Shades of Unconstitutionality

On July 12, the Justice Commission of the Grand National Assembly of Türkiye adopted the 9th Judicial Reform Package¹⁾, which was prepared by the incumbent Justice and Development Party (JDP). The package is expected to be presented to the General Assembly in October, when the Assembly commences after the summer break. It continues a series of reform packages, the first of which was adopted in March 2011 and the latest on March 1, 2024. A common characteristic of all of them is that amendments to various statutes are introduced under the guise of reform and implemented through an omnibus law.

The 9th Judicial Reform Package continues this tradition, amending twenty entirely unrelated statutes with one omnibus law. However, since the 8th Judicial Reform Package, another feature has become remarkable. This is that these so-called reforms deliberately overrule the decisions of the Turkish Constitutional Court (TCC), which should be binding on the legislative according to Article 153 of the Turkish Constitution. Additionally, the packages show a new trend of expressing dissatisfaction with the TCC beyond the individual complaint procedure.

Nullifying decisions

Paragraph 6 of Article 220 of the Turkish Penal Code used to criminalize committing a crime in the name of an armed/terrorist organization and stated that “Any person who commits a crime on behalf of an organization, without being a member of that organization, is punished as a member of the organization. The punishment for membership of an organization can be reduced by up to one half.”

In October 2023, the TCC declared Article 220/6 to be unconstitutional,²⁾ arguing that it did not comply with the principle of legality of crimes and punishments as it lacked clarity. The TCC’s decision was a positive step, as it ended a provision that had previously allowed arbitrary behavior of public authorities and resulted in the punishment of hundreds of people for attending funerals or memorial ceremonies. However, the 8th Judicial Package practically reversed the TCC’s decision by revising the Article 220/6 to read “Any person who commits a crime on behalf of an organization, without being a member of that organization, will be additionally sentenced to imprisonment from two years six months up to six years. The punishment can be reduced by half depending on the nature of the crime committed”. Thus, the 8th Judicial Package only changed the wording of Article 220 and did not abide by the reasoning of the TCC.

The deliberate nullification of TCC judgments continues in the 9th Judicial Reform Package. A frequently cited example that has this characteristic is Article 15 of the Package, which amends Article 187 of the Turkish Civil Code no. 4721. Citing a violation of the principle of equality, the TCC had previously invalidated the first and second sentences of Article 187, which mandated that married women take their husbands’ surnames.³⁾ In that way, the TCC granted women the right to use their maiden names if they wished. However, under the 9th Judicial Reform Package, women will lose this right. They will only be allowed to use their maiden names together with their husbands’ surnames. Similarly, Article 191 of the Turkish Civil Code, which previously required the person claiming to be the father to meet conditions beyond their control to file a lawsuit for the denial of paternity, was annulled by the TCC on the ground that it violated the right to protection of private life and the right to an effective remedy.⁴⁾ However, Article 18 of the 9th Reform Package reinstates this provision.

Besides the Turkish Civil Code, Article 14 and Provisional Article 1 of the 9th Reform Package amend Expropriation Law and Forest Law, and render more of the TCC’s rulings null and void. In April 2022, the TCC annulled certain provisions of the Expropriation Law no. 2942 that had eliminated the ordinary expropriation procedure, prevented owners from receiving fair compensation, and ruled out the possibility for courts to verify the public interest in the expropriation. The TCC ruled that such provisions were contrary to the constitutionally guaranteed right to property and Article 46 of the Constitution, which regulates expropriation.⁵⁾ Despite this, unconstitutional provisions are reinstated by Article 14 of the 9th Reform Package. Additionally, in December 2023, the TCC annulled the construction of judicial service facilities and prisons in state forests. Provisional Article 1 of the Package also effectively nullifies this rulling of the TCC.

These legal arrangements fail to comply with the requirements of the TCC’s decisions. On the contrary, they effectively reinstate provisions that the Court has annulled. In that way, not only do they manifestly violate Article 153 of the Turkish Constitution, which regulates the binding nature of the TCC’s rulings; but also, these legal amendments infringe upon constitutionally guaranteed rights and freedoms such as the principle of equality, the right to protection of private life, the right to an effective remedy, and private property.

