Constitutionality Review

A. Additional Article 1 of Law no. 5174

Contested Provision

As set forth by the contested provision, in the event that the President of the Turkish Union of Chamber and Commodity Exchanges (“the Union”) and members of the Union’s Administrative Board as well as the chairpersons and members of the administrative boards of the chambers and commodity exchanges, who resigned to be nominated as a candidate for the parliamentary and local elections, could not be nominated or elected, they would be reinstated in their previous positions. It was also set forth that during this period, no election shall be held for the replacement of the President of the Union as well as the chairpersons of the administrative boards of the chambers and commodity exchanges, and substitute members shall represent the members of the administrative board.

Grounds for the Request for Annulment

It was maintained in brief that despite the constitutional arrangement making no distinction among the professional associations which are in the form of a public institution, the managers previously holding office in any of these associations are given the opportunity of reinstatement in their previous positions, by virtue of the contested provision, in the absence of any justified ground; and that the contested provision has also constituted a disproportionate interference with the autonomous nature of the professional associations that is safeguarded by the Constitution. It is accordingly asserted that the contested provision was in breach of Articles 10 and 67 of the Constitution.

The Court’s Assessment

The chambers and commodity exchanges as well as their umbrella organization, namely the Union, are professional associations in the form of a public institution, which are founded by Law no. 5174 within the framework set in Article 135 of the Constitution. The reason why those holding office in the administrative bodies of such professional associations are to resign in order to stand as a candidate in parliamentary and local elections is that these persons are among “those who are holding office in the administrative and supervisory boards of the professional associations in the form of a public institution” that are embodied in Article 18 of the Law on Parliamentary Elections.

The general framework of the right to stand for elections is set by Article 67 of the Constitution whereby the citizens are granted the right to stand for elections in accordance with the conditions prescribed in law and which sets forth that exercise of this right shall be governed by law. Article 76 of the Constitution where the right to stand for parliamentary elections is specifically set forth requires those holding certain public positions to resign from office so as to stand as a candidate in parliamentary elections.

The statutory arrangement allowing for the reinstatement of those who resigned to stand as a candidate in elections if they could not be nominated or elected is the Law on Basic Provisions of Elections and Voter Registers.

By vesting citizens with the right to stand for elections in accordance with the conditions indicated in law and by also noting that the exercise of this right shall be regulated by law, the Constitution gives discretionary power to the legislator in regulating the said right. In exercising the discretionary power in this respect, the legislator is to act in compliance with the principle of equality before the law.

In the constitutionality review to be made, under the principle of equality, in respect of the right to stand for elections, it must be primarily ascertained whether individuals in the same or similar positions have been treated differently within the meaning of Article 10 of the Constitution. In this sense, it must be determined whether there has been any distinction among the individuals in the same or similar positions as regards the interference with the right to stand for elections. 

It is stipulated that those holding office in the administrative bodies of the professional associations covered by Law no. 5174 resign from office in order to stand as a candidate in parliamentary and local elections as these officers are among the ones who are holding office in the administrative and supervisory boards of the professional associations in the form of a public institution and who are enumerated in the Law on Parliamentary Elections.

Besides, it has been observed that as the contested provision allows for reinstatement in the previous position in the event that those concerned have failed to be nominated as a candidate or lost the election, it has led to a different treatment between the individuals holding office in the administrative bodies of the professional associations covered by Law no. 5174 and the ones holding office in the administrative bodies of the other professional associations that are in the form of a public institution.

As required by the principle of equality, a different arrangement introduced in favour of some of the individuals who are indeed in comparable situations may be considered not to afford a privilege only when it has an objective and reasonable basis and is proportionate. However, Additional Article 1 embodying the contested provision contains no explanation as to the objective and basis of the provision. Nor does the legislative intention of Law no. 7152 contain any explanation to this effect.

While the exercise of the right to stand for elections is conditioned upon the resignation from office, as a general restriction applicable to the managers of all professional associations in the form of a public institution, a different arrangement is introduced, by virtue of a special provision allowing for reinstatement, in respect of the managers of the professional associations that are covered by Law no. 5174. The arrangement in the contested provision, which has led to a different treatment, is contrary to the principle of equality as regards the right to stand for elections. 

Consequently, the Court has found the contested provision in breach of Articles 10 and 67 of the Constitution and therefore annulled it.

Besides, as Additional Article 1 § 1 of Law no. 5174 has been annulled, the second and third paragraphs thereof are no longer applicable. Therefore, these paragraphs have been also annulled pursuant to Article 43 of the Code no. 6216 on the Establishment and Rules of Procedures of the Constitutional Court. 

B. Additional Article 1 of Law no. 5362

Contested Provision

In the contested provision, it is set forth that if the general president and chairpersons of the professional associations of merchants and craftsmen as well as the members of the administrative and supervisory boards of these associations, who resigned to be nominated as a candidate for the parliamentary and local elections, could not be nominated or elected, they shall be reinstated in their previous positions. It is also set forth that during that period, no election shall be held for the replacement of the president and chairpersons and these offices shall be held temporarily; and that substitute members shall represent the members of the administrative board.

Grounds for the Request for Annulment

It was maintained that as the grounds asserted for the unconstitutionality of Additional Article 1 of Law no. 5174 were applicable also to Additional Article 1 of Law no. 5362, the said provision was in breach of Articles 10 and 67 of the Constitution.

The Court’s Assessment

The professional associations of merchants and craftsmen are professional associations in the form of a public institution, which are founded by Law no. 5174 within the framework set in Article 135 of the Constitution. Therefore, the above-cited assessments made under the heading “A. As regards Additional Article 1 of Law no. 5174” are also applicable to Additional Article 1 § 1, which is added to Law no. 5362 and embodies an arrangement, which is of the same nature with the annulled one, for another professional association. 

Consequently, the Court has found the contested provision in breach of Articles 10 and 67 of the Constitution and therefore annulled it.

As Additional Article 1 § 1 of Law no. 5362 has been annulled, the second paragraph thereof is no longer applicable. Therefore, this paragraph has been also annulled pursuant to Article 43 of the Code no. 6216 on the Establishment and Rules of Procedures of the Constitutional Court.