THE CONSTITUTIONAL COURT RULING: “Terms of Form & Essence” and “Letter & Spirit”

Amsterdam, June 10, 2010

I. Introduction: “THE CONSTITUTIONAL AMENDMENT PACKAGE”

On June 5, 2008, the Constitutional Court repealed constitutional amendments seeking the lift of “Headscarf Ban” in the universities following an examination of the substance. And the decision has been inserted as a judicial opinion by the High Constitutional Court (the “Court”) in the legal literature.

Several jurists speaking on TVs or making statements to newspapers have claimed despite the existing judicial opinion that “with the decision the Court has exceeded its authority for it can only squash decisions after a thorough examination of form”. THIS IS TOO MUCH, INDEED !

According to the 4th Article of the chapter “Irrevocable Provisions” (Approved on October 18, 1982 at the Founding Assembly, announced in the Official Gazette on October 20, 1982-17844, endorsed by a popular vote on November 7, 1982, announced in the Official Gazette on November 9, 1982-17863 repetition), the first article of the Constitution, “form of the state” and the second article on the “characteristics of the Republic, and the third article are irrevocable or amendments on them CANNOT EVEN BE OFFERED.

On June 8, 2010, President of the Constitutional Court announced that “the Court has agreed to take the motion to squash suspension of execution and that the Court would examine the form only check to see if the motion is in line with the first three articles of the Constitution”.

II. The Constitution: “PROVISIONS OF FORM & ESSENCE”

We have been educated by Ord. Professor Ali Fuat Başgil and Professor Hüseyin Nail Kubalı in the school of law. It is impossible for us to accept the claims stated above.

Besides, we are stunned to hear such simple remark “The Constitutional Court has exceeded the authority” to which daily ordinary politicians and legalists resort very often.

Let me remind at this point, the Court has not exceeded the authority theoretically, but fulfilled a duty in the following way:

The Constitution authorizes the Court to overrule suggested amendments if not in accordance with form.

Although the term “provisions of form” is applied very frequently in science of law, it is not perceived completely. The accurate meaning of the term is “essence (statutory) conditions”.

In fact, either in form or essence what is examined is not the quorum for meeting or voting or latency time. But what is looked for is “whether or not an amendment is in line with any statutory conditions states in the Constitution”.

As the Constitution introduced the quorum aforementioned, it has clearly stated that some articles are inalterable (1st, 2nd and 3rd articles) and that no motion can be made for amendment of these articles. This is of a more important legal condition or legal form than latency time or quorum. Naturally, in case of violation, the Court must squash changes; it is not “may annul”, but “MUST CANCEL”.

And on June 5, 2008, the Court examined an amendment on lifting the Headscarf Ban in the universities, looked into both FORM and ESSENCE of the relevant articles and CANCELLED the motion.

III. The Constitution: “LETTER &  SPIRIT”

As the Founding Assembly prepared this Constitution, they had never envisaged a government-elected would seek or attempt to seek illegal applications of the law.

The Constitutional Court Rapporteur Osman Can suggests: “If the Constitutional Court cancels some articles, it should be annulled” what “AN ILLEGAL” suggestion to make !.

The Government today doesn’t care about the Council of State decisions, neither the decisions of the Court of Appeals !.. Please be careful, if the result of the referendum becomes a “Yes” to the constitutional amendments, the following hypothetical conditions may occur:

Pose for a second and think. Let’s say that the Constitutional Court has no authority to overrule amendments in the irreversible articles. Then, in this case, which office will regard this “caduceus”. The Army ?!.

If this is a legal issue and if it should be discussed in legal terms, the only statement could be: “Whether or not the Constitutional Court provision is applied in the following circumstances”: It is applied on the text of the irrevocable articles, i.e. ‘letter’, or applied in ‘spirit’ through the modification of some other articles and by-passing the irrevocable ones, which is the case today…

Let’s simplify it more and say that Parliament follows all necessary legal rules, such as quorum and latency time, and approves an amendment by majority of votes:

• If Parliament decides “Recep Tayyip Erdoğan will be a lifetime prime minister” and if necessary quorum and latency time is fulfilled, then will the claim that the irrevocable articles remain untouched and the article “The form of the state is Republic” be justified ?. I wonder if the Constitutional Court has no authority to overrule such a decision.
• Even more so, if Parliament adopts an amendment unanimously and states:

Article 1001: “As long as Erdoğan lives, there will be no elections held. He will be a lifetime prime minister, Abdullah Gül will be a lifetime president, Erdoğan will appoint new parliamentary members in every five years and incumbents may be re-appointed.”

Besides, if a constitution is agreed on that some articles cannot be touched, this is something about the form, not the essence, for it is a procedural issue. The statement “…modification CANNOT EVEN BE RECOMMENDED” means “provision of form”. Is it not?

What is we are missing here is that fulfillment of the irrevocable articles is also a provision of FORM, one of the most important ones.

IV. Conclusion:  “REAL DANGER”

And the real danger is if the current government makes illegal attempts (by using democracy) as mentioned above, there will be no Court or any Resort to stop this !..

In short summary, what should we do against such an illegal offer, if any, that violates the constitutional articles ?.  Let’s leave this to Republic Prosecutors !.

Cordially yours

Hakan HANLI, Esq.
Senior Attorney-at-Law
Member of Ankara & Brussels Bars
International & uropean Law, Ph.D
International Arbitrator, ICC
« IUS EST ARS ÆQUI »

An important note: The Constitutional Court does not drag the country into trouble, as claimed, but governments which do not have any experience in state and which overlooks the Supreme Charter. If governments respect the Constitution and know their limits, the country will not be swept into difficulty. But if they don’t know where to stop, the country will be fall into trouble despite the Constitutional Court.

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