Judicial review of unconstitutional constitutional amendments in the context of transnational constitutionalism (The analysis of Türkiye)

The purpose of the judicial review of the constitution in a democratic state is to ensure and protect the supremacy of the constitution. The limits of the constitutional review of laws and constitutional amendments made by the Constitutional Courts within the scope of the purpose of protecting the Constitution and the case-laws they developed, are frequently evaluated in the literature and also their problems are revealed. Within the scope of this study, the judicial review of unconstitutional constitutional amendments and the problems encountered within the framework of this judicial review are discussed from the transnational constitutionalism perspective. The aim of the study is to reveal how the Constitutional Courts can fulfill their functions within the framework of transnational constitutionalism and its components, as well as the principles of human rights, democracy and the rule of law, in order to guarantee the constitutional order and the fundamental rights and individual freedom within the scope of judicial review of unconstitutional constitutional amendments. For this purpose, the decisions taken by the Constitutional Court of the Republic of Turkey in the 1961 and 1982 Constitutional periods after the audits on the constitutionality of the constitutional amendments and the doctrine it formed, are examined in detail. Within this frame; throughout the study, based on the constitutional function of the Constitutional Court, taking into account the local dinamics as well, the Court should generate jurisprudences in which both the common values agreed in international documents and transnational judicial dialogues are sustained. Only if this approach is fulfilled, the Constitutional Court will develop a doctrine in accordance with the context of human rights, democracy and the rule of law within the framework of a rights-based approach.