Constitutional Justice in Türkiye: Achievements, Challenges and Prospects^*

Zühtü Arslan

Distinguished participants,
Ladies and gentlemen,

It is a great pleasure to be here at this historical university.

I would like to thank Professor Mezetti, the Dean of the Faculty of Law at the University of Bologna for his kind invitation and for giving me the opportunity to speak to such distinguished audiences.

I think I was expected to deliver a speech on the past, present and future of constitutional justice in Türkiye. To meet this expectation, I will divide my lecture into three parts. First, I will briefly talk about the conceptual and philosophical foundations of the idea of constitutional justice. Second, I will explore the main functions of the Constitutional Court of Türkiye (CCT). Finally, the individual application system, with its successes, problems and prospects, will form the bulk of my speech.

1. Conceptual Introduction: The Need for Checking Power

Let me begin with a simple but very crucial question: Why do we need a constitution?

Perhaps the answer can be traced back to the emergence of humankind. Ever since the establishment of human society men have sought to restrict the political power with a view of providing a suitable environment for the peaceful coexistence and protection of their rights and liberties.

The Gilgamesh Epic, which was written about four thousand years ago, tells us the story of how the gods created Enkidu to check and control King Gilgamesh, who oppressed the people of Uruk. Gods declared that “ let them [Enkidu and Gilgamesh] vie (compete) with each other, so Uruk may be rested!”.¹

However, the project of ending the tyranny of Gilgamesh ended up in failure when Enkidu became the King’s best friend. In today’s world, four thousand years later, we still seek to resolve what is called the “Gilgamesh problem”, that is how to control the political authority.²

This ancient epic also reveals that the need to control power stems from the very nature of man. As James Madison famously formulated, “If angels were to govern men, neither external nor internal controls on government would be necessary”.³

Long before Madison, Ibn Khaldun, who is regarded as the founder of sociology, emphasised that human rights should be protected for the continued existence of the society and the State. The concept used by Ibn Khaldun in his Muqaddimah was “hukuk -en- nas”, (“the rights of human beings”.)

Ibn Khaldun expresses the denial and violation of the rights with the word “zulm”, that means “oppression”. According to Ibn Khaldun, oppression leads to the destruction of the civilization (umran) and consequently impairs the state in the last instance.⁴

More importantly, Ibn Khaldun states that the rights of human beings should be safeguarded in judicial field and that the responsibility in this regard rests with the judge.⁵

It wouldn’t be wrong to say that constitutions and constitutional justice are the culmination of the long process of striving to control the political power. However, the idea of constitution as a kind of social contract brought about another vital question of who will protect this contract. The question is relevant simply because any contract requires a body or bodies to guard its provisions against possible encroachments.

In its Marbury v. Madison judgment of 1803, the US Supreme Court argued that the supremacy of the Constitution required to declare any statute as null and void if it was contrary to the Constitution.⁶ Since then, constitutional review of parliamentary acts has become a subject of ongoing debate in political and constitutional theory.

There is no doubt that constitutional courts were established with the objective of helping to solve the problem of controlling the authority. In other words, the constitutional or supreme courts, charged with the review of constitutionality of legislative and executive acts, play a significant role in protecting the rights and liberties of individuals. Behind the constitutional justice lies a widespread belief that the constitutional courts are the best organs to guard the constitution. In fact, this view is a result of a very long and heated debate among scholars as well as constitution making powers.

It is well known that the idea of judicial review by a centralised constitutional court emerged from a fierce debate among two leading lawyers, namely Kelsen and Schmitt. They both tried to provide a convincing answer to the following question: “Who is the guardian of the Constitution?”

Kelsen defended the idea that judges of a centralised constitutional court were in a better position to protect the constitution and its values. Schmitt disagreed by citing the analogy made by an MP at the constitutional committee of the Weimar parliament. For Schmitt, creating a special court to review the constitutionality of law was not different from making “the fox as the guardian of hen-house”.⁷

Following the gross violations of human rights before and during the Second World War, Kelsen’s argument prevailed not only in Europe but also in most parts of the world. Indeed, irrespective of whether this argument is convincing or not, a centralised constitutional adjudication is widely adopted as an effective way of controlling the legislative and executive powers.

