Constitutional Law, in any democratic country;- includes various limitations, that restrict the powers of a governmental department or public officers.

Constitutional Law;- is the law, derived from constitution, related to constitution or interpretation of constitution.- is the body of laws, that has been build up around the living constitution.”- is the basis of the public law, and juridical foundation for legislation in other fields of law.

Constitution Constitution;

- lays down basic principles for other branches of law.

Constitution;- grants specific powers to the State,- puts specific limits on government’s authority,- defines what the State can do and can not do,- defines which branch of government can perform which functions.

Written constitutions;- usually define the state power, its form and content.- They protect the citizens, against the arbitrary rule of political authorities.

Constitution of the Turkish Republic

Constitution of Turkish Republic;- was approved by popular vote, on 7 November 1982.

Various amendments;- have been done, such as the abolition of death penalty.

Constitution of the Turkish Republic

Last Constitutional Changes;- was approved by the people on 12 September 2010,- with the majority of 58 %.

Especially;- The changes for the structure of Constitutional Court and High Board of Judges and Prosecuters can be accepted as a turning point in Turkish politics.- It is also a great contribution to the development of democracy in Turkey.

Constitution of the Turkish Republic

“If Turkish legislation is in conflict with an international treaty, relating to fundamental rights and freedoms, the international treaty will prevail.” (2004, Art. 90)

Constitution of the Turkish Republic

Art. 11 of the Constitution of Turkish Republic;- expresses the superior position of the constitution, by stipulating that;“Laws (statutes) shall not be in conflict with the Constitution”.

“The provisions of the Constitution shall be the fundamental legal principles, binding the legislative, executive and judicial organs, administrative authorities and individuals.”

Constitution of the Turkish Republic

1961 Constitution of Turkish Republic;- introduced a system of judicial review of legislative acts,- and created a special Constitutional Court.

The Constitutional Court;- has the power to declare “null and void” any statute passed by the Parliament, if it is in contrary to the Constitution.

Constitutional Principles

1. The rule of law2. Secularism3. Respect for human rights4. Democratic state5. National state6. Social state

1. The Rule of Law

The rule of law;- requires that every action taken by the government must be in strict conformity with law.

The Rule of Law

In 1961 Turkish Constitution;“The nation exercises its authority through the authorized agencies, in accordance with the principles laid down in the Constitution.”

The intention of this sentence;- was to cancel the principle of the “Supremacy of Parliament”, that had governed the Turkish Constitutional life until 1960.

The Rule of Law

With the 1961 Constitution;- Grand National Assembly ceased to be only organ, with the power to exercise sovereignty on behalf of the nation.- Same additional measures were adopted by the 1982 Constituiton, to put an end to the principle of the “Supremacy of Parliament”.

The Rule of Law The judiciary;

- was given a considerable share in the exercise of sovereignty.- The courts in general and the Constitutional Court in particular have the power, to review the constitutional validity of statutes passed by the Parliament.

Supreme Administrative Court and other administrative courts;- review the validity of administrative acts and actions.

The Rule of Law

In a decision of Turkish Constitutional Court;- The rule of law has been defined as:

“All actions and functions of a State must be in conformity with law and the Constitution. In a State bound by the principle of rule of law, the Law absolutely prevails over all institutions of the State, including the Legislature.”

The Rule of Law

The principle rule of law;- also means that the law must not give the Government “too much” power.

Individual;- should not be regarded as a person who is only governed by the authorities.- They are also in a position to benefit from public services.

The Rule of Law

Real implementation of the principle rule of law;- requires the existence of a democratic political system.

Other concepts, connected with the rule of law;- human rights, - equality, - judicial review of legislative and administrative acts,- independence of the judiciary.

2. Secularism

In 1937;- By an amendment to the 1924 Constitution, secularism was declared to be one of the main constitutional principles.

The Constitution;- contains provisions, concerning freedom of religion.“Private individuals, societies and political parties are explicitly prohibited from exploiting religion and religious feelings for political benefit.”

Secularism

Principle of equality;- recognized in the Constitution. (Art. 10).- It requires a neutral attitude towards all religious denominations by the administration.

Office of Religious Affairs;- is a constitutional organ, reflecting the values of Muslim majority of the population.

Secularism

Turkish concept of secularism;- does not mean the complete separation of religion and the State.

In the eyes of reformist authors;- The conduct of religious affairs couldn’t be left entirely in the hands of communities.- In this connection, it should be remembered that Islam belief includes several rules concerned with material rather than spiritual matters, including family life and inheritance.

3. Respect for Human Rights

Universal Declaration of Human Rights;- was adopted by UN General Assembly in 1948. - Turkey voted in favor.

