Seitenhistorie

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There is only one direct reference to the principle of separation of powers in the preamble of the Constitution, but the state architecture is established on the basis of it. The legislative, executive and judicial powers are vested in three different branches of government in the Articles 7, 8 and 9 of the Constitution respectively. According to Article 7 the legislative power is vested in the Turkish Grand National Assembly on behalf of the Turkish Nation and this power cannot be delegated. However, Article 91 made an exception to this rule by giving the Parliament a power to authorize the Council of Ministers to issue decrees having the force of law. But, the fundamental rights, individual rights and the political rights cannot be regulated by decrees having the force of law except during periods of martial law and states of emergency. The executive power is vested in the President and the Council of Ministers and the judicial power is vested in the independent courts.
The preamble of the Constitution says that "the principle of the separation of powers, which does not imply an order of precedence among the organs of state, but refers solely to the exercising of certain state powers and discharging of duties which are limited to cooperation and division of functions, and which accepts the supremacy of the Constitution and the law". This approach to the principle of the separation powers supports a parliamentary government system and constitutional architecture of the executive and its relations with the parliament creates a parliamentary system. But following the Constitutional amendment in 2007, which brought the election of the President directly by public, the government system has come close to the French system.

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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 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 Courtreviews 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 Courtmay lead it to be a supervisory board over constituent power and may create an imbalance between different branches of the government by giving last word to the Constitutional Court.

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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, 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.