New Turkish bill bans top court from ruling on substance

The changes come after the past few years of continuous debate over the judiciary's habit of overstepping its authority and blocking parliamentary and legislative processes.

New Turkish bill bans top court from ruling on substance

World Bulletin / News Desk

Turkey's Justice and Development Party (AK Party) has recently presented a bill to Parliament that, if passed, will prevent the Constitutional Court from canceling newly passed legislation based on substance, though it will still be able to rule for cancelation in cases of procedural violations.

The Draft Law on the Establishment of the Constitutional Court and Judicial Procedures was submitted to Parliament by deputy chairman of the AK Party's parliamentary group Bekir Bozdağ on Jan. 11. The bill introduces a radical reform in how the Constitutional Court works.

The 80-article bill reforms other parts of the Constitutional Court as well, but its Article 36 clearly states that appeals against newly passed legislation can only be heard on a procedural basis, not on substance.

There are also changes to the nature of appeals against legislation, mostly in the form of limitations.

According to the bill, the Constitutional Court will first review whether an appeal can be processed quickly, how many deputies have supported it and how many of the judges on the Constitutional Court vote in favor of reviewing the application. With the bill, the court will no longer be able to cancel legislation passed in Parliament. It will only be able to review whether the correct procedure was followed in terms of the voting method, whether the quorum was met during the voting, the law was passed during the appropriate timeframe and whether it bears the necessary signatures from the president and members of the Cabinet.

411 will not be repeated

The changes come after the past few years of continuous debate over the judiciary's habit of overstepping its authority and blocking parliamentary and legislative processes, which heated up with the prime minister's response to a top jurist.

Indeed the judiciary has blocked Parliament's decisions and processes in many cases.

Such a situation occurred ahead of the 2007 presidential election, when the Republican People's Party (CHP) threatened to quit Parliament, a situation that would have forced a referendum to prevent President Abdullah Gül from being elected president. The CHP later challenged the April 27, 2007 presidential election rounds in Parliament at the Constitutional Court, saying less than 367 deputies had voted in the election, falling short of the quorum to elect a president. This was the first time the “367 rule” was ever brought up in Parliament.

Secondly, on June 5, 2008, the Constitutional Court cancelled amendments to Article 10 and Article 42 of the Constitution, which lifted the ban on headscarves at universities. The court determined that the amendments, which had been passed in Parliament with the support of 411 deputies, indirectly violated the first three articles of the Constitution -- which are unchangeable and to which amendments cannot be proposed -- and were therefore cancelled.

If the new bill is passed, such violations of law will not occur again, as the court will have no power to hear cases against new legislation on the basis of substance or content. In other words, legislation passed by an overwhelming majority of Parliament, such as 411 deputies ruling in favor of lifting the headscarf ban, will never be repeated.

Fewer applications expected

In a referendum on Sept. 12, 2010 a constitutional amendment package was passed by public vote.

The package also made changes to the structure of the Constitutional Court. It brought the number of members on the panel of the high court from 11to 17. It also gave the right for individual applications to the Constitutional Court, which was previously only able to hear petitions from political parties, ministers, prime ministers, some members of the higher judiciary and some bureaucrats. The new law limits appeals for cancelation of new legislation, which is expected to reduce the number of such applications.

According to the new law, international treaties that Turkey is party to cannot be challenged at the Constitutional Court, either in terms of substance or procedurally. In addition to international treaties, decrees having the force of law under Constitutional Articles 121 and 122 during times of war or martial rule could be changed during deliberations in Parliament, AK Party sources say.

The new law also disqualifies a second appeal against a particular law already ruled to be compatible with the Constitution, for 10 years after the initial verdict of compatibility. Under the current law, that period is only one year.

Last Mod: 21 Ocak 2011, 16:44
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