Serkan Yolcu [Uludag University Faculty of Law]: “On Wednesday July 7, 2010, the Turkish media was unexpectedly informed by the press office of Constitutional Court that the Court made its eagerly anticipated judgment on the constitutional amendment package that has been on the agenda for months. After 9.5 hours of debate in only one day, the eleven members of the Court decided to annul a few clauses of some articles of the package. The partially annulled articles rearrange the process of electing members to the Constitutional Court and the Supreme Board of Judges and Prosecutors (HSYK).

The Court annulled the provisions that would have prevented members of the high judiciary from voting for more than one candidate in their selection to HSYK and the Constitutional Court. The provision that would have allowed the president to assign political science and economics academics or senior executives to the HSYK was also annulled. Apart from these very minor changes the package still preserves its content. The decision is very interesting in terms of the votes. While discussing the motion, 39 claims were rejected with different votes of which only 7 decisions were taken unanimously and the rest was decided by majority of votes. However, 7 annulment decisions were decided unanimously.

The decision was immediately and heavily criticized. The main argument is that the Court exceeded his authority (again!) by reviewing the amendments in respect to substance even though it is not empowered to do so according to the 1982 Constitution. (Article 148 of the Constitution stipulates that “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 urgent procedure was complied with”.) The reasoned judgment of the Court has not been published yet but as far as it’s learned from the media, the Court annulled those clauses by finding them contrary to the principle of “democratic… [S]tate governed by the rule of law” provided in the Article 2 of the Constitution. Therefore it’s not possible to decide the constitutionality of the amendments without a substantial review in this respect.

This is not the first time the Court reviewed the compatibility of constitutional amendments with respect to the Constitution. Under the 1982 Constitution, there have been four times (1987, 2007, 2007, 2008) in which the Court made the judicial review of the constitutional amendments. The most controversial one was the decision on June 5, 2008 which annulled the amendments to the Article 10 and 42 of the Constitution relating to removing the ban on headscarves at universities. This was the only time the Court annulled a constitutional amendment under the 1982 Constitution until the decision of July 7, 2010. Since that decision, the Court is said to be in violation of the Constitution because it does not have a competence for judicial review of constitutional amendments in respect to substance. Today in 2010, the Court is said to be in violation of the Constitution again by deciding partial annulment of the current constitutional amendment package.

Under Turkish constitutional system, the Constitutional Court does not have the power to review laws that have not completed its enactment process. Likewise, these constitutional amendments are not valid and unenforceable because their enactment process is not yet completed. The package will be subject to a referendum on September 12, 2010 because it did not receive enough votes in the Assembly to enter into force immediately. Therefore, this referendum will be both on the validity and the enforcement of the amendments. Consequently this law amending the Constitution has not become a “law” yet. The Constitutional Court has no power to make a preventive review of legislation. The 1982 Constitution allows the Court only to make a posteriori review of laws. In other words, the Court cannot review a law even amending the Constitution which has not finished its procedure to become valid. However, the Court invalidated constitutional amendments by reviewing them while they are on their way to referendum.

Nowadays both the opposition party and the current heads of high judicial bodies are not satisfied with the decision because they believe that the rest of partly annulled articles are contrary to the separation of powers and judicial independence. The opposition parties in the Parliament started campaigns for saying “no” in referendum while the government is trying to persuade people to say “yes”. On the other hand, although the supporters of the constitutional change censure the decision because the Court exceeded its powers by reviewing the substance of the amendments they are pleased with the decision and seem to ignore it because the decision did not affect the main idea of the constitutional change and abolish the whole package.”