Constitutional Unamendability in Turkey

The problem of unconstitutional constitutional amendments in Turkey stems from the fact that the unamendability clauses in the Turkish constitutions have been drafted in a way that seeks to preserve the provisions in the protected clauses.

Throughout Turkish constitutional history, the judicial enforcement of una­mendability emerged as an issue with regard to attempts to amend normally amendable clauses, rather than the unamendable ones.^[1291] In the practice of the TCC, we witness the extension of the effect of the unamendability clause to amendments that the clause does not, in fact, protect from change. The Court’s argument is that amendments to normally amendable clauses may hollow out the fundamentals of the constitution and can thus violate the unamendability clause. Hence, we face the conundrum of the unamendability of amendable clauses.

Constitutional amendment as a specific legal procedure in Turkish constitu­tionalism is historically significant, as the Republic of Turkey was founded in 1923 with a constitutional amendment to the 1921 Constitution.^[1292] A year later, the 1924 Constitution marked the first unamendable provision in Turkish constitutional history. Article 102 of the constitution explicitly prohibited any amendment pro­posals to Article 1 specifying the form of the state as a republic. During the period the 1924 Constitution was in place, no attempts for such a proposal have been made.

The history of the judicial review of constitutional amendments by the TCC is analysed in four phases below. While (i) initially the 1961 Constitution did not include any explicit provisions in this regard, following the Court’s activist approach to constitutional amendments, (ii) Parliament amended the constitution in 1971 and empowered the Court to review constitutional amendments, albeit on formal grounds only. While the TCC admitted that it could no longer exercise substantive review of constitutional amendments, it insisted on exercising it under the guise of formal review. In order to prevent this practice, (iii) the 1982 Constitution specifically provided the criteria for formal review, and until 2008 the Court abided by this restriction. Finally, (iv) the Court again adopted its post-1971 amendment attitude after 2008 and reviewed the constitutionality of two amend­ments substantively.

3.1 The Early Activism of the TCC (1962-1971)

Originally, there were no specific provisions regarding the judicial review of constitutional amendments in the 1961 Constitution. The newly established con­stitutional court’s power to exercise constitutionality review was limited to laws and the rules of procedure of Parliament.^[1294] However, the TCC deemed itself competent to review and invalidate constitutional amendments, and exercised its authority accordingly.

The first amendment to the 1961 Constitution was made in 1969, and the TCC invalidated it a year later. Yet, an earlier decision gave hints as to what would follow, where the TCC interpreted in obiter dictum the meaning of Article 155^[1295] of the 1961 Constitution, which regulated constitutional amendments.

The only explicit limitations on the constitutional amendment power in the 1961 Constitution were the amendment procedures to be followed in Parliament, and the unamendability of the form of the state as a republic.^[1297] Despite this framework, in this decision, the TCC introduced a new set of limitations by rendering the spirit of the constitution, the advancement of the Turkish society, the preservation of fun­damental rights and freedoms, and the principle of the rule of law, as criteria for the validity of constitutional amendments. Furthermore, while not explicitly granting itself the authority to exercise constitutional review of constitutional amendments, the Court signalled that it might actually do so.

Five years later, Parliament enacted the first constitutional amendment to the 1961 Constitution, removing the political rights restrictions on some politicians of the pre-1960 coup d’etat government.^[1298] The Workers Party of Turkey (Turkiye isci Partisi) (TIP), the then main opposition party, took the constitutional amendment to the TCC claiming its unconstitutionality. This was the first time a constitutional amendment had been brought before the Court. After interpreting the constitution in a way that empowers the TCC to exercise constitutionality review of constitutional amendments, it invalidated the amendment on procedural grounds.^[1299] As regards its jurisdiction, the Court stated that a constitutional amendment is, in its form, a law, and since the constitution empowers the TCC to exercise constitutionality review of laws, constitutional amendments stand no exception to it.

