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In its decision of October 1, the AYM unanimously rejected the request of the deputies of the CHP to annul Law No. 7249 and the Law of Modification of Certain Laws, known to the public as ‘multiple bar associations’. AYM President Zühtü Arslan and members Engin Yıldırım, Cemal Mümtaz Akıncı and Emin Kuz voted against the rejection of the articles regulating the establishment of “multiple bar associations” of the law. The reasoned decision of the Constitutional Court was published today in the Official Gazette.
‘THERE ARE NO CONSTITUTIONAL BARRIERS’
In the justified decision it was recalled that the bar associations are professional organizations that qualify as public institutions according to article 135 of the Constitution, “There is no constitutional restriction in the Constitution that professional organizations in the quality of public institutions cannot be more than one in the same region. For this reason, it is necessary to establish more than one bar association in the same province. In this framework, the Constitution establishes the constitution of more than one bar association in the same province, to attend to the common needs of those who are members of a certain profession, to facilitate their professional activity, to ensure the development of the profession in accordance with the general interests, to ensure that the members of the profession are honest in their relationships with each other and with the public It cannot be said that it constitutes an obstacle in the fulfillment of the duties to make prevail the trust “.
The Constitutional Court ruling also stated that “more than one bar association in the same province is only possible if the conditions specified in the law are met, and it is not possible to leave the constitution of bar associations to the will of the lawyers. Therefore, the regulation for the establishment of more than one bar association in the same province cannot be considered to be contrary to the constitutional principle that professional organizations shall be established by law. “It was determined.
‘IDEOLOGICAL DECLARATIONS OF SEVERATION OUTSIDE THE CONSTITUTIONAL AUDIT’
In the decision, the proposal subject to the law was also mentioned in the committee meetings, and it was recalled that the number of lawyers registered in the bar associations, especially in provinces such as Istanbul, Ankara and Izmir, reached a level that would make it difficult seriously the communication and professional solidarity of the lawyers registered in the same association, and the training of practicing lawyers and lawyers at the forefront of the profession. Noting that it is also pointed out that it is also pointed out that a new bar association with a minimum of 2 thousand lawyers can be established in the provinces where there are more than 5 thousand lawyers in order to solve these problems due to the large number of delays in the execution of businesses and transactions related to the legal profession, and to carry out the services of the bar in a healthier manner. In the decision of the Constitutional Court, “In this sense, it cannot be said that the norm pursues a purpose other than the public interest. The establishment of more than one bar association in the same province will provoke ideological, ethnic and political divisions of the bar associations, this situation can pave the way for different conflicts, and the duty of bar associations to protect the rule of law and human rights is dysfunctional. Although the issues mentioned are alleged to be within the scope of the appropriateness and they are outside the scope of constitutional review, it was stated.
It will be applied to the lawyers in AYM to decide the disciplinary measures and sanctions, to be implemented by all the bar associations is emphasized as regulated by law as mandatory provisions, sanctions from the Disciplinary Board of the Turkish Bar Association (TBB). Therefore, the establishment of more than one bar association in the same province does not lead to different practices in terms of professional discipline. “
‘CANCELLATION REQUESTS MUST BE NEGATIVE’
Noting that the rules only provide for the establishment of more than one bar association and that there is no regulation that establishes that bar associations can ‘participate in political activities’, it was stated that, in accordance with article 135 of the Constitution, professional organizations cannot operate outside the purposes of their establishment and that political parties cannot nominate candidates in elections to the organs of professional organizations. In the same article, it was also noted that the responsible bodies of professional organizations that operate outside of their purposes would be terminated by court decision, “Therefore, legal measures are included to prevent bar associations from operating outside of the specified purposes. in the Constitution and the Law. Having one or more bar associations established. The assertion that the regulation will politicize the defense profession is a practical problem and falls outside the scope of constitutional control, so the norms that allow the constitution of more than one bar association in the same province are under the discretionary power of the legislator and the rules do not have an aspect contrary to the Constitution. The rules are not contrary to articles 2 and 135 of the Constitution. Requests for invalidity must be rejected. “
PRESIDENT ARSLAN’S REASON FOR VOTING AGAINST
AYM President Zühtü Arslan, based on the vote against, stated that he did not believe that the rules regarding “multiple bar associations” established the requirement of “establishment by law” in article 135 of the Constitution. Arguing that bar associations are ‘public legal entities’ and that public legal entities are established in accordance with article 123 of the Constitution, Arslan said: “Second, the rules allow the establishment of more than one bar association in the same province at the will of the lawyers under certain conditions. The legislator is expected to be much more meticulous in establishing bar associations, which are professional organizations of lawyers, which have an important element, and to conduct an examination rigorous. As in the establishment of state and foundation universities. Just as the legislator carefully examines the establishment of each university and ensures that it is established by law, the establishment of bar associations. Furthermore, this is not an issue preferably, but a necessity given the recent constitutional reform, “he said.
