Hit enter after type your search item

EVALUATION OF THE RULE ADDED TO THE ARTICLE 90 OF THE TURKISH CONSTITUTION

/

Writer: Ada İlyada UTKUCU

A. Introduction

The relationship between international law and internal law of a state as well as the notion of supremacy of international law are quite controversial issues. Many learned writers recognize the supremacy of international law as a value that requires an international legal rule to exist. While several states’ municipal laws conform with the ever-increasing demands of international law in today’s situations, it is usually avoided to recognize the unconditional superiority of international law on constitutional standards.[1] Most states have declared their supreme constitutions and prepared a legal order in respect of hierarchy of norms by Hans Kelsen. Any international treaties require States Parties to adapt their national laws or take other steps to fulfill their international obligations. When looking into Turkish legal system, it can be seen that domestic law conforms with the demands of international law; this can be discussed with analyzing Article 90 of the Turkish Constitution and addition to this article.

B. Turkish Legal System and Political Atmosphere in Turkey in 2004

B.1. Turkish Legal System

When considering Turkish legal system and political atmosphere in Turkey in 2004 based on relationship between international law and municipal law, an important “silent revolution” happened in recent Turkish law history and that was the addition to Article 90 of the Turkish Constitution: When there is a conflict between the norms of the municipal law and the international law, Article 90/5 of the Turkish Constitution, also addresses directly to the judge, legal provisions that the judge ought to take the norm of the international law into the consideration and ignore the domestic law norm even though this domestic law norm is a mandatory rule.[2]

To begin with defining the norms of hierarchy, the norms are related to each other and exist in the form of a pyramid scheme. In other words, they are highly interconnected to each other. This relationship is called as “hierarchy of norms” or “legal order pyramid”. That means the norm in the lower level of the pyramid in question derives its validity from the norm at the upper level.

For this reason, it cannot be against the norm at the upper level. In this context, as an example, the law cannot be against the constitution and the regulation cannot be against the law. Hans Kelsen, who is a famous law professor, and his views constitute the basis for this hierarchy.

When further elaborating this concept through the Turkish legal system, the hierarchy of norms in Turkish law consists of written sources such as constitution, law, presidential decree, international agreements, regulation, and circular. There are also doctrine which can be said as scientific opinions and case law which is form of judicial decisions and non-binding issues in the hierarchy of norms in Turkish Law.

The Constitution is at the top of the hierarchy of norms in Turkish Law. Within the competence of Parliament to the Constitution, it is legislated and amended differently from the law with more difficult procedures. When considering international agreements, it is crucial to mention that when an agreement concerning fundamental rights and freedoms, then this agreement is at the upper level than the level of the laws and other international agreements.  In other words, the current position about human rights in Turkey is debatable and complicated because the 2004 Amendment created a hybrid position at the pyramid of norms in the Turkish legal system, as is the case in France.[3]

In constitutional history of Turkey, there had had many constitutions and can be characterized by the steady establishment of a nation-state democratization and recognition of international law. The first constitution of the Republic of Turkey was adopted on January 20, 1921.[4] Then, according to the evolving needs, the Constitution was amended in whole or in part. The current constitution was adopted on 18 October 1982 and was made important amendments with a plebiscite in the current Constitution on 16 April 2017, such as we moved to the presidential system which is one of a kind.[5]

B.2. Political Atmosphere in Turkey in 2004

To continue with amendments in 2004 and the political atmosphere in Turkey. In May 2004, Turkish Parliament amended ten articles of the Constitution. This was the ninth change since the inauguration of the Constitution and – after the 2001 amendments – and the second major constitutional amendment within the framework of a legal reform campaign that had gained critical moment after the approval of Turkey’s candidate status by the EU during the Helsinki Summit of 1999.[6]

It is obvious that the main purpose of the 2004 amendments is to provide a position for Turkey in which Turkey will be as close as possible to Copenhagen Criteria in the respect of fundamental rights and liberties in order to access fully to the EU. What is important here is that with this reform, a much more effective application of the European Convention on Human Rights and other international human rights instruments by Turkish courts would be ensured. Furthermore, the amendment package included several significant changes, such as the elimination of capital punishment, the abolition of State Security Courts, and the opening of military expenses to the State Audit’s Office inspection.[7]

C. The Addition to Article 90 of the Turkish Constitution Within 2004 Legal Reform

However, we see a critical point for the Turkish Legal History: the addition to Article 90 of the Constitution was one of the most radical changes coming with this reform. The new regulation, establishing the supremacy of international human rights agreements over national legislation, was a “silent revolution” in the Turkish constitutional systems as Mr. Özbudun and Mr. Yazıcı who are Turkish law professors stated. In addition, it is states that in the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”[8]

When reviewing previous debates, before adding Article 90 of the Constitution, which had stipulated that international agreements, which were duly put into effect, have the same value as domestic laws. Although this has been a subject of heated debate in Turkish constitutional and international law literature, the dominant view was that in case of a conflict between international agreements and domestic laws, posterior law abrogates the prior law and special law abrogates general laws.[9] As it is seen, a heated debate has an end with this added rule.