Two months before this decision was given, Parliament adopted another con­stitutional amendment, which extended the terms of some members of the Senate.^[1303] Again, the TIP petitioned the TCC to invalidate the constitutional amendment. Repeating its recent reasoning, the Court deemed itself competent to exercise both formal and substantive review of constitutional amendments, yet this time it decided the amendment was constitutional.^[1304] In this decision, the Court sketched the framework of limitations on constitutional amendments as follows:

The constitutional order has such fundamental institutions and rules of rights and duties, that if they are subordinated to provisions contrary to the necessities of contemporary civilisation, it could result in a trauma to the order as a whole [...].

Although in this instance the Court did not find the amendment unconstitutional, it insisted that there are certain criteria that represent the ‘spirit and philosophy of the constitution’, and no amendment infringing them could be made. It should be noted that while the Court referred to limitations to the amendment power, it refrained from specifying any principles, other than vague terms such as ‘the necessities of contemporary civilisation’.

The decisions of the TCC in this period have been praised by scholars defending the notion that the distinction between the original and derived constituent powers has practical consequences as to the limits on constitutional amendments. Derived constituent power is bound by the spirit of the constitution,^[1306] this argument went, and cannot make amendments that fall outside of the political preference of the original constituent power.^[1307] Therefore, for them, the TCC was right to review the constitutionality of constitutional amendments by interpreting Article 9 broadly. Moreover, it has been intrepidly suggested that the TCC is the guardian of the constitution and the constitutional order, as can be observed in the oath members of the TCC take when they are appointed to the bench.^[1308] However, the Court’s practice received much wider criticism than appreciation.^[1309] For instance, Ozbudun argued that this practice has been defended either by accepting that there are supra-constitutional legal norms or by assuming that there is a hierarchy of norms within the constitution.

3.2 Substantive Review under the Guise of Formal Review (1971-1982)

As a response^[1312] to this practice, Parliament limited the TCC’s authority to review constitutional amendments only on a formal basis by amending Article 147 of the 1961 Constitution.^[1313] It is worth noting that Parliament stated in the Reasons of this amendment that constitutional amendments are technically not ‘laws’, but ‘con­stitutions’.^[1314] This means that the TCC’s authority to review the constitutionally specified acts of the legislature does not necessarily include the acts of Parliament acting as the derived constituent power (constitutional amendment power). With this amendment, however, it has been authorised to do so, but only on formal grounds.

In 1975, the TCC again invalidated a clause in a constitutional amendment.^[1315] The constitutional amendment in question introduced an exception to Article 138 which stipulated that the majority of the members of military courts should be qualified judges. The amendment provided that in the event of war, this condition was not required.^[1316] In its discussion regarding its authority to review constitutional amendments, the Court conceded that it could no longer exercise substantive review, yet concluded that the formal review included a proposability test under Article 9. The reasoning of the Court was that Article 9 consisted of two elements, namely the principle of unamendability, and the prohibition to propose amend­ments. According to the Court, since provisions regarding the proposal of laws are rules regarding the procedure, the provision prohibiting the proposal is just another such rule. As the constitution at that time empowered the TCC to exercise only formal review of constitutional amendments, in its formal review, the Court con­cluded that it was competent to review the amendment with regard to the una­mendability provision. Moreover, this formal review included the test of conformity to the characteristics of the republic as stipulated in Article 2^[1317] and the Preamble, because according to the Court, what Article 9 protects is not the word ‘Republic’, but the republican regime with these characteristics. As a result, the TCC ruled that the amendment provision in question violated Article 9 because it was not in conformity with the characteristic of the republic that it is built upon human rights as stipulated in Article 2 and the Preamble.

One year later, the TCC reviewed another constitutional amendment, which provided that the compensation to be paid to the property owner in expropriation would be calculated not in terms of its real value, but on the basis of tax returns.^[1318] While the TCC found this amendment constitutional, in doing so, it did exercise substantive review disguised as formal review. In this decision, the Court ruled that the amendment did not infringe upon the essence of the right to property ‘when the ideal of social justice is taken into account’.^[1319]

In another case, the TCC reviewed the same constitutional amendment and an ordinary law in one judgment.^[1320] While the Court decided there was no ground for a judgment as the provisions had been already annulled, it applied the same proce­dure and review criteria to a constitutional amendment and an ordinary law under the same file. Clearly, the Court was of the opinion that ordinary laws and con­stitutional amendments were subject to the same constitutional review procedures and criteria.