2. The CCT as the Guardian of the Constitution

Distinguished participants,

The Constitutional Court of Türkiye was established by the 1961 Constitution following the pattern of centralised constitutional courts. At that time, only a few countries in Europe (namely Austria, Germany and Italy) had constitutional courts.

I would like to emphasise that the commission set up for drafting the Constitution benefited from the comparative constitutional justice. In this sense, the constitution was inspired by the Italian Constitutional Court model.

The CCT has various duties and powers. The Court was given the task of trying the President of the Republic, the Speaker of the Parliament, Ministers of the Cabinet, the presidents and members of the high courts and the top commanders of the army for the offences related to their offices.

The CCT also has the power to control the legality of the financial activities, programs and acts of the political parties. The Court may dissolve a political party if its activities contravene the constitutional principles.

From the very beginning, the primary duty of the Court has been to review the constitutionality of laws enacted by the parliament. The Court has exercised the control of constitutionality through abstract and concrete reviews. In 2017, the Constitution was amended with a view of changing the governmental system from parliamentary to the presidential system. The Constitutional amendment expanded the powers of the CCT to include constitutional review of presidential decrees.

At this point, I must point out that, unlike the constitutionality review of laws, presidential decrees are subject to a two-stage review process. First of all, the Court examines the compliance of the presidential decrees with the constitutional rules regarding competence ratione materiae.

In this regard, the regulation must deal with the executive power; it must not be related to the fundamental constitutional rights, and it must not be on the matters that are stipulated in the Constitution to be regulated exclusively by law or that are explicitly regulated by law. If the presidential decrees pass these tests, at the next stage they should be subject to constitutionality review on substantial ground similar to acts of parliament.

To conclude this part of my speech, I must mention that under the new system, the CCT has become the supreme judicial body charged with controlling the legislature and the executive.

The introduction of the individual application mechanism provided the Court with the opportunity and the power to review the judicial decisions alongside  legislative and executive regulations.

3. A Decade of Experience in Individual Application

Distinguished participants,

In 2010, the Constitution was amended to introduce the individual application mechanism into our legal system.

According to amended Article 148 of the Constitution, everyone may apply to the Constitutional Court on the grounds that his or her fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities. The subject matter of the individual applications is therefore limited to the rights and freedoms that are commonly protected by the European Convention on Human Rights and the Constitution.

3.1. Individual Application as a Revolutionary Step

The introduction of individual application has engendered radical changes in the constitutional adjudication as well as other parts of the judicial system in Türkiye. Two of these major changes are  especially worth mentioning. The practice of individual application system has given rise to (a) the paradigm shift in the constitutional justice and (b) constitutionalisation of legal system.

Let me start with the paradigm shift that we have undergone since 2012 when the individual application mechanism was put into operation.

It wouldn’t be an exaggeration to say that with the help of individual application the Constitutional Court has abandoned its deeply embedded ideological or state-based paradigm and instead adopted  what I call a rights-based legal paradigm.

The rights-based paradigm assumes that freedom is the rule and restriction is the exception. This approach requires that the Constitution be interpreted in favour of freedoms by giving priority to fundamental rights.

Indeed, in many judgments on individual application the CCT has emphasised that the rights-based approach must dominate the constitutional justice. According to the Court, constitutional provisions “can fully fulfil their functions if they are interpreted in the context of the development of pluralist democracy and in a rights-based manner.”⁸

The paradigm shift in the jurisprudence of the Court can be clearly seen in its approach to the headscarf issue. In Türkiye, intense discussions had taken place on the constitutionality of headscarf ban in universities and public spheres.

The CCT even annulled the constitutional amendments which were enacted to abolish the headscarf ban in universities. The Court ruled that the amendments contravened the constitutional principle of secularism, which is enshrined as an eternal clause under Article 2 of the Constitution.⁹

In 2014 the Constitutional Court examined a case of individual application which concerned a female lawyer’s expulsion from a courtroom for wearing headscarf. The trial judge had decided that the lawyer’s presence in the hearing with her headscarf was contrary to the principle of secularism under the case-law of the CCT and the European Court of Human Rights.

