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The first and paramount meaning of the rule of law is adherence of branches of government to the law. That is, the state should be ruled by law not by (arbitrary) will of the men. This requires in practice the executive and the judiciary should be bound by the law enacted by democratically elected parliament and the parliament should be bound by a the Constitution made by the sovereign power, the people. Adherence of state organs to the law should also be controlled by an independent judiciary. The Turkish Constitution adopted this approach in principle with some exceptions.The constitutionality of parliamentary acts is controlled by the Constitutional Court. The Constitutional Court reviews the constitutionality, in respect of both form and substance, of laws, decrees having the force of law, and the Rules of Procedure of the Turkish Grand National Assembly through abstract and concrete control mechanisms. Individual constitutional complaint has not been recognised in Turkey. The decrees having the force of law issued by the Council of Ministers meeting under the chairmanship of the President during the state of emergency and the martial law (arts.121-122) have been exempted from constitutionality review (Art. 148). But these decrees may regulate fundamental rights (Art.91) unlike other decrees having the force of law issued in normal times. Having considered these two provisions together, it can be said that fundamental rights have been left unprotected during the state of emergency and the martial law. Unconstitutionality of international treaties also cannot be claimed before the Constitutional Court (Art. 90). The Constitutional amendment laws can be reviewed only in respect of form, not in substance (Art. 148) but the Constitutional Court reviewed substance of Constitutional amendments in 2008 depending on the irrevocable articles of the Constitution (E:2008/16 K:2008/116). The annulment of the constitutional amendments by the Constitutional Court may lead it to be a supervisory board over constituent power and may create an imbalance between different branches of the government by giving the last word to the Constitutional Court.
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Adherence of judiciary and courts to the law is aimed to be realized by judicial self-control through the stages of appeal and by the independency of the judges. Formal guarantees of the judicial independence and the security of tenure of judges have been provided by the Constitution (Arts. 138 and 139). As a guarantor of judicial independence the High Council of Judges and Prosecutors have been established (Art. 159). However, the composition, organization and powers of the High Council have been a matter of controversy since its establishment. While some critics argue that the inclusion of the Minister of Justice and his/her Undersecretary into the Council jeopardize independence of judiciary, some others criticize the fact that only high courts' judges are represented in the High Council and it does not have any competence on high courts' judges. It is also criticized as having lack of democratic legitimacy and lack of transparency in its decisions as well as its decisions being immune from judicial review. Some controversial decisions of the High Council were widely criticized by the EU and the institutions of the Council of Europe institutions. Therefore, it is crucial to make a judicial reform to establish an independent and accountable judiciary which has democratic legitimacy.
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The principle of the rule of law is a constitutional principle in Turkey. The basic components of the rule of law enshrined in the Constitution are recognition of fundamental rights, separation of powers, constitutional review of legislative acts, judicial review of executive acts and independence of the judiciary. The constitutional appearance seems roughly meeting the requirements of the rule of law. Nevertheless, the exceptions of judicial review and undemocratic composition of the some constitutional organs in tandem with a state ideology enshrined in the Constitution do not allow a viable rule of law application. Therefore, the establishment of a democratic structure which allows plural representation of different political and social groups in the constitutional bodies seems a prerequisite condition for realization of the rule of law in practice. Sometimes the principle of the rule of law itself can be utilized to prevent democratization of the constitutional system. The situation in Turkey, at the moment, is that there is a strong resistance from civil and military bureaucratic elites against democratization process. They claim that the reforms posed in the accession process to the EU jeopardize the rule of law. As a result, while the concept of rule of law is one of the most cited notions in the court decisions, academic writings and political debates in Turkey, it is not so visible in the daily life of the people.
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