Chapter 5: The Constitutional Developments in Turkey

The Constitution-Making in the Ottoman Empire

To understand the Turkish experience of constitutionmaking they should take a closer look at the steps of constitutionmaking taken by the Ottoman Empire in the nineteenth century. There were some important developments that have had a significant impact on the Turkish experience of constitution-making, such as the Deed of Alliance (Sened-i İttifak 1808), The Edict of Tanzimat (Tanzimat Fermanı 1839), the Edict of Islahat (Islahat Fermanı 1856), The Constitution of 1876 (Kanun-i Esasi 1876).

The Deed of Alliance (Sened-i İttifak 1808)

The deed was signed in October 1808 between the Sultan of the Ottoman Empire, Sultan Mahmud II and the representatives of provincial notables (Ayan). The deed consisted of an introduction, seven articles and an appendix.

In the document both the Sultan and local notables promised to rule fairly and respect each other’s autonomy. The local notables confirmed that they would obey the sultan and the grand vizier (sadrazam) authority and also guaranteed that they would justly rule the people who lived in their territories by signing the deed. The notables also accepted that they would recruit soldiers for the central government when they were asked by the central government and support the central governments’ reforms and defend the Sultan against any insurgence. On the other hand, the Sultan promised that he wouldn’t interfere in the way the provincial notables ruled as long as they were fair. He also promised to levy taxes fairly.

The sultan declared that the taxes wouldn’t be unfair and too overwhelming and also the general welfare of people would be looked after by central and local notables. While the central government reestablished its authority by imposing the deed, the local notables could keep their properties and fiscal and political privileges.

The Era of the Tanzimat

The period from 1839 to 1871 is known as the era of the Tanzimat. It was written by Reşid Pasha. The Sultan announced that he would guarantee the rights and liberties of all Ottoman subjects. It promised four basic reforms;

• The installation of guarantees for the life, honor and property of all Ottoman’s subjects
• A fair system of taxation and the abolition of tax farming (iltizam)
• A system of conscription for the military
• Equality before the law of all subjects, irrespective of religion

Another important document of this era was the Edict of Islahat, which aimed to carry out the provisions of the Edict of Tanzimat.

The Constitution of 1876

The first draft of the constitution of 1876 was prepared by Mithat Pasha who was a member of the Young Ottomans. Yet, the final version of the constitution was formulated by a constitutional committee appointed by the Sultan Abdülhamid. The characteristics of the constitution of 1876 are as below;

• The monarchic and theocratic aspect of the political system of the empire was preserved. Islam was accepted as the religion of the empire. Istanbul was declared the capital of the empire.
• The Executive branch consisted of the Sultan and the Cabinet (Heyet-i Vükela). Legal immunity was granted for the Sultan. The Sultan was the head of the cabinet and had the right to appoint and dismiss the members of the cabinet. The cabinet didn’t have to obtain the vote of confidence from the parliament and had no political responsibility
• The Ottoman Legislature body was composed of two chambers: the Senate (Heyet-i Ayan) and the Chamber of Deputies (Heyet-i Mebusan). The members of the Senate would be appointed for life by the Sultan, while the deputies would be elected by the people through indirect (two-stage) elections in which only property owners were allowed to vote. The right to propose a bill for the General Assembly was firmly restricted and it was subjected to the Sultan’s permission and bills had to be approved by the Sultan in order to come into effect. On the other hand, the Sultan couldn’t enact laws on his own. The Sultan was granted the right to abolish the General Assembly to hold new elections.
• The constitution recognized the independence of the judiciary and certain basic rights and liberties such as theequality before the law for all, property rights, right to education, liberty of trade, freedom of press, right of petition, prohibition of torture and forced labor. However, Sultan Abdülhamid had the right to banish people that endangered national security and public safety. One of the purposes of the constitution was to create a constitutional monarchy. Although the legislature was granted certain powers to enact laws in the constitution and the 1876 Constitution recognized certain human rights and freedoms, the Sultan kept his absolute power in the political system.

