Constitutional Court of Turkey

Highest legal body for constitutional review in Turkey

The Constitutional Court of Turkey (Turkish: Anayasa Mahkemesi, sometimes abbreviated as AYM) is the highest legal body for constitutional review in Turkey. It "examines the constitutionality, in respect of both form and substance, of laws, decrees having the force of law, and the Rules of Procedure of the Turkish Grand National Assembly" (Article 148/1 of the Turkish Constitution). If necessary, it also functions as the Supreme Criminal Court (Yüce Divan) to hear any cases raised about the President, Vice President, members of the Cabinet, or judges of the high courts. In addition to those functions, it examines individual applications on the grounds that one of the 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 (Article 148/3 of the Turkish Constitution). The Court is the seat of the Center for Training and Human Resources Development of the Association of Asian Constitutional Courts and Equivalent Institutions.

Part Four, Section Two of the Constitution establishes the Constitutional Court that rules on the constitutionality of statutes and Presidential executive orders. The Court rules on issues referred to it by the President, the members of Parliament, or any judge before whom an exception of unconstitutionality has been raised by a defendant or a plaintiff. The Constitutional Court has the right to both a priori and a posteriori review (respectively, before and after enactment), and it can invalidate whole laws or governmental decrees and prevent their application in future cases. Challenges to a law must be made within the first two months of its promulgation. The court decides over the parliamentary immunity of the members of the Grand National Assembly of Turkey and has the authority to ban political parties.

The Constitutional Court of Turkey was established on April 25, 1962, according to the provisions of the constitution of 1961. Prior to that date, absolute superiority of the parliament was adopted as a constitutional principle, with no judicial review. There existed no legal institution to review the constitutionality of laws passed by the parliament, and of acts and actions of governments. The social democratic opposition, intellectuals, and the military junta that came into power by military coup on May 27, 1960, supported limitation and control of the parliamentary power in the face of abuses of parliamentary majority by the Democratic Party governments (1950–60) under the premiership of Adnan Menderes. The Justice Party, a descendant of the Democratic Party; as well as Justice and Development Party have rejected the idea of judicial review, pushing for parliamentary superiority. The first decision the court gave is dated September 5, 1962, which was published on the Official Gazette on October 3, 1962. It was about a direct petition by a certain İnaç Tureren for the annulment of an article of the Law of Criminal Procedure (Ceza Muhakemeleri Usûlü Kanunu CMUK), which was claimed to be violating the provisions of Article 30 of the constitution. The court turned down the case, stating that individual application to the court was constitutionally impossible. The first president of the court was Sünuhi Arsan, who served for two years (1962–64). Following the second (Ömer Lütfi Akadlı 1964–66) and the third (İbrahim Senil 1966–68) presidents, the court failed to elect a president for 29 months (until 1970) during which it was headed by an acting president. The articles of the constitution regulating the structure of the court were slightly amended in 1971 and 1973. Although the constitution of 1961 was annulled by the military regime that came into the power with the military coup of September 12, 1980, the court went on operating. It currently operates according to the constitution of 1982.

Decision no. 1989–12, dated 07.03.1989: The Court, in response to then president Kenan Evren's application for annulment of a law passed by parliament, ruled that wearing headscarves in public universities violated the separation of religion and state. Decision no. 1994–2, dated 16.06.1994: The Court ruled to close the Democracy Party (Demokrasi Partisi – DEP), a pro Kurdish party, on the grounds that it violated the principle of territorial/national integrity and indivisibility. Decision no. 1998–1, dated 16.01.1998: The Court ruled to close the Welfare Party (Refah Partisi – RP), an Islamist party, on the grounds that it was violating the principle of secularism. Decision no. 2001–2, dated 21.06.2001: The Court ruled to close the Virtue Party (Fazilet Partisi – FP), the successor to the Welfare Party. The decision, however, stated that the Court did not consider the FP to be the continuation of the RP, but cited the Islamist policies followed by the party as the main reasons behind the closure. Decision no. 2001–332, dated 18.07.2001: The Court, in response to applications made by regular courts, ruled that some parts of the Amnesty Law passed by the parliament were unconstitutional, which resulted in a minor expansion in the scope of the proposed amnesty. Decision dated 2008/7/30: In the 2008 Justice and Development Party closure trial, the court ruled that the Justice and Development Party did not violate the separation of religion and state and did not close it, but noted that it had become "a center for anti secular activities" and cut the state's funding of the party's activities by 50%. Decision dated 2009/12/11: The court decided to ban the Democratic Society Party (DTP) for its links to the Kurdistan Workers Party (PKK), considered a terrorist group. It argued the DTP violated Articles 68 and 69 of the Constitution and the Political Parties Law. "The party became a focal point for terrorism against the indivisible integrity of the state. ", stated Haşim Kılıç, president of the Court.