The CCT held that intervention in the applicant’s freedom of religion did not meet the constitutional requirement of “lawfulness”. This was  because there was no law preventing any lawyer from wearing headscarf at courtrooms. The Court also stated that no reasonable and objective basis was presented for preventing the applicant from taking part at the courtroom by wearing headscarf for her religious convictions.¹⁰ Therefore, the principle of non-discrimination was violated since the applicant was put in a disadvantageous situation compared to those female lawyers not wearing headscarf.

I would like to give you another example of cases where the Court has changed its case-law related to the ban imposed by Article 187 of the Turkish Civil Code on women not using their maiden surname alone after marriage. In a judgment of 2011 the Constitutional Court dismissed the claim that incumbent article was unconstitutional.¹¹

However, following the adoption of individual application, the Court had to reconsider its position on this issue. In a number of judgments, the Court declared that Article 187 of the Civil Code gave rise to violations.

Referring to the judgments of the European Court of Human Rights on this issue,¹² the Court found that the condition of legality was breached, on the basis that the courts of first instance should have directly applied the last paragraph of Article 90 of the Constitution which stipulates that in case of a conflict between the domestic law and the international treaties concerning fundamental rights and freedoms the latter shall prevail.¹³

Despite these judgments the parliament did not repeal Article 187 of the Civil Code. Finally, a Family Court appealed to the Constitutional Court claiming its unconstitutionality. In a landmark decision of 22 February 2023, the Constitutional Court annulled the contested provision on the grounds that the difference in treatment between men and women in the context of using the maiden surname alone after marriage lacked an objective and reasonable basis, as required by the principle of equality.¹⁴

This judgment illustrates that the rights-based approach has also had an impact on the judgments in the field of constitutionality review.

Ladies and gentlemen,

I would now like to briefly touch on the constitutionalisation of the Turkish judicial system engendered by the introduction of individual application mechanism.

The Court frequently refers to the principle of subsidiarity in its case-law concerning individual applications. Accordingly, it is the duty and responsibility of first instance and appellate courts to prevent and redress possible violations of constitutional rights and freedoms. To this end, they must consider the constitutional provisions on fundamental rights and freedoms and their interpretations by the Constitutional Court.

In fact, given the relevant constitutional provisions, this is not an optional choice, but an obligatory one. For instance, Article 11 of the Constitution clearly stipulates the supremacy and binding nature of the Constitution. More specifically, Article 138 of the Constitution states that judges and courts must decide “in accordance with the Constitution, statute and law”. All judicial authorities are therefore obliged to resolve the disputes before them in accordance with the fundamental rights guaranteed under the Constitution. This brings about the “constitutionalisation” of every field of law.¹⁵

Undoubtedly, the process of constitutionalisation of the law and the entire judicial system is accelerated through the individual application. As a matter of fact, this process is also related to the issue of erga omnes effect of violation judgments delivered by the Constitutional Court, the subject to which I will return shortly.

3.2. Challenges and Prospects

The individual application mechanism has significantly contributed to enhancing the standards for the protection and promotion of constitutional rights in Türkiye. However, alongside the achievements, there have been difficulties. We can single out two formidable challenges to the effective and successful implementation of the constitutional complaint system in Türkiye.

First of all, from the very beginning we have faced an incredible and incomparable workload concerning individual applications. As of today, the Court has about 120 thousand pending applications.

The devastating effect of this workload may be better understood by comparing it to the workload of the Strasbourg Court, which currently has about 76 thousand pending applications from 47 different state parties.

The effective implementation of the violation judgments constitutes the second major challenge before the Court. As with the Strasbourg Court, the CCT has also adopted “the pilot judgment procedure”, in cases where an application raises a systematic and structural problem causing massive and repetitive violations. In some cases, the Court found a violation on the ground of legality, and informed the parliament with a view of amending the law within a certain time period.

Recently, the CCT has enriched its case-law concerning the possible remedies for violation judgments. On a number of occasions, the Court ruled that in order to redress the damage of the applicant the court of first instance has two options. First, after reopening the case it may refer the law to the Constitutional Court for a concrete review of constitutionality.

