The role of the executive branch in the determination of constitutional judges

The constitutional judiciary model that emerged in Europe between World War I and World War II became widespread after World War II, leading to the establishment of constitutional courts. With the establishment of constitutional courts, legitimacy issues arose due to the duties and powers of these courts. One of the main ideas to solve the problem of legitimacy is for the judges constituting these courts to be appointed by the political authority whose actions are being scrutinized. Along with this idea, the problem of impartiality and independence of constitutional courts and their judges came to the fore. In Turkey, the majority of constitutional judges are appointed by the executive branch. Therefore, this study comparatively analyzes Turkey with some countries where the executive branch is authorized to appoint constitutional judges. While analyzing these countries, a distinction has been adopted according to their systems of government. This is because there is a connection between the systems of government and the systems adopted in the appointment of constitutional judges. In general, there is an inverse proportion in which it can be said that as the power of the executive branch increases, its influence on the appointment of constitutional judges decreases. Montesquieu, the identical defender of the principle of separation of powers, argues that the legislative, executive, and judicial organs must be absolutely separated from each other, and asserts that the merger of these powers in the same person or institution would lead to the destruction of everything. However, in the ordinary course of life, these organs have naturally endeavored to dominate each other. In the face of this effort, it is necessary to make legal regulations to ensure the balance between the organs constituting the state. From this point of view, the executive branch's attempt to dominate the Constitutional Court in Turkey should be constitutionally prevented. As is known, government systems are classified according to the relationship between the legislative and executive branches of the state. In addition to the systems based on the unity of the legislative and executive organs, the systems in which these organs are separate from each other are the presidential system and the parliamentary system. In the presidential system, all organs of the state are completely separate from each other, while in the parliamentary system, the legislative and executive organs are united to a certain extent. In Turkey, until 2014, a parliamentary system of government was implemented; after this date, with the transition to the popular election of the president, a semi-presidential system began to be implemented, and following the 2017 constitutional amendment - although there are debates in doctrine - a government system more similar to a presidential system, unique to Turkey, was adopted. If we talk about the separation of powers and systems of government again, it should be said that the judicial branch is completely independent from the legislative and executive branches in both systems of government. In fact, it is essential that the judiciary does not take orders from these two organs and that it is impartial and independent vis-à-vis these organs. Following the emergence and expansion of the constitutional judiciary, this institution comes to the fore as a check and balance on the legislative and executive branches. On the other hand, during the establishment of constitutional courts, different systems emerged in the appointment of constitutional judges. It is a fact that the impartiality and independence of constitutional judges visà-vis the political organs they oversee must be ensured and the membership of the courts must be determined in a manner that ensures this. Constitutional courts are inherently political institutions. However, the issue is the structure of an institution that is known to be political and yet is adopted. Constitutional courts need to be polyphonic, accommodating different views, not dominated by a single view, and ensuring the impartiality and independence of their members. The ability to reflect different political and legal views on the constitutional courts and to ensure the impartiality and independence of its members is related to how its members are appointed. In the first part of the study, the development of constitutional judiciary and the systems for the appointment of constitutional judges will be discussed. The development of constitutional judiciary is linked to the principle of separation of powers and government systems will be mentioned. In addition, the systems that emerged in the determination of constitutional judges will be included. Then, the countries to be examined within the framework of comparative law within the scope of the study are identified and these countries will be classified according to their government systems. Since the majority of constitutional judges in Turkey are appointed by the executive branch, the study will focus on countries in the world where the executive branch has the authority to appoint members. These countries will be limited to the countries that are members of the Joint Council on Constitutional Justice. The constitutional and legislative provisions of these countries will be analyzed in a way to cover the procedures adopted in the