The Constitution of 1921

The Ottoman Empire was defeated in World War I. Afterward, Istanbul was occupied and the legislature body of the Ottoman Empire was abolished. In the same year as a reaction to this postwar period that the empire faced, the National Independence War started under the leadership of Mustafa Kemal Pasha. The Grand National Assembly was established on 23 April, 1920 in Ankara as a strategy of the National Independence War. After having held the elections, the 232 elected representatives moved to Ankara to join the grand assembly. The total number of the representatives of the parliament was 337. There were people from all walks of life in the first Grand National Assembly.

The main aim of the parliament in the making of the new constitution was to address the social and political needs for fighting the independence war. The grand assembly enacted a constitution in 1921. The constitution of 1921 was a short constitution including 23 articles but it was an important document. This constitution did not contain any articles regarding the character of the political system.

For political reasons the constitution did not abolish the sultanate. The constitution of 1921 was the first constitution that mentioned national. sovereignty and proclaimed the first grand assembly as the true representative of the nation.

For the first time, local governments were regulated in detail in the constitution. The principle of local administration was recognized by the constitution and each province was encouraged to use self-government principle. The main purpose of this article was to make people get involved in politics.

The Constitution of 1924

The new developments in Turkish politics called for holding new elections. The elections were held in April, 1923. There were some articles of the Constitution of 1924 that didn’t allow the Assembly to make changes. The supremacy of the constitution over ordinary laws was recognized as well and other ordinary laws were supposed to be compatible with the constitution articles. It did not establish a constitutional court that would determine if the laws passed by the assembly were compatible with the constitution.

The constitution declared that the political regime of Turkey was a republic and any constitutional proposal to change this article was prohibited. The constitution also proclaimed that the Grand National Assembly was a true representative of the nation. The Assembly government model was recognized by the constitution. As the Assembly kept the legislative power in the political system, the president and the council of ministers controlled the executive power. The constitution stated that the president had the right to appoint a prime minister in order to form a council of ministers. The prime minister had to pick the ministers and submit them to the president for his approval and after the president’s approval of the list of the council of ministers, the prime minister had to seek the vote of confidence from the Grand National Assembly. The constitution recognized the principle of political responsibility for the council.

The constitution of 1924 granted the following human rights and freedoms: personal rights and security, equality, the prohibition of torture, confiscation and forced labor, the freedom of conscience, the right to private property, the freedom of the press, the right to form association, the right to petition, the right to an education, the right to vote and to be elected and a legal judicial process. However, it should be kept in mind that the constitution did not provide enough guarantees about protecting these rights and freedoms.

One of the most distinctive features of the constitution as to human rights and freedoms was to recognize the principle of secularity. Although the constitution did not include this principle in its initial document, the amendments made in 1928 removed the article declaring the acceptance of Islam as an official religion of the state and the article stating that the government had to force the principles and provision of the sharia law. The amendment in 1937 included the principle of secularity

The Constitution of 1961

Establishing the Democrat Party (Demokrat Parti-DP) in 1946 was the milestone of transitioning into a multi-party system. After the DP was established by political elites, the elections were held on 21 July 1947. DP won the majority in the elections held in 1950. Some important steps taken in the following years by DP when they came to power: religious liberty was expanded, a new law on freedom of press was passed, foreign investment was promoted, and a new law on foreign capital was enacted, new factories were built and agricultural mechanization was accepted as a public policy

In 1960, the democratic politics was interrupted by a coup d’état and it was believed that there was a need for a new constitution. National Unity Committee (Milli Birlik Komitesi-MBK) started to work on a new constitution. A group of academics, also known as the İstanbul Committee, was assigned to prepare a draft for a new constitution. It was believed that the draft would create a lack of trust for political parties. MBK decided that a new constitution should be drafted by a constituent assembly. This captured the support of the general public.

The Supremacy of Constitution

The constitution of 1961 included the principle of the supremacy of the constitution. As a result of this principle, all ordinary laws made by the Assembly had to comply with the constitution. The constitution established a constitutional court and it introduced the judicial review of the constitutionality of laws for the first time. The court had 15 permanent members and 5 substitute members. The members of the court were chosen by the members of the high court of appeal and the council of state, the President of the republic and the Assembly. The judicial review of the constitutionality of laws paved the way for balanced relations among all three branches of government and a more democratic system in the country.

