Structure Of Judicial System under Turkish Constitution

(1) Introduction

A democratic government performs functions of state through its three branches, and these branches are legislature, executive and judiciary. The legislature is to legislate, executive is to enforce law and maintain law and order in the state, and judiciary is to interpret and apply laws to decide the disputes that come before it. No state can exist without its judicial and executive systems. The Turkish Constitution also provides for judicial and executive systems of Turkey.

(2) Structure Of Judiciary Or Judicial System

The Turkish Constitution provides the following structure of judiciary or following judicial system:

  • (i) Military courts
  • (ii) Constitutional Court
  • (iii) Court of Cassation
  • (iv) Council of State
  • (v) Court of Jurisdictional Disputes
  • (vi) Council of Judges & Prosecutors
  • (vii) Courts of Accounts

(i) Military Courts

Article 142 prohibits the formation of military court:

  • (a) Disciplinary courts
  • (b) In state of war

(a) Disciplinary Courts

Disciplinary courts can be formed.

(b) In State Of War

In state of war, military courts can be formed with jurisdiction to try offences, which military personnel commit in relation to their duties.

(ii) Constitutional Court

Article 146 establishes Constitutional Court:

  • (a) Composition
  • (b) Functions & powers

(a) Composition

Article 146 provides for its composition:

  • (a-i) Members
  • (a-ii) President & two deputy presidents

(a-i) Members

It is composed of fifteen members.

(a-ii) President & Two Deputy Presidents

It elects a president and two deputy presidents from among its members.

(b) Functions & Powers

Article 148 states functions and powers of the Constitutional Court:

  • (b-i) Judicial review
  • (b-ii) Trial of offences

(b-i) Judicial Review

It possesses power of judicial review:

  • (x) Constitutionality of laws, presidential decrees & rules of Procedure of Grand National Assembly
  • (y) Violation of fundamental rights & freedoms

(x) Constitutionality Of Laws, Presidential Decrees & Rules Of Procedure Of Grand National Assembly

It examines the constitutionality of form and substance of laws, presidential decrees and the Rules of Procedure of the Grand National Assembly.

(y) Violation Of Fundamental Rights & Freedoms

It adjudicates any application regarding the violation of fundamental rights and freedoms.

(b-ii) Trial Of Offences

In its capacity as Supreme Court, it tries the followings offences, which are in relation to functions:

  • (s) President
  • (t) Speaker of Grand National Assembly
  • (u) Vice-Presidents
  • (w) Ministers
  • (x) Presidents & and members of Constitutional Court, Court of Cassation, Council of State, Council of Judges and Prosecutors, Court of Accounts
  • (y) Chief Public Prosecutors, and
  • (z) Deputy Public Prosecutors

(iii) Court Of Cassation

Article 154 establishes the Court of Cassation:

  • (a) Members
  • (b) First President, first deputy presidents & heads of departments
  • (c) Chief Public Prosecutor & Deputy Chief Public Prosecutor
  • (d) Jurisdiction

(a) Members

(a-i) Appointment

The Council of Judges and Prosecutors appoints members of the Court of Cassation.

(a-ii) Who Are Appointed As Its Members?

Its are appointed from among first category judges and public prosecutors of the civil judiciary or from those, who are considered members of this profession.

(b) First President, First Deputy Presidents & Heads Of Departments

(b-i) Election

The General Assembly of the Court of Cassation elects the First President, first deputy presidents and heads of departments of the Court of Cassation.

(b-ii) Who Are Elected As First President, First Deputy Presidents & Heads Of Departments?

The General Assembly of the Court of Cassation elects all of them from among its own members.

(b-iii) Term & Re-election

The first President, first deputy presidents and heads of departments of the Court of Cassation are elected for four years. They can be re-elected at the end of their term.

(c) Chief Public Prosecutor & Deputy Chief Public Prosecutor

(c-i) Appointment

The Turkish President appoints the Chief Public Prosecutor and the Deputy Chief Public Prosecutor of the Court of Cassation.

(c-ii) Who Are Appointed As Chief Public Prosecutor & Deputy Chief Prosecutor?

They are appointed from among five candidates, which are nominated for each office by the General Assembly of the Court of Cassation from among its own members. They are appointed for four years and can be re-elected at the end of their term.

(d) Jurisdiction

(d-i) Decisions & Judgments Of Civil Court

It reviews the decisions and judgments of civil courts that are not referred by law to other civil judicial authority.

(d-ii) Specific Cases

It is also the first and last instance court for dealing with specific cases, which are prescribed by law.