Second, the court of first instance may alternatively apply directly the last paragraph of Article 90 of the Constitution which stipulates that in case of conflict between international law and domestic law, the former shall prevail.

In order to solve the problems of backlog and effective implementation of violation judgments, we must realize what we call the objective function of the individual application mechanism. In adjudicating individual applications, the Constitutional Court has the opportunity to interpret and apply constitutional provisions relating to rights and liberties.

Once a constitutional matter was settled by the Constitutional Court through a constitutional complaint, “the public authorities and the inferior courts shall be expected to shape their practices on the same matter within the framework of this interpretation”. “Otherwise”, as the Constitutional Court has pointed out, “all disputes regarding the same matter would consequently be brought before the Court. It would be impossible to sustain an individual application mechanism functioning in such manner”.¹⁶

This is a crucial point to note. The case law of the Constitutional Court implicitly, if not explicitly, states that the principle of res interpretata must be respected and applied by the ordinary courts.

In conclusion, it wouldn’t be wrong to say that a decade of experience in the field of individual application has proven it to be an effective and successful remedy for violations of human rights.

However, the future success of this remedy rests not only with the Constitutional Court, but also with all other stakeholders, in particular the Parliament and the other courts.

Thank you for your attention.

^* Conference paper delivered at the Bologna University, Faculty of Law, 6 June 2023.

¹ The Epic of Gilgamesh, trans. A. George, (London: Penguin Books, 1999), p. 5.

² Daron Acemoglu and James A. Robinson, The Narrow Corridor: States, Societies, and the Fate of Liberty, (New York: Penguin Press, 2019), p. xiv.

³ The Federalist Papers, No. 51, (New York: Mentor Books, 1961), p. 322.

⁴ Ibn Haldun, Mukaddime, Vol. I, Prep. by Süleyman Uludağ, 9th Edition, (İstanbul: Dergah Yayınları, 2013), p. 551.

⁵ Ibn Haldun, Mukaddime, p.469.

⁶ Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

⁷ Carl Schmitt, “The Guardian of the Constitution: Schmitt’s argument against constitutional review”, in Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law, (Cambridge: CUP, 2015), pp. 90-91.

⁸ See, Ömer Faruk Gergerlioğlu [Plenary], App. No. 2019/10634, 1 July 2021, § 133; and also, Ali Kuş [Plenary], App. No. 2017/27822, 10 February 2022, § 50.

⁹ The Court’s decision, no. E. 2008/16, K. 2008/116, 5 June 2008.

¹⁰ See Tuğba Arslan [Plenary], App. No. 2014/256, 25 June 2014, §§ 98-99, 153. See also, B.S., App. No. 2015/8491, 18 July 2018 for dismissal from public office of a female civil servant for wearing headscarf.

¹¹ The Court’s decision, no. E. 2009/85, K. 2011/49, 10 March 2011.

¹² Ünal Tekeli v. Türkiye, no. 29865/96, ECHR 2004X (extracts); Leventoğlu Abdulkadiroğlu v. Türkiye, no. 7971/07, 28 May 2013; Tuncer Güneş v. Türkiye, no. 26268/08, 3 October 2013; and, Tanbay Tüten v.Türkiye, no. 38249/09, 10 December 2013.

¹³ See, Sevim Akat Eşki, App. No : 2013/2187, 19 December 2013; Gülsim Genç, App. No. 2013/4439, 06 March 2014; and also, Neşe Aslanbay Akbıyık, App. No : 2014/5836, 16 April 2015.

¹⁴ See, the Court’s decision, no. E.2022/155, K.2023/38, 22 February 2023. The English translation of this judgment can be reached at the https://www.anayasa.gov.tr/en

¹⁵ See, Abdullah Çelik, “Hukukun Anayasallaşması ve Bireysel Başvuru (Constitutionalization of law and individual application)”, Presented at the Symposium on the Occasion of 61^st Anniversary of Constitutional Court of the Republic of Türkiye, 25 April 2023.

¹⁶ K.V. [Plenary], no. 2014/2293, 1 December 2016, § 52, 53.