I actually intended to demonstrate how boring the length and details of discussions about the Constitution can be for expats who are mostly here to find some peace. I was also worried that expats may give up reading the news about the Constitution, the prospective or intended changes to it and irrelevant lengthy opinions about this ongoing mess.Let’s keep reading the marvelous constitutional history of Turkey. When the 1961 Constitution was released by the new people in charge after the coup, a fantastic thing happened -- the Constitutional Court was established.
The 1982 Constitution was also drawn up following a coup and absolutely not by the people if we don’t take the referendum into consideration. Having no better option and giving their thanks to the new people in power, 82 percent of the people voted yes, a fact highly appreciated by the people who drafted the Constitution. In my humble opinion, the 18 percent who said no to the new Constitution under such special circumstances should have created a question mark in the minds of the people governing at that time but it simply didn’t.
The 1982 Constitution respected its predecessor and preserved both the supremacy of the Constitution and the judicial review and the power of interference by the Constitutional Court over the law. Article 11 of the Constitution states: “The provisions of the Constitution are fundamental legal rules binding upon legislative, executive and judicial organs, and administrative authorities and other institutions and individuals. Laws shall not be in conflict with the Constitution.” Very well…
However, at that time people did not really understand the consequences of this sentence. Today, the Constitutional Court’s operations are still questioned by people as they may be influenced by the political opinions of the judges. This creates a de facto governance of some judges over the rules. For readers who may think of wasting their precious time sending me comments claiming that I am suggesting a Parliament that makes laws without any control, please do not waste your time -- here is my response: I am also of the opinion that laws should be subject to contest by citizens in case that they are in conflict with the Constitution, but this power should be managed very carefully and neutrally.
Article 148 of the Constitution regulates the checking and review of compliance of the law with the Constitution. Article 148 roughly states: The Constitutional Court shall review the compliance with the Constitution, in respect of both the form and substance of laws. God forbid, no action shall be brought before the Constitutional Court alleging unconstitutionality as to the form or substance of law during a state of emergency, martial law or in time of war. I would bet that there is no clarity about who would decide the case of emergency and how…
If you have any questions regarding this matter, I would be pleased to respond. I am really curious to see if there are any expats interested in the Constitution of Turkey and the necessity of a change to it.
NOTE: Berk Çektir is a licensed attorney at law and available to answer questions on the legal aspects of living in Turkey. Send enquiries to b.cektir@todayszaman.com The names of the readers are disclosed only upon written approval of the sender.DISCLAIMER: The information provided here is intended to give basic legal information. You should get legal assistance from a licensed attorney at law while conducting legal transactions and not just rely on the information in this corner.