(iv) Council Of State

Article 155 establishes Council of State:

  • (a) Members
  • (b) President, Chief Public Prosecutor, Deputy Presidents & Heads Of Departments
  • (c) Jurisdiction

(a) Members

(a-i) Three-Fourths Of ’embers

The Council of judges and Prosecutors appoints three-fourths of the member of the Council of State from among the first category administrative judges and public prosecutors or from those, who are considered to be of this profession.

(a-ii) Other Remaining Members

The Turkish President appoints the other remaining members of the Council of State from among officials, who fulfill the legally designated requirements.

(b) President, Chief Public Prosecutor, Deputy Presidents & Heads Of Departments

(b-i) Election

The General Assembly of the Council of State elects the President, Chief Public Prosecutor, deputy presidents, and heads of departments of the Council of State from among its own members.

(b-ii) Term & Re-election

They are elected for four years and can be re-elected at the end of their term.

(c) Jurisdiction

(c-i) Decisions & Judgments Of Administrative Courts

The Council of State reviews decisions and judgments administrative courts and have not been referred by law to other administrative courts.

(c-ii) Specific Cases

It is also be the first and last instance court for dealing with specific cases, which are prescribed by law.

(v) Court Of Jurisdictional Disputes

Article 158 establishes Court of Jurisdictional Disputes:

  • (a) Composition
  • (b) Jurisdiction

(a) Composition

(a-i) Office Of President

The office of its president is held by a member, who is delegated by the Constitutional Court from among its own members.

(a-ii) Qualifications & Electoral Procedure Of Members

The qualifications and electoral procedure of its members are regulated by law.

(b) Jurisdiction

It has been empowered to deliver final judgments in disputes, which are between civil and administrative courts and concern their jurisdiction and judgments.

(vi) Council Of Judges & Prosecutors

Article 159 establishes Council of Judges and Prosecutors:

  • (a) Composition
  • (b) Power & function

(a) Composition

(a-i) Members

It is composed of thirteen members.

(a-ii) Two Chambers

It has two chambers.

(a-iii) President

Its president is Minister of Justice.

(a-iv) Undersecretary To Ministry Of Justice

The Undersecretary to Ministry of Justice is also its member.

(a-v) Term & Re-election

Its members are elected for four year and can be re-elected at the end of their term.

(b) Power & Function

(b-i) Proceedings

It makes proceedings regarding the followings:

  • (t) Admission of judges and public prosecutors of civil and administrative courts into the profession
  • (u) Appointment, and transfer to other posts
  • (w) Delegation of temporary powers
  • (x) Promotion, and promotion to the first category
  • (y) Decision, which concerns those whose continuation in the profession is found to be unsuitable
  • (z) Imposition of disciplinary penalties and removal from office

(b-ii) Abolition Of Court Or Changes In Territorial Jurisdiction

It takes final decision is on proposals by the Ministry of Justice, which concern the a volition of a court or changes in the territorial jurisdiction of a court.

(vii) Court Of Accounts

Article 160 establishes Court of Accounts:

  • (a) Members & president
  • (b) Powers & functions

(a) Members & President

Matters regarding its members and president are regulated by law.

(b) Powers & Functions

(b-i) Audit

On behalf of the Grand National Assembly, it audits revenues, expenditures, and assets of the public administrations, which are financed by central government budget and social security institutions.

(b-ii) Accounts & Acts of Responsible Officials

It takes final decisions on the accounts and acts of the responsible officials.

(b-iii) Inquiry, Auditing & Judgment

It also performs the functions, which are prescribed in laws in matters of inquiry, auditing and judgment.

(3) Executive System

Article 8 settles that executive power and function shall be exercised and carried out by the President in conformity with the Constitution and laws. Therefore, office of Turkish President represents the executive system in Turkey. According to the Turkish Constitution, the office of the Turkish President can be explained in the following words:

  • (i) Office of President
  • (ii) Oath
  • (iii) Duties & powers

(i) Office Of President

Article 101 of establishes an office of the President:

  • (a) Qualifications
  • (b) Direct elections
  • (c) Universal suffrage
  • (d) Term
  • (e) Two terms

(a) Qualifications

A person must possess the following qualifications to contest the election of the President:

  • (a-i) Turkish citizenship
  • (a-ii) Eligibility
  • (a-iii) Age
  • (a-iv) High education

(a-i) Turkish Citizenship

He must be Turkish citizen.

(a-ii) Eligibility

He must be eligible to be deputy of the Grand National Assembly.

(a-iii) Age

He must be over forty years of age.

(a-iv) High Education

He must have completed higher education.

(b) Direct Elections

The President is elected directly by the public.

(c) Universal Suffrage

The presidential elections are conducted by universal suffrage.

(d) Term

The President’s term of office is five years.