The TCC invalidated two more constitutional amendments in this period. It invalidated the provisions that made it impossible to legally challenge the decisions of the High Council of Judges and the High Council of Prosecutors. In both decisions, the Court followed its practice of applying Article 9 as a limitation on constitutional amendments beyond Article 1. In the first case,^[1321] the TCC stated that the inability to exercise the right to legal remedies against the decisions of the High Council of Judges was in conflict with the principle that the state is built upon human rights, the principle of the rule of law as specified by Article 2, and the principle of equality, which is a fundamental principle of the rule of law. The Court concluded that such violations by constitutional amendments are impermissible under Article 9. In the second case, regarding the decisions of the High Council of Prosecutors,^[1322] the Court referred to the first case and annulled the provision on the same grounds.

Further, in this period, in a case regarding Sayiytay (The Court of Accounts), the TCC implied in obiter dictum that there is a hierarchy among the provisions of the constitution:

It should be kept in mind that while constitutional norms are of the same value, it is necessary and natural to prioritise the principles regarding the fundamental institutions of the State against other norms when interpreting any norm.^[1323]

While a few Turkish scholars^[1324] were of the opinion that there is a hierarchy among the constitutional provisions and that provisions regarding the principles governing the state should be prioritised over the other provisions, the TCC’s practice in this period has been widely disapproved of. The broad interpretation of the concept of ‘republic’ in Article 1 and the Court’s reliance on vague terms and the characteristics of the republic have been considered as excessive limitations, since any constitutional amendment could be directly or indirectly linked with the concepts of ‘human rights’, ‘national, democratic, secular and social state’, and the principles in the preamble.^[1325] The counter-majoritarian argument was also put for­ward following these decisions of the Court, as this practice meant that 15 judges’ interpretation of the basic characteristics of the Republic would frustrate the ability of citizens to amend the constitution through their elected representatives.^[1326]

3.3 Restrained Formal Review (1982-2008)

As the 1971 amendments had no significant effect on the jurisprudence of the TCC, the drafters of Turkey’s current 1982 Constitution regulated the constitutional review of constitutional amendments in a most specific manner. Following the model of the amended 1961 Constitution, the 1982 Constitution restricts the TCC’s authority to review constitutional amendments only to formal grounds, but it also specifies in detail what the criteria for formal review are. The relevant clauses in Article 148, entitled ‘Functions and Powers’ (of the TCC) read as follows:

The Constitutional Court shall examine the constitutionality, in respect of both form and substance, of laws, decrees having the force of law and the Rules of Procedure of the Grand National Assembly of Turkey, and decide on individual applications. Constitutional amendments shall be examined and verified only with regard to their form... the verifi­cation of constitutional amendments shall be restricted to consideration of whether the requisite majorities were obtained for the proposal and in the ballot, and whether the prohibition on debates under expedited procedure was observed [emphases added].

While restricting the authority of the TCC, it should be noted that, with Article 4, the constitution-makers extended the unamendable clauses and included along with Article 1, which stipulated the form of the state as a republic, Articles 2 and 3, which are entitled ‘Characteristics of the Republic’, and ‘Integrity, official lan­guage, flag, national anthem, and the capital of the State’ respectively^[1327]:

The provision of Article 1 regarding the form of the State being a Republic, the charac­teristics of the Republic in Article 2, and the provisions of Article 3 shall not be amended, nor shall their amendment be proposed.

In 1987, the first constitutional amendment after 1982 that the TCC reviewed provided for a referendum for the lifting of the political rights restrictions on some politicians.^[1328] The unconstitutionality claim concerned the drafting of the law, in which the first paragraph made the necessary amendment, yet the second paragraph stipulated it to be put to a referendum. With the adoption of the amendment, according to the claim, the constitution had been amended and the referendum clause was unconstitutional, as the constitutional procedure for constitutional amendments had already been fulfilled. The TCC dismissed this request for invalidation by clearly stating that its authority is limited to the review of whether the majorities for proposal and the voting were obtained and that the prohibition of expedited procedure was observed.^[1329]

Until 2007, twelve more amendments have been made to the 1982 Constitution, but none of them were taken to the TCC. In 2007, two constitutional amendments were taken to the TCC with requests for annulment.