Functioning of Government and Political System

The Constitution of 1961 is distinctive from the previous constitutions with regard to the separation of powers(dividing the political authority of the state into legislative, executive and judicial powers. The purpose is to prevent the concentration of power). The constitution of 1961 made the political system more democratic and held the same democratic perspective with regard to human rights and freedoms.

Human Rights and Freedoms

The idea of negative rights and freedoms were acknowledged by the constitution such as equality, right to physical integrity, right to privacy, property rights, freedom of press, freedom of movement, liberty of conscience, the right to assembly and demonstration, right to legal remedies and the principle of individual crime responsibility. These rights and freedoms in the constitution protect the individual from the abuse of the government and ask for the government not to interfere with the life of individual.

The constitution of 1961 was the first document that included social rights in the Turkish politics and included the following social rights: right to work, right to a safe and healthy work environment, right to rest and leisure, right to fair wages, right to health and education, and the right to social security.

The constitution, for the first time, regarded political parties as the irreplaceable actors of political life. The right to establish unions and become a member of a union, right to bargain collectively and strike, right to form an association without asking for permission were also granted. The constitution recognized any limitation or restriction of rights and freedom had to be made by enacting a law and it declared that any restriction on rights and freedoms had to comply with the spirit and letter of the constitution. It stated very clearly that the rights and freedoms couldn’t be restricted by referring to the common interest of the public, public order, national security, common morality and social justice. By introducing the constitution into the structure of the state, the constitution built a strong base to protect human rights and freedoms.

The Constitution of 1982

The Process of Making of the Constitution

It was believed that rigid separation of powers in the constitution of 1961 caused a gridlock in the political system and produced constant political instability. The amendments in 1969-1974 did not solve the problem of sharp political polarization and political violence. When the political violence became unbearable, the Turkish army overthrew the government on 12 September 1980. Afterward, the assembly was dissolved and legislative immunity of the members of it was terminated. It was announced that the National Security Council (Milli Güvenlik Konseyi-MGK) composed of the chief of general staff and four force commanders would have executive and legislative powers. MGK adopted the law of constituent assembly in 1981.

Taking into consideration the preparation process of the new constitution, it could be said the whole process wasn’t democratic at all. First of all, the constituent assembly wasn’t formed as a result of an election but appointed by MGK. Civil Society and political parties weren’t a part of this process.

The Philosophy and Features of the Constitution of 1982

The constitution values state over individual and it is built on the philosophy that brushes aside human rights and freedoms. It could be regarded as taking a step back in the history of constitution making of Turkey. The state centric understanding of society, individual and politics are found all through the constitution. Even every word of state starts with capital S in the document

The constitution could be regarded as a hard constitution due to fact that it is more difficult to change its articles than other regular laws. It is stated that the first of the three articles of the constitution cannot be changed and even cannot be discussed for modification. The first article defines the regime of the state, which is a republic. The second states the main features of the republic. The third article is about some matters such as the official language, the flag and the capital of the state and the anthem. In addition, the president would hold a referendum on the amendment of the constitution if he doesn’t sign it.

The constitution of 1982 acknowledges the democratic parliament system but abolishes the bicameral assembly consisting of the House of Representatives and the Senate of the Republic. The main reason for having a unicameral system is to make the Grand National Assembly work more effectively. Also, for this reason, it reduces the quorum for a meeting to one-third of the members of the assembly and increased the required minimum number of members to form a political party group in the parliament from 10 to 20.

