Haimerl, Maria

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Fr 27 Jan2017The Turkish Constitutional Court under the AmendedTurkish Constitution verfassungsblog.de /the-turkish-constitutional-court-under-the-amended-turkish-constitution/Maria Haimerl Fr 27 Jan 2017In March 2016, the Turkish Constitutional Court (TCC) ruled that the rights of the Turkish journalists Can Dündarand Erdem Gül had been violated, leading to their release from prison after three months. Recep TayyipErdoğan responded by criticizing the TCC sharply, questioning its existence and legitimacy. This had not beenthe ﬁrst time over the last years, that the Court had been attacked.The constitutional amendments, that will be put to referendum in April 2017 (see Petersen and Yanaşmayan fora detailed analysis of the amendments, to be published here), seemed to be a golden opportunity to change thecomposition and cut back the broad competences of the TCC. Did the AKP-led Parliamentary ConstitutionalCommittee seize this opportunity?Only Cosmetic Changes?At ﬁrst sight, the Parliamentary Constitutional Committee did not deem it necessary to make great modiﬁcations.The number of justices will be reduced from 17 to 15 (amended Art. 146 Turkish Constitution, TC) – the samenumber it already had under the 1961 Constitution. This is a result of the abolishment of two military courtshaving the authority to nominate candidates: the High Military Court of Appeals and the High MilitaryAdministrative Court. While this is an important step per se, its immediate consequences for the TCC are limited.The two current members, that have been nominated by military courts, will be in oﬃce until the end of the oﬃcialoﬃce term: Serdar Özgüldür until 2020, Nuri Necipoğlu until 2018.While the provisions on the TCC are not amended further, a closer examination suggests that the modiﬁcationswill have a profound impact on the Court. In the future, it is unlikely that it will serve as an eﬀective check ofexecutive and legislative power and a guarantor of fundamental rights and freedoms.This becomes especially plausible, if one reads the amendments against the background of the TCC’sdemeanor over the last months. After the attempted coup a state of emergency has been declared. And thisstate of emergency has already been extended twice. Since last summer Turkey is eﬀectively governed byemergency decrees. The amendments perpetuate this executive dominance and even hint "at a sustainablestate of emergency in which Turkey will be governed mostly by executive orders”, as Öztürk and Gözaydın put it.Thus, the Court’s jurisdiction under emergency rule may provide some guidance how it will act under the newsystem.A Tame Court under the Current State of Emergency…In August 2016 the TCC impaired itself by dismissing two of its justices, who had been arrested in the aftermathof the attempted coup. Based on “information from the social circle” and the “common conviction” formed by themembers of the Constitutional Court, the Court reached an unanimous decision that the two justices areconnected with FETÖ/PYD and have to be removed from oﬃce. A few weeks after the dismissal, two newjustices appointed by Recep Tayyip Erdoğan took oﬃce.Even more importantly, in autumn 2016 the TCC chose to pursue a “hands-oﬀ” approach concerning state ofemergency decrees (Olağanüstü Hâl Kanun Hükmünde Kararnameleri, OHAL KHK). Thus it dismissed itslongstanding jurisdiction. According to Article 148 of the Constitution, OHAL KHK shall not be brought before theConstitutional Court. Although this provision has not been changed or amended since the adoption of the 1982Constitution, the TCC reinterpreted the provision, which literally situates the state of emergency outside thescope of the State under the rule of law. In four landmark decisions in the 1990s and 2003 the TCC established1/3various limiting criteria emergency decrees have to fulﬁll. It reasoned that if these criteria are not met, thedecrees are ordinary decrees and could be subject of constitutional review.In its decisions in October and November 2016, the TCC unanimously rejected applications claiming theunconstitutionality of four emergency decrees put into force in the aftermath of the failed coup. Applying a literalinterpretation of Article 148, it declared its former jurisdiction completely meaningless without any furtherargumentation.…is Not Likely to Serve as an Eﬀective Check in a “Presidential System”The Court’s approach in these decisions may have severe consequences under the new system: the authority todeclare a state of emergency will only belong to the President of the Republic (amended Art. 119). By rejectingits former jurisdiction, the TCC has obstructed its own ability to check emergency decrees in the long term. It hasgiven the executive almost limitless discretionary power in times of emergency.In addition, the Court’s ability to check regular KHKs will be limited under the new system:Until now, the Grand National Assembly of Turkey (TGNA) may empower the Council of Ministers to issue KHKswith an empowering law. This empowering law shall “deﬁne the purpose, scope, and principles of the decreehaving the force of law, the operative period of the empowering law” (Art. 91(2) TC). After the amendment, thePresident will issue decrees on subjects related to executive power without empowering law. Issues that arestipulated to be exclusively regulated by laws in the constitution, cannot be regulated by presidential decrees. Ifthe Parliament issues a law on that speciﬁc topic, the presidential decree shall become null and void (amendedArt. 104).The amendments do not answer the question who will decide in case of conﬂict. According to  Ece Göztepe, thiscompetence of conﬂict resolution should have been explicitly given to the TCC with the constitutionalamendments, since all of the Court’s competences are listed in it. This has not been the case. And, abolishingthe necessity of an empowering law deprives the TCC of a crucial possibility to limit executive power byreviewing whether the empowering law suﬃces the requirements of Article 91. The Court has made use of thispossibility in various decisions developing a standard of review by deﬁning the temporal and substantial limits fordelegated legislation. Already in 2011 the TCC has abandoned its long-standing jurisdiction concerning theconditions (i.e. immediacy, urgency, importance and compulsion) justifying the adoption of decrees. After theamendments, it will loose this possibility completely.Finally, the changes regarding the High Council of Judges and Prosecutors (HSYK), that will be renamed Councilof Judges and Prosecutors (HSK) will have an immediate inﬂuence on the TCC. The number of members will bereduced from 22 to 13, 7 will be elected by the Parliament, 6 by the President (amended Art. 159). The body isresponsible for the election of the members of the Court of Cassation and the Turkish Council of State. Each ofthem sends two members to the Constitutional Court, that are appointed by the President from among threenominees by the two courts. Thus, the re-structuring of the HSK once again strengthens the executive inﬂuenceon the Constitutional Court´s composition, even though the constitutional provisions on the TCC as such are notamended.Quo vadis TCC? Apparently, the AKP-led Parliamentary Constitutional Committee did not deem it necessary tolimit the Court’s broad competences. The strengthening of executive power has been considered suﬃcient.Given the TCC’s tame behavior over the lost months, they do not fear that the TCC will be a hindrance to “speedy execution mechanisms (of) a presidential system”, as President Erdoğan terms it. Neither do I.This is the ﬁrst part of three-part series of reports on the constitutional reform in Turkey.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Haimerl, Maria: The Turkish Constitutional Court under the Amended TurkishConstitution, VerfBlog, 2017/1/27, http://verfassungsblog.de/the-turkish-constitutional-court-under-the-amended-2/3turkish-constitution/.3/3

The Turkish Constitutional Court under the Amended Turkish Constitution

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The Turkish Constitutional Court under the Amended Turkish Constitution

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