The first amendment included the reduction of the legislative term from 5 to 4 years, the election of the president by popular vote, the introduction of clearer provisions regarding the majorities for quorum and ballot in the meetings of Parliament,^[1330] and some technical regulations and transitional provisions regarding the election of the president.^[1331] The claim for unconstitutionality, in this case, which was petitioned jointly by President Sezer and 140 deputies, was on formal grounds. The TCC exercised formal review and decided the amendment was adopted in line with the required procedure, thus constitutionally.^[1332]

The second amendment brought before the TCC in 2007 was regarding changes to the constitutional amendments made with Law No. 5678, which were then pending for a referendum.^[1333] This amendment sought to remove the provisional clauses in the pending amendment allowing the popular election of the next pres­ident and provided for still another parliamentary presidential election. Again, the TCC stated that it could only review constitutional amendments for the observance of the required majorities for proposal and voting, and of the prohibition of expedited procedure.^[1334]

In none of these three cases were there claims of unconstitutionality on the grounds that the amendments were in conflict with the unamendable clauses. The claims were regarding procedural and formal aspects of the amendments, but the TCC strictly conformed to the restrictions on its authority to review constitutional amendments as specified by Article 148 of the constitution.

3.4 The Activist Comeback in 2008

2008 witnessed the TCC’s sharp return to its post-1971 judicial activism. On 9 February 2008, Parliament enacted Law No. 5735 on Amending Some Provisions of the Constitution of the Republic of Turkey. The amendment included an addi­tional paragraph to the article on equality and another to the right to education.^[1335] ‘For a long time some female students have not been able to enjoy the right to education in universities due to their outfit covering their heads’ and ‘in order to bring up generations free in thinking, free in conscience, free in understanding, and due to the principle of equality before law, persons should not face discrimination on any grounds in the utilisation of the right to higher education’, the General Reasons for this amendment stated.^[1336] After the constitutional amendment came into force, the Republican People’s Party (Cumhuriyet Halk Partisi) (CHP), the main opposition party, petitioned the TCC to annul the amendment on the grounds that it was in conflict with the unamendable provisions of the constitution.

Once more, the TCC exercised substantive review of the constitutional amendment, disguised as formal review.^[1337] In this decision, famously known as the Headscarf Decision, the Court first made a distinction between the original con­stituent power and derived constituent power, as to the legal position of Parliament to make constitutional amendments. The Court defined the original constituent power as follows:

Original constituent power is the constitution-making will that specifies the fundamentals of the new legal order in the case of an interruption in the political regime of a certain country. In participatory, deliberative and reconciliatory democracies, it is the people that holds the original constituent power.^[1338]

According to the Court, once a new constitution is made by the original con­stituent power, it is the source of legitimacy of the authorities of all state organs, including Parliament in its capacity to make constitutional amendments following Article 175, which regulates amendments to the constitution. Article 175 grants Parliament the authority to make constitutional amendments, and the Court states that Parliament is able to make constitutional amendments following Article 175 only within the limits imposed by the constitution.

The TCC then referred to Article 4 of the constitution, which stipulates that the provisions of Articles 1, 2 and 3 are unamendable. The Court interpreted this amendment prohibition in a way that constitutional amendments must be in line with the ‘fundamental preference that is embodied in the first three articles of the constitution’.^[1339] As for the TCC’s authority over constitutional amendments, Article 148 reads, ‘... the verification of constitutional amendments shall be restricted to consideration of whether the requisite majorities were obtained for the proposal and in the ballot, and whether the prohibition on debates under expedited procedure was observed’. According to the Court, the review of the requisite majorities condition for the proposal included reviewing whether a ‘valid proposal’ had been made.^[1340] The Court, therefore, concluded that a parliamentary act amending the first three articles or amending other articles affecting the first three articles, as they fail to be proposed constitutionally, needed to be invalidated.