(e) Two Terms

A person can be elected as President for not more than two terms.

(ii) Oath

According to Article 103, the President is to take oath before the Grand National Assembly.

(iii) Duties & Powers

Three articles describe duties and powers of the President:

  • (a) Article 104
  • (b) Article 108
  • (c) Article 119

(a) Article 104

Article 104 decides that the President is the head of the state, and executive power belongs to the President. It describes the following duties and powers of the President:

  • (a-i) Implementation of Constitution
  • (a-ii) Functioning of state organs
  • (a-iii) Opening speech of Grand National Assembly
  • (a-iv) Domestic & foreign policy
  • (a-v) Promulgation of laws
  • (a-vi) Returning of laws.
  • (a-vii) Action for annulment
  • (a-viii) Appointment & dismissal of Vice-Presidents & ministers
  • (a-ix) Appointment & dismissal of high level state officials
  • (a-x) Procedures & state officials
  • (a-xi) principles about appointment of high level
  • (a-xii) Turkish representatives to foreign state
  • (a-xii) Representatives of foreign states
  • (a-xiii) International treaties
  • (a-xiv) Referendum
  • (a-xv) National security policies
  • (a-xvi) Office of Commander-in-Chief of Armed Forces
  • (a-xvii) Use of Armed Forces
  • (a-xviii) Commutation or revocation of sentences
  • (a-xix) Presidential decrees on matters regarding executive power
  • (a-xx) By-laws
  • (a-xxi) Powers of election & appointment
  • (a-xxii) Other duties

(a-i) Implementation Of Constitution

He ensures the implementation of the Constitution.

(a-ii) Functioning Of State Organs

He ensures the regular and harmonious functioning of the state organs.

(a-iii) Opening speech Of Grand National Assembly

He can deliver the opening speech of the Grand National Assembly on the first day of the legislative year.

(a-iv) Domestic & Foreign Policy

He gives message to the Grand National Assembly about domestic and foreign policy of the country.

(a-v) Promulgation Of Laws

He promulgates laws.

(a-vi) Returning Of Laws

He returns laws for reconsideration to the Grand National Assembly.

(a-vii) Action For Annulment

He lodges an action for annulment with the Constitutional Court for the whole or certain provisions of enacted laws, the rules of procedure of the Grand National Assembly on the grounds that they are unconstitutional.

(a-viii) Appointment & Dismissal Of Vice-Presidents & Ministers

He appoints and dismisses Vice-Presidents and ministers.

(a-ix) Appointment & Dismissal Of High Level State

Officials He appoints and dismisses high level state officials.

(a-x) Procedures & Principles About Appointment Of High Level State Officials

He regulates the procedures and principles regarding the appointment of high level state officials.

(a-xi) Turkish Representatives To Foreign State

He accredits representatives of the Turkish state to foreign state.

(a-xii) Representatives Of Foreign States

He receives the representatives, who are of foreign states and have been appointed to Turkey.

(a-xiii) International Treaties

He ratifies and promulgates international treaties.

(a-xiv) Referendum

He can hold a referendum on laws regarding amendment to the Constitution.

(a-xv) National Security Policies

He determines the national security policies and takes the necessary measures.

(a-xvi) Office Of Commander-In-Chief Of Armed Forces

He represents the office of Commander-in-Chief of the Turkish Armed Forces on behalf of the Grand National Assembly.

(a-xvii) Use Of Armed Forces

He decides on the use of the Turkish Armed Forces.

(a-xviii) Commutation Or Revocation Of Sentences

He commutes or revokes the sentences, which are imposed on certain individuals, on grounds of chronic illness, disability and old age.

(a-xix) Presidential Decrees On Matters Regarding Executive Power

He can issue presidential decrees on matters regarding the executive power. However, he can issue decrees on some specific matters.

(a-xx) By-Laws

He can issue by-laws in order to ensure the implementation of laws.

(a-xxi) Powers Of Election & Appointment

He exercise powers of election and appointment.

(a-xxii) Other Duties

He also performs the other duties, which Constitution and laws confer on him.

(b) Article 108

According to Article 108, he regulates the functioning of the State Supervisory Council, the term of office of its members, and other personnel matters about their status through presidential decree.

(c) Article 119

Article 119 empowers the President to declare state of emergency in one or more regions or throughout the country for a period of six months.

(3) Conclusion

It can be finally stated that the state structure of Turkey is different from state structures of other countries in many ways. The state structure of Turkey is unique because it has been established with Turkish characteristics. Such uniqueness can be observed in the systems of its judiciary and executive.

 

Leave a Reply

Your email address will not be published. Required fields are marked *

B i l a l - T a h i r