appointment of members, the duties and powers of the courts, and the characteristics of constitutional judges, and various findings will be made. It will be tried to determine whether a system similar to the system adopted in Turkey for the appointment of constitutional judges has been adopted in other countries in the world. In the second part of the study, the establishment of the Constitutional Court of the Republic of Turkey and how the constitutional judges will be determined according to the constitutions of the Republic of Turkey will be discussed by taking into consideration the members appointed by the presidents during the 1982 Constitution. In this section, the qualifications required for constitutional judges and the duties and powers of the Constitutional Court will be discussed. In order to fully understand the involvement of the executive branch in the appointment of constitutional judges in Turkey, the composition of the source institutions nominating members to the Constitutional Court will be emphasized. In addition, the article will focus on the views in the doctrine on the appointment of constitutional judges by the executive branch and will include the works of the institutions that propose to change the structure of the Constitutional Court. The system adopted under the 1961 Constitution differs from the system adopted under the 1982 Constitution in the determination of the members of the Constitutional Court of the Republic of Turkey, which was established by the 1961 Constitution and started to operate in 1962. For this reason, in the second part of the study, firstly, the provisions regarding the adoption of constitutional judges in these constitutions applied in Turkey will be discussed separately. Then, the amendments made in the 1982 Constitution in this regard will be given. Within the framework of the government systems implemented in Turkey from 1982 to the present day, the preferences of the presidents who served as president under the 1982 Constitution will be analyzed by classifying them according to these government systems. In other words, in which system of government a president fulfills this duty, whether this president has impartial during this period, and which names this president prefers as constitutional judges during this duty will be emphasized. Nevertheless, this review will focus on the appointments of specific members and not on all members appointed by presidents. The reason for this is that we want to include the appointments of members of members that are not based on objective criteria of the presidents come to the fore. In this way, it will also be possible to see to what extent the fact that the president has the title of impartiality on paper affects his/her preferences. As a result, it will be examined whether there is a possibility of the executive branch dominating the Constitutional Court and whether such a dominance can be prevented according to the member appointment system adopted in Turkey today, which predominantly gives the executive branch the right to make preferences. The impartiality and independence of the judiciary is a necessary element of the principle of separation of powers and the protection of fundamental rights and freedoms depends on this impartiality and independence. Within the framework of the foregoing, this study aims to prevent the system in which the members of the Constitutional Court are predominantly determined by the executive branch, which was adopted in the 1982 Constitution and continued after the 2017 Constitutional amendment, from casting a shadow over the impartiality and independence of the Constitutional Court. uygulanan bu anayasalardaki anayasa yargıçlarının benimsenmesine ilişkin hükümler ayrı ayrı ele alınacaktır. Daha sonra 1982 Anayasası'nda bu konuda yapılan değişikliklere yer verilecektir. Türkiye'de 1982 yılından günümüze kadar uygulanan hükümet sistemleri çerçevesinde 1982 Anayasası döneminde cumhurbaşkanlığı yapan isimlerin tercihleri, uygulanan bu hükümet sistemlerine göre sınıflandırılarak incelenecektir. Başka bir anlatımla bir cumhurbaşkanının hangi hükümet sistemi döneminde bu görevi yerine getirdiği, bu dönemde tarafsız sıfatını haiz olup olmadığı ve bu görevi sırasında anayasa yargıcı olarak hangi isimleri tercih ettiği üzerinde durulacaktır. Yine de bu inceleme yapılırken cumhurbaşkanları tarafından belirlenen tüm üyelere değil de belirli üyelerin atamalarına odaklanılacaktır. Bunun sebebi cumhurbaşkanlarının objektiflikten yoksun üye atamalarına yer verilmek istenmesidir. Zira böylelikle cumhurbaşkanının kâğıt üzerinde tarafsız sıfatına sahip olmasının da tercihlerini ne derece etkilediği görülebilecektir. Sonuç itibariyle Türkiye'de bugün benimsenen ve ağırlıklı olarak yürütme organına tercihte bulunma hakkı sağlayan üye belirleme sistemine göre yürütme organının AYM'ye hâkim olma ihtimalinin bulunup bulunmadığı ve böylesi bir hakimiyetin önüne geçilip geçilemeyeceği irdelenecektir. Yargı organının tarafsızlığı ve bağımsızlığı, kuvvetler ayrılığı ilkesinin zorunlu unsuru olduğu kadar temel hak ve özgürlüklerin korunması da bu tarafsızlığa ve bağımsızlığa bağlıdır. Açıklananlar çerçevesinde bu çalışma ile 1982 Anayasası'nda benimsenen ve 2017 Anayasa değişikliğinin ardından devam eden AYM üyelerinin ağırlıklı olarak yürütme organı tarafından belirlendiği sistemin AYM'nin tarafsızlığı ve bağımsızlığı üzerine gölge düşürmesinin önüne geçilmesi hedeflenmiştir.