After creating this framework for the constitutionality test of the formal review, the Court went on to review the substance of the amendment vis-a-vis the una­mendable clauses, and ruled it unconstitutional, since it found that the amendment violated the unamendable principle of secularism.^[1341]

While the Headscarf Decision of 2008 was the only example of the TCC’s activist approach regarding the review of constitutional amendments during the era of the 1982 Constitution, it took only 2 years for the Court to repeat its interpre­tation regarding the limits on constitutional change and its authority to review constitutional amendments.^[1342] In March 2010, the deputies of the ruling Justice and Development Party (Adalet ve Kalkinma Partisi) (AKP) proposed Law No. 5982, a democratisation package in the form of a constitutional amendment, which was later adopted by a referendum on 12 September 2010. The constitutional amend­ment package included 26 articles reforming various principles and institutions in the constitution, ranging from the compositions and authorities of the High Council of Judges and Prosecutors (HSYK) and the TCC to social rights and protection of personal data, as well as creating the institutions of ombudsman and constitutional complaint.^[1343] After the enactment of the amendment in Parliament, but before the referendum took place, the deputies of the CHP petitioned the TCC to annul the amendment on the grounds that it is not in conformity with the unamendable provisions of the constitution.

In this case, the TCC repeated its reasoning in the Headscarf Decision regarding the limits to constitutional amendments, and further defined the limits more specifically, adding that ‘the substantive review of constitutional amendments must be regarding and limited to whether the principles which are unamendable and which their amendments cannot be proposed have been directly or indirectly destroyed or emptied of their content and rendered meaningless’.^[1344]

In the substantive review, the Court found a conflict with the principle of ‘a democratic state [...] governed by the rule of law’ and declared unconstitutional only the voting procedures to the HSYK and the TCC, and the provisions allowing the president to appoint political science and economics academics or senior executives to the HSYK. In terms of substantive review, the result was relatively minor. However, the TCC clearly insisted on its reasoning regarding the limits on constitutional change, and expressly stated that it also exercises substantive review of constitutional amendments.

The decisions of 2008 and 2010 have been regarded by most as clear instances of ultra vires,^[1345] and by one scholar as ‘the final example of the paranoid schizo­phrenic state of the Court, when the subject matter is the protection of Kemalist ideology’.^[1346] According to these criticisms, the historical fact that the gradual restriction of the TCC’s authority to review constitutional amendments should mean that it must not exercise substantive review whatsoever. Furthermore, it has been suggested that the institutions of state are deemed incompetent unless they are authorised by the constitution, the rules providing for state authority are excep­tional, and thus cannot be interpreted in ways that extend the scope of authority.^[1347]

The Venice Commission in its Report on Constitutional Amendment has also criticised the TCC’s interpretation of the unamendable provisions in the Headscarf Decision.^[1348] The Commission concluded, ‘unamendable provisions and principles should be interpreted and applied narrowly’.^[1349]

In a more recent decision,^[1350] the TCC rejected applications by 70 deputies to invalidate a constitutional amendment selectively lifting parliamentary immunity.^[1351] The applications were made by individual deputies^[1352] who argued, inter alia, that all acts lifting parliamentary immunity, including constitutional amendments, are subject to review under Article 85 of the Constitution.^[1353] The Court rejected this argument and held that it is only authorised to review consti­tutional amendments according to the procedure set out in Article 148. Importantly, the Court, moving away from its jurisprudence of 2008 and 2010 decisions, stated in obiter dictum in this unanimous decision that constitutional amendments cannot be reviewed with regard to their substance but only with regard to their form, and that this is limited to the review of whether the requisite majorities were obtained for the proposal and in the ballot, and whether the prohibition on debates under expedited procedure was observed.^[1354] This is especially striking as two judges, Osman Alifeyyaz Paksut and Serdar Ozguldur, who argued for review under Article 4 in 2008 and 2010, joined the majority opinion in this case to abandon their earlier position.^[1355]

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