THE ROLE OF DISSENTING AND CONCURRING OPINIONS IN THE TURKISH PRACTICE1

Abstract

It is not always possible to achieve consensus and unanimity while deciding on any matter in a committee or a group. To take different points of view into consideration is one of the most important practices in the process of decision making and it is very helpful in the development of the democratic reconciliation.

When this issue is considered in terms of law, we encounter with the concepts of dissenting and concurring opinions. The concept of dissenting opinion and concurring opinion may be briefly defined as a democratic mechanism reflecting the thoughts of the ones who fall outside the majority vote on any subject.

Some argue that decisions should not contain dissenting or minority votes. In this regard, it has been put forward that minority views should not be included in judgments, should not published and should not be declared on the grounds that their publication and declaration affect trust to the judiciary and have influence on its decisions in a negative way and that they do not conform to the supremacy of the judiciary. According to this view, on a similar case, a dissenting vote can turn into a majority vote with when the composition of any chamber or bench change. If that happens in a very short time, there is a possibility that the discussions on critical decisions of the Constitutional Court will decrease its reliability.

In spite of these negative approaches there is another approach to dissenting opinions. According to this approach, if all members of any chamber or bench do not share the same opinion, different opinions should be put forth in their decisions. The second approach is generally accepted as a common practice in judicial decisions.