The constitution declared that if the chairperson of the assembly wasn’t able to be elected in the first three rounds of the ballot, there would be a final ballot between the two candidates that got the most votes in the previous ballot and the candidate that got the simple majority of the votes in the final ballot would be elected as a chairperson of the assembly. The procedure of electing president was important as well. Hence, to be elected as a president, the candidate had to get two-thirds of the votes of the members of the assembly in the first two ballots. If the assembly wasn’t able to elect the president in the first two ballots, the third ballot would take place and the candidate that got the majority of the votes would win the race. If the president wasn’t able to be elected in third ballot there would be a fourth and final ballot between two candidates that got the most votes in the third ballot and the that candidate got the majority of the votes in the final ballot would be elected as a president. If any candidate in the fourth ballot wasn’t able to get the absolute majority vote, it was stated in the constitution the grand assembly elections would be held. The amendment made in 2007 changed the procedure of electing president. The president has been elected by the general vote since 2007.

The constitution of 1982 empowers the branch of executive power. The position of president in the executive power was more powerful than the position of prime minister and the council of ministers. In the original version of the constitution of 1982, it was stated that the president did not have a political responsibility. The council of ministers was the main organ of the executive power. The president used to appoint a member of parliament to form a government and this member used to pick names and to submit them for approval by the president. Vote of confidence by the assembly was compulsory for the council of ministers. The amendments made in 2017 changed the structure of the executive power. The position of prime minister was removed from the political system and the president became the head of the council of ministers and executive power.

The Amendments in the Constitution of 1982

The constitution has been regarded as a product of the coup and the philosophy of it is based on an oppressive comprehensive ideology. Hence, it has been amended nineteen times since 1987. The last significant amendments were made in 2017.

There were important steps taken by the governments through the amendments in 1995, 2001, and 2005 to improve democratic life in the country. Most recently the amendments in 2017 are crucial because the political system of the republic has been transformed to a presidential system.

A more democratic approach was taken regarding the structure of associations, union activities, and professional organizations with public institution status. The age for the right to vote and to hold an office was lowered to 18 and citizens living abroad were entitled to the right to vote in the elections or referendums. It can be stated that the amendments have created a more democratic frame for political parties. However, there were some amendments that has made it easier to shut down political parties by the constitutional court.

The 2001 Amendments extensively changed the constitution. These amendments recognized that the human rights and freedoms could solely be restricted with the reasons that were written in the applicable law. These amendments made some improvements in the laws such as the right of privacy, right to residence immunity, freedom of press, right to travel abroad, right to assembly and demonstration, freedom of speech and thought. Capital punishment was rescinded except for crimes of war and terrorism. The constitutional court had to decide with the absolute majority if the lawsuit was about the shutting down of a political party. Moreover, the amendment introduced a new form of punishment for political parties, which was depriving political parties of government assistance.

The amendments in 2004 were made due to the European Union access process. Capital punishment was nulled. New responsibilities for the government with regard to affirmative action in order to create gender equality in the society were introduced. The confiscation of press assets was prohibited in the amendments. In the case of any contradiction between Turkish laws and the international agreements, it was decided that the international agreements had superiority over Turkish laws. State Security Courts were terminated by the amendments. It was also adopted that the Turkish Court of Accounts would be able to examine the military finance affairs.

The 2007 amendments brought significant changes with regard to the way of electing a president. It was recognized that the president would be elected by the general vote and the serving time of the president was lowered from five years to four years.

The 2010 amendments regulated many matters. Affirmative action was recognized regarding children, elders, disabled people, veterans and martyrs. The Ombudsman Institution was established to examine the concerns about administrative affairs. New improvements were introduced with regard to employees’ rights and freedoms. The most important reform in the 2010 amendments was the acceptance of individual access to the Turkish Constitutional Court. The domain of the military courts was limited to only military service lawsuits. The decisions of the supreme military council were opened to judicial review except for decisions on retirement of military personnel.

The 2017 amendments included 18 articles. With these amendments, the political system has been developed into the presidential system. The number of members of the assembly has been increased to 600 and the age to hold an office has also been lowered to eighteen. The legislation period was extended to 5 years. It has been enacted that the legislation elections and the presidential elections will be held on the same day. A candidate has to get the simple majority of general vote in order to be president. If the president cannot be elected in the first round, the next round for the presidential elections will be held in two weeks. The motion confidence was removed from the assembly’s supervisory power. However, the parliamentary inquiry, general debate, impeachment and written questions have been kept in the constitution as the methods of the assembly’s supervisory power.