New issues of unconstitutionality

There is a strong irony in the fact that the TCC judgments are being nullified in the name of a judicial reform. For those following Turkish politics, disrespect towards the TCC in recent years may not come as news. Nevertheless, there are two important aspects of the 8th and 9th Judicial Reform Packages that highlight new issues of unconstitutionality.

First, the individual complaint procedure is often the thing that comes to mind when considering the JDP’s disregard for the TCC rulings. The government’s harsh criticism of the TCC and first-instance courts’ foot-dragging in the implementation of the TCC’s decisions, for example in the cases of Mehmet Altan,⁶⁾ Şahin Alpay,⁷⁾ and Kadri Enis Berberoğlu,⁸⁾ reinforce this perception. However, the reform packages indicate that dissatisfaction is not limited to the individual complaint procedure anymore. In particular, the TCC’s primary jurisdiction of norm review seems to become an unendurable obstacle for the JDP in its quest for unlimited power, despite the fact that the JDP’s head and President Recep Tayyip Erdoğan appointed 10 of the 15 members of the TCC. In this context, it can be said that the JDP is generally dissatisfied with a judicial review of the constitution, i.e., the existence of a constitutional court whose judgments are not subject to review.

There is no mechanism to bring the JDP in line with TCC’s rulings in the presidential system, where the parliamentary cannot oversee the executive president or hold confidence votes. Additionally, the TCC is the last institution that has the authority to impose its decisions on the president. When it is gone, the partisan executive president will thoroughly enjoy an unchecked power.

Second, the judicial reform packages may signal the beginning of a new trend of circumventing the constitution in the third term of Erdoğan’s presidency that commenced in May 2023. This new trend goes beyond the constitution with a parliamentary majority, formed by the JDP and its ally, the Nationalist Movement Party (NMP). Parliamentary majority overrides the constitution through legislation, just like the omnibus laws of the judicial packages show. Yet, a decision of the parliament can have the same effect, as it can be seen in the case of Şerafettin Can Atalay, when the parliament stripped him of his parliamentary seat in January 2024. In Atalay’s case (detailed explanation can be read here and here), the TCC judged twice (first on October 25, 2023⁹⁾ and later on December 21, 2023¹⁰⁾) that his right to be elected, to engage in political activity, to personal liberty and security had been violated and ordered his immediate release, citing his parliamentary immunity.

However, the 3rd Criminal Chamber of the Court of Cassation rejected to implement the TCC’s ruling, arguing that the TCC was not a super-appeal court, that its decision was political rather than judicial, and that it had exceeded its constitutional powers.¹¹⁾ Additionally, the 3rd Criminal Chamber of the Court of Cassation notified the Parliament of its decision to revoke Atalay’s parliamentary seat immediately. On January 30, 2024 the Parliament stripped Atalay of his parliamentary seat.

Then, the tension between the Court of Cassation and the TCC over Atalay’s parliamentary immunity was resolved to the detriment of the TCC not by a judicial decision in the realm of judicature, but by a political decision of the parliamentary majority. This way of resolving the conflict acted as an external intervention, akin to cutting the Gordian knot.

Since the Turkish Constitution (Articles 146-153) guarantees the TCC and the binding nature of its decisions, a constitutional amendment is necessary to abolish the court. The JDP’s initiative to draft a new constitution, which began after the general elections in May 2023 and gained momentum after the local elections on March 31, 2024, has led to expectations that the new constitution would diminish the power of the TCC. Nevertheless, the fact that the Court is being bypassed by a parliamentary majority suggests that its decisions may be effectively null and void until a new constitution is drafted or even if the attempt to write a new constitution fails. On the other hand, the majority formed by the JDP and the NMP, which neutralizes the TCC’s rulings, negates the will of the rest of the parliament and reduces it to numerical superiority. All in all, while interventions of parliamentary majority to the domain of judicial review of constitutionality may provide a temporary fix, they clearly entrench and normalize unconstitutionality and further diminish the dignity of the parliament.