D. Exercising the Addition to Article 90 of the Turkish Constitution

To illustrate what this addition to Article 90 tells, there is Law No. 6356 which has adverse impacts on the rights of workers, however, the Turkish Government signed an international treaty with International Labor Organization, which clearly provides better conditions for workers. To be more precise, for example, the international treaty recognizes the chance of the worker’s right to trade union compensation if the workers are not covered by job security but whose contracts are terminated due to union reasons.  However, Law No. 6356 does not recognize this right. This issue was brought before the Turkish Constitutional Court to annul the provisions of Law No. 6356 that were unfavorable for workers. As a result, with the decision of the Constitutional Court dated 22.10.2014, related provision which was about (Article 25/5) was annulled.[10]

The court decisions concerning the conflicts resulting from the union rights and collective actions particularly show that the provision of the Turkish Constitution is very crucial in terms of development of the Turkish law. Although the Law No. 6356 considers all collective actions, which are out of the scope of the legal strike definition, as an illegal strike, it is understood that the Supreme Court considers this issue in the light of the international law norms. Even though some court decisions have contradictions, it is thought that the attitude of the Supreme Court is accurate.[11]

Why it is so important is that, before the annulment decision of the Constitutional Court, the 9th Civil Chamber of the Court of Cassation  ruled that worker groups that are not counted within the scope of job security should not benefit from union compensation against termination.[12] However, it contradicts the policies of the International Labor Organization (ILO) Supervisory Bodies (Committee of Experts, Committee on Freedom of Association) to ensure their freedom of association, as evident in their assessment of their reports.

E. Conclusion

Consequently, the conflict between the domestic and international articles and the law was minimized after the accession process of Turkey to the European Union. The 1982 Constitution of Turkey has become more compatible with the implementation of new policies, especially after the 2000s. However, this does not and should not mean that the conflicts are over. Because these treaties are dynamic beings, and they are meant to extend their assurance and coverage, it is an ongoing process that shapes and nurtures the Turkish law and creates this kind of conflict. The way to eliminate the drawbacks of the new regulation; first, regulations in favor of human rights will be preferred. If the law provides for a more advanced regulation than the treaty, then law should be preferred. Also, when Constitutional amendment comes up, in terms of both international agreements and supranational organization such as the European Union should be considered with the authority that they have, then rules to be applied in case of a conflict and special rules[13] can be made in order to solve the problem related to norms of hierarchy within the legal system. Also, it is stated throughout the paper, the abolishment of article 25 paragraph 5 is a recent example of how the Hierarchy of norms works in Turkish Law.

Bu makalede yer alan fikirler yazara aittir ve Case’in editöryel politikasını yansıtmayabilir.
Bu yazı ilk kez 22 Eylül 2021’de yayımlanmıştır.

Bibliography

Act No. 6356 on Trade Unions and Collective Labor Agreements (2012), Official Gazette of the Republic of Turkey, 28460, 2012-11-07.

9th Civil Chamber of Court of Cassation of Republic of Turkey, 03.25.2014, Date of Judgement on the Merits:  2013/13993, Date of Judgement: 2014/10049, www.legalbank.net .

Article 90/5 of Constitution of the Republic of Turkey, Sentence added on May 7, 2004; Act No. 5170.

Constitutional History of Turkey, access date: 04.24.2021, https://wiki2.org/en/Constitutional_history_of_Turkey.

Engin E. Murat, International Law and Turkish Law in Relation with Human Rights Regarding the Last Sentence of Article 90 of the Turkish Constitution and Collective Actions, Journal of Social Security, Volume 5, Number 2, Page 9-36. October 2015.

Gönenç Levent, ESEN Selin, The Problem of the Application of Less Protective International Agreements in Domestic Legal Systems:  Article 90 of the Turkish Constitution, European Journal of Law Reform, Volume 8, no.4, pages 485-500, 2007.

Kodra Luljeta, The Relationship Between International Law and National Law, Global Journal of Politics and Law Research, Vol.6, No.1, pp.1-11, February 2017.

Özbudun Ergun, Democratization Reforms in Turkey, 1993-2004, pages 179-196, Turkish Studies, Volume 8, 2007.

Turkey Council of State: Notes on the Hierarchy of Norms, ACA Europe Seminar, December 18, 2013.

Yüzbaşıoğlu Necmi, İnsan Hakları Uluslararası Sözleşmelerinin İç Hukukta Doğrudan Uygulanması, TBB, Ankara, s. 86. 2005.

[1] Kodra Luljeta, The Relationship Between International Law and National Law, Global Journal of Politics and Law Research, Vol.6, No.1, pp.1-11, February 2017.

[2] Engin E. Murat, International Law and Turkish Law in Relation with Human Rights Regarding the Last Sentence of Article 90 of the Turkish Constitution and Collective Actions, Journal of Social Security,Volume 5, Number 2, Page 9-36, October 2015.

[3] Özbudun Ergun, Democratization Reforms in Turkey, 1993-2004, pages 179-196, Turkish Studies, Volume 8, 2007

[4] Constitutional History of Turkey, access: 04.24.2021. https://wiki2.org/en/Constitutional_history_of_Turkey.

[5] Turkey Council of State: Notes on the Hierarchy of Norms, ACA Europe Seminar, December 18, 2013.

[6] Gönenç Levent, Esen Selin, The Problem of the Application of Less Protective International Agreements in Domestic Legal Systems:  Article 90 of the Turkish Constitution, European Journal of Law Reform, Volume 8, no.4, pages 485-500, 2007.

[7] Gönenç and Esen, 2007.

[8] Article 90/5 of Constitution of the Republic of Turkey, Sentence added on May 7, 2004; Act No. 5170.

[9] Özbudun, 2007.

[10] Engin, 2015.

[11]Engin, 2015.

[12] 9th Civil Chamber of Court of Cassation of Republic of Turkey, 03.25.2014, Date of Judgement on the Merits:  2013/13993, Date of Judgement: 2014/10049, www.legalbank.net.

[13] Yüzbaşıoğlu Necmi, İnsan Hakları Uluslararası Sözleşmelerinin İç Hukukta Doğrudan Uygulanması, TBB, Ankara, s. 86. 2005.

This div height required for enabling the sticky sidebar