The Law On Security Investigation And Archival Research Is Not Unconstitutional In Terms Of Form
Subject Rule
Law No. 7315 on Security Investigation and Archival Research constitutes the subject of the lawsuit.
Grounds for Cancellation Request
In the petition, in summary, it was claimed that Law No. 7315 is null and void and unconstitutional in terms of form.
Assessment of the Court
The absence of a norm means that it has never been born in the world of law. The existence of a norm does not depend on its entry into force and implementation. In terms of laws, non-existence may be in question in cases such as the absence of parliamentary will, in other words, in the absence of the necessary conditions for the existence of a norm.
Unlawfulness, which is different from non-existence, means that the norm existing in the realm of law is not enacted within the framework of the procedures and principles stipulated by law. No matter how severe and obvious the illegality is, the illegality of a norm does not result in the non-existence of that norm, which exists with the existence of its necessary conditions. For this reason, the determination of the unconstitutionality of the laws or provisions of the law in the matters that need to be examined within the scope of the constitutionality review necessitates the cancellation of the relevant law or provisions of the law, not its non-existence.
Since the issues asserted in the petition for the lawsuit that the Law is unconstitutional do not fall within the scope of the conditions that make it impossible for the Law to come into existence, it is necessary to examine the Law within the scope of the constitutionality review and to cancel it or to reject the request for cancellation according to the conclusion to be reached as a result of this review.
The second paragraph of Article 148 of the Constitution stipulates that the review of the laws in terms of form is limited to the issue of whether the last vote was held with the prescribed majority.
In the justification of Article 148 of the Constitution, it is stated that it is assumed that the General Assembly knows or should have known about the irregularities in the form before the final voting by the General Assembly of the Turkish Grand National Assembly, and that the irregularities in the form before the final voting cannot lead to annulment.
In the face of the clear provision and the justification of Article 148 of the Constitution, it is not possible to take any other issue other than whether the last vote was held with the prescribed majority as a basis in the audit of the laws in terms of form, and in this way, it is not possible to audit the laws in terms of form.
According to Article 96 of the Constitution titled “Quorum for meeting and decision”, the TGNA must convene in all its affairs with 200 deputies, which is at least one third of the total number of its members, decide by an absolute majority of those attending the meeting, and the quorum for decisions must never be less than 151 deputies, which is one more than one quarter of the total number of its members.
From the examination of the minutes of the General Assembly of the Grand National Assembly of Turkey regarding the discussion of the Law, it is understood that the voting on the whole Law was conducted by the method of signalling. The result of the vote by signalling was not determined numerically, but was announced by the President presiding over the session in accordance with Article 141 of the Rules of Procedure of the Grand National Assembly of Turkey (Rules of Procedure). Pursuant to Article 141 of the Rules of Procedure of the Grand National Assembly of Turkey (Rules of Procedure), the session in which the Law was adopted was opened by stating that there was a quorum, the Presidency did not have any doubt about the existence of a quorum during the voting of the whole Law, and no objection was raised by any deputy that there was no quorum, it must be accepted that the final vote was held with the majority as stipulated in Article 96 of the Constitution.
On the other hand, although it is claimed in the petition that the bill was put on the agenda, discussed and adopted in the General Assembly of the Grand National Assembly of Turkey in violation of the procedures and principles stipulated in the Rules of Procedure, these allegations require the Law to be audited in terms of form.
Pursuant to the second paragraph of Article 148 of the Constitution, since the formal audit is limited to the issue of whether the final vote was held with the prescribed majority or not, only an audit regarding the majority of the final vote was conducted.
For the reasons explained above, the Constitutional Court has decided to reject the request for determining that the Law No. 7315 on Security Investigation and Archival Research is null and void, that it is not contrary to the Constitution in terms of form and that the request for its cancellation is rejected.
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