The European Convention on Human Rights;- was ratified by Turkey in 1954.

However;- No mention was made for the concept of human rights, at the constitutional level, until 1961 Constitution.

Respect for Human Rights

1982 Constitution, Art.2;“Republic is respectful of human rights.”

Respect for human rights;- is regarded a principle, which should be taken into account in interpreting the legal texts.

Constitutional Court;- refers to concept of human rights, in its decisions.

Respect for Human Rights

A decision Constitutional Court in 1985;“The concepts, such as national solidarity, social peace and justice constitutes the framework of the principle of human rights.”

An amendment to Art. 90 of Constitution; (2004)“If a statutory provision is in conflict with and international treaty, relating to fundamental rights and freedoms, the international text should prevail.”

4. Democratic State

First Protocol to ECHR;“The Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of legislature.”

Main elements of this provision;1. Free elections,2. Secret ballot,3. Free expression of the opinion of the people,(provided by the Turkish Constitution)

Democratic State Turkish Constitution, Art. 67;

“In conformity with the conditions established in the law, citizens have the right to vote, to be elected, and to engage in political activities, independently or in a political party.”

The Constitution;- also provides that elections and referandums should be conducted on the basis of free, equal, secret, direct and universal voting.- The counting of ballots should be open to public and be held under the direction and supervision of the judiciary at all levels.

5. National State Turkey;

- is a unitary State.- Therefore, within the boundaries of the Turkish Republic, there can be no political or administrative entity with reserved powers as with federalism.

Administration;- is a whole, in terms of organization and functions.

Principle of unity and indivisibility;- must always be taken into account.

National State

Constitution;- recognizes the principle of centralization and decentralization, as a basis for the organization and functions of public administration.- However, centralism has more weight in practice.

The units of local administration;- are subject to the control of central administration, exercised through the power of “tutelage”.- The extent of tutelage can be considered as a burden on local administration.

6. Social State Social State;

- is based on the principle of “national solidarity and justice”, equivalent to the concept of “Welfare State”.

Chapter 3 of the Turkish Constitution;consists of “social and economic rights” below; - protection of the family,- organizing labour unions,- collective bargaining,- strike,- the guarantee of a fair wage,- housing.

Social State

Article 60 of the Turkish Constitution;- Everyone has the right to social security.- The State is required to take necessary measures and establish the necessary structures to provide it.

Judicial Review

In the British Concept;- Parliamentary supremacy is relevant.- There is no limit to the authority of parliament.

Turkey;- adopted a system of judicial control of legislative acts.

Judicial Review

Under the system of judicial review;- Access to Constitutional Court is available,a. Through the action for annulment,

b. Through the constitutional objection.

The review of Constitutional Court;- covers not only statutes, but also decrees with the effect of law and parliamentary by-laws.

Judicial Review

Constitutional Court, as the supreme criminal court;- also tries high-ranking public figures, such as the President, the Prime Minister, cabinet members, presidents and members of high courts,- for the offenses connected to their functions.

Within the jurisdiction of the Constitutional Court;- There is also dissolution of political parties, and cancel of the immunity of the members of parliament.

Judicial Review

Constitutional Complaint;- is a form of action, that allows any individual to apply.- But, now it is possible because of the last constitutional changes.

Action for Annulment

Through an action of annulment;- Constitutional validity of a statute may be challenged, directly before the Constitutional Court,- as soon as it is published in the Official Gazette, even before it is implemented in any actual case.

To bring such an action;- is restricted.

Action for Annulment

Article 150 of the Constitution;- President of the Republic,- Parliamentary groups of the party in power and of the main opposition party.- A minimum of one-fifth of the total members of Parliament.

Actions for annulment;- must be initiated within 90 days, following the publication of the text in the Official Gazette.

The Constitutional Objection

Article 152 of the Constitution;- Questions of constitutional legitimacy can be raised,- either by ordinary courts, or by one of the parties.

The party to the case;- is required to convince the court, that his/her constitutional objection is based on “serious reasoning”.

The Constitutional Objection

If a court;- considers that a law is unconstitutional,- It must adjourn the proceedings and refer the issue to the Constitutional Court.- It is only required to ascertain that such a law is applicable to the case.

The Constitutional Objection

A decision for a constitutional issue;- has the effect of suspending the case,- pending the settlement of issue by Constitutional Court, which must give its final judgement within five months.

If Constitutional Court;- does not reach a decision within this period, the court must decide the case on the basis of the existing provisions of law.

The Constitutional Objection

If Constitutional Court;- rejects a constitutional challenge by a decison on the merits of the case,- no new action on the same issue can be heard, for a period of 10 years.